HomeMy WebLinkAbout4298 OrdinanceORDINANCE NO. Li2149
AN ORDINANCE of the City of Pasco, Washington, Amending Sections
15.10.020 "Definitions", and Section 15.80.020 "Application and Review Fee';
Creating Section 15.40.030 "Cable Franchise", and Creating Chapter 15.95
"Cable Systems and Open Video Systems" regulating the occupancy and use of
Public Rights -of -Way by Cable systems and open video systems, providing for
establishment of customer service standards; establishing franchise and licensing
requirements for operators of such systems and prescribing minimum charges,
terms, and conditions for and upon the construction, maintenance, and repair of
such systems.
WHEREAS, the City of Pasco wishes to promote the availability of high-quality and
diverse cable services to City residents, businesses, the City of Pasco, and other public
institutions; and to promote the availability of diverse information resources to the community,
including through the development of advanced systems that can support public, educational, and
governmental programming and high-speed access to the Internet; and
WHEREAS, the City of Pasco wishes to provide opportunities to the public to obtain
access to cable system facilities for the purpose of disseminating and receiving information; to
promote competitive cable rates and services; to take advantage of opportunities presented by
cable and open video systems to provide for more open government; to enhance educational
opportunities throughout the community and provide opportunities for building a stronger
community; and to allow flexibility to respond to changes in technology, Subscriber interests,
and competitive factors that will affect the health, welfare, and well-being of the community; and
WHEREAS, in light of federal and state law, and the changes to local procedures
required by them, the City of Pasco finds that it is necessary to enact the following requirements
and further finds it appropriate to apply the provisions hereof to existing cable television
franchisees, permittees, and licensees to the degree permitted by applicable law; and
WHEREAS, the City has spent substantial time and resources investigating the needs of
the community providing, opportunities for public participation and consulting with industry
professionals in an effort to ensure that the provision of cable services in the community is
carried out consistent with the substantial amount of Federal and State regulations in this field,
and in such a way that serves City residents; and
WHEREAS, the City of Pasco finds that it is in the interest of the public to franchise and
to establish standards for franchising cable operators in a manner that promotes these objectives
and otherwise protects the public interest. NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
SECTION 1. That Section 15.10.020 entitled "Definitions" of the Pasco Municipal Code
shall be and hereby is amended and shall read as follows:
Ordinance - Title 15
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15.10.020 DEFINITIONS. For the purpose hereof, and the interpretation and enforcement
thereof, the following words and phrases shall have the meanings given herein, unless the context of
the sentence in which they are used shall indicate otherwise. When not inconsistent with the context,
words used in the present tense include the future tense; words in the plural number include the
singular number; and words in the singular number include the plural number; and the masculine
gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is
permissive. Unless otherwise expressly stated, words not defined herein shall be construed
consistent with Title 47 of the United States Code, and, if not defined therein, their common and
ordinary meaning. References to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions of law referred to herein are
renumbered, then the reference shall be read to refer to the renumbered provision. References to
laws, ordinances or regulations shall be interpreted broadly to cover government actions, however
nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or
amended.
A) "Affiliate" means a person, who (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with another person.
B) "Applicant" means any person or entity that applies for any right -of way permit,
franchise, lease, or other permit pursuant hereto.
C) "Application Fee" means the charge specified in Chapter 15.80 herein, and designed
to recover the City's actual costs in processing applications for any right -of way permit, franchise,
lease, or other permit pursuant hereto, including applications for the transfer thereof.
D) "Cable franchise" means a franchise for providing cable service.
E) "Cable service" er .the p ,. e be fee f swan ,,,...e the s led by the
Gable A et and shag ._.,.... means:
1) The one-way transmission to subscribers ofd video programming, or 60
other programming service; and:
2) Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
F) "Cable 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:
Ordinance - Title 15
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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 right-of-way
within the City of Pasco;
3) A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title 11 (Common Carriers) of the Communications Act of 1934, as amended,
except that such facility shall be considered a cable system to the extent such facility is used
in the transmission of video programming directly to subscribers, unless the extent of such
use is solely to provide interactive on -demand services;
4) Any facilities of any electric utility used solely for operating its electric
utility systems; or
5) An open idea system OVS that is certified by the FCC.
A reference to a Cable System includes
cabinets), amplifiers, powef pards, nodes, eables, fiber apfies and other equipffient neeessa"
epera4e the eable system. the Cable System as a whole, or any part thereof, including all facilities
pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
G) "City" means the City of Pasco, Washington, and all departments, divisions,
employees, and agencies thereof.
H) "City property" means and includes all real property owned by the City, other than
public streets and utility easements as those terms are defined herein, and all property held in a
proprietary capacity by the City, which are not subject to right-of-way use permitting and
franchising as provided herein.
1) "Communications carrier" means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or property within the City, used or
to be used for the purpose of offering communications service.
J) "Communications facility" means a device which alone or as part of an aggregation
of devices is capable of transmitting signals from place to place.
K) "Communications operator" means a person:
I ) Who provides service over a communications system and directly or through
one or more affiliates owns a significant interest in such facility; or
2) Who otherwise controls or is responsible for, through any arrangement, the
management and operation of such a facility. A person that operates under agreement a
Telecommunications System or a specific portion of a Telecommunications System to
provide Telecommunications Services shall be treated as an Operator for purposes hereof.
Ordinance - Title 15
L) "Communications provider" means and includes every person who provides
communications services over communications facilities without any ownership or management
control of the facilities.
M) "Communications system" refers to a telecommunications system, but does not
include a cable system or open video system, as said terms are defined herein or in applicable
federal law, to the extent the system is used to provide cable service or open video system service as
said terms are defined herein or in applicable federal law.
N) "Council" means the City Council of the City of Pasco, Washington acting in its
official capacity.
O) "Emergency" means a condition of imminent danger to the health, safety, and
welfare of property or persons located within the City including, without limitation, damage to
persons or property from natural consequences, such as stones, earthquakes, riots or wars.
P) "Excess capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or will be available
for use for additional communications facilities.
Q) "FCC" or "Federal Communications Commission" means the Federal administrative
agency, or lawful successor, authorized to regulate and oversee telecommunications, cable, and
open video carriers, services and providers on a national level.
R) "Fiber Optics" means the technology of guiding and projecting light for use as a
communications medium.
S) "Franchise" shall mean the initial authorization, or renewal thereof, granted by the
City to an operator of a telecommunications system, cable system, or an open video system
hereunder giving the operator the non-exclusive right to occupy the space in, under, over or across
public ways of the City to provide a specified service within a franchise area. Any franchise shall be
issued in the form of an ordinance of the City, and must be accepted by the franchisee to become
effective in the time and manner specified in the City Charter, Pasco 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 public streets or property, including by way of example and not
limitation, construction and street cut permits;
3) Any permits or agreements for occupying any other property of the City or
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
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4) The right to place devices in the right-of-way, such as pay telephones, for
end user use in terminating or originating transmissions. By way of example, and without
limiting the foregoing, this Title shall not be read to diminish or in any way affect the
authority of the City to control and charge for the use of its real estate, fixtures or personal
property. Therefore, any person who desires to use such property must obtain additional
approvals, franchises, or agreements for that purpose, as may be required by the City.
T) "Franchise Area" means the area of the City that a franchisee is authorized to serve
by the terms of its franchise or by operation of law.
U) "Franchisee" means the person, firm or corporation to whom or which a franchise,
as defined in this Section, is granted by the Council hereunder and the lawful successor, transferee
or assignee of said person, firm or corporation subject to such conditions as may be defined herein.
V) "Gross Revenues", except as provided in PMC 15.95.020(S) as it specifically relates
to Cable Franchises, shall have the meaning set forth in Chapter 5.32 of the Pasco Municipal Code
and/or an applicable franchise agreement under which a franchise fee is collected based upon the
franchisee's gross revenues.
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tifne tot pen Video System" or "OVS'' means an open video system as defined in FCC
rules, 47 CFR § 76.1500, that has been certificated by the FCC under 47 CFR & 76.1502 to serve
an area that includes the City. A reference to an OVS includes pedestals, equipment enclosures
(such as equipment cabinets), amplifiers, power guards, nodes, cables fiber optics and other
equipment necessary to operate the OVS, or installed in conjunction with the OVS.
X) "Open Video System Service" or "OVS Service" means video programming by
means of an V S.
Y) "Other ways" means the highways, streets, alleys, utility easements or other rights-
of-way within the City, but under the jurisdiction and control of a governmental entity other than the
City.
Z) "Overhead facilities" refers to electric utility and communications facilities located
above the surface of the ground, including the underground supports and foundations for such
facilities.
AA) "Person" means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and individuals and
includes their lessors, trustees and receivers, but not the City.
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AB) "Private Communications System" means a facility placed in whole or in part in the
public rights-of-way for the provision of communications in connection with a person's business,
but not encompassing in any respect the provision of telecommunications services.
AC) "Private Communications System Owner" means a person that owns or leases a
private communications system.
AD) "Property of franchisee" means all property owned, installed or used by a franchisee
in the conduct of its business in the City under the authority of a franchise granted pursuant hereto.
AE) "Proposal" means the response, by an individual or organization, to a request by the
City regarding the provision of communications services; or an unsolicited plan submitted by an
individual or organization seeking to provide communications services in the City.
AF) "Public street" means any highway, street, alley or other public right of way for
motor vehicle travel under the jurisdiction and control of the City which has been acquired,
established, dedicated or devoted to transportation purposes. For the purposes of this Section, the
term "alley" shall have its ordinary meaning and shall generally be considered to mean a public
right-of-way which affords a secondary means for vehicular or utility access to abutting property
and which is not intended for general traffic circulation.
AG) "Public right-of-way" or "Public way" means and includes the public streets and
easements which, under the City Charter, the Pasco Municipal Code, City ordinances, and
applicable laws, the City has authority to grant franchises, permits, or leases for use thereof, or has
regulatory authority thereover, and as may be more specifically defined in the franchise, permit, or
lease granting any right to or use thereof. Public ways for the purpose hereof do not include
buildings, parks, poles, or similar facilities or property owned by or leased to the City, including, by
way of example and not limitation, structures in the public way such as utility poles and light poles.
AH) "Reseller" refers to any person who resells a telecommunications service, for which
he makes a separate charge, provided over a telecommunications system, where that person does not
own or lease the underlying telecommunications system used for the transmission.
Al) "Right -of -Way Use Permit" refers to the legal authorization, terminable at will, to
use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or
repair a communications facility or a private communications system. The term right-of-way use
permit shall not mean or include:
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 public streets or property, including by way of example and not limitation,
construction or street cut permits;
Ordinance - Title 15
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3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by the right-of-way use permit
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 right-of-way, such as pay telephones, for
end-user use in originating and terminating transmissions.
AJ) "State" means the State of Washington.
AK) "Surplus space" means that portion of the usable space on a utility pole, or in a duct
or conduit which has the necessary clearance from other users, as required by federal or state orders
and regulations, to allow its use by a communications carrier for a pole attachment or other
communications facility.
AL) "Telecommunications facilities." See "Telecommunications System."
AM) "Telecommunications Service" or "Communications Service" means the
transmission for rent, sale or lease, or in exchange for other value received, of information in
electronic or optical form, including, but not limited to, voice, video, or data, whether or not the
transmission medium is owned by the provider itself. Telecommunications service includes
telephone service but does not include cable service, open video system service, or over -the -air
broadcasts to the public -at -large from facilities licensed by the Federal Communications
Commission or any successor thereto.
AN) "Telecommunications System" means a tangible facility that is used to provide one
or more telecommunications services, any portion of which occupies public rights-of-way. The term
telecommunications system by way of example, and not limitation, includes wires, equipment
cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures, and associated
and appurtenant facilities used to transmit telecommunications signals. The term
telecommunications system includes all devices mounted on light poles in the public rights-of-way
through which telecommunications services are originated or terminated. A cable system is not a
telecommunications system to the extent that it provides only cable service; an open video system is
not a telecommunications system to the extent that it provides only video services.
AO) "Transfer" means any transaction in which:
1) All or a portion of the communications system is sold or assigned (except a
sale or assignment that results in removal of a particular portion of the facility from the
public rights-of-way);
2) There is any change, acquisition, or direct or indirect transfer of control of
the franchisee or right-of-way use permit holder; or
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3) The rights and/or obligations held by the franchisee or right-of-way use
permit holder under the franchise or right-of-way use permit arc transferred, sold, assigned, or
leased, in whole or in part, directly or indirectly, to another party. It will be presumed that any
transfer or cumulative transfer of voting interest of 10 percent or more is transfer of control
within the meaning of Subsection 2.
AP) "Underground facilities" means utility and communications facilities located under
the surface of the ground, excluding the underground foundations or supports for overhead facilities.
AQ) "Usable space" means the total distance between the top of a utility pole and the
lowest possible attachment point that provides the minimum allowable vertical clearance as
specified in any federal or state orders and regulations.
AR) "Utility easement" means any easement owned by the City and acquired,
established, dedicated or devoted for public utility purposes not inconsistent with communications
facilities.
AS) "Utility facilities" means the plant, equipment and property, including but not limited
to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or
above the surface of the ground within the public ways of the City and used or to be used for the
purpose of providing utility, communications services. (Ord. 3287 Sec. 1, 1998.)
SECTION 2. That Section 15.40.030 entitled "Cable Franchise" of the Pasco Municipal
Code shall be and hereby is created and shall read as follows:
15.40.030 CABLE FRANCHISE. A franchise shall be required for providing cable
service. Cable franchises are governed by the provisions of Chapter 15.95. In the event of any
conflict between Chapter 15.95 and any other provision of Title 15, the provision of Chapter 15.95
shall be controlling.
SECTION 3. That Section 15.80.020 entitled "Application and Review Fee" of the Pasco
Municipal Code shall be and hereby is amended and shall read as follows:
15.80.020 APPLICATION AND REVIEW FEE.
A) An applicant shall pay all reasonable costs incurred by the City related to the
processing of any application for a Right -of -Way Use Permit, Franchise, or Facilities Lease._
..f th fee hundred .]elle«,. ($ ()Q Q0) Tn the event that tl.e !"'
r»� »rr...,,...................... ................ .............
Engineer determines tha4 the eagineerift, legal, administrative, of: other easts asseeiated with
ved the fee establishe,l by this Seetie« he e.- qhe-
shall have the authofity and disefetion to establish aR appheatien afid review fee ��ieh will eaver
the expenses ses .e,,,,,,nabl ..euffed by the City in rLviewing the »l: etre Reasonable processint
costs shall include, but not be limited to, publication costs and the costs for services rendered by
any City employee, agent or representative, including consultants and attorneys.
Ordinance - Title 15
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B) The initial deposit of the application fee for the consideration of an application for
issuance, renewal. Transfer, or modification of a franchise shall be in the amount of $1,000.00
which deposit shall be submitted with the application. The City of Pasco may, as costs are
incurred, draw upon the deposit to recover its administrative costs, including but not limited to
publication costs, and the reasonable cost of services rendered by employees, agents, and
representatives. including consultants and attorneys retained by the City related to the City's
consideration and processing of a franchise. The City, at any time, may require the applicant to
deposit additional SUMS if it appears that the initial deposit or subsequent deposits will be
exhausted prior to the final action by the City relating to the consideration by the City of an
application for issuance, renewal, transfer, or modification of a franchise. The applicant will not
be entitled to further consideration by the City of Pasco of its requested action until such time as
the additional deposit required by the City has been deposited with the City. Final payment of the
application fee balance is due within thirty (30) days of notice of the charges. In tine event the
amount of the deposit of an applicant is in excess of the amount of the administrative expenses of
tine City related to the action requested, then the applicant shall be entitled to a return of any such
excess amount. The application fee is in addition to any required business license fee set forth in
PMC 3.07.050 or any other section of this Code.
SECTION 4. That a new Chapter 15.95 entitled "Cable Systems and Open Video
Systems" of the Pasco Municipal Code shall be and hereby is created and shall read as follows:
15.95
CABLE SYSTEMS AND OPEN VIDEO
Sections:
15.95.010 Purpose.
15.95.020 Definitions.
15.95.030 Franchise Required.
15.95.040 Exceptions to Franchise Requirement.
15.95.050 Failure to Obtain a Franchise.
15.95.060 Existing Franchises.
15.95.070 Form of Franchise.
15.95.080 Filing an Application.
15.95.090 Application Fee.
15.95.100 Nature of Franchise.
15.95.110 Administration of Ordinance; Adoption of Regulations.
15.95.120 Transfers.
15.95.130 General Conditions Upon Construction, Operation and Repair and Use of the
Public Rights -of -Way.
15.95.140 Protection of the City and Residents.
15.95.150 Enforcement and Remedies.
15.95.160 Books and Records.
15.95.170 Reports.
15.95.180 Maps Required.
Ordinance - Title 15
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15.95.190 Other Records Required.
15.95.200 Exemptions.
15.95.210 Privacy.
15.95.220 Procedures for Paying Franchise Fees and Fees in Lieu of Franchise Fees.
15.95.230 Controlling Law
15.95.240 Special Rules Applicable to Cable Systems.
15.95.250 Open Video Systems.
15.95.260 Captions.
15.95.270 Calculation of Time.
15.95.280 Connections to Cable System; Use of Antennae.
15.95.290 Discrimination Prohibited.
15.95.300 Transitional Provisions
15.95.310 Application of this Chapter.
15.95.320 Severability.
15.95.010 PURPOSE. The purpose of this title is to provide an independent
regulatory scheme for cable franchise application, review, and approval which unique regulatory
scheme is necessitated by the significant amount of Federal and State involvement in this field,
and furthermore, necessary to ensure that City residents receive the most benefit from the
provision of cable services in the community.
A) Establish a local policy concerning cable systems and open video systems that use
the public rights-of-way.
B) Promote the availability of diverse, multimedia information resources to the
community over cable systems and open video systems; enhance educational opportunities
throughout the community and build a stronger community.
C) Encourage the provision of advanced and competitive cable or open video system
services on the widest possible basis to the businesses, institutions and residents of the City.
D) Encourage economic development while preserving aesthetic and other
community values and prevent proliferation of above -ground facilities.
E) Encourage universal access to video programming services for all residents and
businesses.
15.95.020 DEFINITIONS. For the purposes of this Chapter only, the following
terms, phrases, words, and abbreviations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future tense; words in
the plural number include the singular number; and words in the singular number include the
plural number; and the masculine gender includes the feminine gender. The words "shall' and
"will" are mandatory, and "may" is permissive. Words not defined in this Chapter shall have the
same meaning as in PMC § 15.10.20, and if not defined therein, the same meaning as in Title VI
of the Communications Act of 1934, as amended, 47 USC §§ 521 et.seq., and, if not defined
Ordinance - Title 15
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therein, their common and ordinary meaning. References to governmental entities (whether
persons or entities) refer to those entities or their successors in authority. If specific provisions
of law referred to herein are renumbered, then the reference shall be read to refer to the
renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly
to cover government actions, however nominated, and include laws, ordinances and regulations
now in force or hereinafter enacted or amended.
A) "Access," "PEG access," or "PEG use" refers to the availability of a cable system
or open video system for public, education or government use (including institutional network
use) by various agencies, institutions, organizations, groups, and individuals, including the City
of Pasco and its designated access providers, to acquire, create, and distribute programming not
under a franchisee's editorial control, including, but not limited to:
I ) "Public access" or "Public use" means access where organizations,
groups, or individual members of the general public, on a non-discriminatory basis, are
the primary or designated programmers or users having editorial control over their
communications.
2) "Educational access" or "Educational use" means access where
educational institutions are the primary or designated programmers or users having
editorial control over their communications.
3) "Government access" or "Government use" means access where
government institutions or their designees are the primary or designated programmers or
Users having editorial control over their communications.
4) "PEG" means Public, Educational, and Government Access collectively.
C) "Basic service" means any service tier regularly provided to all Subscribers which
includes the public, educational, and government access channels and the retransmission of local
television broadcast signals.
D) "Cable Act" means Title VI of the Communications Act of 1934, 47 U.S.C. §§ 521
et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996 and as further amended from time to
time.
E) "Cable Communications System" refers to open video systems (OVS) and cable
systems.
F) "Cable Franchise" means a franchise for providing cable service.
G) "Channel" means a time or frequency slot or technical equivalent on the Cable
System, discretely identified and capable of carrying full motion color video and audio, and may
include other non -video subcarriers and digital information.
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H) "City Manager" means the City Manager or the City Manager's designee.
I) "Construction, operation or repair" and similar formulations of that term mean the
named actions interpreted broadly, encompassing, among other things, installation, extension,
maintenance, replacement of components, relocation, undergrounding, grading, site preparation,
adjusting, testing, make-ready, and excavation.
J) "Downstream channel" means a Channel designed and activated to carry a
transmission from the headend to other points on a Cable Communications System, including
interconnections.
K) "Franchise" refers to an authorization granted by the City to the operator of a cable
communications system giving the operator the non-exclusive right to occupy the space, or use
facilities upon, across, beneath, or over public rights-of-way in the City, to provide cable service
within a franchise area.
L) "Franchisee" or "Grantee" refers to a person holding a Cable Communications
System Franchise granted by the City.
M) "Franchise Fee."
1) In consideration of the grant and exercise of a franchise to construct, install,
operate, or provide services using facilities in the public rights-of-way, a franchisee shall
pay to the City a franchise fee expressed as a percentage of gross revenues. The franchise
shall specify the fee to be paid, and the gross revenues to be included in the fee calculation.
If a franchise granted pursuant to this Chapter specifies a franchise fee established as the
result of limiting applicable law, the City shall have the option to renegotiate the amount of
the franchise fee upon a change in applicable law. Nothing herein requires a person to pay
amounts in excess of any limits that may be established by state or federal law.
2) UVPP Fees. A UVPP (unaffiliated video program provider) that provides
services using a cable communications system for which charges are assessed to
subscribers, but are not received by the franchisee, shall pay a fee in lieu of a franchise fee
on such service pursuant to the franchise fee calculation contained in the franchisee's
franchise.
N) "Gross Revenues" means all cash, credits, property, or other consideration of any
kind or nature received directly or indirectly by a franchisee or its affiliates, from any source
whatsoever arising from, attributable to, or in any way derived from a franchisee's operation of a
cable communications system to provide cable service within the franchise area. Gross Revenues
include, but are not limited to, fees charged to subscribers for basic service; fees charged to
subscribers for any optional, premium, per -channel, or per -program service; monthly fees charged
to subscribers for any tier of service other than basic service; installation, disconnection, re-
connection, and change -in-service fees; leased channel fees; fees, payments, or other payment
received as consideration from programmers for carriage of programming on the cable
communications system; converter rentals or sales; studio rental, production equipment, and
Ordinance - Tide 15
12
personnel fees; advertising revenues, including a per capita share of advertising revenues for
advertising carried on more than one cable communications system; revenues from home shopping
channel channels; sales of programming guides; late fees; and such other revenue sources as may
now exist or hereafter develop. The definition shall be interpreted in a manner which manner that
permits the City to collect the maximum franchise fee permitted by law, irrespective of the source of
revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or
advertiser accounts), any taxes on services furnished by a franchisee or UVPP and imposed directly
upon any subscriber or user (as opposed to the franchisee or UVPP) by the state, City, or other
governmental unit and collected by a franchisee or UVPP on behalf of said governmental unit. The
franchise fee is not such a tax, and the amount paid as a franchise fee shall not be deducted from
gross revenues.
O) "Operator," when used with reference to a system, refers to a person (a) who,
directly or through one or more affiliates, provides service over a cable communications system
and directly or through one or more Affiliates owns a significant interest in such facility; or (b)
who otherwise controls or is responsible for, through any arrangement, the management and
operation of such a system.
P) "Public Rights -of -Way" means "right-of-way" or "public way" as defined in Title
15 of the City Code.
Q) "Public property" means "City property" as defined in PMC 15.10.020(H).
R) "Revocation" means the City's affirmative act of terminating a Franchise.
S) "School" means any public accredited primary School, secondary School,
college, and university.
T) "Subscriber" means the City or any Person who is lawfully receiving, for any
purpose or reason, any cable service via a cable communications system with franchisee's
express permission, whether or not a fee is paid for such service.
U) "Termination" means the conclusion of a franchise by any means, including, but
not limited to, by expiration of its term, abandonment, or revocation.
V) "Transfer" means any transaction in which:
1) All or a portion of the communications system is sold or assigned (except
a sale or assignment that results in removal of a particular portion of the facility from the
public rights-of-way);
2) There is any change, acquisition, or direct or indirect transfer of control of
the franchisee or right-of-way use permit holder; or
3) The rights and/or obligations held by the franchisee or right-of-way use
permit holder under the franchise or right-of-way use permit are transferred, sold,
assigned, or leased, in whole or in part, directly or indirectly, to another parry. It will be
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presumed that any transfer or cumulative transfer of voting interest of 10 percent or more
is transfer of control within the meaning of Subsection 2.
W) "Upstream channel" means a Channel designed and activated to carry
transmissions from a point on the cable communications system, other than the headend, to the
headend or another point on the cable communications system.
X) "User" means a person or the City utilizing a channel, capacity or equipment and
facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof
in the capacity of a Subscriber.
15.95.030 FRANCHISE REQUIRED. No person may construct or operate a cable
communications system in the City without first obtaining a grant of a franchise from the City
pursuant to this Chapter.
15.95.040 EXCEPTIONS TO FRANCHISE REQUIREMENT. The following
persons or entities shall not be required to obtain a Franchise under this Title:
A) The City of Pasco.
B) A UVPP (unaffiliated video program provider) that is only delivering cable
service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to
subscribers.
15.95.050 FAILURE TO OBTAIN A FRANCHISE. Consistent with the
requirements of due process, any person who constructs or operates a cable communications
system in the City without first obtaining a franchise as required by this Chapter may, in the
City's discretion, be subject to:
A) Forfeiture, by operation of law, of the person's cable communication system
located in the public rights-of-way that are not authorized by an existing franchise; and/or
B) A requirement that the cable communication system be removed, at such person's
cost, and that penalties and damages allowed by law be paid.
15.95.060 EXISTING FRANCHISES. Grantees of franchises existing as of the
effective date of this Chapter shall, in addition to all the obligations and duties prescribed by the
terms of their existing franchises, be subject to the substantive and procedural requirements
herein, except as prohibited by applicable law. Nothing herein is intended to invalidate a lawful,
existing franchise or to waive any obligations imposed by such a franchise, or deny any existing
franchisee of any contractual or other rights it may have with respect to its existing
franchise. Notwithstanding the foregoing, provisions of this Chapter that expressly refer to a
"franchise granted pursuant to this Chapter" shall not apply to franchises initially granted prior to
the effective date of this Chapter.
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15.95.070 FORM OF FRANCHISE. A franchise shall be issued in the form of
written agreement, approved by resolution of the City Council, and must be accepted by the
franchisee to become effective.
15.95.080 FILING AN APPLICATION. A person seeking to (1) obtain a franchise;
(2) transfer a franchise: (3) extend the term of an existing franchise, (4) renew a franchise, or (5)
modify an existing franchise to add new services that are required to be authorized by a franchise
pursuant to this Chapter, shall submit a signed original of its application and six (6) copies to the
City Clerk. The application must conform to all of the requirements of this Chapter. Requests
for other types of franchise modifications may be processed by the City without an application,
and submitted for approval. However, nothing herein shall prevent the City from requiring an
application in the event the City determines, based on the nature of the requested modification,
that the public interest would best be served by the submission of an application pursuant to this
Chapter.
15.95.090 APPLICATION FEE.
A) Reasonable Costs. An application for the issuance, renewal, transfer or
modification of a cable franchise shall be subject to the application and review fee provisions of
PMC § 15.80.020.
15.95.100 NATURE OF FRANCHISE.
A) Scope. A franchise granted pursuant to this Chapter shall authorize and permit a
franchisee to construct, operate, maintain and repair a cable communications system, or an OVS
(as applicable) to provide cable service in the City, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over,
under, upon, across, and along the public rights-of-way, and along such other public property
that the City may authorize a franchisee to use.
B) Nothing passes by implication. A franchise shall not convey rights other than as
specified in this Chapter, or in a franchise agreement; no rights shall pass by implication.
C) Franchise not in lieu of other authorizations. A franchise shall not include, or be a
substitute for:
1) Compliance with requirements for the privilege of transacting and
carrying on a business within the City, including, but not limited to, complying with the
conditions the City may establish before constructing facilities for, or providing, non -
cable services.
2) Any permit, agreement or authorization required in connection with
operations on or in public rights-of-way or public property, including by way of example
and not limitation, encroachment permits for street construction.
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3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by the franchise.
D) Franchisee must comply with other laws. A franchise does not relieve a
franchisee of its duty to comply with all the City ordinances and regulations, and every
franchisee must comply with the same. Likewise, the rights granted under a franchise are subject
to the exercise of police and other powers the City now has or may later obtain, including but not
limited to the power of eminent domain. Every franchise shall be deemed to incorporate all the
requirements of the City Municipal Code.
E) Franchise not a grant of property rights. A franchise does not convey title,
equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or
subleased.
F) Franchise non-exclusive. No franchise shall be exclusive, or prevent the City
from issuing other franchises or authorizations, or prevent the City from itself constructing,
operating, or repairing its own cable communications system with or without a franchise.
G) Franchise tern. Every franchise shall be for a term of years, which term shall be
ten (10) years, unless a franchise specifies otherwise.
H) Costs borne by franchisee. Unless otherwise specifically stated in a franchise, or
required by law, all acts which a franchisee is required to perform under the franchise or
applicable law must be performed at the franchisee's expense.
J) Failures to perform. If a cable communications system operator fails to perform
work that it is required to perform within the time provided for performance, the City may
perform the work and bill the operator therefor. The operator shall pay the amounts billed within
30 days.
15.95.110 ADMINISTRATION OF ORDINANCE; ADOPTION OF
REGULATIONS.
A) Adoption of Regulations. The City of Pasco may from time to time adopt
regulations to implement the provisions of this Chapter. This Chapter, and any regulations
adopted pursuant to this ordinance, are not contracts with any franchisee, and may be amended at
any time.
B) Delegation. The City Manager or his/her designees are hereby authorized to
administer the provisions of this Chapter and any franchise issued pursuant thereto, and to
provide any notices (including noncompliance notices) and to take any action on the City's
behalf that may be required hereunder or under applicable law.
C) No waiver. The failure of the City, upon one or more occasions, to exercise a
right or to require compliance or performance under a franchise or any other applicable law shall
not be deemed to constitute a waiver of such right or a waiver of compliance or performance,
unless such right has been specifically waived in writing.
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D) Administration of Public, Educational and Government Access. The City may
designate one or more entities, including itself, to control and manage the use of public,
educational and governmental access channels, facilities and equipment.
15.95.120 TRANSFERS.
A) Prior approval required. Every Franchise shall be deemed to be held in trust, and
to be personal to the Franchisee. Any transfer that is made without the prior approval of the City
shall be deemed invalid. A Transfer is any transaction pursuant to which:
1) A cable communications system is sold or assigned (except the term does
not include sale of portions of the cable system that are removed).
2) There is any change, acquisition, or transfer of control of the franchisee or
its direct or indirect parents, whether voluntary or by operation of law; or by merger,
consolidation, voluntary or involuntary forced sale of assets or ownership interests, or by
any other means. A transfer will be deemed to have occurred whenever there is a change,
acquisition or transfer of control of more than a 20% ownership in the franchisee or its
direct or indirect parents by any entity, or a group of entities acting in concert. However,
a transfer also occurs whenever there is a change in actual working control, in whatever
manner exercised, over the affairs of a franchisee or its direct or indirect parents.
Without limiting the above, any change in the general partners of a franchisee will be
presumed a change in control.
3) The rights and/or obligations held by the franchisee under the franchise
are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to
another party.
B) Exception for mortgages. Notwithstanding any other provision of this Chapter,
pledges in trust or mortgages of the assets of a cable communications system to secure the
construction, operation, or repair of the system may be made without application and without the
City's prior consent. However, no such arrangement may be made without the City's prior
consent if it would in any respect under any condition:
1) Prevent the cable communications system operator or any successor from
complying with the franchise or applicable law; or
2) Permit a third party to succeed to the interest of the operator, or to own or
control the system, without the prior consent of the City. Any mortgage, pledge or lease
shall be subject to and subordinate to the rights of the City under any franchise, this
Chapter, or other applicable law.
C) Transferee Acceptance Required. No City consent to a transfer shall be valid
unless the transferee has, in writing, accepted and agreed to abide by all of the terms and
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conditions of the franchise and this Chapter and to assume all obligations and liabilities
thereunder, whether arising before or after the date of transfer, of its predecessor franchisee.
15.95.130 GENERAL CONDITIONS UPON CONSTRUCTION, OPERATION
AND REPAIR AND USE OF THE PUBLIC RIGHTS-OF-WAY.
A) Franchisee must follow local rules. The construction, operation, and repair of
cable communications systems shall be performed in compliance with PMC 15.70, and all other
applicable laws, ordinances, departmental rules, regulations, and practices affecting such system.
15.95.140 PROTECTION OF THE CITY AND RESIDENTS.
A) Indemnity, Insurance, and Bonding. No franchise shall be valid or effective until
the franchisee meets the indemnity, insurance, and bonding requirements as specified in Sections
15.70.290-.310.
15.95.150 ENFORCEMENT AND REMEDIES
A) Franchise Violation -Notice and Procedures. Before revoking a franchise or
issuing an order to assess liquidated damages, the City shall follow the procedures set forth
below:
1) The City shall notify a cable communications system operator in writing
of any alleged violation ("Violation Notice") of a franchise or this Chapter. The violation
notice shall: (1) identify the violation; (2) direct the cable communications system
operator to cure the violation or show cause why the violation cannot or should not be
cured; and (3) state the time for the cable communications system operator's response,
which shall be at minimum thirty (30) days from the date of issuance of the violation
notice, except for violations that present a danger to public health, safety or welfare, in
which case the time for response may be shortened.
2) Within the time period designated for response, the cable communications
system operator shall respond in writing to the City indicating that: (1) the cable
communications system operator contests the violation notice and describing all facts
relevant to its claim; or (2) the cable communications system operator has completely
cured the violation, in which case the cable communications system operator shall
provide documentation demonstrating that the violation has been completely cured; or (3)
the cable communications system operator has begun to correct the violation; however,
the violation cannot be corrected immediately despite the cable communications system
operator's continued due diligence, in which case the operator shall describe in detail the
steps already taken and operator's proposed plan and time schedule for completely curing
the violation. Correction of the violation is not complete until all damages and penalties
owed are paid in full.
3) If the cable communications system operator contests the violation notice
or the City determines that the cable communications system operator has failed to
completely cure the violation, to submit an acceptable plan to cure the violation, or to
work diligently to cure the violation, the City shall schedule a hearing before the City
Ordinance - Tide 15
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Council ("violation hearing"). The City shall provide cable communications system
operator written notice of the violation hearing at least twenty (20) days prior to the
hearing ("Hearing Notice").
4) The hearing notice shall indicate: (1) the time and place of the Violation
Hearing; (2) the nature of the violation; and (3) the cable communications system
operator's right to present oral and written testimony at an open and public meeting.
5) At the violation hearing, the City Council shall hear and consider evidence
from the cable communications system operator, City staff and members of the public
regarding the alleged violation. The cable communications system operator shall be
given an opportunity to present any and all evidence relating to the alleged violation.
6) If, based upon the evidence presented at the violation hearing, the City
Council finds that the cable communications system operator has violated its franchise,
this Chapter or any applicable state or federal law, the City Council may (i) issue an order
assessing liquidated damages if such damages are provided for in the cable
communications system operator's franchise, or (ii) subject to Section 15.95.150(B) of
this Chapter and the terms of the cable communications system operator's franchise,
revoke or shorten the franchise.
B) Revocation and termination. The City Council may revoke a franchise or reduce
the term of a franchise if it finds, after complying with procedures set forth above, that a cable
communications system operator has violated this Chapter or its franchise; has defrauded or
attempted to defraud the City or subscribers; or has attempted to evade the requirements of this
Chapter or its franchise. Except as to violations that are impossible to cure, and as provided in
this Section, the franchise may only be revoked if the franchisee (A) was given notice of the
default; and (B) 30 days to cure the default; and (C) the franchisee failed to cure the default, or to
propose a schedule for curing the default acceptable to the City where it is impossible to cure the
default in 30 days.
C) Exception for certain acts. No opportunity to cure is required for repeated
violations, and fraud and attempted fraud shall be deemed incurable. Further, the City may
declare a franchise forfeited without opportunity to cure where a franchisee (A) voluntarily stops
providing service it is required to provide; or (B) Transfers the franchise without the prior
consent of the City.
D) Exception for banhnWtcv. A franchise will terminate automatically by force of
law 120 calendar days after an assignment for the benefit of creditors or the appointment of a
receiver or trustee to take over the business of the franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding.
However, the franchise may be reinstated within that 120 day period, if. (A) such assignment,
receivership or trusteeship has been vacated; or (B) such assignee, receiver or trustee has fully
complied with the terms and conditions of this Chapter and the franchise, and has executed an
agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the
terms and conditions of this Chapter and the franchise. In the event of foreclosure or other
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judicial sale of any of the facilities, equipment or property of a franchisee, the City may revoke
the franchise following a public hearing before the City Council by serving notice upon the
franchisee and the successful bidder at the sale, in which event the franchise and all rights and
privileges thereunder will be revoked and will terminate 30 calendar days after serving such
notice, unless: (A) the City has approved the transfer of the franchise to the successful bidder;
and (B) the successful bidder has covenanted and agreed with the City to assume and be bound
by the terms and conditions of the franchise and this Chapter and the obligations and liabilities of
its predecessor franchisee.
E) Effect of termination or forfeiture. Upon termination or forfeiture of a franchise,
whether by action of the City as provided above, or by passage of time, the franchisee must stop
using the cable communications system for the purposes authorized by the franchise. The City
may take possession of some or all of franchisee's facilities, or require the franchisee or its
bonding company to remove some or all of the franchisee's facilities from the City, and restore
affected property to its same or better condition. This provision does not permit the City to
remove facilities that are used to provide any non -cable service for which the franchisee holds a
valid franchise issued by the City or for which the franchisee is otherwise authorized by
operation of State law to use the public rights-of-way to provide.
F) Remedies cumulative. Remedies provided for under this Chapter or under a
franchise shall be cumulative. Recovery by the City of any amounts under insurance, the
performance bond, the security fund or letter of credit, does not limit a franchisee's duty to
indemnify the City; or relieve a franchisee of its franchise obligations or limit the amounts owed
to the City.
G) Liquidated Damages in Franchise. A franchise granted pursuant to this Chapter
may require liquidated damages, in an amount to be agreed to by both parties in the franchise, for
specified breaches of the franchise including but not limited to, failure to commence
construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan
benchmarks, failure to commence service, and material breach of any other franchise
obligation(s) for which the amount of monetary damages is not readily ascertainable. The
franchise may also provide that the City may withdraw liquidated damages owed from the
franchisee's security deposit, after complying with the procedures set forth in Section
15.95.150A). Liquidated damages shall commence on the date that performance was due and/or
failed, and continue until the franchisee demonstrates to the satisfaction of the City that the
franchisee has fully performed its obligations giving rise to the payment of liquidated damages.
Any obligation to pay liquidated damages does not in any way affect the franchisee's obligation
to pay franchise fees or perform other franchise obligations.
H) Penalties, Fines and Other Monetary Sanctions.
1) Penalties. In addition to any other remedies provided for in this Title or
otherwise available by law, the City shall have the power to impose monetary penalties in
the event a franchisee violates any provision of this Title, a franchise, or any regulation
lawfully adopted thereunder. The amounts of such penalties shall be specified in the
franchise and shall be based on the following principles.
Ordinance - Title 15
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(a) Penalties shall exceed the financial benefits to a franchisee for
delaying or failing to comply with the applicable requirement;
(b) Even where such benefits are not easily discernible, the penalties shall
be high enough to have a significant deterrent effect on a franchisee; and
(c) Penalties shall be sufficient to protect the City and other affected
parties against loss of revenues resulting from violations.
15.95.160 BOOKS AND RECORDS.
A) Generallv. In addition to the other documentation and records requirements in
this Title, each cable communications system operator shall provide the City access to, and
permit copying of, books and records related in whole or in part to the construction, operation, or
repair of the cable communications system, or a group of systems of which the system is a part
that may be relevant to the City's monitoring and enforcement of the operator's franchise or this
Title, so that the City may inspect and copy these books and records. The records shall include,
but are not limited to, revenue records and other records related to compliance with any
provision of this Title or a franchise. A franchisee is responsible for obtaining or maintaining the
necessary possession or control of all such books and records, so that it can produce the
documents upon request. Books and records must be maintained for a period of five years,
except that a franchise may specify a shorter period for certain categories of voluminous books
and records where the information contained therein can be derived simply from other materials.
The phrase "books and records" shall be read expansively to include information in whatever
format stored.
B) Production. Books and records requested shall be produced to the City by a time
and at a location in the City designated by the City Manager. However, if the requested books
and records are too voluminous, or for security reasons the franchisee reasonably believes they
cannot be copied and moved, then the franchisee may request that the inspection and, if
necessary, copying take place at some other location mutually agreed to by the City and the
franchisee, provided that (1) the franchisee must make necessary arrangements for copying
documents selected by the City after its review; and (2) the franchisee must pay all travel and
additional copying expenses incurred by the City (above those that would have been incurred had
the documents been produced in the City) in inspecting those documents or having those
documents inspected by its designee.
15.95.170 REPORTS.
A) Obligation to submit. The City Manager may from time to time direct a
franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed
by the City Manager, in addition to those required by this Chapter.
B) Quarterly reports. Unless an exemption is granted by the City Manager, within 45
days of the end of each calendar quarter, a franchisee shall submit a report to the City containing
the following information:
Ordinance - Title 15
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1) The number of service calls (calls requiring a truck roll) received during
the prior quarter and the percentage of service calls compared to the subscriber base; and
2) The total estimated hours of known outages as a percentage of total hours
of operation. An outage is a loss of sound or video on any signal, or a significant
deterioration of any signal affecting two or more subscribers.
C) Annual reports. Unless an exemption is granted by the City Manager, no later
than ninety (90) days after the end of the operator's fiscal year, a franchisee shall submit the
following information:
1) A fully audited or certified revenue report from the previous calendar year
for the cable communications system, and a certified statement setting forth the
computation of gross revenues used to calculate the franchise fee for the preceding year
and a detailed explanation of the method of computation showing (i) gross revenues by
category (e.g., basic service, pay, pay-per-view, advertising, installation, equipment, late
charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross
revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the
amount of each deduction.
2) A report showing, for each applicable customer service standard, the
franchisee's performance with respect to that standard for each quarter of the preceding
year. In each case where the franchisee concludes it did not comply fully, the franchisee
will describe the corrective actions it is taking to assure future compliance. In addition,
the report should identify the number and nature of all the customer service complaints
received and an explanation of their dispositions.
3) An ownership report, indicating all persons who at the time of filing
control or own an interest in the Franchisee of ten percent (10%) or more.
D) Contemporaneous Reports. Within 10 days of their receipt or (in the case of
documents created by the operator or its affiliate) filing, a franchisee shall provide the City with
copies of:
1) Notices of deficiency or forfeiture related to the operation of the system;
"ITT
2) Any request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or
controls the franchisee directly or indirectly.
15.95.180 MAPS REQUIRED. Each franchisee shall maintain accurate maps and
improvement plans in accordance with Section 15.70.100.
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15.95.190 OTHER RECORDS REQUIRED. Unless the City waives the
requirement, a franchisee shall at all times maintain:
A) Complaint records. Records of all complaints received, their nature and
resolution. The term "complaints" refers to complaints about any aspect of the franchisee's
operations or customer service.
B) Outage records. Records of outages known to the franchisee, their cause and
duration.
C) Complaint response. Records of service calls for repair and maintenance
indicating the date and time service was requested, the date of acknowledgment and date and
time service was scheduled (if it was scheduled), and the date and time service was provided, and
(if different) the date and time the problem was solved.
D) Installation records. Records of installation/reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and the date and time service was
extended.
E) Customer service. Records sufficient to show whether the franchisee has
complied with each customer service standard that applies to it.
15.95.200 EXEMPTIONS. The City Manager may exempt any franchisee from its
obligations under Sections 15.95.170 - 15.95.190 if the City Manager determines that the
requirement would be unduly burdensome or unnecessary, and that the City and Subscriber
interests may be adequately protected in some other manner.
15.95.210 PRIVACY. A franchisee shall take all reasonable steps required so that it
is able to provide reports, books and records to the City, including by providing appropriate
subscriber privacy notices. Each franchisee shall be responsible for redacting data that
applicable law prevents it from providing to the City. Nothing in this section shall be read to
require a franchisee to violate state or federal subscriber privacy laws. Notwithstanding the
foregoing, and unless applicable law entitles the franchisee to withhold such information from
the City, a franchisee is not entitled to withhold or redact any information on the grounds that it
contains proprietary or confidential information.
15.95.220 PROCEDURES FOR PAYING FRANCHISE FEES AND FEES IN LIEU
OF FRANCHISE FEES.
A) Fees paid quarterly. The franchise fee paid pursuant to Section 15.95.240 F), or
fee in lieu of franchise fee paid pursuant to Section 15.95.250 G) shall be paid quarterly unless
otherwise specified in a franchise. Payment for each quarter shall be made to the City not later
than forty-five (45) days after the end of each calendar quarter.
B) Quarterly statement. Unless a franchise provides otherwise, a franchisee or other
entity subject to a fee under Sections 15.95.240 F) or 15.95.250 G) shall file with the City within
Ordinance - Title 15
23
forty-five (45) days of the end of each calendar quarter a statement showing gross revenues
during the preceding quarter and the number of subscribers served.
C) Acceptance of payment not a release. No acceptance by the City of any payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of such payment be construed as a release of any claim the City may have for
additional sums payable.
D) Fee Not in Lieu of Taxes. Neither the franchise fee under Section 15.95.240 F),
nor the fee paid in lieu of the franchise fee under Section 15.95.250 G), is a payment in lieu of
any tax, fee or other assessment of general applicability (including any such tax, fee or
assessment imposed on both utilities and operators or their services, but not including a tax, fee,
or assessment which is unduly discriminatory against operators or cable subscriber(s)).
E) Failure to Pay Franchise Fee. In the event that a fee payment is not received by
the City on or before the due date set forth in this Section or in a franchise, or the fee owed is not
fully paid, the person subject to the fee will be charged interest from the due date at an interest
rate equal to three percent (3%) above the rate for three-month Federal Treasury Bills at the most
recent United States Treasury Department sale of such Treasury Bills occurring prior to the due
date of the franchise fee payment.
F) Final Statement of Gross Revenues. Within ninety (90) days of the date a
franchisee ceases operations under a franchise (whether because of franchise termination,
transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross
revenues covering the period from the beginning of the calendar year in which the operations
ceased to the date operations ceased. The statement shall contain the information and be
certified as required by Section 15.95.170C).
15.95.230 CONTROLLING LAW. In the event of any conflict between Chapter
15.95 and any other provision of Title 15, the provision of Chapter 15.95 shall be controlling,
provided, however, that the terms of this Chapter shall be controlling only with respect to cable
franchises and shall not interfere with the administration of any other franchise under any other
Chapter of Title 15.
15.95.240 SPECIAL RULES APPLICABLE TO CABLE SYSTEMS.
A) Applications - Generally.
1) Application required. An application must be filed for an initial and
renewal cable system franchise, or for approval of a transfer. A request for renewal filed
under 47 U.S.C. § 546(h) need not contain the information required by Section
15.95.240(A)(2).
2) Application contents.
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24
(a) The City Manager may specify the information that must be
provided in connection with an application, and the form in which the information
is to be provided. At a minimum each application must identify the applicant,
show that the applicant is financially, technically and legally qualified to
construct, maintain and operate the cable system, contain a pro forma showing
capital expenditures and expected income and expenses for the first five years the
applicant is to hold the franchise, and show that the applicant is willing to comply
with its franchise obligations. In addition, any application for an initial or
renewal franchise or rebuild of the applicant's system and/or facilities, must
describe in detail the cable system that the applicant proposes to build, show
where it will be located, set out the system construction schedule, and show that
the applicant will provide adequate channels, facilities and other support for
public, educational and government use (including institutional network use) of
the cable system. The detailed description of the physical facilities proposed shall
include at least the following:
(1) A description of the channel capacity, technical design,
performance characteristics, headend, PEG access (and institutional
network, if required) facilities and equipment;
(2) The location of 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 the same; provided, however, that, if
some of the descriptive data is not available at the time of application, the
franchise may be issued subject to conditions that the data be filed and
approved by the City before construction begins and that the franchise will
be deemed to be forfeited if the data is not supplied and approved;
provided, further, that the foregoing proviso does not authorize the grant
of a franchise where there is not sufficient information to appraise the
impact of the applicant's proposal;
(3) A map of the general route the facility will follow; a
designation of the portions of the system that will be placed above ground
and the portions that will be placed underground, and the construction
techniques that the applicant proposes to use in installing the system above
ground and underground; a schedule for construction of the facility,
describing when and where construction will begin, how it will proceed,
benchmarks indicating the scheduled completion of portions of the system
and when construction will be completed; and the expected effect on right-
of-way usage, including information on the ability of the public rights-of-
way to accommodate the proposed system, including, as appropriate given
the system proposed, an estimate of the availability of space in conduits
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25
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) A demonstration of how the applicant will reasonably meet
the future cable -related needs and interests of the community, including
descriptions of the capacity, facilities and support for public, educational,
and governmental use of the system (including institutional networks)
applicant proposes to provide and why applicant believes that the proposal
is adequate to meet the future cable -related needs and interests of the
community;
(6) A demonstration of the financial qualifications of the
applicant, including at least the following:
a. The proposed rate structure, including projected
charges for each service tier, installation, converters, and all other
proposed equipment or services;
b. A statement regarding the applicant's financial
ability to complete the construction to meet the time frame
proposed and to operate the cable system proposed certified by the
applicant's chief financial officer;
(7) A demonstration of the applicant's technical ability to
construct and/or operate the proposed cable system;
(8) A demonstration 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 might lead the City to conclude that the applicant cannot
be relied upon to comply with requirements of a franchise or
provisions of this Chapter, or to deal honestly with the City or its
residents;
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 repair of
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its facilities; and has not entered into any agreement that would
prevent it from doing so; and
d. The applicant must not have submitted an
application for an initial or renewal franchise to the City, which
was denied on the ground that the applicant failed to propose a
cable system meeting the cable -related needs and interests of the
community, or as to which any challenges to such franchising
decision were finally resolved (including any appeals) adversely to
the applicant, within three years preceding the submission of the
application.
(9) The extent that the applicant is in any respect relying on the
financial or technical resources of another person, including another
affiliate; proofs should be provided for that person.
(10) A description of the applicant's prior experience in cable
system ownership, construction, and operation, and identification of cities
and counties in Washington in which the applicant or any of its principals
have a cable franchise or any interest therein, provided that an applicant
that holds a franchise for the City and is seeking renewal of that franchise
need only provide this information for other cities and counties in
Washington where its franchise is scheduled to expire during the 12 -
month period prior to the date its application is submitted to the City and
for other cities and counties in Washington where its Franchise had been
scheduled to expire during the 12 -month period after the date its
application is submitted to the City. If an applicant has no other franchise
in Washington, it shall provide the information for its operations in other
states; and
(11) 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.
a. To be accepted for filing, an original and six copies
of a complete application must be submitted. All applications shall
include the names and addresses of persons authorized to act on
behalf of the applicant with respect to the application.
b. An applicant (and the transferor and transferee, in
the case of a transfer application) shall respond to any request for
information from the City, by the time specified by the City.
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27
3) Incomplete applications. An application may be rejected if it is
incomplete, or if the response to the City's requests for information is not timely and
complete.
B) Application for an Initial Franchise or Renewal Franchise.
I) Scope. This section establishes additional provisions that apply to an
application for an initial franchise, or a renewal franchise application that is not governed
by 47 U.S.C. §546(a) -(g).
2) Process. Any person may apply for an initial or renewal franchise by
submitting an application therefore on that person's own initiative, or in response to a
request for proposals issued by the City. If the City receives an unsolicited application, it
may choose to issue a request for additional proposals, and require the applicant to amend
its proposal to respond thereto. The City shall promptly conduct such investigations as
are necessary to act on an application.
3) Consideration of application. hi determining whether to grant a franchise,
the City may consider:
(a) The extent to which an applicant for renewal has substantially
complied with the applicable law and the material terms of any existing cable
franchise;
(b) Whether an applicant's quality of service under its existing
Franchise, including signal quality, response to customer complaints, billing
practices, and the like has been reasonable in light of the needs of the community;
(c) Where the applicant has not previously held a cable system
franchise in the City, whether the applicant's record in other communities
indicates that it can be relied upon to provide high-quality service throughout any
franchise term;
(d) Whether the applicant has the financial, legal, and technical ability
to provide the services, facilities, and equipment set forth in an application, and to
satisfy any minimum requirements established by the City;
(e) Whether the applicant's application is reasonable to meet the
future cable -related needs and interests of the City, taking into account the cost of
meeting such needs and interests;
(f) Whether issuance of a franchise is in the public interest
considering the immediate and future effect on the public rights-of-way, public
property, and private property that will be used by the applicant's cable system;
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28
(g) Whether issuance of the franchise would reduce or increase
competition in the provision of cable service in the City;
(h) Such other matters as the City is authorized or required to
consider.
4) Issuance of Franchise. If the City determines that issuance of a franchise
would be in the public interest considering the factors described above, it may offer a
franchise agreement to the applicant. No franchise shall become effective until the
franchise is unconditionally accepted by the applicant, approved by the City Council, and
the franchise agreement is signed by both parties.
C) Application for Renewal Franchise Filed Pursuant to 47 U.S.C. &546.
1) Scope. This section establishes additional provisions that apply to
applications for renewal governed by 47 U.S.C. §546(a) -(g).
2) Process. A franchisee that intends to exercise rights under 47 U.S.C. §
546(a) -(g) shall submit a notice in writing to the City in a timely manner clearly stating
that it is activating the procedures set forth in those sections. The City shall thereafter
commence any proceedings that may be required under federal law, and upon completion
of those proceedings, the City may issue a request for renewal proposals and an
application may be submitted for renewal. The City may preliminarily deny the
application by resolution, and if the application is preliminarily denied, the City may
conduct such proceedings and by resolution establish such procedures and appoint such
individuals as may be necessary to conduct any proceedings to review the application.
D) Application for Transfer.
1) Scope. This section establishes additional provisions that apply to
applications for transfer approval.
2) Information. An application for transfer must contain all the information
required by the City Manager, by Section 15.95.240A), and all information required by
any FCC franchise transfer form.
3) Consideration of application. In determining whether a transfer
application should be granted, denied, or granted subject to conditions, the City may
consider the legal, financial, and technical qualifications of the transferee to operate the
cable system; any potential impact of the transfer on subscriber rates or services; whether
the transferor franchise is in compliance with its franchise; whether the transferee owns
or controls any other cable system in the City, 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 otherwise adversely affect
subscribers, the public, or the City's interest under this Chapter, the franchise, or other
Ordinance - Title 15
29
applicable law. The proposed transferee shall pay all reasonable costs incurred by the
City in reviewing and evaluating the applications.
4) Minimum conditions. In order to obtain approval of a transfer, an
applicant must show, at a minimum, that: the transferee is qualified; the transfer will not
adversely affect the interests of subscribers, the public, or the City; and that all franchise
non-compliance issues have been resolved or, alternatively, that the transferee will
assume all liability for or such franchise non-compliance issues, known or unknown,
arising before the date of the transfer. No transfer application shall be granted unless the
transferee agrees in writing that it will abide by and accept all terms of this Chapter and
the franchise, and that it will assume all of the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of its predecessor franchisee, whether
arising before or after the date of the transfer, for all purposes.
E) Legal Qualifications.
1) Standards.
(a) The applicant must be willing to comply with the provisions of this
Chapter and applicable laws; and to comply with such requirements of a franchise
as the City may lawfully require.
(b) The applicant must not have had any cable system or OVS
franchise validly revoked (including any appeals) by the City within three (3)
years preceding the submission of the application.
(c) The applicant must not have had an application to the City for an
initial or renewal cable system franchise denied on the ground that the applicant
failed to propose a cable system meeting the cable -related needs and interests of
the community, or as to which any challenges to such franchising decision were
finally resolved (including any appeals) adversely to the applicant, within three
(3) years preceding the submission of the application; and must not have had an
application for an initial or renewal OVS franchise denied on any ground within
three years of the application.
(d) The applicant shall not be issued a franchise if, at any time during
the ten (10) years preceding the submission of the application, applicant was
convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or
other conduct of such character that the applicant cannot be relied upon to deal
truthfully with the City and the Subscribers, or to substantially comply with its
obligations.
(e) Applicant must have the necessary authority under Washington
and federal law to operate a cable system, or show that it is in a position to obtain
that authority.
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30
(f) The Applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
(g) For purposes of this section, the term applicant includes any
affiliate of applicant.
2) Exception. Notwithstanding Section 15.95.240E)1), an applicant shall be
provided a reasonable opportunity to show that a franchise should issue even if the
requirements of Section 15.95.240E)l)(c) and (d) are not satisfied, by virtue of the
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 current principals, or the remoteness of the matter from the operation of a
cable system.
F) Franchise Fee. A cable system operator shall pay to the City a franchise fee in an
amount equal to 5 percent of gross revenues, or such other amount as may be specified in the
franchise; provided, however, that if the franchise specifies an amount, that amount shall be
subject to increase should federal limits on fee payments be eliminated or changed and other
operators are subject to a higher fee.
1) "Bundled Services." In the event that the franchisee, during the term of
the franchise, offers bundled, tied, or combined cable services (which are subject to the
franchise fee) with non -cable services (which may not be subject to the franchise fee) to
subscribers, the combined revenues from such bundled services shall be allocated
consistent with the standalone rates or prices for each individual bundled service
advertised by the franchisee through its marketing materials or on its published rate card.
In the event the franchisee does not advertise or publish separate standalone prices for
any or all the individual services in the bundled service, the percentage that the price for
the combined services is discounted from the regular retail rates of the individual
standalone services shall be pro -rated across all of the services in the bundled package;
provided, however, that the net revenues derived from services subject to mandatory
tariff rates imposed by the Washington Public Utilities Commission (or other
governmental entity having such authority) shall be deducted from the combined bundled
service revenue to determine the revenue subject to the franchise fee. As an example, a
franchisee may offer a "bundle" of video, voice and data services for a flat fee of $75.00
where the standalone retail rate for each of the services purchased on an individual basis
would equal $100.00. Assuming that there is no service subject to the mandated tariff
rate, the franchisee would apply a twenty-five percent (25%) discount to each service in
the bundle. Thus, if the franchisee's standalone retail rate for the cable service portion of
the bundle were $50.00, for franchise fee computation purposes Grantee would recognize
cable service revenue in the amount of $37.50 and pay a franchise fee on that revenue.
2) The definition of gross revenue is to be as inclusive as possible consistent
with existing applicable law. If a change in federal law occurs subsequent to the effective
date of this Chapter, such change shall not impact the gross revenues definition in such a
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31
way to reduce gross revenues, unless the change in law specifically preempts the affected
portion of the definition above.
G) No exclusivity. A franchisee may not require a subscriber or a building owner or
manager to enter into an exclusive contract as a condition of providing or continuing service.
However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually
desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or
commercial subscriber.
H) Rate regulation and consumer protection.
1) All rates subject to regulation. The City may regulate the operator's rates
and charges, to the extent it is not prohibited from doing so by law. The City will
regulate rates in accordance with FCC rules and regulations, where applicable. Except to
the extent FCC rules provide otherwise, all rates and charges that are subject to
regulation, and changes in those rates or charges must be approved in advance. The City
Manager may take any required steps to file complaints, toll rates, issue accounting
orders or take any other steps required to comply with FCC rate regulation rules. The
City Council shall be responsible for issuing rate orders that establish rates or order
refunds.
2) No rate discrimination. Except to the extent preempted by federal or state
law, an operator is prohibited from discriminating in its rates or charges or from granting
undue preferences to any subscriber, potential subscriber, or group of subscribers or
potential subscribers; provided, however, that a franchisee may offer temporary, bona
fide promotional discounts in order to attract or maintain subscribers, so long as such
discounts are offered on a non-discriminatory basis to similar classes of subscribers
throughout the franchise area; and a franchisee may offer discounts for the elderly, the
disabled, or the economically disadvantaged, and such other discounts as it is expressly
entitled to provide under federal law, if such discounts are applied in a uniform and
consistent manner.
3) Redlining prohibited. An Operator shall not deny access or charge
different rates to any group of subscribers or potential subscribers because of the income
of the residents of the local area in which such group resides.
4) Customer service.
(a) Each operator must satisfy FCC, State and the City's cable
customer service standards and consumer protection standards. The City's cable
customer service standards may be adopted by resolution. In the case of a conflict
among standards, the stricter standard shall apply to the full extent permitted by
law.
(b) For violation of cable customer service standards, penalties will be
imposed as follows:
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32
(1) Two hundred dollars ($200) for each day of each material
breach, not to exceed six hundred dollars ($600), for each occurrence of
material breach.
(2) If there is a subsequent material breach of the same
provision within twelve (12) months, four hundred dollars ($400) for each
day of each material breach, not to exceed twelve hundred ($1200) for
each occurrence of the material breach.
(3) If there is a third or additional material breach of the same
provision within twelve (12) months of the first, one thousand dollars
($1000) for each day of each material breach, not to exceed three thousand
dollars ($3,000) for each occurrence of the material breach.
(c) Any penalty assessed under this section will be reduced dollar for
dollar to the extent any liquidated damage provision of a franchise imposes a
monetary obligation on a franchisee for the same customer service failures.
15.95.250 OPEN VIDEO SYSTEMS.
A) Additional definitions
1) "0 VS Agreement" means a contract entered into in accordance with the
provisions of this Chapter between the City and an OVS franchisee setting forth the terms
and conditions under which the OVS franchise will be exercised.
B) Applications for Grant or Renewal of Franchises.
1) Initial and renewal Franchise: application.
(a) A written application shall be filed with the City for grant of an
initial or renewal OVS franchise.
(b) To be acceptable for filing, a signed original of the application
shall be submitted together with six (6) copies. The application must conform to
any applicable request for proposals, and contain all information required under
Section 15.95.250B)2). All applications shall include the names and addresses of
persons authorized to act on behalf of the applicant with respect to the application.
2) Contents of Applications. The City Manager may specify the information
that must be provided in connection with a request for proposals or an application for an
initial or renewal franchise. At a minimum, each application must: identify the applicant,
where it plans to construct its system, and the system construction schedule; show that
the applicant will provide adequate channels, facilities and other support for public,
educational and government use (including institutional network use) of the OVS; and
Ordinance - Tide 15
33
show that the applicant is financially, technically and legally qualified to construct and
operate the OVS. The application must contain the following information;
(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 OVS 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 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 the same.
(4) A map of the route the facility will follow a designation 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 applicant proposes to use in installing the system aboveground and
underground; a schedule for construction of the facility, describing when
and where construction will begin, how it will proceed, benchmarks for
completion of phases, and when it will be completed; expected effect on
rights-of-way usage, including information on the ability of the public
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.
(c) 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 facility over the franchise term. It is not the intent of the City to
require an applicant to prove that the services it proposes to offer will succeed in
the marketplace.
Ordinance - Tide 15
34
(d) Evidence satisfactory to the City 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.
(e) Evidence satisfactory to the City that the applicant is legally
qualified, which proof must include a demonstration that the applicant:
(1) Has received, or is in a position to receive, necessary
authorizations from state and federal authorities;
(2) 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 Chapter;
(3) 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.
(f) 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.
(g) 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 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.
3) Procedure for Applying for Grant of a Franchise.
(a) A person may apply for an initial or renewal franchise on its own
initiative or in response to a request for proposals. Upon receipt of an application,
the City shall promptly proffer the applicant a proposed OVS agreement, which
shall be mailed to the person requesting its issuance and made available to any
other interested party. The City may request such additional information, as it
deems appropriate.
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35
(b) An applicant shall respond to requests for information completely,
and within the time directed by the City, and must strictly comply with
procedures, instructions, and requirements as the City may establish.
(c) An application may be rejected if it is incomplete or the applicant
fails to follow procedures or respond fully to information requests.
4) Evaluation. In evaluating a franchise application, the City may consider
the following:
(a) The extent to which the applicant has substantially complied with
the applicable law and the material terms of any existing City OVS franchise;
(b) Whether the applicant has the financial, technical, and legal
qualifications to hold an OVS franchise;
(c) Whether the application satisfies any minimum requirements
established by the City for, or will otherwise provide adequate public,
educational, and governmental use capacity, facilities, or financial support
(including with respect to institutional networks);
(d) Whether issuance of a franchise would require replacement of
property or involve disruption of property, public services, or use of the public
rights-of-way;
(e) Whether the approval of the application may eliminate or reduce
competition in the delivery of cable service in the City.
5) Issuance. If the City finds that it is in the public interest to issue a
franchise considering the factors above, and such other matters as it is required or entitled
to consider, and subject to the applicant's entry into an appropriate OVS agreement, it
shall issue a franchise. Prior to deciding whether or not to issue a Franchise, the City
may hold one or more public hearings or implement other procedures under which
comments from the public on an application may be received.
6) Legal qualifications. In order to be legally qualified:
(a) The applicant must be willing to comply with the provisions of this
Chapter and applicable laws, and to comply with such requirements of an OVS
agreement as the City may lawfully require.
(b) The applicant must not hold a cable system franchise, or have
pending an application for a Cable system Franchise.
Ordinance - Tide 15
36
(c) The applicant must not have had any cable system or OVS
franchise validly revoked (including any appeals) by the City within three (3)
years preceding the submission of the application.
(d) The applicant may not have had an application for an initial or
renewal cable system franchise to the City denied on the ground that the applicant
failed to propose a cable system meeting the cable -related needs and interests of
the community, or as to which any challenges to such franchising decision were
finally resolved (including any appeals) adversely to the applicant, within three
(3) years preceding the submission of the application.
(e) The applicant may not have had an application for an initial or
renewal OVS franchise denied on any grounds within three (3) years of the
applications.
(f) The applicant shall not be issued a franchise if, at any time during
the ten (10) years preceding the submission of the application, applicant was
convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or
other conduct of such character that the applicant cannot be relied upon to deal
truthfully with the City and the subscribers or to substantially comply with its
obligations.
(g) Applicant must have the necessary authority under Washington
and federal law to operate an OVS, and must be certified by the FCC under
Section 653 of the Cable Act, 47 U.S.C. § 573.
(h) The Applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
(i) For purposes of Section 15.95.250B)6)(b) thru (e), the term
applicant includes any affiliate of applicant.
7) Exception. Notwithstanding Section 15.95.250B)6), an applicant shall be
provided a reasonable opportunity to show that a franchise should issue even if the
requirements of Section 15.95.250B)6)(d) and (e) are not satisfied, by virtue of the
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 a cable
system.
C) Transfers.
1) City Approval Required. No transfer shall occur without prior written
notice to and approval of the City.
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37
2) Application.
(a) A franchisee shall promptly notify the City of any proposed
transfer, and submit an application for its approval.
(b) The City may specify information that must be provided in
connection with a transfer application. At a minimum, an application must:
describe the entities involved in the transaction and the entity that will hold the
franchise; describe the chain of ownership before and after the proposed
transaction; show that the entity that will hold the franchise will be legally,
financially, and technically qualified to do so; attach complete information on the
proposed transaction, including the contracts or other documents that relate to the
proposed transaction, and all documents, schedules, exhibits, or the like referred
to therein; and attach any shareholder reports or filings with the Securities and
Exchange Commission ("SEC") that discuss the transaction.
(c) 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 to
determine whether the transfer is in the public interest and should be approved,
denied, or conditioned. If the transferee or franchisee refuses to provide
information, or provide incomplete information, the request for transfer may be
denied.
3) Determination by the City.
(a) In deciding whether a transfer application should be granted,
denied or granted subject to conditions, the City may consider the legal, financial,
and technical qualifications of the transferee to operate the OVS; whether the
incumbent OVS operator is in compliance with its OVS agreement and this
Chapter and, if not, the proposed transferee's commitment to cure such
noncompliance; whether the transferee owns or controls any other OVS or 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 Chapter, the OVS
agreement, or other applicable law.
(b) In order to obtain approval of a transfer, an applicant must show, at
a minimum, that: the transferee is qualified; the transfer will not adversely affect
the interests of subscribers, the public, or the City; and that non-compliance issues
have been resolved. No application shall be granted unless the transferee agrees
in writing that it will abide by and accept all terms of this Chapter 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, whether
arising before or after the transfer, for all purposes. The proposed transferee shall
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38
pay all reasonable costs incurred by the City in reviewing and evaluating the
applications.
D) Minimum requirements.
1) PEG Access. No OVS Operator shall be issued a franchise, or may
commence construction of an OVS system, until (A) it agrees to match in all respects the
highest PEG obligations borne by any franchised cable system operator in the City; or (B)
it agrees to PEG obligations acceptable to the City.
2) Institutional network. Any OVS operator that constructs an I -Net must
match in all respects the highest institutional network obligations borne by any franchised
cable system operator in the City, unless it agrees to alternative institutional network
obligations acceptable to the City.
3) Construction Provisions. Every OVS agreement shall specify the
construction schedule that will apply to any required construction, upgrade, or rebuild of
the OVS. The schedule shall provide for prompt completion of the project, considering
the amount and type of construction required.
4) Testing. Each OVS operator shall perform at its expense such tests as may
be necessary to show whether or not it is in compliance with its obligations under this
Chapter or a franchise.
5) Consumer protection provisions. Every franchisee must satisfy customer
service consumer protection requirements established from time to time under state or
local law and applicable to OVS.
E) Special termination rules. If a franchisee's FCC OVS certification is revoked or
otherwise terminates as a result of the passage of time or as a matter of law, the City may revoke
the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations
or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed.
F) Rate regulation. The City may regulate a franchisee's rates and charges except as
prohibited by law, and may do so by amendment to this Chapter, separate ordinance, by
amendment to an OVS agreement, or in any other lawful manner.
G) Fee in lieu of Franchise Fee.
1) OVS Operators. In lieu of the franchise fee required by Section
15.95.240, an OVS franchisee shall pay a fee of five percent (5%) of the gross revenues
of the franchisee, its affiliates or any OVS operator of the OVS.
2) Persons leasing 0 V capacity.
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(a) A person leasing capacity from an OVS operator, other than a
person whose revenues are included in the payment made under Section
15.95.250G)1), shall pay the City a fee, in lieu of the franchise fee required by
Section 15.95.240, of five percent (5%) of the gross revenues of such person.
(b) Notwithstanding the foregoing, where the OVS franchisee charges
a person, other than an affiliate, to use its OVS (the "use payments"); and that
person recovers those use payments through charges to its subscribers that are
included in that person's gross revenues; and that person fully recovers the use
payments through the charges to its subscribers and pays a fee on those charges
pursuant to Section 15.95.250G)1), then franchisee may deduct from its gross
revenues the use payments it receives from that person.
H) Exclusive contracts. A franchisee may not require a subscriber or a building
owner or manager to enter into an exclusive contract as a condition of providing or continuing
service, nor, subject to applicable law, may a franchisee enter into any arrangement that would
effectively prevent other persons from using the OVS to compete in the delivery of cable
services with a franchisee or its affiliates.
15.95.260 CAPTIONS. The captions to sections throughout this Chapter are
intended solely to facilitate reading and reference to the sections and provisions of this Chapter.
Such captions shall not affect the meaning or interpretation of this Chapter.
15.95.270 CALCULATION OF TIME. Unless otherwise indicated, when the
performance or doing of any act, duty, matter, or payment is required under this Chapter or any
franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is
fixed herein, the time shall be computed so as to exclude the first and include the last day of the
prescribed or fixed period of time.
15.95.280 CONNECTIONS TO CABLE SYSTEM; USE OF ANTENNAE.
A) Subscriber right to attach. To the extent consistent with federal law, subscribers
shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's
cable system. Subscribers also shall have the right to use their own remote control devices and
converters, and other similar equipment.
B) Removal of existing antennae. A franchisee shall not, as a condition of providing
service, require a subscriber or potential subscriber to remove any existing antenna, or
disconnect an antenna except at the express direction of the subscriber or potential subscriber, or
prohibit installation of a new antenna, provided that such antenna is connected with an
appropriate device and complies with applicable law.
15.95.290 DISCRIMINATION PROHIBITED
A) No retaliatory actions. A cable communications system operator shall not
discriminate among persons or the City or take any retaliatory action against a person or the City
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because of that entity's exercise of any right it may have under federal, state, or local law, nor
may the operator require a person or the City to waive such rights as a condition of taking
service.
B) Employment and hiring practices. A cable communications system operator shall
not refuse to employ, discharge from employment, or discriminate against any person in
compensation or in terms, conditions, or privileges of employment because of race, color, creed,
national origin, sex, sexual orientation, age, disability, religion, ethnic background, or marital
status. A cable communications system operator shall comply with all federal, state, and local
laws and regulations governing equal employment opportunities, and hiring practices, as the
same may be amended from time to time.
15.95.300 TRANSITIONAL PROVISIONS.
A) Persons operating without a Franchise. The operator of any cable
communications system facility installed as of the effective date of this Chapter, for which a
franchise is required under this Chapter, shall have three months from the effective date of this
Chapter to file one or more applications for a franchise. Any operator timely filing such an
application under this Section 15.95.300A) shall not be subject to a penalty for failure to have
such a franchise so long as said application remains pending; provided, however, nothing herein
shall relieve any cable communications system operator of any liability for its failure to obtain
any permit or other authorization required under other provisions of the City Code, and nothing
herein shall prevent the City from requiring removal of any facilities installed in violation of the
City Code.
B) Persons holding Franchises. Any person holding an existing franchise for a cable
communications system may continue to operate under its existing franchise to the conclusion of
its present term (but not any renewal or extension thereof) with respect to those activities
expressly authorized by the franchise; provided that, such person shall be subject to the other
provisions of this Chapter to the extent permitted by law.
C) Persons with pending applications. Pending applications shall be subject to this
Chapter. A person with a pending application shall have 30 days from the effective date of this
Chapter to submit additional information to comply with the requirements of this Chapter
governing applications.
15.95.310 APPLICATION OF THIS CHAPTER. Any cable communications
system operator that uses its system to provide any noncable services must comply with those
other provisions of Title 15 otherwise applicable to such noncable services, which requirement
shall be in addition to any requirement contained in this Chapter. In the event of any conflict
between Chapter 15.95 and other provisions of Title 15, the provisions of Chapter 15.95 shall be
controlling; provided that the terms of this Chapter shall be controlling only with respect to cable
franchises and shall not interfere with the administration of any franchise under any other
Chapter of Title 15.
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15.95.320 SEVERABILITY. If any term, condition, or provision of this Chapter
shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or
regulatory agency, the remainder hereof shall be valid in all other respects and continue to be
effective. In the event of a subsequent change in applicable law so that the provision which had
been held invalid is no longer invalid, said provision shall thereupon return to full force and
effect without further action by the City and shall thereafter be binding on the franchisee and the
City.
SECTION 5. This Ordinance shall take full force and effect five (5) days after its
approval, passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided bylaw this 20 day of 'Ju N 'F _ , 2016.
Matt Watkins, Mayor
A TE
Q2 0 a - '
Debbie Clark, City Clerk
APP • AS TOFORM:
Leland B. Kerr, City Attorney
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