(A) Telecommunications franchise. A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights-of-way of the city.
(B) Application. Any person that desires a telecommunications franchise must register as a telecommunications carrier and shall file an application with the city, which includes the following information:
(1) The identity of the applicant;
(2) A description of the telecommunications services that are to be offered or provided by the applicant over its telecommunications facilities;
(3) Engineering plans, specifications and a network map in a form customarily used by the applicant of the facilities located or to be located within the public rights-of-way in the city, including the location and route requested for applicant’s proposed telecommunications facilities;
(4) The area or areas of the city the applicant desires to serve and a preliminary construction schedule for build-out to the entire franchise area;
(5) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed; and
(6) An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease.
(C) Application and review fee.
(1) Subject to applicable state law, the applicant shall reimburse the city for such reasonable costs as the city incurs in entering into the franchise agreement.
(2) An application and review fee of $2,000 shall be deposited with the city as part of the application filed pursuant to division (B) above. Expenses exceeding the deposit will be billed to the applicant or the unused portion of the deposit will be returned to the applicant following the determination granting or denying the franchise.
(D) Determination by the city. The city shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial.
(E) Rights granted. No franchise granted pursuant to this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a grant to use and occupy the public rights-of-way for the limited purposes and term stated in the franchise agreement.
(F) Term of grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be in effect for a term of years.
(G) Franchise territory. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be limited to a specific geographic area of the city to be served by the franchise grantee, and the public rights-of-way necessary to serve such areas, and may include the entire city.
(H) Franchise fee. Each franchise granted by the city is subject to the city’s right, which is expressly reserved, to fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this chapter shall prohibit the city and a grantee from agreeing to the compensation to be paid. The compensation shall be subject to the specific payment terms and conditions contained in the franchise agreement and applicable state and federal laws.
(I) Amendment of grant. Conditions for amending a franchise:
(1) A new application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public rights-of-way of the city which are not included in a franchise previously granted under this chapter;
(2) If ordered by the city to locate or relocate its telecommunications facilities in public rights-of-way not included in a previously granted franchise, the city shall grant an amendment without further application; and
(3) A new application and grant shall be required of any telecommunications carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.
(J) Renewal applications. A grantee that desires to renew its franchise under this chapter shall, not less than 180 days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information:
(1) The information required pursuant to division (B) above; and
(2) Any information required pursuant to the franchise agreement between the city and the grantee.
(K) Renewal determinations. Within 90 days after receiving a complete application, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for non-renewal:
(1) The financial and technical ability of the applicant;
(2) The legal ability of the applicant;
(3) The continuing capacity of the public rights-of-way to accommodate the applicant’s existing and proposed facilities;
(4) The applicant’s compliance with the requirements of this chapter and the franchise agreement;
(5) Applicable federal, state and local telecommunications laws, rules and policies; and
(6) Such other factors as may demonstrate that the continued grant to use the public rights-of-way will serve the community interest.
(L) Obligation to cure as a condition of renewal. No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.
(M) Assignments or transfers of system or franchise. Ownership or control of a majority interest in a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent.
(1) The grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of the franchise.
(2) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.
(3) Unless otherwise provided in a franchise agreement, the grantee shall reimburse the city for all direct and indirect fees, costs and expenses reasonably incurred by the city in considering a request to transfer or assign a telecommunications franchise.
(4) Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the city under this chapter or pursuant to a franchise agreement shall be void and is cause for revocation of the franchise.
(N) Revocation or termination of franchise. A franchise to use or occupy public rights-of-way of the city may be revoked for the following reasons:
(1) Construction or operation in the city or in the public rights-of-way of the city without a construction permit;
(2) Construction or operation at an unauthorized location;
(3) Failure to comply with division (M) above with respect to sale, transfer or assignment of a telecommunications system or franchise;
(4) Misrepresentation by or on behalf of a grantee in any application to the city;
(5) Abandonment of telecommunications facilities in the public rights-of-way;
(6) Failure to relocate or remove facilities as required in this chapter;
(7) Failure to pay taxes, compensation, fees or costs when and as due the city under this chapter;
(8) Insolvency or bankruptcy of the grantee;
(9) Violation of material provisions of this chapter; and
(10) Violation of the material terms of a franchise agreement.
(O) Notice and duty to cure. In the event that the city believes that grounds exist for revocation of a franchise, the city shall give the grantee written notice of the apparent violation or non-compliance, providing a short and concise statement of the nature and general facts of the violation or non-compliance and providing the grantee a reasonable period of time, not exceeding 30 days, to furnish evidence that:
(1) Corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or non-compliance;
(2) Rebuts the alleged violation or non-compliance; and/or
(3) It would be in the public interest to impose some penalty or sanction less than revocation.
(P) Public hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the city as to its performance consistent with this chapter, the city staff shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Q) Standards for revocation or lesser sanctions. If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or of a franchise agreement, the City Council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors. Whether:
(1) The misconduct was egregious;
(2) Substantial harm resulted;
(3) The violation was intentional;
(4) There is a history of prior violations of the same or other requirements;
(5) There is a history of overall compliance; and/or
(6) The violation was voluntarily disclosed, admitted or cured.
(R) Other city costs. All grantees shall, within 30 days after written demand therefor, reimburse the city for all reasonable direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise or any franchise agreement consistent with applicable state and federal laws.
(Prior Code, § 3.25.045) (Ord. 258, passed 2-1-1999) Penalty, see § 51.99