HomeMy WebLinkAboutOrdinance - 2003-O0127 - Manage And Receive Compensation; Use Public Rights Of Way/Open Video Systems - 11/17/2003First Reading
Date: November 17, 2003
Itea No. 29
Second Reading
Date:December 8, 2(X)J
Item No. 27
ORDINANCE NO. 2003-00127
AN ORDINANCE OF THE CITY OF LUBBOCK ENACTING
PROVISIONS TO MANAGE AND RECEIVE COMPENSATION
FOR THE USE OF THE PUBLIC RIGHTS-OF-WAY WITHIN
THE CITY OF LUBBOCK, TEXAS BY OPERATORS OF OPEN
VIDEO SYSTEMS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. PURPOSES.
The purposes of this Ordinance are as follows:
(a) To provide procedures for the granting of nonexclusive franchises for constructing
and operating Open Video Systems (11OVS11) in the City, and for the transfer and
renewal of such franchises;
(b) To regulate the erection, construction, reconstruction, installation, maintenance,
dismantling, testing, repair and use of OVS in, upon, along, across, above, over or
under or in any manner connected with, the public rights·of·way within the
jurisdiction of the City of Lubbock as now or in the future may exist;
(c) To provide for the payment of fees and other valuable consideration to the City as
compensation for the use of the public rights·of·way;
(d) To provide conditions under which open video systems will serve present and future
needs of the government, public institutions, commercial enterprises, public and
private organizations, and the citizens and general public of the City; and
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(e) To provide remedies and prescribe penalties and liquidated damages for any
violation of this Ordinance and/or the terms and conditions of franchises granted
pursuant hereto.
SECTION 2. TITLE.
This ordinance is known and may be cited as the "City of Lubbock Open Video System
Ordinance."
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SECTION 3. DEFINITIONS.
(a) As used in this Ordinance, all words and terms shall have the same meaning as
those defined in City of Lubbock Ordinance No. 10134, unless otherwise defined
herein.
(b) As used in this Ordinance:
(1) Cable Service shall mean (A) the one-way transmission to Subscribers of (i)
video programming, or (ii) other programming service, and (B) subscriber
interaction, if any, which is required for selection of such video programming
or other programming service.
(2) Franchise shall mean a non·exclusive authorization granted pursuant to this
Ordinance to construct, operate, and maintain an OVS along the Public
Rights·of·Way to provide Cable Service within the City. Any such
authorization, in whatever form granted, shall not mean or include any
general license or permit required for the privilege of transacting and
carrying on a business within the City as required by the ordinances and
laws of the City, or for attaching devices to poles or other structures, whether
owned by the City or a private entity, or for excavating or performing other
work in or along public rights·of·way.
(3) Franchise Ordinance. "Franchise Ordinance" shall mean an ordinance
granting a Franchise to a specific Grantee that sets forth, subject to this
Ordinance, the terms and conditions under which such Franchise will be
exercised.
(4) Grantee shall mean a Person that has been granted a Franchise by the City.
(5) Open Video System (or OVS) shall have the same meaning as Open Video
System as defined in 47 U.S.C. § 573, as that section may be amended from
time to time.
(6) Public Rights·of·Way shall mean the surface, the air space above the surface,
and the area below the surface of any public street, highway, lane, path,
alley, sidewalk, avenue, boulevard, drive, concourse, bridge, tunnel,
easement, or similar property within the City in which the City now or
hereafter holds any property interest.
SECTION 4. GENERAL PROVISIONS.
(a) Scope of City's Authority. The City may grant one or more OVS franchises, and each
such franchise shall be awarded in accordance with and subject to the provisions of
this Ordinance, Article 11, Section 5 of the Texas Constitution, and Chapter 51 of
the Texas Local Government Code.
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(b) Ordinance not a Contract. This Ordinance may be amended from time to time, and
in no event shall this Ordinance or any of its provisions be considered a contract
between the City and a Grantee such that the City would be prohibited from
amending any provision hereof.
(c) Franchise Required. No person may construct or operate an OVS using Public
Rights-of-Way in the City without a Franchise granted by the City pursuant to this
Ordinance .
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(d) Rights Reserved to the City.
(1) A Grantee shall at all times be subject to and shall comply with all applicable
federal, state, and local laws. A Grantee shall at all times be subject to all
lawful exercise of the police power of the City, including without limitation all
rights the City may have under 47 U.S.C. § 552, Article 11, Section 5 of the
Texas Constitution, and Chapter 51 of the Texas Local Government Code.
Nothing in a Franchise Ordinance shall be deemed to waive the requirements
of the various codes and ordinances of the City regarding permits, zoning, fees
to be paid, or manner of construction, installation, operation, maintenance, or
repair of system equipment.
(2) No course of dealing between a Grantee and the City, or any delay on the part
of the City in exercising any of its rights, or any acquiescence by the City in the
actions of a Grantee that are in contravention of such rights (except to the
extent such rights are expressly waived by the City) shall operate as a waiver of
any such rights of the City.
(3) The City shall have the maximum authority to regulate Open Video Systems,
Grantees, and Franchises as may now or hereafter be lawfully permissible;
except where rights are expressly waived by a Franchise Ordinance, they are
reserved, whether expressly enumerated or not.
( 4) The City may, from time to time, issue such reasonable rules and regulations
concerning Open Video Systems as are consistent with applicable law.
(e) Existing Open Video Systems. This Ordinance shall apply to all operators of Open
Video Systems, including the operator of any OVS already under construction or
offering services to residents of the City on the date this Ordinance is enacted. Any
such existing operator shall submit an application pursuant to Section 5 within sixty
(60) days of the date of enactment. Failure of an existing operator to submit an
application within the 60-day time-frame shall be grounds for denial of any
subsequent application and an order of the City to cease providing Cable Service,
and for the removal of any facilities installed by such operator in the Public Rights·
of-way, solely for that purpose. The City reserves the right to reject any such
application and order the removal of any facilities installed by an applicant, if (i) the
application fails to conform to the requirements of this Ordinance, or (ii) the
applicant and the City are unable to agree on the terms of a Franchise Ordinance.
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(:0 Compliance with Federal Law. OVS operators shall comply with all applicable
provisions of federal law, including but not limited to 47 U.S.C. § 573 and 47 C.F.R.
§ 76.1505, as they may be amended.
SECTION 5. FRANCHISE APPLICATION.
(a) Application Required. A written Application shall be filed with the City for grant of a
franchise.
(b) Contents of Application for Franchise. Each Application for a Franchise to construct,
operate or maintain an OVS in this City shall be filed with the City Secretary and
shall be on forms prescribed by the City. Said forms will require, but not be limited
to, the following information:
(1) name, address, and telephone number of the applicant;
(2) a detailed statement of the corporate or business entity organization of the
applicant, including but not limited to, the following and to whatever extent
required by the City:
(a) names, residence and business addresses of all officers and directors
of the applicant;
(b) names, residence and business addresses of all officers, persons and
entities having any share of the ownership of the applicant and the
respective ownership share of each such person or entity;
(c) names and addresses of any parent or subsidiary of the applicant, a
statement describing the nature of any such parent or subsidiary
business entity, including but not limited to any OVS owned or
controlled by the applicant, its parent and subsidiary and the areas
served thereby;
(d) a detailed description of all previous experience of the applicant in
providing Cable Service and in related or similar fields;
(e) a detailed and complete financial statement of the applicant, 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 OVS in this City;
and
(0 a detailed financial plan (pro forma) describing for each year of the
franchise, projected number of Subscribers, rates, all revenues,
operating expenses, and capital expenditures. All information is to be
presented in the format required by the City.
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(c)
(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 any areas currently served;
(b) a detailed map indicating all areas proposed to be served during the
franchise period and a proposed time schedule for installation of
equipment necessary to provide such Service;
(c) a statement or schedule setting forth classifications of rates and
charges to be made against Subscribers for Basic Service and all rates
and charges as to each of said classifications, including installation
charges and Service charges;
(d) a statement describing the actual equipment and operational
standards proposed by the applicant; and
(e) a copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any Subscriber.
(4) A copy of any agreement existing between the applicant and any municipal
utility or public utility subject to regulation by the Public Utility Commission
of Texas providing for the use of any facilities of the public utility, including
but not limited to poles, lines, or conduits.
(5) Any other details, statements, information or references pertinent to the
subject matter of such application which shall be required or requested by the
Council, or required by any other provision of law.
Selection of the Grantee
(1) Referral to City Manager. Upon receipt of any Application for Franchise, the
City Secretary shall refer the same to the City Manager who 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.
(2) Consideration of Application. If the Council shall determine to further
consider an Application, it shall set a time and place for the consideration of
such application.
(3) Determination. At the time of consideration, the Council shall make one of
the following determinations:
(a) that such Application be denied, which determination shall be final
and conclusive; or
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(b) that such Application be granted and establish the terms and
conditions of said Franchise.
(4) Additional Information. The City Manager or the City Council may at any
time require applicants to provide supplementary, additional or other
information which is deemed reasonably necessary to determine whether the
requested Franchise should be granted.
SECTION 6. RIGHT-OF-WAY FEE.
(a) Fee in Lieu of Franchise Fee. In lieu of the franchise fee required by Section 14 of
Ordinance No. 10134, the operator of an OVS shall pay a right-of-way fee on the
gross revenues of the operator for the provision of Cable Service. The rate of this fee
shall not exceed the rate imposed under Section 14 of Ordinance No. 10134. The fee,
which shall be paid quarterly, shall be five percent of gross revenues, as defined in
Section 6(b).
(b) Definition of Gross Revenues. Gross revenues for the purpose of determining this
fee shall mean all revenues received by an OVS operator or its affiliates, including,
without limitation, (i) all revenues received from subscribers, (ii) all carriage
revenues received from unaffiliated video programming providers, and (iii) any
advertising revenues received by the OVS operator or its affiliates in connection
with the provision of cable service, where such revenues are included in the
calculation of the incumbent cable operator's cable franchise fee. The term
"revenues" includes all cash, credits, property, and other consideration, of any kind
or nature. Revenues received from subscribers include all such revenues, without
any limitation, including revenues allocated to or itemized as representing a
subscriber's share of the fee imposed by this Section 6, fees for provision of cable
service, installation and reconnection fees, and equipment rental sales and fees.
Gross revenues does not include (i) revenues collected by unaffiliated video
programming providers; (ii) bad debt; (iii) refunds to subscribers; (iv) converter
deposits; or (v) any taxes on services furnished by the Grantee which are imposed
directly on any Subscriber or User by the City, the State of Texas or other
governmental unit. The fee imposed by this Section 6 is not such a tax.
(c) Payment of Fee. The right-of-way fee and any other costs or penalties assessed shall
be payable to the Office of the City Treasurer as specified by a Franchise Ordinance
issued pursuant to this Ordinance. The Grantee shall file with each payment a
complete and accurate verified statement of all collected Gross Revenues within the
City during the time period for which such payment is made.
(d) Audit. The City shall have the right to inspect the Grantee's income records and the
right to audit and to recompute any amounts determined to be payable under this
Ordinance; provided, however, that such audit shall commence within thirty-six (36)
months following the close of each of the Grantee's fiscal years. Adjustments
requiring additional payments by the Grantee or refunds due the Grantee shall be
limited to such years as may be audited during the thirty-six month period described
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above. Any additional amount due to the City as a result of such audits shall be paid
within thirty (30) days following written notice to the Grantee by the City, which
notice shall include a copy of the audit report. However, the Grantee shall have the
right to dispute such audit findings to the Council. Any such payments shall include
interest at a rate of eight (8) percent on the additional amounts owed to the City.
(e) Effective Date. Any OVS operator operating in the City upon the effective date of
this Ordinance shall become liable for right·of·way fees under Section 6(a) beginning
as of such effective date. Such fees shall accrue until the operator receives a
franchise pursuant to this Ordinance, at which time the amount of the fees shall be
computed and shall be payable in accordance with terms of the operator's Franchise.
SECTION 7. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
REQUIREMENTS
Any Franchise Ordinance issued pursuant to this Ordinance shall require the Grantee to
provide support for public, educational and governmental access which is comparable to the
support of public, educational and governmental access provided by any cable operator that
has been granted a franchise pursuant to Ordinance No. 10134, in accordance with
applicable Federal Communications Commission rules. Such support may include access
channel capacity, services, facilities, equipment, and funding.
SECTIONS. TERM AND RENEWAL
(a) Franchise Term. The term of a Franchise shall be for the number of years set forth
in the Franchise Ordinance, unless terminated earlier in accordance with its terms
or this Ordinance.
(b) Franchise Renewal. A Franchise may be renewed upon the expiration of its term,
under conditions and in accordance with procedures set forth in the Franchise
Ordinance. In determining whether a Franchise should be renewed, the City shall
consider (i) whether the OVS operator has complied with the terms of its existing
Franchise and with applicable law; (ii) the quality of the OVS operator's past
services; (iii) the OVS operator's financial, legal, technical and other qualifications to
provide the proposed services; (iv) whether the operator proposes to meet the
community needs and interests related to the operator's system and services that
have been identified by the City, including, without limitation, any rebuild or
upgrade of the OVS; and (v) any other factors stated in the Franchise Ordinance.
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SECTION 9. ADDITIONAL REQUIREMENTS.
(a) Ordinance No. 10134 · Sections Applicable. To the extent not prohibited by federal
or state law, or otherwise addressed in this Ordinance, OVS operators must comply
with all the provisions of Ordinance No. 10134, including, without limitation:
Section 2 (Definitions); Section 4 (Application Fees); Section 6 (Grant of Authority);
Section 8 (Franchise Territory); Section 9 (Service Availability and Record Request);
Section 10 (Cable System Construction) (provided that the references to Sections 26
and 27 in Section 10W(3) shall be read as referring to Sections 25 and 26,
respectively); Section 11 (Construction and Technical Standards); Section 12
(Transfers and Assignments); Section 16 (Use of Streets); Section 17
(Indemnification and Insurance); Section 18 (Construction Bond); Section 19 (Service
Standards)(provided); Section 20 (Continuity of Service Mandatory); Section 21
(Complaint Procedure); Section 22 (Availability of Books and Records); Section 23
(Other Petitions and Applications); Section 24 (Fiscal Reports); Section 25
(Termination); Section 26 (Liquidated Damages); Section 27 (Rights of Individuals);
Section 28 (Foreclosure, Judicial Sale or Receivership); Section 29 (Performance
Evaluation Sessions); Section 30 <Area Wide Interconnection of Cable Systems);
Section 31 (Acceptance and Effective Date of Franchise); Section 32 (Violations);
Section 33 (Incorporation of Proposal by Reference); Section 34 (Time is of the
Essence); Section 35 (Failure of City to Enforce a Franchise, No Waiver of the Terms
Thereat,. References to "Cable System," "cable company," "cable operator" and
similar terms in Ordinance No. 10134 shall be read as referring to an OVS or OVS
operator, as the context may require.
(b) Other Provisions. To the extent that any section of Ordinance No. 10134 is
applicable, all references to other ordinances or laws in the applicable sections shall
also be applicable to OVS operators, including, by way of example and not limitation,
City zoning ordinances and permitting regulations.
(c) Ordinance 10134 · Sections Not Applicable. OVS operators shall not be required to
comply with the following sections of Ordinance No. 10134: Section 3 (Applications
For Franchise); Section 5 (Selection of Grantee); Section 7 (Franchise Renewal
Process); Section 13 (Subscriber Service Rates); Section 14 (Franchise Fee); and
Section 15 (Required Services and Facilities).
(d) A Franchise Ordinance may contain provisions addressing any matter permitted
under local, state and federal law, including, without limitation, liquidated damages,
system construction requirements, customer service and consumer protection
standards, record.keeping requirements and complaint procedures.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) If any section, sentence, clause or phrase of this Ordinance is held unconstitutional
or otherwise invalid for any reason, such infirmity shall not affect the validity of the
remainder of the Ordinance. Provided, however, that in the event that state or
federal government laws or regulations render any section invalid, then such section
or sections may be renegotiated by the City and a Grantee
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(b) Upon award of a Franchise pursuant to this Ordinance, a Grantee shall agree to be
bound by all the terms and conditions contained herein.
(c) If any particular section of this Ordinance, or the particular application thereof,
including any applicable section of Ordinance No. 10134, shall be held invalid, the
remaining provisions, and their application, shall not be affected thereby.
(d) In the event that any provision of the Communications Act of 1934, as amended, or
any other statute, law or regulation, which is relied on herein or in any Franchise
Ordinance for any definition or requirement, is repealed, then the language of such
provision at the time of such repeal shall nevertheless continue to apply for the
purposes of this Ordinance or any agreement, regardless of such repeal, except as
otherwise provided herein or in any Franchise Ordinance or as prohibited by such
subsequent repeal or amendment.
(e) The rights and remedies reserved to the City by this Ordinance are cumulative and
shall be in addition to and not in derogation of any other rights or remedies which
the City may have with respect to the subject matter of this Ordinance. A waiver of
any right or remedy by a party at one time shall not affect the exercise of said right
or remedy or any other right or other remedy by such party at any other time. The
failure of the City to take any action in the event of a material breach by a Grantee
shall not be construed or otherwise be deemed to constitute a waiver of the right of
the City to take such an action at any other time in the event that said material
breach has been cured, or with respect to any other material breach by a Grantee.
(:0 In the event that, after the effective date of this Ordinance, any court, agency,
commission, legislative body, or other authority of competent jurisdiction declares
this Ordinance invalid, in whole or in part, the portion of this Ordinance which is
not held to be invalid shall continue in full force and effect.
(g) In the event that, after the effective date of the Ordinance, any court, agency,
commission, legislative body, or other authority of competent jurisdiction declares or
requires the Grantee to (1) perform an act which is inconsistent with any provision
of this Ordinance, or (2) cease performing any act required by any provision of this
Ordinance and the Grantee intends to exercise its rights pursuant to such
declaration, the Grantee shall so notify the City of said declaration or requirement.
(h) The headings contained in the Ordinance and any agreements are to facilitate
reference only, do not form a part of the Ordinance or an agreement, and shall not in
any way affect the construction or interpretation hereof.
SECTION 11. PENALTY.
Violation of this Ordinance shall be deemed a misdemeanor punishable as provided
in Section 1-4 of the Code of Ordinances of the City of Lubbock.
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SECTION 12. PUBLICATION.
The City Secretary is hereby authorized to cause publication of the descriptive
caption of this Ordinance as an alternative method of publication provided by law.
AND IT IS SO ORDERED.
Passed by City Council on first reading the 17th day of ovember 2003.
Passed by City Council on second reading t 8th of December . 2003.
ATTEST:
~-~ Rel:iecca Garza, City secretary
APPROVED AS TO CONTENT:
Ddord/OVSregOrd
November 17, 2003
APPROVED AS TO FORM:
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