3. Competitive Cable Franchise Application Process
COMPETITIVE CABLE FRANCHISE APPLICATION PROCESS
16-3-1: LEGISLATIVE INTENT
16-3-2: INSTRUCTIONS AND DEFINITIONS
16-3-3: REQUISITE INFORMATION
16-3-4: LEGAL QUALIFICATIONS
16-3-5: FINANCIAL QUALIFICATIONS
16-3-6: TECHNICAL QUALIFICATIONS, PLANNED SERVICES AND OPERATIONS
16-3-7: AFFIDAVIT OF APPLICANT
16-3-8: OPEN RECORDS/CONFIDENTIALITY
16-3-9: APPLICATION FEE
16-3-10: REVIEW PROCESS
16-3-11: PUBLIC HEARING
16-3-12: REVIEW CRITERIA
16-3-13: NON-CFAR FRANCHISE APPLICATIONS
16-3-1: LEGISLATIVE INTENT: (3370)
The City Council does hereby find, determine and declare as follows:
(A) The “Competitive Franchise Application Rule” (CFAR), adopted on December 20, 2006, by the Federal Communications Commission (FCC) provides that local franchising authorities may require application information from an applicant for a competitive cable franchise, in addition to the information set forth in the CFAR.
(B) In order to comprehensively evaluate whether or not to grant a competitive cable franchise, the City will require certain information from applicants in addition to the information required by the CFAR.
(C) To ensure compliance with the CFAR and provide notice to prospective applicants, the review process for applications for competitive cable franchises and the criteria upon which the final decision of the City will be based should be codified.
(D) The application requirements and the processes for application review and determination set forth in this Chapter are intended to comply with the new FCC rules.
16-3-2: INSTRUCTIONS AND DEFINITIONS: (3370)
The following instructions shall apply to all applications, except those filed under Section 16-3-13:
(A) An applicant for a competitive cable franchise (“Applicant”) shall include the requisite information set forth below, in writing, in its franchise application, in addition to any information required by 47 Code of Federal Regulations §76.41 and applicable state and local laws and the application fee set by Section 16-3-9, herein.
(B) The City shall accept and review only those applications that include complete responses to every requirement of this Chapter. Submission of an application that does not include the requisite information set forth in Sections 16-3-3, 4, 5, 6, 7, and 9, as applicable shall not commence the time period for granting or denying the application set forth in 47 Code of Federal Regulations §76.41(d). The Applicant shall submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the City’s review of the application.
(C) Applications shall be made to the Director of Information Technology, City of Westminster, 4800 West 92nd Avenue, Westminster, Colorado 80031.
(D) Upon request, the City will promptly provide access to documents or information in its possession or control that are necessary for the completion of this application, provided that the Applicant does not otherwise have access to such documents or information and that such documents or information are subject to disclosure under Colorado open records laws.
(E) For the purposes of the application, the terms, phrases, and their derivations set forth below shall have the meanings given, unless the context indicates otherwise. 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 include the plural number. The word “shall” is always mandatory and not merely directory.
1. “Affiliated Entity” or “Affiliate” means any entity having ownership or control in common with the Applicant, in whole or in part, including, without limitation, Applicant’s Parent Corporations and any subsidiaries or affiliates of such Parent Corporations.
2. “Applicant” means an applicant for a cable franchise pursuant to the provisions of the Competitive Franchise Application Rule (“CFAR”) set forth in Part 76 of Title 47 of the Code of Federal Regulations, §76.41, and includes the Parent Corporation, its subsidiaries and Principals.
3. “City” means the City of Westminster, a Colorado home-rule municipality.
4. “Control” is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
5. “Interest” includes officers, directors and shareholders owning five percent (5%) or more of the Applicant’s outstanding stock or any equivalent voting interest of a partnership or joint venture.
6. “Parent Corporation” includes any entity with ownership or control of the Applicant.
7. “Principal” includes any person, firm, corporation, partnership, joint venture, affiliates, or other entity, who or which owns or controls five percent or more of the voting stock (or any equivalent voting interest of a partnership or joint venture) of the Applicant.
8. “Regulatory Authority” includes any governmental or quasi-governmental organization or entity with jurisdiction over all or any portion of the Applicant or its operations.
16-3-3: REQUISITE INFORMATION: (3370)
(A) Identification and Ownership Information. The application shall include:
1. The name, address, telephone number and web site (if applicable) of the Applicant and the proposed franchisee (if different from Applicant), and
2. The name, address, primary telephone number and primary e-mail address of all individual(s) authorized to represent the Applicant before the City during its consideration of the franchise(s) requested, including the Applicant’s primary contact and any additional authorized contacts.
(B) Business Structure.
1. If a corporation, the Applicant shall provide:
(a) A list all officers and members of the Board of Directors, their principal affiliations and their addresses;
(b) A certificate of good standing indicating that the Applicant is licensed to do business in the State of Colorado; and
(c) A statement indicating whether the Applicant is directly or indirectly controlled by another corporation or legal entity. If so, Applicant shall attach an explanatory statement and provide the documents in subparagraphs (a) and (b) above for the controlling corporation or legal entity.
2. If a partnership, the Applicant shall:
(a) Describe the structure of the partnership and the interests of general and limited partners; and
(b) State whether the Applicant is controlled directly or indirectly by any corporation or other legal entity. If so, Applicant shall attach an explanatory statement and provide the documents in subparagraphs 1.(a) and 2.(b) above for the controlling entity, partnership or legal entity.
1. Current Franchises. An Applicant shall list all cable systems in which it or any Affiliate owns more than five percent (5%) of the system. For each system Applicant shall include name of system, address, communities served, number of subscribers, number of homes passed, date of system award, duration (start and end date) of franchise, status of construction, and percent of penetration of homes passed as of most recently available date (indicate date).
2. Potential Franchises. An Applicant shall list communities where it or any Affiliate currently has a formal or informal request pending for an initial franchise, the renewal of a franchise, or the approval of a transfer of ownership. The Applicant shall include the name of communities, date of application, and date of expected action.
(D) Management Structure. Every application for a competitive franchise shall include a management/organizational chart, showing the management structure of the Applicant. A similar chart shall also be provided showing the relationship of the Applicant to all general partners, Parent Corporations, subsidiaries, Affiliates and all other subsidiaries of Parent Corporations, including a brief description of each entity’s relationship to the Applicant.
16-3-4: LEGAL QUALIFICATIONS: (3370)
(A) Media Cross-Ownership.
1. Section 613 of the Cable Communications Policy Act of 1984, 47 U.S.C. §533 (a), and applicable FCC rules prohibit certain forms of media cross-ownership. An Applicant shall state whether it or an Affiliate directly or indirectly owns, operates, controls or has an Interest in any of the following, or whether the Applicant holds or operates any company or business operating jointly with any of the following:
(a) A national broadcast television network (such as ABC, CBS or NBC, etc.).
(b) A television broadcast station whose predicted Grade B contour, computed in accordance with Section 73.684 of the FCC's rules, overlaps in whole or in part the City’s service area, or an application for license to operate such a station.
(c) A telecommunications or telephone company whose service area includes any portion of the City’s service area.
2. If the response to any of subsection 1 (a) – (c) above is affirmative, the Applicant shall state the name of the Applicant or Affiliate, the nature and percentage of ownership or Interest and the company that is owned or in which the Interest is held.
(B) Franchise Violations. An Applicant shall state whether it or any Affiliate has been found in violation by a Regulatory Authority or franchising authority of any franchise ordinance or agreement, contract or regulation governing a cable system. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.
(C) Other Violations. An Applicant shall state whether it has been found in violation by a Regulatory Authority of any other type (e.g. utility) of franchise, ordinance, agreement, permit, contract or regulation. If so, the Applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.
16-3-5: FINANCIAL QUALIFICATIONS: (3370 3711)
(A) Unless Securities and Exchange Commission ("SEC") Forms 10K and 10Q are available on the Electronic Data-Gatering, Analysis, and Retrieval system ("EDGAR") database, Applicants with existing operations shall provide audited financial statements, including statements of income, balance sheets and cash flow statements, together with any notes necessary to the understanding of the financial statements for the last three fiscal years for the Applicant and any Parent Corporation.
(B) Applicants that are new (start-up) entities shall provide pro forma projections for the next five fiscal years, if available, but at a minimum the next three fiscal years from the date of the application.
16-3-6: TECHNICAL QUALIFICATIONS, PLANNED SERVICES AND OPERATIONS: (3370)
(A) The application shall describe the Applicant’s planned initial and proposed cable services geographic area, including a map of all areas proposed to be served and proposed timetable for offering service to each area. The application shall additionally state whether the Applicant proposes to provide cable services to the entire franchise area, and if so, a proposed timetable for meeting that goal.
(B) The applicant shall describe how its proposed service area will not result in denial of service to any group of potential residential cable customers because of the income of the residents of the local area in which such group resides.
(C) If the Applicant has or asserts existing authority to access the public right of way in any of the initial or proposed service areas listed in subsection (A) above, the Applicant shall state the basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority.
(D) The Applicant shall describe with particularity its planned residential cable services, including basic cable services, other cable programming service tiers, and any additional pay-per-view, on-demand or digital services and the projected rates for each category or tier or service.
(E) The Applicant shall describe with particularity its planned system technical design, upstream and downstream capacity and speed, provision for analog or digital services or packages, distribution of fiber, planned count of households per residential node, and any other information necessary to demonstrate that the Applicant’s technology will be deployed so as to be able to successfully offer cable services in the proposed locations.
(F) The Applicant shall describe with particularity its planned non-residential cable services.
(G) The Applicant shall describe its planned construction and extension or phase schedule, as applicable, including system extension plans or policy and describe the current status of the Applicant’s existing or proposed arrangements with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable.
(H) The Applicant shall describe its plan to ensure that the safety, functioning and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the Applicant’s facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation or removal of the facilities.
(I) The Applicant shall describe its plan to comply with the subscriber privacy protections set forth in 47 U.S.C. §551, and the privacy protections of the City’s local cable customer service standards.
16-3-7: AFFIDAVIT OF APPLICANT: (3370)
Each application shall be accompanied by an affidavit substantially in the form set forth below:
This application is submitted by the undersigned who has been duly authorized to make the representations within on behalf of the Applicant and certifies the representations are true and correct.
The Applicant recognizes that all representations are binding on it, that all application commitments are enforceable, and that material misrepresentations or omissions, or failure to adhere to any such representation may result in a denial of an application by the City.
The Applicant shall comply with all applicable local laws.
Consent is hereby given to the City and its representatives to make inquiry into the legal, character, technical, financial and other qualifications of the Applicant by contacting any persons or organizations named herein as references, or by any other appropriate means.
Name of Applicant’s Authorized Representative: ____________
Affiant’s Signature: ____________________ Date: ____________________
Official Position: _____________________________
STATE OF COLORADO )
COUNTY OF __________)
Subscribed and sworn to before me this _____day of ___________, 200_, by ________________.
WITNESS MY HAND AND OFFICIAL SEAL.
My Commission expires: __________________.
16-3-8: OPEN RECORDS/CONFIDENTIALITY: (3370) Unless otherwise provided by law, information submitted as part of an application is open to public inspection and subject to the Colorado Open Records Act. It is the Applicant’s responsibility to be familiar with the Colorado Open Records Act. An Applicant may specifically identify any information it considers proprietary. In the event that the City receives a request from another party to disclose any information that the Applicant has deemed proprietary, the City will tender to the Applicant the defense of any request to compel disclosure. By submitting information that the Applicant deems proprietary or otherwise exempt from disclosure, the Applicant agrees to defend and hold harmless the City from any claim for disclosure including but not limited to any expenses including out-of-pocket costs and attorneys’ fees, as well as any judgment entered against the City for the attorneys’ fees of the party requesting disclosure.
16-3-9: APPLICATION FEE: (3370) An application fee in the amount of $2,000.00 shall accompany any franchise application to cover the reasonable cost of processing applications under this Chapter.
16-3-10: REVIEW PROCESS: (3370)
(A) Acceptance of Application.
1. Within 5 business days of receipt of an application, the City shall review the application to ensure all requisite information is included in the application.
2. If the application is not complete, the City will notify the Applicant in writing, listing the requisite information that is required to complete the application and notifying the Applicant the that time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will not begin to run until such information is received.
3. If the application is complete, the City will notify the Applicant in writing that all requisite information has been received.
(B) Staff Review. The City staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff reasonably requires additional information from the Applicant, staff will promptly request the information from the Applicant, in writing, along with a notification that the time period for granting or denying the application set forth in 47 C.F.R. § 76.41(d) will be tolled until such information is received by the City. After completing the review, staff shall provide an analysis of the application to the City Council.
(C) Franchise Negotiations. Within the time period set forth in 47 C.F.R. § 76.41(d), the City shall attempt to negotiate a cable franchise agreement with the applicant, and within that time period, schedule the application and any proposed franchise for public hearing as set forth in Section 16-3-11.
16-3-11: PUBLIC HEARING: (3370) The City shall hold a public hearing before acting on the application, affording the public, the applicants, and the City a process substantially equivalent to that required by 47 U.S.C. §546(c)(2) governing renewal of cable franchises.
16-3-12: REVIEW CRITERIA: (3370) The City may deny an application if, based on the information provided in the application, at the public hearing and/or any terms of a proposed franchise agreement:
(A) The Applicant does not have the financial, technical, or legal qualifications to provide cable service;
(B) The Applicant will not provide adequate public, educational, and governmental access channel capacity, facilities, or financial support; or
(C) The Applicant’s proposed terms do not comply with applicable federal, state and local laws and regulations including, but not limited to, local customer service standards, or relevant existing contractual obligations of the City.
(D) The Applicant’s proposed service plan will result in denial of service to a group of potential residential cable customers because of the income of the residents of the local area in which such group resides.
16-3-13: NON-CFAR FRANCHISE APPLICATIONS: (3370) Notwithstanding any other provisions of this Chapter, any competitive cable services franchise applicant may elect to submit a cable franchise application to the City and/or engage in cable franchise negotiations without regard to the application of the FCC CFAR. Such election must be clearly stated in writing at the time the Applicant files its application with the City. In such cases, the City will negotiate the terms of a competitive cable franchise without regard to 47 CFR §76.41 and the other provisions of this Chapter. Agreement by any applicant to negotiate a franchise without regard to 47 CFR §76.41 and the other provisions of this Chapter shall not be deemed by the City to effect a waiver of any applicant’s right to terminate its franchise negotiations with the City and to file a new franchise application that will be subject to the application of the FCC CFAR.
Non-CFAR applications shall include the following information:
(1) the applicant’s name
(2) the names of the applicant’s officers and directors
(3) the applicant’s business address
(4) the name and contact information of the applicant’s contact