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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