HomeMy WebLinkAboutOrdinance 99-66
ORDINANCE NO. 99- ~ ~
AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, PROVIDING THE TERMS AND CONDITIONS
FOR THE OPERATION OF CABLE TELEVISION SYSTEMS
AND THE APPLICATION, PROCEDURES AND
REQUIREMENTS RELATING TO THE GRANT OF
FRANCHISES FOR THE CONSTRUCTION, INSTALLATION,
OPERATION AND MAINTENANCE OF CABLE
TELEVISION SYSTEMS, EQUIPMENT AND FACILITIES IN,
ON, ACROSS, ABOVE OR THAT IN ANY MANNER
WHATSOEVER USE THE CITY'S PUBLIC RIGHTS-OF-
WAYS AND TO ENSURE THAT USE OF THE CITY'S
PUBLIC RIGHTS-OF-W AYS IS IN THE PUBLIC INTEREST
AND IN CONFORMANCE WITH APPLICABLE LAW;
PROVIDING FOR THE REPEAL OF SECTION 8AA OF THE
CODE OF MIAMI-DADE COUNTY AS ADOPTED BY
SECTION 8.3 OF THE CHARTER OF THE CITY OF SUNNY
ISLES BEACH AS ITS OWN ORDINANCE; PROVIDING FOR
SEVERABILITY; PROVIDING FORAN EFFECTIVE DATE.
WHEREAS, effective with the adoption ofthe Charter of the City of Sunny Isles Beach (the
"Charter") on June 16, 1997, the City of Sunny Isles Beach, Florida was created as a municipal
corporation pursuant to the Constitution of the State of Florida and the Home Rule Charter of
Metropolitan Dade County; and
WHEREAS, Section 8.3 of the Charter adopted the Code of Miami-Dade County as its own,
including Section 8AA, but the City Commission has now determined it is in the public interest of
the City of Sunny Isles Beach (hereinafter referred to as the "City of Sunny Isles Beach" or the
"City") to franchise the operation of one or more cable television systems in the City on its own
terms; and
WHEREAS, one or more cable operators are occupying the City's public rights ofways and
operating cable systems pursuant to licenses granted by Metropolitan Dade County; and
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WHEREAS, pursuant to Chapter 8AA-16 of the Code of Metropolitan Dade County, cable
operators operating in unincorporated areas of the County pay to the county a fee of5% of the gross
revenues and operators in the incorporated areas pay to the County a fee of3%; and
WHEREAS, under Federal law , the maximum franchise fee that may be imposed on a cable
operator is 5% of the operator's gross revenues; and
WHEREAS, the City of Sunny Isles Beach, as now incorporated, is entitled to collect the
maximum fee permitted by applicable law less only that amount due to Dade County; and
WHEREAS, it is the intent of the City of Sunny Isles Beach to exercise its authority as a
local franchising authority to the fullest extent allowed by law; and
WHEREAS, pursuant to Section 621 ofthe Communications Act of 1934, as amended, 47
U.S.C. S 541, a cable operator may not provide cable service without obtaining a franchise from the
franchising authority; and
WHEREAS, pursuant to Section 4.03 ofthe Charter, the City Commission shall take action
to grant, renew, or extend a franchise only by Ordinance; and
WHEREAS, cable operator(s) have submitted or may submit applications for cable
television franchises to the City; and
WHEREAS, the City Commission has determined that adoption of a comprehensive
Ordinance is in the interests of the citizens ofthe City of Sunny Isles Beach;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, THAT:
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ARTICLE I. IN GENERAL
Sec. 1.
Short Title.
This Ordinance shall be known and may be cited as City of Sunny Isles Beach, Florida Cable
Television Ordinance.
Sec. 2.
Creation of Ordinance
The City of Sunny Isles Beach, Florida, Cable Television Ordinance is hereby created to read
as follows:
ARTICLE II. CABLE TELEVISION
Sec. 1.
Definitions.
For the purpose of this article and any application made pursuant hereto, the following terms,
phrases, words and their derivations shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include the plural number. The
words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined
herein or in any franchise agreement that might be granted hereunder shall be given the meaning set
forth in the Communications Act of1934, 47 U.S.C. ~ 521 et seq., and the Telecommunications Act
of 1996, and as those Acts have and may hereinafter be amended (collectively the "Communications
Act"), and, if not defined therein, their common and ordinary meaning.
A. Access channel means any channel on a cable system set aside without charge by the
cable operator for public, educational and/or local governmental use.
B. Activated channel means those channels engineered at the headend of a cable system
for the provision of services generally available to residential subscribers of the cable system,
regardless of whether such services actually are provided, including any channel designated for
public, educational, or governmental use. Channels on which signals flow in the direction from the
headend to the subscriber are referred to as "downstream channels." Where the signal flows to the
headend for re-distribution, it shall be referred to as an "upstream channel."
C. Affiliate means any person who owns or controls, is owned or controlled by, or is
under common ownership or control with a franchisee.
D.
Applicant means any person submitting an application within the meaning of this
article.
E.
Application means any proposal, submission or request to (1) operate a cable system
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within the City; (2) construct and install a cable system within the City; (3) transfer a franchise or
control of the franchisee; (4) renew a franchise; (5) modify a franchise; or (6) seek any other relief
from the City pursuant to this article, a franchise agreement, the Communications Act, or other
applicable law. An application includes an applicant's initial proposal, submission orrequest, as well
as any and all subsequent amendments or supplements to the proposal and relevant correspondence.
F. Basic cable service or basic service means any service tier which includes the
retransmission oflocal television broadcast signals, and public, educational, or governmental access
channels.
G. Business day or working day shall mean any Monday through Saturday, 52 weeks
per year, except that such definition shall not include holidays.
H. Cable operator means any person who operates or otherwise controls a cable system
within the City.
1. Cable service means (i) the one-way transmission to subscribers of video or other
programming services; and (ii) subscriber interaction, if any, which is required for the selection or
use of such video programming or other services.
J. Cable system, cable television system, or system, means any facility consisting of a
set of closed transmission paths and associated signal generation, reception and control equipment
that is designed to provide cable service which includes video programming and which is provided
to multiple subscribers within the City. Such term does not include (a) a facility that serves only to
retransmit the television signals of one or more television broadcast stations; (b) a facility that serves
subscribers without using any public right of way; (c) a facility of a common carrier that is subject,
in whole or in part, to the provisions of Title II of the Communications Actofl934, 47 U.S.C. ~ 201
et seq., except that such facility will be considered a cable system to the extent it is used in the
transmission of video programming directly to subscribers, unless the extent of such use is solely
to provide interactive on demand services; (d) an open video system that complies with section 653
of the Telecommunications Act of 1996; or (e) any facilities of any electric utility used solely for
operating its electric utility systems. Subject to applicable law, the foregoing definition of "cable
system" shall not be deemed to circumscribe the valid authority ofthe City to regulate the activities
of any other communications system or provider of communications services, including but not
limited to telephony and open video systems.
K. City means the City of Sunny Isles Beach, a municipal corporation of the State of
Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
L. Communications Act means the Communications Act of 1934,47 U.S.C. ~ 151 et
seq., as that Act has and may hereinafter be amended.
M. Control of a franchisee or applicant means possession of the ability to direct or
cause the direction of the management or policies of a franchisee or applicant, or the operation of
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a franchisee's system, whether through operational control in whatever manner exercised or
ownership of voting securities, by contract or understanding, or in any other manner.
N. County means Miami-Dade County.
O. Fair market value means the price that a willing buyer would pay to a willing seller
for a going concern but with no value allocated to the franchise itself.
P. FCC means the Federal Communications Commission, or any successor
governmental entity thereto.
Q. Franchise means the right granted by the City to a franchisee in a franchise
agreement to construct, maintain and operate a cable system under, on, and over streets, roads and
any other public ways, rights-of-ways, or easements within all or specified areas of the. City. The
term does not include any license or permit that may be required by this article or other laws,
ordinances or regulations of the City for the privilege of transacting and carrying on a business
within the City or for disturbing or carrying out any work on any street.
R. Franchise agreement means a contract entered into in accordance with the provisions
ofthis article between the City and a franchisee that sets forth the terms and conditions under which
the franchise will be exercised.
S. Franchisee means any person granted a franchise pursuant to this article who has
entered into a franchise agreement with the City.
T. Gross revenues means all revenues recognized in accordance with Generally
Accepted Accounting Procedures (GAAP) generated directly or indirectly by the franchisee from
any source whatsoever arising from, attributable to, or in any way derived from the operation of the
cable system in the City to provide cable services. Gross revenues include, but is not limited to, fees
charged subscribers for basic service; fees charged subscribers for any optional, premium, per-
channel or per-program service; fees charged subscribers for any tier of service other than basic
service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access
fees; fees, payments or other consideration from programmers for carriage of programming on the
system (excluding marketing support provided for the launch of new services on the system to the
extent such funds are not considered revenue under GAAP); revenue from converter, remote, modem
or any other equipment rentals or sales; revenues from studio and studio equipment rental; revenues
from leases of cable or fiber optic lines and other transmission devices and equipment; revenues
from transmission of data; revenues from consumer products including but not limited to cable
guides; advertising revenues allocable to the City based on a percentage of subscriber base in the
City divided by the subscriber base of the system. Such percentage will then be multiplied by the
system's total advertising revenue to determine the allocable gross revenue stemming from
advertising; revenues from home shopping channels or other sources allocable to the City, provided
that where certain home shopping channel or other such revenue is allocable to more than one
franchise area due to common zip codes, the franchisee will allocate the percentage of revenue to
the City which is equivalent to the percentage ofthe City's population divided by the total population
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for the allocable franchise areas in question; and the sale, exchange or cablecast by the franchisee
of any programming developed on or for access channels or institutional users. Gross revenues shall
be the basis for computing the franchise fee imposed pursuant to Section 8 hereof. Gross revenues
shall not include any taxes on services furnished by the franchisee which are imposed upon any
subscriber or user by the State, County, City or other governmental unit and collected by the
franchisee on behalf of said governmental unit and which the franchisee passes on in full to the
applicable tax authority or authorities. However, the franchise fee shall not be considered such a tax
and shall be included within the definition of gross revenues unless otherwise prohibited by
applicable law. Notwithstanding anything to the contrary, gross revenues shall not include bad debt,
interest, returned check charges, late fees and promotional payments from programmers unless and
until any or all of the above-listed items are included within the definition of gross revenues used
to calculate franchise fee payments to Dade County. At such time as any revenue items not included
herein are incorporated into the gross revenues definition used by Dade County, such items shall
automatically be included in the definition of gross revenues herein without any further action by
the City.
U. Institutional network means a voice, data and/or video communications network
constructed and/or operated and/or maintained by the franchisee for the City, the transmissions on
which are generally available only to, and intended to be sent and received by, persons other than
cable. subscribers generally.
V. Interconnection means the electronic connection of two or more cable systems for
the purpose of sharing access channel programming or other services.
W. Law means all duly enacted and applicable federal, State, County and City laws,
ordinances, codes, rules, regulations and orders.
X. Leased access channel means a channel designated in accordance with section 612
of the Communications Act, 47 U.S.C. ~ 532, for commercial use by persons unaffiliated with the
franchisee.
y. Overbuild means a cable system constructed to serve subscribers in an area ofthe
City served by an existing cable system.
Z. Person means any individual, corporation, partnership, association and any lawful
trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the City
unless applicable law so requires.
AA. Service tier means a category of cable service provided by a franchisee and for which
a separate charge is made by the franchisee.
BB. State of the art means that level of production facilities, technical performance,
capacity, equipment, components and service equal to that which has been developed and
demonstrated to be more modem than generally accepted and used in the cable industry for
comparable areas of equivalent population. The cable system shall have, at minimum, the capability
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of providing the channel capacity, products, services and technology available from a cable system
controlled by a franchisee or a parent, subsidiary or affiliate of a franchisee to any other community
in the State.
CC. Street or streets means the surface, the air space above the surface and the area below
the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thorough-
fare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane,
path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including
public utility easements dedicated for compatible uses, or any other property in which the City holds
any kind of property interest or over which the City exercises any type of lawful control, and any
temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary
and pertinent to construct and operate a cable system.
DD. Subscriber means any person who lawfully receives cable service delivered over the
cable system with the franchisee's express permission.
EE. Subscriber base means the total number of residential and commercial subscribers
within the City. For purposes of calculating subscribers under bulk or multi-user contracts, the
franchisee shall count each unit included within a contract for service as one subscriber. Franchisee
shall not use any equivalency measures including calculation based on market rate, except as
expressly required by applicable law.
FF. System malfunction means any cable system equipment, facility or signal failure or
malfunction that results in the loss of satisfactory service on one or more channels to one or more
subscribers. A malfunction is major if it affects 25 or more subscribers, or a multiple dwelling unit
consisting of more than 25 or more units.
GG. Transfer of a franchise means any transaction in which (1) an ownership or other
interest in a franchisee or its cable system is transferred from one person or group of persons to
another person or group of persons so that control of a franchisee is transferred; or (2) the rights
and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to
another person, group of persons or business entity.
HH. Two-way capability means the incorporation into a cable system of all appropriate
design and engineering characteristics and features so that two-way interactive transmission,
including but not limited to addressability, over the system can be implemented and activated.
II. Video channel or channel means a portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering a television channel,
including the associated audio signal, as television channel is defined by the FCC by regulation or
otherwise.
Sec. 2.
Intent and purposes.
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(a) It is the intent of the City and the purpose ofthis article to promote the public health,
safety, and general welfare by providing an application procedure for the grant of one or more
franchises for the operation and/or construction of a cable system within the City; to provide for the
regulation to the extent permitted by applicable law, of each cable system within the City in the
public interest; to provide for the payment of fees and other valuable consideration by cable
operators to the City for the use of streets by its cable system; to promote the widespread availability
of quality cable service to City residents and businesses, the City, and other public institutions; to
encourage the development of cable and other communications technologies and cable systems as
a means of communication between and among members of the public, City businesses, the City,
and other public institutions; to promote competitive cable rates and services; to promote the safe
and efficient use of City streets; to enhance and maximize the communicative potential of streets
used by cable systems; and to encourage the provision of a diversity of information sources to City
residents, businesses, the community, the City, and other public institutions by cable technology.
(b) Recognizing the continuing development of communications technology and uses, it is
the policy ofthe City to encourage competition, experimentation and innovation in the development
of cable system uses, services, programming and techniques that will be of general benefit to the
community to the extent consistent with applicable laws.
Sec. 3.
Grant of authority: franchise required.
(a) The City may grant one or more franchises in accordance with this article.
(b) No person may operate or construct a cable system or any other communications
transmission facilities over, on, or under public streets in the City without a franchise granted by the
City unless otherwise expressly authorized by law, and no person may be granted a franchise without
having entered into a franchise agreement with the City pursuant to this article.
(c) Unless otherwise authorized by law, any franchise granted pursuant to this article is
solely for the provision of cable service and shall not be construed to authorize the provision of
telephone, non-cable, video or other telecommunications service. However, any person including
but not limited to a franchisee shall, unless otherwise prohibited by applicable law, submit an
application to the City for the privilege of providing other telecommunications services including,
but not limited to telephone service and/or non-cable video programming services.
Sec. 4.
Franchise characteristics.
(a) A franchise authorizes use of City streets for installing cables, wires, lines, optical fiber,
underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary and
pertinent to operate a cable system within a specified area of the City, but does not expressly or
implicitly authorize the franchisee to provide service to, or install cables, wires, lines, underground
conduit, or any other equipment or facilities upon private property without owner consent (except
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for use of compatible easements pursuant to Section 621 of the Communications Act, 47 U.S.C.
~541(a)(2), or to use publicly or privately owned conduits without a separate agreement with the
owners.
(b) A franchise is nonexclusive, and will not expressly or implicitly preclude the issuance
of other franchises to operate cable systems within the City, or affect the City's right to authorize use
of City streets to other persons to operate cable systems or for other purposes as it determines
appropriate.
(c) The City reserves the right to reasonably designate where a franchisee's facilities are to
be placed within the streets.
(d) A franchise shall be a privilege which is in the public trust. No transfer of a franchise
shall occur without the prior consent ofthe City and unless application is made by the franchisee and
City approval obtained pursuant to this article and applicable Federal law.
(e) A franchise granted to an applicant pursuant to an application submitted pursuant to this
article to construct, operate and maintain a cable television system within a specified franchise
territory, shall be deemed to constitute both a right and an obligation on the part of the franchisee
to provide the services and facilities of a cable television system of the City, as required by the
provisions of this article and the franchise. All relevant representations made by the franchisee in
its application and/or public hearings before the City Commission shall be deemed to be material
and made for the purpose of inducing the City to grant the franchise in the form accepted.
(f) Notwithstanding anything to the contrary, in the event that franchisee, its parent, affiliate
or subsidiary elects to offer to subscribers video programming services through any means or method
not included within the definition of a cable system, including but not limited to an "open video
system," franchisee shall remain subject to all terms and conditions of the cable television franchise
granted by the City.
Sec. 5.
Subject to other laws. police power.
(a) Any person operating a cable system in the City shall, at all times, be subject to and shall
comply with all applicable Federal, State, County and local laws, rules and regulations, and shall at
all times be subject to all lawful exercise ofthe police power ofthe City.
(b) Subject to applicable law, except as may be specifically provided in this article or under
the terms ofa franchise agreement and subject to the Communications Act, the failure of the City,
upon one or more occasions, to exercise a right or to require compliance or performance under this
article, a franchise agreement or a license granted by the County shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance.
Sec. 6.
Interpretation of franchise terms: conflicts.
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(a) The provisions of this article shall apply to a franchise agreement as iffully set forth in
the franchise agreement, and the express terms of this article will prevail over conflicting or
inconsistent provisions in a franchise agreement unless such franchise agreement expresses an
explicit intent to waive a requirement of this article.
(b) Except as to matters which are governed by Federal law or regulation, a franchise
agreement will be governed by and construed in accordance with the laws of the State.
(c) If any part, section, subsection or other portion of this article conflicts or subsequently
comes into conflict with any Federal, State, County or local law, the prevailing law will apply, to
the extent expressly permitted by applicable law.
Sec. 7.
Applications for ~rant. renewal. modification or transfer of franchise.
(a) A written application shall be filed with the City for (a) grant of new franchise; (b)
renewal of a franchise in accordance with Section 626 of the Communications Act, 47 U.S.C. ~546;
(c) modification of a franchise agreement; (d) transfer of a franchise; or (e) any other relief from the
City pursuant to this article or a franchise agreement.
(b) To be acceptable for filing, a signed original of the application shall be submitted together
with five copies, be accompanied by the required non-refundable application filing fee in the amount
of $7,500.00, conform to any application forms, applicable requests for proposals, and contain all
reasonably required information. The purpose of the filing fee is to defray a portion of the City's
cost in processing an application. The filing fee is therefore intended to be a charge incidental to the
awarding or enforcing of a franchise within the meaning of Section 622(g)(2)(D) of the
Communications Act, 47 U.S.C. ~542(g)(2)(D), and may not be deducted from the franchise fee
imposed in a franchise agreement. All applications shall include the names and addresses of persons
authorized to act on behalf of the applicant with respect to the application.
(c) All applications accepted for filing shall be made available by the City for public
inspection.
(d) An application for the grant of a franchise shall be submitted by any person desirous of
operating a cable system in the City notwithstanding whether any such person is operating a system
pursuant to a County license on the effective date hereof.
( e) An application for the grant of a new franchise may be filed pursuant to a request for
proposals issued by the City or on an unsolicited basis. The City, upon receipt of an unsolicited
application, may issue a request for proposals. If the City elects to issue a request for proposals upon
receipt of an unsolicited application, the applicant may submit an amended application in response
to the request for proposals, or may inform the City that its unsolicited application should be
considered in response to the request for proposals, or may withdraw its unsolicited application. An
application which does not conform to the reasonable requirements of a request for proposals may
be considered non-responsive and denied on that basis.
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(f) An application for the grant of an initial franchise shall contain, at minimum, the
following information:
(1) 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 five percent (5%) or more ownership
interest in the applicant, has been adjudged bankrupt, had a cable
franchise or applicant, has been adjudged bankrupt, had a cable
franchise or license revoked, or been found by any court or
administrative agency to have violated a security or antitrust law, or
to have committed a felony, or any crime involving moral turpitude,
and, if so, identification of any such person and a full explanation of
the circumstances;
(2) A demonstration ofthe applicant's technical, legal and financial
ability to construct and/or operate the proposed cable system,
including identification of key personnel;
(3) Copies of all Federal, State, County and City licenses, permits
and registrations in regard to any part of the applicant's facilities
located in the City;
(4) A statement prepared by a certified public accountant or duly
authorized financial officer ofthe applicant regarding the applicant's
financial ability to complete the construction and operation of the
cable system proposed;
(5) A description ofthe applicant's prior experience in cable system
ownership, construction and operation, and identification of
communities in which the applicant or any person controlling the
applicant or having more than a five percent (5%) ownership interest
in the applicant has or had, a cable franchise or license or any interest
therein;
(6) A description of any and all pending Federal and State litigation,
whether judicial or administrative, that in any manner relates to the
operation of a cable television system or the provision of a cable
television service to which the applicant is currently a party;
(7) Identification of the area ofthe City to be served by the proposed
cable system, including a description ofthe service area's boundaries;
(8) A description of the physical facilities proposed, including
channel capacity, performance characteristics, headend, and access
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facilities; upon request, the applicant shall make available for
inspection, information on technical design;
(9) Where applicable, a description of the construction of the
proposed system, including an estimate of plant mileage and its
location, the proposed construction schedule, a description, where
appropriate, of how services will be converted from existing facilities
to new facilities, and information on the availability of space in
conduits including, where appropriate, an estimate of the cost of any
necessary rearrangement of existing facilities;
(10) If applicant is currently operating a cable system within the
City, a description of the existing system and capacity and the
operator's plans to upgrade the system;
(11) If applicant or applicant's parent; or any subsidiary or affiliate
of applicant is currently operating a SMA TV system within the City,
a list of all such locations;
(12) For informational purposes, the proposed rate structure,
including projected charges for each service tier, installation,
converters, and other equipment or services, and the applicant's
ownership interest in any proposed program services to be delivered
over the cable system;
(13) Upon written request, a schedule and description of franchisee's
contracts with any and all residential and/or commercial complexes
including, but not limited to, condominiums, homeowner's
associations and apartment buildings;
(14) A demonstration of how the applicant's proposal will
reasonably meet the future cable-related needs and interests of the
community, including a description of how the proposal will meet the
needs described in any recent community needs assessment
conducted by or for the City;
(15) A description of any non-cable telecommunications services
offered or proposed to be offered by the applicant or its parent,
affiliate or subsidiary and franchisee's plan with respect to the
availability of such services to subscribers in the City;
(16) Pro forma financial projections for the first five (5) years ofthe
franchise term, including a statement of projected income, and a
schedule of planned capital additions, with all significant assumptions
explained in notes or supporting schedules;
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(17) If an applicant proposed to provide cable service to an area
already served by an existing cable operator, or SMATV, the
identification of the area where the overbuild would occur, the
potential subscriber density in the area which would encompass the
overbuild, and the ability of the streets to accommodate an additional
system;
(18) Any other information as may be reasonably necessary to
demonstrate compliance with the requirements of this article and
information that the City may request of the applicant that is relevant
to the City's consideration of the application; and
(19) An affidavit or declaration ofthe applicant or authorized officer
certifying the truth and accuracy ofthe information in the application,
acknowledging the enforceability of application commitments, and
certifying that the proposal meets all Federal and State law
requirements.
(g) An application for modification of a franchise agreement shall include, at minimum, the
following information:
(1) The specific modification requested;
(2) The justification for the requested modification, including the impact
of the requested modification on subscribers and others, and the
financial impact on the applicant if the modification is approved or
disapproved;
(3) A statement whether the modification is south pursuant to Section
625 of the Communications Act, 47 U.S.C. ~545, and, if so, a
demonstration that the requested modification meets the standards set
forth in 47 U.S.C. ~545;
(4) Any other reasonable information necessary for the City to make an
informed determination on the application for modification; and
(5) An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy ofthe information in the application,
and certifying that the application is consistent with all Federal and
State law requirements.
(h) An application for renewal of a franchise shall comply with the requirements of Section
20 hereof.
(i) An application for approval of a transfer of a franchise shall comply with the requirements
of Section 7(e) and (i) and Section 21 hereof.
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(j) To be acceptable for filing, an application shall be accompanied by anon-refundable filing
fee in the following amount, as appropriate:
(1) For a new or initial franchise ........................... $7,500.00
(2) For renewal of a franchise ............................... 5,000.00
(3) For a transfer of a franchise (other than a pro forma transfer) . . . . 2,500.00
(4) For a pro forma transfer of a franchise ..................... 1,000.00
(5) For modification of a franchise agreement pursuant to 47 U.S.C.
~545 ................................................ 2,500.00
(6) For any other relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000.00
The purpose of the filing fee is to defray a portion of the City's cost in processing an
application. The filing fee is therefore intended to be a charge incidental to the awarding or
enforcing ofa franchise within the meaning of Section 622(g)(2)(D) of the Communications Act,
47 U.S.C. ~542(g)(2)(D), and may not be deducted from the franchise fee imposed in a franchise
agreement.
Sec. 8.
Grant of franchise.
(a) In evaluating an application for a franchise, the City shall consider among other things
the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
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The economic impact upon private property within the
franchise area;
Public need for such franchise, if any;
The capacity of public rights-of-way to accommodate the
cable system;
The present and future use of the public's rights-of-way to be
used by the cable system;
The potential disruption to existing users of the public's
rights-of-way to be used by the cable system and the resulting
inconvenience which may occur to the public;
The legal, technical and financial ability of the franchise
applicant to perform;
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(7) Other societal interests as are generally considered in cable
television franchising; and
(8) Such other additional matters, both procedural and
substantive, as the City may in its sole discretion determine
to be relevant, including but not limited to the extent to which
the proposal of the applicant will meet the anticipated cable
related needs and interests of the community and serve the
public interest. Evaluation by the City shall not be based on
the content of the programming the applicant proposes to
provide.
(b) The City may grant a franchise for a period not to exceed 15 years.
(c) The City may make the grant of a franchise conditioned upon the completion of
construction within a reasonably prescribed time or upon the performance and fulfillment of specific
terms, which are to be set forth in the franchise agreement specifying that failure to comply with the
conditions will cause the franchise to become null and void without further action by the City.
(d) Following at least ten days' notice to the applicant, the City shall hold a public hearing
to consider an application or applications. The applicant(s) shall be notified of the hearing and shall
be given an opportunity to be heard. Based upon the application(s), the testimony presented at the
public hearing, any recommendations of the City Manager or staff, and any other information
relevant to the application( s), the City shall decide by resolution whether to grant or deny a franchise
application(s) and decide the terms and conditions of any franchise(s) granted.
( e) If the City grants a franchise the franchisee shall file an acceptance of the franchise
accompanied by any and all bonds, certificates of insurance or other obligations as required in a
franchise agreement within 45 calendar days from the date of the City resolution approving the
franchise agreement. This period may be extended for good cause by the City. If acceptance is not
filed with the City within 45 calendar days from the date of the City resolution, or if the period is
not extended by the City, the franchise grant will be null and void without further action by the City.
The City may, at its option, grant franchisee a short term extension(s). The grant of such a short
term extension(s) will not confer on franchisee the right to an automatic acceptance, transfer,
modification or renewal.
(f) The grant, renewal, modification, or transfer of a franchise may be subject to a processing
fee in an amount not to exceed the reasonable and justifiable out-of-pocket costs incurred by the City
in considering the application, including but not limited to consulting, advertising and legal costs
and fees, less the amount of the filing fee set pursuant to Section 7 up to an amount not to exceed
$50,000.00. Within 30 calendar days from the date of the resolution approving or denying the
franchise agreement by the City Commission, the City shall notify the franchisee ofthe amount of
any processing fee and its method of calculation. If the processing fee is not paid to the City within
60 calendar days ofthe date ofthe City Commission resolution approving or denying the franchise
Cable Ordinance
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agreement, any approval granted by such resolution will be null and void. This processing fee is
therefore intended to be a charge incidental to the awarding or enforcing of a franchise within the
meaning of Section 622(g)(2)(D) of the Cable Act, 47 U.S.C. S542(g)(2)(D), and may not be
deducted from the franchise fee imposed in a franchise agreement and shall not be passed through
to subscribers.
Sec. 9.
Insurance: surety: indemnification.
(a) A franchisee shall maintain, and by its acceptance ofthe franchise, specifically agrees that
it will maintain, throughout the entire term of the franchise including any renewals thereof, the
following liability insurance coverage insuring the franchisee and naming the City as an additional
insured; worker's compensation and employer liability insurance to meet all requirements of State
law and general comprehensive liability insurance with respect to the construction, operation and
maintenance of the cable system, and the conduct of franchisee's business in the City, in the
minimum amounts of:
(1) $500,000.00 for property damage in anyone accident;
(2) $500,000.00 for personal bodily injury to anyone person; and
(3) $1,000,00000 for personal bodily injury in anyone accident.
(b) All insurance policies shall be with sureties qualified to do business in the State; shall be
with sureties with a minimum rating of A-I in Best's Key Rating Guide, Property/Casualty Edition.
The City may require coverage and amounts in excess of the above minimum where necessary to
reflect changing liability exposure and limits or where required by law.
(c) A franchisee shall keep on file with the City certificates of insurance which certificates
shall indicate evidence of payment of the required premiums and shall indicate that the City, its
Commissioners, officers, boards, commission, commissioners, agents and employees are listed as
additional insureds. In the event of a potential claim such that the City claims insurance coverage,
franchisee shall immediately respond to all reasonable requests by the City for information with
respect to the scope of the insurance coverage.
(d) All insurance policies shall name the City, as additional insured and shall further provide
that any cancellation or reduction in coverage shall not be effective unless thirty (30) days prior
written notice thereof has been given to the City. A franchisee shall not cancel any required
insurance policy without submission ofproofthat the franchisee has obtained alternative insurance
satisfactory to the City which complies with this article.
( e) A franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the
City, its officials, boards, commissions, commissioners, agents and employees, against any and all
claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the construction, maintenance or operation of its cable system, the conduct
Cable Ordinance
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of franchisee's business in the City, regardless of whether the act or omission complained of is
authorized, allowed or prohibited by this article or a franchise agreement, provided, however, that
franchisee's obligation hereunder shall not extend to any claims caused by the misconduct or sole
gross negligence of the City, its officials, boards, commissions, commissioners, agents, or
employees. This provision includes, but is not limited to, the City's reasonable attorney's fees
incurred in defending against any such claim, suit or proceeding; and claims arising out of copyright
infringements or a failure by the franchisee to secure consents from the owners, authorized
distributors, or providers of programs to be delivered by the cable system, claims arising out of
Section 638 of the Communications Act, 47 U.S.C. ~558, and claims against the franchisee for
invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or
infringement of any copyright, trademark, trade name, service mark or patent, or of any right of any
person, firm or corporation. Notwithstanding the foregoing, franchisee may select counsel to
represent the City. The City agrees to notify franchisee, in writing, within ten (10) days of City
receiving notice, of any issue it determines may require indemnification. Nothing in this section
shall prohibit the City from participating in the defense of any litigation by its own counsel if in the
City's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a
conflict.
Sec. 10.
Security fund/corporate1:uarantee.
(a) A franchise agreement may provide that, prior to the franchise becoming effective, the
franchisee shall post with the City a cash security deposit or in the alternative at the City's discretion
a bond, letter of credit, or corporate guarantee in a form acceptable to the City to be used as a
security fund to ensure the franchisee's faithful performance of and compliance with all provisions
of this article, the franchise agreement, and other applicable law, and compliance with all orders,
permits and directions of the City, and the payment by the franchisee of any claims, liens, fees, or
taxes due the City which arise by reason of the construction, operation or maintenance of the system.
The amount of the security fund or corporate guarantee shall be the amount that the City determines,
under circumstances existing at the time, that is necessary to protect the public, to provide adequate
incentive to the franchisee to comply with this article and the franchise agreement, and to enable the
City to effectively enforce compliance therewith. The franchise agreement shall provide for the
procedures to be followed with respect to the security fund or corporate guarantee.
(b) Any bond or letter of credit shall be obtained at the sole expense of the franchisee and
shall be renewed for the full term of the franchise plus an additional 12 months thereafter. The
franchisee and its surety shall be jointly and severally liable under the terms of the bond or letter of
credit for any damages or loss suffered by the City as a result of the franchisee's non performance,
including the full amount of any compensation, indemnification or cost of removal of any property
of the franchisee in the event of default, a reasonable allowance for attorneys' fees an costs, up to
the full amount of the bond or letter of credit. The bond or letter of credit shall provide for 30 days'
prior written notice to the City of any intention on the part of the franchisee to cancel, fail to renew,
or otherwise materially alter its terms. Neither the filing of an indemnity bond or letter of credit with
the City, nor the receipt of any damages recovered by the City thereunder, shall be construed to
excuse faithful performance by the franchisee or limit the liability ofthe franchisee under the terms
Cable Ordinance
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of its franchise for damages, either to the full amount of the bond or otherwise.
(c) The rights reserved to the City with respect to the security fund or an indemnity bond or
letter of credit are in addition to all other rights of the City, whether reserved by this article or
authorized by other law or the franchise agreement, and no action, proceeding or exercise of a right
with respect to such security fund or indemnity bond or letter of credit will affect any other right the
City may have.
Sec. 11.
Construction bond.
(a) A franchise agreement may provide that, prior to any cable system construction, upgrade,
rebuild or other significant work in the streets, a franchisee shall establish in the City's favor a
construction bond in an amount specified in the franchise agreement or other authorization as
necessary to ensure the franchisee's faithful performance of the construction, upgrade, rebuild or
other work.
(b) In the event a franchisee subject to such a construction bond fails to complete the cable
system construction, upgrade or other work in the streets in a safe, timely and competent manner in
accordance with the provisions of the franchise agreement, there shall be recoverable, jointly and
severally from the principal and surety of the bond, any damages or loss suffered by the City as a
result, including the full amount of any compensation, indemnification or cost of removal or
abandonment of any property of the franchisee, or the cost of completing or repairing the system
construction, upgrade or other work in the streets, plus a reasonable allowance for attorneys' fees,
up to the full amount of the bond. The City may also recover against the bond any amount
recoverable against the security fund pursuant to Section 10 hereof where such amount exceeds that
available under the security fund.
(c) The franchise agreement may specify that upon completion of the system construction,
upgrade, rebuild or other work in the streets and payment of all construction obligations of the cable
system to the satisfaction of the City, the City may eliminate the bond or reduce its amount
However, the City may subsequently require an increase in the bond amount for any subsequent
construction, upgrade, rebuild or other work in the streets.
(d) The construction bond shall be issued by a surety having a minimum rating of A-I in
Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City
Attorney; and shall provide that;
"This bond may not be canceled, or allowed to lapse, until 60 days
after receipt by the City, by certified mail, return receipt requested, of
a written notice from the issuer of the bond of intent to cancel or not
to renew."
(e) The rights reserved by the City with respect to any construction bond established pursuant
to this Section are in addition to all other rights and remedies the City may have under this article,
Cable Ordinance
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a franchise agreement, or at law or equity.
Sec. 12.
Minimum facilities and services.
(a) The following minimum requirements for facilities and services apply to all franchises
granted by the City. The City may require in a franchise agreement that a franchisee exceed these
minimum requirements where it determines, under circumstances existing at the time of the
application, that the additional requirements are reasonable to meet the City's future cable related
needs and interests or to serve the public interest. Notwithstanding anything to the contrary, a
franchisee shall make available facilities, services, products, benefits, and a level of technology to
all subscribers in the City no less than that offered by the franchisee, its parent, affiliate, or
subsidiary to any community in the State.
(1)
(2)
(3)
(4)
(5)
(6)
Cable Ordinance
Any cable system that commences construction, including but
not limited to initial construction, rebuild, upgrade or
reconstruction after the effective date of this article shall have
a minimum capacity of at least 750 MHZ providing no less
than 78 video channels available for immediate use. A
franchise agreement may provide for a larger minimum
channel capacity requirement.
The City may require in a franchise agreement that a
franchisee provide access channels, facilities and other
support for public, educational and/or governmental use.
At the City's request, a franchisee shall provide cablecasting
of City Commission meetings live to all subscribers located
within the City.
A cable system shall provide leased access channels as
required by Federal law.
A franchisee shall, upon request, provide at least one cable
television service outlet and when technically feasible, at least
one additional outlet equipped for on-line access to all City
buildings and all public schools within its franchise area that
are passed by its cable system at no cost to the City or schools
involved, and shall charge no more than its time and material
costs for any additional service outlets to such facilities.
A franchise shall, upon request, provide all facilities,
equipment, cabling, personnel and such other support as may
be required to allow production of programming and live
cablecasting from Government Center. Such support may be
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allocated among all franchisees granted a franchise within 36
months ofthe effective date hereof on a pro-rata basis.
(7) A franchisee shall design its system to allow the City or other
appropriate government body, to interrupt cable service in an
emergency to deliver necessary information to subscribers.
(8) A franchisee shall make available to its subscribers equipment
capable of decoding closed circuit captioning information for
the hearing impaired. A franchisee may impose a reasonable
charge for such equipment.
(9) Standard installation shall consist of a drop, not exceeding
125 feet from the cable plant to the nearest part of a
subscriber's residence. Residential drops in excess of 125
feet may be charged according to the franchisee's rate
schedule.
(b) Unless a franchise agreement provides otherwise, the City may require a franchisee to
make cable service available to every dwelling and every building within the franchise service area
or the franchisee's designated services area as defined in a franchise agreement unless prohibited by
a private property owner from doing so.
(c) Applications for an initial or renewed franchise shall include a proposal for the
interconnection of franchisee's system to any or all other cable systems operating within the City.
Sec. 13.
Technical standards.
(a) Any cable system within the City shall at minimum meet the technical standards of the
FCC or other applicable Federal or State technical standards, including any such standards as
hereinafter may be amended or adopted including but not limited to digital transmission, HDTV or
other advanced technologies. All television signals transmitted on a cable system shall include any
closed circuit captioning information for the hearing impaired. Antennas, supporting structures and
outside plants used in the system shall be designed to comply with all generally accepted industry
practices and standards and with all Federal, State, County and City laws, ordinances, rules and
regulations.
(b) All construction, installation and maintenance shall comply with the National Electrical
Safety Code, the National Electric Code, the South Florida Building Code and all laws and accepted
industry practices and as hereinafter may be amended or changed.
(c) As required by FCC rules, the franchisee shall perform at its expense proof of
performance tests designed to demonstrate compliance with FCC requirements. The franchisee shall
provide, upon written request, the proof of performance test results to the City within 30 days after
Cable Ordinance
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completion. The City shall have the right to inspect the cable system facilities during and after their
construction to ensure compliance with the requirements of the franchise agreement, this article and
FCC standards.
(d) The City may require any other tests as specified in a franchise agreement or applicable
law or regulation, to be performed at the expense of the franchisee. The franchisee shall provide the
test results to the City within 30 days of completion of the proof of performance or other tests.
(e) The franchisee shall provide the City ten (10) days advance written notice when a proof
of performance test required in subsections (c) and (d) above is scheduled so that the City may have
an observer present.
(f) A franchisee shall not design, install or operate its facilities in a manner that will interfere
with the signals of any broadcast station, the facilities of any public utility, the cable system of
another franchisee, or individual or master antennas used for receiving television or other broadcast
signals.
(g) In any franchise granted pursuant to this article, the City may require a franchisee to agree
to maintain that level of technology to satisfy the state of the art as defined in Section 1 herein.
(h) The franchisee shall provide access channels, equipment and facilities, and financial
support in accordance with Sections 12, 13 and 14, as well as such other benefits and services as
provided in a franchise agreement.
Sec. 14.
Public. education and eovernment support.
(a) It is the purpose and intent of the City to require that all franchisees provide access
channels, facilities, equipment and support sufficient to meet the community's needs and interests
with respect to public, education and government activities.
(b) A franchise~ shall provide, at the request of the City, cable television services including
installation and basic service with ten (10) outlets to all municipal offices and schools within the
City.
(c) A franchisee shall provide, at the request of the City and as designated in the franchise
agreement, access channels to be allocated to education and government use at the sole discretion
of the City.
(d) During the term ofa franchise, a franchisee shall provide at the request of the City and
as designated in a franchise agreement, such equipment, facilities and technical support as the City
Commission may determine is useful for the production and cablecasting of programming on the
public, education and government channels. Applications for an initial or renewed franchise shall
include a proposal to provide such support.
Cable Ordinance
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(e) At City's request, franchisee shall provide for live and repeat cablecasting of all City
Commission meetings to all subscribers within the City.
(f) At the request of the City and as designated in a franchise agreement, a franchisee shall
provide the City with a dedicated I-NET, or such equivalent PEG support as may be designated in
a franchise agreement for the exclusive use ofthe City.
(g) A franchise may provide for a financial grant in lieu of or in addition to some or all ofthe
facilities, equipment and services referenced in this Section 14.
(h) A franchisee shall agree that the facilities, equipment, monetary grant, and all support to
be provided by franchisee pursuant to this Section 14 constitute capital costs which are required by
the franchise to be incurred by franchisee for public, educational, or government access facilities
within the meaning of Section 622(g)(2)(C) of the Cable Act, 47 U.S.C. ~542(g)(2)(C); that such
grant does not constitute a franchise fee or tax within the meaning of the Cable Act, State law,
chapter ofthe City Code, or a franchise agreement and that the franchisee shall waive, and will not
assert in any proceeding, any claim to the contrary.
Sec. 15.
Franchise fee.
(a) A franchisee, as compensation for the privilege ofthe use ofthe City's streets to construct
and/or operate a cable system, shall pay to the City a franchise fee in an amount up to a maximum
of either (1) five (5%) percent ofthe franchisee's gross revenues derived directly or indirectly from
the operation of its cable system within the City during the term of its franchise less only that
amount due to Dade County; or (2) in the event the Communications Act or other applicable law is
amended to permit the City to assess a franchise fee ofa greater amount than that specified in (1)
above, the franchise agrees to pay to the City the new amount after a public hearing in which the
public and franchisee are given an opportunity to comment on the impact of the higher fee.
Moreover, franchisee shall conclude an agreement with respect to a fee increase with the City no
later than it concludes an agreement with Dade County.
(b) The franchisee's payment ofthe franchise fee to the City shall be reduced only by that
amount the franchisee is expressly required to pay to Dade County pursuant to any applicable cable
license, franchise or article of the County.
(c) A franchisee shall pay the franchise fee due to the City on a quarterly basis. Payment for
each quarter shall be made to the City not later than 45 calendar days after the end of each calendar
quarter, provided, however, that payment for the fourth quarter (October, November, December)
shall not be due until 75 days after the end ofthe quarter.
(d) A franchisee shall file with the City, on a quarterly basis with the payment of the
franchise fee, a financial statement setting forth the computation of gross revenues used to calculate
the franchise fee for the preceding quarter and a detailed explanation ofthe method of computation.
The statement shall be certified by a certified public accountant or the franchisee's chief financial
Cable Ordinance
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or other duly authorized officer. The franchisee will bear the cost ofthe preparation of such financial
statements.
(e) Subject to applicable law, no acceptance by the City of any franchise fee payment shall
be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the City may have for additional sums
payable.
(f) The franchise fee payment is not a payment in lieu of any other tax, fee or assessment.
(g) The City may, from time to time, but not more frequently than once per year, and upon
reasonable notice, inspect, copy and audit any and all books and records of the franchisee relevant
to the determination of gross revenues and the computation of franchise fees due, and may
recompute any amounts determined to be payable under the franchise. The cost of the audit will be
borne by the franchisee if, as a result of the audit, the City determines that the franchisee has
underpaid the franchise fees owed in an amount equal to or exceeding 3.5 percent (3.5%) of the
franchise fees actually paid. A franchisee shall make all books and records necessary to
satisfactorily perform the audit readily available to the auditors in Dade County, for inspection and
copying or in the alternative, franchisee shall pay all costs necessary for the City to perform the audit
at a location outside of Dade County.
(h) In the event that a franchise fee payment is not received by the City on or before the due
date set forth in subsection (b) above, or is underpaid, the franchisee will pay a late charge of 18
(18%) percent annually of the amount of the unpaid or underpaid franchise fee payment, provided
however, that such rate does not exceed the maximum amount allowed under State law. Any interest
and/or late charges paid by franchisee is intended to be a charge incidental to the enforcing of a
franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C.
~542(g)(2)(D), and may not be deducted from the franchise fee imposed by this article or any
franchise agreement.
(i) When a franchise terminates for whatever reason, the franchisee shall file with the City
within 90 calendar days of the date its operations in the City cease, a financial statement, certified
by a certified public accountant or the franchisee's chief financial officer, showing the gross
revenues received by the franchisee since the end of the previous quarterly payment. Adjustments
will be made at that time for franchise fees due to the date that the franchisee's operations ceased.
Sec. 16.
Customer service requirements.
(a) Any person operating a cable system shall maintain all parts of its system in good
condition and in accordance with standards generally observed by the cable television industry.
Sufficient employees shall be retained to provide safe, adequate and prompt service for all of its
customers and facilities.
(b) The franchisee shall maintain at least one conveniently located business office and service
Cable Ordinance
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center within five miles from the City limits to which subscribers may telephone without incurring
added message units or toll charges. This business office shall open at minimum from 8:00 a.m. to
6:00 p.m., Monday through Friday, and some weekend and evening hours.
(c) The franchisee shall maintain a listed local, toll-free telephone number and employ a
sufficient number of telephone lines, personnel and answering equipment or service to allow
reasonable access by subscribers and members ofthe public to contact the franchisee on a full-time
basis, 24 hours per day, seven days per week including holidays. Knowledgeable, qualified
franchisee representatives will be available to respond to customer telephone inquiries, 24 hours per
day, seven days per week, including holidays.
(d) The franchisee shall answer all customer service and repair telephone calls mad under
normal operating conditions within 30 seconds, including wait time and within an additional 30
seconds to transfer the call. Customers shall receive a busy signal less than three percent (3%) of
the time. These standards shall be met no less than 90 percent (90%) of the time under normal
operating conditions, measured on quarterly basis.
( e) A franchisee shall employ and maintain sufficient qualified personnel and equipment to
be available (i) to accept payments; (ii) to exchange or accept converters or other equipment; (iii)
to receive subscriber complaints or requests for service or repairs during normal business hours and
some evening and weekend hours; (iv) to schedule service installations, undertake normal repairs,
initiate action with respect to any subscriber service complaint within 24 hours; (v) to enable a
service technician to respond to service calls 24 hours per day, seven days a week including holidays
when more than five subscribers served from the same nearest active electronic device, such as an
amplifier or node, call with the same complaint. Franchisee shall meet such standards 90% of the
time. as measured on a quarterly basis. under normal operating conditions.
(f) Installation and service:
(1) Standard installation work shall be performed within seven (7) business
days after an order has been placed except in those instances where a
subscriber specifically requests an installation date beyond the seven business
day period. "Standard" installations are up to 150 feet from the existing
distribution system. If scheduled installation is neither started nor completed
as scheduled, the subscriber will be telephoned by an employee of the
franchisee the same day. Evening personnel shall also attempt to call
subscribers attheir homes between the hours of 5 :30 and 8 :00 p.m. If the call
to the subscriber is not answered, and employee of the franchisee shall
telephone the subscriber the next day;
(2) The franchisee will respond to service interruptions promptly and in no
event later than 24 hours after the interruption becomes known. Other
service problems will be responded to promptly and in no event later than 48
hours after the problem becomes known. All service interruptions and
service problems within the control ofthe franchisee shall be corrected within
Cable Ordinance
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72 hours after receipt of a complaint;
(3) The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities will be either a specific
time, a four-hour time block during normal business hours, or at the election
and discretion of the subscriber, "all day";
(4) The franchisee may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment; and
(5) If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer will be made and the
appointment rescheduled as necessary at a time which is convenient for the
customer.
Individual subscribers who have experienced a missed installation or service appointments
due to the fault of franchisee shall receive a credit of not less than $20.00. Such individual refund
created to an individual subscriber shall not in any manner mitigate any fine that may be imposed
by the City pursuant to Section 16(s) herein.
(g) Disconnection.
(1) Voluntary disconnection.
a. [Fleserved]
b. The franchisee shall promptly disconnect any subscriber who so
requests from the franchisee's cable system. No period of notice
prior to voluntary termination of service may be required of
subscribers by any franchisee.
c. A subscriber may be asked, but not required, to disconnect the
franchisee's equipment and return it to the business office.
d. Any security deposit and/or other funds due the subscriber shall be
refunded on disconnected accounts after the converter has been
recovered by the franchisee. The refund process shall take a
maximum of 30 days from the date that the converter or other
equipment was returned to franchisee or made available to franchisee
for pickup to the date the customer receives the refund.
(2) Involuntary disconnection. If a subscriber fails to pay a monthly subscriber or
other fee or charge, the franchisee may disconnect the subscriber's service outlet;
however, such disconnection shall not be effected until 35 days after the due date of
the monthly subscriber fee or other charge, and ten (10) days advance written notice
Cable Ordinance
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of intent to disconnect to the subscriber in question. If the subscriber pays within
35 days of the due date and after notice of disconnection has been given, the
franchisee shall not disconnect. After disconnection, upon payment by the subscriber
in full of all proper fees or charges, including the payment of the re-connection
charge, if any, the franchisee shall promptly reinstate service.
(3) Nothing in this article shall be construed to prevent the franchisee from removing
its property from a subscriber's premises upon the termination of service consistent
with FCC rules and regulations and any other applicable law. At the subscriber's
request, a franchisee shall remove all of its facilities and equipment from the
subscriber's premises within 30 calendar days of the subscriber's request. Where
removal is impractical, such as with buried cable or internal wiring, facilities and
equipment may be disconnected and abandoned rather than removed, unless there is
a written agreement stating otherwise, provided, however, that such agreement must
be consistent with applicable law and FCC rules.
(h) The franchisee shall intentionally interrupt service only for good cause and for the
shortest time possible and where feasible shall provide 48 hours notice to the City Manager and to
all subscribers. Notice to multiple dwelling units may be provided to the property manager in lieu
ofto each individual unit owner.
(i) The franchisee shall notify the City Manager if a service interruption affects 50 or more
individual subscribers for a time period greater than four hours.
(j) The franchisee shall cause all its field employees to wear a picture identification badge
indicating their employment by franchisee. This badge shall be clearly visible to the public.
(k) A franchisee shall develop written procedures for the investigation and resolution of all
subscriber or City resident complaints, including, but not limited to, those regarding the quality of
service and equipment malfunction, which procedures shall be subject to the review and approval
by the City Manager. A subscriber or City resident who has not been satisfied by following the
franchisee's procedures may file a written complaint with the City Manager, who will investigate
the matter and, in consultation with the franchisee as appropriate, attempt to resolve the matter. A
franchisee's good faith or lack thereof in attempting to resolve subscriber and resident complaints
in a fair and equitable manner will be considered in connection with the franchisee's renewal
application. The franchisee shall maintain a complete list of all complaints not resolved within seven
(7) days of receipt and the measures taken to resolve them. This list shall be compiled in a form to
be approved by the City Manager. It shall be compiled on a quarterly basis. The list for each
calendar quarter shall be supplied to the City Manager no later than the 15th day following the last
day of the preceding quarter. The franchisee shall also maintain a list of all written complaints
received, which list will be available to the City.
(1) To the extent reasonably required to monitor enforcement of this article or a franchise
agreement, a franchisee shall permit the City designee to inspect and test the system's technical
equipment and facilities upon reasonable notice to be less than 48 hours. Such inspection shall not
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be performed between the hours of 12:00 midnight and 6:00 a.m., unless the City or its designee
offers a specific reason for requiring an inspection during said hours.
(m) The franchisee shall abide by the following requirements governing communications
with customers, bills and refunds:
(1) Each franchisee shall provide to subscribers written information in each of the
following areas at the time of installation, at least once annually, and at any future
time upon request by the subscriber:
a. How to use the cable service;
b. Installation and service policies;
c. The products and services offered;
d. Prices and service options;
e. Channel positions of programming carried on the system;
f. The franchisee's procedures for the receipt and resolution of customer
complaints, the franchisee's address and telephone number to which
complaints may be reported, and the hours of operation;
g. The telephone number and address of the city's office and the
County's office designated to handle cable television complaints and
mqumes;
h. The availability of a "lock-out" device;
1. The franchisee's information, collection, and disclosure policies for
the protection of a subscriber's privacy.
(2) In addition, each franchisee shall provide written notice either in its monthly
billing or through two (2) advertisements no smaller than 1/4 page in the newspaper
with the largest general circulation in the City, at the request of the City, of any City
meeting regarding requests or applications by the franchisee for renewal, transfer or
modification of its license or change in service, rates or charges to subscribers. If
agreed by the City, notice may be provided over the cable system in certain instances.
The City shall make such a request in writing, no less than 45 days prior to the
mailing of any billing by franchisee or 15 days prior to the date that such advertising
shall appear. Said notices shall be made at franchisee's expense and said expense
shall not be considered part of the franchise fee assessed pursuant to this article and
shall not be regarded as a franchise fee, as the term is defined in Section 622 of the
Communications Act, 47 U.S.C. ~542.
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(3) The franchisee's bills will be clear, concise and understandable.
(4) Refund checks will be issued promptly, but no later than the earlier of30 days or
the customer's next billing cycle following the resolution of a refund request, or the
return of the equipment supplied by the franchisee if service is terminated.
(5) Credits for service will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted.
(6) A franchisee shall provide subscribers, the City Manager, and the City
Commission with at least 30 days advance written notice of any changes in rates,
charges, channel lineup, or initiations or discontinuations or changes of service or
services offered over the cable system.
(n) A franchisee shall provide a pro-rated 24-hour credit to the subscriber's account for any
period of four hours or more within a 24-hour period during which a subscriber experienced an
outage of service or substantial impairment of service, whether due to a system malfunction or other
cause.
(0) Billing:
(1) The franchisee's first billing statement after a new installation or service
change shall be pro-rated as appropriate and shall reflect any security deposit.
(2) The franchisee's billing statement must be fully itemized, with itemizations
including, but not limited to, basic and premium service charges and
equipment charges. Bills will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits.
(3) The franchisee's billing statement must show a specific due date not earlier
than ten days after the date of the beginning of the service period. Any
balance not received within ten (10) days after the due date may be assessed
an administrative charge. The charge will appear on the following month's
billing statement.
a. Any administrative charge applied to unpaid bills shall be subject to
regulation by the City consistent with applicable law.
b. Subscribers shall not be charged an administrative fee, a late fee or
otherwise penalized for any failure by the franchisee, its employees,
or contractors, including failure to timely or correctly bill the
subscriber, or failure to properly credit the subscriber for a payment
timely made.
(4)
The franchisee must notify the subscriber that he or she can remit payment
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in person at the franchisee's office or at such other locations within the City
and inform the subscriber of the address of that office.
(P) A franchisee may not substantially alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) without the express permission of such
subscriber, unless it complies with this subsection.
(1) If a franchisee wishes to alter the service being provided to a
subscriber (including by re-tiering, restructuring a tier or otherwise)
in such a way that the subscriber will no longer be able to obtain the
same package of services, then the franchisee must provide the
subscriber with 30 days notice of such alteration, explain the
substance and the full effect of the alteration, and provide the
subscriber the right within the 30-day period following notice, to opt
to receive any combination of services offered by the franchisee.
(2) Except as provided herein, no charge may be made for any service or
product which the subscriber has not affirmatively indicated, in a
manner separate and apart from payment of the regular monthly bill,
that he or she wishes to receive.
(q) Upon request, the franchisee shall certify in writing to the City on January 1 and July 1
of each year based upon internal due diligence by the franchisee that to the best of the franchisee's
knowledge it is in substantial compliance with the standards set forth in this Section 16. At the
request of the City, the franchisee shall submit such documentation, as may be required, to
demonstrate the franchisee's compliance with this Section 16. This documentation shall be
submitted within 45 days of the franchisee's receipt of the City's request.
(r) Responsibility for the administration ofthis article and any franchise granted hereunder
and for the resolution of all complaints against a franchisee regarding the quality of service,
equipment malfunctions and related matters, including the authority to order refunds or fees, is
hereby delegated to the City Manager, which is empowered, among other things, to settle, or
compromise any controversy arising from operations of the franchisee, in accordance with the best
interests ofthe public. In cases where requests for service have been ignored or in cases where the
service provided is unsatisfactory for whatever reason, the City Manager shall have the power to
require the franchisee to provide service if, in the opinion of the City Manager, such request for
service is reasonable, provided, that any person aggrieved by a decision of the City Manager,
including the franchisee, may appeal the matter to the City Commission for hearing and
determination. The City Commission may accept, reject or modify the decision of the City Manager.
No adjustment, settlement or compromise, whether instituted by the City Manager or by the City
Commission shall be contrary to the provisions of this article or any franchise agreement issued
pursuant to this article and neither the City Manager nor the City Commission in the adjustment,
settlement or compromise of any controversy shall have the right or authority to add to, modify or
delete any provision of this article or of the franchise.
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Cable Ordinance
(s)
(1)
In addition to the powers delegated in subsection (r) above, the City Manager
shall have the authority to assess fines against a franchisee for any violation
of this article or any franchise issued pursuant to this article, which fines will
be paid to the City.
(2) In assessing fines against a franchisee, the City Manager shall be governed
by the Schedule set out below. Unless otherwise indicated, the fines listed
are to be assessed on a per violation basis with each day of a continuing
violation constituting a separate violation.
a.
b.
c.
d.
e.
f.
g.
h.
1.
J.
k.
1.
Schedule of Fines
Single Violation of:
m.
Subsection (a) hereof.
Subsection (b) hereof.
Subsection (c) hereof.
Subsection (d) hereof.
Subsection ( e) hereof.
Subsection (f) hereof.
Subsection (g) hereof.
Subsection (h) hereof.
[Reserved. ]
Subsection (j) hereof.
Subsection (k) hereof.
Subsection (1) hereof.
Subsection (m)(I)(a) - (i) hereof with bill cycle.
n.
o.
p.
q.
Subsection (m)(2), hereof.
Subsection (m)(3) - (m)(6) hereof.
Subsection(n) hereof.
Subsection (0) hereof.
Subsection (P) hereof.
Subsection (q) hereof.
(3)
(4)
[Reserved. ]
Maximum Fines
$100.00
$100.00
$100.00
$1,0000.00 per quarter
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00 per month
billing
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00
For the purpose of assessing and calculating refunds and fines for violations
of this section with respect to multiple dwelling units, each individual unit
shall be counted as a subscriber. However, any and all refunds with respect
to services provided pursuant to a bulk agreement shall be remitted by the
franchisee to the party to the bulk agreement, rather than to individual
subscribers. Refunds due to subscribers for service purchased on an
individual basis shall be remitted directly by the company to each individual
subscriber.
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(5) Prior to ordering a refund and/or assessing a fine, the City Manager shall mail
the franchisee written notice by certified or registered mail of the proposed
refund and/or fine, specifying the violation at tissue. The franchisee shall
have 30 days from the date of receipt of the written notice to file a written
response to the city Manger's notice. The franchisee's written response shall
be signed by management level personnel of franchisee and all statements
contained therein will be regarded as material representations to the City.
(6) Prior to ordering a refund and/or assessing a fine, the City manager shall
consider any justification or mitigating factor advanced in franchisee's
written response, including but not limited to rebates or credits to the
subscriber or a cure of the violation. The City Manager may, after
consideration ofthe response of the franchisee, waive or reduce any proposed
refund or fine.
(7) Subsequent to the notice of proposed refund and/or fine to franchisee and
consideration of the franchisee's response, if any, the City Manager may
issue an assessment of refund or fine. The refund and/or fine shall be paid
within 30 days of written notice to the franchisee. This refund and/or fine
shall constitute liquidated damages to the subscriber and City for the
violation and the City may enforce payment ofthe refund or fine in any court
having jurisdiction. It is the intent of the City to determine fines/refunds as
a reasonable estimate of the damages suffered by the City and/or its
subscribers, whether actual or potential, and may include without limitation,
increased costs of administration and other damages difficult to measure.
(8) The franchisee may appeal any decision of the City Manager directly to the
City Commission within 30 days of notice of the decision to the franchisee.
(9) Any person who intentionally files a false complaint against a franchisee
shall be subject to a fine in the amount of $50.00 for the first violation and
$100.00 for each subsequent violation.
(10) Intentional misrepresentation by a franchisee in any response to a notice of
proposed refund and/or fine shall be grounds for revocation of the franchise.
(t) In addition to complying with the customer service standards set forth in this article or in
any franchise issued pursuant to this article, a franchisee shall comply with all customer service
standards applicable to cable systems of the FCC and any other applicable federal, state or county
law concerning customer service standards, consumer protection, and unfair or deceptive trade
practices.
(u) The City expressly reserves the right to consider violations of the customer service
requirements by a franchisee in deciding whether to enter into a franchise agreement, grant a
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franchise renewal, modification or consent to a transfer.
Sec. 17.
Subscriber privacy.
A franchisee shall at all times protect the privacy of all subscribers to the full extent required
by Section 631 of the Communications Act, 47 U.S.C. S551 and State law.
Sec. 18.
Discrimination prohibited.
(a) A franchisee may in its rates or charges, or in the availability ofthe services or facilities
of its system, or in any other respect, make or grant undue preferences or advantages to any
subscriber, potential subscriber, or group of subscribers or potential subscribers, nor subject any such
persons or group of persons to any undue prejudice or any disadvantage. A franchisee shall not
deny, delay or otherwise burden service or discriminate against subscribers or users on the basis of
age, race, creed, religion, color, sex, handicap, national origin, marital status or political affiliation,
except for discounts for senior citizens, the economically disadvantaged or handicapped that are
applied in a uniform and consistent manner. A franchisee may also offer bulk discounts to multiple
dwelling buildings to the extent such discounts are otherwise permissible by law.
(b) A franchisee shall not deny cable service to any potential subscriber because of the
income ofthe residents of the area in which the subscriber resides.
(c) A franchisee shall not refuse to employ, nor discharge from employment, nor discriminate
against any person in compensation or in terms, conditions or privileges of employment because of
age, race, creed, religion, color, sex, disability, national origin, marital status or political affiliation.
The franchisee shall comply with Federal, state and local laws and regulations governing equal
employment opportunities, as the same may from time to time be amended.
Sec. 19.
Use of streets.
(a) Any pavements, sidewalks, curbing or other paved area taken up or any excavations made
by a franchisee shall be done pursuant to permits issued for work by the proper officials of the City,
and shall be done in such manner as to give the least inconvenience to the inhabitants ofthe City.
A franchisee shall, at its own cost and expense and in a manner approved by the City, replace and
restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before
the work involving such disturbance was done, and shall also prepare, maintain and provide to the
City Manager of his designee, full and complete plats, maps and records showing the exact locations
of its physical facilities used in connection with the cable system located within the public streets,
ways, and easements of the City. These maps shall be available in any form requested by the City
Manager or his designee.
(b) Except to the extent required by law, a franchisee shall, at its expense, protect, support,
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temporarily disconnect, relocate, or remove, any of its property when required by the City by reason
of traffic conditions, public safety, street construction, street resurfacing or widening, change of
street grade, installation or sewers, drains, water pipes, power lines, signal lines, tracts, or any other
type of municipal or public utility improvements; provided, however, that the franchisee shall, in all
such cases, have the privilege of abandoning any property in place.
(c) A franchisee shall, on the request of any person holding a building moving permit issued
by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of
such temporary removal or raising or lowering of wires shall be paid by the person requesting same,
and the franchisee shall have the authority to require such payment in advance, except in the case
where the requesting person is the City, in which case no such payment shall be required. The
franchisee shall be given not less than five (5) calendar days advance notice to arrange for such
temporary wire changes.
(d) A franchisee shall upon notice to the City of not less than seven (7) days, have the
authority to trim the trees or other natural growth upon and overhanging the streets so as to prevent
the branches of such trees from coming in contact with the wires, cables and other equipment of the
franchisee, except that, at the option of the City, such trimming may be done by it or under its
supervision and direction at the expense of the franchisee.
(e) A franchisee shall use, with the owner's permission, existing underground conduits (if
applicable) or overhead utility facilities whenever feasible. Copies of agreements between a
franchisee and third party for use of conduits or other facilities shall be filed with the City provided
that the franchisee shall have the right to redact proprietary and confidential information in such
agreements as it pertains to financial arrangements between the parties.
(f) All wires, cable lines and other transmission lines, equipment and structures shall be
installed and located to cause minimum interference with the rights and convenience of property
owners. The City may issue such rules and regulations concerning the installation and maintenance
of a cable system installed in, on, or over the streets, as may be consistent with this article and the
franchise agreement.
(g) All safety practices required by law shall be used during construction, maintenance and
repair of a cable system. A franchisee shall not place facilities, equipment or fixtures where they
will interfere with any gas, electric, telephone, water, sewer or other utility facilities, or obstruct or
hinder in any manner the various utilities serving the residents of the City of their use of any street
or any other public right-of-way.
(h) A franchisee shall, at all times:
(1)
Install and maintain its wires, cables, fixtures and other equipment in
accordance with the requirements ofthe City's Building Code and Electrical
Safety Ordinances and any other applicable Building or Electrical Safety
Code, and in such manner that they will not interfere with any installations
of the City.
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(2) Keep and maintain in a safe, suitable, substantial condition, and in good order
and repair, all structures, lines, equipment and connections in, over, under,
and upon the streets, sidewalks, alleys, and public ways or places of the City,
wherever situated or located.
(i) On streets where electrical or telephone utility wiring is located underground, franchisee's
cable shall also be located underground at the franchisee's expense. Between a street and a
subscriber's residence, a franchisee's cable must be located underground if both electrical and
telephone utility wiring are located underground. The City shall encourage, to the extent feasible,
that the public utility and franchisee cooperate in opening up trenches and making such trenches and
making such trenches available to all parties with the understanding that the costs of opening and
refilling of such trenches would be shared equally by all users of such trenches. The franchisee shall
at all times comply with the requirements of the Trench Safety Act.
(j) In the event the use of any part of a cable system is discontinued for any reason for a
continuous period of six months, or in the event such system or property has been installed in any
street without complying with the requirements of this article or a franchisee agreement, or the
franchise has been terminated, canceled or expired, the franchisee, within 30 days after written notice
by the City, shall commence removal from the streets of all such property as the City may require.
(k) The City may extend the time for the removal of franchisee equipment and facilities for
a period not to exceed 180 days and thereafter such equipment and facilities may be deemed
abandoned.
(1) In the event of such removal or abandonment, the franchisee shall restore the area to as
good a condition as prior to such removal or abandonment.
Sec. 20.
Renewal of franchise.
Renewal shall be conducted in a manner consistent with Section 626 ofthe Communications
Act, 47 U.S.C. S546. To the extent such additional requirements are consistent with applicable law,
the following requirements shall apply:
(1) Upon completion of the review and evaluation process set forth in Section
626(a)(1)(2) ofthe Communications Act, 47 U.S.C.S546, should that process
be invoked, the City shall notify the franchisee, by certified or registered mail
that it may file a renewal application including a renewal proposal. The
notice shall specify the information to be included in the renewal application
and the deadline for filing the application, which shall be no earlier than 30
calendar days following the date of the notice.
a.
The application shall comply with the requirements of Section 7
hereof and provide the specific information requested in the notice.
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If the franchisee dos not submit a renewal application by the date
specified in the City's notice to the franchisee given pursuant to this
subsection, the franchisee will be deemed not to be seeking renewal
of its franchise.
b. Upon receipt ofthe renewal application, the City shall publish notice
of its receipt and make copies available to the public. The City,
following prior public notice, may hold one or more public hearings
on the renewal application.
(2) In the event a public hearing on the renewal application is held, or in the
event that the City Commission considers the renewal application without a
public hearing, the City Commission will either;
(3)
a. Pass a resolution agreeing to renew the franchise, subject to the
negotiation of a franchise agreement satisfactory to the City and the
franchisee; or
b. Pass a resolution that makes a preliminary assessment that the
franchise should not be renewed.
If a preliminary assessment is made that a franchise should not be renewed,
at the request of the franchisee or on its own initiative, the City will
commence proceeding in accordance with Section 626( c) of the
Communications Act, 47 U.S.C. S546(c) to address the issues set forth in
Section 626(c)(I)(A) - (D) of the Communications Act, 47 U.S.C.
S546(c)(I)(A) - (D). Any denial of a proposal for renewal that has been
submitted in compliance with subsection (b) of S546 shall be based on one
or more adverse findings made with respect to the factors described in
S546(c)(1)(A) - (D), pursuant to the record of proceedings under S546(c).
The City shall not base a denial of renewal on a failure to substantially
comply with the material terms of the franchise under S 546(c)(I)(A) or on
events considered under S 546(c)(1)(B) unless the City has provided the
franchisee with notice and opportunity to cure, in any case in which it is
documented that the City has waived its right to object, or the franchisee
gives written notice of a failure or inability to cure and the City fails to object
within a reasonable time after receipt of such notice.
(4)
Any request to initiate a renewal process or proposal for renewal not
submitted within the time period set forth in Section 626(a) of the
Communications Act, 47 U.S.c. S 546(a), shall be deemed an informal
proposal forrenewal and shall be governed in accordance with Section 626(h)
of the Communications Act, 47 U.S.c. S 546(h). The City may hold one or
more public hearings or implement other procedures under which comments
from the public on an informal proposal for renewal may be received.
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Following such public hearings or other procedures, the City Commission
shall determine whether the franchise should be renewed and the terms and
conditions of any renewal.
(5) If the City Commission grants a renewal application, the City and the
franchisee shall agree on the terms of a franchise agreement, pursuant to the
procedures specified in subsections 7(e)-(h) of this article, before such
renewal becomes effective.
(6) If renewal of a franchise is lawfully denied, the City may acquire ownership
ofthe cable system or effect a transfer of ownership of the system to another
person upon approval of the City Commission. Any such acquisition or
transfer shall be at fair market value, determined on the basis of the cable
system valued as a going concern but with no value allocated to the franchise
itself. The City may not acquire ownership of the system while an appeal of
a denial for renewal is pending in any court pursuant to S 546( e).
Sec. 21.
(7) If renewal of a franchise is lawfully denied and no appeal to a court is
pending, and the City does not purchase the cable system or approve or effect
a transfer of the cable system to another person, the City may require the
former franchisee to remove its facilities and equipment at the former
franchisee's expense. If the former franchisee fails to do so within a
reasonable period oftime, the City may have the removal done at the former
franchisee's and/or surety's expense.
Transfer/sale/assi&nment.
(a) No transfer of a franchise shall occur without prior approval of the City.
(b) An application for a transfer of a franchise shall meet the requirements of Section 7
hereof, and provide complete information on the proposed transaction, including details on the legal,
financial, technical and other qualifications of the transferee, and on the potential impact of the
transfer on subscriber rates and service. Except in the case of pro forma transfer, the application
shall provide, at a minimum, the information required in subsections 7(f)(1) - (f)(5) and (f)(14) with
respect to the proposed transferee. The information required in subsections 7 (f)( 6) - (f)( 13) shall also
be provided whenever the proposed transferee expects material changes to occur in those areas.
(c) An application for approval of a pro forma transfer of a franchise shall be considered
granted on the 61 st calendar day following the filing of such application with the City unless, prior
to that date, the City notifies the franchisee to the contrary. An application for approval of a pro
forma transfer of a franchise shall clearly identify the application as such, describe the proposed
transaction, and explain why the applicant believes the transfer is pro forma. Unless otherwise
requested by the City within 30 calendar days of the filing of an application for a pro forma transfer,
the applicant shall be required only to provide the information required in subsections 7(f)(1), (3)
and (14) with respect to the proposed transferee.
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(d) In making a determination on whether to grant an application for a transfer of a franchise,
the City Commission shall consider the legal, financial, technical and other qualifications of the
transferee to operate the system; whether the incumbent cable operator is in substantial compliance
with the material terms of its franchise agreement and this article and, if not, the proposed
transferee's commitment to cure such noncompliance; and whether operation by the transferee would
adversely affect cable services to subscribers, or otherwise be contrary to the public interest.
(e) No application for a transfer of a franchise shall be granted unless the transferee agrees
in writing that it will abide by and accept all terms of this article and the franchise agreement, and
that it will assume the obligations and liabilities of the previous franchisee under this article and the
franchise agreement.
(f) Approval by the City of a transfer of a franchise does not constitute a waiver or release
of any of the rights of the City under this article or the franchise agreement, whether arising before
or after the date ofthe transfer.
Sec. 22.
Revocation or termination of franchise.
(a) A franchise may be revoked by the City Commission for a franchisee's failure to
construct, operate or maintain the cable system as required by this article or the franchise agreement,
or for any other material violation of this article or material breach of the franchise agreement. To
invoke the provisions of this subsection (a), the City shall give the franchisee written notice, by
certified mail at the last known address, that franchisee is in material violation of this article or in
material breach of the franchise agreement and describing the nature of the alleged violation or
breach with specificity. Ifwithin 30 calendar days following receipt of such written notice from the
City to the franchisee, the franchisee has not cured such violation or breach, or has not commenced
corrective action and such corrective action is not being actively and expeditiously pursued, the City
may give written notice to the franchisee of its intent to revoke the franchise, stating its reasons.
(b) Prior to revoking a franchise under subsection (a) hereof, the City Commission shall hold
a public hearing, upon 30 calendar days notice, at which time the franchisee and the public shall be
given an opportunity to be heard. Following the public hearing, the City Commission may
determine whether to revoke the franchise based on the evidence presented at the hearing and other
evidence of record. Ifthe City Commission determines to revoke a franchise, it shall issue a written
decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to
the franchisee.
(c) Notwithstanding subsections (a) and (b) hereof, any franchise may, at the option ofthe
City following a public hearing before the City Commission, be revoked 120 calendar days after an
assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the
business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the
benefit of creditors, or other action or proceeding, unless within that 120-day period:
(1)
Such assignment, receivership or trusteeship has been vacated; or
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(2) Such assignee, receiver or trustee has fully complied with the terms and
conditions of this article and the franchise agreement and has executed an
agreement, approved by a court having jurisdiction, assuming and agreeing
to be bound by the terms and conditions of this article and the franchise
agreement.
(d) In the event of foreclosure or other judicial sale of any of the facilities, equipment or
property of a franchisee, the City may revoke the franchise, following a public hearing before the
City Commission, by serving notice upon the franchise and the successful bidder at the sale, in
which event the franchise and all rights and privileges of the franchise will be revoked and will
terminate 30 calendar days after serving such notice, unless:
(1) The City has approved the transfer of the franchise to the successful bidder;
and
(2) The successful bidder has covenanted and agreed with the City to assume and
be bound by the terms and conditions of the franchise agreement and this
article.
(e) If the City revokes a franchise, or if for any other reason a franchisee abandons,
terminates or fails to operate or maintain service to its subscribers for a period of six (6) months, the
following procedures and rights are effective:
(1) The City may require the former franchisee to remove its facilities and
equipment at the former franchisee's expense. If the former franchisee fails
to do so within a reasonable period of time, the City may have the removal
done at the former franchisee's and/or surety's expense.
(2) The City, by resolution of the City Commission, may acquire ownership, or
effect a transfer, of the cable system at an equitable price.
(3) If a cable system is abandoned by a franchisee, the City may sell, assign or
transfer all or part of the assets of the system.
(f) Where the City has issued a franchise specifically conditioned in the franchise agreement
upon the completion of construction, system upgrade or other specific obligation by a specified date,
failure of the franchisee to complete such construction or upgrade, will result in the automatic
forfeiture of the franchise without further action by the City where it is so provided in the franchise
agreement, unless the City, at its discretion and for good cause demonstrated by the franchisee,
grants an extension of time.
(g) No franchisee will construct or activate a system upgrade in any community served by
the same system prior to activating the upgrade for all subscribers within the City, without prior
authorization from the City.
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(h) Except as provided in subsection (f), no adverse action against a franchisee may be taken
by the City pursuant to this section except after a noticed public hearing at which the franchisee is
given an opportunity to participate.
Sec. 23.
Continuity of service mandatory.
(a) It is the right of all subscribers to receive all available services requested from the
franchisee as long as their financial and other obligations to the franchisee are satisfied.
(b) In the event of a termination or transfer of a franchise for whatever reason, the franchisee
shall ensure that all subscribers receive continuous, uninterrupted service regardless of the
circumstances. The franchisee shall cooperate with the City to operate the system for a temporary
period following termination or transfer as necessary to maintain continuity of service to all
subscribers. The temporary period will not exceed six (6) months without the franchisee's written
consent. During such period the cable system shall be operated under such terms and conditions as
the City and the franchisee may agree, or such other terms and conditions that will continue, to the
extent possible, the same level of service to subscribers and that will provide reasonable
compensation to the cable operator.
(c) In the event a franchisee fails to operate the system for seven (7) consecutive days without
prior approval of the City or without just cause, the City may, at its option, operate the system or
designate an operator until such time as the franchisee restores service under conditions acceptable
to the City or until a permanent operator is selected. Ifthe City is required to fulfill this obligation
for the franchisee, the franchisee shall reimburse the City for all costs or damages resulting from the
franchisee's failure to perform that are in excess of the revenues from the system received by the
City. Additionally, the franchisee will cooperate with the City to allow City employees and/or City
agents free access to the franchisee's facilities and premises for purposes of continuing system
operation.
Sec. 24.
Rates.
(a) Nothing in this article shall prohibit the City from regulating rates for cable services to
the full extent permitted by law.
(b) Any rate or charge established for cable television service, equipment, repair and
installation shall be reasonable to the public. Upon written request from the City or its agent,
franchisee shall provide all requested data, records and documentation to show the reasonableness
of the rates or to comply with FCC guidelines. Where such information is designated proprietary
and confidential, it shall not be copied or removed or otherwise subject to public inspection, to the
extent the City is permitted to protect information from public inspection under applicable law.
Sec. 25.
Performance evaluation.
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The City will conduct periodic performance evaluations of a franchisee as the City
determines is necessary. A franchisee shall cooperate with these evaluations reasonably and in good
faith. If the City implements a survey of cable subscribers in connection with a performance
evaluation, the City may require a franchisee to distribute the City's questionnaire to its subscribers
at the City's expense. Upon request and upon reimbursement of the City's copying costs, the
franchisee may receive copies of all responses.
Sec. 26.
Administration.
(a) The City Manager, either directly or through a duly appointed designee, shall have the
responsibility for overseeing the day-to-day administration of this article and franchise agreements.
The City Manager shall be empowered to take all administrative actions on behalf of the City, except
for those actions specified in this article that are reserved to the City Commission. The City
Manager may recommend that the City Commission take certain actions with respect to the franchise
The City Manager shall keep the City Commission apprised of developments in cable and provide
the City Commission with assistance, advice and recommendations as appropriate.
(b) Subject to Federal and State law, the City Commission shall have the sole authority to
regulate rates for cable services, grant franchises, authorize the entering into of franchise agreements,
modify franchise agreements, renew or deny renewal of franchise, revoke franchise and authorize
the transfer of a franchise.
Sec. 27.
Force majeure.
In the event a franchisee's performance of or compliance with any of the provisions of this
article or the franchisee's franchise agreement is prevented by a cause or event not within the
franchisee's control, such inability to perform or comply shall be deemed excused and no penalties
or sanctions shall be imposed as a result thereof, provided, however, that franchisee uses all
practicable means to expeditiously cure or correct any such inability to perform or comply. For
purposes ofthis article and any franchisee agreement granted or renewed hereunder, causes or events
not within a franchisee's control shall include, without limitation, acts of God, floods, earthquakes,
landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil
disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court.
Causes or events within franchisee's control, and thus not falling within this section shall include,
without limitation, franchisee's financial inability to perform or comply, economic hardship and
misfeasance, malfeasance or nonfeasance by any of franchisee's directors, officers, employees,
contractors or agents.
Sec. 28.
Applicability.
(a) This article shall be applicable to all cable systems now existing in the City on the date
hereof and to all applicants for cable franchises, to the full extent permitted by Federal and state law.
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(b) Any person shall notify the City in writing within 30 calendar days of the passage ofthis
article, or any subsequent amendment thereof, of:
(1) Any provision which it believes should not be applicable to it.
(2) The reason for each such claim of non-applicability.
(c) Failure to notify the City as provided in subsection (b) of this section shall constitute a
waiver of any right to object.
Sec. 29.
Municipal cable system ownership authorized.
(a) To the full extent permitted by law, the City may acquire, construct, own and/or operate
a cable system.
(b) Nothing in this article shall be construed to limit in any way the ability or authority of the
City to acquire, construct, own and/or operate a cable system to the full extent permitted by law.
Sec. 30.
Violations of article.
(a) Whenever the City finds that a person has allegedly violated any provision of this article,
not otherwise described in Section 16 herein, such person shall have 30 days subsequent to receipt
of notice to correct the violation. If after 30 days, the recipient has failed to correct the alleged
violation, or commence curing to a substantial extent and to the satisfaction of the City, the City
shall determine if the person has committed a violation and shall make written findings of fact. If
a violation is found, the person shall pay to the City $500.00 per day, or any part thereof for each
day each violation occurs or continues. The City reserves the right to withdraw said payments from
the security fund upon three (3) days' written notice to the franchisee. It is the intent of the City to
impose the above discussed fines as a reasonable estimate ofthe damages suffered by the City and/or
its subscribers, whether actual or potential, and may include without limitation, increased costs of
administration and other damages difficult to measure.
(b) The City hereby reserves any and all rights to require that a person remove its equipment
and facilities from the City's public rights-of-way where the City has determined and issued a
written decision finding that the damages suffered by the City or its residents cannot be remedied
by any reasonable means other than by termination or revocation of a person's rights to use the
City's rights-of-way.
Sec. 31.
Enforcement remedies.
(a) In addition to any other remedies available at law or equity or provided herein under
Section 16, the City may apply anyone or combination of the following remedies in the event a
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franchisee violates this article, its franchise agreement, applicable Federal or State law, or applicable
local law or order:
(1) Impose liquidated damages in such amount, whether on a per-diem, per-
incident, or other measure of violation, as provided in the franchise
agreement. Payment ofliquidated damages by the franchisee will not relieve
the franchisee of its obligation to comply with the franchise agreement and
requirements of this article.
(2) Revoke the franchise pursuant to the procedures specified in Section 22
hereof.
(3) In addition to, or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
(b) In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature ofthe violation, the person or persons bearing the impact of the violation,
the nature ofthe remedy required in order to prevent further violations and such other matters as the
City determines are appropriate to the public interest.
(c) Failure of the City to enforce requirements of a franchise agreement or this article shall
not constitute a waiver of the City's right to enforce that violation or subsequent violations ofthe
same type or to seek appropriate enforcement remedies.
(d) In any proceeding wherein there exists an issue with respect to a franchisee's performance
of its obligations pursuant to this article, the franchisee has, throughout any such proceedings and
appeals thereof, the burden of proving that said franchisee is in compliance with the terms of the
article. The City Commission may find a franchisee that does not demonstrate compliance with the
terms and conditions of this article in default an apply anyone or combination of the remedies
otherwise authorized by this article.
Sec. 32.
Reservation of rif!hts.
(a) The City reserves the right to amend this article as it shall find necessary in the lawful
exercise of its police powers.
(b) Any additional regulations adopted by the City shall be incorporated into this article and
complied with by all franchisees within 30 days of the date of adoption of such additional
regulations.
(c) The City reserves the right to exercise the power of eminent domain to acquire the
property of the franchisee's cable system, consistent with applicable Federal and State law.
Notwithstanding anything to the contrary, this section shall not enlarge or restrict the City's exercise
of eminent domain except to the extent provided by applicable law.
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(d) The City shall at all times have the right, upon reasonable notice and during normal
business hours, to examine and copy a franchisee's records and to inspect a franchisee's facilities
to the extent needed to monitor a franchisee's compliance with and performance under this article
and the franchisee's franchise agreement.
Sec. 33.
Repeal of conOictine ordinances.
Section 8AA of the Code of Miami-Dade County as adopted by Section 8.3 of the City
Charter as its own ordinance on the same subject, and all parts or ordinances and all resolutions or
parts of resolutions in conflict herewith, be and the same are hereby repealed to the extent of such
conflict.
Sec. 34.
Severability.
If any section, subsection, clause or provision of this Ordinance is declared invalid or
unconstitutional by a court of competent jurisdiction, the remainder shall not be affected by such
invalidity.
Sec. 34.
Effective date. This Ordinance shall become effective ten days after adoption.
PASSED AND ADOPTED on first reading this 11 th day of March, 1999.
PASSED AND ADOPTED on second reading this J~
,1999.
ATTEST:
~~~U\~~
, , 'chard Bro~-Morilla, City Clerk
Cable Ordinance
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APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
~ JU{)r ~
L . DannheIsser, CIty Attorney
Vote:
5-0
Mayor David Samson
Vice Mayor Irving Turetsky
Commissioner Lila Kauffman
Commissioner Daniel Iglesias
Commissioner Connie Morrow
Cable Ordinance
Moved by:
Seconded by:
(yes) ~
(yes) _
(yes) -;:7
(yes) ~
(yes) &/'
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~~~
c::==: "
(no)_
(no)_
(no )_
(no)_
(no)_