Last Modified on 05/07/2009 09:05:46Chapter 5 CABLE TELEVISION LICENSES*
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Charter references: Franchises and public utilities, ch. XX.
Cross references: Telecommunication service providers, ch. 5B; businesses, ch. 10; franchises, ch. 16; streets and sidewalks, ch. 31.
State law references: Cable television systems, A.R.S. § 9-505 et seq.
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Article I. Administrative
Sec. 5-1. Title.
Sec. 5-2. Purpose.
Article II. Definitions
Sec. 5-3. Definitions.
Article III. License Duration, Renewal and Transfer
Sec. 5-4. License.
Sec. 5-5. Use of streets and public ways.
Sec. 5-6. Term.
Sec. 5-7. License non-exclusive.
Sec. 5-8. License nontransferable.
Secs. 5-9– 5-11. Reserved.
Sec. 5-12. Expiration.
Sec. 5-13. Renewal or extension.
Sec. 5-14. Purchase of cable system.
Sec. 5-15. Continuity of service mandatory.
Sec. 5-16. Reserved.
Sec. 5-17. Right of inspection of construction.
Sec. 5-18. Right of intervention.
Sec. 5-19. Indemnification.
Sec. 5-20. License fees.
Sec. 5-21. Abandonment; right to require removal of property.
Sec. 5-22. Costs of publication of license.
Sec. 5-23. Business succession and liability.
Article IV. System Operation and Maintenance
Sec. 5-24. Inspection of records.
Sec. 5-25. Communications with regulatory agencies.
Sec. 5-26. Reports.
Sec. 5-27. Customer service standards.
Sec. 5-27.1. Construction notification.
Sec. 5-28. Safety.
Sec. 5-29. Liability insurance.
Sec. 5-30. Faithful performance bond.
Sec. 5-31. Security fund.
Article V. Design and Construction Provisions
Sec. 5-32. Standards for construction.
Sec. 5-33. License area.
Sec. 5-34. Cablecasting facilities.
Sec. 5-35. Interconnection.
Sec. 5-36. System construction schedule.
Sec. 5-37. Provision of service.
Sec. 5-38. Undergrounding of cable.
Sec. 5-39. Special additional underground service permit.
Sec. 5-40. Construction standards and codes.
Sec. 5-41. Preconstruction tests.
Sec. 5-42. Technical and performance standards.
Sec. 5-43. Use of cable system during an emergency.
Sec. 5-44. Damage to cable system during an emergency.
Sec. 5-45. Restoration of streets.
Sec. 5-46. Use of streets and public ways.
Sec. 5-47. Trimming of trees.
Sec. 5-48. Vacated street.
Sec. 5-49. Temporary removal of cable to move large objects.
Article VI. System Services
Sec. 5-49.1. Institutional service (IS).
Sec. 5-50. Local origination channel.
Sec. 5-51. Government access channel.
Sec. 5-52. Educational access channel.
Sec. 5-53. Public access channel.
Secs. 5-54– 5-59. Reserved.
Article VII. License Administration and Enforcement
Sec. 5-60. Intent.
Sec. 5-61. Revocation of license.
Sec. 5-62. Remedies for delay in construction and liquidated damages.
Sec. 5-63. City Manager's responsibility.
Sec. 5-64. License administration and enforcement.
Sec. 5-64.1. License fee amount protests– Administrative hearing.
Sec. 5-65. Hearing by City Council.
Sec. 5-66. Changes in cable technology.
Secs. 5-67– 5-69. Reserved.
Article VIII. Rights of Individuals Protected
Sec. 5-70. Discriminatory practices prohibited.
Sec. 5-71. Permission of property owner required.
Sec. 5-72. Subliminal transmission prohibited.
Secs. 5-73– 5-77. Reserved.
Article IX. Violations
Sec. 5-78. Theft of service.
Sec. 5-79. Tampering with system.
Sec. 5-80. Existing systems.
Sec. 5-81. Reserved.
Article X. Interpretation of Ordinance
Sec. 5-82. Compliance with laws.
Sec. 5-83. Captions.
Sec. 5-84. No recourse against the licensor.
Sec. 5-85. Non-enforcement by the licensor.
Sec. 5-86. Rights reserved to the City.
Secs. 5-87, 5-88. Reserved.
Article XI. The License Document
Sec. 5-89. The license document– Issuance and acceptances.
Article XII. Application Process
Sec. 5-90. Purpose of this article.
Sec. 5-91. Application for initial license.
Sec. 5-92. Application fees for initial license.
Sec. 5-93. Selection of licensee under an initial license.
Sec. 5-94. Consideration of applicants.
Sec. 5-95. Award of license based on public record.
Secs. 5-96– 5-99. Reserved.
Article XIII. Relationships Among Licensees
Sec. 5-100. Arbitration or mediation of disputes.
ARTICLE I.
ADMINISTRATIVESec. 5-1. Title.
This chapter shall be known and may be cited as "Cable Television Licenses."
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-2. Purpose.
The purpose of this chapter is to:
(a) Provide for the regulation and control of the cable television systems by the City of Phoenix in the public interest.
(b) To require that the provisions of this chapter shall be applicable to all licenses granted by the City of Phoenix.
(c) To provide a procedure for the granting of nonexclusive licenses for providing cable services in the City of Phoenix.
(d) To regulate the erection, construction, reconstruction, installation, operation, maintenance, dismantling, testing, repair and use of cable systems in, upon, along, across, above, over or under or in any manner connected with the streets and public ways within the jurisdiction of the City of Phoenix as now or in the future may exist.
(e) To provide for the payment of certain license fees and other valuable considerations to the City which, among other purposes, may be used to pay for the use of the streets and public ways and to regulate the construction, reconstruction and operation, use and development of cable systems within the City; and
(f) To provide conditions under which such licensed cable systems will serve present and future needs of government, public institutions, commercial enterprises, public and private organizations, and the citizens and general public of the City; and
(g) To provide remedies and prescribe penalties and liquidated damages for any violation of this chapter and the terms and conditions of licenses granted pursuant thereto.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
ARTICLE II.
DEFINITIONSSec. 5-3. Definitions.
For the purposes of this chapter, the following words, terms, phrases, and their derivations 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 word "shall" is always mandatory and not merely directory. Words not defined in this chapter shall have the meanings given them by the Cable Act and by the Federal Communications Commission.
Basic cable service means any service tier which includes the retransmission of local television broadcast signals.
Basic service tier means a separately available tier to which subscription is required for access to any other tier of service. Such basic service tier shall at a minimum consist of the following:
(a) All signals carried in fulfillment of the requirements of sections 614 and 615 of the Cable Act.
(b) Any public, educational, and governmental access programming required by the City to be provided to subscribers.
(c) Any signal of any television broadcast station that is provided by the licensee to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station.
Cable Act means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as the same may be amended from time to time.
Cable service means:
(a) The one-way transmission to subscribers: (1) of video programming, or (2) other programming services; and
(b) Subscriber interaction, if any, which is required for the selection of such video programming or other programming services.
Cable system (sometimes referred to as "cable television system") means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable services which includes video programming and which is provided to multiple subscribers within the City, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way; (c) 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, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facility of an electric utility used solely for operating its electric utility systems. A reference to a licensee's cable system refers to the cable system as a whole or any part thereof.
City means the City of Phoenix, a municipal corporation of the State of Arizona, and all of the territory within its present and future corporate boundaries.
City Council means the Council of the City of Phoenix.
City Manager means the City Manager of the City of Phoenix or the City Manager's designee.
Educational channel or educational access channel means channel capacity or any portion of the capacity of any channel designated for educational use.
Existing cable television system means a cable television system in operation on April 1, 1974, a cable television system under construction on April 1, 1974, or a cable television system which had received authorization for construction on April 1, 1974.
FCC means the Federal Communications Commission, or a designated representative.
Government channel or government access channel means channel capacity or any portion of the capacity of any channel designated for governmental use.
Gross revenues, except as may be approved by City Council and set forth in the cable license means all cash, credits, property of any kind or nature, or other consideration, less related bad debts up to a maximum of one and one-half percent annually of such cash, credits and property, received directly or indirectly by a licensee, its affiliates, subsidiaries, parent and person, firm or corporation in which a licensee has a financial interest or which has a financial interest in a licensee, which are derived from the licensee's operation of its cable system within the City, including, but not limited to all revenue from:
(a) All charges for services provided to subscribers;
(b) All charges for the insertion by the licensee of commercial advertising upon the cable system;
(c) All charges for the use or lease of studio facilities of the cable system;
(d) All charges for the use or lease of leased access channels or bandwidth;
(e) The production for transmission over the cable system of video programming by licensee including programming produced by its mobile facilities;
(f) All charges for the installation, removal, connection and reinstatement of equipment necessary for a subscriber to receive cable services;
(g) The sale, exchange, use or cablecast of any programming by licensee within the service area;
(h) And any other income derived from the cable system including, but not limited to, forfeited deposits recovered, rental of remote equipment and convertors, late charges, interest income, sale of program guides and all other receipts from subscribers.
"Gross revenues" shall not include taxes collected by licensee on behalf of any governmental authority; any increase in the value of any stock, security or asset; or any dividends or other distributions made in respect of any stock or securities.
"Gross revenues" shall not include cash, credit, property of any kind or nature, or other consideration received by a licensee's affiliates, subsidiaries, parent, or any person, firm or corporation in which a license has a financial interest or which has financial interest in a licensee for any sales of advertising on the cable system, services to provide programming on the cable system, production services, and/or telecommunication services which are cable services when such services are provided by an affiliate, subsidiary, parent, or such other person, firm or corporation which has all the following characteristics: the affiliate, subsidiary, parent or such other person, firm or corporation is a separate legal entity, with separate employees, with separate financial records (which may be part of consolidated financial reporting records), and a separate mission; it makes payments to licensee which meet market standards for the services and industries involved; and it was established for valid business purposes and not with the intent and purpose of circumventing payment of license fees on gross revenues. Nothing contained in this exclusion from gross revenues shall be interpreted to exclude from gross revenues such cash, credit, property of any kind or nature, or other consideration which would be considered the cable operator's gross revenues derived from the operation of the cable system under the Cable Act. Except for gross revenues from such sales of advertising on the cable system, services to provide programming on the cable system, production services, or telecommunication services which are cable services, received by such affiliates, subsidiaries, parent, or such other person, firm or corporation, this paragraph shall not exclude from gross revenues any source of gross revenues which an existing licensee itself is receiving at the time it is granted a license under this chapter, as revised June 29, 1994.
When a licensee (or an affiliate, subsidiary, or parent) holds one or more other cable television licenses in Maricopa County and receives and allocates gross revenues from (b), (d), and (e), then gross revenues derived from (b), (d) and (e) shall be allocated pro rata to the City based on the ratio of the number of subscribers of licensee in the City to the total number of subscribers of licensee (or an affiliate, subsidiary, or parent) in all the jurisdictions in Maricopa County in which licensee (or an affiliate, subsidiary, or parent) holds a cable license. If a licensee does not allocate its revenue derived from (b), (d) and (e) from such other jurisdiction(s) then the number of subscribers in such jurisdiction(s) shall not be included in the total number of subscribers in all other jurisdictions.
Initial license shall mean a license sought by, or granted to, a person or entity which does not hold a license.
Leased channel or leased access channel means any channel available for lease and programming by persons or entities unaffiliated with the licensee.
License means the non-exclusive authorization granted by the City to construct, operate and maintain a cable system within all or part of the City and to occupy or use the streets within the City. The license shall be evidenced by a separate granting ordinance and license document and subject to the terms of this chapter.
License document means the written authorization granted by the City to the licensee for operation of a cable television system as evidenced by a license document signed by the City Manager, including referenced exhibits and specifications.
License fees means the fees the licensee pays the licensor under section 5-20.
Licensee means the person or entity to which a license henceforth is granted for the construction, operation, maintenance, or reconstruction of a cable system.
Licensor means the City of Phoenix as represented by the City Council, City Manager, or their designee acting within the scope of their authority.
Normal business hours means those hours during which most similar businesses in the City are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week or some weekend hours. Normal business hours will be specified in each license document.
Normal operating conditions means those service conditions which are within the control of the licensee. Those conditions which are not within the control of the licensee include, but are not limited to, natural disasters, civil disturbances, utility company power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the licensee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
Other programming service means information that a licensee makes available to all subscribers generally.
Premium programming, pay-cable or pay-television means the delivery to subscribers, over the cable system, of a cable service for a fee or charge, on a per-program or per-channel basis.
Proposal or application shall refer to a response by a qualified cable company in accordance with City specifications to provide cable services to residents, businesses, industries, and institutions within the City.
Public access channel means channel capacity or any portion of the capacity of any channel designated for public use.
Renewal license shall mean a license sought by, or granted to, a licensee already providing cable services in the City.
Resident means any person residing in the City as otherwise defined by applicable law.
School means any educational institution including primary and secondary schools, colleges and universities.
Section means any section, subsection, or provision of this chapter.
Service interruption means the loss of picture or sound on one or more cable channels or the significant deterioration of signal or sound.
Streets and public ways means the surface of and the space above and below any public street, sidewalk, right-of-way, alley, right-of-way easement, or other public way of any type whatsoever, now or hereafter existing as such within the City.
"Subscriber or customer means any person, firm, corporation, or other entity that subscribes to, for any purpose, a cable service provided by the licensee by means of or in connection with the cable system. For the purposes of Section 5-27, "subscriber" includes those requesting a cable service provided by the licensee.
Two-way communication means the transmission of telecommunication signals from subscriber locations or other points throughout the cable system back to the cable system's control center and the transmission of telecommunication signals from the control center to subscriber locations. The license document may authorize switching at a level other than the control center.
Video programming means programming provided by or generally considered comparable to programming provided by a television broadcast station.
Year means a full calendar year. "Fiscal" year may include any twelve-month period.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1; Ord. No. G-4775, § 1A, adopted 1-18-2006, eff. 2-17-2006)
Cross references: Definitions and rules of construction generally, § 1-2.
ARTICLE III.
LICENSE DURATION, RENEWAL AND TRANSFER*------------
Cross references: Business succession and liability law, § 13-4 et seq.
State law references: Licenses, A.R.S. § 9-506 et seq.
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Sec. 5-4. License.
(a) In the event that the City grants to a licensee a nonexclusive, revocable license to construct, operate, maintain, and reconstruct a cable system within the City, said license shall require that the licensee comply with the provisions of this chapter. The license may include in the license document such additional provisions as the licensor shall require to protect the public welfare, safety and health and comply with the standards established by this chapter.
(b) Any license granted shall be subject to the terms and conditions contained in this chapter. In the event of conflict between the terms and conditions of the license and the terms and conditions on which the City can grant a license as set forth in applicable Arizona law or the City Charter, the applicable Arizona law and Charter shall, without exception, control, provided however, a licensee upon approval of the City Council may be excepted from such requirements as specified in the license. Nothing in the license shall be deemed to waive the requirements of the various codes, ordinances and regulations of the City regarding permits, fees to be paid or manner of construction.
(c) The license may be issued conditionally upon the meeting of requirements set out in this chapter and contained in the license document.
(d) This chapter is subject to and shall be governed by all requirements of the Cable Act. In the event of a conflict between the requirements of this chapter and the requirements of the Cable Act, the Cable Act shall control to the extent the Cable Act intends to preempt local requirements.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1; Ord. No. G-4775, § 1B, adopted 1-18-2006, eff. 2-17-2006)
Sec. 5-5. Use of streets and public ways.
(a) Any license granted pursuant to the provisions of this chapter shall authorize the licensee to engage in the business of operating and maintaining a cable system in the City, and for that purpose the licensee may erect, install, construct, repair, replace, reconstruct, and retain, in, on, over, under, upon, across and along the streets and public ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable system.
(b) For its cable system in the ordinary course of business, a licensee may lease, rent or license facilities such as wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as it deems applicable from a third party; provided, however, that neither a licensee nor the third party shall thereby be relieved of any regulation or obligation as to its use of such facilities in the streets and public ways. Any such lease, rent or license from a third party of its facilities in the streets and public ways which is not in the ordinary course of business shall be subject to the approval of the City and such terms and conditions on licensee's use of the streets and public ways as the City Manager may condition its approval. The City Manager may establish rules and procedures to provide for the review and approval of all such requests for approval for lease, rent or license from third parties.
(c) Prior to construction or alteration, however, the licensee shall in each case file plans with the Street Transportation Department and any other department as may be designated by the licensor, and shall, where required, receive written approval in the form of a permit before proceeding.
(d) In the case of emergency repairs, licensee may obtain verbal approval for the repair from the appropriate Street Transportation Department personnel. However, in such cases the licensee must later file plans and obtain a permit. Wherever the facilities or related construction activity of the licensee create a serious hazard to public safety or welfare, the licensee shall take all necessary actions to immediately abate the hazard. If the licensee cannot contact the City immediately, the licensee shall proceed to abate the hazard immediately and shall notify the City, file plans, obtain a permit and make any required changes as soon as possible.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3313, § 1; Ord. No. G-3779, § 1)
Sec. 5-6. Term.
The license shall be effective upon execution by the City Manager of the license document authorized by the City Council and the compliance by licensee with the provisions of section 5-89. The term of the license shall be for a term specified in the license document not to exceed fifteen years.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-3779, § 1)
Sec. 5-7. License non-exclusive.
Any and all licenses granted are non-exclusive. The licensor specifically reserves the right to grant, at any time, such additional licenses for a cable system as it deems appropriate.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-8. License nontransferable.
(a) A transfer is any transaction in which (1) an ownership or other interest in a licensee, its cable system, or any person that is a cable operator of the cable system is transferred from one person or group of persons to another person or group of persons so that control of a licensee is transferred; or (2) the rights or obligations held by a licensee under a license are transferred or assigned to another person or group of persons. Control for these purposes means working control, in whatever manner exercised. By way of illustration and not limitation, the addition, deletion, or other change of any general partner of a licensee, any person who owns or controls a licensee, or a cable operator of a cable system is such a change of control.
(b) No transfer shall occur without prior approval of the City. The City shall act upon any request for approval of a sale or transfer within one hundred twenty days of such request if such request contains or is accompanied by such information as is required by FCC regulations and by this chapter.
(c) An application for a transfer shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the proposed transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the information required under federal law shall be provided with respect to the proposed transfer. The City may require additional information related to its determination in subsection (d) regarding the proposed transfer.
(d) In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a license, the City shall consider as appropriate the following: the legal, financial, including the purchase price of the cable system, technical and other qualifications of the proposed transferee to operate the cable system; whether the licensee is in compliance with its license and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether operation by the proposed transferee affects competition in the delivery of cable service in the City including whether the proposed transferee owns or controls any other cable system in the City; and whether operation by the proposed transferee or approval of the transfer would affect subscribers, the City's interest under this chapter, the license, or other applicable law, and whether the future cable-related needs and interests of the community as provided in the license would be satisfied at a reasonable cost.
(e) No application for a transfer of a license shall be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter and the license, and that it will assume all obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous licensee under this chapter and the license for all purposes, including renewal.
(f) Approval by the City of a transfer of a license does not constitute a waiver or release of any of the rights of the City under this chapter or the license, whether arising before or after the date of the transfer.
(g) (1) Notwithstanding the foregoing, prior consent shall not be required for one transfer to any company which is owned or controlled or under common control and with the same direct parent as licensee, and which is intended after such transfer to remain under the ownership or control of that parent or an entity under common control or with the same direct parent, provided that, no such transfer shall be valid unless licensee and the proposed transferee submit a binding agreement and warranty to the City stating that:
a. The proposed transferee has read, accepts and agrees to be bound by the license and this chapter;
b. The proposed transferee assumes all obligations, liabilities and responsibility under the license and this chapter for the acts and omissions of licensee known and unknown, for all purposes, including renewal, and agrees that the transfer shall not permit it to take any position or exercise any right which licensee could not have exercised; and
c. The transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the system operator.
(2) Licensee and the proposed transferee shall describe the nature of the transfer, and submit complete information regarding the effect of the transfer on the direct and indirect ownership and control of the cable system.
(h) Notwithstanding the foregoing, pledges in trust or mortgages of the assets of the system to secure the construction, operation or repair of the cable system may be made without the City's prior consent; except that no such arrangement may be made which would in any respect under any condition prevent the licensee or any successor from complying with the license and this chapter and any other applicable laws and regulations, nor may any such arrangement permit a third party to succeed to the interest of licensee, or to own or control the cable system without the prior consent of the City.
(i) A non-rebuttable presumption that transfer of control has occurred shall arise upon the acquisition or accumulation by any person, or group of persons who did not previously hold such interest, of more than fifty percent of the voting interest of the licensee or of the person exercising management authority over the licensee. A change in the general partner or managing partner is a change of control. A change in the managing corporation is also a change in control.
(j) Subject to the exceptions specified in section 617 of the Cable Act, no licensee may sell or otherwise transfer ownership in a cable system within a thirty-six month period following the acquisition or initial construction of such system as the case may be by such licensee.
(k) To the extent permitted by the Cable Act, the licensee is authorized to lease channels or provide leased access channels in accordance with section 612 of the Cable Act for commercial use by persons unaffiliated with the licensee.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Secs. 5-9– 5-11. Reserved.
Sec. 5-12. Expiration.
Upon expiration of the initial term of the license, the licensor shall have the right, as further provided herein, to:
(a) Renew or extend the license subject to applicable provisions of federal law;
(b) Deny license renewal subject to applicable provisions of federal law;
(c) Purchase the system for fair market value as provided in section 5-14.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-13. Renewal or extension.
(a) License may be renewed by the City upon application of licensee in accordance with applicable federal law to the extent applicable federal law provisions are timely activated.
(b) If a licensee fails to seek renewal in accordance with the provisions of subsection (a), then the licensee shall comply with the provisions of article XII, Application Process, if the licensee wants to continue operating a cable system within the City.
(c) Notwithstanding the provisions of subsections (a) and (b), except as prohibited by federal law, any lawful action to revoke a licensee's license for cause shall not be negated by the subsequent initiation or pendency of renewal proceedings or the filing of a license application by the licensee as provided in this section.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-14. Purchase of cable system.
(a) If the license is revoked or not renewed the City shall have the right to purchase the cable television system at a price not to exceed its fair market value as defined in this section.
(b) In the event that the City elects to purchase the cable system upon expiration or termination of the term of any license as provided herein, the current licensee shall sell the cable system to the City or its designee. The price for such sale shall be the fair market value of the cable system, as defined in this section.
(c) In accordance with section 627 of the Cable Act, if a renewal of a license is denied and the City acquires ownership of the cable system or effects a transfer of ownership of a cable system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the license itself.
(d) If a license held by a licensee is revoked for cause and the City acquires ownership of the cable system or effects a transfer of ownership of the cable system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the license itself.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-15. Continuity of service mandatory.
(a) It shall be the right of all subscribers to continue receiving cable services, during the term of the license insofar as their financial and other obligations to the licensee are honored.
(b) In the event of termination of the license, the licensee shall cooperate with the City to ensure continuity of cable services to all subscribers for a period not to exceed thirty days.
Said period may be extended by mutual agreement between the City and licensee. During such period, licensee shall be entitled to the revenues for any period during which it operates the cable system.
(c) In the event licensee fails to operate the cable system for ninety-six consecutive hours without prior approval of the City or without just cause, the City may, at its option, operate the cable system or designate an operator until such time as licensee restores cable services to the standards required by its license or a new permanent operator is selected. If the City is required to fulfill this obligation for a licensee, the licensee shall reimburse the City for all reasonable costs or damages that are the result of the licensee's failure to perform.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-16. Reserved.
Sec. 5-17. Right of inspection of construction.
The licensor shall have the right to inspect all construction or installation work performed subject to the provisions of the license and to make such tests as it may find necessary to ensure compliance with the terms of this chapter, the license and other pertinent provisions of law.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-18. Right of intervention.
The licensor shall have the right of intervention in any suit or proceeding involving the license to which the licensee is party, and the licensee shall not oppose such intervention by the licensor.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-19. Indemnification.
(a) Indemnification.
(1) Licensee shall fully indemnify, defend and hold harmless the City, its officers, boards, commissions, elected officials, agents, attorneys, representatives, and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities and judgments for damages, including but not limited to, expenses for legal fees, whether suit be brought or not, and disbursements and liabilities incurred or assumed by City in connection with:
a. Damage to persons or property, in any way arising out of or through the acts or omissions of licensee, its officials, agents, attorneys, representatives or employees;
b. Requests for relief arising out of any licensee action or inaction which results in a claim for invasion of the right of privacy; for defamation of any person, firm or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark or patent; or of any other right of any person, firm or corporation;
c. Any and all claims arising out of licensee's failure to comply with the provisions of this chapter or a license or any federal, State or local law, or regulation applicable to licensee or the cable system;
d. Any and all disputes arising out of a claim by any party other than City or licensee wherein damages or other relief is sought:
(i) As a result of the City's cable system licensing of licensee; or
(ii) As a result of the renewal or nonrenewal of licensee's cable system license.
(2) If a lawsuit covered by the provisions of subsection (a)(1) be brought against City, either independently or jointly with licensee, or with any other person or municipality, licensee, upon notice given by City, shall defend City at the cost of licensee. If final judgment is obtained against City, either independently or jointly with licensee or any other defendants, licensee shall indemnify City and pay such judgment with all costs and satisfy and discharge the same.
(3) City shall cooperate with the licensee and reserves the right to participate in the defense of any litigation.
(4) The provisions of this chapter shall not be read to impose any liabilities on the City not imposed by other law, or to waive any immunities the City may have under federal or State law.
(5) A licensee shall make no settlement in any matter identified above without the City's written consent, which shall not be unreasonably withheld. Failure to inform the City of settlement shall constitute a breach of the license and the City may seek any redress available to it against the licensee whether set forth in this chapter or under any other municipal, State or federal laws.
(6) All rights of City, pursuant to indemnification, insurance, security fund, or faithful performance bond(s), as provided for by this chapter, are in addition to all other rights the City may have under this chapter or any other chapter, rule, regulation or law.
(7) The City's exercise of or failure to exercise all rights pursuant to any section of this chapter shall not affect in any way the right of City subsequently to exercise any such rights or any other right of City under this chapter or any other chapter, rule, regulation or law.
(8) It is the purpose of this subsection to provide maximum indemnification to the City under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the City by the licensee.
(9) The provisions of this subsection shall not be dependent or conditioned upon the validity of this chapter or the validity of any of the procedures or agreements involved in the award or renewal of a license, but shall be and remain a binding right and obligation of the City and licensee even if part or all of this chapter, or the grant or renewal of a license, is declared null and void in a legal or administrative proceeding. It shall be expressly stated in a license, that it is the intent of the licensee and City, upon the effective date of the license, that the provisions of this subsection survive any such declaration and shall be a binding obligation of and inure to the benefit of the licensee and City and their respective successors and assigns, if any.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-20. License fees.
(a) The licensee shall pay to the City a license fee amount no less than five percent of licensee's gross revenues, provided however a licensee upon approval of the City Council may be excepted from such requirement as specified in the license. The licensee shall pay the license fee because, among other things, the streets and public ways which are used by the licensee in the operation of its cable system within the boundaries of the City are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and that the grant to the licensee to use said streets and public ways is a valuable property right without which the licensee would be required to invest substantial capital in right-of-way costs and acquisitions.
(b) Should applicable law or regulations be amended in the future to allow the City to receive a greater license fee than the license fee set forth in this section, the City shall have the right to increase the license fee by amending this chapter, provided however a licensee upon approval of the City Council may be excepted from such requirement as specified in the license.
(c) The payment of the license fee by the licensee to the City shall be made quarterly by delivery of the same to the City Treasurer of the City on or before the twentieth day of the following month, with a ten-day grace period. If such payment is not made by the next to the last business day of the following month, the City shall impose interest at a rate of one and one-half percent per month commencing from the date payment should have been made and continuing until the payment is made. Fractions of a month shall be considered to constitute a full month for the purpose of computing interest.
(d) The City shall have the right to inspect the licensee's income records and the right to audit and to recompute any amounts determined to be payable under this chapter. Any additional amount due to the City as a result of the audit shall be paid with applicable interest within thirty days following written notice to the licensee by the City; said notice shall include a copy of the audit report. If the audit result shows that the licensee has underpaid license fees by more than one percent of amounts due for the period audited, then licensee shall, within thirty days of a request to do so by the City, reimburse the City for the full cost of the audit. City Manager will attempt to coordinate any such audit with any privilege license tax audits and administrative appeals that the City may be performing under other City Code provisions at the same time. If the licensee timely, within thirty days, protests an audited additional license fee amount, then the amounts of such license fees assessed based on such audit shall not be due until final resolution by the City as provided in section 5-64.1 of this chapter. Upon resolution as provided in section 5-64.1 of this chapter, the City shall impose interest on any amount determined to be payable after such appeal procedure at the rate of one and one-half percent per month commencing from the date payment should have been made (i.e., within thirty days of the original assessment) and continuing until payment is made. If licensee pays an additional license fee as a result of such audit under protest and, upon exhaustion of all appeals, such additional fee is determined to have been overpaid, then the City shall refund such license fee overpayment plus interest at the rate of one and one-half percent per month from the date of such payment to the date of refund by City.
(e) Each license fee payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the licensor.
(f) No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the licensor may have for further or additional sums payable under the provisions of this license.
(g) Following the City's issuance of an initial license for a portion of the City, the licensee shall initiate license fee payments to the licensor at the minimum rate of fifteen thousand dollars per year. At such time as the licensee begins full system construction, this advance fee shall increase to thirty thousand dollars per year. These payments are to be considered advances of payments due in later years and will be credited in future years to those license fees which exceed fifty thousand dollars in a year.
(h) If the license is terminated, revoked, or forfeited prior to the time specified in the license document, the licensee shall immediately submit to the licensor a detailed financial statement showing the gross revenues of the licensee for the time elapsed since the last period for which the licensee has paid to the licensor the required license fee, and the licensee shall pay to the licensor, not later than thirty days following the termination, the appropriate amount due.
(i) If a license issued under the authority of this chapter contains a provision including the cost of right-of-way construction permits in the license fee, the City will be under no obligation to provide plans review or field inspection for that licensee should the City of Phoenix's administrative and inspection expenses exceed the amount of license fees paid to date by the licensee.
(j) For the purpose of proper administration of this chapter and to prevent evasion of license fees imposed by this chapter, it shall be presumed that all gross revenues are subject to the license fee until the contrary is established by the licensee as provided herein.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-2210, § 1; Ord. No. G-3779, § 1; Ord. No. G-4775, § 2, adopted 1-18-2006, eff. 2-17-2006)
Sec. 5-21. Abandonment; right to require removal of property.
(a) In the event that the use of a substantial part of the cable system is discontinued for any reason for a continuous period of twelve months, or in the event such cable system or property has been installed in any street or public place without complying with the requirements of the license or this chapter, or the license has been terminated, canceled or has expired without renewal, the licensee shall promptly, upon being given ten days' notice from the City, remove from the streets or public places all such property and poles of such cable system other than any underground cable or any other underground property which the City may permit to be abandoned in place. In the event of such removal, the licensee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the City subject to the licensor's customary practice to review upon request of licensee.
(b) Any property of the licensee remaining in place without the consent of the City one hundred eighty days after the termination or expiration of the license shall be at the option of the City considered permanently abandoned. The City may extend such time.
(c) Any property of the licensee permitted to be abandoned in place shall be abandoned in such a manner as the City shall prescribe. Upon permanent abandonment of the property of the licensee in place, the property shall become property of the City, and the licensee shall submit to the City an instrument in writing, to be approved by the City Attorney, indicating licensee's loss of any further ownership rights to such property.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-22. Costs of publication of license.
The licensee shall pay the cost of publication of the license to the extent such publication is required by law.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-23. Business succession and liability.
The provisions of the City Finance Code, article IV, chapter 14, relating to business succession and liability, shall be applicable to all application fees, licenses and license fees imposed under this chapter.
(Ord. No. G-2075, § 1; Ord. No. G-3779, § 1)
ARTICLE IV.
SYSTEM OPERATION AND MAINTENANCESec. 5-24. Inspection of records.
The licensee shall maintain an office within the City at which pertinent licensee records shall be available. The licensor shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, income records, service complaint logs, performance test results and other like materials of the licensee which relate to the licensee's obligations under its license.
The records and any additional information which may be required by the licensor pursuant to the requirements of this chapter or license document, shall be furnished by the licensee to the licensor upon request, and at the licensee's own cost and expense. Access to the aforementioned records shall not be denied by the licensee on the basis that said records contain "proprietary" information.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-25. Communications with regulatory agencies.
Copies of all petitions, applications, communications, and reports submitted by the licensee to the Federal Communications Commission, Securities and Exchange Commission, and any other federal or State regulatory commission or agency having jurisdiction with respect to any matters affecting the cable system or licensee's operations in the City shall be available upon request to the licensor, provided however, licensee shall without request, provide all documents required by law to be submitted to the licensor. Copies of responses from the regulatory agencies to the licensee shall likewise be available upon request to the licensor, provided however, licensor shall without request, provide all documents required by law to be submitted to the licensor.
Licensee shall provide licensor with copies of any petition, applications or communications submitted or filed by the licensee for bankruptcy or receivership of licensee, and documents related to licensee declaration of bankruptcy, assignment, receivership or trusteeship.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-26. Reports.
(a) No later than April 30 of each year or one hundred twenty days after the close of the licensee's fiscal year, the licensee shall present a written report to the licensor which shall include:
(1) Full financial statements for the previous year, including income statement, balance sheet, cash flow statement, and appropriate explanatory footnotes, for the licensee or any parent company. Financial statements for the licensee or any parent company shall be audited by an independent CPA, and all other statements shall be certified by an officer of the licensee to be an accurate reflection of licensee's books and records. In the event any audited financial report has not been published by the date due under this section, then the audited financial report shall be deemed presented on time if presented within thirty days after publication. Upon request by licensor, the licensee shall also provide an oral briefing to the City Manager of its financial condition. This will include revenues, operating expenses and capital expenditures for the previous year.
(2) A report that includes the following information specific to the City:
a. Gross revenues from each source, attributable to the operations of licensee from within the City;
b. A summary of the previous year's major activities applicable to its operation for the license area separately, including, but not limited to, the total number of subscribers for each category of service authorized by a license, the number of homes passed, miles of cable plant, other significant system facilities or equipment added or deleted, any services added or dropped, and any significant technological changes occurring in the system;
c. A summary of complaints received and handled; and
d. Projected plans for the future;
e. The report shall be certified as being correct by an officer of the company.
(b) Monitoring and compliance reports. No later than April 30 of each year, the licensee shall provide a written report of any performance tests performed for the cable system. The licensor may establish a performance testing process to supplement the FCC standards if there are no FCC standards.
(c) Additional reports. The licensee shall prepare and furnish to the licensor, at the times and in the form prescribed, such additional reports with respect to its operation, affairs, transactions, or property, as may be reasonably necessary and appropriate to review the performance of the licensee in connection with its license. Upon request, licensee shall make available to licensor at licensee's offices, complete design maps of the cable system. Upon request the licensee shall furnish the licensor with a copy of any and all agreements relating to the license between the licensee and any utility providing for the use of any facility of the utility.
(d) Electronic mapping. At intervals specified in the license and in an electronic mapping format compatible with the current City electronic mapping format, the licensee shall provide the licensor, up-to-date route maps of a suitable scale showing all transmitting and receiving pickup locations, the fiber and coaxial plant, and coaxial amplifiers and pedestal locations.
(c) Misrepresentation, material variances between the actual situation and the contents of the reports, and/or significant tardiness in complying with this section shall be grounds for the licensor's use of appropriate remedies under this chapter.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-27. Customer service standards.
(a) Each licensee shall at all times satisfy federal customer service standards and the customer services standards set forth in this chapter and in its license document. In the event of a conflict among standards, the stricter standard shall prevail, unless such standard has been preempted by federal law, provided however a licensee upon approval of the City Council may be excepted from the customer services standards set forth in this chapter as specified in the license.
(b) The licensee shall maintain a publicly listed, toll-free or collect telephone access line which will be available to its subscribers twenty-four hours a day, seven days a week, and be so operated to receive subscriber complaints, requests for repairs, service calls or billing adjustment.
A written log shall be maintained listing all subscriber complaints. A complaint is any complaint by a subscriber to the City that they did not receive the service the subscriber requested consistent with the requirements of a license. The log shall include the name and telephone number, if given, of the subscriber making the complaint and the disposition of the complaint. The record shall be maintained for three years. In addition, the licensee shall report specific complaint categories that the licensee tracks as a reasonable measure of customer service response standards and is required to be reported in the license.
(c) The licensee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as practicable, shall be preceded by notice and shall occur during period of minimum use of the cable system. A written log shall be maintained for all major service interruptions including trunk and feeder line outages and the record shall be kept for a period of three years.
(d) The licensee shall maintain a repair force of technicians capable of responding to subscriber complaints or request for service as required herein after receipt of the complaint or request. Unless FCC rules provide otherwise, no charge shall be made to the subscriber for this service except where the licensee equipment has been damaged by the subscriber and except as may be provided in the license for fees and charges.
(e) The licensee shall ensure that all subscribers, programmers, and members of the general public have recourse to a satisfactory hearing of any complaints. The licensee shall provide each subscriber with a statement that delineates the process for submitting a complaint and that specifies:
(1) The telephone number and the address of the licensee that the subscriber can utilize to make a complaint.
(2) A statement indicating that a dissatisfied subscriber should exhaust its remedy with the licensee before submitting a complaint to the City.
(3) The address and title of the official in the City designated by the City Manager to review complaints.
(f) Upon request by the City Manager the licensee shall submit a detailed description of any complaint whether written or verbal and the action taken by the licensee. The City Manager may establish such other procedures as he deems necessary for the handling and settling of complaints regarding cable television operations after notice to the public prior to adoption. Additional customer service standards determined necessary to respond to general customer service needs may be adopted by the City Council after notice to the public prior to adoption.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1; Ord. No. G-4775, § 3, adopted 1-18-2006, eff. 2-17-2006)
Sec. 5-27.1. Construction notification.
The City Manager may establish requirements for notification of adjacent residents prior to construction. Failure to comply with this section shall subject licensee to appropriate remedies under this chapter.
Type of Insurance Minimum Limits of Liability Commercial general liability $1,000,000.00 combined single limit Premises/operations Products/completed operations Contractual Independent contractors (OCP) Personal injury with exclusion "C" deleted Automobile liability $1,000,000.00 combined single limit Owned Hired Non-owned (b) The City shall have no responsibility of liability for such insurance coverage. An enumeration of specific insurance coverage and amounts shall not limit or restrict the indemnity covenants contained in this license. The licensee shall furnish the City with a certificate of insurance. The certificate shall be issued by an insurance company authorized to transact business in the State of Arizona, or be named on the list of authorized insurers maintained by the Arizona Department of Insurance. Insurance coverage shall not expire during the life of the license. The license shall provide a renewal certificate of the required insurance covered to the City not less than ten days prior to the expiration date.
(c) The licensee shall also provide catastrophe umbrella insurance coverage in the minimum amount of four million dollars in excess of one million dollars underlying coverage; and
(d) The City, its officers, agents and employees shall be named as an additional insured on the licensee's policy except worker's compensation and employers liability and this shall be indicated on the certificate of insurance issued to the City. The licensee's coverage shall be primary for any and all losses arising out of the performance of the license; and
(e) The licensee's policy shall specifically provide full coverage for explosion, collapse and underground incidents.
(f) Said liability insurance policy shall carry a thirty-day notice of cancellation endorsement.
(g) All deductible amounts under liability insurance coverage shall be approved by the licensor.
(h) The licensor may, during the term of the license, no more frequently than every three years, modify the liability insurance provisions provided for in this section, based on increases in the CPI, so as to ensure full protection of the City and the public. The licensee shall have six months from the date of notification from the City Manager to comply with any increase.
(i) A licensee may self-insure the above-described policy coverages if such licensee or its parent is of sufficient financial standing to reasonably provide such insurance. A licensee that elects to self-insure shall file with the City a certificate of insurance as specified by the City.
(j) The licensee shall provide a letter of certification, from the Industrial Commission of Arizona, that the licensee is insured by the State compensation fund or is an authorized self-insurer or a certificate of insurance issued by an insurance company authorized by the Arizona Department of Insurance to provide worker's compensation and employer's liability insurance in the State of Arizona.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-30. Faithful performance bond.
The licensee shall, within thirty days after the effective date of an initial license under this chapter, file with the licensor a performance bond in the amount of fifty thousand dollars, payable to the City, conditioned on that the licensee shall well and truly observe, fulfill and perform each term and condition of the license, including the full amount of any compensation, indemnifications or cost of removal or abandonment of any property of the licensee, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond.
At such time as the licensee begins incidental construction on the system, the Street Transportation Director may increase the required level of performance bond to a level commensurate with cable system construction in the right-of-way.
Upon initiation of major system construction or initiation of the cable system construction required in the license, the amount of bond shall be increased to at least three hundred thousand dollars or more as determined by the Street Transportation Director based on the level of construction in the right-of-way.
One year after completion of the construction schedule as required in the license, the amount of bond shall be reduced to two hundred thousand dollars. This amount shall be maintained for the remaining period of the license.
Funds represented by the aforestated bond shall be recoverable by the licensor in case of noncompliance by the licensee, its agents, its assignees, vendees, lessees, or successors in interest.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3313, § 1; Ord. No. G-3779, § 1)
Sec. 5-31. Security fund.
(a) Within thirty days after the effective date of an initial license or renewal license, the licensee shall deposit into a suitable interest-bearing account established by the licensor, and the licensee shall maintain on deposit through the term of this license, the sum of not less than forty thousand dollars, as security for the faithful performance by it of all the provisions of this license, and compliance with all orders, permits and directions of any agency of the licensor having jurisdiction over its acts or defaults under this ordinance or license issued pursuant thereto, and the payment by the licensee of any claims, liens, penalties, liquidated damages and taxes due the licensor which arise by reason of the construction, operation or maintenance of the cable system. Licensor shall have the full power of withdrawal of funds from the account except that all interest accrued shall be payable to the licensee on demand. No withdrawals shall be made from the security fund account without the prior written approval of the City Manager.
(b) Within thirty days after notice to licensee that any amount has been withdrawn by the licensor from the security fund pursuant to subsection (a) of this section, the licensee shall deposit a sum of money sufficient to restore such security fund to the original amount.
(c) If the licensee fails, within ten days of a notice of intent to withdraw from the security fund, to pay to the licensor any taxes or fees due and unpaid; or fails to repay to the licensor, within such ten days of such notice, any damages, costs or expenses which the licensor shall be compelled to pay by reason of any act or default of the licensee in connection with the license; or fails, within thirty days of such notice of failure by the licensor, to comply with any provision of the license which the licensor reasonably determines can be remedied by an expenditure of the security fund, the licensor may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the licensor shall notify the licensee of the amount and date thereof.
(d) The security fund deposited pursuant to this section shall become the property of the licensor in the event that the license is cancelled by reason of the default of the licensee or revoked for cause. The licensee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the license, or upon termination of the license at an earlier date, provided that there is then no outstanding default on the part of the licensee. Any funds that the City erroneously or wrongfully withdraws shall be returned to licensee, with interest of one and one-half percent per month from the date of withdrawal, within thirty business days of a final determination that the withdrawal was in error or wrongful.
(e) The rights reserved to the licensor with respect to the security fund are in addition to all other rights of the licensor whether reserved by this chapter or a license or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the licensor may have.
(f) In lieu of providing a forty thousand dollar security fund, the licensee may provide a twenty thousand dollar security fund and a twenty thousand dollar letter of credit in a form approved by the City Attorney. The provisions set forth in subsection (a) through (e) shall apply to the twenty thousand dollar security fund and twenty thousand dollar letter of credit. Reference to security fund in this chapter shall be considered as referring to both the security fund and letter of credit if licensee exercises this option.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-3779, § 1)
ARTICLE V.
DESIGN AND CONSTRUCTION PROVISIONSSec. 5-32. Standards for construction.
The cable television system shall be constructed in accordance with FCC requirements and the provisions of this chapter as set forth herein and in the license. If FCC requirements are terminated and this chapter or the license provides no corresponding requirements, then the FCC regulations shall remain in effect on licensees by order of this chapter until the City approves the terminations or adopts substitute requirements.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-33. License area.
The City may issue a license for any portion of the City up to and including the present territorial limits of the City and any other area later added during the term of the license. The licensee shall, prior to the issuance of a license, submit a map to the licensor, showing the initial license area and indicating all areas proposed to be served and a proposed time schedule for installation of the cable system. If any of the license area is subject to a line extension policy or other limiting provisions, the policy or provisions shall be stated in the license document.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-34. Cablecasting facilities.
The licensee shall provide cablecasting facilities in accordance with the requirements set forth in the license document. Such facilities shall remain the property of the licensee, whether used for local origination or public, educational or governmental use.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-35. Interconnection.
(a) Subject to the limitation of applicable federal and State law, the licensee shall provide interconnection capability as specified in the license and as required herein.
(b) Subject to the limitation of applicable federal and State law, the licensor may require interconnection between any or all of the licenses issued by the licensor. Such interconnection may be required for the purpose of providing services specified in the license on a City-wide basis and/or providing the capability for institutional communications throughout the City.
(c) Subject to the limitation of applicable federal and State law, when such interconnection is required within the City limits, the cost shall be borne by all licensees to be interconnected. If licensees cannot establish a cost sharing formula for interconnection or cannot resolve technical issues, the City Manager may establish a cost sharing formula and resolve technical issues and his decision shall be final and conclusive.
(d) Except as provided in the license, licensee shall interconnect access channels of the cable system with any or all other cable systems in adjacent areas outside the City, upon the directive of the City. Interconnection of cable systems may be done by direct cable connection, microwave link, satellite, or other appropriate method.
(i) Upon receiving the directive of the City to interconnect such other cable systems, a licensee shall immediately initiate negotiations with the other affected cable system(s) in order that all costs may be shared fairly among cable systems for both construction and operation of the interconnection link, as more particularly set forth in the licenses.
(ii) A licensee may be granted reasonable extensions of time to interconnect or the City may rescind its order to interconnect upon petition by the licensee to the City. The City shall grant said request, if it finds that a licensee negotiated in good faith and failed to obtain an approval from another cable system(s) of the proposed interconnection.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-36. System construction schedule.
(a) For any construction or improvements required under the provisions of any license, the license document shall establish minimum construction deadlines which shall be met.
(b) The license shall contain a construction schedule designating the amount of construction required each year during the construction period in increments of no more than six months. This construction schedule shall be the principal criterion to be used in the City's determination of whether the licensee is meeting the construction requirements. The licensee shall submit modifications of the construction schedule to the City and these modifications shall be deemed to be approved by the City and included in the schedule unless the licensee is notified by the City in writing within thirty days of receipt of the modification that the modification is disapproved. The modifications of the construction schedule may not be discriminatory, result in an overall delay in the construction period, or result in an isolation of an area from service in violation of the line extension policy set forth in the license.
(c) The licensee shall report on construction progress on a monthly basis, after construction begins, and provide this information to the licensor, showing specifically whether the construction schedule is being met and the reasons for any delay. The written report shall state the number of feet of strand in place, the number of feet of cable installed overhead and underground as well as the number of dwellings passed by that cable, the number of amplifiers installed, the approximate number of homes which can be served directly by the energized cable, the approximate number of homes which have been offered service, the approximate number of subscribers, as of the last day of the month, and map showing areas with cable installed, areas with cable energized and areas to be installed or energized within the next month. The report shall be submitted to the licensor by the first working day after the ninth day of the following month. The licensor may determine the format to be used by the licensee in completing this report.
For construction which involves rebuilding, the licensor may change the reporting period to a quarterly basis and what information is to be included in the written report.
(d) The licensee shall schedule its construction activities to coordinate with the City's construction activities on the streets, so as to avoid unnecessary inconvenience to the public.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-2632, § 1; Ord. No. G-3619, § 1; Ord. No. G-3779, § 1)
Sec. 5-37. Provision of service.
(a) Consistent with the line extension policy in the license, the licensee shall make service available for installation upon the request of to any subscriber, potential subscriber or property owner or the City within the service area, no later than one hundred twenty days from the date of request.
(b) Once licensee has made service available to installation, licensee shall provide service to the potential subscriber within the time periods specified in the license.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-38. Undergrounding of cable.
(a) Cables shall be installed underground where all existing utilities are already underground. Previously installed aerial cable shall be undergrounded in concert with utilities when their facilities are undergrounded. Licensee may install cables on existing or replacement utility poles or in existing conduit where permission is granted by owner of the utility pole or conduit. No additional poles or longer poles will be permitted in the streets or public ways for any cable runs of this license. If licensee installs cable on existing poles as provided herein, the licensee shall bury its cable if such poles are removed and not replaced in kind. If the licensee makes use of existing conduit of an entity not then regulated by the City, by license or franchise, the licensee shall be subject to the provisions of this license in the use of such conduit in the streets and public ways.
(b) To prevent unnecessary disruption and damage to streets, rights-of-way, and other property the installation of cable system shall be accomplished in new subdivisions at the same time, and in the same trench as other communications, electric and other permanent services to structures. Except as federal law may grant them other rights, developers of new residential buildings or mobile homes within a new or undeveloped subdivision, new residential units within new multiple-occupancy residential developments, and new commercial and industrial buildings and structures shall treat cable television facilities as they treat other communication facilities, utilities and other underground facilities, in regards to availability and cost of trenching for undergrounding.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-39. Special additional underground service permit.
If a residence is already served by cable television service, the licensee shall obtain a special additional underground service permit to construct underground facilities. The special additional underground service permit shall be required in addition to all other permits required. The City Manager or his designee may adopt regulations providing for the procedural requirements for issuing such permits.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-40. Construction standards and codes.
(a) In addition to meeting all requirements of local electrical and building codes specified in this chapter, the licensee shall comply with specifically established standards and requirements for construction of the system specified in the license.
(b) Construction, installation and maintenance of a cable system shall be performed in an orderly and professional manner. All cables and wires shall be installed, where possible, parallel with and in a manner similar to the installation of electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. Underground installations shall be in conformance with all applicable codes.
(c) Each cable television system shall include equipment capable of providing standby power as specified in the license. The equipment shall be so constructed as to automatically revert to the standby mode when the electrical utility power returns. The system shall incorporate safeguards necessary to prevent injury to cable service technicians resulting from licensee's standby power sources.
(d) Licensee shall at all times comply with applicable sections of:
(1) National Electrical Safety Code (ANSI) C2-1990;
(2) National Electrical Code (National Bureau of Fire Underwriters);
(3) The City Building Code;
(4) City subdivision regulations, all as from time to time amended and revised, and all other applicable rules and regulations now in effect or hereinafter adopted by the City;
(5) City of Phoenix supplement to the Maricopa Association of Government Uniform Standard Specifications for Public Works Construction.
(e) In any event, the cable system shall not endanger or interfere with the safety of persons or property in the license area or other areas where the licensee may have equipment located.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-41. Preconstruction tests.
Before beginning the actual installation, components shall be tested thoroughly to assure that the components individually and in aggregate provide high signal quality and are dependable. The license shall specify the tests and procedures to be utilized in meeting this requirement.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-42. Technical and performance standards.
(a) In addition to the system tests required by the FCC, the licensee shall perform tests of the cable system as set forth in the license to comply with the goals and standards specified herein. The tests shall be performed periodically, to assure the City that standards are being met.
(b) The licensee shall comply with the FCC Technical Standards for Class 1 channels (part 76, subpart K of the FCC rules and regulations). The license will set forth detailed objectives, standards and requirements for operating a cable system. The City reserves the right to specify in the license document additional standards in a manner consistent with federal law. Each licensee shall demonstrate to the City whether the cable system does meet or exceed FCC technical standards for each channel.
(1) As provided in the license, licensee shall construct, install, operate and maintain its system in a manner such that it operates at all times consistent with all laws, this chapter, construction standards of the City, FCC rules and regulations, part 76, subpart K, as amended, which establish minimum technical standards relating to the cable system's technical operations and signal quality, and any detailed standards submitted by licensee as part of its application or renewal proposal, which standards are to be incorporated by reference in the license. In addition, licensee shall provide the City, upon request, the opportunity to observe the conduct of and a written report of the results of licensee's annual proof of performance tests. In addition, the City may at any time conduct independent measurements of the system by the use of City personnel or use of contract services. In the event that inaccurate proof of performance reports are shown to have been the result of licensee's willful neglect, licensee shall pay the costs reasonably incurred by the City in obtaining such independent verification of technical compliance with all standards.
(c) System reliability. The license shall specify system reliability standards. The license shall specify methods for achieving this standard. A repeated or lengthy failure by licensee to achieve this standard, shall subject the licensee to liquidated damages or other remedies under this chapter.
(d) System maintainability. The licensee shall achieve a "mean-time-to-repair" objective for system malfunction in addition to the requirements set forth in section 5-27. The license shall specify the mean-time-to-repair objective in hours and the method for achieving this objective. A repeated or lengthy failure by licensee to achieve this objective shall subject the licensee to liquidated damages or other remedies under this chapter.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3619, § 1; Ord. No. G-3779, § 1)
Sec. 5-43. Use of cable system during an emergency.
(a) The licensee shall design and construct the system to provide for a restricted audio override of the audio portion of all channels during emergencies unless prohibited by FCC regulations. Emergency or standby power sources will be installed at the main electronic control center and appropriate locations so as to minimize loss of signal. Key cable routings shall also be equipped with a standby power source. In case of any declared emergency or disaster, the cable system shall, upon request of the Mayor or City Manager, make available immediately its facilities to the City for emergency use during the emergency or disaster period. A declared emergency or disaster as used in this section means such event that has been proclaimed by the Mayor, the Governor or other competent authority.
(b) If licensee's cable system passes any emergency command centers of State and local government within the City, the licensee shall make the cable system available to such centers so that emergency audio and visual communications to the public are possible from those centers as specified in the license.
(c) During declared emergencies or disasters, licensee shall make its local origination and other necessary equipment if any available at the emergency command centers to facilitate television communications from those centers.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Cross references: Civil defense, ch. 11.
Sec. 5-44. Damage to cable system during an emergency.
Subject to the applicable Phoenix City Charter, City Code and Arizona State statutes, the City shall have the right, because of a public emergency, to sever, disrupt, dig up or otherwise destroy facilities of licensee, without any prior notice if such action is deemed reasonably necessary by the City Manager, Fire Chief, Police Chief, Street Transportation Director, Public Works Director, or Water Services Director. A public emergency shall be any condition which, in the opinion of any of the officials named, poses an immediate threat to the lives or property of the citizens of the City, caused by any natural or manmade disaster, including, but not limited to, storms, floods, fire, accidents, explosions, major water main breaks, [or] hazardous material spills. Licensee shall be responsible for repair of its facilities damaged pursuant to any such action taken by the City.
(Ord. No. G-3779, § 1)
Sec. 5-45. Restoration of streets.
Whenever the licensee disturbs the surface or subsurface of any street or public way or adjoining public property or the public improvement located thereon, therein or thereunder for any purpose mentioned herein, the licensee shall promptly, at its own expense, restore, repair or replace the same to the satisfaction of the licensor (subject to the licensor's customary practice of review upon request of licensee). If such restoration, repair or replacement of the surface, subsurface or any structure thereon, therein or thereunder is not completed in a reasonable time or such restoration, repair or replacement does not meet the City's satisfaction, the licensor may perform the necessary restoration, repair or replacement, either through use of its own forces or through a hired contractor, and the cost thereof, including the cost of inspection and supervision, shall be paid by the licensee within thirty days after receipt of the City's invoice therefor. All excavations made by the licensee in the streets and public ways shall be properly safeguarded for the prevention of accidents. The work hereby required shall be done in strict compliance with the rules, regulations and ordinances of the licensor as now or hereafter provided.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Cross references: Excavations in streets, § 23-26.
Sec. 5-46. Use of streets and public ways.
(a) The cable system herein provided for, to be constructed, installed, operated and maintained hereunder, shall be so located or relocated as to interfere as little as possible with traffic or other authorized uses over, under or through said streets and public ways. Those phases of construction relating to traffic control, backfilling, compaction and paving, as well as the location or relocation of said cable system herein provided for, shall be subject to regulation by the City. The licensee shall keep accurate installation records of the location of all facilities in the streets and public ways and furnish them to the City upon request. Licensee shall cooperate with the City to furnish such information in an electronic mapping format compatible with the current City electronic mapping format. Upon completion of new or relocation construction of underground facilities in the streets and public ways, the licensee shall provide the City with installation records in an electronic format compatible with the current City electronic mapping format showing the location of the underground and above-ground facilities.
(b) If, during the design process for public improvements the City discovers a potential conflict with proposed construction, the licensee shall either: (1) locate and, if necessary, expose its facilities in conflict or (2) use a pothole service under contract with the City to locate or expose its facilities. Licensee shall reimburse the City for the cost resulting from number (2) above. The City shall make every reasonable effort to design projects pursuant to this subsection so as to avoid relocation expense to the licensee. Licensee agrees to furnish the location information in a timely manner, but in no case longer than forty-five days.
(c) The City reserves the prior and superior right to lay, construct, erect, install, use, operate, repair, replace, remove, relocate, regrade, widen, realign, or maintain any streets and public ways, aerial, surface, or subsurface improvement, including but not limited to water mains, traffic control conduits, cable and devices, sanitary or storm sewers, subways, tunnels, bridges, viaducts, or any other public construction within the rights-of-way of the City limits.
(d) When the City uses its prior and superior right to the streets and public ways, the licensee shall move its property located in the streets and public ways, at its own cost, to such a location as the City directs. Notwithstanding the foregoing, in the event the public purpose project is paid for totally or in part by non-public funds, then the licensee's costs of moving its property shall be borne by the source of the non-public funds in the same ratio as the non-public funds bear to the total project's costs.
(e) If, during the course of a project, the City determines licensee's facilities are in conflict, the following shall apply:
(1) Prior to City notice to proceed to contractor, the licensee shall, within a reasonable time, but in no event exceeding six months, remove or relocate the conflicting facility. This time period shall begin running upon receipt by the licensee of written notice from the City. However, if both the City and the licensee agree, the timeframe may be extended based on the requirements of the project.
(2) Subsequent to City notice to proceed to contractor, the City and the licensee will immediately begin the coordination necessary to remove or relocate the facility. Actual construction of such removal or relocation is to begin no later than seventy-two hours, if practicable, after written notification from the City of the conflict.
(f) The licensee agrees to obtain a permit as required by the license prior to removing, abandoning, relocating or reconstructing, if necessary, any portion of its cable system. Notwithstanding the foregoing, the City understands and acknowledges there may be instances when the licensee is required to make repairs, in compliance with federal and/or State laws, that are of an emergency nature. The licensee will notify the City prior to such repairs, if practicable, and will obtain the necessary permits in a reasonable time after notification.
(g) The City shall not bear any cost of relocation of existing facilities, irrespective of the function served, where the City facilities or other facilities occupying the streets or public ways under authority of a City permit or license which must be relocated, are already located in the streets or public ways and the conflict between the licensee's potential facilities and existing facilities can only be resolved expeditiously as determined by the City by the movement of the existing City or permittee facilities.
(h) If licensee's relocation effort so delays construction of a public project causing the City to be liable for delay damages, the licensee shall reimburse the City for those damages attributable to the delay created by the licensee. In the event the licensee should dispute the amount of damages attributable to the licensee, the matter shall be referred to the administrative hearing procedure provided in this chapter. If damages are assessed by the licensor after final decision by the City, the licensee shall pay the City within thirty days. Late charges of five percent and interest charges of one and one-half percent per month shall be added for late payment.
(i) The installation, use and maintenance of the licensee's cable system within the streets and public ways authorized herein shall be in such a manner as not to interfere with the City's placement, construction, use and maintenance of its streets and public ways, street lighting, water pipes, drains, sewers, traffic signal systems or other City systems that have been, or may be, installed, maintained, used or authorized by said City.
(j) The licensee agrees not to install, maintain or use any of its cable system in such a manner as to damage or interfere with any existing facilities of another utility located within the streets and public ways of the City and agrees to relocate its facilities, if necessary, to accommodate another facility relocation, that has a prior rights interest in the streets and public ways.
(k) The licensee shall obtain permits from the City for all construction and relocation in the streets and public ways. Further, the licensee shall reimburse the City for pavement damage as specified in the license. Reimbursement for pothole services and pavement damage is separate, and in addition to, any license fees included in the license. The licensee, at the time of or prior to submitting construction plans, shall provide the City with a description of the type of service to be provided by the licensee in sufficient detail for the City to determine compliance with this license.
(l) The entire cost of relocation shall be borne by the City if the licensee is required by the City to relocate facilities which are located in private easements or rights-of-way obtained by the licensee prior to the dedication of the public street or easement from which the facilities must be relocated. These prior rights of the licensee would also be unaffected by any subsequent relocation. "Prior rights" as used in this paragraph means property rights obtained by the licensee prior to the dedication of the streets or public ways from which the facilities are requested by the City to be relocated.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-47. Trimming of trees.
Any trimming of trees by the licensee in the streets and public ways shall be subject to such regulation as the City Manager or other authorized official may establish in order to protect the public health, safety and convenience.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-48. Vacated street.
In the event any street or public way used by the licensee shall be vacated by the licensor, or the use thereof discontinued by the licensee, during the term of the license, the licensee shall forthwith remove its facilities therefrom unless a public utility easement remains or the licensee is specifically permitted to continue in place.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-49. Temporary removal of cable to move large objects.
In the event it is necessary temporarily to move or remove any of the licensee's wires, cables, poles or other facilities placed pursuant to the license, in order lawfully to move a large object, vehicle, building or other structure over the streets and public ways of the licensor, licensee upon reasonable notice shall move at the expense of the person requesting, other than such a request by the licensor for public purposes, the removal of its facilities as may be required to facilitate such movements.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
ARTICLE VI.
SYSTEM SERVICESSec. 5-49.1. Institutional service (IS).
The license may contain provisions requiring the licensee to provide institutional service.
(Ord. No. G-1630, § 1; Ord. No. G-3619, § 1; Ord. No. G-3779, § 1)
Sec. 5-50. Local origination channel.
The licensee shall operate the cablecasting studios on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests. The emphasis for the local origination channel shall be on providing local programming that is unavailable to viewers on broadcast television channels. Programming priority on this channel shall be given to local cultural and sporting events; local political, social and economic issues of interest; and local entertainment.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-51. Government access channel.
The licensee shall provide the channels for the use of the licensor and other government agencies located within the City, at no charge to the licensor as specified in the license. As specified in the license, the licensee shall provide advice, technical expertise and facilities and equipment to aid in the utilization of the channels, and other support as specified in the license.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-52. Educational access channel.
The licensee shall provide channel capacity for educational use at no charge to users as specified in the license. As specified in the license, the licensee shall provide advice, technical expertise, facilities and equipment to aid in the utilization of such channels, and other support as specified in the license.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-53. Public access channel.
The licensee shall provide for the use of the public at no charge channel capacity as specified in the license. As specified in the license, the licensee shall provide advice, technical expertise and facilities and equipment to aid in utilization of such channels and other support as specified in the license.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-3779, § 1)
Secs. 5-54– 5-59. Reserved.
ARTICLE VII.
LICENSE ADMINISTRATION AND ENFORCEMENTSec. 5-60. Intent.
It is the intent of the licensor to provide for the day-to-day administration and enforcement of the provisions of any license granted by the City by delegating such responsibility to the City Manager. This delegation will be effective upon the granting of a license.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-61. Revocation of license.
(a) In addition to all other rights and powers retained by the City under this chapter or otherwise, any license issued hereunder may, pursuant to this section be revoked, altered, or suspended by the licensor, except as may be prohibited by federal law. Such revocation, alteration or suspension may occur in the event of a recurring or protracted substantial breach of the license terms and conditions, or this chapter, which substantially affects the provision or quality of cable services, the ability of the licensor to effectively regulate the licensee, or the licensor's collection of fees or charges. The list set forth below in this section shall be considered substantial breaches. The list is not exhaustive:
(1) Willful, false or misleading statements to the licensor;
(2) Failure to file and maintain the faithful performance bond, security fund or insurance coverage or to pay license fees as required under this chapter;
(3) Repeated failure, as determined by the licensor, to maintain signal quality under the standards prescribed by this chapter and the license document;
(4) Any sale, lease, assignment, or transfer of control of its license without prior consent of the City;
(5) Violation of material terms of this chapter or material terms of a license issued pursuant to this chapter, such as, but not limited to, any excessive delay in beginning construction or in meeting the construction schedule or in providing subscriber services after completion of construction or in completing construction of the cable system;
(6) Any instance in which all or part of licensee's facilities are sold under an instrument to secure a debt and are not redeemed by licensee within thirty days from said sale;
(7) Fraud or deceit by the licensee, or attempt thereof in its conduct or relations under or pursuant to the license;
(8) Failure to meet any conditions established in a license or failure to perform as required in areas designated as grounds for revocation in the license;
(9) Willful or grossly negligent repeated violations of this chapter, the license, or representations made in the application process, or any rule, order or regulation of the licensor;
(10) Recurrent failure after notice by the licensor, to provide service to any part of the licensee service area, subject to the line extension policy.
(b) Upon determination by the City Manager that one or more of the above grounds or other grounds for revocation, alteration or suspension of the license exist, the City Manager shall notify the licensee of that determination, shall state the major causes and reasons supporting the determination, shall make a written demand that the licensee comply and shall state the potential remedies for noncompliance. If a violation by the licensee continues for a period beyond that set forth in the written demand without written proof that the corrective action as approved by the City has been taken or is being actively and expeditiously pursued, the licensor may revoke, alter or suspend the license as provided in this chapter.
(c) Upon revocation of a license, the City may declare a forfeiture, whereupon all rights of the holders of the license shall immediately be divested without a further act upon the part of the licensor, and the licensee shall, at the option of the City, forthwith remove its structures or property from the streets and public ways and restore them to such condition as the licensor may require as provided in section 5-21. Upon failure to do so, the licensor may perform the work and collect the cost thereof from the licensee.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-62. Remedies for delay in construction and liquidated damages.
(a) The licensor may, at its sole option, apply the following in connection with delays in system construction after notice of intent to licensee:
(1) Reduce the duration of the license on a month-for-month basis for each month of delay within the licensee's control exceeding three months. Such reduction in term shall not accumulate beyond a total of two years.
(2) Forfeiture of performance bonds.
(b) The license document shall contain provisions for assessing liquidated damages in lieu of, at the discretion of the licensor, any remedy authorized herein for failure to comply with the terms of this chapter or the license document.
(c) Each license granted by the City shall state that the licensee understands and shall agree that failure to comply with any time and performance requirements as stipulated in this chapter and the license will result in damage to the City, and it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance. The license shall include provisions for liquidated damages to be paid by the licensee in amounts set forth in the license and chargeable to the security fund for the following concerns:
(1) Failure to complete system construction or reconstruction in accordance with this chapter and/or the license, unless the City Council specifically approves the delay by motion or resolution;
(2) Failure to provide a cable connection within the time(s) set forth in any line extension policy;
(3) Failure to properly restore the public right-of-way or to correct related violations of specifications, code, or standards after having been notified to correct such defects;
(4) Failure to comply with customer service standards as required by the license;
(5) Failure to test, analyze and report on the performance of the cable system as required by the license;
(6) Failure to provide in a continuing manner the type of services proposed in the renewal proposal, or license, unless the City Council specifically approves modification of licensee's obligation;
(7) Failure to cure any violation of the license, following notice and an opportunity to cure; and
(8) Any other action or non-action by the licensee, as agreed upon between the City and licensee, and set forth in the license.
(d) If the City Manager concludes that a licensee is in fact liable for liquidated damages pursuant to this section, and that the particular event, occurrence or failure of the licensee which is the basis for the conclusion was not the basis for a prior assessment of liquidated damages, the City shall issue to licensee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the nature or the violation and the amount of the proposed assessment. The licensee shall, within thirty days of receipt of such notice:
(1) Respond to the City in writing, contesting the City's assertion of violation and providing such information or documentation as may be necessary to support licensee's position; or
(2) Cure any such violation (and provide written evidence of the same), or, in the event that, by the nature of the violation, such violation cannot be cured within such thirty-day period, take reasonable steps to cure said violation and diligently continue such efforts until said violation is cured. Licensee shall report to the City, in writing, at thirty-day intervals as to licensee's efforts, indicating the steps taken by licensee to cure said violation and reporting licensee's progress until such violation is cured.
(e) In the event that licensee timely contests the City's assertion of violation and intention to assess liquidated damages, the City shall within fifteen days schedule a hearing in accordance with the procedures set forth in section 5-64 to determine whether there is a violation and whether liquidated damages may be assessed against licensee.
(f) If the licensee does not contest in writing the City's assertion of violation or cure or begin curing of such violation within thirty days of receipt of such notice, the City Manager's decision and the amount of the proposed assessment of liquidated damages shall be considered final and the City may exercise all remedies provided in the license to collect such liquidated damages.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-63. City Manager's responsibility.
The City Manager shall have responsibility for performing the following functions:
(a) Initiating proceeding for revocation, alteration or suspension of the license as established in section 5-61 of this ordinance.
(b) Administering and enforcing the provisions of the cable television system license(s).
(c) Coordinating the government access channel.
(d) Providing coordination and technical programming and operational support to City departments.
(e) Establishing procedure and standards for operations and services, use of dedicated channels, and sharing of public facilities.
(f) Planning expansion and growth of City cable services in conjunction with the licensee.
(g) Analyzing the possibility of integrating cable communications with other City, State or regional telecommunications networks.
(h) Formulating and recommending long range telecommunications policy for the City.
(i) Contracting with established facilities for the provision of programming and technical support, where deemed appropriate.
(j) Adopting regulations as may be required to enforce the provisions of this chapter.
(k) Performing any other activities associated with cable television.
(Ord. No. G-1630, § 1; Ord. No. G-2994, § 1; Ord. No. G-3779, § 1)
Sec. 5-64. License administration and enforcement.
(a) In all matters of license administration, the City Manager shall have authority to determine the licensee's compliance with the terms and provisions of the license, and in the event of noncompliance to exercise any or all of the remedies included in this chapter.
(b) The licensee may request an administrative hearing on an initial decision of the City Manager on matters of license administration delegated to the City Manager, if the licensee requests in writing such a hearing within ten days of the City Manager's notification to licensee of the noncompliance. However, the licensee shall have thirty days following written notice to licensee by the City pursuant to section 5-20(d) of any additional amount of license fee due the City as a result of an audit to protest and request an administrative hearing pursuant to the provisions set forth in section 5-64.1, which section shall be the exclusive procedure to protest an audited additional license fee amount.
(c) Within fifteen days of receipt of the request from the licensee submitted pursuant to subsection (b), an administrative hearing shall be scheduled by the City Manager. This shall be a public hearing, and licensee shall be afforded an opportunity to be heard, to present evidence and to cross examine witnesses. Within fifteen days after the conclusion of such hearing, the City Manager shall issue a determination. In that determination the City Manager may:
(1) Find that licensee is not in violation of the terms of the license;
(2) Find that the licensee is in violation, but that such violation was with just cause and waive any liquidated damages that might otherwise be imposed;
(3) Find that licensee is in violation of the terms of the license, take corrective action and foreclose on all or any appropriate part of the security deposit provided pursuant to section 5-31;
(4) Find that licensee is in violation of the terms of the license and impose liquidated damages;
(5) In case of a material violation of the license within the meaning of section 5-61 find that the licensee is in material violation and revoke, alter or suspend the license;
(6) Find that the licensee is in violation of the system construction and shorten the term pursuant to section 5-62.
(d) If the City Manager determines that licensee has committed a violation, the determination shall be accompanied by a detailed statement of reasons for the determination, including findings of fact.
(e) The decision of the City Manager shall become final unless licensee requests a public hearing before the City Council within fifteen days of its receipt of the statement of reasons and findings of fact by the City Manager.
(Ord. No. G-1630, § 1; Ord. No. G-2994, § 1; Ord. No. G-3779, § 1)
Sec. 5-64.1. License fee amount protests– Administrative hearing.
(a) If within thirty days after receipt of written notice to licensee by the City that an additional amount of license fee is payable, the licensee petitions the City Manager in writing setting forth the reasons why the additional amount is not payable and requesting a hearing, the City Manager shall appoint a hearing officer qualified to hear petitions for hearing under chapter 14 of the Phoenix City Code.
(b) If a petition for hearing or redetermination of the ruling of the hearing officer is not made within the time periods specified herein, the licensee shall be deemed to have waived and abandoned the right to question the additional amount of license fee determined to be due, and any license fee and interest determined to be due shall be final and due and payable.
(c) The licensee and the licensor shall make disclosure required below as fully as then possible within sixty days of licensee's filing its petition and no later than twenty days before the hearing:
(1) Each party shall disclose in writing to the other party:
(i) The name and address of each person whom the disclosing party expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.
(ii) The existence, location, custodian, and general description of any tangible evidence or relevant documents that the disclosing party plans to use at the hearing.
(d) The licensee may amend its petition at any time before licensee rests its case at the hearing or such time as the hearing officer allows for submitting of amendments in cases of a redetermination without a hearing. The hearing officer may require that amendments be in writing and, in that case, shall provide a reasonable period of time to file the amendment. The hearing officer shall provide a reasonable period of time for the City Manager to review and respond to the petition and to any written amendments.
(e) Hearings shall be conducted by a hearing officer and shall be continuous until the hearing officer closes the record. The licensee may be heard in person or by its authorized representative at such hearing. Hearings shall be conducted informally as to the order of proceeding and presentation of evidence. The hearing officer shall admit evidence over hearsay objections where the offered evidence has substantial probative value and reliability. Further, copies of records and documents prepared in the ordinary course of business may be admitted, without objection as to foundation, but subject to argument as to weight, admissibility, and authenticity. Summary accounting records may be admitted subject to satisfactory proof of the reliability of the summaries. In all cases, the decision of the hearing officer shall be made solely upon substantial and reliable evidence. All expenses incurred in the hearing shall be paid by the party incurring the same.
Editor's note: The word "representative" was substituted for "presentative" in the second sentence of this subsection to correct a typographical error in Ord. No. G-3779.
(f) Redeterminations upon a "petition for redetermination" shall follow the same conditions, except that no oral hearing shall be held.
(g) In either case, the hearing officer shall issue his ruling not later than forty-five days after the close of the record by the hearing officer.
(h) The decision made by the hearing officer upon administrative review by hearing or redetermination shall become final thirty days after licensee receives notice by the City Manager of the amount payable recalculated, if necessary, to conform to the hearing officer's decision, unless the licensee files an action for judicial determination of the amount due or the licensor files an action for judicial review in the manner provided in subparagraph (j).
(i) Any license fee due shall be paid within thirty days after such notice either unconditionally or under protest as part of an appeal procedure for judicial review.
(j) Licensee may bring an action against the licensor in the Superior (or other appropriate) Court located in Maricopa County for judicial determination of the amount due. The licensor may seek judicial review of all or any part of a hearing officer's decision by initiating an action in the Superior (or other appropriate) Court located in Maricopa County. An action for judicial determination of the amount due or for judicial review shall not be commenced more than thirty days after licensee receives notice of the amount payable recalculated, if necessary, to conform to the hearing officer's decision. Failure by either party to bring the action within thirty days shall constitute a waiver of the right to bring said action, except that if one party initiates an action in the appropriate court, the other party may file such counterclaim as would be allowed pursuant to the Arizona Rules of Civil Procedure.
(k) The court shall consider only those grounds and issues set forth in the petition filed under this section or amendments allowed by the hearing officer during the review process and prior to the issuance of his ruling. Subject to the limitation in this subsection, the appeal shall be considered de novo.
(l) If the petition alleges that the additional amount of license fees payable based on gross income of an affiliate, subsidiary, parent or any person, firm or corporation in which licensee has a financial interest or which has a financial interest in licensee is not payable then the following procedure shall apply at such hearing to such portions of the petition.
(1) The City shall have the burden of establishing a prima facie case for any of the following elements which is the basis for its claim that an additional amount of license fees is payable: that the affiliate, subsidiary, parent, or such other person, firm or corporation is not a separate legal entity, with separate employees, with separate financial records (which may be part of consolidated financial reporting records), and a separate mission; that it makes payments to licensee which do not meet market standards for the services and industries involved; that it was not established for valid business purposes or it was established with the intent and purpose of circumventing payment of license fees on gross revenues; or that such cash, credit, property of any kind or nature, or other consideration is cable operator's gross revenues derived from operation of the cable system under the Cable Act.
(2) After the City establishes a prima facie case for any of the above elements, the licensee shall have the burden of going forward and introducing sufficient evidence on that element to create a genuine issue of material fact. If the licensee does not do so, the City shall prevail on that element. If the licensee does create a genuine issue of material fact on that element, then the burden shall shift and the City shall have the burden of proving that element by a preponderance of the evidence.
(3) The licensee shall provide to licensor within thirty days of filing its petition, the following information:
(i) Specific categories of information to be identified by the City by administrative rules regarding the elements in section l(1);
(ii) The name and address of each person whom licensee expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert;
(iii) The existence, location, custodian, and general description of any tangible evidence or relevant documents that the licensee plans to use at the hearing.
(4) The licensor shall provide the licensee within thirty days of receipt of licensee's information identified above, the following information:
(i) The name and address of each person whom licensor expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.
(ii) The existence, location, custodian, and general description of any tangible evidence or relevant documents that the licensor plans to use at the hearing.
(Ord. No. G-3779, § 1)
Sec. 5-65. Hearing by City Council.
(a) If a public hearing before the City Council is requested by licensee pursuant to section 5-64, it shall be on the record of the proceeding before the City Manager and it shall convene within thirty days of the request therefor. The City Council's decision, which shall include findings of fact, shall be made not later than forty-five calendar days after the conclusion of the hearing. In that decision, the City Council may:
(1) Find that licensee is not in violation of the terms of the license;
(2) Find that licensee is in violation but that such violation was with just cause and waive any liquidated damages or penalty that may otherwise be imposed;
(3) Find that licensee is in violation of the terms of the license, take corrective action and foreclose on all or any appropriate part of the security fund provided pursuant to section 5-31 to pay the cost thereof;
(4) Find that licensee is in violation of the terms of the license and impose liquidated damages in an amount no larger than imposed by the City Manager;
(5) In the case of a material violation of the license within the meaning of section 5-61, declare the licensee in violation and, to the extent the City Manager so acted, revoke, alter or suspend the license;
(6) Find that the licensee is in violation of the system construction and to the extent the City Manager so acted shorten the term pursuant to section 5-62;
(7) Find that the licensee is in violation of the terms of the license and exercise such remedies as provided by the license for such violation.
(b) The City Council may delegate to a subcommittee of the City Council or an administrative hearing officer selected by the City Council the holding of a public hearing as required herein, provided however that the findings of fact and any decision of such subcommittee or administrative hearing officer shall be submitted as a recommendation to the City Council for final action.
(Ord. No. G-1630, § 1; Ord. No. G-2994, § 1; Ord. No. G-3779, § 1)
Sec. 5-66. Changes in cable technology.
(a) The licensee shall reflect reasonable ongoing technological and service developments in its construction, operation and maintenance of the cable system as developments become economically and competitively feasible.
(b) At intervals specified in the license document, the City may convene a technological and service review of the cable system with the licensee. The purposes of the reviews are to consider the merits of including in the cable system new technological and service developments to more effectively, efficiently and economically serve the public and to enable the City Manager to report to the City Council on the licensee's compliance with this section.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Secs. 5-67– 5-69. Reserved.
ARTICLE VIII.
RIGHTS OF INDIVIDUALS PROTECTEDSec. 5-70. Discriminatory practices prohibited.
The licensee shall not deny service, deny access, discriminate in hiring, compensation, or promotion, discriminate in purchasing or ownership, or otherwise discriminate against subscribers, programmers, employees, vendors, investors, the general public or any other person, on the basis of race, color, religion, national origin, sex, age or disability. The licensee shall take appropriate action to adhere to the equal employment opportunity and affirmative action requirements of the federal government, as expressed in section 76.13(a)(8) and 76.311 of chapter 1 of title 47 of the Code of Federal Regulations. The licensee shall comply at all times with all other applicable federal, State and City laws, and all executive and administrative orders relating to nondiscrimination. The licensees shall submit reports on their actions and success in affirmative action as required by the licensor.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
State law references: Discrimination, A.R.S. § 41-1401 et seq.
Sec. 5-71. Permission of property owner required.
A license granted hereunder does not convey the right to install any cable, line, amplifier, converter, or other piece of equipment by the licensee on private property.
(Ord. No. G-1630, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-72. Subliminal transmission prohibited.
The licensee shall not cablecast subliminal transmissions at any time, for any purpose whatsoever.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Secs. 5-73– 5-77. Reserved.
ARTICLE IX.
VIOLATIONSSec. 5-78. Theft of service.
It shall be unlawful for any person or entity to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, to any part of a licensed cable system within the City, for the purpose of enabling himself or herself or others to receive any video, audio, digital or other signals or information, without payment to the licensee.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Cross references: Morals and conduct, ch. 23.
State law references: Obtaining cable television services by fraud, A.R.S. § 13-3709.
Sec. 5-79. Tampering with system.
It shall be unlawful for any person or entity, without the consent of the licensee, to knowingly tamper with, remove, or injure any cable, wire or other component used in connection
with a licensed cable system within the City.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
State law references: Criminal damage to property, A.R.S. § 13-1601 et seq.
Sec. 5-80. Existing systems.
(a) From and after the effective date of this chapter it shall be unlawful for any person to establish, operate, construct or expand a cable system, unless a license has been obtained pursuant to the provisions of this chapter, and unless the license is in full force and effect.
(b) A cable system in an annexed area with a license issued by the Board of Supervisors of the County shall be deemed in compliance with the terms of this chapter for the balance of the term fixed in the County license. The City shall succeed to the rights of the County under the license at the time of annexation. Upon the expiration of the term of a cable television license issued by the County in an annexed area, the licensee must comply with the terms of this chapter. If the license issued by the County in an annexed area does not have a term, the license shall expire at such time as set by the City Council.
(c) Nothing in this section shall preclude the City from amending a County license in an annexed area or a license issued by the City to a licensee to bring such license into conformance with the applicable rules and regulations of the FCC.
(d) The terms and conditions set forth in this chapter 5 prior to the amendments passed by the City Council on June 29, 1994, shall continue to apply to all cable licenses in effect on such date until a renewal license is issued pursuant to the amended provisions of chapter 5 passed by the City Council on June 29, 1994, or until such existing license issued by the City shall by its terms terminate, whichever occurs first. The rights and duties based on the respective performance of licensee and licensor under such existing license occurring prior to termination of such license are saved as to both licensor and licensee. Upon termination of an existing City license, licensee shall comply with this chapter 5 as amended.
(Ord. No. G-1630, § 1; Ord. No. G-1955, § 1; Ord. No. G-2103, § 1; Ord. No. G-3779, § 1)
Sec. 5-81. Reserved.
ARTICLE X.
INTERPRETATION OF ORDINANCESec. 5-82. Compliance with laws.
The licensee shall comply with all applicable federal and State laws and regulations heretofore or hereinafter enacted or reestablished, and shall be subject to all applicable requirements of City ordinances, resolutions, rules, and regulations heretofore or hereafter adopted or established by the City pursuant to its governmental powers, police powers and taxing authority during the entire term of the license.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-83. Captions.
The captions to articles and sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-84. No recourse against the licensor.
The licensee shall have no recourse whatsoever against the licensor or its officials, boards, commissions, agents, or employees for any loss, costs, expense, or damage arising out of any provision or requirement of the license or because of the enforcement of the license or because of defects in this chapter or license issuance hereunder.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-85. Non-enforcement by the licensor.
The licensee shall not be relieved of its obligation to comply with any of the provisions of this chapter or a license by reason of any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Sec. 5-86. Rights reserved to the City.
(a) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any ordinance or the Charter of the City.
(b) There is hereby reserved to the City the power to amend any section of this chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise pursuant to the City's lawful police powers or as provided in the license.
(1) If any State or federal law or regulation shall require the licensee to perform any service, or shall permit the licensee to perform any service, or shall prohibit the licensee from performing any service, in conflict with the terms of its license or any law or regulation of the City, then as soon as possible following knowledge of such conflict, the licensee or the City shall notify the other party of the conflict believed to exist between such State or federal law or regulation and the laws or regulations of the City.
(2) If the City determines that a material provision of this chapter is affected by any subsequent action of the State or federal government, the City shall have the right to modify any of the provisions herein to such reasonable extent as may be necessary to carry out the full intent and purposes of this chapter consistent with State or federal law.
(c) Neither the granting of any license nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City.
(d) No privilege or exemption shall be granted under this chapter except those specifically prescribed herein.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
Secs. 5-87, 5-88. Reserved.
ARTICLE XI.
THE LICENSE DOCUMENTSec. 5-89. The license document– Issuance and acceptances.
(a) The license granted by the City shall be evidenced by a license document which the City Council by separate ordinance shall authorize the City Manager to execute and issue to the licensee subject to the conditions of this chapter and granting ordinance.
(b) No license granted pursuant to the provisions of this chapter shall become effective until all provisions required in this section are completed, all of such provisions being hereby declared to be conditions precedent to the effectiveness of any such license granted hereunder. In the event any of such provisions are not completed in the time and manner required, the license shall be null and void.
(c) Within twenty days after the effective date of the ordinance awarding any license, or within such extended period of time as the City Council in its discretion may authorize, the licensee shall submit to the City its written acceptance of the license, in form satisfactory to the City Attorney, together with the security fund, faithful performance bond and insurance policies or certificates required by this chapter and its license, and its acknowledgment that it will be bound by and comply with everything which is required of the licensee by the provisions of this chapter and the applicable license. Such acceptance shall be acknowledged by the licensee and shall, in form and content, be satisfactory to and approved by the City Attorney.
(Ord. No. G-1630, § 1; Ord. No. G-3779, § 1)
ARTICLE XII.
APPLICATION PROCESS*------------
State law references: License applications, A.R.S. § 9-507.
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Sec. 5-90. Purpose of this article.
The purpose of this article is to provide for the control of the application process for cable licenses and to specify the form and requirements for submitting an application to the City.
(Ord. No. G-2022, § 1; Ord. No. G-3779, § 1)
Sec. 5-91. Application for initial license.
(a) Each application for an initial license to construct, operate or maintain any cable system in the City shall be filed with the office of the City Clerk and shall be on forms prescribed by the City. Said forms shall require, but shall not be limited to, the following information.
(1) The name, address, and telephone number of the applicant;
(2) A detailed statement of the corporation or business entity organization of the applicant, including but not limited to, the following and to whatever extent required by the City:
a. The names, residence and business addresses of all officers, and directors of the applicant;
b. The names, residence and business addresses of all officers, persons and entities having a one percent or larger share of the ownership of the applicant and the respective ownership share of each such person or entity;
c. 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 systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby;
d. A detailed and complete financial statement of the applicant certified by an independent certified public accountant, for the fiscal year next preceding the date of the application hereunder, and a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and City setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in the City, or a statement from an independent certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed cable system in this City;
e. A detailed financial plan (pro forma) describing for each year of the initial license, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements and a sources and uses of funds statement. All information is to be presented in the format required by the City; and
f. A statement identifying, by place and date, any other cable system license(s) awarded to the applicant, its parent or subsidiary; the status of said license(s) with respect to completion thereof; the total cost of completion of such licensed cable system(s); and the amount of applicant's and its partner's or subsidiary's resources committed to the completion thereof.
(3) A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:
a. 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 throughout the entire area to be serviced;
b. 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 cable service charges;
c. A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant;
d. A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber; and
e. 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 license;
(4) A copy of any agreement covering the license area, if existing, between the applicant and the local telephone and/or electric utilities, providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and
(5) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the City, or by any other provision of law.
(Ord. No. G-2022, § 1; Ord. No. G-3779, § 1)
Sec. 5-92. Application fees for initial license.
(a) Notwithstanding any other requirement of this chapter, each applicant for an initial license must furnish with its proposal a nonrefundable filing fee in the amount of ten thousand dollars by certified or cashier's check made payable to the City of Phoenix. No proposal for an initial license shall be considered without receipt of said check.
(b) All checks received will be deposited to an account of the City and will serve to recover expenses incurred by the City in the preparation and granting of initial licenses and regulation of licenses pursuant to this chapter.
(c) Any licensee under an initial license, upon acceptance of such initial license, shall reimburse all additional expenses, including, but not limited to, any and all administrative, engineering, publication, or legal costs and consultants' expenses incurred in connection with the processing, evaluation and preparation of documents relating to the initial license. The City shall document all such expenses by invoice. In the event that expenses exceed the total amount of filing fees collected from the applicant(s), the licensee shall pay to the City the excess amount within sixty days of written demand by the City.
(Ord. No. G-2022, § 1; Ord. No. G-3779, § 1)
Sec. 5-93. Selection of licensee under an initial license.
(a) The granting or denial of a cable license is a legislative function invested exclusively in the discretion of the City Council.
(b) Upon the request of the City Council expressed by resolution, the City Manager shall solicit applications for a cable license by advertisement requesting the submission of applications. Such notice for applications shall be published at least once in an official newspaper.
(c) The City may determine and fix any date upon or after which the same shall be received by the City, or the date before which such applications shall be received, or the date after 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. The terms and conditions for application shall be described in a document called "Request for Proposals."
(d) The City upon receipt of an unsolicited application for an initial license may by advertising or other means solicit and call for competing applications pursuant to paragraph (c) or may, in its sole discretion, reject such application as untimely.
(e) Any person, firm or corporation submitting a proposal for an initial license to operate a cable system in response to the City's request for proposals shall provide all information required by this chapter and all other information requested by City's request for proposals or otherwise required by the City. Each proposal shall be responsive to the questions soliciting the information, and shall completely, accurately and materially supply all of the information so solicited. Any misrepresentation, failure, neglect or refusal to provide any of such information may, at the option of the City, render a proposal invalid. The requested information must be complete and verified as true by the applicant.
(f) All proposals received by the City from an applicant shall become the sole property of the City.
(g) Before submitting a proposal, each applicant shall be solely responsible for and must:
(1) Examine all regulatory chapters and the request for proposals documents thoroughly;
(2) Be familiar with local conditions which may in any manner affect performance under the license, including, but in no event limited to, community and institutional telecommunication needs, relevant demographics, topographies, pole attachment policies of appropriate utility authorities, undergrounding, and subscriber desires;
(3) Be familiar with all applicable federal, State and local laws, chapters, rules and regulations affecting performance under the license; and
(4) Carefully correlate all observations with the requirements of this chapter and the request for proposals documents.
(h) Upon receipt of any application for an initial license, the City shall prepare or cause to be prepared a report, including recommendations respecting such application, and cause the same to be completed and filed with the City Council. The City will evaluate all proposals that are submitted. All applicants that have met the City's qualifications in the request for proposals and have submitted proposals on the required forms will be offered the opportunity to make a formal presentation to the City Council in support of their applications.
(i) The City may make such investigations as it deems necessary to determine the ability of the applicant to perform under the license, and the applicant shall furnish to the City all such information and data for this purpose as the City may request.
(j) The City reserves the right to waive all formalities where the best interest of the City may be served, and may, if it so desires, request new or additional proposals.
(k) If, upon receiving the City Manager's report, the City Council shall determine to further consider the applications, it shall pass a resolution setting a public hearing for the consideration of applications.
(l) Notice of such hearing shall be published in accordance with the requirements of State law. At the public hearing each applicant and its proposal may be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
(Ord. No. G-2022, § 1; Ord. No. G-3779, § 1)
Sec. 5-94. Consideration of applicants.
(a) In evaluating an application for a license, the City shall consider, among other things, the following factors:
(1) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable license for the City.
(2) Whether the quality of the applicant's service under an existing license in the City, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served.
(3) Whether the applicant has the financial, technical, and legal qualification to provide cable service.
(4) Whether the application satisfies any minimum requirements established by the City and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests.
(5) Whether the applicant will provide adequate public, education, and governmental access channel capacity, facilities, and financial support.
(6) Whether issuance of a license is warranted in the public interest, considering the immediate and future effect on the streets and public ways and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the streets and public ways; the effect of granting a license on the ability of cable to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications.
(7) Whether the applicant or an affiliate of the applicant owns or controls any other cable system in the City, or whether grant of the application may eliminate or reduce competition in the delivery of cable service in the City.
(b) If the City finds that it is in the public interest to issue a license, considering the factors set forth above, and subject to the applicant's entry into an appropriate license document, it shall issue a license. If the City denies a license, it will issue a written decision explaining why the license was denied. The City may reject any application that is incomplete or fails to respond to a request for proposals or other information requested by the City. This chapter is not intended and shall not be interpreted to grant any applicant or existing licensee standing to challenge the issuance of a license to another.