5.44.010 Short title
The ordinance codified in this chapter shall be known as the Lakewood ordinance for regulation of cable systems. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 1, 1972)
As used in this chapter, the following words and terms shall be defined as follows:
“Affiliated Entity” or “Affiliate” shall mean any person or entity that is owned or controlled by, or under common ownership or control with, a Cable Operator, and provides any Cable Service or Other Service.
“Applicant” means an applicant for a cable franchise pursuant to the provisions of the Competitive Franchise Application Rule (“CFAR”) set forth in Part 76 of Title 47 of the Code of Federal Regulations, §76.41, and includes the Parent Corporation, its subsidiaries and Principals.
“Cable Operator” or “Operator” shall mean any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
“Cable Service” shall mean (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. For purposes of this definition, "video programming" is programming provided by, or generally considered comparable to programming provided by a television broadcast station; and "other programming service" is information that a Cable Operator makes available to all subscribers generally.
"Cable system" or "system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide Cable Service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
2. A facility that serves subscribers without using any Public Rights‑of‑Way;
A reference to a Cable System includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics, and other equipment necessary to operate the Cable System.
"City" means the City of Lakewood, Colorado, its departments, divisions, and agencies, and all the territory within its existing and future territorial corporate limits.
"Franchise" refers to the authorization granted by the City to an Operator of a Cable System under this Chapter giving the Operator the non‑exclusive right to occupy the space, or use facilities upon, across, beneath, or over any Public Rights‑of‑Way in the City, or to provide a specified Cable Service within a Franchise Area. Any Franchise shall be issued in the form of an ordinance, and must be accepted by the Franchisee to become effective in the time and manner specified in the City Charter, Lakewood Municipal Code, or the Franchise ordinance. Such Franchise shall not include or be a substitute for:
1. Any other permit or authorization required for the privilege of transacting and carrying
on a business within the City required by the ordinances and laws of the City;
2. Any permit, agreement, or authorization required in connection with operations on, or in a specific part of, the public streets or property, including, by way of example and not limitation, street cut permits;
3. Any permits or agreements for occupying any property of the City other than Public Rights‑of‑Way or property of private entities to which access is not specifically granted by the Franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the City or a private entity; or
4. The right to place devices in the Public Rights‑of‑Way, such as pay telephones, for end‑user use in terminating or originating transmissions.
"Franchise agreement" means the separate agreement by which the franchise is granted to the franchisee, as required by this chapter.
“Franchise Area” means the area of the City that a Franchisee is authorized to serve by the terms of its Franchise Agreement or by operation of law.
"Franchisee" means all Persons , holding a Franchise granted by City ordinance.
“Operator,” when used with reference to a Cable System, refers to a Person who has ownership of any part of such Cable System or has control over the use of any part of such Cable System through a lease, swap, rental or other similar bargained for arrangement.
“Parent Corporation” includes any entity with ownership or control of the Applicant.
“Person” means and includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City, unless the City department provides Telecommunications Service as defined herein,
"Public Rights-of-Way" means any public street and easement which, under the City Charter, the Lakewood Municipal Code, City ordinances, and applicable laws, the City has authority to grant Franchises, permits, or licenses for use thereof or has regulatory authority thereover, and as may be more specifically defined in the Franchise, license, or permit granting any right to or use thereof, excluding railroad rights‑of‑way. Public Rights‑of‑Way for the purpose of this Chapter does not include buildings, parks, poles, similar facilities, or property owned by or leased to the City, including, by way of example and not limitation, structures in the Public Rights‑of‑Way such as utility poles and light poles. For the purposes of this chapter, it shall also include any utility easement dedicated to the City.
"Subscriber" means a member of the general public who legally receives any transmission or service distributed by a cable system and does not further distribute it. (Ord. O-2011-23 § 1, 2011; Ord. O-83-94 § 1, 1983; Ord. O-78-61 § 1, 1978: Ord. O-76-56 § 1, 1976: Ord. O-72-97 § 2, 1972).
5.44.030 Purpose and characteristics
In order to enable the City to treat Persons providing similar Cable Services similarly, as may be appropriate to comply with applicable law and considering differences in circumstances, and to comply with requirements of federal law, the City requires individual Franchises for Persons who provide Cable Services in the City. No Franchise shall be exclusive. (Ord. O-2011-23 § 1, 2011)
A. The City Council from the City may grant to any Person, other than as stated herein, a nonexclusive Franchise to install, construct, operate and maintain a Cable System within the City limits. The award of such Franchises shall be made pursuant to the procedures, terms and conditions set forth in this chapter, and only to such Persons who offer to provide a Cable System under and pursuant to the terms and conditions of this chapter.
B. It shall be unlawful for any person to install, construct, operate or maintain a Cable System on streets within all or any part of the City without first obtaining a Franchise under and pursuant to the terms and provisions of this chapter. (Ord. O-2011-23 § 1, 2011)
5.44.050 Franchise Breach
A breach by a Franchisee of any material provision of a Franchise Agreement, in addition to constituting a breach of contract, constitutes a violation of this chapter. The cost of any litigation incurred by the City to enforce this chapter or a Franchise granted pursuant hereto, or a Franchise Agreement, or in relation thereto, or in relation to the cancellation or termination of a Franchise, shall be reimbursed to the City by the Franchisee. Such costs shall include filing fees, costs of depositions, discovery, and expert witnesses, all other expenses of suit, and a reasonable attorney's fee. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 3(2), 1972).
5.44.060 Nature of grant
A Franchise shall not convey title, equitable or legal, in the Public Rights‑of‑Way. The right granted is only the right to occupy those portions of the Public Rights‑of‑Way to which the City has the right to grant access, for the purposes and for the period stated in the Franchise, and, subject to the limitations in this section and elsewhere in this subtitle, the right may not be subdivided or subleased. Every Franchise shall be interpreted in a manner that conforms to the requirements of Article VIII of the Lakewood City Charter. (Ord. O-2011-23 § 1, 2011)
5.44.070 Rights limited
A Franchise is intended to convey limited rights and interests only as to those Rights-of-Way in which the City has an actual interest. It is not a warranty of title or interest in any Right-of-Way; it does not provide a Grantee with any interest in any particular location within the Right-of-Way; and it does not confer rights other than as expressly provided in the grant hereof. (Ord. O-2011-23 § 1, 2011)
5.44.080 Minimum Contents of Every Franchise
In addition to satisfying the other applicable requirements of this Chapter, every Franchise for a Cable System shall contain the following provisions:
A. The Franchise shall provide that neither the granting of any Franchise, nor any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the City as may exist at the time the Franchise is issued or thereafter be obtained.
B. The Franchise shall only authorize occupancy of the Public Rights‑of‑Way to provide the Services and for the purposes described in the Franchise.
C. A Franchise shall be a privilege that is held in the public trust and personal to the original Franchisee. The Franchise shall ensure that no Transfer of the Franchise may occur, directly or indirectly, without the prior consent of the City; except as contemplated by Section 5.44.150, or as otherwise expressly provided in this Chapter.
D. A Franchise shall ensure that any Person placing a Cable System in the Public Rights‑of‑Way will not unlawfully discriminate in hiring, in contracting, or in the provision of Services.
E. The Franchise shall be nonexclusive and for a specified term set forth in the Franchise. No Franchise granted hereunder, nor any renewal thereof, shall be for a term of more than fifteen years, unless the Council determines that a longer period would be in the City’s interest. A renewal may be granted pursuant to Section 5.44.130 hereof.
F. A Franchisee shall at all times be subject to and shall comply with all applicable federal, state and local laws and regulations. Further, a Franchisee shall at all times be subject to all lawful exercise of the City’s police power including, but not limited to, all rights the City may have regarding zoning, supervision of construction, control of rights-of-way, customer service and consumer protection.
G. A Franchise shall require continuous and uninterrupted service to the public in accordance with the terms of the Franchise throughout the entire period thereof.
H. At the expiration of the term for which a Franchise is granted or upon the termination and cancellation as provided therein, the franchisee shall be required to remove at its own expense any and all portions of the Cable System from the public rights-of-way within the City.
I. A Franchisee shall indemnify and hold harmless the City at all times during the term of the Franchise and will be responsible for all damages and penalties which the City may be legally required to pay as a result of granting the Franchise. In the case suit is filed against the City either independently or jointly with the Franchisee to recover for any claim or damages, the Franchisee, upon notice to it by the City, shall defend the City against the action and, in the event of a final judgment being obtained against the City, either independently or jointly with the Franchisee solely by reason of the acts of the Franchisee, the Franchisee will pay the judgment and all costs and hold the City harmless therefrom.
J. A Franchisee shall have no recourse whatsoever against the City or its officers, boards, commissions, agents or employees for any loss, cost, expense or damage arising out of any provision or requirement of a Franchise or because of its enforcement.
K. Such other terms as are required to be included by the City Charter.
L. The Franchise shall contain such further conditions or provisions as may be included in a request for proposal and/or negotiated between the City and the Franchisee, except that no such conditions or provisions shall be such as to conflict with any provisions of this Chapter or other law. In case of such conflict, or ambiguity between any terms or provisions of the Franchise Agreement and this Chapter, the words of this Chapter shall control. (Ord. O-2011-23 § 1, 2011; Ord. O-84-82 § 2, 1984; Ord. O-72-97 § 6(2), 1972).
5.44.090 Franchise-Bid request and Application Process
A. An application may be filed by any Person on that Person’s own initiative or in response to a request for proposals. The City Manager is authorized to issue requests for proposals from time to time.
1. An Applicant for a competitive cable Franchise shall include the requisite information set forth below, in writing, in its Franchise application, in addition to any information required by 47 C.F.R. §76.41 and applicable state and local laws and the application fee set by resolution of the City Council. For purposes of this Section, a competitive cable Franchise shall mean a Franchise in an area currently served by another cable operator or cable operators in accordance with 47 U.S.C. 541(a)(1).
2. The City shall accept and review only those applications that include complete responses to every requirement of this Section. Submission of an application that does not include the requisite information set forth in this Section and the application fee shall not commence the time period for granting or denying the application set forth in 47 C.F.R. §76.41(d). The Applicant shall submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the City’s review of the application.
3. Applications shall be made to the City Manager.
4. Upon request, the City will promptly provide access to documents or information in its possession or control that are necessary for the completion of this application, provided that the Applicant does not otherwise have access to such documents or information and that such documents or information are subject to disclosure under Colorado open records laws.
C. Requisite Application Information:
1. Identification and Ownership Information. The application shall include:
a. The name, address, telephone number and web site (if applicable) of the Applicant and the proposed Franchisee (if different from Applicant), and
b. The name, address, primary telephone number and primary e-mail address of all individual(s) authorized to represent the Applicant before the City during its consideration of the Franchise(s) requested, including the Applicant’s primary contact and any additional authorized contacts.
2. Business Structure.
a. If a corporation, the Applicant shall provide
1. A list all officers and members of the Board of Directors, their principal affiliations and their addresses;
2. A certificate of good standing indicating that the Applicant is licensed to do business in the State of Colorado; and
3. A statement indicating whether the Applicant is directly or indirectly controlled by another corporation or legal entity. If so, Applicant shall attach an explanatory statement and respond to subsections 1.a. and b above concerning the controlling corporation.
b. If a partnership, the Applicant shall
1. Describe the structure of the partnership and the interests of general and limited partners; and
2. State whether the Applicant is controlled directly or indirectly by any corporation or other legal entity. If so, Applicant shall attach an explanatory statement and respond to subsections 1.a. and b, or 2.a above, as applicable, concerning the controlling entity.
c. If a limited liability company, the Applicant shall
1. Describe the structure of the entity and the interests of members;
2. A list all officers and members of the Board of Directors, their principal affiliations and their addresses;
3. A certificate of good standing indicating that the Applicant is licensed to do business in the State of Colorado; and
4. State whether the Applicant is controlled directly or indirectly by any corporation or other legal entity. If so, Applicant shall attach an explanatory statement and respond to subsections 1.a. and b, or 2.a above, as applicable, concerning the controlling entity.
d. If any other form of legal entity other than a corporation, partnership or limited liability company, the Applicant shall describe the structure of the entity and the interests of its owners, and provide additional information that approximates the kind of information for the entities described in subsections a, b and c above.
a. Current Franchises. An Applicant shall list all Cable Systems in which it or any Affiliate owns more than five percent of the system. If an Applicant owns more than five Cable Systems in Colorado as well as Cable Systems in other states, it need only list the Cable Systems in Colorado. For each system Applicant shall include name of system, address, communities served, number of subscribers, number of homes passed, date of system award, duration (start and end date) of franchise, status of construction, and percent of penetration of homes passed as of most recently available date (indicate date).
b. Potential Franchises. An Applicant shall list communities where it or any Affiliate currently has a formal or informal request pending for an initial franchise, the renewal of a franchise, or the approval of a transfer of ownership. If an Applicant has such requests pending for more than five Cable Systems in Colorado as well as for Cable Systems in other states, it need only list the pending requests in Colorado. The Applicant shall include the name of communities, date of application, and date of expected action.
4. Management Structure. Every application for a competitive franchise shall include a management/organizational chart, showing the management structure of the Applicant.
D. Legal Qualification
1. Media Cross-Ownership.
a. Section 613 of the Cable Communications Policy Act of 1984, 47 U.S.C. §533 (a), and applicable FCC rules prohibit certain forms of media cross-ownership. An Applicant shall state whether it or an Affiliate directly or indirectly owns, operates, controls or has an Interest in any of the following, or whether the Applicant holds or operates any company or business operating jointly with any of the following:
1. A national broadcast television network (such as ABC, CBS or NBC, etc.).
2. A television broadcast station whose predicted Grade B contour, computed in accordance with Section 73.684 of the FCC's rules, overlaps in whole or in part the City’s service area, or an application for license to operate such a station.
3. A telecommunications or telephone company whose service area includes any portion of the City’s service area.
b. If the response to any of Subsections 1-3 above is affirmative, the Applicant shall state the name of the Applicant or Affiliate, the nature and percentage of ownership or Interest and the company that is owned or in which the Interest is held.
2. Franchise Violations.
a. An Applicant shall state whether it or any Affiliate has been found in violation by a court, regulatory authority or franchising authority of any franchise ordinance or agreement, contract or regulation governing a Cable System. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.
3. Other Violations.
a. An Applicant shall state whether it has been found in violation by a regulatory authority of any other type (e.g. utility) of franchise or similar ordinance, agreement, permit, contract or regulation. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.
E. Financial Qualifications
1. Unless SEC Forms 10K and 10Q are available on the EDGAR database, Applicants with existing operations shall provide audited financial statements, including statements of income, balance sheets and cash flow statements, together with any notes necessary to the understanding of the financial statements for the last three fiscal years for the Applicant and any Parent Corporation.
2. Applicants that are new (start-up) entities shall provide pro forma projections for the next five fiscal years, if available, but at a minimum the next three fiscal years from the date of the application.
F. Technical Qualifications, Planned Services and Operations
1. The application shall describe the Applicant’s planned initial and proposed Cable Services geographic area, including a map of all areas proposed to be served and proposed dates for offering Service to each area. The application shall additionally state whether the Applicant proposes to provide Cable Services to the entire Franchise Area, and if so, a proposed timetable for meeting that goal;
2. If the Applicant has or asserts existing authority to access the public right of way in any of the initial or proposed Service areas listed in Section F.1 above, the Applicant shall state the basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority;
3. The Applicant shall describe with particularity its planned residential Cable Services, including basic cable services, other cable programming service tiers, and any additional pay-per-view, on-demand or digital services; and the projected rates for each category or tier or Service;
4. The Applicant shall describe with particularity its planned system technical design, upstream and downstream capacity and speed, distribution of fiber, planned count of households per residential node, and any other information necessary to demonstrate that the Applicant’s technology will be deployed so as to be able to successfully offer Cable Services in the proposed locations;
5. The Applicant shall describe with particularity its planned non-residential Cable Services;
6. The Applicant shall describe its planned construction and extension or phase schedule, as applicable, including system extension plans or policy; and describe the current status of the Applicant’s existing or proposed arrangements with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable;
7. The Applicant shall describe its plan to ensure that the safety, functioning and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the Applicant’s facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation or removal of the facilities;
8. The Applicant shall describe its plan to comply with the subscriber privacy protections set forth in 47 U.S.C. §551, and the privacy protections of the City’s local cable customer service standards.
G. Affidavit of Applicant. Each application shall be accompanied by an affidavit substantially in the form set forth below:
This application is submitted by the undersigned who has been duly authorized to make the representations within on behalf of the Applicant and certifies the representations are true and correct.
The Applicant recognizes that all representations are binding on it, that all application commitments are enforceable, and that material misrepresentations or omissions, or failure to adhere to any such representation may result in a denial of an application by the City.
The Applicant shall comply with all applicable local laws.
Consent is hereby given to the City, and its representatives to make inquiry into the legal, character, technical, financial and other qualifications of the Applicant by contacting any persons or organizations named herein as references, or by any other appropriate means.
Name of Applicant’s Authorized Representative:
STATE OF COLORADO )
COUNTY OF )
Subscribed and sworn to before me this day of , 20__.
WITNESS MY HAND AND OFFICIAL SEAL.
My Commission expires: .
H. Open Records/Confidentiality
The City will treat as confidential any books or records that constitute proprietary or confidential information under federal or State law, to the extent Applicant makes the City aware of such confidentiality. An Applicant shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains confidential or proprietary information, and shall provide a brief written explanation as to why such information is confidential under State or federal law. If the City receives a demand under the Colorado Open Records Act from any Person for disclosure of any information designated by an Applicant as confidential, or believes for any other reason that it may be legally required to disclose such information, the City will, so far as consistent with applicable law, advise the Applicant and provide it with a copy of any written request demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction and to the extent permitted by applicable law, the City will deny access to any Applicant books and records marked confidential as set forth above to any Person.
I. Application Fee and Publication Expenses
1. The City shall, by resolution, set an application fee sufficient to cover the reasonable cost of processing applications under this ordinance. Every application for a new Franchise shall be accompanied by the application fee.
2. Upon request of the Applicant, the City may reduce or waive the application fee. In evaluating such a request, the City will consider the following factors: (1) the size of the proposed franchise area; (2) the number of potential subscribers in the proposed franchise area; (3) the financial hardship to the Applicant (including any Parent Corporation or Affiliate); and (4) other information relevant to the cost of processing the application and/or the Applicant’s ability to pay the fee.
3. In addition, an Applicant that is awarded a Franchise shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a Franchise. Such payment shall be made by delivery of payment to the City Treasurer within 30 days after the City furnishes the Franchisee with a written statement of such expenses.
4. No Franchise shall become effective until all required fees and costs are paid. (Ord. O-2011-23 § 1, 2011)
5.44.100 Franchise-Applicant Review Process
A. Acceptance of application. Within ten business days of receipt of an application for a new Franchise, the City shall review the application to ensure all requisite information is included in the application. If the application is not complete, the City will notify the Applicant in writing, listing the requisite information that is required to complete the application. If the application is complete, the City will notify the Applicant in writing that all requisite information has been received.
B. Staff review. The City staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff reasonably requires additional information from the Applicant, staff will promptly request the information from the Applicant, in writing, along with a notification that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will be tolled until such information is received by the City. After completing the review, staff shall provide an analysis of the application to the City Council.
C. Franchise negotiations. Upon acceptance of a complete application, the City shall commence the process for negotiating a Franchise agreement with the Applicant. Within the time period set forth in 47 C.F.R. § 76.41(d), the City shall attempt to negotiate a cable franchise agreement with the Applicant, and within that time period, schedule the application and any proposed franchise for public hearing as set forth in Section 5.44.110. (Ord. O-2011-23 § 1, 2011)
5.44.110 Franchise-Hearing-Notice-Grant or Denial
A. The City Council shall hold a public hearing before acting on the application, affording participants a process substantially equivalent to that required by 47 U.S.C. §546(c)(2) governing renewal of cable franchises. (Ord. O-72-97 § 5(3), 1972).
B. Review criteria. The City may deny an application if, based on the information provided in the application and/or any terms of a proposed Franchise agreement:
1. The Applicant does not have the financial, technical, or legal qualifications to provide Cable Service; or
2. The Applicant will not provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; or
3. The Applicant’s proposed terms do not comply with applicable federal, state, and local laws, policies and regulations, including, but not limited to, relevant existing contractual obligations of the City
C. Grant or denial of Franchise application. If the City finds that it is in the public interest to grant a Franchise considering the criteria set forth above, the City may adopt a Franchise ordinance setting forth the terms and conditions of the Franchise, which Franchise shall become effective upon satisfaction of conditions precedent to effectiveness, and when signed and accepted by the Applicant. If the City denies a Franchise, it will cause a written explanation of the denial to issue, which may be in any appropriate form. Without limiting its authority to deny an application for a Franchise, the City specifically reserves the right to reject any application that is incomplete. Nothing in this Section shall be construed in any way to limit the discretion and legislative authority of the City Council in making decisions relative to the granting, denial, or renewal of a Franchise.
D. Appeal. Any Applicant whose application is denied by the City may file an appeal with the District Court in Jefferson County, Colorado, within thirty (30) days of the City’s final action to deny the application. Such appeal shall be considered pursuant to Rule 106 of the Colorado Rules of Civil Procedure. (Ord. O-2011-23 § 1, 2011)
5.44.120 Non-CFAR Franchise Applications
Notwithstanding any other provisions of this ordinance, any competitive cable services franchise Applicant may elect to submit a cable franchise application to the City and/or engage in cable franchise negotiations without regard to the application of the FCC Competitive Franchise Application Rule, 47 C.F.R. § 76.41 (“CFAR”). In such cases, the City will negotiate the terms of a competitive cable franchise without regard to 47 C.F.R. §76.41 and the other provisions of this ordinance. Agreement by any Applicant to negotiate a franchise without regard to 47 C.F.R. §76.41 and the other provisions of this ordinance shall not be deemed by the City to effect a waiver of any Applicant’s right under applicable law to trigger application of 47 C.F.R. §76.41 and this ordinance, where applicable. (Ord. O-2011-23 § 1, 2011)
A. A franchise may be renewed by the City upon application of the Franchisee Such an application may be submitted not more than one hundred eighty days nor less than one hundred twenty days before expiration of the current Franchise, and the City may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time. An application for renewal will be considered under any legal criteria permitted by applicable law, and may be denied for failure to meet such criteria, and/or failure to comply with the obligations of the current Franchise.
B. Formal Renewal Pursuant to Federal Law. Nothing contained herein shall affect the rights, duties and obligations of the City or any Franchisee pursuant to 47 U.S.C. § 546. (Ord. O-2011-23 § 1, 2011)
5.44.140 Applications for modification of Franchise
A. An application for modification of a Franchise 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 submission of pro forma financial statements or similar financial documentation, or other evidence of the impacts on subscribers;
3. Any other information that the Applicant believes is necessary for the City to make an informed determination on the application for modification; and
4. A declaration of the Applicant or Applicant’s authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.
B. A request for modification submitted pursuant to 47 U.S.C. § 545 shall be considered in accordance with the requirements of that section.
C. Public meetings. An Applicant shall be notified of any public meetings held in connection with the evaluation of its application and shall be given a reasonable opportunity to be heard. (Ord. O-2011-23 § 1, 2011)
5.44.150 Transfers and Transactions affecting ownership or control of Franchise facilities
A. City approval required. No Transfer shall occur without prior written notice to and approval of the City Council. The granting of approval for a Transfer in one instance shall not render unnecessary approval of any subsequent Transfer.
1. The Franchisee shall promptly notify the City of any proposed Transfer involving a Cable System.
2. At least 120 calendar days prior to the contemplated effective date of a Transfer involving a Cable System, the Franchisee shall submit to the City an application for approval of the 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 subject to applicable law, 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, provided that, a Franchisee is not required to duplicate information that it submits to the City to comply with its obligations under federal or state law:
(a) All information and forms required by FCC Form 394 and any other form that may be promulgated under federal law, or, the equivalent of such forms if no longer required by federal law or if Operator elects not to utilize such forms, any contracts or other documents that relate to the proposed transaction or other documents, schedules, or exhibits that would have been provided to the City under FCC form 394;
(b) Any shareholder reports or filings with the Securities and Exchange Commission (“SEC”) that discuss the transaction;
(c) Other information necessary to provide a complete and accurate understanding of the financial position of the Cable System before and after the proposed Transfer; and
(d) Complete information regarding any potential impact of the Transfer on Subscriber service.
3. 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 subject to applicable law as the City may deem necessary to determine whether the Transfer is in the public interest and should be approved, denied, or conditioned as provided under Section C below. The Franchisee 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.
C. Determination by City. In making a determination as to whether to grant, deny, or grant subject to conditions an application for a Transfer of a Franchise under this section, the City shall consider the legal, financial, and technical qualifications of the transferee to operate the Cable System; any potential impact of the Transfer on Subscriber services; whether the incumbent Cable Operator is in compliance with its Franchise and this subtitle and, if not, the proposed transferee’s commitment to cure such 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; and whether operation by the transferee or approval of the Transfer would adversely affect Subscribers, the public, or the City’s interest under this subtitle, the Franchise, or other applicable law.
D. Transferee’s agreement. No application for a Transfer of a Franchise, subject to this section, shall be granted unless the transferee agrees in writing that it will abide by and accept all lawful terms of this subtitle and the Franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Franchisee under this subtitle and the Franchise 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 of a Franchise, pursuant to this section, does not constitute a waiver or release of any of the rights of the City under this subtitle or a Franchise, whether arising before or after the date of the Transfer.
F. Exception for intra-company Transfers. Notwithstanding the foregoing, a Franchise may provide that Transfers to Affiliates of a Franchisee shall be excepted from the requirements of this section where (1) the Affiliate is wholly-owned and managed by an entity that will guarantee the performance under a Franchise or provide other adequate assurance acceptable to the City; and (2) the transferee Affiliate:
1. Notifies the City of the Transfer at least 60 days before it occurs and, at that time provides the agreements and warranties required by this section, describes the nature of the Transfer, and submits complete information describing who will have direct and indirect ownership and control of the Cable System after the Transfer;
2. Warrants that it has read, accepts, and agrees to be bound by each and every term of the Franchise and related amendment, regulations, ordinances, and resolutions then in effect;
3. Agrees to assume all responsibility for all liabilities, acts, and omissions known and unknown, of its predecessor Franchisees for all purposes, including renewal;
4. Agrees that the Transfer shall not permit it to take any position or exercise any right which could not have been exercised by its predecessor Franchisees;
5. Warrants that the Transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the Franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the Franchisee to perform;
6. Warrants that the Transfer will not in any way adversely affect the City or Subscribers (including by increasing rates);
7. Notifies the City that the Transfer is complete within five business days of the date the Transfer is complete; and
8. Agrees that the Transfer in no way affects any evaluation of its legal, financial, or technical qualifications that may occur under the Franchise or applicable law after the Transfer, and does not directly or indirectly authorize any additional Transfers. (Ord. O-2011-23 § 1, 2011)
5.44.160 Prohibition of discriminatory or preferential practices
The Franchisee shall not, in its rates or charges, or in making available the Services or facilities of its system, or in its rules or regulations, or in any other respect, make or grant preferences or advantages to any subscriber or potential subscriber to the system, or to any user or potential user of the system; and shall not subject any such persons to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system or other legitimate uses thereof. (Ord. O-2011-23 § 1, 2011)
5.44.170 Franchise-Annual fee
During the term of any franchise granted pursuant to this chapter, the franchisee shall pay to the city, for the use of its streets, public places and other facilities, as well as the maintenance, improvements and supervision thereof, an annual franchise fee in an amount equal to five percent of the annual gross subscriber revenues received by it from cable operations conducted within the city, or in such other amount that may be mutually agreed to by the parties. This payment shall be in addition to any other tax or payment owed to the city by the franchisee. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 8(2), 1972).
5.44.180 Franchise-Fee not exclusive
No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this chapter or any Franchise, or for the performance of any other obligation hereunder. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 8(4), 1972).
5.44.190 Franchise-Fee payment failure action
Failure to pay any fees required by Sections 5.44.160 and 161 may result in automatic suspension of the franchise granted, and reinstatement thereof may be had only upon resolution by the City Council, and payment of the delinquent fee or fees plus any interest or penalties as may be required by the resolution. (Ord. O-2011-23 § 1, 2011; Ord. O-83-94 § 17, 1983: Ord. O-72-97 § 8(5), 1972).
5.44.200 Franchise-Compliance required
The Franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of the Franchise by any failure of the City to enforce prompt compliance. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 9(1), 1972).
5.44.210 Violation liability
All persons, including officers of any franchisee, causing, participating in or permitting any violation of any provision of this chapter shall be severally or jointly liable therefor. (Ord. O-2011-23 § 1, 2011; Ord. O-72-97 § 9(2), 1972).
For failure to pay franchise fee when due, pursuant to Section 5.44.490, a Franchisee shall pay a late penalty of two percent per month of the amount due and prorated for each day, or part thereof, that the violation continues. (Ord. O-2011-23 § 1, 2011; Ord. O-83-94 § 18, 1983: Ord. O-76-56 § 16, 1976: Ord. O-72-97 § 10(3), 1972).
5.44.230 Section headings
The captions to sections are inserted solely for information and shall not affect the meaning or interpretation of the chapter. (Ord. O-2011-23 § 1, 2011; Ord. O-76-56 § 19, 1976: Ord. O-72-97 § 11(1), 1972).