(A) County approval required. No franchise transfer shall occur without prior written application to and written approval of the County Board by ordinance enacted after a public hearing, and only then upon such terms and conditions as the County Board reasonably deems necessary and proper. Approval shall not be unreasonably withheld. Any purported franchise transfer made without such prior approval shall be void and shall be cause for the county to revoke the franchise agreement. A grant of a franchise involves personal credit, trust and confidence in the franchisee, and franchise transfer without the prior written approval of the County Board shall be considered to impair the county’s assurance of due performance. The granting of approval for a franchise transfer in one instance shall not render unnecessary approval of any subsequent franchise transfer.
(B) Application.
(1) The franchisee shall promptly notify the County Clerk in writing of any proposed franchise transfer. If any franchise transfer should take place without prior notice to the county, the franchisee will promptly notify the County Clerk in writing that such a franchise transfer has occurred.
(2) At least 120 calendar days prior to the contemplated effective date of a franchise transfer, the franchisee shall submit to the County Clerk an application for approval of the franchise transfer. Such an application shall provide information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee, any waivers required from the city under applicable law, and on the potential impact of the franchise transfer on subscriber rates and service. At a minimum, the following information must be included in the application:
(a) All information and forms required under federal law;
(b) All information described in § 72.048(A) through (E), (I), (K), (M) through (O), regarding the transferee instead of the applicant, and regarding the franchise transfer rather than initial or renewal franchise;
(c) A description of any business relationships or transactions of any kind, past, present or anticipated, between the franchisee, or its owners or affiliates, and the transferee, or its owners or affiliates, other than the proposed transaction;
(d) Any contracts, financing documents or other documents that relate to the proposed transaction and all documents, schedules, exhibits or the like referred to therein;
(e) A description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the system under the control of the proposed transferee;
(f) Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed franchise transfer, including, but not limited to, projected income statements and cash flow statements, including capital investments, for at least five years after the proposed franchise transfer, assuming the franchise transfer is approved, stating specifically what assumptions are being made with respect to any rebuild or upgrade of the system; and
(g) A statement that the franchisee is in compliance with its franchise obligations over the term of the franchise, or specific descriptions of any noncompliance of which the franchisee or any potential transferee is aware.
(3) For the purposes of determining whether it shall consent to a franchise transfer, the County Board and its agents may inquire into the qualifications of the prospective transferee and such other matters as the County Board may deem necessary to determine whether the franchise transfer is in the public interest and should be approved or denied. The franchisee and any prospective transferees shall assist the County Board in any such inquiry, and if they fail to reasonably cooperate, the request for approval of franchise transfer may be denied. Proprietary information shall be protected from disclosure to competitors to the extent permitted by law.
(C) Determination by county.
(1) In making a determination as to whether to grant, deny or grant subject to conditions an application for approval of a franchise transfer, the County Board shall consider the legal, financial and technical qualifications of the transferee to operate the system; whether any required waivers under applicable law are in the best interests of the public; whether the franchisee is in compliance with its franchise agreement and this chapter and, if not, the proposed transferee’s commitment to cure such noncompliance; and whether operation by the transferee on approval of the franchise transfer would adversely affect the county’s interest under this chapter, the franchise agreement, other applicable law, or the public interest, or make it less likely that the future cable-related needs and interests of the community would be satisfied.
(2) The county shall make its determination in accordance with any time limits imposed by federal law, including under 47 U.S.C. § 537.
(3) Any purported franchise transfer made without the County Board’s prior written approval shall be void, and shall make a franchise subject to revocation at the County Board’s sole discretion, and make any other remedies available to the county under the franchise or other applicable law. Acceptance of filing of an application for approval of a franchise transfer later than 120 days before the purported effective date of the franchise transfer shall not validate the transaction or excuse the late filing, and in such an instance the county shall retain the right to make its decision regarding such a franchise transfer within 120 days unless action is required sooner by law.
(D) Transferee’s agreement. No application for approval of a franchise transfer shall be granted unless and until the proposed transferee submits an agreement in writing that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will assume the obligations and liabilities, known and unknown, of the previous franchisee under this chapter and the franchise agreement for all purposes, including renewal, unless the County Board approves a modification of the franchise agreement pursuant to § 72.049 in conjunction with its approval of the franchise transfer, in which case the proposed transferee’s agreement shall refer to the franchise agreement as so modified.
(E) Approval does not constitute waiver. Approval by the County Board of a franchise transfer does not constitute a waiver or release of any of the rights of the county under this chapter or a franchise agreement, whether arising before or after the date of the franchise transfer; however, upon approval of a franchise transfer, the former franchisee shall be released from prospective liability under the franchise.
(1993 Code, § 72.045) (Ord. 96-12, passed 10-16-1996)