San Francisco County Municipal Code Art. I Franchise Procedure

Sec. 11.1. Definitions. Sec. 11.2. Board Authority to Issue Franchises. Sec. 11.3. Franchise Required. Sec. 11.4. Exceptions to Franchise Requirement. Sec. 11.5. Failure to Obtain a Franchise. Sec. 11.6. Existing Franchises. Sec. 11.7. Continued Use after Expiration of Franchise. Sec. 11.8. No Exclusive Franchises. Sec. 11.9. Utility Conditions Permit. Sec. 11.10. Filing of Proposal. Sec. 11.11. Proposal Fee. Sec. 11.12. Proposal Contents. Sec. 11.13. Proposal Review Procedure. Sec. 11.14. Transfer Proposals. Sec. 11.15. Cable System Renewal Proposals. Sec. 11.16. Franchise Revocation. Sec. 11.17. Termination. Sec. 11.18. Removal of Facilities. Sec. 11.19. Foreclosure/Assignment for Creditor's Benefit/Appointment of a Receiver. Sec. 11.20. Confidentiality of Proprietary Information.

For purposes of Articles I through VIII of this Chapter, and of any Franchise granted pursuant to this Chapter, the following terms, phrases, words, abbreviations, their derivations, and other similar terms, when capitalized, 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. The words "shall" and "will" are mandatory. "May" is permissive. However, as applied to official action, the words "shall" and "will" shall be directory in effect. Unless otherwise expressly stated, words not defined herein shall be given their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. Unless otherwise expressly stated, if specific provisions of law referred to herein are renumbered or amended, then the reference shall be read to refer to the renumbered or amended provision. (a) "Affiliate," when used in relation to any Person means another Person who owns or Controls is owned or Controlled by, or is under common ownership or Control with, such Person. (b) "Applicable law" means all applicable federal, state, and City laws, ordinances, codes, rules, regulations and orders, as the same may be amended or adopted from time to time. (c) "Applicant" means any Person submitting a Proposal pursuant to this Chapter. (d) "Board" means the City's Board of Supervisors. (e) "Bona Fide Institutional Lender" means any one or more of the following: (1) a savings bank, a savings and loan association, a commercial bank or trust company, an insurance company, a real estate investment trust, or any other Person which at the time a pledge in trust or mortgage is recorded in favor of such Person or Persons, has assets of at least $500 million in the aggregate (or the equivalent in foreign currency, and is regularly engaged in the financial services business; or (2) any special account, managed fund, department, agency or Affiliate of any of the foregoing. For purposes hereof: (1) acting in a "fiduciary capacity" shall be deemed to include acting as a trustee, agent, or in a similar capacity under a mortgage, loan agreement, indenture or other loan document; and (2) a lender, even if not a Bona Fide Institutional Lender, shall be deemed to be a Bona Fide Institutional Lender if, no more than thirty (30) City business days after such loan is consummated, the notes or other evidence of indebtedness or the collateral securing the same are assigned to a Person then qualifying as a Bona Fide Institutional Lender. (f) "Cable Service" means the one way transmission to Subscribers of video programming or other programming service and subscriber interaction, if any, required to select or use such video programming or other programming service. (g) "Cable System" means a Facility that consists of a set of closed transmission paths and associated signal generation, reception, and control equipment designed to provide Cable Service to multiple Subscribers. Except where expressly stated otherwise, Cable System includes an Open Video System. Cable System does not include: (1) a Facility that serves only to retransmit the television signals of one or more television broadcast stations, (2) a Facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934 (47 U.S.C. Sections 201except that such Facility shall be considered a Cable System to the extent such Facility is used to provide Cable Services; and (3) any Facilities of a gas or electric utility necessary or proper and used solely for: (i) the transmission, distribution, or supply of gas or electricity; or (ii) the transmission or collection of gas and electric usage and pricing information incidental thereto; or (iii) to provide services required by the City. (h) "Cable System Franchise" means a Franchise authorizing construction, installation, or operation of a Cable System or the provision of Cable Service over a Cable System. "Cable System Franchise" includes an OVS Franchise, unless expressly excluded hereunder. (i) "CPUC" means the California Public Utilities Commission. (j) "City" means the City and County of San Francisco, a municipal corporation of the State of California. (k) "Control" means the power to control the affairs and key decisions of another Person, in whatever manner exercised, whether directly or indirectly. (l) "Department," in reference to a Cable System Franchise or any other communications-related Franchise, means the Department of Technology. In reference to any gas, electric, or steam Franchise, "Department" means the San Francisco Public Utilities Commission. In reference to any other type of Franchise, "Department" means the City department assigned by the Board to process the Proposal or administer the Franchise. (m) "Facilities" includes any physical element used in connection with, or designed to be used in connection with, the provision of Services, whether or not located in the Public Rights-of-Way, including, without limitation, pedestals, cabinets, ducts and conduits (whether empty or occupied), transformers, equipment, drains, handholds, lines, line extensions, service drops, manholes, poles, power supplies and generators, splice boxes, surface location markers, vaults, tunnels, amplifiers, power guards, nodes, cables, and fiber optics (whether active or dark). (n) "FCC" means the Federal Communications Commission. (o) "Final Report" means a report submitted to the Board by the Department making a final recommendation upon a Proposal. (p) "Franchise" means an authorization granted by ordinance of the Board to a Person to construct, install, or operate Facilities in the Public Rights-of-Way or to provide Services using Facilities installed in the Public Rights-of-Way. "Franchise" shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances or laws of the City, including,

by ordinance of the Board to a Person to construct, install, or operate Facilities in the Public Rights-of-Way or to provide Services using Facilities installed in the Public Rights-of-Way. "Franchise" shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances or laws of the City, including, without limitation: (1) Any permit, agreement or authorization required in connection with operations on public streets or property such as permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along Public Rights-of-Way; and (2) Express or implicit authorization to provide Service to, or install Facilities on, private property without owner consent.

(q) "Franchise Area" means the geographic area of the City in which a Franchise authorizes a Grantee to construct, install, or operate Facilities or to provide Services. (r) "Franchise Fee" means a payment made to the City in accordance with Section 11.21 below. In the case of a UVPP, "Franchise Fee" shall mean a fee in lieu of a franchise fee, pursuant to 47 U.S.C. Section 573(c)(2)(B). (s) "Grantee" means a Person granted a Franchise by the City, and any lawful permitted successor or assign. (t) "Gross Revenues" means any and all income, receipts and other revenue of any kind or nature arising from or in connection with the operation of, or provision of Service using, Facilities in the Franchise Area and as may be more specifically defined in a Franchise except that when used in Section 11.28-A, "Gross Revenues" shall mean and refer to the definition of that term contained in California Public Utilities Code Section 5860(d), as amended. (u) "Material Breach" means a breach of the Franchise that has a substantial and significant effect on the rights or benefits either party to the Franchise has secured pursuant to the Franchise. "Material Breach" shall include, but not be limited to, those breaches designated as such in the Franchise and this Chapter, except that when used in Section 11.83-A, "Material Breach" shall mean any substantial and repeated failures by a State Video Franchise holder to comply with standards specified in Section 11.83-A(a). (v) "Open Video System" or "OVS" means a Cable System owned, operated, or Controlled by a Person certified by the FCC pursuant to 47 U.S.C. Section 573 and holding an OVS Franchise pursuant to this Article. (w) "Operator" means any Person who: (1) provides Service over Facilities and either directly or indirectly owns, or has an Affiliate that owns, a significant interest in the Facilities; or (2) otherwise Controls, or is responsible for, through any arrangement, the operation or management of Facilities. (x) "OVS Franchise" means a Franchise authorizing construction, installation, or operation of an Open Video System or the provision of Cable Service over an Open Video System. (y) "Permittee" means a person granted a UCP. (z) "Person" means any individual, group, company, partnership, association, joint stock company, trust, corporation, society, syndicate, club, business, or governmental entity. "Person" shall not include the City. (aa) "Personal Wireless Service" means commercial mobile services provided under a license issued by the FCC. (bb) "Personal Wireless Service Facilities" means antennas and related Facilities used to provide or facilitate the provision of Personal Wireless Service. (cc) "Personal Wireless Service Facilities Site Permit" means a permit issued by the Department of Public Works authorizing a Person to construct Personal Wireless Service Facilities. (dd) "Proposal" means any application proposal submission or request filed pursuant to the requirements of this Chapter to; (1) obtain a new Franchise; (2) Transfer a Franchise; (3) extend a Franchise; or otherwise modify a Franchise. A Proposal includes an Applicant's initial proposal, submission or request, as well as any and all amendments or supplements to the Proposal and relevant correspondence. (ee) "Proposal Fee" means a charge to recover the City's actual costs of processing Proposals hereunder. (ff) "Public Rights-of-Way" means the area in, on, upon, above, beneath, within, along, across, under, and over the public streets, sidewalks, roads, lanes, courts, ways, alleys, spaces, and boulevards within the geographic area of the City in which the City now or hereafter holds any property interest, which is dedicated to Public use and which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining Facilities to provide Service to customers. (gg) "Required Service Area" means the geographic area of the City a Grantee must construct, install or operate Facilities in or provide Service in, pursuant to its Franchise. (hh) "Revocation" means the City's affirmative act of Terminating a Franchise. (ii) "Service" means any service provided on a Commercial or for hire basis using Facilities installed in the Public Rights-of-Way. "Service" includes without limitation: (1) leasing or, through any other arrangement, offering the use of a Facility installed in the Public Rights-of-Way (except for the mandatory provision of Facilities pursuant to 47 U.S.C. Section 224 or California Public Utility Commission orders) and (2) the transmission of electronic signals through Facilities installed in the Public Rights-of-Way, whether or not owned by Person providing service to Subscribers. "Service" shall not include Telecommunications Service, State Video Service or Personal Wireless Service. (jj) "State Video Service" means video programming services, Cable Service, or OVS Service authorized under a State Video Service Franchise that is provided through Facilities located at least in part in Public Rights-of-Way without regard to delivery technology, including Internet protocol or other technology. (kk) "State Video Service Franchise" means a franchise issued by the CPUC pursuant to California Public Utilities Code Section 5800, et. seq. (ll) "Subscriber" means the City or any Person who legally receives any Service. (mm) "Telecommunications Service" means any service subject to regulation by the CPUC or the FCC as a telecommunications service and provided to customers by a telephone corporation regulated by the CPUC. (nn) "Termination" means the conclusion of a Franchise by any means, including, but not limited to, by expiration of its term,

abandonment, or Revocation. (oo) "Transfer" means any transaction in which: (1) all or a portion of any Facilities or any rights to use or operate Facilities located in the Public Rights-of-Way are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another Person, whether voluntarily or by operation of law or otherwise; or (2) there is any change, acquisition, or transfer in the identity of the Person in Control of the Grantee, or any Person that controls Grantee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or (3) the rights or obligations under the Franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another Person, whether voluntarily or by operation of law or otherwise. It will be presumed, for purposes of clause (2) above, that any transfer or cumulative transfer of a voting interest by a Person or group of Persons acting in concert of twenty-five percent (25%) or more of Grantee, or Person that Controls Grantee, or any change in the managing general partners of a Grantee is a change of Control. "Transfer" does not include: (1) a lease to a UVPP pursuant to 47 U.S.C. Sections 532 or 573; (2) the transmission of a commodity or electronic signal using Facilities on a common carrier basis; (3) a lease or other right to use Facilities mandated pursuant to 47 U.S.C. Section 224, California Public Utilities Code Section 767.5, or by an order of the CPUC; or (4) a pledge in trust, mortgage or other encumbrance against the Facilities, or any portion thereof, given to a Bona Fide Institutional Lender in connection with a loan or other financing required to secure the construction, operation, or repair of the Facilities ("Loan") provided that such Loan is subject to the rights and powers of the City pursuant to the Franchise and Applicable Law, including, without limitation, the right of the City to approve any Transfer pursuant to Section 11.14 below upon foreclosure. "Transferring" and "Transferee" shall have correlative meanings. (pp) "Unaffiliated Video Programming Provider" or "UVPP" means any Person who uses capacity on a franchised Cable System to deliver Cable Service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to Subscribers and who is not an Affiliate of the Grantee. (qq) "Utility Conditions Permit" or "UCP" means a permit issued by the Department of Public Works authorizing a Person to construct, install, and maintain specific Facilities in the Public Rights-of-Way. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000; Ord. 214-07, File No. 070904, App. 9/21/2007; Ord. 99-09, File No. 090287, App. 6/19/2009)

Pursuant to Charter Section 16.111, the Board has the power by ordinance to grant any Person a Franchise, or renew, extend, transfer, or amend a Franchise, to authorize use of the Public Rights-of-Way to provide service. This Chapter 11 sets forth the procedural and substantive rules the Board will apply in exercising this power. Nothing in this Chapter may be deemed or construed to compel the grant of a Franchise. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Except as provided in Section 11.4 below, no Person may construct, install, or operate Facilities in the Public Rights-of-Way, or provide Service using any Facilities installed in the Public Rights-of-Way, without a Franchise that authorizes each and every Service provided. Any Person using Facilities owned by another Person to provide Service, whether by lease or other arrangement, shall be required to obtain a Franchise pursuant to this Chapter. A Grantee may, at any time and pursuant to this Chapter, apply to expand the scope of its Franchise, subject to appropriate conditions, or apply for a separate Franchise to provide other Services. The fact that a Person uses Facilities to provide Service not requiring a Franchise does not obviate the need to obtain a Franchise where the Facilities are also used to provide other Services. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

The following shall not be required to obtain a Franchise under this Chapter: (a) The City; (b) A UVPP 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; (c) Persons using Facilities solely to provide only Telecommunications Services unless and until Applicable Law permits local governments to require telephone corporations in California to obtain a local Franchise or pay fair and reasonable compensation for the

use of the Public Rights-of-Way in connection with the provision of Telecommunications Service; (d) Persons using Facilities solely to provide Service to themselves, and not to any third parties on a for hire or commercial basis; (e) Persons, other than Operators of a Cable System, using Facilities installed in the Rights-of-Way where: (1) Such Person, or its Affiliates, do not or will not own directly or indirectly, a significant interest in Facilities installed in the Rights-of-Way and are not responsible for the installation or maintenance of Facilities in the Public Rights-of-Way; and (2) The Facilities used by such Person have been authorized to occupy the Public Rights-of-Way for the purposes for which they are being used; (f) Persons using any portion of Facilities installed in the Public Rights-of-Way to provide Service where: (1) Such Facilities are covered by a Franchise; and (2) Such Person agrees, in writing in a form acceptable to the City Attorney, to be bound by the terms and conditions of such Franchise as a Grantee under such Franchise and for purposes of this Chapter; and (g) Persons who hold an encroachment permit, or other valid permit or Permission, issued by the Department of Public Works or the Board, consistent with Applicable Law, allowing them to place all of the Facilities at issue in the Public Rights-of-Way, so long as such Facilities are limited to those of a specified type and size and placed only at specifically authorized and discrete locations in the Public Rights-of-Way. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Consistent with the requirements of due process, a Person's failure to obtain a Franchise as required by this Chapter may, in the City's discretion, result in: (1) Forfeiture, by operation of law, of the Person's Facilities located in the Public Rights-of-Way that are not authorized by an existing Franchise; and/or (2) A requirement that the Facilities be removed, and that penalties and damages be paid. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

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. 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. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

So long as a Grantee is seeking in good faith to renew a Franchise, upon expiration of a Franchise, the continued use by a Grantee of the Public Rights-of-Way shall continue on a month-to-month basis, for a maximum of twelve (12) months, under the same terms and conditions, and for the same consideration, as provided in the expired Franchise, unless the Franchise has been Revoked or unless otherwise determined by ordinance of the Board. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

A Franchise is nonexclusive and shall not explicitly or implicitly preclude the issuance of other Franchises or preclude the City from installing, constructing, operating, and/or maintaining its own Facilities. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Required for Providers of Telecommunications Service, State Video Service and Personal Wireless Service. The Department of Public Works shall require a Person to obtain a Utility Conditions Permit prior to the construction, installation, or maintenance of Facilities in the Public Rights-of-Way that will be used to provide Telecommunications Service, State Video Service or Personal Wireless Service. UCPs shall be issued by the Department of Public Works in a manner consistent with Applicable Law to Persons who are willing to comply with the City's requirements regarding the physical use and occupation of the Public Rights-of-Way and who have: (A) authority to occupy the Public Rights-of-Way pursuant to California Public Utilities Code Section 7901; (B) authority to occupy the Public Rights-of-Way pursuant to California Public Utilities Code Section 5885; or (C) a license to provide Personal Wireless Service issued under Federal law. Persons intending to construct, install, or maintain Facilities to provide Telecommunications Services, State Video Service or Personal Wireless Service shall prove their legal right to occupy and use the Public Rights-of-Way by providing the Department of Public Works a copy of their current: (a) certificate of public convenience and necessity issued by the CPUC (which shall expressly state the Person's authority to provide facilities-based Telecommunications Service); (b) State Video Service Franchise issued by the CPUC; or (c) license to provide Personal Wireless Service issued by the FCC. The Department of Public Works shall include in a UCP such conditions, in addition to those already set forth in Applicable Law, as may be required to govern the Permittee's construction, installation, or maintenance of Facilities in the Public Rights-of-Way to protect and benefit the public health, safety and welfare. The terms and conditions of a UCP shall be limited to those areas consistent with the City's authority under Applicable Law. A UCP shall have a term of no longer than two (2) years and may be renewed in accordance with requirements established by the Department in the UCP. A UCP shall provide that the Permittee is not entitled to construct, install, or maintain Personal Wireless Service Facilities in the Public Rights-of-Way without obtaining a Personal Wireless Service Facility Site Permit under Article 25 of the San Francisco Public Works Code. (b) UCP Fee. Any Person required to obtain or renew a UCP shall pay to the Department of Public Works a non-refundable application fee of two thousand dollars ($2,000.00) to compensate the City for all costs (including the City Attorney's costs) related to: (A) establishing the Person's authority to occupy the Public Rights-of-Way; (B) establishing the terms on which Persons may occupy the Public Rights-of-Way; and (C) granting, monitoring, enforcing, renewing, revising or revoking UCPs. These fees shall be deposited in the Public Works Excavation Fund established by Section 10.100-230 of the San Francisco Administrative Code. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000; amended by Ord. 33-02, File No. 020051, App. 3/28/2002; Ord. 214-07, File No. 070904, App. 9/21/2007; Ord. 12-11, File No. 100041)

Any 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 Proposal and eleven (11) copies to the Clerk of the Board and nine (9) copies to the Department The Clerk of the Board shall make a Proposal available for public inspection. The Proposal must conform to all of the requirements of this Chapter. Requests for other types of Franchise modifications may be processed by the Department without a Proposal, and submitted to the Board for approval. However, nothing herein shall prevent the Department from requiring a Proposal in the event the Department determines, based on the nature of the requested modification, that the public interest would best be served by the submission of a Proposal pursuant to this Article. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Reasonable Costs. An Applicant shall pay all reasonable costs incurred by the City related to the processing of any Proposal. Processing costs shall include, but not be limited to, the costs of services rendered by any City employee, agent or representative, including consultants and attorneys. (b) Controller's Estimate. Upon receipt of a Proposal, the Clerk of the Board shall immediately ask the Controller to estimate the City's processing costs. The Controller shall complete his or her estimate of such costs within fifteen (15) City business days of receipt of a Proposal. The Clerk of the Board shall notify the Applicant of the Controller's Proposal Fee estimate within three (3) City business days of receipt from the Controller. Applicant shall pay the amount contained in the Controller's estimate within fifteen (15) City

business days of notice. (c) Failure To Pay. Failure to pay the estimated Proposal Fee shall render the Proposal incomplete. If no Proposal Fee is paid within six (6) months of notification to the Applicant of the Controller's estimate, the Board may deny the Proposal on that basis. (d) Deposit/Offset. The Proposal Fee shall be deposited with the Controller. Within twenty (20) City business days of final action on a Proposal or an Applicant's formal acceptance or rejection of a Franchise, whichever is later, the Controller shall provide an account of the City's actual Proposal processing costs to the Applicant. The Controller may offset the Proposal processing costs from the Proposal Fee deposit consistent with the provisions of Administrative Code Sections 10.27-1 through 10.27-7. Where the City's actual costs are determined by the Controller to fall below the amount of the Proposal Fee deposit, the difference shall be refunded to the Applicant. Where the City's actual costs exceed the amount of the Proposal Fee deposit the Applicant shall be required to pay the difference to the Controller within twenty (20) City business days of notice. (e) Exceptions. Where required by controlling Applicable Law a Proposal Fee paid pursuant to this Section shall be credited against any other charge, including Franchise Fees, required to be paid to the City. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Each Department shall adopt regulations setting forth the information that each type of Proposal must contain, and make such regulations available immediately upon request. A Proposal shall include all information required by the Department unless the Department determines, in its discretion, that a substitute reasonably satisfies the Purpose of the regulations. At a minimum, regulations shall require Applicants to provide information required by Applicable Law and sufficient for the City to consider the Proposal pursuant to Section 11.13(g) and, where applicable, Section 11.13(h) below. Regulations shall also, where appropriate, distinguish among the requirements applicable to Proposals for initial Franchises, Transfer Proposals, Renewal Proposals, and Proposals to modify an existing Franchise. Regulations may require, without limitation: (a) Identifying Information. Information identifying the Applicant, its principle place of business, its corporate structure, and its ownership; (b) Experience. A statement describing all previous experience of the Applicant and any Affiliate(s) in providing the proposed Service(s), or constructing, operating, or maintaining Facilities used to provide the proposed Service(s), identifying any other Franchises to provide similar Service(s) awarded to Applicant, or any Affiliate(s), and the status of the construction of the Facilities under each Franchise; (c) Proposed Franchise. The text of Applicant's proposed Franchise complying with Applicable Law, including, without limitation, a statement of the type of Service proposed to be provided. In the case of a Cable System Franchise: (1) The Applicant must specify whether it seeks an OVS Franchise or a Cable System Franchise that is not an OVS; and (2) A proposed Franchise shall not be required to be submitted with a renewal Proposal for a Cable System Franchise that is not an OVS if the Grantee is exercising its renewal rights pursuant to 47 U.S.C. Section 546. (d) Related Documents. Any contracts, regulatory filings, shareholder reports, or other documents, including press releases, that refer to the Proposal, and all documents, schedules, exhibits, or the like referred to therein; (e) Proposed Operations. To the extent applicable, a detailed description of the Applicant's plan of operation which shall include, at a minimum, a description of the existing and proposed Facilities and any construction plan; (f) Financial Qualifications. Evidence that the Applicant has the financial resources and capacity to undertake and complete construction of the proposed Facilities, and to operate, maintain, repair, replace, and reconstruct the Facilities over the term of the Franchise; (g) Technical Qualifications. Evidence that the Applicant is technically qualified to construct, operate and repair the Facilities; (h) Legal Qualifications. Evidence that the Applicant is legally qualified to own, install, construct, operate, or provide Services using the Facilities; (i) Customer Service and Consumer Benefits. A description of how the Applicant plans to address customer service issues and the benefits its market entry will provide to consumers in the City; (j) Other Agreements. A detailed summary and copies of any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the Applicant and any Person regarding the use of a Person's equipment or Facilities on which the Proposal depends; (k) Certification. An affidavit or declaration, under penalty of perjury, by an officer of Applicant legally qualified to bind Applicant certifying: (1) The truth and accuracy of the information in the Proposal and that the proposal meets all requirements of Applicable Law; (2) That Applicant is willing to enter into a Franchise meeting the requirements of Applicable Law, to Pay required compensation,

and to abide by the City's standard contract terms and all provisions of Applicable Law; and (3) That Applicant has not entered into any agreement that would prevent it from complying with any of these requirements. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Competitive Process For Initial Franchises. To fulfill the requirements of Charter Section 16.111, at any time between the receipt of a Proposal for an initial Franchise and the grant of a Franchise thereunder, the Department shall, by advertisement or any other means, solicit and call for additional Proposals for similar Franchises. The Department shall evaluate the responses and report to the Board regarding the results of the solicitation. The Board shall consider the responses to the solicitation prior to granting any Franchise. The solicitation need not comply with the provisions of Chapter 21 of this Code and the City may award more than one Franchise as a result of the solicitation. However, nothing herein precludes the Department from requiring a competitive process similar to that set forth in Chapter 21 of this Code, nor does anything herein require the City to award any Franchise. (b) Completeness. Promptly, upon receipt of a Proposal, the Department shall report to the Applicant regarding the Proposal's completeness. The Department shall also report to the Board within twenty (20) City business days regarding the Proposal's completeness. The Proposal shall not be deemed complete until such time as the Applicant provides all information and certifications required pursuant to regulations adopted pursuant to Section 11.12 above. (c) Additional Information. An Applicant shall provide any other details, clarifications, statements, information or references relevant to its Proposal which are requested by the Board or the Department in connection with their review of the Proposal and which are: (1) relevant to issues raised in the Proposal or related facts and circumstances that affect the Proposal; and/or (2) referenced in the Proposal but not provided therein. Such information shall not be required to determine that a Proposal is complete; however, the Board may require that this information be submitted prior to acting on a Proposal. (d) Incomplete Information. To the extent that any data required pursuant to Section 11.12 above are not available at the time the Proposal is filed with the Board, the Proposal shall so state. Where the Department determines, in its sole discretion, that such information is not immediately critical to review of a Proposal, the Proposal may be reviewed by the City subject to the following conditions: (1) That the data are filed and approved by the City before the Board takes action on the Proposal; and (2) That, for purposes of applying any deadlines provided under Applicable Law, the date of the Proposal shall be the date all required information is submitted to the City. (e) Negotiations. The Department shall negotiate the terms of a proposed Franchise on behalf of the City and may engage in negotiations with an Applicant at any time. (f) Final Report. After finding a Proposal complete, the Department shall submit a Final Report to the Board recommending approval or denial of the Proposal. If the Department recommends approval of a Proposal, it shall include a proposed Franchise ordinance in the Final Report. (g) Issues For Consideration. In reviewing a Proposal, the City shall consider, where applicable and without limitation, the issues set forth in this subsection. It shall be presumed that the issues set forth in subsections 2, 3, 4, 6, 8, and 9 are applicable to all Proposals. In any Final Report submitted to the Board, the Department shall state which additional issues it considers applicable to the consideration of any particular Proposal: (1) Whether the Applicant's Proposal is sufficient to meet current and future community needs and interests, taking into account the cost to the Applicant of meeting such needs and interests; (2) The positive and negative impacts to the City and consumers of approving the Proposal; (3) The financial, technical, and legal qualifications of the Applicant and its ability to perform as promised; (4) Whether the proposed provision of Services or operation of the Facilities is economically feasible; (5) The projected technical performance of the proposed Facilities; (6) The impact of Proposal approval on competition and whether it will interfere with the City's desire to ensure universal availability of Services; (7) The Applicant's commitment to meeting the construction and physical requirements of the City; (8) The Applicant's commitment to abide by City conditions, Applicable Law, and the terms of any proposed Franchise; (9) The extent to which the Applicant has substantially complied with the Applicable Law and the material terms of any existing agreement it has with the City; (10) Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the proposed Franchise Area, also taking into consideration the impact of any competing Proposals;

(11) Whether there will be an unreasonable disruption or inconvenience to existing users, or any adverse effect on future use, of utility poles, public easements, and the Public Rights-of-Way, also taking into consideration the impact of any competing Proposals; and (12) Such other additional matters, both procedural and substantive, the City determines are relevant. (h) Cable System Proposal Considerations. If the Proposal involves a Cable System Franchise, the City shall, in addition to the considerations set forth in subsection (g) above, also consider, to the extent applicable: (1) Whether the Applicant has provided adequate assurance that it will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; (2) Whether the Proposed Franchise reasonably meets current and future community cable-related needs and interests, taking into account the cost to the Applicant of meeting such needs and interests; and (3) The issues identified in California Government Code § 53066.3 and other Applicable Law. (i) Board Disposition of Proposal. The Board may take action on a Proposal and any proposed Franchise by resolution or ordinance, as appropriate, and shall consider any applicable provisions of subsections (g) and (h) above. A Board determination to grant a new Franchise shall comply with all applicable sections of the Charter, including Sections 2.105 and 16.111. (j) Grantee's Acceptance. An Applicant shall file an unconditional written acceptance, in a form approved by the City Attorney, of any Board action approving a Proposal no later than twenty (20) City business days following such Board action. An Applicant's failure to submit an unconditional written acceptance within the twenty (20) day period shall constitute a rejection by the Applicant of the approval, unless time for acceptance is extended by motion of the Board. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) City Approval Required. A Franchise is a privilege that is in the public trust and personal and specific to the Grantee and is granted in consideration of the unique knowledge, skill and expertise Possessed by the Grantee. The City and other Subscribers shall not be required to accept performance of a Franchise from a third party who has not submitted its qualifications for review and approval by the Board pursuant to this Section. Except as otherwise expressly permitted herein pursuant to subsection (e) below, a Grantee shall not complete a Transfer unless a Proposal is submitted to the Board pursuant to Section 11.10 above ("Transfer Proposal") and the Board's approval is obtained by ordinance or resolution, as appropriate, and only then upon such terms and conditions as the Board deems necessary and proper, in its sole discretion, after conducting a review pursuant to Section 11.13(g) and Section 11.13(h) above. An Applicant, as defined in subsection (d) below, shall be given notice of its opportunity to be heard at a Board proceeding to consider the Transfer Proposal. An Transfer without the approval of the Board shall be considered to impair the City's assurance of due performance, and may, at City's sole option, be null and void and constitute a Material Breach of the Franchise. Notwithstanding anything to the contrary in this Chapter or a Franchise, until expressly determined otherwise by the Board, Facilities constructed, installed, operating, or being used to provide Services pursuant to a Franchise shall remain subject to the Franchise regardless of any Transfer, whether or not City approval was obtained. (b) Subsequent Transfers. The Board's approval of a Transfer Proposal in one instance shall not render unnecessary approval of any subsequent Transfer. (c) No Waiver. The City's approval of a Transfer Proposal does not constitute a waiver or release of any of the rights of the City against the Transferring Grantee under this Chapter, a Franchise, or Applicable Law, whether such rights arose before or after the date of approval of the Transfer Proposal. (d) Proposal Submission. For purposes of this Section, the Applicant shall be the proposed Transferee. At least one hundred twenty (120) calendar days prior to the contemplated effective date of a Transfer, the Applicant shall submit a Transfer Proposal to the Board for approval of the Transfer. (e) Exceptions. (1) Affiliate Transfers. Neither a Transfer Proposal or Board approval shall be required for a Transfer to an Affiliate of the Grantee ("Affiliate Transfer") where the Grantee and the proposed Transferee (the "Transfer Parties") meet the following requirements: (i) The Transfer Parties provide all instruments and legal documents effecting the Affiliate Transfer, a description of the nature of the Affiliate Transfer, complete information describing who will have direct and indirect ownership and Control of the Franchise and the Facilities after the Affiliate Transfer within one hundred and twenty (120) calendar days of the effective date of the Affiliate Transfer, and any additional information within ten (10) City business days of the Department's request, and (ii) The Transfer Parties meet the following conditions and provide the following assurances, guarantees, and warranties to the City in writing, expressly for the benefit of the City, in a form acceptable to the Department and the City Attorney, and no later ninety (90) calendar days before the effective date of the Affiliate Transfer, and: (a) The Grantee is not in Material Breach of the Franchise, this Code or a UCP and there have been no more than two minor breaches of the Franchise, this Code, or a UCP as determined pursuant to Article VIII of this Chapter, in the prior twelve (12) month period; and

(b) The proposed Transferee (1) has demonstrated to the City's reasonable satisfaction that it is reputable and capable, financially and otherwise, of performing each of the Grantee's obligations under the Franchise and any other documents to be assigned; and (2) is not forbidden by Applicable Law from transacting business or entering into contracts with the City; and (3) is subject to the jurisdiction of the courts of the State of California; and (4) is not in default with respect to any obligations that it has to City, and (c) Any Person guaranteeing the performance of the Grantee under the Franchise (or any other Person approved by the Department and the City Attorney) guarantees in a substantially similar manner the performance of the proposed Transferee; and (d) The Transfer Parties warrant that the Transfer is being made for a legitimate business purpose and not to deprive the City of the benefits of the Franchise, any other documents proposed to be Transferred, or other Applicable Law; and (e) The proposed Transferee warrants that it has read, accepts, and agrees to be bound by each and every term of the Franchise, any other documents to be Transferred, and other Applicable Law then in effect; and (f) The proposed Transferee agrees to assume all responsibility for all liabilities, acts, and omissions known and unknown of each of its predecessor Grantees for all purposes, including renewal of the Franchise, and to cure all defects; and (g) The proposed Transferee agrees that the Transfer will not permit it to take any position or exercise any right which could not have been exercised by the Grantee; and (h) The Transfer Parties warrant that the Transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the proposed Transferee (the warranty to be based upon comparing the burdens upon and resources that will be available to the proposed Transferee compared to the Grantee), or otherwise adversely affect the ability of the proposed Transferee to perform its commitments under the Franchise; and (i) The Transfer Parties warrant that the Transfer will not in any manner adversely affect the City or Subscribers (including by increasing rates); and (j) The proposed Transferee agrees that the Transfer does not affect any evaluation of its legal, financial, or technical qualifications that may arise under the Franchise or other Applicable Law after the Transfer, and does not directly or indirectly authorize any additional Transfers. (iii) The Transfer Parties notify the City within thirty (30) City business days that the Transfer is complete and provide copies to the Department of all fully executed documents reflecting the Transfer. (2) Transfer Proposal May Be Required. If the Transfer Parties are unable to provide information and assurances in a form acceptable to the Department and the City Attorney as provided in Subsection (e)(1)(ii) above, the Department, in its sole discretion, may require the immediate submission of a Transfer Proposal to the Board for its approval pursuant to this Section. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Initial Proceeding. Notwithstanding the provisions of Section 11.10 above, within six (6) months of the City's receipt of a written Cable System Franchise renewal notice pursuant to 47 U.S.C. Section 546(a), or upon the Director's own motion, the Director of the Department shall initiate a proceeding pursuant to that Section to identify the City's future cable-related community needs and interests and to review the performance of the Cable System Operator under its current Franchise. (b) Request for Proposal. Based upon the proceeding initiated pursuant to subsection (a) above, and such other investigation as the Department deems necessary, the Department shall prepare a report for the Board proposing findings regarding the future cable-related community needs and interests of the City and the past performance of the Operator of the Cable System Franchise. The report shall include a proposed request for proposal to renew the Cable System Franchise ("Request For Renewal Proposal") pursuant to terms and conditions consistent with the report's proposed findings. The Director shall serve the renewal Applicant with a copy of the report and proposed Request For Renewal Proposal concurrently with the Director's submission to the Board. The Board may adopt the findings of the report by resolution and urge the Director to issue the Request For Renewal Proposal. Issuance of such a Request For Renewal Proposal shall constitute closing of the proceeding. (c) Department Recommendation Regarding a Renewal Proposal. The Request For Renewal Proposal shall, among other things, establish the soonest date and the latest date on which the Department will accept a Renewal Proposal. The Director of the Department shall provide prompt public notice of receipt of a Renewal Proposal and shall evaluate the Renewal Proposal and forward a recommendation to the Board stating either: (1) that the Franchise should be renewed pursuant to the terms of the Renewal Proposal, or (2) that, as a preliminary matter, the Franchise should not be renewed, and the City should initiate an administrative proceeding pursuant to 47 U.S.C. Section 546(c) to evaluate the issues set forth in that Section. The Director's recommendation shall include a proposed ordinance or resolution consistent with the Director's recommendation. The Director shall serve the renewal Applicant with a copy of the recommendation and proposed ordinance or resolution concurrently with the Director's submission to the Board. (d) Board Action on the Director's Recommendation. The Board shall take action within the time required by 47 U.S.C. Section 546(c) by adopting either: (1) an ordinance to renew the Franchise pursuant to the terms set forth in the Renewal Proposal; or (2) a resolution making a Preliminary assessment that the Franchise should not be renewed on the terms set forth in the Renewal Proposal and urging the Director of the Department to commence an administrative proceeding pursuant to 47 U.S.C. Section 546(c).

(e) Administrative Proceeding. In the event the Board adopts a resolution making a Preliminary assessment that the Franchise should not be renewed pending the results of an administrative proceeding pursuant to 47 U.S.C. Section 546(c), the Director of the Department shall designate a hearing officer(s) and the Department shall administer the hearing consistent with the requirements of that Section. Within forty-five (45) City business days of the conclusion of the hearing, the hearing officer(s) shall issue a proposed recommendation to grant or deny the Renewal Proposal. The proposed recommendation shall be based upon the record of the proceeding and include a summary of the issues, the evidence presented, and findings and conclusions. It shall also include a proposed ordinance or resolution for the Board's consideration. Copies of the proposed recommendation shall be served upon the parties to the hearing by certified mail. A notice that a copy of the proposed recommendation is available for inspection during normal business hours shall be posted at the office of the Director of the Department. The proposed recommendation shall be a recommendation to the Director, and the Director shall adopt, modify, or deny such recommendation and prepare a final recommendation on the matter based upon the record of the proceeding. Such final recommendation shall be served upon the parties to the hearing and posted in the same manner as provided for the proposed recommendation herein. (f) Final Board Action. The final recommendation of the Director shall be a recommendation to the Board, and the Board shall act to adopt, modify, or deny such recommendation and issue a final decision on the matter based upon the record of the proceeding. A decision to deny the Renewal Proposal shall be by resolution. A decision to grant the Renewal Proposal shall be by ordinance. The Board's decision on the Renewal Proposal shall state the reasons therefor and shall be final and conclusive. (g) Suspension of Hearing. Nothing herein shall preclude the Director from suspending the proceeding in the event the Department and the Cable System Operator reach agreement regarding proposed renewal of the Franchise. In the event the Board does not approve such proposal, the Director may resume the proceeding. Board approval of the proposal shall constitute termination of the proceeding. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Revocation for Failure to Comply with the Franchise or this Chapter. In the event of a Material Breach of the Franchise or this Chapter the City may Revoke a Grantee's Franchise. (b) Revocation Recommendation. In the event the Department believes that a Grantee has committed a Material Breach of its Franchise, the Department shall notify the Grantee in writing that the Grantee must comply with any requirement with which the Grantee has failed to comply and pay any fines or damages owed as a result of the Material Breach. The Grantee shall have twenty (20) City business days to respond to the Department's notice. Thereafter, the Department may recommend Revocation of the Franchise to the Board if it concludes that the Grantee has committed a Material Breach and (1) The Material Breach is incurable (as in the case with fraud or attempted fraud); or (2) The Grantee has, after twenty (20) City business days of the written notice from the Department: (i) Failed to comply with the requirement; or (ii) If compliance will take more than twenty (20) City business days, even with the exercise of due diligence, failed to agree to a compliance plan acceptable to the City. (c) Board Proceeding Regarding Revocation. (1) The Board may consider the Department's Revocation recommendation and may hear any Persons interested therein, and may determine whether (i) Grantee committed a Material Breach; and (ii) if Grantee committed a Material Breach, whether such Material Breach was or should be excused. The Grantee shall be noticed and have an opportunity to be heard at a Board proceeding to consider the Department's Revocation recommendation. (2) If the Board determines Grantee has committed a Material Breach, but such Material Breach is excused, the Board may, by motion, direct the Grantee to comply with the City's requirements within such time, and upon such terms and conditions, as the Board deems reasonable. If the Board determines Grantee has committed a Material Breach and such Material Breach is not excused, the Board may, by ordinance, Revoke Grantee's Franchise. Nothing herein precludes the Board from setting additional time for Grantee to cure a Material Breach in lieu of Revocation. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Upon Termination of a Franchise, the City may, by ordinance, acquire ownership or effect a Transfer of the Facilities, or any portion thereof, for which the Grantee shall be compensated, consistent with Applicable Law. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Upon Termination of a Franchise, or abandonment of any portion of the Facilities, the City may require a Grantee, by Board resolution, to remove all or a portion of its Facilities at Grantee's expense and to restore City property as required by City and consistent with Applicable Law. If the Grantee fails to do so within a reasonable period of time, the City shall be entitled to remove the Facilities and restore City property on behalf of Grantee and charge the reasonable costs actually incurred, including but not limited to administrative costs, to Grantee. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

RECEIVER. The following events shall constitute a Material Breach of this Chapter or a Franchise: (1) Foreclosure or other judicial sale of any of the Facilities, equipment or property of a Grantee in the Franchise Area necessary for the provision of the Service for which the Franchise was granted where the Bona Fide Institutional Lender does not enter into an operating agreement for the use and operation of the Facilities with an Operator approved by the City in writing, in a form acceptable to the City Attorney; or (2) An assignment for the benefit of creditors; or (3) The appointment of a receiver or trustee to take over the business of the Grantee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

The City shall provide an Applicant the opportunity to protect from disclosure to the public any information contained in a Proposal that is proprietary, trade secret or is otherwise protected from disclosure under the California Public Records Act (Cal. Gov't Code Section 6254, et seq.), the City's Sunshine Ordinance (S.F. Admin. Code Chapter 67) and other Applicable Law by (a) permitting an Applicant to submit the information under seal; and (b) making reasonable efforts to notify an Applicant in advance if the City determines that it must disclose any information provided under seal or clearly and obviously identified as proprietary, trade secret, or otherwise protected from disclosure. In the event the City seeks to disclose, or receives a request for disclosure of such information, the City shall inform the affected Applicant either that the City will refuse to disclose the protected information or, if there is no proper basis for such refusal, that the City intends to disclose the information unless ordered otherwise by a court. Nothing herein shall require the City to take any action, or to refuse to release information where to do so would violate Applicable Law. The City's obligations under this Section are limited to confidential, trade secret or otherwise protected information that is provided to the City in a sealed envelope and identified on the envelope and on the face of each page of the document as proprietary, trade secret or otherwise protected from disclosure, and that is accompanied by a written certification from the Applicant that it believes, in good faith, that such information is protected from disclosure. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)