Believing that competition between providers of telecommunications services will result in lower rates, better service and greater innovation, it is the intent of the City to create an environment which supports fair and open competition between providers of telecommunications services. Franchises issued after the effective date of this section shall contain and/or be subject to the following provisions:
(a) Near-Universal Service. A franchise shall be required to serve all persons requesting service in the City currently served by other franchises.
(b) Franchise Fee. For use of the public rights of way required to provide the service identified in subsection (a)hereof, a franchisee shall be required to pay the same level of franchise fee paid by other providers of similar services up to the maximum franchise fee permitted to be collected by Federal or State law or regulation.
(c) Customer Standards. A franchisee shall comply with the more stringent of the customer service standards of the franchise: those from time to time adopted by the franchisee and revealed publicly or those from time to time adopted by the FCC. A franchisee shall be required to purchase the equipment necessary to measure such compliance and shall produce reports at least quarterly to demonstrate compliance with the applicable standard.
(d) PEG Support. A franchisee shall donate use of the public, educational and governmental ("PEG") channels for use by the City or its designees. A franchisee shall also provide financial support for the use of the PEG channels and the development of programming for those channels. Minimally, a franchisee shall donate the number of channels that corresponds to the same number of channels donated by other providers of similar services in the year preceding the issuance of a franchise to such franchisee. A franchisee shall further provide financial support for the operation of the PEG channels in an amount equal to the same level of financial support provided by other providers of similar service in the year immediately preceding issuance of the franchise; provided that in no event shall the level of financial support paid by a franchisee be less than any other franchise. If, owing to adequate financial support for PEG channels by existing franchisees, the City determines that additional PEG funding is not required, then the City, upon a determination by its Council, may direct the expenditure of equivalent funds provided hereunder for public purposes it deems proper.
(e) Fair Competition. If more than one franchise is granted in the City to provide video telecommunications services, then each holder of a franchise to provide similar services shall have the option, on thirty days written notice to the City, to adopt and comply with all the terms of the franchise subsequently granted to another provider.
(f) Utility Rate Payor Protection. If the person requesting a franchise to deliver video or other types of programming and/or information services also provides telephone or other public utility service to residents of the City, the grantor shall require the submission of all detailed information and financial projections from the person requesting the new franchise reasonably necessary to ensure that revenue from the public utility operation is not proposed to be used as a subsidy for delivery of video services. The grantor shall further require that the new franchisee is a separately established company, that all financial records be separately maintained and auditable by the grantor and that all necessary assurances of financial performance be provided by an entity other than that which offers such public utility service to the residents of the City. Cross subsidization of services by a franchisee shall be considered a material breach of the franchise agreement.
(g) Utility Easements and Rights of Way. No person shall use City utility easements and public rights of way without the issuance of a permit therefor and except in accordance with the provisions of this chapter, the rules and regulations adopted pursuant to this chapter and the engineering construction standards of the City.
Each application for a permit shall be accompanied by plans and specifications for the proposed construction. Plans and specifications for proposed utilization of City utility easements and public rights of way shall be submitted to the City Planning Department for processing and review. No plans and specifications shall be approved and no permit shall be issued unless the following conditions are met:
(1) A franchise has been awarded to the applicant by the City.
(2) Adequate space is reserved in the City utility easements and public rights of way for competitors offering the same services as the applicant.
(3) The applicant agrees to indemnify and hold harmless the City and existing users of City utility easements and public rights of way from all costs and expenses incurred in strengthening poles, replacing poles, rearranging attachments and placing underground facilities, and all other incidental costs, including those incident to administration, inspections, engineering and legal review, incurred by the City or other users of City utility easements and public rights of way.
(4) The plans and specifications have been reviewed by all other users of City utility easements and public rights of way.
(5) A franchisee shall file pole attachment agreements with the City.
(6) A. Arbitrator: The applicant has executed separate agreements relating to conflict resolution with each other user of affected City utility easements and/or public rights of way, which agreements shall include provisions related to damage of facilities, restoration of service and payments of costs. Council shall appoint a telecommunications arbitrator for the purpose of resolving disputes between franchisees regarding the construction, maintenance, repair or replacement of facilities. The arbitrator shall be employed on a consulting basis with all fees, costs and expenses incurred by the City in connection with referral of a dispute to the arbitrator, to be born by the franchisees as provided herein. The Chief Executive Officer shall, upon written request by any franchisee, direct the telecommunications arbitrator to resolve a dispute. Each franchisee shall deposit with the City an amount equal to 110 percent of the fees estimated by the arbitrator to be incurred in connection with the matter. The decision of the arbitrator shall be binding on the franchisees. The arbitrator shall require the losing party to pay 100 percent of the arbitrator's fees and costs and such additional reasonable sum calculated to reimburse the winning franchise for costs of repair or replacement of damaged facilities for lost revenue and for the expenses incurred in connection with the arbitration.
B. Changes to approved plans shall be made only with the prior approval of the City. Detailed "as built" plans shall be submitted for all new construction or installations in City utility easements and public rights of way.
All franchisees shall be subject to the dispute resolution provisions of this chapter.
(h) Open Markets. If any person requesting a franchise for the provision of competing telecommunications services currently offers telephone service to any resident in the City, then the grantor may condition the new franchise on an agreement by such person that:
(1) It will waive any rights that may be held under the law to object to other telecommunications services providers offering telephone service within the franchise area; and
(2) It will negotiate in good faith with other franchisees on issues necessary to ensure effective competition in providing telephone service, including, without limitation, telephone number portability, interconnection to facilities and equal access to emergency 911 service.
(Ord. 615. Passed 9-5-95.)