a. Franchise Required. Before constructing or operating an open video system (“OVS”), an OVS operator may be required to obtain an OVS franchise from the City. The grant of an OVS franchise does not obviate the obligation to obtain additional franchises, permits and authorizations, as the City may require from time to time should the system provide other services; or obviate the obligation to pay such additional compensation as the City may establish for use of the right of way to provide other services.
b. Contents of Application for Initial or Renewal OVS Franchise. In order to obtain an initial or renewal OVS franchise, an operator of an OVS system may be required to apply for an OVS franchise. Any application must contain the following information, and such information as the City may from time to time require. The franchise may not be transferred without the prior approval of the City.
1. Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.
2. A proposal for construction of the OVS system that sets forth at least the following:
(a) A description of the services that are to be provided over the facility.
(b) The location of proposed facility and facility design, including a description of the miles of plant to be installed, where it is to be located, and the size of facilities and equipment that will be located in, on, over, or above the rights-of-way.
(c) 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.
3. A description of the manner in which the system will be installed, and the time required to construct the system, and the expected effect on right-of-way usage, including information on the ability of the 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.
4. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
5. Proof, attested to by a certified public accountant, that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the franchise term. It is not the intent of the City to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.
6. Proof that applicant is technically qualified to construct, operate and repair the proposed facility. 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.
7. Proof 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 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 applicable law, 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;
8. 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. Additional Information Regarding Affiliates; Presumptions. 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 under subsections 12-25.1b, 5-7 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, and conduct under other franchise provides no basis for additional investigation.
d. Applications for Transfer. An application for a transfer of an OVS franchise must contain same information required by subsection 12-25.1b, except that, if the transferor submitted an application under subsection 12-25.1b, to the extent information provided by the transferor under that section remains accurate, the transferee may simply cross-reference the earlier application.
e. 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 OVS facilities. Once the information required by the City has been provided, the application shall be promptly reviewed and shall be granted if the City finds that:
1. The applicant has the qualifications to construct, operate and maintain the system proposed in conformity with applicable law. The City shall provide a reasonable opportunity to an applicant to show that it would be inappropriate to deny it a franchise under subsection 12-25.1b, 7(b), by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant’s principals, or the remoteness of the matter from the operation of telecommunications facilities. An application for a franchise area shall not be granted if the grantee has no plans for constructing a system within the entire area for which the franchise is sought.
2. The applicant accepts the modifications required by the City to its proposed system. This section shall not be read to authorize the City to exercise authority it does not otherwise have under applicable law.
3. The applicant enters into a franchise agreement and complies with any conditions precedent to its effectiveness.
4. In the case of a transfer, the City must also determine that:
(a) There will be no adverse effect on the public interest, or the City’s interest in the franchise;
(b) Transferee agrees to be bound by all the conditions of the franchise and to assume all the obligations of its predecessor; and
(c) Any outstanding compliance and compensation issues are resolved or preserved to the satisfaction of the City.
5. An applicant shall not be issued a franchise if it files or in the previous five (5) years: filed materially misleading information in a franchise application; or intentionally withheld information that the applicant lawfully is required to provide.
f. Compensation. Every operator of an OVS system shall pay compensation to the City as follows:
1. To the extent that the system is used to provide cable services: a percentage of gross revenues each quarter equal to the gross revenue percentage paid by any cable operator for the same quarter. In addition, unless an OVS franchise agreement provides otherwise, an OVS operator (1) shall pay to the City, at a time directed by the City, an amount equal to the highest amount contributed by any cable operator under its franchise for and in support of public, educational and government use (including institutional network use) of its cable system; and (2) to the extent that a cable operator is providing other support for public, educational or governmental use, the operator must duplicate that support within a time and in a manner directed by the City, or provide a cash equivalent acceptable to the City. In applying this section, the City shall ensure that the obligations borne by the OVS operator are no greater or lesser than the obligation imposed upon the cable operator providing the greatest benefits to the community. The compensation required under this section or specified in a franchise shall increase as the compensation that a cable operator is required to provide (in cash and in other forms) increases.
2. To the extent that the OVS system is used for the provision of telecommunications services, the OVS operator shall pay such fee as may be established from time to time by the City.
g. Minimum OVS Franchise Requirements. Every OVS franchise must require the applicant to comply with all provisions of the cable ordinance, as if the OVS system were a cable system, as may be permitted by applicable law. Without limiting the foregoing, the franchise must ensure that the OVS system operator is obligated to comply with Sections 12-3, 12-14, and 12-17 (except as inconsistent with subsection 12-25.1f, compensation, above); Sections 12-18–12-22 as if the OVS system were a cable system; and must preserve the City’s rights to establish additional obligations from time to time and to regulate the system to the maximum extent permitted by law. Further, the OVS franchise must ensure that the relevant books and records of the OVS system, no matter who may hold them, are available for inspection and copying; and that the OVS operator will prepare and submit such relevant reports as may be required by the City.
h. Customer Service Standard Certification. An OVS system that enters into an agreement to comply with the customer service standards applicable to cable systems may be certified by the City for so long as it complies with those requirements and may advertise its compliance with those standards. (Ord. #80-97, S25)