Part D. Franchising and Re-Franchising Process.

§ 34–1254.01. Franchise and franchise agreement required.

(a) The Council may grant one or more franchises to provide cable service over, on, under, or within the public rights-of-way.

(b) No person may construct or operate a cable system over, on, under, or within a public right-of-way without first obtaining a franchise under this chapter.

(c) No person may exercise the authority granted by a franchise without first having entered into a franchise agreement with the District pursuant to this chapter.

(d) A franchise granted pursuant to this chapter shall:

(1) Authorize the use of the public rights-of-way for installing, on poles or underground, cables, wires, lines, optical fibers, underground conduits, ducts, conductors, amplifiers, vaults, and other facilities necessary and pertinent to operate a cable system to serve subscribers within the District; provided:

(A) The authority to use the public rights-of-way shall be subject to the permitting and other regulatory authority of the District;

(B) The authority to use the public rights-of-way shall be subordinate, without limitation, to the District’s use and any prior lawful occupancy of the public rights-of-way;

(2) Be subject to prior revocation pursuant to this chapter and the franchise agreement;

(3) Be subject to any terms, conditions, or obligations set forth in this chapter, the franchise, the franchise agreement, and other applicable law and regulation;

(4) Become void upon the failure to comply with any material term of the franchise, franchise agreement, or this chapter, as determined by the Office; and

(5) Constitute an obligation to provide the cable services regulated by this chapter, the franchise agreement, and any other applicable law or regulation.

(e) A franchise granted pursuant to this chapter shall not:

(1) Limit the District’s right to grant a franchise to other persons to provide cable service within the same or other areas of the District at any time;

(2) Waive the requirement of the cable operator to obtain, or be deemed, approval of:

(A) Any other permit or authorization to transact or carry on business in the District;

(B) Any permit or authorization to operate on, over, under, or within public streets or property, including street cut permits; or

(C) Any permit or authorization to occupy any property of the District government or private property to which access is not specifically granted by the franchise, including permits or authorization to place devices in, on, over, or under poles, conduits, structures, or railroad easements.

(Aug. 21, 1982, D.C. Law 4-142, § 401; as added Oct. 9, 2002, D.C. Law 14-193, § 2(b), 49 DCR 7334.)

Emergency Legislation

For temporary (90 day) amendment of section, see § 2 of the Comcast Cable Television Franchise Agreement Modification Emergency Act of 2006 (D.C. Act 16-364, April 26, 2006, 53 DCR 3630).

For temporary (90 day) addition of section, see § 2 of Approval of the Transfer of Control of Starpower Communications, LLC, and its Cable Franchise and Cable System to Yankee Cable Acquisition, LLC Emergency Act of 2010 (D.C. Act 18-488, July 20, 2010, 57 DCR

Temporary Legislation

Section 2 of D.C. Law 18-253 added a provision to read as follows:

“Sec. 2. (a) The Council approves the transfer from RCN Corporation to Yankee Cable Acquisition, LLC, (’Yankee Cable’) of the control of Starpower Communications, LLC, (’Franchisee’), its cable franchise in the District, and its cable system serving the District granted in accordance with the Cable Television Reform Amendment Act of 2002, effective October 9, 2002 (D.C. Law 14-193; D.C. Official Code § 34-1251.01 et seq.), and the franchise agreement between the Franchisee and the District dated June 28, 2005.

“(b) The Council’s approval of this transfer is subject to the following conditions:

“(1) That on or before July 31, 2010, the District, the Franchisee, Yankee Cable, and RCN Telecom Services, LLC enter into an agreement substantially in the form of the document titled ‘Transfer Agreement;’

“(2) That the transfer is consummated on or before October 31, 2010; and

“(3) That the transfer is consummated on terms and conditions identical in all material respects to those described in the Transfer Agreement.

“(c) If any of the conditions specified in subsection (b) of this section or in the transfer agreement are not satisfied, the Council’s approval of the transfer is null and void.

“(d) The Mayor may execute the transfer agreement on behalf of the District.”

Section 4(b) of D.C. Law 18-253 provided that the act shall expire after 225 days of its having taken effect.

Editor's Notes

Section 2 of D.C. Law 15-255 provided: “Sec. 2. Grant of franchise. Pursuant to the Cable Television Communications Act of 1981, effective October 9, 2002 (D.C. Law 14-193; D.C. Official Code § 34-1251.01 et seq.) (‘Cable Act’), the application of Starpower Communications, LLC for an open video system franchise is hereby approved, and Starpower Communications, LLC is granted a 5-year, non-exclusive, revocable open video system (‘OVS’) franchise to provide cable television service in the District of Columbia. The OVS franchise is subject to the provisions of the Cable Act and the terms and conditions of the OVS franchise agreement approved by section 3.”

Sections 2 to 7 of D.C. Law 17-349 granted a cable television franchise to Verizon Washington, DC Inc., subject to certain exemptions from law, and approved a cable television system franchise agreement between the District of Columbia and Verizon Washington, DC Inc.

§ 34–1254.02. Application for an initial franchise.

(a) An application for the grant of an initial franchise may be filed pursuant to a request for proposals issued by the District or on an unsolicited basis.

(b) The application shall be filed with the Office and shall be on a form prescribed by the Mayor. The application shall contain the following information:

(1) The names and addresses of persons authorized to act on behalf of the applicant with regard to the application;

(2) The name and address of the applicant and identification of the ownership and control of the applicant, including the names and addresses of all persons with more than 5% (non-voting or voting) ownership interest in the applicant and its affiliates, all officers and directors of the applicant and its affiliates, general partners or managing members as applicable, and all other business affiliations and cable system ownership interests of each such person;

(3) An executive summary demonstrating the applicant’s technical ability to construct and operate a state-of-the-art cable system, including identification of key personnel;

(4) A description of the applicant’s legal qualifications to construct and operate the proposed cable system;

(5) A detailed description of the physical facility proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities.

(6) A demonstration of financial qualifications to complete the construction and operation of the proposed cable system;

(7) A description of prior experience in cable ownership, construction, and operation, and identification of the communities in which the applicant or any of its principals, including persons named pursuant to paragraph (2) of this subsection, have, or have had, a cable franchise or any interest therein;

(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 and map, and a description, where appropriate, of how services will be converted from existing facilities to new facilities;

(9) A demonstration of how the applicant will meet the cable-related needs and interests of District residents, including public, educational, and government access channel capacity and facilities and financial or capital contribution to an institutional network;

(10) An affidavit or a declaration by 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 the requirements of federal and District law;

(11) For informational purposes, the proposed rate structure, including projected charges for each service tier, installation, converters, and other equipment or services, and the ownership interest of the applicant or any of its affiliates in any proposed program services to be delivered over the cable system; and

(12) Any other information required by the Office by regulation.

§ 34–1254.03. Evaluation of an initial franchise application.

(a) Within 45 days after receiving an application under § 34-1254.02, the Office shall certify the application as complete or shall transmit to the applicant a description of missing information and the time by which the missing information must be provided.

(b) Upon certifying the application as complete, the Office shall have published in the District of Columbia Register a Notice of the Filing of an Application for a Cable Franchise, which shall contain the name of the applicant, the nature of the application, and a description of the procedures under this chapter.

(c) Within 120 days after certifying an application as complete, the Office shall determine whether the applicant has the ability and commitment to adequately provide cable service in the District and to meet the cable-related needs and interests of the District and of District residents. In making this determination, the Office may procure the assistance of qualified technical, financial, and legal consultants.

(d) In determining the ability and commitment of an applicant to adequately provide cable service in the District and to meet the cable-related needs and interests of the District and of District residents, the Office shall consider the following:

(1) Whether the proposed plans for the cable system are feasible and reasonable, considering the applicant’s legal, financial, and technical resources and abilities and any other relevant factors;

(2) Whether the applicant has the ability, willingness, and commitment to construct, operate, and maintain a state-of-the-art cable system in the best interests of the District and of District residents;

(3) Whether the applicant has the ability to adapt to and implement new technologies, services, and programming;

(4) Whether the proposed cable system will serve the public interest and meet the cable-related needs of the District;

(5) Whether the applicant has had a previous franchise application denied by the District or any other franchising authority;

(6) Whether the applicant has filed materially misleading information in its application or intentionally withheld information that the applicant is required to provide;

(7) Whether the applicant has demonstrated a willingness and the ability to comply with the requirements of this chapter and any regulations promulgated under this chapter; and

(8) Any other relevant information.

(e) In making a determination under this section, the Office may hold a public hearing to receive testimony on the applicant and the application. The Office shall have a notice of the hearing published in the District of Columbia Register and shall hold the hearing on no less than 15 days notice. The Office may consider multiple applications at a hearing.

(f) In making a determination under this section, the Office may accept written and oral testimony and any other materials relevant to the application or its determination.

(g) If the Office determines that an applicant does not possess the ability and commitment to adequately provide cable service in the District and meet the cable-related needs and interests of the District and District residents, the Office shall give the applicant additional time, not to exceed 90 days, and shall in writing indicate the deficiencies in the application and recommend how the applicant can correct the deficiencies. If the applicant, after the additional time, remains unable to meet the standards of this section, the application shall be denied. The Office shall transmit to the Council a notice of denial of application and shall set forth the reasons for the denial.

§ 34–1254.04. Negotiation of an initial franchise agreement.

(a) If the Office determines under § 34-1254.03 that an applicant has the ability and commitment to adequately provide cable service in the District and to meet the cable-related needs and interests of the District and of District residents, the Office shall commence the negotiation of the terms of a franchise agreement between the District and the applicant.

(b) The Office and the applicant shall agree on the terms of a proposed franchise agreement within one year after the commencement of the negotiations under subsection (a) of this section. The Office may extend the one-year period of negotiations for up to 180 additional days, if additional time is necessary to finalize the terms of the proposed franchise agreement and there is good cause for not having finalized the agreement within the one-year period.

§ 34–1254.05. Minimum contents of franchise agreement.

(a) The proposed franchise agreement shall contain the following provisions:

(1) The applicant shall construct, operate, and maintain a state-of-the-art cable system.

(2) The capacity of the cable system shall be at least 750 MHz, with both downstream and upstream capacity.

(3) The cable system shall be capable of providing Internet access services.

(4) The applicant shall pay a franchise fee of at least 5% of gross revenues.

(5) The applicant shall contribute at least 1% of gross revenues to the operations of the Public Access Corporation;

(6) The applicant shall provide at least 8 PEG channels on the analog portion of the cable system and at least 10 PEG channels on the digital portion of the cable system.

(7) The applicant shall provide at least 1% of gross revenues each year as continuing capital support for the public, educational, and government access channels.

(8) The applicant shall enter into an agreement regarding contracting with, and procuring from, local, small, and disadvantaged business enterprises.

(9) The applicant shall enter into a First Source agreement.

(10) The applicant shall provide significant financial resources or capacity or equipment to an institutional network.

(11) The construction schedule required by § 34-1257.03.

(b) The term of a franchise agreement shall not exceed 15 years in the case of an initial franchise and shall not exceed 10 years in the case of a renewed franchise.

(c) The proposed franchise agreement shall include procedures for amending the franchise agreement, including the District’s right to amend the franchise agreement in order to take advantage of advancements in technology.

(d) The proposed franchise agreement shall also cover matters regarding system construction, operation, and maintenance; indemnity, insurance and bonding requirements; reports and records; default and remedies; notices; and all terms and conditions related to the provision of cable service the Office deems necessary or appropriate.

§ 34–1254.06. Procedure for Council review and approval of initial franchise.

(a) If the Office and the applicant agree on the terms of a proposed franchise agreement under § 34-1254.05, the Office shall submit to the Mayor and the Council a Recommendation for the Approval of a Franchise Application consisting of the franchise application, the proposed franchise agreement, and a summary of factors supporting the recommendation.

(b) If at the end of the initial or extended negotiation period under § 34-1254.04, the Office and the applicant are unable to agree on the terms of a proposed franchise agreement, the Office shall submit to the Mayor and the Council a Recommendation for the Denial of a Franchise Application consisting of the franchise application and a summary of the factors supporting the recommendation. The summary shall describe specific deficiencies of the application and a general description of why the application should not be granted.

(c) The Council may, by act, grant a franchise and approve the franchise agreement, with or without conditions or modifications which may override any provisions of the proposed franchise agreement, deny a franchise or reject the proposed franchise agreement and remand the proposed franchise agreement to the Office with recommendations to renegotiate any of the provisions of the agreement and submit a revised agreement to the Council, or deny a franchise or reject the proposed franchise agreement.

(d) Each applicant to whom the District grants a franchise shall pay to the District, within 30 days after the franchise is granted, a franchise award fee to be set in the act granting the franchise. The payment shall be nonrefundable. An applicant’s failure to pay the franchise award fee within the 30-day period shall make the franchise and franchise agreement void.

§ 34–1254.07. Franchise renewal; commencement under federal cable act.

(a) The Office may commence a franchise renewal proceeding under section 626(a) of the federal cable act (47 U.S.C. § 546(a)).

(b)(1) Upon commencement of a franchise renewal proceeding under this section, the Office shall commence the following:

(A) A formal assessment of community cable-related needs, both current and future;

(B) A formal assessment of the cable operator’s compliance with this chapter, the franchise, and the franchise agreement over the course of the franchise; and

(2) The Office shall complete the assessments under this section prior to taking action under subsection (e) of this section.

(c) If the Office commences a proceeding under section 626(a) of the federal cable act (47 U.S.C. § 546(a)), the cable operator shall submit a proposal for renewal of the franchise within such time, and with such information, as the Office shall establish by regulation.

(d) The Office shall provide public notice of the proposal through publication of a Notice of Cable Franchise Renewal Proposal in the District of Columbia Register.

(e) After the submission of a completed renewal proposal the Office shall:

(1) Within 90 days, provide to the Council a written recommendation that the franchise should be renewed, along with a proposed franchise agreement which shall meet the standards of § 34-1254.05; or

(2) Within 120 days, issue a preliminary assessment that the franchise should not be renewed and commence an administrative proceeding consistent with section 626(c) of the federal cable act (47 U.S.C. § 546(c)). After the completion of the administrative proceeding, the Office shall transmit to the Council a written proposed decision granting or denying the proposal for renewal based upon the record of the proceeding and stating the reasons for the proposed decision. If the proposed decision is to deny the renewal, the Office shall provide a detailed explanation of the proposed denial’s [sic] consistent with federal law.

§ 34–1254.08. Franchise review prior to expiration.

(a) If the Office does not commence a renewal proceeding under § 34-1254.07, the Office shall commence a franchise review proceeding no later than 24 months before the expiration of the franchise.

(b) The Office shall commence the proceeding by having published in the District of Columbia Register a Notice of Commencement of Cable Franchise Review Prior to Expiration, which shall state the name of the cable operator, the nature of the proceedings, and the relevant procedures under this chapter and federal law.

(c) Within 120 days after commencement of the review proceeding under this section, the Office shall hold a public hearing, on at least 30 days notice published in the District of Columbia Register. The public hearing shall be held to receive testimony on at least the following issues:

(1) The current and future cable-related community needs and interests of the District and of District residents;

(2) The performance of the cable operator under the franchise during the then current franchise term; and

(3) The quality of services provided by the cable operator.

(d)(1) Within 120 days after the commencement of the proceeding, the Office shall commence the following:

(A) A formal assessment of community cable-related needs, both current and future;

(B) A formal assessment of the cable operator’s compliance with this chapter, the franchise, and the franchise agreement over the course of the franchise; and

(2) The Office shall complete the assessments under this section before submitting a proposed franchise agreement under subsection (h) of this section.

(e) As part of the review proceeding, the Office shall commence, at least 18 months before the expiration of the franchise, the negotiation of the terms of a new franchise agreement between the District and the applicant.

(f) The Office shall use its best efforts to reach agreement with the cable operator on the terms of a proposed franchise agreement within one year after the commencement of the negotiations under subsection (e) of this section. The Office may extend the one-year period or until the expiration date of the franchise, if additional time is necessary to finalize the terms of the proposed franchise agreement and there is good cause for not having finalized the agreement within the one-year period.

(g) The proposed franchise agreement shall contain the provisions set forth in § 34-1254.05.

(h) If the Office and the applicant agree on the terms of a proposed franchise agreement under this section, the Office shall submit to the Mayor and the Council a Recommendation for the Approval of a Cable Television Franchise consisting of the proposed franchise agreement and a summary of factors supporting the recommendation.

(i) If the Office determines that there is a basis for denial of a franchise under federal law, and determines that the franchise should be denied, the Office shall submit to the Mayor and the Council a Recommendation for the Denial of a Franchise, including a summary of the factors supporting the recommendation and a detailed explanation of the proposed denial’s consistency with federal law.

(j) After a proposed franchise agreement is submitted to the Council under subsection (h) of this section, the Council may, by act, grant a franchise and approve the franchise agreement, with or without conditions or modifications which may override any provisions of the proposed franchise agreement, deny a franchise or reject the proposed franchise agreement and remand the proposed franchise agreement to the Office with recommendations to renegotiate any of the provisions of the agreement and submit a revised agreement to the Council, or deny a franchise or reject the proposed franchise agreement.

(k) Each applicant to whom the District grants a franchise renewal shall pay to the District, within 30 days after the franchise is granted, a franchise award fee to be set in the act granting the franchise. The payment shall be nonrefundable. A cable operator’s failure to pay the franchise award fee within the 30-day period shall make the franchise and franchise agreement void.