Chapter 4.10
SPECIAL RULES CONCERNING CABLE TELEVISION FRANCHISES
Sections:
4.10.010 Cable television franchise required.
4.10.020 Franchise application.
4.10.030 Determination by the city.
4.10.060 Term of cable television franchise grant.
4.10.100 Amendment of franchise grant.
4.10.120 Renewal determination.
4.10.130 Obligation to cure as a condition of renewal.
4.10.160 Cable system evaluation.
4.10.170 Public, educational and governmental access.
4.10.180 City-wide public, educational and government access interconnection.
4.10.190 Institutional networks (I-nets).
4.10.200 Access and institutional network equipment.
4.10.210 Equalization of civic contributions.
4.10.220 Customer service standards – City’s right to craft and impose reasonable rules.
4.10.010 Cable television franchise required.
A cable television franchise shall be required of any telecommunications carrier, cable operator, or other person who desires to occupy the public ways of the city and to provide cable service to any person or area in the city. The procedures for approval of a cable television franchise request and the requirements for a complete application shall be made available in writing to any interested person. (Ord. 293 (part), 2000)
4.10.020 Franchise application.
Any person that desires a cable television franchise shall file an application with the city which, in addition to the materials required by BMC 4.08.020 (and such other information as the city may reasonably require), shall include information whether the applicant intends to provide telecommunications service, and sufficient information to determine whether such service is subject to telecommunications franchising pursuant to this title. Applicant may seek and city shall hold, at such time as both parties deem reasonable, a meeting to discuss the information that must be submitted, time frames for submission, cost, waiver (city may waive such informational requirements as it deems inapplicable to applicant’s request) and such reasonable alternatives to informational submissions as the parties may agree upon. (Ord. 293 (part), 2000)
4.10.030 Determination by the city.
Within one hundred twenty days after receiving a complete application under BMC 4.10.020, 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 substantial evidence of the reason(s) for denial. Prior to granting or denying a franchise under this chapter, the city council shall conduct a public hearing. The city shall makes its decision based upon the following standards:
A. The financial and technical ability of the applicant to build, maintain and operate a cable television system in the city;
B. The legal ability of the applicant to build, maintain and operate a cable television system in the city;
C. The capacity of the public ways to accommodate the applicant’s proposed facilities;
D. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted;
E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted;
F. The public interest in minimizing the cost and disruption of construction within the public ways;
G. The service that applicant will provide to the community and region;
H. The effect, if any, on public health, safety and welfare if the franchise requested is granted;
I. The availability of alternate routes and/or locations for the proposed facilities;
J. Applicable federal and state telecommunications laws, regulations and policies; and
K. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest. (Ord. 293 (part), 2000)
4.10.040 Agreement.
No cable television 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 and to provide cable service to persons or areas within the city. If the city determines it is in the public interest, the city and a franchisee may enter into an agreement that differs from one or more specific provisions of this title. The city shall document its reasons for agreeing to any such differing provisions. Franchises granted pursuant to this chapter shall contain substantially similar terms and conditions which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required by other cable television franchises. (Ord. 293 (part), 2000)
4.10.050 Nonexclusive grant.
No cable television franchise granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the city for delivery of cable services or any other purposes. (Ord. 293 (part), 2000)
4.10.060 Term of cable television franchise grant.
Unless otherwise specified in a franchise agreement, a cable franchise granted hereunder shall be valid for a term of ten years. (Ord. 293 (part), 2000)
4.10.070 Rights granted.
No cable television franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and terms stated in this the grant. Further, no cable television franchise shall be construed as a warranty of title. (Ord. 293 (part), 2000)
4.10.080 Franchise territory.
A cable television franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchisee, and the specific public ways necessary to serve such areas. (Ord. 293 (part), 2000)
4.10.090 Nondiscrimination.
A franchisee shall make its cable (and any other telecommunications) services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers; provided further, that nothing in this title shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled, and that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee. A franchisee will not deny access to cable service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 293 (part), 2000)
4.10.100 Amendment of franchise grant.
Except as otherwise provided by federal or state law, a new franchise application and grant shall be required of any cable franchisee that desires to extend its franchise territory, to locate its cable facilities in public ways of the city which are not included in a franchise previously granted under this chapter, or to otherwise modify its franchise or franchise agreement. If ordered by the city to locate or relocate its cable facilities in public ways not included in a previously granted franchise, the city shall grant a franchise amendment without further application. (Ord. 293 (part), 2000)
4.10.110 Renewal application.
A franchisee that desires to renew its franchise under this chapter shall, not more than one hundred eighty days nor less than one hundred twenty days before expiration of the current franchise, file an application with the city for renewal of its franchise which shall include the following:
A. The information required pursuant to BMC 4.10.020;
B. Any information required pursuant to the franchise agreement between the city and the grantee;
C. Any information required pursuant to the Cable Act;
D. All deposits or charges required pursuant to this chapter; and
E. An application fee which shall be set by the city council. (Ord. 293 (part), 2000)
4.10.120 Renewal determination.
Within one hundred twenty days after receiving a complete application under BMC 4.10.110, the city shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal request is denied, the written determination shall include substantial evidence of the reason(s) for denial. Prior to granting or denying renewal of a franchise under this chapter, the city council shall conduct a public hearing and make a decision based upon the standards set forth in the Cable Act, its implementing regulations, and the standards set forth in BMC 4.10.030. (Ord. 293 (part), 2000)
4.10.130 Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the city. (Ord. 293 (part), 2000)
4.10.140 Franchise fee.
As permitted by 47 U.S.C. 542, a franchisee shall pay the city a franchise fee equal to five percent or greater of its gross revenues (“gross revenues,” for purposes of this chapter, includes all revenue derived directly or indirectly by the franchisee; or derived directly or indirectly by its affiliates, subsidiaries, parent companies, and any person in whom the franchisee has a financial interest, or revenues received by the franchisee from a person with whom franchisee has a revenue-producing agreement, from the provision of telecommunications services via the telecommunications system, which provision shall be interpreted to include all services and ancillary equipment; provided, however, that this term shall not include taxes imposed directly upon any subscriber or user by a federal, state, county, or other governmental unit and required to be collected by the franchisee; provided further, that a franchisee may deduct from its gross revenues those revenues received from a lessee that holds a franchise or license under this title, if that lessee submits a certificate to the franchisee stating that it has paid the fees it owes the city for the applicable reporting period). The franchise fee shall be paid quarterly, on or before the thirtieth day of each January, April, July, and October. Such remittances shall be accompanied by forms furnished by the city to report reasonably detailed information as to the sources of such revenues. The city reserves the right to impose on franchisee such taxes, fees and similar assessments as are permitted by federal, state and local law. (Ord. 293 (part), 2000)
4.10.150 Periodic meetings.
Upon request, but not more than once during any calendar year, a franchisee shall meet with designated city officials and/or designated representative(s) of the city to review the performance of a franchisee for the preceding period. The franchisee shall be given not less than thirty days prior written notice of any such meeting. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests required by this title or through agreement between the city and the franchisee. (Ord. 293 (part), 2000)
4.10.160 Cable system evaluation.
In addition to periodic meetings, and with written notice of not less than five business days so that a franchisee can arrange to have necessary personnel present, the city may require reasonable evaluation sessions at any time during the term of a franchise. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise. (Ord. 293 (part), 2000)
4.10.170 Public, educational and governmental access.
As permitted by 47 U.S.C. 531, the city may require, as a condition of a franchise granted pursuant to this chapter, provisions for public, educational and government (PEG) access. (Ord. 293 (part), 2000)
4.10.180 City-wide public, educational and government access interconnection.
As permitted by 47 U.S.C. 531, the city may request a franchisee to begin negotiations to interconnect PEG access channels of a cable television system with any and all other contiguous and compatible cable systems. Interconnection of the system may be accomplished by direct cable connection, microwave link, or other technically feasible method. Upon receiving a request of the city to interconnect, if a franchisee has not already done so, a franchisee shall initiate negotiations with other affected system(s), and shall report to the city the results of such negotiations no later than sixty days after such initiation. Any costs of interconnection may be passed through to subscribers by a franchisee. (Ord. 293 (part), 2000)
4.10.190 Institutional networks (I-nets).
A franchisee’s cable system shall have the capability of serving designated educational and public buildings with uni- or bi-directional video/audio signals. The linkage may be by cable, microwave or other means deemed appropriate by a franchisee. If required, suitable encoding and decoding devices shall be made available by a franchisee to assure transmission security. A franchise agreement may require a franchisee to make such interconnections as necessary to connect certain designated institutions on a city-wide basis. (Ord. 293 (part), 2000)
4.10.200 Access and institutional network equipment.
A franchise agreement may require a franchisee to contribute either specified goods and services and/or a specified sum of money for the purpose of providing facilities and equipment for PEG access programming and the institutional networks. (Ord. 293 (part), 2000)
4.10.210 Equalization of civic contributions.
In the event of one or more new franchises being granted, the city may require that such subsequent franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bi-directional or equivalent cable installed to municipal buildings and similar expenses. Additional franchisees shall provide all PEG access channel(s) currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees shall interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The city council, in such cases of dispute, may be called upon to arbitrate regarding these arrangements. Additional franchisees shall contribute towards costs of PEG access paid by a prior franchisee by paying to the prior franchisee on each anniversary of the grant of the subsequent franchise an amount equal to a proportionate share of the amount contributed by the prior franchisee for PEG access costs in constant dollars. This proportionate share shall be based upon the number of subscribers in the city held by each franchise and shall be contributed until such time as equal contributions towards the cost of PEG access have been made. (Ord. 293 (part), 2000)
4.10.220 Customer service standards – City’s right to craft and impose reasonable rules.
The city, subject to such limitations as exist in federal and state law, reserves the right to draft and impose on all franchisees reasonable regulations regarding customer service including, but not limited to, continuity of service, refunds for nonprovision of service, telephone response time, repair request response time, provision of parental control devices and discounts to disabled persons. (Ord. 293 (part), 2000)
4.10.230 Reports.
A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:
A. A copy of the franchisee’s most recent annual report;
B. A copy of the franchisee’s 10-K Report, if required by the Securities and Exchange Commission;
C. The number of homes passed by the franchisee’s cable system;
D. The number of subscribers with basic services;
E. The number of subscribers with premium services;
F. The number of hook-ups in the reporting period;
G. The number of disconnects in the reporting period;
H. The total number of miles of cable under the franchisee’s control within the city;
I. A summary of complaints received by category, length of time taken to resolve each complaint, and action taken to provide resolution;
J. A copy of the franchisee’s current billing practices, and a sample copy of the franchisee’s current bill format;
K. A copy of the franchisee’s current subscriber service agreement; and
L. Any other such reports with respect to the franchisee’s local operations, affairs, transactions, or property that the city may deem to be appropriate. (Ord. 293 (part), 2000)