Also Present: Mr. Johnson, Acting City Manager; Mr. Banks, City Attorney; Ms. Evans, Deputy City Manager; Mr. Jinks, Deputy City Manager; Mr. Castrilli, Director, Communications and Public Information; Ms. Orr, Director, Human Resources; Ms. Hamer, Director, Planning and Zoning (P&Z); Ms. Taylor, Acting Director, Office of Management and Budget (OMB); Ms. Harris, Communications Officer, Communications and Public Information; Mr. Randall, Urban Planner, P&Z; Ms. Ross, Deputy Director, P&Z; Ms. Wright, Division Chief, P&Z; Ms. North, Urban Planner, P&Z; Ms. Boyd, Special Assistant to the City Manager, City Manager's Office; Ms. Snow, Assistant City Attorney; Ms. Dawson, Director, Library; Mr. Catlett, Director, Code Administration; Ms. Triggs, Acting Chief Financial Officer/ Finance Director; Mr. Spengler, Director, Recreation, Parks and Cultural Activities; Ms. Carton, Park Planner, Recreation, Parks and Cultural Activities; Mr. Wagner, Principal Planner, P&Z; Mr. Braeden, Budget Analyst, OMB; Mr. McClanahan, Budget Analyst, OMB; Ms. McLean, ITS; Police Captain Ogden; and Mr. Lloyd.
Recorded by: Gloria Sitton, Deputy City Clerk and Clerk of Council.
1. Calling the Roll.
The meeting was called to order by Mayor Euille, and the Deputy City Clerk called the roll. All the members of Council were present.
New Business Item #1:
WHEREUPON, upon motion by Councilwoman Hughes, seconded by Vice Mayor Donley and carried unanimously, City Council reconvened out of Executive Session at 9:33 a.m. The voting was as follows:
Hughes "aye" Fannon "aye"
Donley "aye" Krupicka "aye"
Euille "aye" Pepper "aye"
WHEREUPON, upon motion by Councilwoman Hughes, seconded by Councilman Smedberg and carried unanimously, City Council adopted the resolution pertaining to the Executive Session. The voting was as follows:
Hughes "aye" Donley "aye"
Smedberg "aye" Fannon "aye"
Euille "aye" Krupicka "aye"
The resolution reads as follows:
Sec. 9-3-198 Schedule of rates, rules and regulations.
A franchisee shall prepare and file with the administrator a schedule of rates and charges for all services offered to the subscribing public under its franchise. The schedule shall state the cost of each offered service or combination of offered services, together with all rules and requirements affecting the installation, maintenance and provision of service or which otherwise affect the quality or cost of service to a subscriber.
Sec. 9-3-199 Notice to subscribers.
(a) A franchisee shall provide each subscriber, at the time cable service is installed and at least once a year thereafter, written instructions for placing a service call, filing a complaint or requesting a billing adjustment. As part of the notice provided at installation, a franchisee shall provide the telephone number of the city officer responsible for receiving customer complaints, a schedule of rates and charges for cable service and equipment, a statement of channel positions, a description of programming services, a copy of the service contract between franchisee and the subscriber, a description of delinquent subscriber disconnect and reconnect procedures, and a description of other franchisee policies and procedures that may affect its subscribers. Copies of the installation and the annual notices shall be provided to the administrator.
(b) A franchisee shall maintain a file containing a copy of each notice provided to subscribers under this section. This file shall be available for inspection upon the request of the administrator.
Sec. 9-3-200 Discrimination and preferences prohibited.
A franchisee shall not, by a special rate schedule, rebate, concession or any other device or practice, impose upon or collect from any subscriber, directly or indirectly, rates or charges that differ from the rates and charges that the franchisee imposes upon and collects from other subscribers for a like and contemporaneous service under substantially similar circumstances or conditions; provided, that this section shall not be construed to prohibit the establishment of special rates or charges for subscribers who are 65 years of age or older or are handicapped persons, promotional rates, or the establishment of other special rates or charges that are permitted by law.
Sec. 9-3-201 Establishment of rates, charges and rules.
(a) A franchisee's initial schedule of rates, charges and other matters, required by section 9-3-198, shall be filed with the administrator within 60 days of the commencement of service by the franchisee. Any change to the schedule of rates, charges and other matters shall be filed with the administrator at least 30 days prior to the effective date of the change.
(b) No change shall be made in the rates, charges and other matters set out in a schedule required by this section and filed with the administrator until advance notice of the change has been provided to each subscriber and the administrator. This advance notice shall be provided to subscribers at least 30 days prior to the effective date of the change and to the Administrator in advance of the notice to subscribers, unless otherwise required by FCC regulations. Notwithstanding the above, the administrator may, by general regulation or in particular instances, permit changes to be made on lesser notice to correct errors, to provide special or new service, or to address special emergency conditions. Notice shall contain such information as is required by applicable law.
Sec. 9-3-202 Filing and review of rates and charges.
(a) Filings by franchisee.
(1) If a franchisee is notified by the city that its basic service and equipment rates and charges are subject to regulation, it shall file a submission ("initial rate filing") within 30 days of the notification, justifying its then existing basic service and equipment rates and charges. All such rates and charges, for all customer classifications, shall be justified. Except as otherwise provided by law, once a franchisee has been notified by the city that its basic service and equipment rates and charges are subject to regulation, it may not thereafter increase any such rates or charges without filing a submission justifying the increase ("rate increase filing") and obtaining the prior approval of the city. This prohibition applies in all cases, including rate and charge increases announced but not implemented prior to the date of the city notice informing the franchisee that its rates and charges are subject to regulation. In addition to its initial rate filing, franchisee shall file a rate increase filing for any increase in basic service or equipment rates and charges, and for any new basic service or equipment rate or charge (collectively, a "rate increase"). An "increase" occurs when there is an increase in rates or charges, or a decrease in program or customer services without a corresponding decrease in rates or charges. Rate filings proposing a rate or charge increase shall be filed at least 30 days in advance of the proposed effective date of the increase. This requirement does not alter or eliminate any other notice requirement.
(2) Every initial rate filing and every rate increase filing (collectively, a "rate filing") shall be filed with the administrator, and shall be considered filed on the date that the original and three copies of the filing (including all supporting materials) are received by that office. Information that the franchisee claims is proprietary under section 9-3-213 must be clearly identified and segregated from the remainder of the filing so that the city may determine the manner in which it was used by the franchisee in setting rates.
(3) Subject to any FCC regulations governing the burden of proof, a filing submitted by a franchisee under this section shall demonstrate that the rates and charges being proposed for basic service and equipment are reasonable. Except as inconsistent with FCC regulations:
(i) The rate filing shall state in a cover letter whether it addresses the existing rates and charges of the franchisee or a proposed increase in the franchisee's rates and charges, and shall contain a brief, narrative description of the existing or the proposed increase in rates and charges. The letter shall also identify any rate or proposed increase in a rate that is based, in whole or in part, upon cost of service, and identify any pages of the filing that contain information that the franchisee claims is proprietary. If the filing proposes an increase in rates not based on cost of service, the cover letter shall state whether any part of the proposed increase is based on an inflation adjustment, an increase in external costs, an increase in the number of cable channels, or a combination of such increases.
(ii) The pages of the rate filing shall be numbered sequentially.
(iii) The rate filing shall contain all applicable FCC forms which shall be correctly completed.
(iv) If the rate filing proposes, for different classes of customers, different rates or charges for basic service, it shall demonstrate that the classifications of customers and the differences in rates or charges are reasonable and consistent with federal law.
(b) City review.
(1) Decision authority.
(i) Initial rate filings seeking to establish initial permitted basic service and equipment rates and charges, and rate increase filings seeking to establish increases in permitted basic service rates based on a cost of service showing, shall be decided, and appropriate implementing orders shall be issued, by city council consistent with the procedures set out in the FCC regulations (47 C.F.R. § 76.933); provided, that the administrator shall review each such rate filing and make a recommendation to the council prior to its decision.
(ii) Rate increase filings seeking to establish increases in permitted basic service and equipment rates and charges based on the FCC's quarterly or annual price cap rate regulations (47 C.F.R. § 76.922(d) and (e)), or to establish new basic service or equipment rates and charges, may be decided, and appropriate implementing orders may be issued, by the administrator consistent with the procedures set out in FCC regulations (47 C.F.R. § 76.933); provided, that, if the administrator determines that such a rate increase filing should not be approved, that rates and charges which are less than those proposed in the filing should be approved, and/or that refunds should be ordered, her decision shall be in the form of a recommendation to city council which shall make the final decision on the filing and issue the implementing order; provided further, that the administrator shall make any such recommendation available to the franchisee and for public inspection prior to any council action, and shall forward to council, reasonably in advance of its decision, any comments on the recommendation made by the franchisee or members of the public.
(iii) Other matters relating to initial rate filings and rate increase filings, including without limitation the tolling of deadlines for review, permitting proposed rates and charges to take effect subject to refund, and directing a cable operator to keep an accurate accounting of all amounts received and on whose behalf such amounts were paid pursuant to 47 C.F.R. § 76.933, may be decided, and appropriate implementing orders may be issued, by the administrator.
(2) After receiving an initial rate filing or a rate increase filing, the administrator shall publish a notice in a newspaper having general circulation in the city that the rate filing has been received and that, except for those parts which may be withheld as proprietary, it is available for public review. The notice shall state that interested parties may comment on the filing, and shall provide a reasonable time, in light of the dates by which city council or the administrator must decide the rate filing and issue an order, in which written comments on the filing may be submitted to the office. A copy of any submitted comments shall be provided to the franchisee which may submit written comments in response. The office shall forward comments submitted by the public and response comments submitted by the franchisee to the administrator and, in rate filings to be decided by city council, to the council.
(3) In reaching a decision on an initial rate filing or a rate increase filing, the city council and the administrator, as the case may be, shall act in a manner that is consistent with the procedures set out in the FCC regulations (47 C.F.R. § 76.933).
Sec. 9-3-203 Provisions generally applicable to rate orders.
(a) Any order issued by the city council or the administrator pursuant to section 9-3-202(b) approving or disapproving, in whole or in part, an initial rate filing or a rate increase filing, as those terms are defined in section 9-3-202(b) ("rate order"), shall be effective upon the date and upon such terms and conditions as specified by the council or the administrator. Any such rate order shall be released to the public and the franchisee. Where the council disapproves, in whole or in part, a rate filing, or orders that a rate or charge may go into effect subject to refund or otherwise orders refunds, a public notice shall be published in a newspaper with general circulation in the city stating that the order has been issued and is available for review. Any such order shall be in writing, and explain the basis for the council's decision.
(b) Any order establishing rates or charges other than those proposed by the franchisee shall explain why the franchisee's proposed rates or charges were unreasonable and why the rates and charges established by the order are reasonable. In no event may an order establishing rates or charges other than those proposed by the franchisee or requiring a franchisee to make refunds to subscribers be issued by the city council unless and until the franchisee has been given notice of, and an opportunity to comment upon, the order.
Sec. 9-3-204 Obligations of franchisee.
(a) A franchisee shall implement remedial requirements, including refunds and prospective rate reductions, within 60 days of the date on which the city council issues the order imposing the requirements.
(b) Within 90 days of the date on which an order mandating a remedy is issued, a franchisee must file a certification, signed by an authorized representative, stating:
(1) whether the franchisee has complied with all provisions of the council order;
(2) describing the measures taken to implement the council order; and
(3) showing how any refunds (including interest thereon) were calculated and distributed.
(c) It is the franchisee's obligation to maintain books and records of account so that it can make proper refunds.
(d) It is the franchisee's obligation to submit as complete a rate filing as possible.
(e) A franchisee and any other person having records showing revenues, or expenses that are allocated to the franchisee's cable system in the city shall respond to requests for information from the administrator within reasonable deadlines established by the administrator. A franchisee is responsible for ensuring that such other entity responds to the administrator's requests.
(f) Each franchisee is responsible for the continuing accuracy and completeness of information furnished to the city. Whenever information furnished by a franchisee is no longer accurate and complete in all significant respects, the franchisee shall correct the deficiencies.
Sec. 9-3-205 Duties of the administrator.
The administrator shall be responsible for administering the provisions of this article, as provided below. Without limitation and by way of illustration, and except as inconsistent with FCC regulations:
(1) The administrator shall ensure that notices are given to the public and the franchisee as required by this article and by FCC regulations.
(2) The administrator may submit requests for information to a franchisee and establish deadlines for the franchisee's response to them.
(3) For good cause, the administrator may extend any filing or response deadline except as to matters that are mandatory under FCC regulations.
(4) The administrator shall rule on any request for confidentiality.
(5) The administrator shall make the decisions and recommendations, and issue the implementing orders, as provided in section 9-3-202(b).
Sec. 9-3-206 Penalties and forfeitures.
Except as prohibited by federal law, the city may impose fines or monetary forfeitures on a franchisee that does not comply with a rate order issued under this article, including an order requiring refunds to subscribers.
Sec. 9-3-207 Proprietary information.
(a) If any provision of this article, or if any request for information properly made pursuant to this article, requires a franchisee to produce for the city what the franchisee considers to be proprietary information, the franchisee shall produce the information. However, at the time such information is produced, the franchisee may request that all or specific, identified portions of the information be treated as confidential and withheld from public disclosure. Such a request shall state the reasons why the identified information should be treated as proprietary and the facts that support those reasons. Requests for the confidential treatment of proprietary information will be reviewed by the administrator based upon FCC regulations and state and local law, as applicable. Any determination by the administrator that information is proprietary and is to be withheld from public disclosure shall be made in writing, and such information shall be placed in a file for inspection by the public. If a franchisee's request for the confidential treatment of proprietary information is denied, the franchisee may seek review of the denial by filing a request for review with the city attorney within five working days of the denial, in which case disclosure of the alleged proprietary material shall be stayed pending review. Notwithstanding any provision of this section to the contrary, where a franchisee which is proposing an increase in its rates or charges has submitted what it considers to be proprietary information and has requested the confidential treatment of that information, the city shall, upon the franchisee's withdrawal of its rate filing, immediately return the information.
(b) Information that a franchisee claims is proprietary must be clearly identified. If it is part of a larger submission, such as a rate filing, the proprietary information must be segregated from the remainder of the submission. It must also be clearly marked so that the city may determine where the proprietary information belongs within the submission and how it relates to the remainder of the submission,
(c) Any interested person may file with the administrator a request to inspect material that is being withheld as proprietary. In determining such requests, the administrator shall weigh the considerations favoring non-disclosure against the reasons given for permitting inspection in light of the facts of the particular case. The administrator may grant, deny or conditionally grant a request. The administrator shall promptly notify the requesting person and the franchisee as to the disposition of the request. The party aggrieved by such disposition may seek review of the disposition by filing a request for review with the city attorney. Disclosure will be stayed pending review. Notwithstanding any provision of this subsection to the contrary, the administrator shall deny any request to inspect proprietary material whenever such inspection is prohibited by federal or state law.
Sec. 9-3-208 Petition for change in effective competition status.
A franchisee may petition for a change in effective competition status, and the city shall consider that petition, in accordance with 47 C.F.R. § 76.915. The petition and three copies shall be filed with the administrator.
Sec. 9-3-209 reserved.
Sec. 9-3-210 Waiver and extension.
For good cause, the city manager may waive any provision of this article or extend any deadline for filing or responding, except where the waiver or extension would violate FCC regulations or deny due process.
Sec. 9-3-211 through 9-3-224 reserved.
(b) In the event any franchise fee payment is not made on or before its due date as specified in this section, the franchisee shall pay a penalty in the amount of 10 percent of the payment and, in addition, interest charges computed from the payment's due date until the payment is made, using an annual rate of interest equal to the average commercial prime rate of interest of the city's primary depository bank during the period the payment is unpaid.
Sec. 9-3-229 No accord or satisfaction.
The acceptance of any payment by the city shall not be construed as a release or an accord and satisfaction of any claim the city may have for further or additional sums payable as a franchise fee under this article, or as the penalty and interest due on an unpaid franchisee fee payment, or for the performance of any other obligation of a franchisee.
Sec. 9-3-230 Audit and related records.
(a) The city shall have the right to inspect and copy records related to a franchisee's gross revenues that are in the possession or under the control of the franchisee, an affiliate or any other person that collects or receives funds related to the franchisee's operation in the city. The franchisee shall be responsible for providing such records to the city, without regard to the person possessing them. A franchisee shall ensure that the records which are subject to the city's right of inspection and copying under this section are maintained for at least five years. Any records related to a franchisee's gross revenues that are copied by the city pursuant to this section shall be treated by the city as proprietary information and be subject to the provisions of Section 9-3-207.
(b) The city shall have the right to audit a franchisee's fiscal and financial records, and to recompute any amounts that are payable under this article by the franchisee. The expenses for such an audit shall be borne by the city unless the audit discloses an underpayment by a franchisee, in which case the costs of the audit shall be borne by the franchisee as a cost incidental to the enforcement of its franchise. Any additional amounts due to the city as a result of the audit shall be paid, together with interest calculated in accordance with section 9-3-228, within 30 days following written notice to the franchisee by the city of the underpayment, which notice shall include a copy of the audit report.
(c) A franchisee shall maintain its fiscal and financial records, and ensure that all relevant fiscal and financial records are maintained by others on its behalf, in such a manner as to enable the city to determine the cost of assets of the franchisee which are used in providing services within the city and to determine the franchisee's gross revenues.
Sec. 9-3-231 through 9-3-244 reserved.