A telecommunications franchise shall be required of any Carrier who desires to occupy public rights-of-way of the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the City Manager or his designee which shall include the following information:
(A) The identity of the applicant, including all affiliates of the applicant doing business in the state.
(B) A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities within the city.
(C) A description of the transmission medium that is being used or will be used by the applicant to offer or provide such telecommunications services within the city.
(D) Preliminary engineering plans, specifications and a network map of the facilities to be located within the public rights-of-way in the city, including copies in hard copy and computerized format specified by the city and all in sufficient detail to identify:
(1) The location and route requested for applicant's proposed telecommunications facilities;
(2) The location of all aboveground and underground public utility, telecommunication, cable, water, sewer, storm drainage and other facilities in the public rights-of-way along the proposed route;
(3) The location(s), if any, for interconnection with the telecommunications facilities of other Carriers;
(4) The specific trees, structures, improvements, facilities and obstructions, if any, the applicant proposes to temporarily or permanently remove or relocate.
(E) If the applicant is proposing to install aboveground facilities, to the extent that the applicant will be using utility poles, evidence from the pole owner that usable space is available for locating the applicant's telecommunications facilities on existing poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a “make ready” schedule for completion.
(F) If the applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, provide information in sufficient detail to identify:
(1) The excess capacity currently available in such ducts or conduits before installation of the applicant's telecommunications facilities;
(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of the applicant's telecommunications facilities.
(G) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights-of-way:
(1) The location proposed for the new ducts or conduits;
(2) The excess capacity that will exist in such ducts or conduits after the installation of applicant's telecommunications facilities.
(H) A preliminary construction schedule and completion date.
(I) Financial statements prepared in accordance with generally accepted accounting principles
demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.
(J) Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.
(K) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed.
(L) Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.
(M) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease.
(N) A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
(O) A description of the applicant's access and line extension policies.
(P) The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Any applicant for a franchise pursuant to this chapter shall pay an application and review fee in an amount to be determined by resolution of the City Council. This section shall not apply to a telecommunication utility which provides only local exchange access.
(B) The application and review fee shall be deposited with the city as part of the application filed pursuant to § 115.071.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed below.
(B) If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are:
(1) The financial and technical ability of the applicant.
(2) The capacity of the public rights-of-way to accommodate the applicant's proposed facilities.
(3) The capacity of the public rights-of-way to accommodate additional utility and telecommunications facilities if the franchise is granted.
(4) The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.
(5) The public interest in minimizing the cost and disruption of construction within the public rights-of-way.
(6) The availability of alternate routes or locations for the proposed facilities.
(7) Applicable federal and state telecommunications laws, regulations and policies.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No franchise granted under this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a grant to use and occupy the public rights-of-way for the limited purposes and term, and upon the conditions stated in the franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this title shall be in effect for a term of five years.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchise Grantee, and the public rights-of-way necessary to serve such areas.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Each franchise granted under this chapter is subject to the city's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this chapter shall prohibit the city and a Grantee from agreeing to the compensation to be paid.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Conditions for amending a franchise:
(1) A new application and grant shall be required of any Carrier that desires to extend or locate its telecommunications facilities in public rights-of-way of the city which are not included in a franchise previously granted under this chapter.
(2) If ordered by the city to locate or relocate its telecommunications facilities in public rights-of-way not included in a previously granted franchise, the city shall grant an amendment without further application.
(B) A new application and grant shall be required of any Carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
A Grantee that desires to renew its franchise under this chapter shall, not less than 90 days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information:
(A) The information required pursuant to § 115.071 that has not previously been provided to the city in connection with the Grantee's existing franchise agreement.
(B) Any information required pursuant to the franchise agreement between the city and the Grantee.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Within 90 days after receiving a complete application under § 115.071, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards.
(1) The financial and technical ability of the applicant.
(2) The continuing capacity of the public rights-of-way to accommodate the applicant's existing facilities.
(3) The applicant's compliance with the requirements of this chapter and the franchise agreement.
(4) Applicable federal, state and local telecommunications laws, rules and policies.
(B) If the renewal application is denied, the written determination shall include the reasons for non-renewal.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No franchise shall be renewed until any ongoing violations or defaults in the Grantee's performance of the agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the Grantee has been approved by the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Ownership or control of a majority interest in a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Grantee, by operation of law or otherwise, without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent.
(A) Grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of the franchise.
(B) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.
(C) Unless otherwise provided in a franchise agreement, the Grantee shall reimburse the city for all direct and indirect fees, costs, and expenses reasonably incurred by the city in considering a request to transfer or assign a telecommunications franchise.
(D) Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the city under this section or pursuant to a franchise agreement shall be void and is cause for revocation of the grant.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the Grantee, of the ownership or working control of a telecommunications franchise, of the ownership or working control of affiliated entities having ownership or working control of the Grantee or of a telecommunications system, or of control of the capacity or bandwidth of the Grantee's telecommunication system, facilities or substantial parts of such capacity or bandwidth, shall be considered an assignment or transfer requiring city approval pursuant to § 115.0082. Transactions between affiliated entities are not exempt from city approval.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
A franchise to use or occupy public rights-of-way of the city may be revoked for the following reasons:
(A) Construction or operation in the city or in the public rights-of-way of the city without a franchise grant of authorization.
(B) Construction or operation at an unauthorized location.
(C) Unauthorized substantial transfer of control of the Grantee.
(D) Failure to comply with sections of this chapter regarding sale, transfer or assignment of a telecommunications franchise or system.
(E) Unauthorized sale, assignment or transfer of the Grantee's franchise assets, or a substantial interest in the franchise.
(F) Misrepresentation by or on behalf of a Grantee in any application to the city.
(G) Abandonment of telecommunications facilities in the public rights-of-way.
(H) Failure to relocate or remove facilities as required in this title.
(I) Willful or continued failure to pay taxes, compensation, fees or costs when and as due the city unless subject to a bona fide dispute.
(J) Insolvency or bankruptcy of the Grantee.
(K) Violation of a material provision of this chapter.
(L) Violation of a material term of a franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Pursuant to § 115.084, in the event that the city believes that grounds exist for revocation of a franchise, the city shall give the Grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Grantee a reasonable period of time not exceeding 30 days to furnish evidence:
(A) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
(B) That rebuts the alleged violation or noncompliance.
(C) That it would be in the public interest to impose some penalty or sanction less than revocation.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
In the event that a Grantee fails to provide evidence reasonably satisfactory to the city as provided in § 115.087, the City Manager or his designee shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the Grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
If persuaded that the Grantee has violated or failed to comply with material provisions of this chapter, or of a franchise agreement, the City Council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
(A) Whether the misconduct was egregious.
(B) Whether substantial harm resulted.
(C) Whether the violation was intentional.
(D) Whether there is a history of prior violations of the same or other requirements.
(E) Whether there is a history of overall compliance.
(F) Whether the violation was voluntarily disclosed, admitted or cured.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
All Grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)