(A) Grant.
(1) The city may grant one or more cable franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this chapter.
(2) This chapter may be amended from time to time, and in no event shall this chapter be considered a contract between the city and a grantee such that the city would be prohibited from amending any provision hereof.
(3) No person may construct or operate a cable system in the city without a franchise granted by the city. No person may be granted a franchise without having entered into a franchise agreement with the city pursuant to this chapter.
(B) Term of franchise. No franchise shall be granted for a period of more than ten years, except that a grantee may apply for renewal or extension pursuant to applicable law.
(C) Franchise characteristics.
(1) A franchise authorizes use of public rights-of-way for installing cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the operation of a cable system to provide cable service within a franchise area, but does not expressly or implicitly authorize a grantee to provide service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2)), or to use publicly or privately owned conduits without a separate agreement with the owners.
(2) A franchise shall constitute both a right and an obligation to provide the cable services regulated by the provisions of this chapter and the franchise agreement.
(3) A franchise is non-exclusive and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems within the city; affect the city's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the city's right to itself construct, operate, or maintain a cable system, with or without a franchise, subject to applicable state and federal law.
(4) All privileges prescribed by a franchise shall be subordinate to (without limitation) the city's use of the public rights-of-way for purposes that do not directly or indirectly compete with the grantee and to any prior lawful occupancy of the public rights-of-way.
(5) No reference herein, or in any franchise agreement, to "public rights-of-way" shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a grantee shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give.
(D) Grantee subject to other laws, police power.
(1) A grantee shall at all times be subject to and shall comply with all applicable federal, state, and local laws. A grantee shall at all times be subject to all lawful exercise of the police power and any other lawful authority of the city, including without limitation all rights the city may have under 47 U.S.C. § 552. Nothing in a franchise agreement shall be deemed to waive the requirements of the various codes and ordinances of the city regarding permits, zoning, fees to be paid, or manner of construction, installation, operation, maintenance, or repair of system equipment.
(2) No course of dealing between a grantee and the city, or any delay on the part of the city in exercising any rights hereunder, or any acquiescence by the city in the actions of a grantee that are in contravention of such rights (except to the extent such rights are expressly waived by the city) shall operate as a waiver of any such rights of the city.
(3) The city shall have the maximum authority to regulate cable systems, grantees, and franchises as may now or hereafter be lawfully permissible; except where rights are expressly waived by a franchise agreement, they are reserved, whether expressly enumerated or not.
(4) The city may, from time to time, issue such reasonable rules and regulations concerning cable systems as are consistent with applicable law and § 117.06.
(E) Eminent domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the city's rights of eminent domain to the extent to which they may apply to any cable system.
(F) Applications for initial grant or modification of franchise.
(1) Application required.
(a) A written application shall be filed with the city for grant of an initial franchise or modification of a franchise agreement pursuant to 47 U.S.C. § 545.
(b) To be acceptable for filing, a signed original of the application shall be submitted together with five hard copies and one electronic copy. The application must be accompanied by any required application filing fee, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of all applicants with respect to the application.
(c) All applications accepted for filing shall be made available by the city for public inspection.
(2) Application for grant of an initial franchise.
(a) A person may apply for an initial franchise by submitting an application containing the information required in § 117.31(F)(3). Upon receipt of such an application, the city may either (a) evaluate the application pursuant to § 117.31(F)(2)(c), conducting such investigations as it deems necessary; or (b) issue a Request for Proposals ("RFP"), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested party. The RFP may contain a proposed franchise agreement.
(b) An applicant shall respond to a RFP by filing an application within the time directed by the city, delivering a copy to each existing grantee and providing the information and material set forth in § 117.31(F)(3). The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to § 117.31(F)(2)(a) herein need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.
(c) In evaluating an application for a franchise, the city shall consider, among other things, the following factors:
1. The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the city;
2. Whether the quality of the applicant's service under any existing franchise in the city, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;
3. Whether the applicant has the financial, technical, and legal qualifications to provide cable service;
4. Whether the application satisfies any minimum requirements established by the city 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;
5. Whether the application satisfies any requirements under applicable state or federal law governing the issuance of additional franchises;
6. Whether, to the extent not considered under § 117.31(F)(2)(c)4, the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support;
7. Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used 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 cable to meet the cable-related needs and interests of the community;
8. What effects a grant of the application may have on competition in the delivery of cable service in the city.
(d) If the city finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise. If the city denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP. This chapter is not intended and shall not be interpreted to grant any applicant or existing grantee standing to challenge the denial of its application or the issuance of a franchise to another; however, an existing grantee shall be deemed an interested party for purposes of § 117.31(J).
(3) Contents of application. An RFP for the grant of an initial franchise shall require, and any such application shall contain, at a minimum, the following information:
(a) All information required for a certificate of franchise authority to the Iowa Utilities Board pursuant to Iowa Code § 477A.3.
(b) Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with 5% or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.
(c) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.
(d) 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:
1. The applicant must have the necessary authority under Iowa law to operate a cable system.
2. 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 franchises or waivers required to operate the system proposed.
(e) A demonstration of the applicant's financial ability to complete the construction and operation of the cable system proposed.
(f) A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or any interest therein.
(g) Identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area's boundaries. In no event, however, shall the mandatory area of universal service required be less that of any existing grantee.
(h) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities.
(i) Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.
(j) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the city, and how the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support to meet the community's needs and interests.
(k) Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital expenditures, with all significant assumptions explained in notes or supporting schedules.
(l) If the applicant proposes to provide cable service to an area already served by an existing cable grantee, 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 system.
(m) Any other information that may be reasonably necessary to demonstrate compliance with the requirements of this chapter.
(n) Any additional information that the city may have requested of an applicant that is relevant to the city's consideration of the application.
(o) An affidavit or declaration of the applicant or authorized officer 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.
(4) The city may, at its discretion and upon request of an applicant, waive in writing the provision of any of the information required by § 117.31(F)(3).
(5) If the applicant was formed less than two years before the date of application, this same information shall be supplied for each party owning an interest of 10% or more in the applicant.
(G) Application for grant of a renewal franchise. The renewal of any franchise to provide cable service shall be conducted in a manner consistent with applicable state and federal law.
(H) Application for modification of a franchise. An application for modification of a franchise agreement shall include, at minimum, the following information:
(1) The specific modification requested;
(2) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas;
(3) A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;
(4) Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and
(5) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all federal and state law requirements.
(I) Public hearing. Prior to the issuance of a franchise, the city shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which the applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(J) Acceptance of franchise. Following approval by the city, and unless otherwise specified in a franchise agreement, any franchise granted pursuant to this chapter, and the rights, privileges and authority granted by a franchise agreement, shall take effect and be in force from and after the first date on which both the grantee and the city have accepted and signed the franchise agreement.
(Ord. 2015-20, passed 11-10-2015)