A. Franchises To Operate Cable Communications Systems In The City:
1. No operator shall offer cable service to subscribers by means of a cable television system within the city unless it holds a franchise granted by ordinance authorizing such a system within the city and in, under, and over the streets, highways, and other public grounds of the city, as provided in this chapter.
2. Any operator holding a franchise shall provide cable service to all residents within the city limits where a density equivalent of eighty (80) or more residential dwelling units per cable mile exists.
3. Except upon approval of the city council, all franchises or renewal of franchises granted by ordinance pursuant to this section shall be nonexclusive; the city council reserves the right to issue as many such franchises as it deems advisable in the public interest, and shall not unreasonably refuse to award an additional competitive franchise.
4. Any franchise granted pursuant to this chapter shall not authorize an additional operator to operate within the franchise area of an existing operator on terms or conditions more favorable or less burdensome to such new operator than those applied to any existing operator.
5. The term of each franchise shall be for a period of no more than fifteen (15) years, the effective date to be pursuant to any franchise granted hereunder, with the right of renewal, consistent with state and federal law (in particular, section 626 of the cable act). To the extent section 626 of the cable act is no longer applicable to franchise renewals, the city and operator shall conduct the franchise renewal process pursuant to the terms and provisions of section 626 of the cable act as it existed at the time the franchise was granted or last renewed.
B. Applications For Franchise: All applications to construct, operate or maintain any cable television system in the city or to traverse any portion of the city for transmitting or conveying of such service elsewhere, shall be filed with the city clerk, and each such application shall be set forth, contain, or be accompanied by the following:
1. The name, address and telephone number of the applicant.
2. A detailed statement of the corporate or other business entity organization of the applicant, including, but not limited to, the following:
a. The names and business addresses of all officers, directors and associates of the applicant.
b. The names and business addresses of all persons and entities having, controlling, or being entitled to have or control five percent (5%) or more of the ownership of the applicant, and the respective ownership share of each such person or entity.
c. The names and addresses of any parent or subsidiary of the applicant and of any other business entity owning or controlling in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including, but not limited to, all cable systems or similar systems owned or controlled by the applicant, its parent or subsidiary and the areas served thereby.
d. A detailed description of all previous experience of the applicant in providing cable service or related or similar services.
e. A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the city, setting forth the basis for a study performed by such lending institution or funding source, and its clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city, or a statement from a certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in the city.
f. A statement identifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof.
3. A detailed description of the proposed plan of operation of the applicant, which shall include, but not be limited to, the following:
a. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served.
b. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of any said classifications, including installation charges, service charges, and special, extraordinary, or other charges. The purchase price, terms, and nature of any optional or required equipment, device, or other item to be offered for sale to any subscriber shall be described and explained in detail.
c. A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those contained in title 47, subpart K (section 76.601 et seq.) rules and regulations, federal communications commission, as the same may be amended from time to time.
4. A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber.
5. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral or implied, existing or proposed to exist between the offerer/applicant and any person, firm or corporation which shall in any manner, directly or indirectly relate or pertain to or depend upon the application, proposed franchise, or any operation or proposed operation thereunder or with respect thereto.
6. A copy of any agreement covering the franchise area, if existing, between the applicant and any public utility providing for the use of any facilities of any public utility, including, but not limited to, poles, lines, or conduits.
7. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the city.
8. The application fee in a sum established by the city which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part; provided, that any applicant who shall deliver to the city clerk a written withdrawal of or cancellation of any application hereunder, not later than the seventh day next following the day such application is received by the city clerk, shall be entitled to have returned and refunded an applicable portion of the application fee. Any operator seeking renewal of its franchise is not required to pay the application fee required under this paragraph.
C. Application Procedure:
1. The city may, by advertisement or any other means, solicit and call for applications for cable system franchises, and may determine and fix any date upon or after which the same shall be received by the city or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for, making and receiving of such offers and applications; provided, that the city shall not be required to solicit or call for such offers or applications and may receive or refuse to receive any of the same, solicited, called for, or otherwise, as the city may elect.
2. Upon receipt of any application for a franchise, the city clerk or such individual or committee as may be designated by the city, shall cause such application to be investigated, shall prepare a report of such investigation, shall make recommendations respecting such application, and shall cause said report and recommendations to be placed upon the agenda of the regular session of the city next following the completion thereof, or as otherwise directed by the city. A copy of such report and recommendations and notice of the date it will be presented to the city shall be mailed to the applicant at the address listed in the application. Any existing operator may provide the city a written request to receive a copy of said report and city shall provide a copy of said report as soon as reasonably possible.
3. The city shall receive such report and recommendations of the city clerk or such individual or committee as may be designated by the city; shall consider the same together with such application; and shall make its determination either that such application should be accepted upon such terms and conditions as the city shall determine, and as herein provided, or that such application should be rejected. In making any determination hereunder as to any application, the city shall give due consideration to the quality of the service proposed; rates to subscribers; income to the city; experience, character background, and financial responsibility of the applicant and its management and owners; the technical and performance quality of the equipment to be used; the willingness and ability of the applicant to meet construction and physical requirements, policy conditions, permit limitations, and requirements imposed by this chapter or pursuant hereto; and any other considerations deemed pertinent by the city for safeguarding the interest of the city and the public. The city may determine that the award of any franchise shall be made on the basis of such considerations with or without competitive bidding, or otherwise in its discretion.
4. If the city shall determine that such application should be rejected, such determination shall be final and conclusive, and the same shall be deemed rejected. If the city shall determine such application should be accepted, the following shall be done and caused to be done:
a. The city shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.
b. The city shall pass its resolution of intention to grant such franchise, stating the name of the proposed operator, the character of franchise, the terms and conditions upon which such franchise is proposed to be granted, fixing and setting forth the date, hour and place certain when and where any persons having any interest therein or objection to the granting thereof may appear before the city and be heard, and directing the city clerk to publish said resolution at least once, within fifteen (15) days of the passage thereof; such publication shall also specify a time and date for a hearing on said resolution. Such hearing shall be not less than ten (10) days nor more than thirty (30) days after the date of publication.
5. At the time set for such hearing, or at any adjournment thereof, the city shall proceed to hearing and pass upon all protests, and its decision thereon shall be final and conclusive. Thereafter, the city shall make one of the following determinations:
a. That such franchise be denied; or
b. That such franchise be granted upon the terms and conditions as specified in the resolution of intention to grant the same; or
c. That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same.
6. If the city shall determine that such franchise be denied, such determination shall be by resolution and shall be final and conclusive. If the city shall determine that such franchise be granted, such determination shall be by ordinance, granting such franchise upon such terms and conditions as specified therein.
D. Acceptance Of Franchise:
1. No franchise granted hereunder shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the city clerk; and such written acceptance shall be in form and substance as shall be prescribed and approved by the city attorney and shall be and operate as an acceptance of each and every term and condition and limitation contained in this chapter, in such franchise, or otherwise specified.
2. Such written acceptance shall be filed by operator no later than one minute past twelve o'clock (12:01) P.M. of the thirtieth day next following the final adoption of the franchise ordinance and franchise agreement by the city; and in default of the filing of such written acceptance as herein required, operator shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such operator shall not be received nor filed by the city clerk, and such operator shall have no rights, remedies or redress in the premises unless and until the city shall determine that such acceptance be received or filed, and then upon such terms and conditions as the city may impose.
E. Programming: The operator shall initially provide programming, consisting of the services identified in its franchise agreement. If an operator provides a premium channel without charge to subscribers who do not subscribe to such premium channel, the operator shall endeavor to provide reasonable advance notice to all such subscribers.
F. Programming Decisions: All programming decisions shall be at the sole discretion of the operator; provided, however, the city reserves all of its rights pursuant to section 625 of the cable act regarding any change in the mix, quality, or level of service and any other rights pursuant to section 625 of the cable act.
G. Emergency Alert System: The operator shall install and thereafter maintain use by the city an emergency alert system (EAS). The EAS will operate pursuant to standards set forth by the FCC EAS rules and regulations.
H. Access Channels:
1. Minimum Required Access Channels:
a. Operator shall, at a minimum, provide to each of its subscribers who receives some or all of the total services offered on system, reception on at least one specially designated noncommercial public access channel available for use by the general public on a first come, first served, nondiscriminatory basis; at least two (2) specially designated access channels for use by the city.
b. The operator is permitted to recover all direct labor costs and direct operating costs from commercial users of any specially designated access channel available under this section. The operator is not permitted to recover any labor costs or operating costs from any other users of any specially designated access channel available under this section for channel time or playback of prerecorded programming of one hour or less. The operator is permitted to recover all direct labor costs from any other users of any specially designated access channel available under this section for channel time or playback of prerecorded programming of more than one hour.
2. Additional Access Channels:
a. Whenever the specially designated noncommercial access channel required in this section is in use during eighty percent (80%) of the weekdays (Monday - Friday), for eighty percent (80%) of the time during any consecutive three (3) hour period for six (6) weeks running, and there is demand for use of an additional channel for the same purpose, operator shall then have six (6) months in which to provide a new specially designated access channel for the same purpose, provided that provision of such additional channel or channels shall not require operator to install converters.
b. Nothing in this section shall be construed so as to preclude the installation of converters by operator on a voluntary basis, or as a result of an agreement arrived at through negotiation between the parties or by a potential access use who wishes to install converters in order to make use of an additional channel or channels.
3. Operating Rules: Operator shall be subject to rules governing the use of any access channels to be enacted by the city pursuant to section 47 USC section 531(d).
4. Special Service Subscriber: In the event subscribers are offered the option of receiving programs on one or more special service channels without also receiving the regular subscriber services, operator may comply with the requirements of this section by providing the subscribers who receive the special service only, the specially designated noncommercial access channel required in this section.
5. Channel Capacity Limitations:
a. To the extent time is available therefor, access channels may also be used for other broadcast and nonbroadcast services, provided, that such services are subject to immediate displacement if there is demand to use the channel for its specially designated purpose. Operator shall, in any case, provide at least one full channel on its spectrum for shared access programming.
6. Alarm Service/Data Transmission Services: To the extent operator provides only alarm services or only data transmission services for computer operated functions, operator need not provide access channel reception to alarm and data service subscribers.
7. Access Equipment: Operator shall make readily available for public use at least the minimal equipment necessary for the production of programming and playback of prerecorded programs for the specially designated noncommercial public access channel(s). Operator shall also make readily available, upon need being shown, the minimum equipment necessary to make it possible to record programs at remote locations with battery operated portable equipment. Need within the meaning of this section shall be determined by subscriber petition. The petition must contain the signatures of at least ten percent (10%) of the subscribers of system, but in no case, more than five hundred (500) nor fewer than one hundred (100) signatures. (Ord. 2014-23, 10-27-2014)