Title 13 - Streets and Sidewalks

13.50.110 Cable Franchise Requirements.

1. A.
   Unlawful to Operate Without a Franchise. It shall be unlawful for any Person to construct, operate or maintain a Cable System or to provide Cable Service or other competing multichannel video services, including OVS, in the City without a Franchise authorizing the same, unless applicable federal or State law prohibits the City’s enforcement of such a requirement. Any such Person shall be subject to a fine of $500 per day. The payment of such fine notwithstanding, all such violators shall be subject to all other applicable provisions of this Code to the fullest extent allowed by law, including, but not limited to, the payment of a Cable Franchise Fee. This section shall not apply to a Cable Franchisee who has properly asserted its intent and is pursuing renewal of the Franchise pursuant to 47 USC § 546.
2. B.
   Nature of Rights Granted by any Cable Franchise. Cable Franchises shall not convey title, equitable or legal, in the Rights-of-Way, and shall give only the right to occupy Rights-of-Way, for the purposes of providing Cable Services and as may be further limited by the Cable Franchise. No Franchise shall grant the right to use Facilities owned or controlled by the City or a third-party, without the consent of such party, nor shall a Franchise excuse Cable Franchisee from obtaining appropriate access or attachment agreements before locating its Facilities on the Facilities owned or controlled by the City or a third-party. To the extent not inconsistent with Code Section 13.50.110(e), all Franchises shall be deemed to incorporate and be limited by the provisions of this Code and shall create rights for the sole and exclusive use of Franchisee. Any Franchise or other authorization for Cable Services, in whatever form granted, shall not grant or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City, including the provision of communications services; (ii) any permit, agreement, or authorization required in connection with operations in the Rights-of-Way including, without limitation, permits and agreements for placing devices on or in poles, conduits, or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along the Rights-of-Way.
3. C.
   Franchise Not Exclusive.

   1. 1.
      Any Cable Franchise granted by the City shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Franchises for a Cable Television System or any component thereof, to any other Person including itself, as it deems appropriate, subject to this Code and applicable federal and state law.
   2. 2.
      The terms and conditions of any Cable Franchises granted or renewed after the effective date of this Ordinance shall be, when taken as a whole, no less burdensome or more beneficial than any other Cable Franchises granted or renewed subject to this Ordinance, when taking into consideration, where reasonably warranted, the situation that existed at the time in which the earlier terms were adopted. Provided, however, that nothing herein shall be construed as requiring the use of identical terms or conditions, or limit the enforceability of conditions that are freely negotiated.
   3. 3.

      Further provided, nothing in this subsection shall create any remedy other than that which is provided in subsection 13.50.110.C.4 below, nor shall it be deemed to create any cause of action or claim of breach for any party.

   4. 4.

      Before granting an additional Cable Franchise, the City shall give written notice to every existing Cable Franchisee of any other proposal to service all or part of such existing Cable Franchisee's Franchise area, identifying the applicant for such additional franchise and specifying the date, time, and place at which the City shall consider and/or determine whether such additional Cable Franchise should be granted. In the event that an existing Cable Franchisee believes that the City has entered into an additional Cable Franchise with terms or provisions that are, taken as a whole, more favorable or less burdensome than the terms set forth in its Franchise, taking into consideration, where reasonably warranted, the situation that existed at the time in which the different provisions were adopted, the City shall, upon request by such existing Cable Franchisee, enter into good faith negotiations with the existing Cable Franchisee to modify the Cable Franchisee’s Franchise.

4. D.
   Franchise Territory. Every Cable Franchise shall apply to the entire territorial area of the City, as it exists now or may later be configured.
5. E.
   Federal, State, and City Jurisdiction.

   1. 1.
      This Chapter and Code shall be construed in a manner consistent with all applicable federal and state laws.
   2. 2.
      In the event that the federal or state government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, City may, if it so elects, adopt rules and regulations in these areas to the extent not inconsistent with applicable law and the reasonable exercise of the City's police powers.
   3. 3.
      The provisions of this Chapter and Code shall apply to all Cable Franchises granted or renewed after or simultaneously with the effective date of this Ordinance. This Chapter and Code shall also apply to all existing Cable Franchises, to the extent not inconsistent with the terms of any such Franchise or applicable law. A Cable Franchise, whether entered into before or after the enactment of this Code, (including all of Cable Franchisee's particular rights, powers, protections, privileges, immunities and obligations associated therewith as the same exist on the date hereof) shall constitute a legally binding contract between the City and Cable Franchisee, and as such, cannot be amended, modified or changed by the Grantor without the consent of Cable Franchisee in any manner whatsoever, whether by ordinance, rule, regulation or otherwise.  In the event of any conflict between the terms and conditions of a Cable Franchise and the provisions of this Chapter or Code, and other generally applicable regulatory ordinances of the City, the specific terms of the Franchise shall control; provided, however, that nothing herein contained shall preclude the City from the proper exercise of its police powers.
   4. 4.
      In the event of a change in state or federal law which by its terms would require the City to amend this Chapter or Code, the parties shall modify the existing Cable Franchise in a mutually agreed upon manner.
6. F.
   Initial Franchise Applications. Any Person desiring an initial Franchise for a Cable System shall file an application with the City.  A nonrefundable Application Fee as may be hereinafter established by the City shall accompany the application, which shall not be considered or credited against the collection of applicable Cable Franchise Fees.
7. G.
   Consideration of Initial Applications. Upon receipt of any application for an initial Franchise, the designated City official shall prepare a report and make his or her recommendations respecting such application to the City Council.
8. H.
   Franchise Renewal. Cable Franchise Renewals shall be in accordance with applicable law including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended. The City  and a Cable Franchisee, by mutual consent, may enter into Renewal negotiations at any time during the term of the Franchise.
9. I.
   Grant of Additional Franchise and Competing Service. The City may issue, pursuant to K.S.A. 12-2007, a competing Cable Franchise in the City.  The Governing Body of the City shall order publication of a notice in The Overland Park Sun of a hearing to afford the public in the Franchise Area, including other Rights-of-Way users, as well as the public at large, an opportunity to comment on the proposed Franchise Ordinance, a copy of which shall be on file in the office of the City Clerk.  In considering whether to grant one or more additional Franchises, the City may consider the following issues:

   1. 1.
      The positive and/or negative impact of an additional Cable Franchise on the community.
   2. 2.
      The ability and willingness of the specific applicant in question to provide Cable Services to the entire Franchise Area which is served by the existing Cable Franchisee. The purpose of this subsection is to ensure that any competition which may occur among Cable Franchisees will be on terms which when taken as a whole do not give a competitive advantage to one Cable Franchisee over another.
   3. 3.
      The amount of time it will take the applicant to complete construction of the proposed Cable System and activate Cable Service in the entire Franchise Area; and, whether the applicant can complete construction and activation of its Cable System in a timely manner.
   4. 4.
      The financial capabilities of the applicant and its guaranteed commitment to make the necessary investment to erect, maintain, and operate the proposed Cable System for the duration of the Franchise term. In order to ensure that any prospective Cable Franchisee does have the requisite current financial capabilities, the City may request equity and debt financing commitment letters, current financial statements, bonds, letters of credit, or other documentation to demonstrate to the City's satisfaction that the requisite funds to construct and operate the proposed Cable System are available.
   5. 5.
      The quality and technical reliability of the proposed Cable System, based upon the applicant's plan of construction and the method of distribution of signals, and the applicant's technical qualifications to construct and operate such Cable System.
   6. 6.
      The experience of the applicant in the erection, maintenance, and operation of a Cable System.
   7. 7.
      The capacity of the Rights-of-Way to accommodate one or more additional Cable Systems and the potential disruption of those Rights-of-Way and private property that may occur if one or more additional Franchises are granted.
   8. 8.
      The disruption of the availability of Cable Service within the City.
   9. 9.
      Such other information as the City may deem appropriate to be considered prior to granting any competing or overlapping Franchise.
10. J.
    Permits for Non-Franchised Entities. The City may issue a license to a Person other than the Cable Franchisee to permit that Person to traverse any portion of a Cable Franchisee's Cable Franchise Area within the City in order to provide Cable Service outside, but not within the City.  Such license or easement, absent a grant of a Cable Franchise in accordance with this Chapter, shall not authorize nor permit said Person to provide Cable Service of any type to any home or place of business within the City.

(History: Ord. CaSC-2293 §1, 2001)

Effective on: 1/1/1901