Loading...
HomeMy WebLinkAbout5.F.6. Adoption of Policy Governing Competitive Cable Franchising-Resolution 6694 S. F.,b, City of Shakopee Memorandum TO: Mayor and City Council CONSEr~T Mark McNeill, City Administrator FROM: John Peterson, Telecommunications coordinator~ SUBJECT: Adoption of Policy Governing Competitive Cable Franchising DATE: November 30, 2007 Introduction The Telecommunications Commission is recommending that the City Council adopt the attached policy governing cable franchise applications. Background In recent years, there has been a great deal of discussion at the state and federal level regarding competitive cable franchising. Telephone companies have complained that cities create a barrier to entry and that they shouldn't have to negotiate with each city individually. To date there has been no action at the state or national level that would completely take away local entities' franchising authority, but the FCC has issued rules establishing a 90 day time limit for cities to review franchise applications and imposing other regulations on the process. Staffhas attended several workshops and conferences where Bob Vose, an attorney for Kennedy and Graven, has recommended that cities implement a Competitive Cable Franchise Policy. Using a template provided by Mr. Vose, staff generated a draft policy for the City of Shakopee. The purpose of this policy is to outline the steps that both an applicant and the City will take in the case where a company is interested in provided cable television services within the City, in competition with the current provider. The policy is attached for your review. Recommendation The Telecommunications Advisory Commission has reviewed the proposed policy and is recommending its adoption. Action Requested If City Council concurs, it should offer Resolution No. 6696, a Resolution Adopting a Policy Governing Competitive Cable Franchising, and move its adoption. RESOLUTION NO. 6696 A RESOLUTION ADOPTING A COMPETITIVE CABLE FRANCHISING POLICY FOR THE CITY OF SHAKOPEE, MINNESOTA. WHEREAS, the City of Shakopee issues cable franchises to qualified entities wishing to provide cable television services within the City of Shakopee and neighboring townships; and WHEREAS, the City would welcome franchise applications from additional entities interested in providing quality cable television service; and WHEREAS, the attached Policy Governing Competitive Cable Franchising was developed to guide both the applicant and the City through the application and review process for a competitive cable franchise. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, that the attached Policy Governing Competitive Cable Franchising is hereby adopted. Adopted in regular session, this 4th day of December, 2007. Mayor of the City of Shakopee ATTEST: City Clerk POLICY GOVERNING COMPETITIVE CABLE FRANCHISING Preamble The City of Shakopee welcomes franchise applications from qualified entities interested in operating a quality cable system or service within the City. The following policy is intended to guide both the applicant and the City through the application, review and decision-making process for competitive cable franchising. Section 1. Definitions "Applicant" shall mean a person that files an Application with the City. "Application" shall mean the information, documentation, and data, of the form and substance required herein, filed with the City in order to request issuance of a competitive Franchise. "Application Fee" shall mean a fee which is intended to cover all costs incurred by the City related to processing Applications up to and including the grant of a Franchise (if any) including, but not limited to, staff and attorney's time in reviewing and considering an Application and related information, negotiating the terms and conditions of a Franchise, and preparing recommendations and other documentation related to such Application. "Cable Service" shall mean (1) the one-way transmission to Subscribers of video programming or other programming services; and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming servIces. "Cable System" shall mean a facility designed, in whole or part, to provide Cable Service including a "cable communications system" as defined in Minnesota Statutes 9 238.02, Subd. 3, and judicial interpretations thereof, including specifically an "open video system" that complies with 47 U.S.c. 9573, but not including a facility that does not use any Public Rights-of-Way. "Commission" shall mean the Shakopee Telecommunications Advisory Commission. "Franchise" shall mean a nonexclusive authorization to construct, own, control, operate, maintain, or manage a Cable System. "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, park, parkway, waterway, dock, bulkhead, -2- wharf, pier, easement or similar property or waters within the City in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was created, obtained or dedicated, may be used for the purpose of installing, operating and maintaining a Cable System. No reference in this Policy to a "Public Right-of-Way" shall be deemed to be a representation or guarantee that this Franchise permits use of the property for the purpose of installing, operating and maintaining a Cable System without obtaining additional rights as may be necessary. "Subscribers" shall mean any person or entity who receives service via a Cable System. In the case of multiple office buildings or multiple dwelling units, the term "Subscriber" means the lessee, tenant or occupant. Section 2. Applicability of Policy This Policy applies to every Cable System that will be operated within the territorial limits of The City of Shakopee. Authority: Minn. Stat. S 238.03 Section 3. Franchise requirement Subd. 1. In accordance with Minnesota state law, a Franchise shall be required of any person seeking to operate a Cable System or provide Cable Service within The City of Shakopee. Subd. 2. Nothing in this Policy shall be construed to limit the City's authority to construct, purchase, and operate a Cable System or otherwise provide any telecommunications or Cable Services either for internal purposes or for sale to the public. Authority: Minn. Stat. 9 238.08 Section 4. Application for Franchise Subd. 1. Notice of Intent. In the event the City receives notice that a person is interested in applying for a Franchise, the City shall publish a notice of intent to Franchise within a reasonable time. This notice shall include the required information in accordance with Minn. Stat. 9 238.081. Subd.2. Notice shall be given in accordance with Minn. Stat. 9 238.081, Subd.l, which requires publishing notice of intent to Franchise each week for two successive weeks, allowance of 20 days from initial publication for submission of Applications and a public hearing at least seven days before any franchises are awarded by the City. FCC rules for competitive franchising ("order") do not preempt state law or state level franchising decisions. Henceforth, the requirement to publish notice, accept applications, and hold a public hearing should not be preempted by the order's 90 day or six month time frame. -3- Subd. 2. Review of Applications. Applications for a competitive Franchise shall contain such information as is required below in this Policy and shall be submitted to the City's Telecommunications Advisory Commission. Review by the Commission of any Applications pursuant to this Policy and final determination by the City Council regarding issuance of a Franchise shall be based on the record. Relevant factors may include the level, quality and nature of Cable Services proposed by the Applicant, the identified needs and interests ofthe community and institutions, and information regarding industry trends, state of the art technologies, services and other related information. Subd.3. Public Hearing on Applications. A public hearing before the City Council affording reasonable notice and a reasonable opportunity to be heard with respect to an Application shall be scheduled in accordance with Minn. State. S 238.081, Subd. 6. The City shall ensure that the current franchisee receives written notice of the hearing. Subd. 4. Negotiation of Franchise Terms. During the period after submission of an Application, the City and Applicant may negotiate specific Franchise terms and conditions. In addition, during this period the City may request such additional information as may be deemed necessary. The Commission shall review the Application and make a recommendation regarding the issuance of a franchise to the City Council. Subd. 5. Award of Franchise. Any Franchise shall be awarded by ordinance. The City's decision concerning award of a Franchise shall be based on applicable law and the record including the Application, information provided by the Applicant, and other relevant information and recommendations received from the Commission. The City may consider information developed during any negotiations with the Applicant and any information or evidence provided by the current franchisee. The Applicant shall bear the burden of demonstrating that issuance of a Franchise is consistent with applicable law and in the public interest. Subd. 6. Costs of Reviewing Application and Issuing Franchise. The Applicant shall pay an Application Fee as specified in the City fee schedule. The Application Fee is required for the purpose of reimbursing all staff costs associated with processing Applications pursuant to this Policy. Authority: Minn. Stat. S 238.081 Section 5. Information Required in Application. An Application for a competitive Franchise must be signed by an authorized officer or principle of the Applicant, if a corporate entity, and be notarized. An Application must contain but not necessarily be limited to the following: -4- (1) a statement that the Applicant seeks to construct a quality Cable System and to provide Cable Services within some or all of the City boundaries. (2) the name, street address, e-mail address and telephone number of the individuals who are authorized to provide and certify information on behalf of the Applicant; (3) plans for analog and digital channel capacity, including both the total number of analog and digital channels capable of being energized in the system and the number of analog and digital channels to be energized immediately; (4) a statement of the television and radio signals for which permission to carry will be requested from the Federal Communications Commission, or any other required regulatory agency; (5) a description of the proposed system design and planned operation, including at least the following items: (i) the proposed service area; (ii) the general area for location of any antennae, head end facility, and any other equipment sheds; (iii) the schedule for activating two-way capacity and any other system capacity to be activated in conjunction with the Cable System; (iv) the type of automated services to be provided; (v) the minimum number of video channels, other Cable Services, and other kinds of services to be made available to residents; (vi) the number of channels and services to be made available for communitylaccess programming; and (vii) a plan for funding of facilities and staff for communitylaccess programming andlor a plan for interconnection and provision of such programming in cooperation with the current franchisee. (6) the terms, conditions, and technical standards under which particular service is to be provided to governmental, educational entities, and other institutional entities; (7) a list of all institutions proposed to receive Cable Service and any other communications services; (8) a schedule of proposed rates in relation to the services to be provided, and a proposed policy regarding unusual or difficult connection of services; (9) a time schedule for construction of the entire system, specifically identifying the sequence for wiring and activating various segments of the system or areas to be served; (10) information supporting and indicating the Applicant's financial, technical and legal qualifications and experience in the cable communications field, if any; (11 ) an identification of the municipalities in which the Applicant either owns or operates a Cable System, directly or indirectly, or has outstanding Franchise for which no system has been built; -5- (12) detailed plans for financing of the proposed system, which must indicate every significant anticipated source of capital and significant limitations or conditions with respect to the availability of the indicated sources of capital; (13) a statement of ownership detailing the corporate organization of the Applicant, if any, including the names and addresses of officers and directors and the number of shares held by each officer or director, and intracompany relationship including a parent, subsidiary or affiliated company. (14) a statement of a form and substance acceptable to the City indemnifying the City fully against any claims for liabilities alleged as the result of the City's exercise of this Policy, including any such claims or liabilities alleged or asserted by the current franchisee; (15) a representation that the Applicant will pay the City a Franchise fee in the same percentage of gross revenues as the current franchisee; (16) a notation and explanation of omissions or other variations with respect to the requirements of the Application; and (b) upon submission of a proposal, the City and applicant may negotiate franchise requirements of the proposal. (17) submission of an Application Fee in an amount specified in the City fee schedule. Authority: Minn. Stat. S 238.081 Close Any questions about Shakopee's Competitive Franchising Policy should be directed to the City Telecommunications Coordinator by calling (952) 233 - 9300. -6-