Clovis Municipal Code Art. 5 Open Video Systems

The provisions of this article apply to open video systems.

(§ 4, Ord. 05-23, eff. September 1, 2005)

(a) Application requirements. In addition to the other requirements, an application for an OVS franchise must contain the following information:

(1) Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.

(2) Evidence satisfactory to the City that the applicant is legally qualified, which proof must include a demonstration that the applicant:

(A) Has received, or is in a position to receive, necessary authorizations from state and federal authorities;

(B) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows the City to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this title;

(C) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so.

(3) 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.

(4) 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.

(5) 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.

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

(b) Minimum conditions for grant of OVS franchise.

(1) 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.

(2) 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.

(3) 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 cable operator in the City; or (B) it agrees to PEG obligations acceptable to the City.

(4) Each 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 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.

(5) Each franchisee that constructs an I-Net must match in all respects the highest I-Net obligations borne by any cable operator in the City, unless it agrees to alternative I-Net obligations acceptable to the City.

(6) Each franchisee 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.

(7) Each franchisee shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under this chapter or its franchise.

(8) Each franchisee shall satisfy customer service consumer protection requirements established from time to time under state, local law or resolution and the franchise and applicable to OVS.

(c) Consideration of application. In addition to the other requirements of this article, in evaluating a 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 OVS franchise;

(2) Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise including:

(A) The applicant must be willing to comply with the provisions of this article 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;

(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;

(3) Whether the application satisfies any minimum requirements established by the City for, or will otherwise provide, adequate public, educational, and governmental use channels/capacity, facilities, or financial support (including with respect to institutional networks);

(4) 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;

(5) Whether the approval of the application may eliminate or reduce competition in the delivery of cable communication service in the City;

(6) Whether the applicant has the necessary authority under California and Federal law to operate an OVS, and is certified by the FCC under Section 653 of the Cable Act.

(d) Applicant showing.

(1) An applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of this section 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.

(2) An applicant may show that it would be inappropriate to deny it a franchise by virtue of:

(A) The particular circumstances surrounding the acts or omissions at issue;

(B) The steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and

(C) The lack of involvement of the applicant’s principals, or the remoteness of the acts or omissions from the operation of open video system facilities.

(e) For purposes of this section the term “applicant” includes any affiliate of applicant.

(§ 4, Ord. 05-23, eff. September 1, 2005)

The City may regulate a franchisee’s rates and charges except as prohibited by law, and may do so by amendment to this article, separate ordinance, by amendment to an OVS franchise agreement, or in any other lawful manner.

(§ 4, Ord. 05-23, eff. September 1, 2005)

(a) In lieu of the franchise fee required by other provisions of this chapter, 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.

(b) Persons leasing OVS capacity.

(1) A person leasing capacity from an OVS franchisee, other than a person whose revenues are included in the payment made by an OVS franchisee under subsection (a) of this section, shall pay the City a fee in lieu of the required franchise fee of five percent (5%) of the gross revenues of such person. The City may require the OVS franchisee to collect this fee and remit it to the City.

(2) Notwithstanding the foregoing, where a 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 this subsection; then franchisee may deduct from its gross revenues the use payments it receives from that person.

(§ 4, Ord. 05-23, eff. September 1, 2005)