Ventura Municipal Code Art. 2 Applications for Cable Franchise Grants, Renewals, Modifications or Transfers

An application must be filed with the city for:

A. Grant of an initial cable franchise;

B. Renewal of a cable franchise; or

C. Transfer of a cable franchise. (Ord. No. 99-38, § 4, 10-18-99)

An application will be in a form prescribed by the director, any applicable request for proposals, and/or applicable law. A person or franchisee must file a signed application together with six copies of the application with the director; provided, however, that for transfer applications, if federal law establishes the number of copies to be filed, the federal law will control. All applications accepted for filing will be available for public inspection unless otherwise provided by applicable law. (Ord. No. 99-38, § 4, 10-18-99)

Applications for an initial cable franchise or a renewal cable franchise other than a proposal submitted pursuant to 47 U.S.C. Section 546(h) will contain all of the following information:

A. The names and addresses of persons authorized to act on behalf of the applicant with respect to the application;

B. The name and address of the applicant and identification of applicant’s ownership and control, including the names and addresses of the 10 largest holders of an ownership interest in the applicant and all persons in the applicant’s direct ownership chain; the names and addresses of all persons owning 10 percent or more in the applicant and in persons in the applicant’s direct ownership chain; the persons controlling the applicant and persons in the applicant’s direct ownership chain; and all of applicant’s officers and directors and persons in the applicant’s direct ownership chain;

C. A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system, including identification of key personnel;

D. A demonstration of the applicant’s legal qualifications to construct and/or operate the proposed cable system;

E. A statement prepared by an independent certified public accountant or independent financial institution regarding the applicant’s financial ability to complete the construction and operation of its proposed cable system;

F. A description of the applicant’s prior experience in cable system ownership, construction, and operation;

G. Identification of California cities and counties where the applicant or its principals own, or have an interest in, a cable franchise. If an applicant does not have a cable franchise in California, it will provide the information for its operations in other states;

H. Identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area’s boundaries;

I. A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities;

J. Where applicable, a plan for constructing the proposed cable system, including estimated plant mileage and location; proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;

K. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

L. A demonstration of how the applicant will reasonably meet the community’s future cable-related needs and interests, including descriptions of the capacity, facilities, and support for public, educational, and governmental use of the cable system (including institutional networks);

M. Pro forma financial projections for the proposed cable franchise term, including a statement of projected income and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;

N. If the applicant proposes to provide cable service to an area already served by an existing cable franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild, and the ability of public rights-of-way and other property that would be used by the applicant to accommodate an additional system;

O. Any other information as may be reasonably necessary to demonstrate compliance with the requirements of applicable law; and

P. An affidavit or declaration of the applicant or its authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements of applicable law. (Ord. No. 99-38, § 4, 10-18-99)

Applicants for the grant of a cable franchise, renewal of a cable franchise, or approval of the transfer of a cable franchise will pay to the city a sum of money equal to the sum of money sufficient to reimburse the city for all expenses incurred by it in connection with granting the cable franchise, renewing the cable franchise or approving a transfer of the cable franchise pursuant to the provisions of this code. A cable franchise may establish the timing and procedures for making the payments required by this section. Unless a cable franchise grant provides otherwise, such payment will be made within 30 days after the city furnishes the franchisee with a written statement of such expenses. Nothing herein prevents a franchisee from claiming that a particular application fee, as applied, violates 47 U.S.C. Section 542. Provided further, that this provision will not apply with respect to a renewal application where the applicant invoked the provisions of 47 U.S.C. Section 546(a) before January 1, 1999. (Ord. No. 99-38, § 4, 10-18-99)

Except as may be prohibited by 47 U.S.C. Sections 546(a) through (g), in order to be legally qualified to obtain an initial or renewal cable franchise or a transfer of a cable franchise:

A. The applicant must be willing to comply with the provisions of applicable law and to comply with requirements of the cable franchise grant.

B. The applicant must not have submitted, within the previous three years, an application for an initial or renewal cable franchise to the city, that was ultimately denied after any applicant appeal, because the applicant failed to propose a cable system meeting the community’s cable-related needs and interests.

C. The applicant must not have had any cable franchise validly revoked by any franchising authority within three years preceding the submission of the application.

D. Applicable law must give the applicant authority to operate a cable system.

E. An applicant must have, or show that it is qualified to obtain, any authorizations or waivers required by applicable law to operate its proposed cable system.

F. The city will not grant a cable franchise if applicant, during the 10 years before submitting the application, was convicted of a crime impugning its truthfulness and/or ability to abide with its legal obligations.

G. The city will not grant a cable franchise if the applicant files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

H. However, an applicant that otherwise would not be qualified to hold a cable franchise under this code may include additional information demonstrating to the city that the particular circumstances surrounding its act or omission; 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; and/or the remoteness of the matter from the operation of cable systems would make it inappropriate for the city to deny it a cable franchise. (Ord. No. 99-38, § 4, 10-18-99)

A. A person may apply for a cable franchise by submitting a request for issuance of a request for proposals (“RFP”) and requesting an evaluation of its application.

B. Upon receiving an RFP request, the city will issue an RFP and proposed cable franchise grant. However, before issuing an RFP, the city may commence a proceeding to identify the future cable-related needs and interests of the community. The RFP will be mailed to the person requesting its issuance and any existing franchisee, and made available to any other interested party.

C. An applicant will respond to the RFP within the time directed by the city, providing the information and material set forth in this article. The procedures, instructions, and requirements set forth in the RFP will be followed by each applicant as if set forth and required herein.

D. The city or its designee may seek additional information from any applicant and establish deadlines, not less than 20 days from issuing a request, for submitting such information.

E. An existing franchisee may file comments regarding any applicant and their application. (Ord. No. 99-38, § 4, 10-18-99)

When evaluating an application, the city may consider the following and such matters as it is required or entitled to consider under applicable law:

A. Whether the applicant substantially complied with applicable law and the material terms of any existing city cable franchise grant;

B. Whether the quality of the applicant’s service under any existing city cable franchise, including, without limitation, signal quality, response to customer complaints, and billing practices, is reasonable in light of community needs and interests;

C. Whether the applicant has the financial, technical, and legal qualifications to hold a cable franchise;

D. Whether the application satisfies minimum requirements established by the city to meet the community’s future cable-related needs and interests, taking into account the cost of meeting such needs and interests;

E. Whether the applicant will provide adequate public, educational, and governmental use capacity, facilities, or financial support;

F. Whether issuing a cable franchise is in the public interest considering the immediate and future effect on public rights-of-way, public property, and private property used by the cable system, including the extent to which planned installation or maintenance would require replacing property or disrupting property, public services, or use of public property; the effect of granting an overbuild cable franchise on the ability of any existing franchisee to meet the community’s cable-related needs and interests; and the comparative superiority or inferiority of competing applications; and

G. Whether approving the application would eliminate or reduce competition of cable service. (Ord. No. 99-38, § 4, 10-18-99)

A. Before deciding whether to grant a cable franchise, the city may hold one or more public hearings or implement other procedures for obtaining public input.

B. The city also may grant or deny a cable franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP.

C. If the city finds that it is in the public interest to issue a cable franchise an ordinance will be adopted granting a cable franchise to the applicant, and the applicant will be entitled to exercise all of the franchise rights provided for therein upon its acceptance of the terms and conditions of such ordinance in writing.

D. If the city denies a cable franchise, it will issue a written decision explaining its denial. (Ord. No. 99-38, § 4, 10-18-99)

Requests for renewal under the Cable Act will be received and reviewed in a manner consistent with 47 U.S.C. Section 546. It is the proposal submitted by a franchisee under 47 U.S.C. Section 546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. Section 546(a), that must contain the information required below. (Ord. No. 99-38, § 4, 10-18-99)

If neither a franchisee nor the city activates in a timely manner, or can activate the renewal process set forth in 47 U.S.C. Sections 546(a) through (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. Section 546(h), the provisions of this article will apply and a renewal request will be evaluated using the same criteria as any other request for a cable franchise. (Ord. No. 99-38, § 4, 10-18-99)

If the provisions of 47 U.S.C. Sections 546(a) through (g) are properly invoked, the city may:

A. Conduct a proceeding to review the franchisee’s past performance and identify future cable-related community needs and interests;

B. Issue an RFP;

C. Establish deadlines, which deadlines will not be less than 45 days after issuing the RFP, and procedures for responding to the RFP;

D. Provide public notice and opportunity to comment after franchisee submits a renewal proposal;

E. Seek additional information from the franchisee, related to the city’s evaluation of the proposal given the standards for review of that proposal under applicable law;

F. Establish deadlines, which deadlines will not be less than 20 days after issuing the request, for submitting additional information; and

G. After receiving the application responding to the RFP, and any additional information required, the city council may determine, by resolution, that the cable franchise should be renewed, or make a preliminary assessment that the cable franchise should not be renewed. (Ord. No. 99-38, § 4, 10-18-99)

If the city council preliminarily decides that the cable franchise should not be renewed, and the franchisee notifies the city, either in its RFP response or within 30 business days of the preliminary decision, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the city will commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. (Ord. No. 99-38, § 4, 10-18-99)

If the city council preliminarily decides to grant renewal, the city will prepare a proposed ordinance that incorporates, as appropriate, the commitments made by the franchisee in the application.

A. If the franchisee concurs in the proposed ordinance, it will be agendized for additional city council action. If adopted by the city council, the cable franchise will be renewed. However, the cable franchise grant will not become effective until accepted by the franchisee in writing.

B. If the cable franchise grant is not accepted and ratified within the time limits established by 47 U.S.C. Section 546(c)(1), then renewal is deemed preliminarily denied, and an administrative proceeding will be commenced if the franchisee requests it within 30 business days of the expiration of the time limit established by 47 U.S.C. Section 546(c)(1), unless the time limit is extended by mutual agreement of the city and the franchisee. (Ord. No. 99-38, § 4, 10-18-99)

If an administrative hearing is commenced pursuant to 47 U.S.C. Section 546(c), the franchisee’s application will be evaluated considering such matters as may be considered consistent with applicable law. (Ord. No. 99-38, § 4, 10-18-99)

The following procedures will apply:

A. The proceeding will be conducted with all deliberate speed in accordance with the city procedures adopted by city council resolution.

B. The city council may appoint an administrative hearing officer or officers. The entity conducting the administrative hearing is referred to as “hearing officer.”

C. The hearing officer will establish a schedule for proceeding. The hearing officer has the authority to require any person to produce evidence as the interests of justice may require. Any order regarding the production of evidence may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing.

D. The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by nonparties is not authorized except to the extent required by the Cable Act.

E. Unless the parties agree otherwise, the franchisee will present evidence first, and the city will present evidence second.

F. Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. Section 546(a) will be, for purposes of the administrative hearing, regarded no differently than any other evidence. The city and the franchisee will be afforded fair opportunity for full participation in the administrative hearing, including the right to introduce evidence (including evidence related to issues raised in the proceeding under 47 U.S.C. Section 546(a)), to require the production of evidence, and to question witnesses.

G. Following completion of any hearing, the hearing officer will require the parties to submit proposed findings of fact with respect to the matters that the city is entitled to consider in determining whether renewal ought to be granted. Based on the entire record of the administrative hearing, the hearing officer will then prepare written findings, and submit those findings to the city council and to the parties (unless the hearing officer is the city council, in which case the written findings will constitute the final decision of the city).

H. If the hearing officer is not the city council, the parties will have 30 days from the date the findings are submitted to the city council to file exceptions to those findings. The city council will thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the city council will be provided promptly to the applicant.

I. Nothing herein will be read to impair any renewal protections afforded by federal or state statutes. (Ord. No. 99-38, § 4, 10-18-99)

The franchisee is not prohibited from submitting an informal renewal application pursuant to 47 U.S.C. Section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. Section 546(h). If such an informal renewal application is granted, then the steps specified in this article need not be taken. (Ord. No. 99-38, § 4, 10-18-99)

A request for modification may be submitted pursuant to 47 U.S.C. Section 545 and will be considered in accordance with the requirements of that section. The application for modifying the cable franchise will include, at minimum, the information required by this section. The city may request additional information and the applicant may respond to the requests:

A. The application must state the specific modification requested;

B. The application must demonstrate that the requested modification meets the standards set forth in 47 U.S.C. Section 545;

C. The application will contain any other information that the applicant believes is necessary for the city to make an informed determination; and

D. An affidavit or declaration of the applicant or applicant’s authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law must accompany the application. (Ord. No. 99-38, § 4, 10-18-99)

Transfers will not occur without the city’s prior written approval, except where a request for approval or sale is subject to a deadline for action under 47 U.S.C. Section 537, and the city fails to act by the time required under 47 U.S.C. Section 537. Transfer without the city’s prior written approval will be considered to impair the city’s assurance of due performance. The granting of approval for a transfer in one instance will not render unnecessary approval of any subsequent transfer. (Ord. No. 99-38, § 4, 10-18-99)

A. Franchisee will promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the franchisee will promptly notify the city that such a transfer has occurred.

B. At least 120 calendar days before the contemplated effective date of a transfer, the franchisee will submit to the city an application for approving the transfer. Such application will provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee. (Ord. No. 99-38, § 4, 10-18-99)

The following information must be included in the application; provided, that a franchisee is not required to duplicate information that it submits to the city to comply with its obligations under applicable law:

A. All information and forms required under applicable law;

B. All information required in this article for cable franchise grants, renewals, modifications, or transfers;

C. A detailed statement of the corporate or other business entity organization and management structure of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;

D. Any contracts or other documents that relate to the proposed transaction, including all documents, schedules, exhibits, or the like referred to therein and all material facts concerning the effect of the transfer on the financial position of the cable system and the franchisee;

E. Any shareholder reports or filings with the Securities and Exchange Commission (“SEC”) that discuss the transaction;

F. Complete information regarding any potential impact of the transfer on subscriber rates and service;

G. A brief summary of the proposed transferee’s plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system; and

H. Legal, technical and financial qualifications of the prospective transferee. (Ord. No. 99-38, § 4, 10-18-99)

The city may require the franchisee, or any prospective transferee, to provide additional information as it may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned. The franchisee and any prospective transferees will assist the city in any such inquiry and provide information requested. Failure to do so may result in the request for transfer being denied. (Ord. No. 99-38, § 4, 10-18-99)

A. In determining whether to grant, deny, or grant subject to conditions an application for a transfer of a cable franchise, the city may consider:

1. The legal, financial, and technical qualifications of the transferee to operate the cable system;

2. Any potential impact of the transfer on subscriber rates or services;

3. Whether the incumbent franchisee is in compliance with its cable franchise and applicable law and, if not, the proposed transferee’s commitment to cure such noncompliance;

4. Whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and

5. Whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the city’s interest under the cable franchise, or applicable law.

B. Requests for approval of a transfer will not be unreasonably denied. (Ord. No. 99-38, § 4, 10-18-99)

Any transfer without the city’s prior written approval is ineffective, will make a cable franchise subject to revocation and to any other remedies available under the cable franchise grant or applicable law, except where a request for approval or sale is subject to a deadline for action under 47 U.S.C. Section 537 and the city fails to act by the time required under 47 U.S.C. Section 537. (Ord. No. 99-38, § 4, 10-18-99)

The city will not grant a transfer application unless the transferee agrees in writing that it will abide by and accept all terms of the cable franchise grant and applicable law, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under the cable franchise grant and applicable law for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part. (Ord. No. 99-38, § 4, 10-18-99)

The city’s prior consent is not necessary for:

A. Pledges in trust or mortgages of the assets of the system to secure the construction, operation or repair of the cable system;

1. Arrangements may not be made that would prevent the franchisee or any successor from complying with the cable franchise and applicable law;

2. Arrangements may not permit a third party to succeed to the interest of franchisee, or to own or control the cable system, without the city’s prior consent;

3. Any mortgage, pledge, or lease will be subject and subordinate to the rights of the city under the cable franchise and/or applicable law.

B. A cable franchise grant may except transfers to an affiliate or categories of affiliates of a franchisee from the requirements of this section where:

1. The transferor notifies the city of the transfer at least 60 days before it occurs, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the cable system after the transfer;

2. The transferee warrants that it has read, accepts, and agrees to be bound by each and every term of the cable franchise and related amendments, regulations, ordinances, and resolutions then in effect;

3. The transferee agrees to assume all responsibility for all liabilities, acts, and omissions known and unknown of its predecessor franchisees for all purposes, including renewal;

4. The transferee agrees that the transfer will not permit it to take any position or exercise any right which could not have been exercised by its predecessor franchisees;

5. The transferee warrants that the transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the transferee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the transferee to perform;

6. Both the transferor and transferee warrant that the transfer will not in any way adversely affect the city or subscribers (including by increasing rates);

7. The transferor notifies the city that the transfer is complete within 30 business days of the date the transfer is complete; and

8. The transferee agrees that the transfer does not affect any evaluation of its legal, financial, or technical qualifications that may occur under the cable franchise or applicable law after the transfer, and does not directly or indirectly authorize any additional transfers. (Ord. No. 99-38, § 4, 10-18-99)

Approval by the city of a transfer of a cable franchise does not constitute a waiver or release of any of the rights of the city under a cable franchise grant or applicable law, whether arising before or after the date of the transfer. (Ord. No. 99-38, § 4, 10-18-99)