§ 6.5-158. Relief.

(a)

Any service provider or system owner or operator subject to the provisions of this article may file a written petition at any time with the city council seeking relief from one (1) or more provisions of this article. A service provider or system owner or operator may specifically request exemption or relief from, or delay in the implementation of one (1) or more provisions of this article, but only as to the petitioning provider, owner or operator and not to any successors in interest or assignees.

(b)

In concert with the stated intent of the Telecommunications Act of 1996 to promote and facilitate competition, and so as not to hinder the development of competition, the city council may determine that the relief granted be applicable for a specified or limited length of time or duration, pending a determination of the effect of the relief on the petitioner's ability to compete effectively at the expiration of the period of time for which relief is granted. In the event that it is determined by the city council that the system owner's or operator's, or service provider's, ability to compete effectively is substantially hindered by compliance, relief shall then be granted for the remaining term of the franchise or until the ability to compete effectively is no longer hindered.

(c)

Any petition submitted pursuant to this section shall set forth the relief requested and the reason and basis thereof, with such supporting information and material as may be applicable and as may be deemed necessary by the city council to make an informed decision.

(d)

All requests for relief shall contain a clearly articulated explanation or rationale for each item or matter being requested. Any request submitted pursuant to this section that does not contain such information shall be deemed incomplete and returned to the petitioner without action.

(e)

In order to be granted relief from one (1) or more of the provisions of this article, a service provider or system owner or operator must demonstrate to the city council with reasonable certainty that at least one (1) of the following facts exist:

(1)

The provision or requirement is expressly prohibited by federal law, rule or regulation, or by state law, rule or regulation; or

(2)

Where applicable, that the provision in question negatively and materially affects the petitioner to the extent that the provision or requirement creates an insurmountable competitive disadvantage not permitted or contemplated under federal or state law, or is in substantial conflict with a right that is expressly stated in an existing franchise. However, such relief shall only be for the remaining term of the existing franchise. This provision specifically includes, but is not limited to situations where a service provider or system owner or operator classified as a cable operator or open video system operator seeks, and is granted, modification of an existing franchise under section 625 of the Cable Act (codified at 47 USC 545); or

(3)

That compliance with a particular provision and/or requirement will be commercially impracticable for the system owner or operator or service provider; or

(4)

That one (1) or more time requirements listed in this article are either impracticable or impossible to meet; or

(5)

That the service provider or system owner or operator has its own policy which the city council deems comparable to, or better than, the provision or requirement from which the service provider or system owner or operator seeks relief; or

(6)

That the health, safety, and welfare and the legitimate and reasonable interests of the city and the public otherwise warrant the granting of such relief and will not be adversely affected to a significant extent.

(f)

The city council shall be the determiner of whether a request for relief has met one (1) or more of the requirements of this subsection.

(g)

A service provider or system owner or operator may petition the city council at any time for clarification concerning the precise intent and effect that any provision or requirement of this article has on the petitioning service provider or system owner or operator.

(h)

In those instances where the city council grants an exemption or relief or deems a service provider's or system owner's or operator's operational policy to be comparable to, or better than, a provision of this article, then within sixty (60) days of the grant of relief the franchise shall be formally amended to reflect the exact extent of such exemption and/or relief.

(i)

It shall be the responsibility of the service provider or system owner or operator to include with its request a proposed resolution of amendment setting forth the intended effect in a clear and unambiguous manner, and any changes to the language shall be submitted to the city council thirty (30) days prior to the meeting at which the amendment is intended to be made.

(j)

The benefit of any exemption or relief shall extend only to the service provider or system owner or operator granted such exemption or relief. In the case of a subsequent transfer, assignment, change of control or sale of the system to a person without a record of performance in the city, the proposed transferee, assignee, controlling entity or buyer, if required by the city council, shall be required to petition separately for the any relief or exemption. Unlike certain other amendments to a franchise, there shall be no automatic transfer of any exemption or relief to a transferee. However, any grant of comparable policy shall continue without the need for any additional approval or grant by the city council.

(k)

Any service provider or system owner or operator who petitions for or requests relief or exemption from any portion of this article whereby the primary beneficiary of the requested relief or exemption will be the petitioner and not the public or the subscribers may, at the discretion of the city council, be required to reimburse the city for the verifiable fully-allocated cost of processing and analyzing such request, since such cost is deemed an extraordinary cost to the city that would not normally be incurred in the course of administering a franchise. Such cost is thus not deemed a normal part of administering a franchise.

(l)

A requirement to reimburse the city pursuant to subsection (k) of this section, shall not apply to any request for relief or amendment of a franchise where the public or the subscribers will be the primary beneficiary, or where the granting of the request will eliminate an impermissible competitive disadvantage pursuant to subsection (b) of this section.

(Ord. No. A-177, § 8, 3-13-2000)