(A) Applications for franchise renewal under the Cable Act shall be received and reviewed in a manner consistent with § 626 of the Cable Act, 47 USC § 546.
(B) If neither a franchisee nor the village activates in a timely manner, or can activate, the renewal process set forth in 47 USC § 546(a) through (g), including, for example, if the provisions are repealed, and except as to applications submitted pursuant to 47 USC § 546(h), the provisions of § 116.036 shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise.
(C) The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
(1) (a) If the provisions of 47 USC § 546(a) through (g) are properly invoked, the Village Board shall, in accordance with the time limits of the Cable Act, commence and complete a proceeding to review the applicant’s performance under the franchise during the then current franchise term and to identify future cable-related community needs and interests. Upon completion of the proceeding, the Village Board may issue a RFP. The Village Board or its designee shall establish deadlines and procedures for responding to the RFP, may seek additional information from the applicant and shall establish deadlines for the submission of additional information. Alternatively, an applicant can submit a proposal for renewal on its own initiative.
(b) Following receipt of renewal proposals and additional information, as may be provided in response to requests, the Village Board will provide prompt notice of the proposals and thereafter either determine that the franchise should be renewed or make a preliminary assessment that the franchise should not be renewed. This determination shall be made in accordance with the time limits established by the Cable Act, including sufficient time to comply with the following procedures.
(c) If the Village Board preliminarily determines that the franchise should not be renewed, which determination can be made by resolution, and the applicant that submitted the renewal proposal notifies the Village Clerk in writing within 20 days after receipt of the preliminary determination that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then, if required, the Village Board shall commence ad administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. The village may also commence such a proceeding on its own initiative if it so chooses.
(d) If the Village Board decides to grant renewal, which decision shall be made by resolution, the village shall prepare a final written franchise agreement that incorporates, as appropriate, the commitments made by the applicant in the renewal proposal and establish a deadline for the applicant to sign it and submit it for approval. If the applicant signs the franchise agreement and timely submits it for approval, the village shall issue a franchise by ordinance. If the franchise agreement is not so accepted and approved within the time limits established by 47 USC § 546(c)(1) and the village, renewal shall thereupon be deemed preliminary denied, and if the applicant notifies the Village Clerk, in writing, within 20 days after the expiration of the time limit established by 47 USC § 546(c)(1) that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then, if required, the Village Board shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. The village may also commence such a proceeding on its own initiative if it so chooses.
(2) If an administrative proceeding is commenced pursuant to 47 USC § 546(c), the applicant’s renewal proposal shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply:
(a) The Village Board shall, by resolution, appoint an administrative hearing officer or officers, referred to hereafter as “hearing officer.” The Village Board may appoint itself or one or more of its members as hearing officer or any other qualified person.
(b) The hearing officer shall establish a schedule for proceeding which allows for written discovery (requests for admissions, production of documents and interrogatory responses), production of evidence and subpoenaing and cross-examination of witnesses. Depositions shall not be permitted unless the party requesting the deposition shows that written discovery and hearing subpoena will not provide it an adequate opportunity to require the production of evidence necessary to present its case. The hearing officer shall have the authority to require the production of evidence as the interests of justice may require, including to require the production of evidence by the applicant that submitted the renewal proposal and any affiliate of the applicant. The hearing officer shall not prohibit discovery on the ground that evidence sought is proprietary or involves business secrets, but rather shall issue protective orders which allow reasonable and necessary discovery without making the information available to competitors. Any order of the hearing officer may be enforced by imposing appropriate sanctions in the administrative hearing or by action of the Village Board.
(c) The hearing officer may conduct a pre-hearing conference and establish appropriate pre-hearing orders. The village and the applicant shall be the only parties. The village may have special counsel to represent its interests at the hearing so that the Village Attorney may advise the Village Board as it makes its decision.
(d) The hearing officer may require the village and the applicant to submit prepared written testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall present evidence first, the village shall present evidence second and the applicant shall be allowed the opportunity to present rebuttal evidence. Any reports or the transcript or summary of any proceedings conducted pursuant to 47 USC § 546(a) shall for purposes of the administrative hearing be regarded no differently than any other evidence. The village and the applicant must be afforded full procedural protection regarding evidence related to these proceedings, including the right to refute any evidence introduced in these proceedings or sought to be introduced by the other party. Both shall have the opportunity to submit additional evidence related to issues raised in the proceeding conducted pursuant to 47 USC § 546(a).
(e) There shall be a transcribed proceeding during which each party will be allowed to present testimony (live or written if so required) and cross-examine the witnesses of the other party.
(f) Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the Village Board is entitled to consider in determining whether renewal ought to be granted. Based on the record of the hearing, the hearing officer shall then prepare written findings with respect to those matters, and submit those findings including a decision and the reasons therefor, to the Village Board and to the parties unless the hearing officer is the Village Board, in which case the written findings shall constitute the final decision of the village.
(g) If the hearing officer is not the Village Board, the parties shall have 30 days from the date the findings are submitted to the Village Board to file exceptions to those findings. The Village Board shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act, based on the record of the proceeding, stating the reason for the decision. A copy of the final decision of the Village Board shall be provided to the parties.
(h) The proceeding shall be conducted with due speed. Any decision to renew a franchise shall be made by ordinance enacted no less than 30 days after the filing of the application and subsequent to preparation of a written franchise agreement consistent with the decision by the village and signature thereof by the applicant.
(i) In conducting the proceeding, and except as inconsistent with the foregoing, the hearing officer will follow the Illinois Administrative Procedures Act, ILCS Chapter 5, Act 100, §§ 1-1 et seq., as amended. The hearing officer may request that the Village Board adopt additional reasonable and necessary procedures and requirements by resolution.
(3) This section does not prohibit any franchisee from submitting or the village from considering an informal renewal application pursuant to 47 USC § 546(h), which application may be granted or denied in accordance with the provisions of 47 USC § 546(h). If an informal renewal application is granted, including during the course of formal renewal proceedings, then the steps specified in divisions (C)(1) and (2) above need not be taken, notwithstanding the provisions of those divisions. However, the village will provide the public with adequate notice before making a decision on an application, and will make any decision to renew by ordinance enacted no less than 30 days after the filing of the application, and subsequent to the preparation of a written franchise agreement by the village and signature thereof by the applicant. Unless otherwise directed by the village, an informal renewal application shall contain the information required under § 116.038.
(4) The provisions of this code shall be read and applied so that they are consistent with § 626 of the Cable Act, 47 USC § 546, as amended.
(`92 Code, § 8-1-42) (Ord. 96-19, passed 10-2-96)