Tehama Municipal Code Art. III Franchise Application, Acceptance and Transfer

The ordinance codified in this chapter itself grants no authority to operate a cable communications system to any person(s). Such grants are made only by the adoption of a separate ordinance awarding a specific franchise to an applicant who has complied with the provisions of this chapter.

(Ord. 1337 §5.1.1, 1986)

The board may, by advertisement or otherwise, solicit applications for cable communications system franchises, and may determine and fix any date upon, after or before which the same shall be received by the county, or the date before which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions or limitations respecting the soliciting, calling for, making and receiving of such applications.

(Ord. 1337 §5.1.3, 1986)

Each application for a franchise to construct, operate or maintain any cable communications system(s) in the county shall be filed with the county clerk, and shall contain or be accompanied by the following, as a minimum:

A. The name, address and telephone number of the applicant;

B. A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to the following, and to whatever extent required by the county:

1. The names, residence and business addresses of all officers, directors and associates of the applicant,

2. The names, residence and business addresses of all officers, persons and entities having, controlling, or being entitled to have control of, one percent or more of the ownership of the applicant, and the respective ownership share of each person or entity,

3. The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary, and the areas served thereby,

4. A detailed description of all previous experience of the applicant in providing cable television communications system service in related or similar fields,

5. A detailed and complete financial statement of the applicant,

6. A statement identifying, by place and date, any and all cable television franchises awarded the applicant, or its parent or subsidiary; the status of such franchises with respect to completion thereof; the total cost of such systems; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;

C. A thorough, detailed description of the proposed cable communications system and plan of operation of the applicant, which shall include, but not be limited to, the following:

1. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational through the entire area to be served,

2. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those adopted by the Rules and Regulations of the FCC (contained in Title 47, Subpart K, Sections 76.601, et seq. 9), and as augmented herein and modified by the franchise awarded,

3. A detailed estimate of the cost of constructing the applicant's proposed system,

4. A copy of the form of any agreement, undertaking or other instrument proposed to be entered into between the applicant and any subscriber,

5. A detailed statement setting forth in its entirety 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, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise,

6. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers, and all rates and charges as to each of said classifications, including installation charges and service charges;

D. A copy of any agreement existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility, including but not limited to poles, lines or conduits, within the county and/or adjacent areas;

E. Any other details, statements, information or references pertinent to the subject matter of such application, which shall be required or requested by the county board of supervisors, or by any provision of any other ordinance of the county;

F. An application fee, in a sum to be set by the county, which shall be in the form of cash, certified or cashier's check or money order, to pay the costs of studying, investigating and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part, except to the extent that such fee exceeds the actual costs incurred by the county in studying, investigating and otherwise processing the application; provided, that any applicant who shall deliver to the county clerk a written withdrawal of or cancellation of any application following the date such application is received by the county clerk, shall be entitled to have returned and refunded the sum of fifty percent of the fee, less any actual costs or expenses incurred by the county by reason of such applications.

(Ord. 1337 §5.1.2, 1986)

Upon receipt of any application for franchise, the board shall refer same to the cable communications advisory committee, if such exists, which shall prepare a report and make recommendations respecting such application, and cause the same to be completed and filed with the board within one hundred twenty days.

(Ord. 1337 §5.1.4, 1986)

In making any determinations hereunder as to any application, the board shall give due consideration to the character and quality of the service proposed, rates to subscribers, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other consideration deemed pertinent by the board for safeguarding the interest of the county and the public. The board, in its discretion, shall determine the award of any franchise on the basis of such considerations, and without competitive bidding.

(Ord. 1337 §5.1.5, 1986)

If the board, after public hearing, shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected.

(Ord. 1337 §5.1.6, 1986)

If the board shall determine to further consider the application, the following shall be done:

A. The board shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.

B. The board shall give notice of its intention to consider the granting of such a franchise, stating the names of the proposed grantee, and that copies of the proposed franchise may be reviewed at the office of the county clerk, fixing and setting forth a time and public place certain when and where interested parties may inspect all the bona fide applications, fixing and setting forth a day, hour and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the board and be heard, and directing the county clerk to publish notice of said resolution's adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the county.

(Ord. 1337 §5.1.7, 1986)

At the time set for the hearing, or at any adjournment thereof, the board shall proceed to hear all written protests. Thereafter, the board shall make one of the following determinations:

A. That such franchise be denied; or

B. That such franchise be granted, upon such conditions as the board deems appropriate, which conditions may include, on a nottoexceed basis, where in accordance with applicable federal and state regulations and laws:

1. Charges for installation,

2. Subscriber rates,

3. Service rates for separate classifications of service, such as additional connections.

(Ord. 1337 §5.1.8, 1986)

If the board shall determine that a franchise be denied, such determination shall be expressed by resolution; if the board shall determine that a franchise be granted, such determination shall be expressed by ordinance granting a franchise to the applicant. The action of the board shall be final and conclusive.

(Ord. 1337 §5.1.9, 1986)

The grantee, within thirty days of receipt of written notification by grantor following franchise award, upon initial franchise award and any renewal thereof, shall pay to the county a sum of money to reimburse the county for all expenses incurred by the provisions of this chapter regarding the franchise award or renewal process, beyond those defrayed by application fees. The county shall furnish grantee a statement of such expenses with the notification.

(Ord. 1337 §5.1.10, 1986)

A. No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof, together with the bond and insurance policies and deposits required by Sections 6.20.410 through 6.20.440 of this chapter, shall have been filed with the county clerk. Written acceptance, which shall be in the form and substance approved by the county counsel, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this chapter and in such franchise, or otherwise specified as herein and therein provided.

B. The written acceptance shall be filed by the grantee within twenty days after the effective date of the ordinance granting the franchise. In the event this day falls on a nonworking day, then the next working day will suffice.

(Ord. 1337 §§5.3.1, 5.3.2, 1986)

In default of the filing of such written acceptance, as herein required, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the grantee shall not be received nor filed by the county clerk. The grantee shall have no rights, remedies or redress in the premises, unless and until the board, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the board may impose.

(Ord. 1337 §5.3.3, 1986)

In any case, and in any instance, all rights, remedies and redress which may or shall be available to the county shall at all times be available to the county, and shall be preserved and maintained, and shall continuously exist in and to the county, and shall not be in any manner or means modified, abridged, altered, restricted or impaired by reason of any of these premises, or otherwise.

(Ord. 1337 §5.3.4, 1986)

Any franchise granted and accepted under this chapter shall be in lieu of any and all other conflicting rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee, of or pertaining to the construction, operation or maintenance of any cable communications system(s) in the county.

(Ord. 1337 §5.3.5, 1986)

A. Any such franchise shall be a privilege to be held in personal trust by the grantee. The franchise shall not be sublet or assigned, nor shall any rights or privileges therein granted or authorized be leased, assigned, mortgaged, sold, transferred or disposed of, either in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person(s), except the grantee, either by act of the grantee or by operation of law, without the consent of the county expressed by ordinance.

B. The grantee shall promptly notify the county of any proposed change in, or transfer of, or acquisition by any other party, of control of the grantee with respect to which the consent of the grantor is required, pursuant to subsection A of this section. Such change of control shall make this franchise subject to revocation unless and until the board has consented thereto.

C. Consent of the board shall not be granted until it has examined the proposed assignee's legal, financial, technical, character and other qualifications to construct, operate and maintain a cable communications system in the county, and has afforded all interested parties notice and an opportunity to be heard on the question. The grantee shall assist the county in any such examination.

D. The said consent of the board may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the board and this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed fifty percent of the market value of the property used by the grantee in the conduct of the cable communications system, prior consent of the board shall be required for such transfer.

E. In the event that grantee is a corporation, prior approval of the board shall be required where there is an actual change in control, or where ownership of more than fifty percent of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the board shall constitute a failure to comply with a provision of this chapter, within the meaning of Section 6.20.130.

F. Any such transfer or assignment shall be made by an instrument in writing, which shall include acceptance of all terms and conditions of the franchise, a duly executed copy of which shall be filed with the county clerk within thirty days after any such transfer or assignment.

(Ord. 1337 §5.4, 1986)

A. The service provided by the grantee under a franchise may be required to continue uninterrupted beyond the expiration or cancellation of a franchise, but not for longer than twentyfour months thereafter. To assure continued service to subscribers, the county shall issue a request for proposals ("RFP"), for a replacement franchise, not later than twentyfour months prior to expiration of a franchise. The request for proposals shall include the minimum acceptable level of system capability, services, rates, access, etc., as determined by the county, to meet the needs of the Tehama County community.

B. If the county deems grantee's past performance to warrant consideration for franchise renewal, then the county shall provide grantee first right of refusal in accepting the franchise offered. However, if the county deems grantee's past performance to not warrant such consideration, or if grantee elects to not accept the franchise offered under its first right of refusal, then the county may consider other applicants with the understanding that no further consideration will be given to awarding the incumbent grantee a replacement franchise.

(Ord. 1337 §5.2.1, 1986)

Notwithstanding the provisions of Section 6.20.350, the grantee may submit a proposal for the renewal of a franchise at any time, and the grantor may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time, including after proceedings pursuant to Sections 6.20.350 through 6.20.390 have commenced. The provisions of Section 6.20.350, at the county's sole discretion, shall not apply to a decision to grant or deny a proposal under this section. The denial of a renewal pursuant to this section shall not affect action on a renewal proposal that is submitted in accordance with Section 6.20.350.

(Ord. 1337 §5.2.2, 1986)

Franchises will normally not be renewed for periods in excess of fifteen years, and may be renewed prior to expiration of an existent franchise in accordance with the procedures set forth in Section 6.20.350 above.

(Ord. 1337 §5.2.3, 1986)

If the county elects to provide the incumbent grantee the first right of refusal addressed in Section 6.20.350 above, then the RFP issued by the county shall advise other potential applicants accordingly, and will provide for the full return of any application fee received from an applicant other than the incumbent in the event the incumbent accepts the franchise offered.

(Ord. 1337 §5.2.4, 1986)

If the county, after public hearing, elects to not consider the incumbent grantee for a replacement franchise, then it shall do so by resolution prior to issuance of an RFP for the replacement franchise. In such an event, the county may purchase or require any successor grantee to purchase grantee's facilities for a cost not to exceed its fair market value, with a reduction for any uncompensated damages incurred by the county in connection with grantee's operation, fair market value to be determined in accordance with the process set forth in Section 6.20.140 of this chapter. The parties shall divide expenses of arbitration, if any, evenly among themselves.

(Ord. 1337 §5.2.5, 1986)