Humboldt County Municipal Code Ch. 3 Open Video Systems

Sections: Additional Definitions. Applications for Grant or Renewal of Franchises. Procedure for Issuance of OVS Franchise. Transfers. Minimum Requirements. Special Termination Rules. Rate Regulation. Fee in Lieu of Franchise Fee. Exclusive Contracts. 853-1. Additional Definitions. “OVS Agreement” means a contract entered into in accordance with the provisions of this Division, between the County and an OVS Franchisee setting forth the terms and conditions under which the Franchise will be exercised. (Ord. 2316, § 1, 4/20/2004)

853-2. Applications for Grant or Renewal of Franchises. (a) Initial and renewal Franchise: application. (Ord. 2316, § 1, 4/20/04) (1) A written application shall be filed with the County for grant of an initial or renewal Franchise. (Ord. 2316, § 1, 4/20/2004) (2) 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 by Sub-secion (b), below. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application. (Ord. 2316, § 1, 4/20/2004) (b) Contents of Application. The County CAO 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 show that the applicant is financially, technically and legally qualified to construct and operate the OVS. The application must contain the following information: (Ord. 2316, § 1, 4/20/04) (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. (Ord. 2316, § 1, 4/20/2004) (2) A proposal for construction of the open video system that includes at least the following: (Ord. 2316, § 1, 4/20/04) (A) A description of the services that are to be provided over the facility. (Ord. 2316, § 1, 4/20/2004) (B) Identification of the area of the County to be served by the proposed system, including a description of the proposed Franchise area’s boundaries. (Ord. 2316, § 1, 4/20/2004) (C) 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. (Ord. 2316, § 1, 4/20/ 2004) (D) 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 Operator 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 competition of phases, and when it will be completed; and the expected effect on Public 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. (Ord. 2316, § 1, 4/20/2004) (E) A description, where appropriate, of how services will be onverted from existing facilities to new facilities, and what will be done with existing facilities. (Ord. 2316, § 1, 4/20/2004) (3) Evidence satisfactory to the County 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 County to require an applicant to prove that the services it proposed to offer will succeed in the marketplace. (Ord. 2316, § 1, 4/20/2004) (4) Evidence satisfactory to the County that applicant istechnically 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. (Ord. 2316, § 1, 4/20/2004) (5) Evidence satisfactory to the County that the applicant is legally qualified, which proof must include a demonstration that the applicant: (Ord. 2316, § 1, 4/20/04) (A) Has received, or is in a position to receive, necessary authorizations from state and federal authorities; (Ord. 2316, § 1, 4/20/2004) (B) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows the County to conclude the applicant cannot be relied upon to comply with requirements of the Franchise, or provisions of this Division; and (Ord. 2316, § 1, 4/20/2004) (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; (Ord. 2316, § 1, 4/20/2004) (6) 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. (Ord. 2316, § 1, 4/20/2004) (7) An applicant may show that it would be inappropriate to deny it a Franchise by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and 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. (Ord. 2316, § 1, 4/20/2004) (8) 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 Humboldt County for a cable system or open video system, and conduct under such other Franchise provides no basis for additional investigation. (Ord. 2316, § 1, 4/20/2004) (Ord. 2316, § 1, 4/20/2004) 853-3. Procedure for Issuance of OVS Franchise. (a) Application. 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 County 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 County may request such additional information as it deems appropriate. (Ord. 2316, § 1, 4/ 20/04) An applicant shall respond to requests for information completely, and within the time directed by the County, and must strictly comply with procedures, instructions, and requirements the County may establish. An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests. (Ord. 2316, § 1, 4/20/2004) (b) Evaluation. In evaluating a Franchise application, the County may consider the following: (Ord. 2316, § 1, 4/20/ 04) (1) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing the County OVS Franchise; (Ord. 2316, § 1, 4/20/2004) (2) Whether the applicant has the financial, technical, and legal qualifications to hold an OVS Franchise; (Ord. 2316, § 1, 4/20/2004) (3) Whether the application satisfies any minimum requirements established by the County for, or will otherwise provide adequate public, educational, and governmental use capacity, facilities, or financial support (including with respect to institutional networks); (Ord. 2316, § 1, 4/20/2004) (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; (Ord. 2316, § 1, 4/20/2004) (5) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the County. (Ord. 2316, § 1, 4/20/2004) (c) Issuance. If the County 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 County may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. (Ord. 2316, § 1, 4/20/2004) (d) Legal qualifications. In order to be legally qualified: (Ord. 2316, § 1, 4/20/04)

(1) The applicant must be willing to comply with the provisions of this Title and applicable laws, and to comply with such requirements of an OVS agreement as the County may lawfully require. (Ord. 2316, § 1, 4/ 20/2004) (2) The applicant must not hold a Cable system Franchise, or have pending an application for a Cable system Franchise. (Ord. 2316, § 1, 4/20/2004) (3) The applicant must not have had any cable system or OVS Franchise validly revoked by the County within three (3) years preceding the submission of the application. (Ord. 2316, § 1, 4/20/2004) (4) The applicant may not have had an application for an initial or renewal Cable system Franchise to the County 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. (Ord. 2316, § 1, 4/20/2004) (5) 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. (Ord. 2316, § 1, 4/20/2004) (6) The applicant shall not during the ten (10) years preceding the submission of the application, have been 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 County and the Subscribers, or to substantially comply with its obligations. (Ord. 2316, § 1, 4/20/2004) (7) The 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. (Ord. 2316, § 1, 4/20/2004) (8) The applicant shall not have filed materially misleading information in its application or intentionally withhold information that the applicant lawfully is required to provide. (Ord. 2316, § 1, 4/20/2004) (9) For purposes of Sub-Sections (d)(2)-(d)(5),above, the term applicant includes any Affiliate of applicant. (Ord. 2316, § 1, 4/20/2004) (e) Exception. Notwithstanding the above, an applicant shall be provided a reasonable opportunity to show that a Franchise should issue even if the requirements of Sub-Sections (d)(4) and (d)(5)) 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. (Ord. 2316, § 1, 4/20/2004) 853-4. Transfers. (a) Humboldt County Approval Required. No transfer shall occur without prior written notice to and approval of the County. (Ord. 2316, § 1, 4/20/2004)

(b) Application. (Ord. 2316, § 1, 4/20/04) (1) A Franchisee shall promptly notify the County of any proposed Transfer, and submit an application for its approval. (Ord. 2316, § 1, 4/20/2004) (2) The County CAO 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. (Ord. 2316, § 1, 4/20/2004) (3) For the purposes of determining whether it shall consent to a Transfer, the County or its agents may inquire into all qualifications of the prospective transferee and such other matters as the County 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 refuse to provide information, or provide incomplete information, the request for Transfer may be denied. (Ord. 2316, § 1, 4/20/2004) (c) Determination by the County. (1) In deciding whether a Transfer application should be granted, denied or granted subject to conditions, the County 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 Division 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 County, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the County; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the County’s interest under this Division, the OVS agreement, or other applicable law. (Ord. 2316, § 1, 4/20/2004) (2) 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 County; 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 Division 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 for all purposes. The proposed transferee shall pay all reasonable costs incurred by the County in reviewing and evaluating the applications. (Ord. 2316, § 1, 4/20/2004) (Ord. 2316, § 1, 4/20/2004)

853-5. Minimum Requirements. (a) 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 cable Operator in the County; or (B) it agrees to PEG obligations acceptable to the County. (Ord. 2316, § 1, 4/20/2004) (b) Institutional network. Any OVS Operator that constructs an I-Net must match in all respects the highest I-Net obligations borne by any cable Operator in Humboldt County, unless it agrees to alternative I-Net obligations acceptable to Humboldt County. (Ord. 2316, § 1, 4/20/2004) (c) 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. (Ord. 2316, § 1, 4/20/2004) (d) Testing. Each OVS Operator 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 Division or a Franchise. (Ord. 2316, § 1, 4/20/ 2004) (e) 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, including the minimum standards set forth in Appendix A of this Division. (Ord. 2316, § 1, 4/20/2004) 853-6. Special Termination Rules. If a Franchisee’s FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the County 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. (Ord. 2316, § 1, 4/20/2004) 853-7. Rate Regulation. The County may regulate a Franchisee’s rates and charges except as prohibited by law, and may do so by amendment to this Division, separate ordinance, by amendment to an OVS Agreement, or in any other lawful manner. (Ord. 2316, § 1, 4/20/2004) 853-8. Fee in Lieu of Franchise Fee. (a) OVS Operators. In lieu of the Franchise fee required by Chapter 2, 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. (Ord. 2316, § 1, 4/20/2004)

(b) Persons leasing OVS capacity. (1) A person leasing capacity from an OVS Operator, other than a Person whose revenues are included in the payment made under Section 853-8(a), shall pay the County a fee in lieu of the Franchise fee required by Chapter 2 of five percent (5%) of the Gross Revenues of such Person. (Ord. 2316, § 1, 4/20/2004) (2) Notwithstanding the foregoing, where 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 853-8(a); then Franchisee may deduct from its Gross Revenues the use payments it receives from that Person. (Ord. 2316, § 1, 4/20/2004) (Ord. 2316, § 1, 4/20/2004) 853-9. 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 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. (Ord. 2316, § 1, 4/20/2004) § 854-1. § 854-2. § 854-3. § 854-4. § 854-5. § 854-6.