(A) City approval required.
(1) A franchise shall be a privilege that is in the public trust and personal to the grantee. A grantee's obligations under its franchise involve personal services whose performance involves personal credit, trust, and confidence in the grantee.
(2) No transfer of a franchise, grantee, or cable system, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made by the grantee to the city and the city's prior written consent is obtained, pursuant to this chapter and the franchise agreement, and only then upon such terms and conditions as the city deems necessary and proper. Any such transfer without the prior written consent of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.
(B) Application.
(1) A grantee shall promptly notify the city of any proposed transfer.
(2) At least 120 calendar days prior to the contemplated effective date of a transfer, a grantee shall submit to the city a written application for approval of a transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application, unless these requirements are waived, reduced, or modified by the city:
(a) All information and forms required under federal law;
(b) All information required in § 117.31(F)(3)(a)-(e);
(c) A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the system will be made if the proposed transaction is approved;
(d) Complete and unredacted copies of 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) Any documents related to the transaction (including any documents regarding rates the transferee expects to charge) that have been provided to any entity that has been asked to provide financing (debt, equity, or any other kind) for, or to underwrite any offering made in connection with, the proposed transaction;
(f) Any shareholder reports or filings with the Securities and Exchange Commission ("SEC") or the Federal Trade Commission ("FTC") that discuss the transaction, and any filings required under federal or state law in connection with the proposed transaction;
(g) Complete financial statements for the grantee and any potential transferees for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs;
(h) A detailed 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; whether the proposed transferee can meet debt-equity or any other required ratios without increasing rates, with any assumptions underlying that conclusion, and if not, what increases would be required and why;
(i) Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed transfer;
(j) Complete information regarding any potential impact of the transfer on subscriber rates and service;
(k) Any representations made to anyone, in connection with the transaction, about the grantee's compliance with its franchise; and
(l) A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the system.
(3) To the extent consistent with applicable law, the city may waive in writing any such requirement that information be submitted as part of the initial application, without thereby waiving any rights the city may have to request such information after the initial application is filed.
(4) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary in considering the matters described in § 117.40(C)(1). The grantee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.
(5) Any transfer review period established by federal law will not begin until all documents and information required by § 117.40(B)(2), without exception, have been provided to the city, unless the city and the grantee have expressly agreed in writing, before the transfer application is filed with the city, that specified documents or parts of documents may be redacted, excluded, or reviewed through special arrangements. It shall be the responsibility of the grantee in any transfer to make any arrangements with the city with regard to redaction, exclusion, or confidentiality, including without limitation the execution of any confidentiality agreements that may be appropriate, prior to the filing of any FCC Form 394 or transfer application. By accepting its franchise, a grantee agrees that any transfer application inconsistent with this requirement is void and, in addition, that filing such an application constitutes a violation of this chapter.
(C) Determination by city.
(1) In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer, the city may consider, without limitation, the legal, financial, and technical qualifications of the transferee to operate its system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise agreement, this chapter, and applicable law, and, if not, whether the proposed transferee will cure any noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; whether operation by the transferee or approval of the transfer would adversely affect subscribers or the public, or the city's interest under the franchise agreement, this chapter, and other applicable law; whether the transfer would make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost; and any other matters that it is required or permitted to consider under applicable law.
(2) Any transfer without the city's prior written approval shall be ineffective, and shall make this franchise subject to cancellation at the city's sole discretion, and to any other remedies available under the franchise agreement, this chapter, or other applicable law. Any such transfer shall be deemed to cause irreparable harm to the city.
(3) A grantee shall be fully liable for any transfer that is in violation of the terms of its franchise agreement or this chapter and is caused in whole or in part by any other entity or entities, including but not limited to any parents or affiliated entities, as if such transfer had been caused by the grantee itself.
(D) Transferee's agreement. No application for a transfer shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of the franchise agreement and this chapter, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous grantee for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part.
(E) Approval does not constitute waiver. Approval by the city of a transfer does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.
(Ord. 2015-20, passed 11-10-2015)