(a) Application-Non Refundable Fee.
(1) An application for a new cable television franchise (not a franchise renewal) shall be submitted to the Board of Supervisors, or its designee, in accordance with the procedures established by the Board of Supervisors. The application will contain the facts and information required pursuant to subsection (b) hereof and any other information which the Board of Supervisors deems appropriate. Applications shall be accompanied by a nonrefundable application fee of fifty thousand dollars ($50,000), payable to the order of the “County of Loudoun”, which amount shall be used by the County to offset direct expenses incurred in the franchising and evaluation procedures, including, but not limited to, staff time and consulting assistance.
(2) Upon filing, any franchise application and related documents are public records open to inspection by the public during regular business hours. The public shall have the right to comment, in writing, filed in advance, or orally at any public hearing held pursuant to subsection (e) hereof at which the franchise application is to be considered.
(b) Application Requirements. Ten copies of the application shall be filed with the Board of Supervisors, or its designee, and shall contain such information as the Board 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- company 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. 531, and for leased access as required by 47 U.S.C. 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 the applicant is a corporation, audited financial statements for the five previous fiscal years. If the applicant is a partnership, copies of the U.S. Partnership Return of Income (IRS Form 1065) for the five previous fiscal years. If the 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 plant 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 section, 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;
(11) 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;
(12) 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 County lawfully denied within the three years preceding the date on which 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 Virginia 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 licenses or waivers required to operate the 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 County and the subscribers, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anti-competitive 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;
G. Identification of the area of the County to be served by the proposed cable system, including a description of the proposed franchise area's boundaries;
H. If the applicant proposes to provide cable service to an area already served by an existing franchise, 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;
I. 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; and
J. The applicant shall certify that it has read and is in compliance with all requirements of Chapter 806 of these Codified Ordinances; and
(13) Any other reasonable and applicable information which the Loudoun County Board of Supervisors or its designee may request.
Notwithstanding the foregoing, the County 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.
(c) Evaluating Application.
(1) Upon receipt of an application, and before authorizing the issuance of a franchise agreement, either pursuant to an application filed under subsection (a) hereof or in response to a request for proposal under subsection (d) hereof, the County shall evaluate the application and conduct such investigations as it deems necessary, including the review of 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 County based upon information provided to the County by the applicant and by other sources in writing or at any public hearing or meeting of the Board of Supervisors.
(2) In evaluating an application for a franchise, the County 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 County 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 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 an 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 County.
If the County finds that it is in the public interest to issue a franchise after considering the information submitted by the applicant and the factors set forth above, and subject to the applicant's entry into a franchise agreement, it shall issue a franchise. If the County 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 County will hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The County may reject any application that is incomplete.
(3) The County or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(d) Request for Proposals.
(1) The County may, at any time, issue a request for proposal for the provision of cable television services in the County.
(2) The County may, at any time, conduct a proceeding to identify the future cable related needs and interests of the community.
(3) Respondents to a request for proposal shall respond to such request by following the procedures, instructions and requirements set forth in the request for proposal. All responses to requests for proposals shall be evaluated in the same manner as provided for an application filed under subsection (a) hereof.
(4) Any respondent to a request for proposal who has an application for a franchise pending at the time of the County's issuance of a request for proposal need not refile the same materials with its response to the request for proposal, but must supplement its application to include any additional or different information or material required by the request for proposal.
(5) The County may reject any response that fails to respond fully to a request for proposal.
(e) Public Hearing. Before authorizing the issuance of any franchise agreement, either pursuant to an application or pursuant to a response to a request for a proposal, the County Board of Supervisors shall conduct at least one public hearing thereon, with notice as required by Section 15.2-1427 of the Code of Virginia.
(f) Awarding a Franchise. After examining all applications submitted pursuant to procedures to be established by the County Board of Supervisors designed to assure the legal, financial and technical qualifications of an applicant to provide cable service, the Board of Supervisors is authorized, after a full public hearing on all relevant factors, including economic considerations, the impact on private property rights, the impact on public convenience, the public need and potential benefit, and provided the Board finds that the public welfare will be enhanced by the award of a franchise, to grant a nonexclusive franchise conveying the right to construct and operate a cable system within the public ways of the County. A franchise may be awarded to the applicant which, in the Board of Supervisors' 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 chapter and incorporated into any franchise granted.
No provision in this chapter shall be deemed or construed to require the Board of Supervisors 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 County unless terminated earlier in accordance with this chapter.
(h) Franchise Fees.
(1) The grantee shall pay the County five percent of its gross revenue as a franchise fee.
(2) The franchise fee shall be payable quarterly to the County. A 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 County during the period for which said quarterly payment is made. Such payment shall be made to the County Treasurer not later than thirty days after the end of each calendar quarter.
(3) The County may examine all applicable records of a grantee to determine the accuracy of amounts payable to County.
(4) The County shall have right to audit and to re-compute any amounts determined to be payable under this chapter, provided, however, that such audit shall take place within thirty-six months following the close of each of a grantee's fiscal years. Any additional amount due to the County as a result of the audit shall be paid within thirty days following written notice to the grantee by the County. Said notice shall include a copy of the audit report.
(5) 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 County to a grantee, interest shall be charged daily from such date at the annual rate equivalent to the then existing prime rate of the largest bank in the County plus two percent.
(i) Grantee to be Bound by Terms and Conditions of Cable Chapter and Franchise Agreement; Procedure if Conflict Exists.
(1) No franchise shall be valid until the grantee enters into a franchise agreement having terms and conditions acceptable to the County.
(2) In the event of a conflict between the franchise agreement and the provisions of this chapter, the provisions of this chapter shall prevail. Failure to provide services as promised in the grantee's franchise may be deemed a material breach of this chapter to which the provisions of Section 805.15 and Section 805.16 of this chapter shall apply.
(Ord. 98-05. Passed 4-15-98.)