§ 9-3-72. Application for grant of a franchise renewal.

(a)

An application by a franchisee for renewal of its franchise shall be filed with the administrator, and the application shall be received and reviewed in a manner consistent with the Cable Act, 47 U.S.C. § 546(a)—(g). If neither a franchisee nor the city activates in a timely manner, or can activate, the renewal process set forth in 47 U.S.C. § 546(a)—(g) (including, for example, if the said provisions are repealed), then, except for applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of article D shall apply.

(b)

If the provisions of 47 U.S.C. § 546(a)—(g) are properly invoked, and if the city does not act under 47 U.S.C. § 546(h), the administrator shall forward the franchisee's application for renewal to the city council, and thereafter the council, having reviewed the franchisee's past performance under its existing franchise and considered the future cable-related needs and interests of the Alexandria community, may request the franchisee to submit a proposal defining the cable system it proposes to provide under a renewal franchise. If council so requests, the administrator shall establish deadlines for the franchisee's proposal and may, before or after submission of the proposal, require the franchisee to provide information that the administrator deems pertinent to the franchisee's renewal application or its proposal, or both.

(c)

Upon receipt of a franchisee's proposal and all additional information that the administrator has required, the administrator shall provide notice to the public of the receipt of the proposal. No later than 120 days following the receipt of the proposal, the administrator shall recommend to the city council, and the council shall preliminarily determine, by resolution, whether the franchisee's franchise is to be renewed.

(1)

If the council determines preliminarily to renew the franchise, it shall direct the administrator to prepare a franchise agreement that incorporates, as appropriate, the commitments made by the franchisee in its franchise renewal proposal and contains other matters deemed pertinent by the administrator. If the franchisee accepts the franchise agreement prepared by the administrator, and the agreement is approved by the city council, the council shall grant a renewal franchise to the franchisee. If the franchise agreement prepared by the administrator is not accepted by the franchisee or is not approved by council within the time limit established by 47 U.S.C. § 546(c)(1), the franchisee's request for a franchise renewal shall be deemed preliminarily denied, and an administrative proceeding under the Cable Act shall be commenced if the franchisee, within 10 business days from the expiration of the time limit established by 47 U.S.C. § 546(c)(1), requests the commencement of such a proceeding.

(2)

If the city council determines, preliminarily or otherwise, that a franchise should not be renewed, and the franchisee notifies the administrator no later than 10 business days of the council determination that it wishes to pursue its right to an administrative proceeding under the Cable Act, then such a proceeding shall be commenced in accordance with the Cable Act.

(d)

If an administrative proceeding under the Cable Act is commenced on a franchisee's franchise renewal request, the request shall be evaluated on the basis of factors that are consistent with federal law, and shall be conducted in accordance with the following procedures:

(1)

The city council shall, by resolution, appoint a hearing officer to preside over the proceeding, which officer can be the council itself.

(2)

The hearing officer shall establish a schedule for the 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 present its case. The hearing officer may require the production of evidence as the interests of justice may require, including the production of evidence by the franchisee and any entity that owns or controls or is owned or controlled by the franchisee. The hearing officer may also issue protective orders. Enforcement of any order issued by the hearing officer shall be in and by the Circuit Court for the City of Alexandria.

(3)

The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by non-parties is not authorized, except to the extent required by the Cable Act.

(4)

The hearing officer may require the city and the franchisee to submit prepared testimony prior to the initiation of the hearing. Unless the parties agree otherwise, the franchisee shall present its evidence first, followed by the city. The hearing officer shall see that a transcript is prepared of the proceeding.

(5)

The primary factors to be considered by the hearing officer and the parties during the administrative proceeding are:

(i)

whether the franchisee has substantially complied with the material terms of its existing franchise and with applicable law;

(ii)

whether the quality of the franchisee's service, including signal quality, response to consumer complaints and billing practices, but without regard to the mix or quality of the programming and similar services provided over the cable system, has been reasonable in light of the needs of the Alexandria community;

(iii)

whether the franchisee has the financial, legal and technical ability to provide the services, facilities and equipment, as set forth in the operator's proposal; and

(iv)

whether the operator's proposal is reasonable to meet the future cable-related needs and interests of the Alexandria community, taking into account the cost of meeting those needs and interests.

(6)

Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the four factors identified in subsection (5). Based on the record of the proceeding, the hearing officer shall then prepare written findings of fact with respect to those factors, and shall submit those findings to the city council (unless the hearing officer is the council, in which case the written findings shall constitute the final decision of the city), with copies to the administrator and the franchisee.

(7)

Where the hearing officer is not the city council, the parties shall have 30 calendar days from the date the hearing officer's findings of fact are submitted to council to file, with the city clerk, their exceptions to the findings. Following the filing of such exceptions and within 90 days of the issuance of the hearing officer's findings of fact, the council, based upon the record before the hearing officer, the officer's findings and any exceptions that have been filed, shall determine whether to renew the franchise. Within 30 days of making its determination, the council shall commit its determination to writing, stating the reasons therefor, which determination shall be consistent with the requirements of the Cable Act and based on the record compiled before the hearing officer. A copy of the final decision of the council shall be provided to the franchisee.

(8)

Any determination to deny a franchisee's request for the renewal of its franchisee shall be based on one or more adverse findings made with respect to the factors described in subsection (5) and 47 U.S.C. § 546(c)(1), which findings are based on the record of the administrative proceeding conducted under this subsection. A determination to deny shall not be based upon a franchisee's failure to substantially comply with the material terms of its franchise under subsection (5)(i) or 47 U.S.C. § 546(c)(1)(A), or upon events considered under subsection (5)(ii) or 47 U.S.C. § 546(c)(1)(B), where such failure to comply or such events occur after the effective date of the Cable Act, unless the administrator has provided the franchisee with notice and the opportunity to cure, or where it is documented that the city has waived its right to object, or where the franchisee has given written notice of a failure or inability to cure and the city has failed to object within a reasonable time after receipt of such notice.

(9)

Any administrative proceeding under this subsection shall be conducted with due speed, but with due regard for the right of the franchisee to fully present its case.

(10)

In conducting the administrative proceeding under this subsection, and except as inconsistent with the foregoing, the hearing officer shall adhere, to the extent permissible and feasible, to the Virginia Administrative Process Act, § 9.6-14:1, et seq. of the Code of Virginia (1950), as amended, or any successor statute.

(e)

Nothing in this section shall be construed as preventing a franchisee from submitting an informal request for the renewal of its franchisee pursuant to 47 U.S.C. § 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. § 546(h).

(f)

The provisions of this article shall be read and applied so that they are consistent with the Cable Act, 47 U.S.C. § 546. (Ord. No. 4738, 10/15/11, Sec. 1)