5.16.580 - Applications for grant or renewal of franchises.

A.

1.

A written application shall be filed with the City Clerk for grant of an initial or renewal OVS franchise.

2.

To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under Section 3.570(B)(2). All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

B.

The City Administrator may specify the information that must be provided in connection with a request for proposals or an application for an initial or renewal OVS franchise. At a minimum, each application must: identify the applicant, where it plans to construct its OVS, and the OVS 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 show that the applicant is financially, technically and legally qualified to construct and operate the OVS.

C.

1.

A person may apply for an initial or renewal OVS franchise on its own initiative or in response to a request for proposals. Upon receipt of an application, the city may conduct such investigations as are necessary to consider the application. The city may request such additional information as it deems appropriate.

2.

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 the city may establish.

3.

An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests.

D.

In evaluating an OVS franchise application, the city may consider the following:

1.

The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing city OVS franchise;

2.

Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise;

3.

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);

4.

Whether issuance of an OVS franchise would require replacement of property or involve disruption of property, public services, or use of the public right-of-way;

5.

Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city; and

6.

Such other matters as it is required or entitled to consider.

E.

If the city finds that it is in the public interest to issue an OVS franchise considering the factors above, shall proffer an OVS agreement to applicant and if applicant is willing to unconditionally accept the terms thereof and to comply with the requirements of applicable law, including this chapter, it shall issue an OVS franchise.

(Ord. 12729 § 1 (part), 2006)

5.16.590 - Transfers.

A.

No transfer of an OVS franchise shall occur without prior written notice to and approval of the City Council.

B.

1.

An OVS franchisee shall promptly notify the city of any proposed transfer, and submit an application for its approval at least one hundred twenty (120) days in advance of the proposed and anticipated transfer date.

2.

The City Administrator may specify information that must be provided in connection with a transfer application. At a minimum, an application must describe the persons involved in the transaction and the person that will hold the OVS franchise; describe the chain of ownership before and after the proposed transaction; show that the person that will hold the OVS 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.

3.

For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters 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 OVS franchisee refuse to provide information, or provide incomplete information, the request for transfer may be denied.

C.

1.

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.

2.

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 OVS agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.

(Ord. 12729 § 1 (part), 2006)

5.16.600 - Legal qualifications.

A.

In order to be legally qualified:

1.

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;

2.

The applicant must not hold a cable system franchise, or have pending an application for a cable system franchise;

3.

The applicant must not have had any cable system or OVS franchise revoked by the city within three years preceding the submission of the application. If franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid;

4.

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 years preceding the submission of the application;

5.

The applicant may not have had an application for an initial or renewal OVS franchise denied on any grounds within three years of the applications;

6.

The applicant shall not be issued an OVS franchise if, at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive 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;

7.

Applicant must have the necessary authority under California and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act as may be amended;

8.

The applicant shall not be issued an OVS franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide;

9.

For purposes of Section 5.16.600(A)(2)—(6), the term applicant includes any affiliate of applicant.

B.

Notwithstanding Section 5.16.600(A), an applicant shall be provided a reasonable opportunity to show that an OVS franchise should issue even if the requirements of Section 5.16.600(A)(3)—(6) 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 an OVS.

(Ord. 12729 § 1 (part), 2006)

5.16.610 - Minimum requirements.

A.

No OVS operator shall be issued a franchise, or may commence construction of an OVS, until (A) it agrees to match in all respects the highest PEG obligations borne by any cable system operator in the city; or (B) it agrees to PEG obligations acceptable to the city.

B.

Any OVS operator that constructs an I-Net must match in all respects the highest I-Net obligations borne by any cable system operator in the city, unless it agrees to alternative I-Net obligations acceptable to the city.

C.

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.

D.

Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the OVS franchisee is in compliance with its obligations under this chapter or a franchise or an OVS agreement.

E.

Every OVS franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS.

F.

If an OVS franchisee's FCC 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.

G.

The city may regulate an OVS 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.

(Ord. 12729 § 1 (part), 2006)

5.16.620 - Fee in lieu of franchise fee.

A.

In lieu of the franchise fee required by Part 3, an OVS franchisee shall pay to the city a fee of five percent of gross revenues.

B.

1.

A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made under Section 5.16.620(A) shall pay the city a fee in lieu of the franchise fee required by Part 3 of five percent of the gross revenues of such person. For purposes of this Section 5.16.620(B)(1), the term gross revenues means all revenues, whether cash, in-kind or in any other form, of the person leasing capacity, or its affiliates, derived from use of the OVS to provide cable service in the city.

2.

Notwithstanding the foregoing, where a person, other than an affiliate, pays an OVS franchisee to use its franchisee's 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 the OVS franchisee pays a franchise fee on those use charges; then that person may deduct from its gross revenues the use payments it makes.

(Ord. 12729 § 1 (part), 2006)

5.16.630 - Exclusive contracts.

An OVS franchisee may not directly or indirectly require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may an OVS franchisee enter into any arrangement that would effectively prevent other persons from using the OVS to compete in the delivery of cable services with an OVS franchisee or its affiliates. A franchisee must provide service on a month to month basis; however, nothing in this section prevents a franchisee from entering into a longer term contract with a subscriber in exchange for discounted rates.

(Ord. 12729 § 1 (part), 2006)