(A) Written application. A written application shall be filed with the city for:
(1) Grant of an initial franchise or license;
(2) Renewal of a franchise or license within the meaning of 47 U.S.C. § 546(a)—(g); or
(3) Modification of a franchise or license pursuant to this chapter or a franchise or license. A request for renewal, pursuant to 47 U.S.C. § 546(h), may also be filed informally, as provided in division (F) hereof.
(B) Contents of applications for a franchise. A request for proposals for a franchise, including for a renewal franchise under 47 U.S.C. § 546(c), shall require, and any application submitted pursuant to division (A) (and expressly not an informal renewal application submitted within the meaning of 47 U.S.C. § 546(h)) shall contain, at a minimum, the following information:
(1) The identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent;
(2) An identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area’s boundaries;
(3) A detailed description of the physical facilities proposed, which shall include at least the following:
(a) A description of the channel capacity, technical design, performance characteristics, headend, access (and institutional network) facilities and equipment;
(b) The location of the proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same;
(c) A map of the route the facility will follow; a designation of the portions of the system that will be placed above-ground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system above-ground and under-ground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities; and
(d) A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
(4) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational and governmental use of the cable system (including institutional networks) the applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community.
(5) A demonstration of the financial qualifications of the applicant, including at least the following:
(a) A statement prepared by a certified public accountant regarding the applicant’s financial ability to complete the construction proposed, to meet the time frame proposed and to operate the cable system proposed; and
(b) Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.
(6) A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system.
(7) Proof that the applicant is legally qualified, which proof must include a demonstration that the applicant:
(a) Has received, or is in a position to receive, necessary authorizations from state and federal authorities;
(b) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows the city to conclude the applicant cannot be relied upon to comply with requirements of the franchise, or provisions of this chapter;
(c) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities; and has not entered into any agreement that would prevent it from doing so;
(d) The applicant must not have submitted an application for an initial or renewal franchise to the city, which was denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to the franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application; and
(e) An applicant may show that it would be inappropriate to deny it a franchise under division (B)(7)(b) above by virtue of the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals, or the remoteness of the acts or omissions from the operation of communications facilities.
(8) To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs required under divisions (B)(5) and (6) should be provided for that person.
(9) A description of the applicant’s prior experience in cable system ownership, construction, and operation, and an identification of cities and counties in Kentucky in which the applicant or any of its principals have a cable franchise or any interest therein, provided that an applicant that holds a franchise for the city and is seeking renewal of that franchise need only provide this information for other cities and counties in Kentucky where its franchise had been scheduled to expire during the 12-month period prior to the date its application is submitted to the city and for other cities and counties in Kentucky where its franchise is scheduled to expire during the 12-month period after the date its application is submitted to the city. If an applicant has no other franchise in the state, it shall provide the information for its operations in other states.
(10) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application and certifying that the application meets all requirements of applicable law.
(C) Contents of applications for a license. Any application for a license submitted pursuant to division (A) of this section shall contain, at a minimum, the information required by division (B) of this section and such additional information as the city may from time to time require.
(D) Procedure for applying for grant of a franchise other than an application that is subject to 47 U.S.C. § 546.
(1) A person may apply for a franchise or license in response to a request for proposals (“RFP”) issued by the city. Any response to an RFP shall contain the information required by divisions (B) or (C) of this section, and such other information as the RFP may require, and must be submitted in accordance with the restrictions in the RFP. A properly filed response to an RFP shall be evaluated in accordance with division (D)(2) below. The city may conduct such investigations from time to time as may be appropriate to establish RFP requirements.
(2) Notwithstanding the provisions of division (D)(1) above, a person may apply for an initial franchise or license by submitting an unsolicited application containing the information required in divisions (B) or (C) of this section, and requesting an evaluation of that application pursuant to division (D)(3) below. Prior to evaluating that application, the city may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in division (D)(3) below, including by commencing a proceeding to identify the future cable-related needs and interests of the community. It also may seek additional applications prior to evaluating the application. An applicant for an initial franchise or license shall be provided an opportunity to amend its application in light of the result of any investigation conducted by the city, prior to evaluation of that application pursuant to division (D)(3).
(3) In evaluating an application for a franchise or license, the city shall consider the following factors:
(a) The extent to which the applicant has substantially complied with applicable law and the material terms of any existing cable franchise or license for the city;
(b) For a franchise application, whether the quality of the applicant’s service under any existing franchise in the city, including signal quality, response to customer complaints, billing practices and the like, has been reasonable in light of the needs and interests of the communities served;
(c) Whether the applicant has the financial, technical and legal qualifications to hold a cable franchise or license;
(d) Whether the application satisfies the requirements established by the city under this chapter or in an RFP or is otherwise;
(e) For a franchise application, whether the application is reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;
(f) For a franchise application, whether, to the extent not considered as part of division (D)(3)(e) above, the applicant will provide adequate public, educational and governmental channel capacity, facilities or financial support;
(g) Whether issuance of a franchise or license is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services or use of the public rights-of-way; and the comparative superiority or inferiority of competing applications; and
(h) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city.
(4) If the city finds that it is in the public interest to issue a franchise or license considering the factors set forth above, the city may adopt a franchise ordinance or issue a license setting forth the terms and conditions of the franchise or license, which franchise or license shall become effective upon the satisfaction of conditions precedent to effectiveness, and when signed and accepted by the applicant. If the city denies a franchise or license, it will cause a written explanation of the denial to issue, which may be in any appropriate form. Without limiting its authority to deny an application for a franchise or license, the city specifically reserves the right to reject any application that is incomplete or fails to respond to an RFP.
(5) Notwithstanding the foregoing, the city may reject an application for a license if it deems it in the public interest to do so.
(E) Procedure for applying for grant of a Cable Act renewal franchise. To the extent required by federal law, requests for renewal under the Cable Act will be received and reviewed in a manner consistent with § 626 of the Cable Act, 47 U.S.C. § 546. It is the proposal submitted by a franchisee under 47 U.S.C. § 546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. § 546(a), that must contain the information required under division (B) of this section. If neither a renewal applicant nor the city activates in a timely manner, or can activate the renewal process set forth in 47 U.S.C. § 546(a)—(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of division (D) of this section shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The City Council authorizes the Hopkinsville Cable Television Oversight Authority (“HCTOA”) or its designee to hold any proceedings required under federal law and to establish procedures governing the conduct of such proceedings including, without limitation, procedures for presentation of evidence. At the conclusion of any proceeding required by federal law, the HCTOA shall transmit its findings, along with a recommendation, to the City Council. If the HCTOA wishes to delegate the conduct of the proceeding required by 47 U.S.C. § 546(c) to another entity, the approval of the city is required. In any case, however, the final decision to deny or grant renewal shall remain with the City Council.
(F) Informal applications for renewal. Notwithstanding the above, a cable operator may submit a proposal for renewal of a franchise pursuant to 47 U.S.C. § 546(h). Such a proposal may be submitted at any time and the city may, after affording the public adequate notice and opportunity for comment, grant or deny the proposal at any time for any reason (including after proceedings have been commenced in accordance with 47 U.S.C. § 546(a)).
(G) Application for modification of a franchise.
(1) An application for modification of a franchise shall include, at minimum, the following information:
(a) The specific modification requested;
(b) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of pro forma financial statements;
(c) A statement indicating whether the modification is sought pursuant to § 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;
(d) Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and
(e) An affidavit or declaration of the applicant or the applicant’s authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.
(2) A request for modification submitted pursuant to 47 U.S.C. § 545 shall be considered in accordance with the requirements of that section.
(H) Public hearings. An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given a reasonable opportunity to be heard. In addition, prior to the issuance of a franchise, the city shall provide for the holding of a public hearing within the proposed franchise area, following notice to the public, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(Ord. 26-97, passed 9-23-1997)