§ 19-11. Agreement required

(A) No video programming services may be provided in the city by a video system operator unless the operator has obtained a state issued franchise pursuant to the Digital Infrastructure and Video Competition Act of 2006 or the operator and the city have executed a written agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the city.

(B) The agreement between the city and the open video system operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, conditions, and subject matters are not preempted by federal statute or regulations:

(1) The nature, scope, and duration of the agreement, including provisions for its renewal or extension.

(2) The obligation of the open video system operator to pay to the city, at specified times, fees on the gross revenues received by the operator, as authorized by 47 CFR § 76.1511, in accordance with the following standards and procedures:

(a) The amount of the fees on the gross revenues will be five (5) per cent, and will be paid in lieu of the franchise fees permitted under Section 622 of the Communications Act.

(b) The term "gross revenues" means (i) all gross revenues received by an open video system operator or its affiliates, including all revenues received from subscribers and all carriage revenues received from unaffiliated video programming providers; and (ii) all advertising revenues received by the operator or its affiliates in connection with the provision of video programming, where these revenues are included in the calculation of the cable franchise fee paid to the city by the franchised cable operator. The term "gross revenues" does not include revenues, such as subscriber or advertising revenues, collected by unaffiliated video programming providers.

(3) The obligation of the open video system operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the gross revenues that are required to be paid as specified above in paragraph (B)(2).

(4) The obligation of the open video system operator to meet the city's requirements with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment, as provided for in 47 CFR § 76.1505. In this regard, the following standards and procedures are applicable:

(a) The open video system operator is subject to the same public, educational, and governmental access requirements that apply within the cable television franchise service area with which its system overlaps.

(b) The open video system operator must ensure that all subscribers receive all public, educational, and governmental access channels within the franchise service area in which the city's subscribers are located.

(c) The open video system operator may negotiate with the city to establish the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment. These negotiations may include the city's franchised cable operator if the city, the open video system operator, and the franchised cable operator so desire.

(d) If the open video system operator and the city are unable to reach an agreement regarding the operator's obligations with respect to public, educational, and governmental access channel capacity, services, facilities, and equipment within the city's jurisdiction, then the following obligations will be imposed:

(i) The open video system operator must satisfy the same public, educational, and governmental access obligations as the city's franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the city's franchised cable operator's annual financial contributions in support of public, educational, and governmental access services, facilities, and equipment that are actually used by the city. For in-kind contributions, such as cameras or production studios, the open video system operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the city's franchised cable operator, so that public, educational, and governmental access services to the city are improved or increased. If these terms cannot be agreed upon, the open video system operator must pay to the city the monetary equivalent of the franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the open video system operator must be used to fund activities arising under Section 611 of the Communications Act.

(ii) The city will impose upon the open video system operator the same rules and procedures that it imposes upon the franchised cable operator with regard to the open video system operator's use of channel capacity designated for public, educational, and governmental access use when that capacity is not being used for these purposes.

(e) The city's franchised cable operator is required under federal law to permit the open video system operator to connect with its public, educational, and governmental access channel feeds. The open video system operator and the franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the open video systems involved. If the franchised cable operator and the open video system operator cannot agree on how to accomplish the connection, the city has the right to decide. The city may require that the connection occur on city-owned property or on public rights-of-way.

(f) All costs of connection to the franchised cable operator's public, educational, and governmental access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator's matching financial contributions set forth above in subparagraph (d)(i).

(g) The city will not impose upon the open video system operator any public, educational, or governmental access obligations that are greater than those imposed upon the franchised cable operator.

(h) If there is no existing franchised cable operator, the provisions of 47 CFR § 76.1505(d)(6) will be applicable in determining the obligations of the open video system operator.

(i) The open video system operator must adjust its system to comply with new public, educational, and access obligations imposed on the city's franchised cable operator following a renewal of the cable television franchise; provided, however, that the open video system operator will not be required to displace other programmers using its open video system to accommodate public, educational, and governmental access channels. The open video system operator must comply with these new public, educational, and governmental access obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity.

(5) If the city and the open video system operator cannot agree as to the application of the FCC's rules regarding the open video system operator's obligations to provide public, educational, and governmental access under the provisions of subsection (4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR § 76.1514. No agreement under this section 19-11 authorizing an applicant to provide services over an open video system will be executed by the city until the dispute has been finally resolved.

(6) If the open video system operator intends to maintain an institutional network, as defined in Section 611 (f) of the Communications Act, the city will require that educational and governmental access channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the city's franchised cable operator.

(7) The authority of an open video system provider to exercise editorial control over any public, educational, or governmental use of channel capacity will be restricted in accordance with the provisions of 47 CFR § 76.1505(f).

(8) The obligation of the open video system operator to comply with all applicable federal and state statutes and regulations relating to customer service standards, including the Cable Television and Video Customer Service and Information Act (Government Code §§ 53054, et seq.), and the Video Customer Service Act (Government Code §§ 53088, et seq.)

(9) If new physical plant is proposed to be constructed within the city, the obligation of the open video system operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the city upon other telecommunications service providers in a nondiscriminatory and competitively neutral manner:

(a) Compliance with all applicable city building and zoning codes, including applications for excavation, encroachment, and construction permits and the payment of all required permit and inspection fees.

(b) The coordination of construction requirements.

(c) Compliance with established standards and procedures for constructing lines across private property.

(d) Compliance with all applicable insurance and indemnification requirements imposed by the city.

(e) The repair and resurfacing of construction-damaged streets.

(f) Compliance with all public safety requirements that are applicable to telecommunications service providers using public property or public rights-of-way.

(10) Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement.

(11) Requirements relating to the sale, assignment, or transfer of the open video system.

(12) Requirements relating to the open video system operator's compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the open video system.

(13) Such additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the city and the open video system operator and that will, in the judgment of the city council, best serve the public interest and protect the public health, welfare, and safety.

(Ord. No. 07-20, § 1, 12-4-07 )