91-9435 Cable Franchise StandarKuhn -Cox Priming — Salina, Kansas
(Published in The Salina Journal April 26, 1991)
ORDINANCE NUMBER 91-9435
AN ORDINANCE AUTHORIZING ISSUANCE OF A REQUEST FOR
PROPOSALS, SETTING DATES FOR RESPONSE, ESTABLISHING
STANDARDS FOR REVIEW OF SALINA CABLE TV'S REQUEST FOR A
FRANCHISE RENEWAL, ESTABLISHING PROCEDURES AND STANDARDS
FOR RECEIVING AND REVIEWING OTHER FRANCHISE APPLICATIONS,
ESTABLISHING LEGAL QUALIFICATIONS FOR A FRANCHISE,
DESIGNATING ACCESS MANAGEMENT ENTITY AND REQUIRING THAT
ANY CABLE SYSTEM OBTAIN A FRANCHISE.
WHEREAS, the City of Salina has conducted hearings to review
the past performance of the cable franchisee, Communications Services,
Inc. ("CSI") d/b/a Salina Cable TV, Inc.; and
WHEREAS, the City of Salina has conducted hearings to identify
the future cable -related needs and interests of the community and
through that process has identified the future cable -related needs and
interests of the community; and
WHEREAS, Salina has reviewed the past performance of the
incumbent operator in accordance with the requirements of the Cable Act;
and
WHEREAS, pursuant to the Cable Communications Policy Act of
1984 ("Cable Act") , the City now may issue a Request for Proposals to
CSI, establish a deadline for CSI's response, and must prepare to take
other steps to comport with the requirements of the Cable Act and
desires to do so; and
WHEREAS, cable systems occupy scarce and valuable public
property which is not available and has not been opened to all, and the
City must engage in a franchising process to protect its interests, and
WHEREAS, pursuant to the Cable Act; its home rule authority
under Article 12, Section 5 of the Kansas Constitution; and Article 20,
Chapter 12 of the Kansas Statutes Annotated, the City desires to
establish procedures for receiving and evaluating proposals for
franchises it may receive; SO NOW, THEREFORE
BE IT ORDAINED by the Governing Body of the City of Salina,
Kansas:
Section 1. Short Title. This ordinance shall be referred
to as the Cable Television Franchise Ordinance of 1991.
Section 2. Adoption of RFP. After a review of the
record, the City has developed a document entitled a "Request for
Proposals ('RFP') ." It has also developed a document entitled "Proposed
Franchise Ordinance." Together, these documents set forth the
requirements which the City is entitled to include in a request for
porposals or otherwise establish under the Cable Act. The requirements
in the RFP and proposed franchise ordinance are intended to be
interpreted consistent with that Act. Therefore, as necessary to ensure
the validity and enforceability of all requirements which may now or
hereafter be included in any final franchise ordinance, matters which are
required by the Cable Act to be included in the RFP shall be deemed to
be included in the RFP; requirements which may not be included in the
Kuhn -Cox Priming — Sallha, Kansas
RFP shall not be deemed included in the RFP, but shall be deemed
required as consistent with federal law. The City intends that the
proposed franchise ordinance and the response to the RFP will be
incorporated into a final franchise ordinance for ratification by the
proposed Grantee and by the City.
Section 3. Issuance of RFP. Pursuant to 47 U.S.C.
§ 546 (b), the City staff is directed to issue the RFP to CSI with the
proposed franchise ordinance attached. CSI is directed to respond to the
RFP no later than noon on June 5, 1991 by submitting copies of a renewal
proposal to the City, in the number and to the person and location
directed in the RFP. If CSI fails to respond by that date, any request
for renewal submitted pursuant to 47 U.S.C. §546 (a) will be deemed
withdrawn. The procedures, instructions and requirements set forth in
the RFP shall be followed by CSI as if set forth and required herein.
The City Manager, or his designee, shall be authorized to seek additional
information from CSI, and to establish deadlines for the submission of
that information. Upon submittal by CSI of its proposal for renewal of a
franchise, the City shall provide prompt public notice of the proposal.
Section 4. Preliminary Evaluation. Following receipt of
CSI's Section 3 proposal (and such additional information as may be
provided in response to the City's request), the City will make a
preliminary assessment that the franchise should be renewed, or a
preliminary assessment that the franchise should not be renewed. This
determination shall be made in accordance with the time limits
established by the Cable Act. The preliminary determination shall be
made by Resolution. If the City preliminarily determines that the
franchise should not be renewed, and CSI notifies the City either in its
RFP response or within ten (10) working days of the preliminary
assessment that it wishes to pursue any rights it has under the Cable
Act to an administrative proceeding, then the City shall commence an
administrative proceeding after providing prompt public notice thereof,
in accordance with the Cable Act. If the City decides preliminarily to
grant renewal, it shall prepare a final franchise ordinance which
incorporates the commitments made by CSI in its response to the RFP. If
CSI accepts the franchise ordinance, and the final ordinance is ratified
by the City, the franchise shall be renewed. If the final franchise
ordinance is not so accepted and ratified within the time limits
Kuhn -CAI( Priming — Saline. Kansas
established by 47 U.S.C. §546 (c)(1), renewal shall be deemed
preliminarily denied.
Section 5. Administrative Proceeding. If an
administrative hearing is commenced pursuant to 47 U.S.C. §546(c), the
following procedures shall apply:
a. The City shall, by Resolution, appoint an administrative
hearing officer or officers (referred to hereafter as
"hearing officer") .
b. The administrative hearing officer shall establish a
schedule for proceedings which allows for documentary
discovery and interrogatory responses, production of
evidence, and cross-examination of witnesses. Depositions
shall not be permitted unless the party requesting the
deposition shows that documentary discovery and
interrogatory responses will not provide it an adequate
opportunity to require the production of evidence required
to present its case. The hearing officer shall have the
authority to require the production of evidence as the
interests of justice may require, including to require the
production of evidence by CSI and any entity which owns
or controls or is owned or controlled by CSI directly or
indirectly. The hearing officer may issue protective
orders, but shall not prohibit discovery on the ground
that evidence sought is proprietary or involves business
secrets. Any order may be enforced by a court of
competent jurisdiction or by imposing appropriate
sanctions in the administrative hearing.
C. The hearing officer may conduct a prehearing conference
and establish appropriate prehearing orders. Intervention
by non-parties is not authorized except to the extent
permitted by the Cable Act.
d. The hearing officer shall require the City and CSI to
submit prepared testimony prior to the hearing. Unless
the parties agree otherwise, CSI shall present evidence
first, and the City shall present evidence second.
e. The transcript of proceedings conducted pursuant to 47
U. S. C. §546(a), including reports prepared in
K,hn-Con Printing — Salina, Kanaaa
connection therewith and the record of any show cause
proceeding conducted under the franchise, shall for
purposes of the
administrative hearing be
regarded
no
differently than
any other evidence. The
City and
CSI
must be afforded full procedural protection regarding
evidence related to these proceedings, including the right
to refute any evidence introduced in these proceedings
and sought to be introduced by the other party. Each
shall have the opportunity to submit additional evidence
related to issues raised in the proceeding conducted
pursuant to 47 U.S.C. §546(a).
f. Following completion of any hearing, the hearing officer
shall require the parties to submit proposed findings of
fact with respect to the matters set forth in 47 U.S.C.
§546(c)(1)(A)-(D). The hearing officer shall then
prepare written findings with respect to the matters set
forth in 47 U.S.C. §546(c)(1)(A)-(D), and submit those
findings to the City and to the parties. The parties
shall have 30 days from the date the findings are
submitted to file exceptions to those findings with the
City. The City shall thereafter issue a written decision
granting or denying the proposal for renewal, consistent
with the requirements of the Cable Act and based upon
the record of such proceeding. The City shall transmit a
copy of the decision to the cable operator.
g. The proceeding shall be conducted with due speed and the
hearing officer must conduct proceedings so that the
recommendations are submitted to the City for review no
later than November 1, 1991, unless the date is extended
by the City.
h. In conducting the proceedings, and except as inconsistent
with the foregoing, the hearing officer will follow the
Kansas Administrative Procedures Act Sections
77 -522(a) -(c), 77 -523(a) -(d) and (f), 77 -524(a) -(f) and
77-525 following the commencement of the proceeding. The
hearing officer may request the City to adopt additional
procedures and requirements as necessary in the interest
of justice.
Section 6. Other Applications for a Franchise. (a) For
the period beginning with the effective date of the Ordinance, up
through and including December 31, 1992, any person may apply for a
franchise by submitting a response to the request for proposals and
proposed franchise adopted hereby, as the same may be modified from
time to time and requesting an evaluation of that proposal pursuant to
Section 7 . After December 31, 1992, a person may apply for a franchise
by submitting a request for issuance of an RFP and requesting an
evaluation of that proposal pursuant to Section 7. Promptly upon receipt
of the request, the City shall consider whether changes in cable
technology, community cable -related needs or interests or the law require
that changes be made in the RFP or proposed franchise, and shall issue
an RFP and proposed franchise to the applicant. The applicant shall
respond within the time directed by the City, providing such material as
the City may require. The procedures, instructions and requirements set
forth in the RFP shall be followed by the applicant as if set forth and
required herein. The City Manager, or his designee, shall be authorized
to seek additional information from the applicant, and to establish
deadlines for the submission of that information.
(b) This section does not prohibit any person from submitting
an informal renewal proposal pursuant to 47 U.S.C. §546(h), or
invoking federal renewal procedures in accordance with 47
U.S.C.§546(a).
Section 7. Evaluation of Proposals. This section applies
to proposals submitted in accordance with Section 3 or Section 6(a) . To
the extent required by federal law, any renewal proposals submitted in
compliance with 47 U.S.C. §546(a) -(g) will be evaluated in accordance
with 47 U.S.C. §546(c), as amended from time to time. In evaluating
other applications for franchises to which this section applies, the City
shall consider:
a. the extent to which applicant has substantially complied
with the applicable law and the material terms of any
existing cable franchise for Salina, or if none, cable
franchises for other communities;
Kuftn-Coa Printing — Salina, Kansas
b . whether the quality of the applicant's service under an
existing franchise in Salina, or if none, in other
communities, including signal quality, response to
customer complaints, billing practice and the like has
been reasonable in light of the needs of the communities
served;
C. whether
the applicant has
the financial, legal
and
technical
ability to provide
the services, facilities
and
equipment
set forth in
its proposal submitted
in
accordance with Section 6;
d. whether the applicant's proposal is reasonable to meet the
future cable -related needs and interests of the community,
taking into account the cost of meeting such needs and
interests;
e. whether issuance of the franchise is warranted in the
public interest considering the immediate and future
effect of the public rights-of-way and private property
which will 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
rights-of-way; the effect of granting the franchise on the
ability of cable to meet the cable -related needs and
interests of the community; and the comparative
superiority or inferiority of competing proposals.
Except as required under 47 U.S.C. §546, the City may
grant or deny a request for a franchise based on its review of the
applications without further proceedings. This ordinance is not intended
and shall not be interpreted to grant any applicant or existing
franchisee standing to challenge the issuance of a franchise to another.
Section 8. Legal Qualifications.
a. In determining whether CSI or any other applicant for a
franchise has the necessary legal ability to perform as
promised and to assist it in evaluating the past
performance of the applicant under 47 U.S.C. §546 or
Section 7 above, the City shall evaluate the applicant's
proposal in light of this section:
Kuhn -Co, Printing — Salina, Kansas
i. An applicant which submits a proposal under 47
U.S.C. §546 (a) - (g) may not also submit a
proposal under 6(a) so long as the application under
47 U.S.C. §546 (a) - (g) is pending.
ii. The City shall not grant a franchise to any applicant
which submitted a request for a franchise or for
renewal of an existing franchise pursuant to Section
3 or Section 6(a) and where the request was denied,
or any
challenges to
the franchising decision
were
finally
resolved on
a date three years or
less
preceding the submission of the new request where
the previous denial was on grounds that the applicant
failed to propose a system which met the needs and
interests of the community; or that the applicant did
not meet the requirements of this Section a.vi.
iii. Every applicant must have the necessary authority
under Kansas law to operate a cable system. An
applicant must have or show that it is qualified to
obtain the necessary federal licenses or waivers
required to operate the system proposed.
iv. A franchise will not be issued to an applicant who
may not hold the franchise as a matter of federal
law.
V. An applicant shall not be issued a franchise if, at
any time during the ten years prior to the issuance
of the request for proposals to which applicant
responds, applicant engaged in act or omissions of
such character that the applicant cannot be relied
upon to deal truthfully with the City and the
subscribers of the cable system; or to substantially
comply with its lawful obligations under the
franchise or its obligations under applicable law,
including obligations under consumer protection laws
and laws prohibiting anticompetitive acts, fraud,
racketeering or other, similar conduct.
vi- An applicant shall not be issued a franchise if it
files materially misleading information in response
Kuhn -CG. Printing — Salina, Kansas
to a request for proposals issued by Salina, or
intentionally withholds information which the
applicant lawfully is required to provide.
b. An applicant shall provide the City all information
required to permit it to make a determination under a . iv . ,
in accordance with the RFP. Notwithstanding the
foregoing, the City shall provide an opportunity to any
person which has engaged in acts or omissions which may
provide the basis for denying a request for a franchise
under part a. v. to show in its response to any RFP that
it would be inappropriate to base a decision on the act or
omission, by virtue of the particular circumstances
surrounding the act or omission and given the steps taken
by the applicant to cure all harms flowing from the act or
omission and to prevent its recurrence; the involvement of
applicant's principals; or the remoteness of the act or
omission from the operation of cable television systems.
C. This section shall not be read to require the City to take
any action which would be inconsistent with 47 U.S.C.
§546.
Section 9. Designation of Access Management Entity. The RFP
contains a requirement that the access channels be managed by a
nonprofit access corporation. For purposes of that requirement, the
designated access corporation shall be Community Access Television of
Salina, Inc.
Section 10. Franchise Required. No cable operator may operate
a cable system in Salina without first obtaining an enforceable
franchise, containing such terms and conditions as the City lawfully may
require.
Section 11. Severability. The sections, clauses and phrases of
this ordinance are severable, and if any section, clause or phrase is
declared invalid by any court of competent jurisdiction, such section,
clause or phrase shall be deemed a separate, distinct and independent
provision and shall not affect the validity of the remaining portions
hereof.
K --Cox Printing — Saline. Kansas
Section 12. Effective Date. This ordinance shall be in full
force and effect from and after its adoption and publication once in the
official city newspaper.
(SEAL)
ATTEST:
Jacqud ine Shiever, City Clerk
First Reading: April 1, 1991
Second Reading: April 8, 1991
Third Reading: April 22, 1991
Stephen C. Ryan, Mayor