Chapter 4.68 COMMUNITY ANTENNA TELEVISION SYSTEMS

1. “Access channels” means channels set aside by a franchisee exclusively for noncommercial public, educational, or governmental use (commonly referred to as “PEG” channels).

2. The “Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and any subsequent amendments.

3. “Addressability” means the ability of a system allowing a franchisee to authorize specific equipment to receive, change or to cancel any or all specified programming.

4. “Applicant” means any person or entity that applies for a cable television franchise.

5. “Basic cable service” means the lowest level of service regularly provided to all subscribers that includes the retransmission of local broadcast signals.

6. “Cablecast” means the distribution of programming which originates within the facilities of the cable television system.

7. “Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers.

8. “Cable service” means:

a. The one-way transmission to subscribers of video programming or other services; and

b. Subscriber interaction, if any, which is required for the selection of such video programming or other service.

9. “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers.

10. “Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.

11. “Character generator” means a device used to generate alphanumerical programming to be cablecast on a cable channel.

12. “City” means the city of Edmonds, a municipal corporation of the state of Washington.

13. “Council” means the city of Edmonds council acting in its official capacity.

14. “Data communication” means:

a. The transmission of encoded information; or

b. The transmission of data from one point to another.

15. “Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple-family residential units.

16. “Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.

17. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

18. “Fiber optics” means the technology of guiding and projecting light for use as a communications medium.

19. “Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, ordinance, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.

20. “Franchisee” means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in city ordinance.

21. “Gross revenues” means any and all revenues (as that term is defined by generally accepted accounting principles) received directly or indirectly from all sources which arise out of or are derived from the operation of a franchisee's cable system in the city. When the revenue of the franchisee includes gross revenues from sources outside of the city, a franchisee shall prorate the gross revenues among its sources by multiplying such gross revenues by a fraction the numerator of which is the number of franchisee's subscribers in the city and the denominator of which is the total number of all a franchisee's subscribers. “Gross revenues” shall not include the following:

a. Fees and payments from subscribers who do not live in the city;

b. Taxes on services furnished by a franchisee, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and which are collected by a franchisee for such entity;

c. Bad debt write-offs;

d. Revenue from the sale of equipment or other assets of the cable system to persons not purchasing services from the cable system;

e. Revenue from transactions involving real property owned or leased by the franchisee;

f. Amounts collected from subscribers as a franchise fee to be paid to city.

22. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

23. “Installation” means the connection of the cable system from feeder cable to subscribers' receivers.

24. “Institutional networks (I-nets)” means that portion of a cable system which is designated principally for the provision of non-entertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.

25. “Interactive services” means services provided to subscribers where the subscriber:

a. Receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; and

b. Has the ability to transmit signals to any other location for any purpose.

26. “Office” means the person or entity designated by the city as being responsible for the administration of a franchise for the city.

27. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

28. “Premium services” means video programming offered on a pay-per-channel or pay-per-program basis.

29. “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.

30. “Proposal” means the response, by an individual or organization, to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

31. “Public way” or “street” means the surface, the air space above the surface and the area below the surface of any public street, including, but not limited to, any public alley, boulevard, drive, easement, right-of-way or sidewalk under the jurisdiction of the city.

32. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee's express permission. [Ord. 3083 § 1, 1996].

4.68.020 Terms of franchise.

A. Authority to Grant Franchises or Licenses for Cable Television. It shall be unlawful to engage in or commence construction, operation, or maintenance of a cable system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable system which complies with the terms and conditions of this chapter.

Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits or preclude the city from using any roads, rights-of-way, streets, or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the city to make such changes, as the city shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights-of-way and thoroughfares and other public properties. However, any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this chapter. All franchises granted subsequent to the effective date of the ordinance codified in this chapter shall be granted consistent with the terms and conditions of this chapter and on materially similar terms.

B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in the applicable franchise. However, in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document.

C. Nature and Extent of the Franchise. Any franchise granted hereunder by the city shall authorize a franchisee, subject to the provisions herein contained:

1. To engage in the business of operating and providing cable service and other services and the distribution and sale of such services to subscribers within the city;

2. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appropriate to the cable system. No privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Length of the Franchise. The city shall have the right to grant a franchise for a period of time appropriate to the circumstances of the particular grant. [Ord. 3083 § 1, 1996].

4.68.030 Application.

An applicant for a franchise to construct, operate, and maintain a cable system within the city shall file an application in a form prescribed by the city, accompanied by a non-refundable filing fee in the amount determined by the city at the time of a franchise issuance. [Ord. 3083 § 1, 1996].

4.68.040 Franchise issuance.

Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following:

A. Initial Franchise.

1. That the public will be benefited by the granting of a franchise to the applicant;

2. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

3. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter;

5. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise;

6. The capacity of public rights-of-way to accommodate the cable system;

7. The present and future use of the public rights-of-way to be used by the cable system;

8. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; and

9. Any other condition that is in the public's best interest.

B. Renewal Franchise.

1. That the applicant has substantially complied with the material terms of the existing franchise and with applicable law;

2. That the quality of the applicant's previous service including signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the system, has been reasonable in light of community needs;

3. That an applicant has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the applicant's proposal;

4. That an applicant's proposal is reasonable to meet the future cable-related community needs and interests taking into account the cost of meeting such needs and interests;

5. The capacity of public rights-of-way to accommodate the cable system;

6. The present and future use of the public rights-of-way to be used by the cable system;

7. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; and

8. Any other condition that is in the public's best interest. [Ord. 3083 § 1, 1996].

4.68.050 Acceptance.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective.

Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, a franchisee shall file with the city clerk its written acceptance of the franchise, in a form satisfactory to the city attorney, together with the bond and insurance policies required by ECC 4.68.330, Insurance, and 4.68.340, Performance bond. [Ord. 3083 § 1, 1996].

4.68.060 Police power.

In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. [Ord. 3083 § 1, 1996].

4.68.070 Rules and regulations by the city.

In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of the franchisee. Except as noted above, the foregoing does not allow for amendment by the city of material terms of any franchise it issues without the consent of a franchisee.

The city council reserves the right to delegate its authority for franchise administration to a designated agent. [Ord. 3083 § 1, 1996].

4.68.080 Construction standards.

All facilities constructed under this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state of Washington, and city regulations, standards and policies pertaining to such construction.

At least 10 days prior to the intended construction of cable facilities, a franchisee shall inform all residents in the affected area that a construction project will commence, the dates and nature of the project, and a toll-free telephone number which the subscriber may call for further information. A preprinted door hanger may be used for this purpose.

A. Notice of Entry on Private Property. At least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform new plant construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property. A franchisee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices.

B. Emergency Repairs. Notice requirements of subsection A of this section, are suspended for purposes of entry upon private property to perform repairs at the subscriber's request or in the event of system outage repairs or other emergencies in which insufficient time is available to provide notice to subscribers.

C. Restoration of Property. After performance of work, franchisee shall restore private property as nearly as practicable to its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements on private property shall, at the sole expense of a franchisee, be promptly repaired and restored (including replacement of such items as shrubbery and fencing) to the reasonable satisfaction of the property owner. [Ord. 3083 § 1, 1996].

4.68.090 Undergrounding and landscaping.

In those areas and portions of the city where the transmission or distribution facilities of the public utility providing telephone service and those of the facility providing electric service are underground or where underground placement is required for new or existing telephone and electrical service, then a franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground upon city approval. Such activities shall be made in concurrence and cooperation with the other affected utilities. Amplifiers and associated equipment in a franchisee's transmission and distribution lines may be in appropriate housing upon the surface of the ground. [Ord. 3083 § 1, 1996].

4.68.100 Construction in right-of-way.

A. Notification of City Community Services Department. A franchisee shall submit an application for permit to perform work in the city's rights-of-way. Permits to perform work in the city's rights-of-way shall be available on the basis of the most favorable terms and conditions of any other franchisee or utility. The city shall provide an annual master permit process for the cable system rebuild project, the fees of which will be paid out of the annual franchisee fees. No work, other than emergency repairs, shall commence without such a permit. Emergency repairs may be made immediately with notification given to the city no later than the next business day.

B. Installation. In accordance with the permit issued, all transmission lines, equipment, and structures shall be located and installed so as to cause minimum interference with the rights and reasonable convenience of property owners, and at all times shall be maintained in a safe condition, and in good order and repair. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of the public. Any poles or other fixtures placed in any street by a franchisee shall be placed in such manner as not to interfere with the usual travel on such public way.

C. Interference with Use of Streets. A franchisee must obtain an application for permit to perform work in the rights-of-way for all work performed by the franchisee in such areas. When installing, locating, laying, or maintaining facilities, apparatus, or improvements, a franchisee shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by franchisee of such work. Any facility, apparatus, or improvement under this chapter shall be laid, installed, located, or maintained in conformance with instructions given by, and to the reasonable satisfaction of, the city. In any event, a franchisee shall, at its own expense, and to the reasonable satisfaction of the city in accordance with the terms of the application for permit to perform work in the rights-of-way, restore to city standards and specifications any damage or disturbance caused to streets as a result of franchisee's construction or operations.

D. Relocation/Removal. Upon receipt of 30 days' prior written notice, a franchisee, at its own expense, shall protect, support, temporarily disconnect, relocate, or remove any of its property when, in the judgment of the community services director, the same is required by reason of traffic conditions, public safety, and/or improvements by governmental agencies. Nothing herein shall be deemed a taking of the property of a franchisee, and franchisee shall be entitled to no surcharge by reason of this section. After receipt of 30 days prior written notice, upon failure of a franchisee to commence, pursue, or complete any work required by the provisions of this chapter to be performed on any street, within the reasonable time prescribed and to the reasonable satisfaction of the city, the city may, at its option, cause such work to be done, and a franchisee shall pay to the city the reasonable cost thereof, within 30 days after receipt of demand.

E. Location of Facilities. A franchisee agrees to provide the city with a map or maps which shall show the vertical and horizontal location of its facilities within the franchise area using a minimum scale of one inch equals 100 feet, measured from the centerline of the right-of-way, which maps shall be in hard copy plan form acceptable to the city and in Geographical Information System (GIS) format. This information shall be provided within 90 days of the effective date of the ordinance codified in this chapter and shall be updated at least every 12 months thereafter. [Ord. 3083 § 1, 1996].

4.68.110 Safety requirements.

A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

The city reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city will, after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from a franchisee. [Ord. 3083 § 1, 1996].

4.68.120 Building moving.

Whenever any person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee, upon seven days' written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee's wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference. In such event, the city shall be responsible for determining the path of least interference. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee. [Ord. 3083 § 1, 1996].

4.68.130 Tree trimming.

In accordance with city ordinances, a franchisee shall have the authority to trim and remove trees upon and overhanging streets, public ways and places in the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of a franchisee and, if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities. [Ord. 3083 § 1, 1996].

4.68.140 Rates.

Within 30 days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all present rates charged to all subscribers.

Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide the city and all subscribers a minimum of 30 days' prior written notice of such change.

Subject to the Act and resultant FCC regulations, the city may regulate the rates or charges for providing cable service and other equipment and may establish rate regulation review procedures as delegated by federal law. [Ord. 3083 § 1, 1996].

4.68.150 Cable availability.

Cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. [Ord. 3083 § 1, 1996].

4.68.160 Franchise fee.

A franchisee shall pay to the city quarterly, on or before the thirtieth day after the end of each calendar quarter a percentage of gross revenues as deemed herein for the preceding calendar quarter. Such remittances shall be accompanied by forms furnished by the city to report reasonably detailed information as to the sources of such revenues. [Ord. 3083 § 1, 1996].

4.68.170 Periodic meetings.

Upon request, but not more than once during any calendar year, a franchisee shall meet with designated city officials and/or designated representative(s) of the city to review the performance of a franchisee for the preceding period. The franchisee shall be given not less than 30 days' prior written notice of any such meeting. The subjects may include, but are not limited to, those items covered in the periodic reports and performance tests. [Ord. 3083 § 1, 1996].

4.68.180 Cable system evaluation.

In addition to periodic meetings, and with written notice of not less than five business days so that a franchisee can arrange to have necessary personnel present, the city may require reasonable evaluation sessions at any time during the term of a franchise.

It is intended that such evaluations cover areas such as customer service, response to the community's cable-related needs, and a franchisee's performance under and compliance with the terms of a franchise. [Ord. 3083 § 1, 1996].

4.68.190 Record inspection.

Subject to statutory and constitutional limits and upon not less than 10 business days' advance written notice, the city reserves the right to inspect the records of a franchisee, which are not a part of its public files but which are necessary for the enforcement of a franchise, during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records and plans pertaining to a franchisee's operation in the city; provided, nothing in this chapter shall be read to require a franchisee to violate state or federal law respecting subscriber privacy, nor shall this chapter be read to require a franchisee to disclose confidential or proprietary information without adequate safeguards to protect its confidential or proprietary nature. [Ord. 3083 § 1, 1996].

4.68.200 Public, educational and governmental access.

The city may require, as a condition of a franchise granted pursuant to this chapter, provisions for public, educational and government (PEG) access. [Ord. 3083 § 1, 1996].

4.68.210 City-wide public, educational and government access interconnection.

The city may request a franchisee to begin negotiations to interconnect PEG access channels of a cable television system with any and all other contiguous and compatible cable systems. Interconnection of system may be accomplished by direct cable connection, microwave link, or other technically feasible method.

Upon receiving request of the city to interconnect, if a franchise has not already done so, a franchisee shall initiate negotiations with other affected system(s), and shall report to the city the results of such negotiations no later than 60 days after such initiation. Any costs of interconnection may be passed through to subscribers by a franchisee. [Ord. 3083 § 1, 1996].

4.68.220 Institutional networks (I-nets).

A franchisee's cable system shall have the capability of serving designated educational and public buildings with unidirectional or bidirectional video/audio signals. The linkage may be by cable, microwave or other means deemed appropriate by a franchisee. If required, suitable encoding and decoding devices shall be made available by a franchisee to assure transmission security.

A public entity desiring the activation of such service shall make application thereof to a franchisee. Activation of such services to a public entity shall not be unduly denied.

A public entity in the city denied such service may request a public hearing to evaluate such denial. Both the requestor and the franchisee shall be provided the opportunity to present the reasons for the request and the reasons for the denial. Upon a finding by the city council that these services are reasonably required to meet community needs, taking into account the cost of meeting such needs, the city council may require the activation of such services for the public entity in a reasonable time and on the same basis that other public entities in the city receive the same service. [Ord. 3083 § 1, 1996].

4.68.230 City-wide institutional networks interconnection.

A franchise agreement may require a franchisee to make such interconnections as necessary to connect certain designated institutions on a city-wide basis. The same conditions as enumerated in ECC 4.68.210, City-wide public, educational, and government access interconnection, shall prevail. [Ord. 3083 § 1, 1996].

4.68.240 Access and institutional network equipment.

A franchise agreement may require a franchisee to contribute either specified goods and services and/or a specified sum of money for the purpose of providing facilities and equipment for PEG access programming and the institutional networks. [Ord. 3083 § 1, 1996].

4.68.250 External franchising costs.

Prior to expenditure of capital for any franchise related requirements that would be treated as an external cost passed through to customers, the operator shall notify the city of its intent to exercise its right and the amount to be passed through to customers. The city may waive the franchise related requirement if, in the city's opinion, the increase in rates would be a burden on city rate payers. [Ord. 3083 § 1, 1996].

4.68.260 Nondiscrimination.

A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and provided further, that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee.

A franchisee will not deny access to cable service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. [Ord. 3083 § 1, 1996].

4.68.270 Continuity of service.

It shall be the right of all subscribers to continue receiving service so long as their financial and other obligations to a franchisee are fulfilled. In this regard a franchisee shall act so far as it is reasonably within its control to provide all subscribers with continuous uninterrupted service during the term of the franchise, subject to applicable law.

In the event a franchisee fails to operate a system for 72 continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee's control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the emergency alert system or designate someone to operate the emergency alert system until such time as a franchisee restores service or a replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city for all reasonable costs or damages that are the result of a franchisee's failure to perform. [Ord. 3083 § 1, 1996].

4.68.280 Transfer of ownership.

A franchise shall not be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation or otherwise, unless approval is granted by the city council to ensure a review of unforeseen circumstances not present at the time of the original franchise. The city's approval shall not be unreasonably withheld. Such costs associated with this review process shall be reimbursed to the city by a new prospective franchisee.

An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

A franchisee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a franchisee's company. Every change, transfer, or acquisition of control of a franchisee's company shall cause a review of the proposed transfer. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise. Approval shall not be required for mortgaging purposes or if said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

The city will exercise such regulatory control as it has under the Act to monitor ownership, control, utilization and transfer of a franchise. [Ord. 3083 § 1, 1996].

4.68.290 Removal and abandonment of property of franchisee.

The city may direct a franchisee to temporarily disconnect or bypass any equipment of a franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of a franchisee.

In the event that the use of any part of the cable system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other city ordinances or the franchise has been terminated, cancelled or has expired, a franchisee shall promptly, upon being given 10 days' notice, remove within 90 days from the streets or public places all such property and poles of such system other than any which the city may permit to be abandoned in place which permission shall not be unreasonably withheld. In the event of such removal, a franchisee shall promptly restore the street or other areas from which such property has been removed to a condition reasonably satisfactory to the city.

Any property of a franchisee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned unless the franchisee has commenced removal within a reasonable time.

Any property of a franchisee to be abandoned in place shall be abandoned in such manner as the city shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the city, and a franchisee shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits franchisee's rights to compensation for an involuntary abandonment of its property under state or federal law. [Ord. 3083 § 1, 1996].

4.68.300 Revocation for cause.

A. Any franchise granted by the city may be terminated during the period of such franchise for repeated failure by a franchisee to comply with material provisions of this chapter, the franchise or FCC regulations.

B. The procedure to be followed resulting in termination for any of the above reasons, save franchisee's request, shall be:

1. The city council shall identify the deficiencies or noncompliance and shall direct a franchisee, in writing, to correct such deficiencies or comply with such regulations within 30 days or a reasonable period of time.

2. Failure to comply with the provision of subsection (B)(1) will cause the matter of noncompliance to be brought before the city council for hearing.

3. At such hearing a franchisee and other interested parties shall be given fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses. The city council, or its designee, acting as hearings officer will make the determination as to whether any noncompliance or deficiency was without just cause. In the event the city council finds that such noncompliance or deficiency was without just cause, the city council may in its sole discretion fix an additional time period to cure such deficiency(ies). If the deficiency has not been cured at the expiration of any additional time period or if the council does not grant any additional period, the city council may by ordinance declare the franchise to be terminated and forfeited.

4. If a franchisee appeals revocation and termination, such revocation may be held in abeyance pending judicial review by a court of competent jurisdiction; provided a franchisee is otherwise in compliance with the franchise.

5. Nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, upon satisfactory assurances made to the city council that the terms and conditions of this chapter can be met by the new franchisee. [Ord. 3083 § 1, 1996].

4.68.310 Effect of termination for non-compliance.

If any franchise is terminated by the city by reason of a franchisee's noncompliance, that part of the system under such franchise located in the streets and public property shall, at the election of the city, become the property of the city in accordance with the city's as well as a franchisee's rights and remedies under state and federal law. If the city, or a third party, does not purchase the system, a franchisee shall, upon order of the city council, remove the system as required under ECC 4.68.290, Removal and abandonment of property of franchisee. [Ord. 3083 § 1, 1996].

4.68.320 Indemnity and hold harmless.

A franchisee will indemnify and hold harmless the city from any and all liabilities, fees, costs and damages, except in the case of judicially determined gross negligence and/or willful misconduct of the city, whether to person or property, or expense of any type or nature which may occur to the city by reason of the construction, operation, maintenance, repair and alteration of a franchisee's facilities or any other actions of a franchisee in the city. In any case in which suit or action is instituted against the city by reason of damage or injury caused by a franchisee, the city shall cause written notice thereof to be given to a franchisee and a franchisee thereupon shall have the duty to appear and defend any such suit or action, without cost or expense to the city. [Ord. 3083 § 1, 1996].

4.68.330 Insurance.

A franchisee shall furnish the city with a certified copy or original of a comprehensive liability insurance policy naming the city as an additional insured. The amount of such policy shall be established in the franchise agreement. Such insurance must be in place no later than the date of acceptance of a franchise by a franchisee. This insurance shall be maintained in full force at the franchisee's expense throughout the period of the franchise. The city may delineate more specific details concerning such insurance in the franchise agreement. [Ord. 3083 § 1, 1996].

4.68.340 Performance bond.

A franchisee shall promptly repair or cause to be repaired any damage to city property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond or other surety acceptable to the city in an amount specified by the city in favor of the city warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. [Ord. 3083 § 1, 1996].

4.68.350 Recourse against bonds and other security.

Bonds and other security may be utilized by the city for the purposes including, but not limited to, reimbursement of the city by reason of a franchisee's failure to pay the city any sums due under the terms of this chapter or the franchise, reimbursement of the city for reasonable costs borne by the city to correct franchise violations not corrected by a franchisee after due notice; and monetary remedies or damages assessed against a franchisee due to default or violations of the franchise requirements or this chapter.

A. Recourse. In the event franchisee has been declared to be in default by the city under ECC 4.68.300, Revocation for cause, and if a franchisee fails, within 30 days of mailing of the city's finding, to pay the city any franchise fee, penalties, or monetary sanctions, or fails to perform any of the conditions of the fran

chise, or fails to file for judicial review of the city's findings, the city may thereafter foreclose against the performance bond and/or withdraw from any other security an amount sufficient to compensate the city's damages, with interest, at the legal rate. Upon such foreclosure or withdrawal, the city shall notify a franchisee in writing, by first class mail, postage prepaid, of the amount and date thereof.

B. Restoration. Within 30 days after mailing notice to a franchisee that the city has foreclosed franchisee's performance bond or that any amount has been withdrawn by the city from the other security pursuant to subsection A of this section, a franchisee shall deposit such further bond or sum of money, or other security, as the city may require, sufficient to meet the requirements of this chapter and the franchise agreement.

C. Rights of the City. The rights reserved to the city with respect to any bond or security are in addition to all other rights of the city whether reserved by this chapter or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond or other security shall constitute an election or waiver of any rights or other remedies the city may have. [Ord. 3083 § 1, 1996].

4.68.360 Franchising costs.

The operator shall pay to the city upon acceptance of any initial franchise or renewal franchise granted hereunder, the city's reasonable out-of-pocket costs associated with the franchising process up to a maximum amount specified in the franchise agreement. The amount of the filing fee shall be a credit against these out-of-pocket costs. Costs shall include such items as consulting fees, expenses, and the costs of publishing notices and ordinances, etc. Such payment is not to be considered in lieu of franchise fee payments. Payment is due within 30 days of receipt of appropriate invoice from the city. [Ord. 3083 § 1, 1996].

4.68.370 Equalization of civic contributions.

In the event of one or more new franchises being granted, the city may require that such subsequent franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bidirectional or equivalent cable installed to municipal buildings and similar expenses.

Additional franchisees shall provide all PEG access channel(s) currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees shall interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The city council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements.

Additional franchisees shall contribute towards costs of PEG access paid by a prior franchisee by paying to the prior franchisee on each anniversary of the grant of the subsequent franchise an amount equal to a proportionate share of the amount contributed by the prior franchisee for PEG access costs in constant dollars. This proportion shall be based upon the number of subscribers in the city held by each franchise and shall be contributed until such time as equal contributions towards the cost of PEG access have been made. [Ord. 3083 § 1, 1996].

4.68.380 Inconsistency.

If any portion of this chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal law, then, to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this chapter shall not be affected thereby. [Ord. 3083 § 1, 1996].

4.68.390 Expedited review process – Competitive franchises.

In accordance with the competitive franchise rule adopted pursuant to Part 76 of Title 47 of the Code of Federal Regulations (CFR), Section 76.41, a process for expedited review of franchise applications for a competitive franchise is hereby established.

A. Application of Rule. Any application for a cable franchise agreement submitted pursuant to 47 CFR Section 76.41 to the city shall contain the requisite information set forth herein. The mayor and staff shall evaluate the application and make recommendations to the Edmonds city council based on the criteria set forth herein.

B. Definitions. As used in this local rule, definitions shall be as follows:

1. “Affiliated entity” or “affiliate” means any entity having ownership or control in common with the grantee, in whole or in part, including, without limitation, grantee's parent corporations and any subsidiaries or affiliates of such parent corporations.

2. “CFAR franchise applicant” or “applicant” means an applicant for a cable franchise pursuant to the provisions of the competitive franchise application rule (CFAR) set forth in Part 76 of 47 CFR Section 76.41, and includes the parent corporation, its subsidiaries and principals.

3. “City” means the city of Edmonds.

4. “Control” is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.

5. “Interest” includes officers, directors and shareholders owning five percent or more of the CFAR franchise applicant's outstanding stock or any equivalent voting interest of a partnership or joint venture.

6. “Model cable franchise template” means this chapter, containing standard franchise terms and conditions for cable franchises granted in the city, as the same exists or is hereafter amended through a process that will commence in 2008. Franchises granted under existing Chapter 4.68 shall expire on April 26, 2011, unless an earlier date is established in the review process.

7. “Staff” means the persons or positions designated by the mayor for review. The term shall include any consultant hired by the city to assist in its review.

8. “Parent corporation” includes any entity with ownership or control of the CFAR franchise applicant.

9. “Principal” includes any person, firm, corporation, partnership, joint venture, affiliates, or other entity, who or which has control of or interest in a CFAR franchise applicant.

10. “Regulatory authority” includes any governmental or quasi-governmental organization or entity with jurisdiction over all or any portion of the CFAR franchise applicant or its operations.

C. Competitive Franchise Application Submission. A CFAR franchise applicant shall include in its application detailed written responses to the requisite information set forth in ECC 4.68.400, in addition to any information required by 47 CFR Section 76.41 (hereinafter collectively the “application”). A CFAR franchise applicant shall submit an application fee required under ECC 4.68.410 as part of its application to the city. A CFAR franchise applicant shall also provide any additional information requested by the staff that is relevant to the evaluation of the application under the criteria adopted herein and applicable law. Completed application and the application fee shall be filed with the city clerk at the following address:

City Clerk

City of Edmonds

121 – 5th Ave. North

Edmonds, WA 98020

The staff shall accept and review only those applications that include complete responses to every element of the information required herein. Submission of an application that does not include the requisite information set forth in ECC 4.68.400 and the application fee shall not commence the time period set forth in 47 CFR Section 76.41 for granting or denying an application. If the staff requests any additional information from the CFAR franchise applicant, the time period set forth in 47 CFR Section 76.41 shall be tolled from the date the information is requested until the date such information is received by the staff.

The CFAR franchise applicant shall immediately submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the staff review of the application.

Upon request, the staff will promptly provide access to documents or information in its possession or control that are necessary for the completion of an application; provided, that the CFAR franchise applicant does not otherwise have access to such documents or information and that such documents or information are subject to disclosure under Washington public records laws. [Ord. 3668 § 1, 2007].

4.68.400 CFAR application requisites.

A. Identification and Ownership Information.

1. Identification of Applicant and Proposed Franchisee.

a. State the name, address, telephone number and web site (if applicable) of the applicant and the proposed franchisee (if different from applicant).

b. State the name, address, primary telephone number and primary e-mail address of all individual(s) authorized to represent the applicant before the staff during their consideration of the franchise(s) requested, including the applicant's primary contact and any additional authorized contacts.

2. Business Structure.

a. Corporation.

i. If applicant is a corporation, please list all officers and members of the board of directors, their principal affiliations and their addresses;

ii. Attach a certified copy of the articles of incorporation and bylaws of the corporation as well as certificates of good standing from the Secretary of State of the state of incorporation as well as the state of Washington; and

iii. State whether the applicant is directly or indirectly controlled by another corporation or legal entity. If so, attach an explanatory statement and response to subsections (2)(a)(i) and (ii) of this section concerning the controlling corporation.

b. Partnership.

i. If applicant is a partnership, please describe the structure of the partnership and the interests of general and limited partners.

ii. State whether the applicant is controlled directly or indirectly by any corporation or other legal entity. If so, respond to subsections (2)(a)(i) and (ii) or (2)(b)(i) of this section, as applicable, concerning the controlling entity.

3. Experience.

a. Current Franchises. Please list all cable systems operated by the applicant in the last five years. For each system, include name of system, address, communities served, number of subscribers, number of homes passed, date of system award, duration (start and end date) of franchise, status of construction, and percent of penetration of homes passed as of most recently available date (include date). Also include name, title, and telephone number of the system manager and authorized representative of the franchising authority.

b. Pending Franchises. List communities where the applicant or any affiliate currently has a formal or informal request pending for an initial franchise, the renewal of a franchise, or the approval of a transfer of ownership. Include names of communities, date of application, date of expected action, and estimated number of homes. Also include complete contact information of an authorized representative of the franchise authority.

4. Management Structure. Attach a management/organizational chart showing the management structure of the applicant. Also, provide a similar chart showing the relationship of the applicant to all general partners, parent corporations, subsidiaries, affiliates and all other subsidiaries of parent corporation, including a brief description of each entity's relationship to the applicant.

5. Management Agreement. State whether there are any management agreements existing or proposed between the applicant and any parent corporation or affiliate related to construction and operation of the applicant's planned system in Edmonds. If yes, attach a copy of any such agreement.

B. Legal Qualifications.

1. Media Cross-Ownership. Section 613 of the Cable Communications Policy Act of 1984, 47 USC Section 533(a), and applicable FCC rules prohibit certain forms of media cross-ownership. Please state whether the applicant or an affiliate directly or indirectly owns, operates, controls or has an interest in any of the following, or whether the applicant holds or operates any company or business operating jointly with any of the following:

a. A national broadcast television network (such as ABC, CBS or NBC, etc.).

b. A television broadcast station whose predicted Grade B contour, computed in accordance with Section 73.684 of the FCC's rules, overlaps in whole or in part in the city, or an application for license to operate such a station.

c. A telecommunications or telephone company whose service area includes any portion of the city.

If the response to any of the above is affirmative, state the name of the applicant or affiliate, the nature and percentage of ownership or interest and the company that is owned or in which the interest is held.

2. Equal Employment Opportunity and Affirmative Action. Federal law requires cable system operators to be certified by the Federal Communications Commission (FCC) as being in compliance with the equal employment opportunity requirements of Section 634(e) of the Cable Communications Policy Act of 1984, 47 USC Section 554(e). The applicant shall attach any current FCC certification(s) for its existing cable system holdings, if any, or indicate its intention to apply for and abide by same.

3. Franchise Violations. State whether the applicant or any affiliate has been found in violation by a regulatory authority or franchising authority of any franchise ordinance or agreement, contract or regulation governing a cable system. If so, identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.

4. Other Violations. State whether the applicant or any affiliate has been found in violation of any franchise, ordinance, agreement, permit, contract or regulation by a regulatory authority of any other type (e.g., public utility commission). If so, identify the judicial or administrative proceeding, giving the date, name of tribunal and result or disposition of that proceeding.

C. Financial Qualifications.

1. For applicants with existing operations: provide audited financial statements, including statements of income, balance sheets and cash flow statements, together with any notes necessary to the understanding of the financial statements for the last three fiscal years for the applicant and any parent corporation. Please provide associated operating statistics including distribution plant miles, homes passed, number of basic cable service subscribers, and number of subscribers to other tiers or services, including digital services, Internet access services, telephone services and number of premium units, for the operations corresponding to the financial statements.

2. For all applicants: provide detailed pro forma projections for both applicant's operations in the city and any regional or national planned operations of which the city is a part for the next five fiscal years from the date of the application, including balance sheets, income statements, and statements of cash flows, or, alternatively, at a minimum, detailed projected income and cash flow statements. Please include associated operating statistic assumptions for these projections including distribution plant miles, homes passed, number of basic cable service subscribers, number of subscribers to other tiers or services (e.g., digital service, high-speed Internet access service, telephone service, etc.), and number of premium units. Also, describe any other assumptions reflected in the projections, including (a) revenue assumptions, such as service rates, (b) expense assumptions, such as direct costs of service, staffing levels, or anticipated cost inflation, (c) capital expenditure assumptions, such as miles of plant to be built and costs per mile of construction or per subscriber, and (d) financing assumptions, such as funds to be borrowed and from whom, interest rates, and timing of repayment, or equity infusions and distributions. Please provide these projections in electronic (Excel spreadsheet) form as well as in printed form.

D. Technical Qualifications, Planned Services and Operations.

1. Describe the applicant's planned initial and proposed geographic cable service area, including a map and proposed dates for offering service to each area;

2. If the applicant has or asserts existing authority to access the public right-of-way in any of the initial or proposed service areas listed in subsection (D)(1) of this section, state the basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority;

3. Describe with particularity the applicant's planned residential cable services, including basic cable services, cable programming service tiers, and any additional pay-per-view, on-demand or digital services; and the projected rates for each category or tier or service;

4. Describe with particularity the applicant's planned system technical design, upstream and downstream capacity and speed, provision for analog or digital services or packages, distribution of fiber, and planned count of households per residential node;

5. Describe with particularity the applicant's planned nonresidential cable services;

6. Describe the applicant's planned construction and extension or phase schedule, as applicable, including system extension plans or policy; describe current status of the applicant's existing or proposed arrangements with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable;

7. Describe the applicant's plan to ensure that the safety, functioning and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the applicant's facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation or removal of the facilities; also state the proposed allocation of costs of installation, construction, operation or removal of facilities between the applicant and the subscriber;

8. Describe the availability and cost of a device to enable a subscriber to block obscene or indecent programming; and

9. Describe the applicant's plan to comply with the subscriber privacy protections set forth in 47 USC Section 551.

E. Minimum Franchise Obligations. Please state the applicant's intention to meet each of the following minimum cable franchise standards:

1. Model Franchises. The applicant shall comply with all provisions of this chapter.

2. Right-of-Way (“ROW”) Regulations. The applicant shall stipulate in writing that it will at all times comply with all applicable and lawful city laws and regulations related to use of the public ROW within the boundaries of the city.

3. Nondiscrimination. The applicant shall stipulate that it shall not deny cable service to any group of potential residential cable subscribers in the cable service area proposed by applicant based on their income.

4. Franchise Fees. The applicant shall pay franchise fees on a monthly basis, unless otherwise agreed to by the city, at the franchise fee rate established by ordinance for all cable service providers in Edmonds.

F. City Expectations. The applicant will provide a detailed proposal as part of its application regarding each of the below provisions to enable the city to determine whether the application meets the cable-related needs and interests of the city.

1. Build-Out. The city expects that all residents within a specified cable service area will have access to applicant's cable services consistent with all applicable local, state and federal laws and regulations. The applicant shall provide a proposal to provide access to cable services to all residents in applicant's proposed cable service area within a reasonable time period. Maps of existing franchise districts are on file with the staff's office or available by contacting the city at 425-775-2525. The staff may reconsider cable service areas proposed by applicant that overlap the geographic boundaries of existing Edmonds cable franchise districts. Applicant shall clearly specify all build-out criteria and exceptions.

2. PEG Channel Capacity. The applicant shall provide the same channel capacity as available under existing incumbent city cable franchise agreements. Channel capacity is not limited to channels currently in use but shall include all available channels under existing franchise agreements.

G. Proposed Franchise Terms. The city's model cable franchise template, Attachment A to this rule, reflects terms and conditions required of other cable operations in Edmonds as of the effective date of the CFAR. The applicant shall list any proposed amendments to the model cable franchise template and an explanation as to why the amendment should be considered by the city. These proposed amendments may either be included in this section of applicant's CFAR franchise application or shown directly on the model cable franchise template. An electronic copy of the model cable franchise template may be obtained by calling staff at 425-775-2525 or on the city's web site: www.ci.edmonds.wa.us.

H. Miscellaneous Provisions. State whether the applicant contemplates the provision of any cable services on its system under an open video systems (“OVS”) regulatory regime, within the meaning of Section 653 of the 1934 Communications Act (47 USC Section 573).

I. Affidavit of Applicant. Each application shall be accompanied by an affidavit substantially in the form set forth below:

This application of the Applicant is submitted by the undersigned who has been duly authorized to make the representations within on behalf of the Applicant and certifies the representations are true and correct.

The Applicant recognizes that all representations are binding on it and that material misrepresentations or omissions, or failure to adhere to any such representation may result in a negative staff recommendation to the Edmonds City Council, or denial of a CFAR Franchise Application by the Edmonds City Council.

Consent is hereby given to the staff and their representatives or agents to make inquiry into the legal character, technical, financial and other qualifications of the Applicant by contacting any persons or organizations named herein as references, or by any other appropriate means.

The Applicant recognizes that information submitted is open to public inspection and subject to the Washington Public Records Law. We advise the Applicant to be familiar with the Washington Public Records Act at Chapter 42.56 RCW. The Applicant should specifically identify any information which the Applicant has deemed proprietary, the Staff, as appropriate, will tender to the Applicant the defense of any request to compel disclosure. By submitting information which the Applicant deems proprietary or otherwise exempt from disclosure, the Applicant agrees to defend and hold harmless the City of Edmonds and the staff from any claim for disclosure including but not limited to expenses including out-of-pocket costs and attorneys' fees, as well as any judgment entered against the City of Edmonds or the staff for the attorney fees of the party requesting disclosure.

Name of Applicant's Authorized Representative: ___________________.

Affiant's Signature:

Official Position:

Date:

NOTARIZATION

Subscribed and sworn before me this ______ of _______, 20___.

Notary Public for Washington:

My Commission expires: __________.

J. Application Fee. The application fee to cover the reasonable cost of processing application is set forth in ECC 4.68.410. The fee shall be equal to the actual, reasonable costs of review, and the application fee shall be considered a deposit against payment or reimbursement of the city's costs.

K. Review Process.

1. Acceptance of Application. Within 10 business days of receipt of an application, staff shall review the application to ensure all requisite information is included in the application.

a. If the application is not complete, staff will notify the applicant in writing within 10 business days, listing the requisite information that is required to complete the application and notifying the applicant that the time period for granting or denying the application set forth in 47 CFR Section 76.41 will not begin to run until such information is received.

b. If the application is complete, staff will notify the applicant in writing within five business days by certified mail that all requisite information has been received.

2. Staff Review. Staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff requires additional information from the applicant, staff will promptly request the information from the applicant, in writing, along with a notification that the time period for granting or denying the application set forth in 47 CFR Section 76.41 will be tolled until such information is received by the staff. After completing the review, staff shall provide an analysis of the application and recommendations to the Edmonds city council.

3. Public Notification and Opportunity to Comment. The Edmonds city council may hold a public hearing to provide the applicant and residents in the proposed cable service area prompt notice and an opportunity to comment on any CFAR franchise application. Notice requirements for public hearings shall be provided 10 business days in advance; provided, however, that the city clerk may shorten or alter these requirements as needed to meet the deadline for a council decision set forth in 47 CFR Section 76.41, unless the applicant and the staff agree to extend the deadline.

4. Review Criteria. The staff may recommend to the city council denial of an application of any of the following exists:

a. The applicant does not have the financial, technical, or legal qualifications to provide cable service; or

b. The applicant will not provide adequate public, educational, and governmental access channel capacity, facilities, or financial support, as evidenced by the most recent needs ascertainment conducted by or on behalf of the staff or other relevant study of community needs; or

c. The applicant will not meet the city's minimum reasonable build-out requirements; or

d. The applicant's proposed terms do not comply with applicable federal, state and local laws and regulations including, but not limited to, local customer service standards or relevant existing city contractual obligations; or

e. Applicant has made material misrepresentations or omissions, or has failed to adhere to any such representations.

5. Length of Franchise. A franchise granted under these provisions shall expire on the date established in the review process, in no event later than April 26, 2011, the same date as any underlying, nonexclusive cable franchise previously granted by the city. This franchise length has been established in order to permit full assessment of the needs of the city and its citizens as permitted by 47 USC Section 521, et seq., and the regulations promulgated thereunder as this chapter is revised. [Ord. 3668 § 2, 2007].

4.68.410 CFAR application fee – Deposit required.

The application shall be accompanied by a cashier's check or similar instrument in the amount of $5,000. This fee is a deposit against the actual reasonable cost of processing the application. The applicant agrees, by its submittal, to pay the actual reasonable costs of review, either by city staff or a consultant, on a time and materials basis. If the deposit is not adequate to pay the costs incurred, written notice to supplement the deposit shall be provided by staff. If the applicant fails to supplement the deposit, processing shall halt and the time limit for review stayed until the deposit is supplemented in an amount equal to the estimated cost of completing review. Any unused portion of the deposit shall be returned to the applicant. [Ord. 3668 § 3, 2007].