§ 6.08.040. Applications for grant, renewal, or modification of franchises.

A.

Written Application.

1.

A written application shall be filed with Metropolitan Nashville for (a) grant of an initial franchise; (b) renewal of a franchise under 47 U.S.C. Section 546(a)—(g); or (c) modification of a franchise agreement pursuant to this chapter or a franchise agreement. An applicant shall demonstrate in its application compliance with all requirements of this chapter and all applicable laws.

2.

Any application for a franchise shall be made to the council through the metropolitan clerk and introduced in the council in the manner provided by the rules of the council. No grant, renewal or modification of a franchise shall be issued until the council has received the recommendation of the CATV special committee or the CATV special committee has failed to act within sixty days from the date the council has referred such application to such committee, unless a longer period is granted by the council.

3.

Each such application shall be kept on file with the metropolitan clerk. Any intentional misrepresentation in such application shall be grounds for the rejection of the application. The application shall be a part of any franchise agreement subject to this chapter.

4.

The mandatory referral to the metropolitan planning commission required by Section 11.505 of the Metropolitan Charter shall apply to each franchise application, but such referral to the planning commission may be made at the same time as any one or more franchise applications or bills are referred to the CATV special committee.

5.

To be acceptable for filing, a signed original of the application shall be submitted together with twelve copies. The application must be accompanied by the required application filing fee as set forth in subsection F of this section, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

6.

All applications accepted for filing shall be made available by Metropolitan Nashville for public inspection.

B.

Application for Grant of a Franchise, Other Than a Cable Act Renewal Franchise.

1.

A person may apply for a franchise by submitting a request for issuance of a notice of sale ("NOS") and requesting an evaluation of its application pursuant to subsection (B)(4) of this section. Upon receipt of a request for an NOS, Metropolitan Nashville shall, if necessary, commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an NOS and proposed franchise agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The applicant shall respond within the time directed by Metropolitan Nashville, providing the information and material set forth in subsection D of this section. The procedures, instructions, and requirements set forth in the NOS shall be followed by each applicant as if set forth and required herein. Metropolitan Nashville or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.

2.

Notwithstanding the provisions of subsection (B)(1) of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in subsection D of this section and requesting an evaluation of that application pursuant to subsection (B)(3) of this section. Prior to evaluating that application, Metropolitan Nashville may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in subsection (B)(3) of this section and may seek additional applications.

3.

In evaluating an application for a franchise, Metropolitan Nashville shall consider, among other things, the following factors:

a.

The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for Metropolitan Nashville;

b.

Whether the quality of the applicant's service under any existing franchise in Metropolitan Nashville, including signal quality, level of service, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;

c.

Whether the applicant has the financial, technical, and legal qualifications to provide cable service;

d.

Whether the application satisfies any minimum requirements established by Metropolitan Nashville and is otherwise 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, to the extent not considered as part of subsection (B)(3)(d) of this section, the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support;

f.

Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on the public rights-of-way and private property that would 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 public rights-of-way; the effect of granting a franchise on the ability of all cable systems in Metropolitan Nashville to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications;

g.

Whether the applicant or an affiliate of the applicant owns or controls any other cable system in Metropolitan Nashville, or whether grant of the application may eliminate or reduce competition in the delivery of cable service in Metropolitan Nashville.

4.

If Metropolitan Nashville finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise. If Metropolitan Nashville denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, Metropolitan Nashville shall hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. Metropolitan Nashville also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an NOS. This chapter 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.

C.

Application for Grant of a Cable Act Renewal Franchise. Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546. If neither a franchisee nor Metropolitan Nashville activates in a timely manner or can activate the renewal process set forth in 47 U.S.C. Section 546(a)—(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. Section 546(h), the provisions of this Section 6.08.040 shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:

1.

If the provisions of 47 U.S.C. Section 546(a)—(g) are properly invoked, Metropolitan Nashville shall issue a request for renewal proposal ("RFRP") after conducting a proceeding to review the applicant's past performance and to identify future cable-related community needs and interests. The department of information systems shall establish deadlines and procedures for responding to the RFRP, may seek additional information from the applicant, and shall establish deadlines for the submission of that additional information. Following receipt of the application responding to that RFRP (and such additional information as may be provided in response to requests), Metropolitan Nashville will determine that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed. This determination shall be in accordance with the time limits established by the Cable Act. The preliminary determination shall be made by resolution. If Metropolitan Nashville determines that the franchise should not be renewed, and the applicant that submitted the renewal application notifies Metropolitan Nashville, either in its proposal in response to the RFRP or within ten working days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the CATV special committee shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If Metropolitan Nashville decides preliminarily to grant renewal, it shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the applicant in the renewal application. If the applicant accepts the franchise agreement, and the final agreement is ratified by Metropolitan Nashville, the franchise shall be renewed. If the franchise agreement is not so accepted and ratified within the time limits established by 47 U.S.C. Section 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the applicant that submitted the renewal application requests it within ten days of the expiration of the time limit established by 47 U.S.C. Section 546(c)(1).

2.

If an administrative hearing is commenced pursuant to 47 U.S.C. Section 546(c), the applicant's renewal application shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply:

a.

The CATV special committee shall serve as the administrative hearing body, and will evaluate the proposal. The director and staff of the department of information systems, or their designees (collectively "staff"), shall serve as the representative of the metropolitan government.

b.

The CATV special committee shall establish a schedule for proceeding 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 necessary to present its case. The CATV special committee 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 the applicant that submitted the renewal application and any entity that owns or controls or is owned or controlled by, or under common control with, such applicant directly or indirectly. The CATV special committee 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 CATV special committee may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by nonparties is not authorized except to the extent required by the Cable Act.

d.

The CATV special committee shall require the staff and the applicant to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall present evidence first, and the staff shall present evidence second.

e.

Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. Section 546(a) shall for purposes of the administrative hearing be regarded no differently than any other evidence. The staff and the applicant must be afforded full procedural protection regarding evidence related to these proceedings, including the right to refute any evidence introduced in these proceedings or sought to be introduced by the other party. Both shall have the opportunity to submit additional evidence related to issues raised in the proceeding conducted pursuant to 47 U.S.C. Section 546(a).

f.

Following completion of any hearing, the CATV special committee shall require the parties to submit proposed findings of fact with respect to the matters that Metropolitan Nashville is entitled to consider in determining whether renewal ought to be granted. Based on the record of the hearing, the CATV special committee shall then prepare written findings with respect to those matters, and submit those findings to the council and to the parties.

g.

The parties shall have thirty days from the date the findings are submitted to the council to file exceptions to those findings. The council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the council shall be provided to the applicant.

h.

The proceeding shall be conducted with due speed.

i.

In conducting the proceedings, and except as inconsistent with the foregoing, the CATV special committee will follow applicable state administrative procedure laws, or the successor statutes thereto. The CATV special committee may request that the council adopt additional procedures and requirements as necessary in the interest of justice.

j.

This section does not prohibit any franchisee from submitting an informal renewal application pursuant to 47 U.S.C. Section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. Section 546(h). If such an informal renewal application is granted, then the steps specified in subsections (C)(1) and (C)(2)(a—l) of this section need not be taken, notwithstanding the provisions of those subsections.

k.

The provisions of this chapter shall be read and applied so that they are consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546.

D.

Contents of Applications. An NOS for the grant of a franchise, including an RFRP for a renewal franchise under 47 U.S.C. Section 546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 U.S.C. Section 546(h)) shall contain, at a minimum, the following information:

1.

Name and address of the applicant and identification of the ownership and control of the applicant, including: The names and addresses of the ten largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with five percent or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person;

2.

A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel;

3.

A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:

a.

The applicant must not have submitted an application for an initial or renewal franchise to Metropolitan Nashville, which was denied on the ground that the applicant failed to propose a system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved adversely to the applicant, within three years preceding the submission of the application.

b.

The applicant must not have had any cable television franchise validly revoked by any franchising authority within three years preceding the submission of the application.

c.

The applicant must have the necessary authority under Tennessee law to operate a cable system.

d.

The applicant shall not be issued a franchise if it may not hold the franchise as a matter of federal law. An applicant must have, or show that it is qualified to obtain, any necessary federal licenses, franchises, authorizations, approvals or waivers required to own and/or operate the system proposed.

e.

The applicant shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, the applicant or any of its officers or directors were convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with Metropolitan Nashville and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct.

f.

The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

g.

The applicant shall not be issued a franchise if an elected official of Metropolitan Nashville holds a controlling interest in the applicant or an affiliate of the applicant.

Notwithstanding the foregoing, Metropolitan Nashville shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under subsections (D)(3)(a), (b) or (e) of this section, by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable television systems;

4.

A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;

5.

A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or franchise or any interest therein, provided that an applicant that holds a franchise for Metropolitan Nashville and is seeking renewal of that franchise need only provide this information for other communities where its franchise was scheduled to expire in the two calendar years prior to and after its application was submitted;

6.

Identification of the area of Metropolitan Nashville to be served by the proposed cable system, including a description of the proposed franchise area's boundaries;

7.

A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities;

8.

Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;

9.

The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

10.

A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for Metropolitan Nashville, and how the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support to meet the community's needs and interests;

11.

Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;

12.

If the applicant proposes to provide cable service to an area already served by an existing cable franchisee, the identification of the area where the overbuild would occur, and a detailed explanation of the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system;

13.

Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter;

14.

Information that Metropolitan Nashville may request of the applicant that is relevant to Metropolitan Nashville's consideration of the application;

15.

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all federal and state law requirements.

E.

Application for Modification of a Franchise. An application for modification of a franchise agreement shall include, at minimum, the following information:

1.

The specific modification requested;

2.

The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas;

3.

A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. Section 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. Section 545;

4.

Any other information that the applicant believes is necessary for Metropolitan Nashville to make an informed determination on the application for modification; and

5.

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all federal and state law requirements.

F.

Filing Fees. To be acceptable for filing, an application submitted after the effective date of the ordinance codified in this chapter shall be accompanied by a filing fee in the following amount to cover costs incidental to the awarding or enforcement of the franchise, as appropriate:

1.

For an initial franchise:

a.

A request for issuance of an NOS: $1,000.00,

b.

A response to an NOS or an unsolicited application: $5,000.00;

2.

For renewal of a franchise: $10,000.00;

3.

For modification of a franchise agreement: $5,000.00;

4.

For approval of a transfer: $5,000.00.

In addition, Metropolitan Nashville may require the franchisee, or, where applicable, a transferor or transferee, to reimburse Metropolitan Nashville for its reasonable out-of-pocket expenses in considering the application, including consultants' fees. Payments hereunder are not a franchise fee and fall within one or more of the exceptions in 47 U.S.C. Section 542(g)(2), and no such payments may be passed through to subscribers in any form.

G.

Public Hearings. An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an opportunity to be heard. In addition, prior to the issuance of a franchise, Metropolitan Nashville shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which every applicant and its applications shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. Reasonable notice to the public shall include causing notice of the time and place of such hearing to be published in a newspaper of general circulation in the proposed franchise area once a week for two consecutive weeks. The first publication shall be not less than fourteen days before the day of the hearing.

(Ord. 95-1368 § 2 (part), 1995)