(a) Application non-refundable fee. An application for a new cable television franchise (not a franchise renewal) shall be submitted to the Council, or its designee, in accordance with the procedures established by the Council. The application will contain facts and information the Council deems appropriate. Applications shall be accompanied by a standard, nonrefundable application fee set by resolution of the City Council to the order of the City of Longview which amount shall be used by the city to offset direct expenses incurred in the franchising and evaluation procedures, including, but no limited to staff time and consulting assistance.
(b) Grantee to pay costs of granting franchise. An applicant to whom the Council grants a nonexclusive franchise, in addition to the nonrefundable fee specified hereinabove, shall pay to the city, within 30 days of receipt of notice of the amount, an amount set by the Council, or its designee, which shall represent the remaining out-of-pocket costs incurred by the city, in granting the franchise and not defrayed by fees forthcoming from the provisions of subsection (a) of this section.
(c) Procedure required by city to process an application and/or require a request for proposals.
(1) Upon receipt of an application, the city may either: (i) evaluate the application pursuant to Section 95-3(c)(4) conducting such investigations as it deems necessary; or (ii) issue a request for proposals after conducting, if necessary, a proceeding to identify the future cable related needs and interests of the community. Any such request for proposals shall be provided to the person applying for an initial franchise and made available to any other interested party. The request for proposals may contain a proposed franchise agreement.
(2) An applicant shall respond to a request for proposals by filing an application within the time directed by the city that contains the information and material set forth in Section 95-3(d), application requirements. The procedures, instructions, and requirements set forth in the request for proposals shall be followed by each applicant. Any applicant that has already filed an application need not refile the same materials with its response to the request for proposals, but must supplement its application to include any additional or different information or material required of the request for proposals. The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(3) Notwithstanding the provisions of Section 95-3(a) and (b), a person may apply for an initial franchise by submitting an unsolicited application containing the information required in Section 95-3(d), (application requirements) and requesting an evaluation of that application pursuant to Section 95-3(c)(4). Prior to evaluating such an application, the city may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in Section 95-3(c)(4). The city may seek additional applications.
(4) In evaluating an application for a franchise, the city shall consider, among other things, the following factors:
a. whether the applicant has the financial, technical, and legal qualifications to provide cable service;
b. whether the application satisfies any minimum requirements established by the city and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;
c. whether, to the extent not considered under Section 95-3(c)(2), above, the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support;
d. whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be affected 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; the effect of granting a franchise on the ability of the existing franchisee, if any, to meet the cable related needs and interests of the community; and the comparative superiority or inferiority of competing applications; and
e. what effects a grant of a franchise may have on competition in the delivery of cable service in the city.
If the city finds that it is in the public interest to issue a franchise after considering the factors set forth above, and subject to the applicant's entry into a franchise agreement, it shall issue a franchise. If the city denies an application for an initial franchise, it will issue a written decision setting forth its reasons for denial. Prior to deciding whether or not to issue a franchise, the city will hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city may reject any application that is incomplete or fails to respond to a request for proposals. This section is not intended and shall not be interpreted to grant any applicant standing to challenge the denial of its application or the issuance of a franchise to another.
(d) Application requirements. Ten copies of the application shall be filed with the City Secretary and shall contain such information as the city may require, including but not limited to:
(1) a general description of the applicant's proposed operation;
(2) a statement detailing its business or corporate organization; including but not limited to the identification of any person, persons, or entity holding a five percent or greater interest in the applicant's business and a statement disclosing five percent or greater interests that the applicant has in any other business, corporation or partnership and a statement describing all intra-grantee relationships of the applicant, including parent, subsidiary or affiliated companies;
(3) a written commitment to timely service and restoration of property;
(4) a schedule of proposed charges;
(5) a statement setting forth the channels to be allocated for public, educational, and governmental use as contemplated by 47 U.S.C. Section 531, and for leased access as required by 47 U.S.C. Section 532; a description of the production facilities and equipment to be made available by the applicant for access; and a statement establishing any additional revenues to be designated for programming or programming assistance for the access channels;
(6) if applicant is a corporation, audited financial statements for the five previous fiscal years. If applicant is a partnership, copies of the "U.S. Partnership Return of Income" (IRS Form 1065) for the five previous fiscal years. If applicant is a sole proprietorship, copies of personal financial statements for the five previous fiscal years;
(7) an estimated five year operations proforma which shall include the initial and continuing plan investment, annual profit and loss statements detailing income and expenses, annual balance sheets, and annual levels of subscriber penetration. The proforma shall also state the average return on investment anticipated by the applicant for the five year operations period and shall state the method of computation thereof. Costs anticipated for voluntary services or contributions shall, if presented, be incorporated in the proforma as required in this article, but shall be separately identified in the proforma;
(8) a list of existing franchises held by the applicant indicating when the franchises were issued and when the systems were constructed in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant;
(9) a statement detailing the applicant's prior operational experience in cable television systems and/or microwave service, including that of its officers, management and any staff to be associated with the proposed operation;
(10) a general statement of the applicant's ability and intent to incorporate technological improvements and advancements in the cable television system as such improvements or advancements are generally available in the industry; and
(11) any other reasonable and applicable information which the City Council may request;
(12) a demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel and their qualifications;
(13) a demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:
a. the applicant must not have had an application for an initial or renewal franchise in the city lawfully denied within the three years preceding the date its current application was submitted;
b. the applicant must not have had any cable television franchise lawfully revoked by any franchising authority within three years preceding the submission of the application;
c. the applicant must have the necessary authority under Texas law to operate a cable system;
d. the applicant must have the necessary authority under federal law to hold the franchise and operate a cable system. An applicant must have, or show that it is qualified to obtain, any necessary federal franchises or waivers required to operate the cable system proposed;
e. the applicant shall not have been convicted, at any time during the ten years preceding the submission of the application, of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct;
f. the applicant shall not have filed materially misleading information in its application or have intentionally withheld information that the applicant lawfully is required to provide; and
g. an elected official of the city shall not hold a controlling interest in the applicant or an affiliate of the applicant.
Not withstanding the foregoing, the city shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of its cable systems.
(14) 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;
(15) if the applicant proposes to provide cable service to an area already served by an existing franchisee, the identification of the area where the overbuild would occur and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional cable system; and
(16) an affidavit or declaration of an authorized officer of the applicant certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all federal and state law requirements.
(e) Request for proposals, public comment, evaluating applications. Upon filing, any franchise application and related documents are public records open to inspection by the public during reasonable hours, including specifically the regular business hours of the City Secretary.
Before issuance of a request for proposals, the city shall maintain the proposed request for proposals on the agenda of at least two City Council meetings for the purpose of determining any special local needs or interest. Any citizen of the city shall have the right to comment in writing, filed in advance, or orally at any meeting at which the proposed request for proposals is to be considered.
Following reasonable notice to the public, any franchise application shall be available for inspection for a period of at least twenty days prior to the City Council taking action on the same. Any citizen of the city shall have the right to comment in writing, filed in advance, or orally and in writing at any meeting at which the franchise applications are to be considered.
At its discretion, the City Council may refer any application for a franchise to a city board or commission with appropriate jurisdiction to review and make recommendations to City Council regarding the sufficiency of the application and the applicant's qualifications.
Before authorizing the negotiation of any such franchise agreement, the City Council shall review the board or commission's recommendations and findings, if any, the applicant's legal, financial and technical qualifications and the adequacy and feasibility of the applicant's qualifications to operate a cable television system within the city based upon information provided to the City Council by the applicant and by other sources in writing or at any public hearing or meeting of the City Council, and shall conduct at least one public hearing thereon at a regularly scheduled City Council meeting.
Thereafter, the City Council may in its discretion authorize the negotiation of a franchise agreement with any applicant determined to be qualified. The City Council may in its discretion refer the actual negotiation of any such franchise to a board or commission, ad hoc or otherwise, to return a proposed franchise agreement acceptable to the applicant and in the city's best interest for final consideration by the City Council.
(f) Awarding a franchise. After examining all applications submitted pursuant to procedures to be established by the City Council designed to assure the legal, financial and technical qualifications of an applicant to provide cable service, and any franchise agreement negotiated between the city and any approved applicant, the Council is authorized to grant a nonexclusive franchise or franchises conveying the right to construct and operate a cable system within the public ways of the city. A franchise may be awarded to an applicant or applicants which in the Council's judgment will best serve the public interest and whose construction and financial plans and arrangements are both feasible and adequate to fulfill the conditions set forth in this article and incorporated into any franchise granted. Any franchise agreement shall be finally approved in conformance with the requirements of Section 12.02 of the City Charter.
No provision in this article shall be deemed or construed to require the Council to grant a franchise following receipt of any franchise application.
(g) Franchise term. The term of a franchise shall be for the number of years negotiated in the franchise agreement with the city, not to exceed 25 years, unless terminated earlier in accordance with this article, the franchise agreement, or the City Charter.
(h) Franchise fees. Grantee shall pay city five percent of gross revenue as a franchise fee.
The franchise fee shall be payable quarterly to the city. The grantee shall file a complete, accurate, and verified statement listing each and every type of revenue included in the gross revenue collected as a result of its doing business within the city during the period for which said quarterly payment is made. Such payment shall be made to the City Treasurer not later than 30 days after the end of each calendar quarter and 60 days after the end of each calendar year.
City may examine all applicable records of the grantee to determine accuracy of amounts payable to city.
The city shall have the right to audit and to re-compute any amounts determined to be payable under this article; provided, however, that (i) such audit shall take place within 36 months following the close of each of the grantee's fiscal years and (ii) if grantee has underpaid the franchise fee for the audit period, the grantee shall pay the cost of the audit. Any additional amount due to the city as a result of the audit shall be paid within 30 days following written notice to the grantee by the city; said notice shall include a copy of the audit report.
In the event that any franchise fee payment or re-computed amount is not made on or before the applicable dates heretofore specified, and following notice by the city to a grantee, interest shall be charged daily from such date at the annual rate equivalent to the then existing prime rate of the city's depository bank plus two percent.
(i) Grantee to be bound by terms and conditions of cable ordinance and franchise agreement; procedure if conflict. No franchise shall be valid until grantee enters into a franchise agreement having terms and conditions acceptable to the city.
In the event of a conflict between the franchise agreement and the provisions of this article the provisions of this article shall prevail. Failure to provide services as promised in grantee's franchise may be deemed a breach of this article to which the provisions of Section 95-17 and Section 95-18 of this article shall apply.
(Ord. No. 2801, § 3, 2-25-99; Ord. No. 3242, § 17, 8-28-03)