Chapter 4.08
SPECIAL RULES CONCERNING OPEN VIDEO SYSTEMS
Sections:
4.08.010 Open video systems franchise required.
4.08.020 Franchise application for initial or renewal franchise.
4.08.030 Applications for transfer.
4.08.010 Open video systems franchise required.
An open video systems franchise shall be required of any telecommunications provider or carrier or other person who currently occupies or desires in the future to occupy public ways of the city and to provide open video systems services to any person or area in the city. The procedures for approval of an open video systems franchise request and the requirements for a complete application shall be made available in writing to any interested person. (Ord. 293 (part), 2000)
4.08.020 Franchise application for initial or renewal franchise.
In order to obtain an initial or renewal open video systems franchise, a telecommunications provider or carrier or other person must apply to the public works department. The application must contain the following information, (and such other relevant information as the city may from time to time require):
A. Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.
B. A proposal for construction of the open video system that includes at least the following:
1. A description of the services that are to be provided over the facility;
2. Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area’s boundaries;
3. The location of the proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of same;
4. A map of the route the facility will follow; a description of the portions of the system that will be placed aboveground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system aboveground and underground; a schedule for construction of all facilities, describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on the usage of public ways and other city property, right-of-way usage, including information on the ability of the public ways and rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities;
5. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities;
6. Evidence satisfactory to the city that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facilities over the franchise term;
7. Evidence satisfactory to the city that applicant is technically qualified to construct, operate and repair the proposed facilities. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete;
8. Evidence satisfactory to the city that the applicant is legally qualified, which proof must include a demonstration that the applicant:
a. Has received, or is in a position to receive, necessary authorizations from state and federal authorities;
b. Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of a franchise, or provisions of this title;
c. Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of all applicable laws, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so;
9. An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
C. Applicable information regarding affiliates; to the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs required by subsections (B)(5) through (B)(7) of this section should be provided for that person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a franchise in the city for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation. (Ord. 293 (part), 2000)
4.08.030 Applications for transfer.
An application for the transfer of an existing franchise must contain the same information required by BMC 4.08.020, except, if the transferor submitted an application under BMC 4.08.020, to the extent information provided by the transferor under BMC 4.08.020(B) remains accurate, the transferee may simply cross-reference the earlier application. (Ord. 293 (part), 2000)
4.08.040 City review.
The city may request such additional information as it finds necessary, and require such modifications to the application as may be necessary in the exercise of the city’s authority over open video systems. Once the information required by the city has been provided, the application shall be subject to review by the city and within one hundred twenty days after receiving a complete application under BMC 4.08.020, the city shall issue a written determination granting or denying the application. If the application is denied, the written determination shall include substantial evidence of the reason(s) for denial. Any approval will also be subject to a city determination that:
A. The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law;
B. The applicant will accept the modifications required by the city to its proposed system;
C. The applicant will enter into a franchise and comply with any required conditions, including but not limited to the obligation to establish interconnections for provision of local access channels designated by the city;
D. In the case of a transfer, the approval is also subject to a determination that:
1. There will be no adverse effect on the public interest, or the city’s interest in the franchise;
2. Transferee will agree to be bound by all the conditions of the franchise and to assume all the obligations of its predecessor; and
3. Any outstanding compliance and compensation issues will be resolved to the satisfaction of the city;
E. An applicant shall not be issued a franchise if it files or in the previous three years filed materially inaccurate or misleading information in a franchise application or intentionally withheld information that the applicant lawfully is required to provide. (Ord. 293 (part), 2000)
4.08.050 Agreement.
No open video system franchise shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the franchisee has been granted the right to occupy and use public ways of the city. (Ord. 293 (part), 2000)
4.08.060 Compensation.
Every operator of an open video system shall pay compensation to the city as follows:
A. To the extent that the system is used to provide cable services: a percentage of gross revenues each month equal to the gross revenue percentage paid by any cable franchisee for the same month; provided, however, that if there is no cable franchise holder operating within the city, the percentage shall be equal to the percentage fee that would have been levied on a cable franchise holder under Chapter 4.10 BMC, subject to any limit imposed by federal law. “Gross revenues” shall be defined to include all the gross revenues derived from the operation of an open video system to provide cable services, and, except as federal law requires otherwise, shall include the gross revenues of affiliated persons using the capacity of the open video system to provide cable service to subscribers for a fee, less amounts paid to the open video system franchise holder to the extent the open video system franchise holder pays a fee on such revenues. In addition, unless a franchise provides otherwise, an open video system franchise holder (1) shall pay to the city, at a time directed by the city, an amount equal to the highest amount contributed by an entity operating a cable system for and in support of public, educational, and government use (including institutional network use) of its cable system; and (2) to the extent that such entity is providing other support for public, educational or government use, the open video system franchise holder must duplicate that support within a time and in a manner directed by the city, or provide a cash equivalent acceptable to the city; or (3) if there is no such entity, the highest amount permitted under applicable law. In applying this section, the city may take such steps as it deems appropriate to ensure that the obligations borne by the open video system franchise holder are no greater or lesser than the obligation imposed upon the cable television franchisee providing the greatest benefits to the community. Further, the city reserves the right, and every franchise shall be interpreted to incorporate the right, to require the open video system franchise holder to pay additional compensation if the provisions of federal law specifying the compensation to be paid changes or is declared invalid, or to ensure that an open video system franchise holder pays no less than the amount paid by any cable franchisee.
B. To the extent that the open video system is used for the provision of telecommunications services, the open video system franchise holder shall pay the fee required by Chapters 4.04 and 4.06 BMC, whichever is applicable. (Ord. 293 (part), 2000)
4.08.070 Annual reports.
No later than ninety days after the end of its fiscal year, an open video system franchise holder shall submit a written report that shall contain such information as may be required from time to time by the city, and shall include at least the following, unless the city waives the requirement:
A. A summary of the previous year’s activities in the development of the open video system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of cable service;
B. A revenue report from the previous calendar year for the open video system, certified by the franchise holder’s chief financial officer;
C. An ownership report, including all persons who at the time of filing control or own an interest in the open video system franchise holder of ten percent or more;
D. A list of officers and members of the board of directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the open video system; and
E. A complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, identify any cases where subscribers contributed to plant extension, provide revisions to the open video system maps filed with the city, and report the results of appropriate electronic measurements to show conformity with FCC technical standards. (Ord. 293 (part), 2000)