HomeMy WebLinkAboutOrdinance 2018-530 ORDINANCE NO. 2018-577
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, AMENDING CHAPTER
113 (SECTIONS 113-1 THROUGH 113-35) ENTITLED "CABLE
TELEVISION" ORDINANCE; PROVIDING FOR SEVERABILTY
AND REPEALER; PROVIDING FOR CONFLICTS; PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, City of Sunny Isles Beach, Florida ("City") staff periodically reviews City
Ordinances and makes recommendations to the City Commission to revise its Ordinances; and
WHEREAS, the City Commission of the City of Sunny Isles Beach has determined that
the following amendments promote and protect the general health, safety and welfare of the
residents of the City of Sunny Isles Beach by regulating the use of the public rights-of-way.by
cable television providers; and
WHEREAS, Chapter 610, Florida Statutes, addresses the provision of cableand video
service in Florida, and provides: "Notwithstanding any other provision of law, a municipality ...
may require the issuance of a permit in accordance with and subject to s. 337.401 to a certificate
holder that is placing and maintaining facilities in or on a public right-of-way in the municipality
or county. In accordance with s. 337.402, the permit may require the permit holder to be
responsible, at the permit holder's expense, for any damage resulting from the issuance of such
permit and for restoring the public rights-of-way to its original condition before installation of such
facilities. The terms of the permit shall be consistent with construction permits issued to other
providers of communications services placing or maintaining communications facilities in a public
right-of-way;" and
WHEREAS, it is the City Commission's intent to exercise its authority over the placement
and maintenance of communications facilities in its rights-of-way to the full extent consistent with
applicable state and federal law; and
WHEREAS, the City's rights-of-way are essential for the travel of persons and the
. transport of goods throughout the City and are a unique and physically limited resource requiring - -
proper management by the City to ensure public safety, maximize efficiency, minimize costs to
City taxpayers for the foregoing uses, reasonably balance the potential inconvenience to and
negative effects upon the public from the placement and maintenance of cable television facilities
in the rights-of-way_against the substantial benefits that accrue from such placement and
maintenance, and promote the public health, safety and general welfare; and
_ WHEREAS, a duly noticed public hearing as required by law was held by the City
Commission of the City of Sunny Isles Beach, at which public hearing all residents and interested
persons were-given an opportunity to be heard; and -
WHEREAS, the City Commission for the City of Sunny Isles Beach, Florida finds and
declares that this ordinance is in the best interest of the public health, safety and welfare of the
citizens and residents of the City of Sunny Isles Beach, Florida and that it advances a significant
and important governmental interest.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH as follows:
SECTION 1. Recitals Adopted. That each of the above stated recitals is hereby adopted
and confirmed.
SECTION 2. Chapter 113 Amended. The City Commission hereby amends Chapter
113-1 through 113-35 of the Code of Ordinances, City of Sunny Isles Beach, Florida, as follows':
§ 113-1. - Short title.
This chapter shall be known and may be cited as"City of Sunny Isles Beach,Florida,Cable Television
Ordinance."
§ 113-2. - Enactment.
The City of Sunny Isles Beach, Florida, Cable Television Ordinance is hereby amended created to
read as follows.
§ 113-3. - Definitions; word usage.
phrases,words and their derivations shall have the meanings given herein.When not inconsistent with
singular number, and words in the singular number include the plural number. The words "shall" and
Communications Act of 1934, 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.
operator for public, educational and/or local governmental use.
ACTIVATED CHANNEL Those channels engineered at the headend of a cable system for the
whether such services actually are provided,including any channel designated for public,educational,
- ,, " .1-- .
redistribution, it shall be referred to as an "upstr-am channel."
AFFILIATE Any person who owns or controls, is owned or controlled by, or is under common
ownership or control with a franchisee.
1 Words stricken through are intended to be deleted; words underlined are intended to be added.
APPLICANT Any person submitting an application within the meaning of this chapter.
APPLICATION
A. Any proposal, submission or request to:
(1) Operate a cable system within the City;
(2) Construct and install a cable system within the City;
(3)Transfer a franchise or control of the franchisee;
(1) Renew a franchise;
(5) Modify a franchise; or
Communications Act, or other applicable law.
B. An application includes an applicant's inital proposal, submission or request, as well as any and
all subsequent amendments or supplements to the proposal and relevant correspondence.
BASIC CABLE SERVICE or BASIC SERVICE Any service tier which includes the
retransmission of local television broadcast signals, and public, educational, or governmental access
channels.
BUSINESS DAY or WORKING DAY Any Monday through Saturday, 52.weeks per year,except
that such definition shall not include holidays.
CABLE OPERATOR Any person who operates or otherwise controls a cable system within the
Gitt
CABLE SERVICE
A. The one way transmission to subscribers of video or other programming services; and
B. Subscriber interaction, if any,which is required for the selection or use of such video programming
or other services.
CABLE SYSTEM, CABLE TELEVISION SYSTEM or SYSTEM
A. 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
B. Such term does not include:
(1)A facility that serves only to retransmit the television signals of one or more television broadcast
stations;
(2)A facility that serves subscribers without using any public right of way;
(3) A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of
the Communications Act of 1931, 17 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;
(1)An open video system that complies with Section 653 of the Telecommunications Act of 1996; or
(5)Any facilities of any electric utility used solely for operating its electric utility systems.
C. Subject to applicable law, the foregoing definition of "cable system" shall not be deemed to
system or provider of communications services,including but not limited to telephony and open video
systems.
CITY 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.
COMMUNICATIONS ACT The Communications Act of 1934, 47 U.S.C. § 151 et seq., as that
Act has and may hereinafter be amended.
CONTROL OF A FRANCHISEE OR APPLICANT Possession of the ability to direct or cause
the direction of the management or policies of a franchisee or applicant, or the operation of 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.
COUNTY Miami Dade County.
FAIR MARKET VALUE 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.
FCC The Federal Communications Commission, or any successor governmental entity thereto.
FRANCHISE 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 area- : -- • •- --•- .. •- ..- .
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.
FRANCHISE AGREEMENT A contract entered into in accordance with the provisions of this
franchise will be exercised.
FRANCHISEE Any person granted a franchise pursuant to this chapter who has entered into a
franchise agreement with the City.
GROSS REVENUES All revenues recognized in accordance with generally accepted accounting
procedures (GAAP) generated directly or indirectly by the franchisee from any source whatsoever
to provide cable services. Gross revenues include, but are 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
not considered revenue under GAAP); revenue from converter, remote, modem or any other
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
subscriber base of the system (Such percentage will then be multiplied by the system's total
shopping channel or other such revenue is allocable to more than one franchise area due to common
percentage of the City's population divided by the total population for the allocable franchise areas in
uestion; and the sale, exchange or cablecast by the franchisee of any programming developed on or
. . . -- . • . . . . . . .. • . . .. •.b - • .
or other governmental unit and collected by the franchisee on behalf of said governmental unit and
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
the definition of gross revenues used to calculate franchise fee payments to Miami Dade County. At
such time as any revenue items not included herein are incorporated into the gross revenues definition
used by Miami Dade County, such items shall automatically be included in the definition of gross
revenues herein without any further action by the City.
subscribers generally.
INTERCONNECTION The electronic connection of two or more cable systems for the purpose
of sharing access channel programming or other services.
LAW All duly enacted and applicable federal,state,county and City laws,ordinances,codes,rules,
regulations and orders.
LEASED ACCESS CHANNEL A channel designated in accordance with Section 612 of the
. • . .
franchisee.
OVERBUILD A cable system constructed to serve subscribers in an area of the City served by an
existing cable system.
.. .. ..
assignee, transferee or personal representative thereof, but shall not m an the City unless applicable
law so requires.
charge is made by the franchisee.
STATE OF THE ART That level of production facilities, technical performance, capacity,
more modem than generally accepted and used in the cable industry for comparable areas of
franchisee or a parent, subsidiary or affiliate of a franchisee to any other community in the state.
STREET or STREETS The surface,the air space above the surface and the area below the surface
of any public street,highway,road,boulevard,concourse,driveway,freeway,thoroughfare,parkway,
sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way,
construct and operate a cable system.
SUBSCRIBER Any person who lawfully receives cable service delivered over the cable system
with the franchisee's express permission.
SUBSCRIBER BASE The total number of residential and commercial subscribers within the City.
equivalency measures including calculation based on market rate, except as expressly required by
applicable law.
SYSTEM MALFUNCTION 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 units.
TRANSFER OF A FRANCHISE Any transaction in which: s
A. 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;
Of
assigned to another person, group of persons or business entity.
TWO WAY CAPABILITY 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.
VIDEO CHANNEL or CHANNEL A portion of the electromagnetic frequency spectrum which
associated audio signal, as television c'. annel is defined by the FCC by regulation or otherwise.
The following words.terms and phrases.when used in this chapter. shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning,
Words not otherwise defined herein or in any franchise agreement that might be granted
hereunder shall be given the meaning set forth in Section 610.103. Florida Statutes, and if not
defined therein. the Communications Act of 1934. 47 USC 151 et seq.. and the
Telecommunications Act of 1996. and as those statutes may hereinafter be amended (collectively
the "Communications Act"). and. if not defined therein. the common and ordinary meaning.
Certificateholder means a cable or video service provider that has been issued and holds a
certificate of franchise authority from the Florida Department of State.
City means the City of Sunny Isles Beach, Florida. a municipal corporation of the State of
Florida. in its present form or in any later reorganized. consolidated. or enlarged form.
Communications Act means the Communications Act of 1934, 47 USC §151 et seq., as the
Communications Act has and may hereinafter be amended.
Franchise is an authorization granted by the franchise authority which permits the
construction. operation and maintenance of a cable television system within the franchise area
under the terms of this chapter.
Franchise area means that portion of the franchise entity for which a franchise is granted
under the authority of this chapter. The franchise area may or may not be conterminous with the
franchise entity.
Franchise authority means the governing body of the franchise entity.
Franchise entity means the City of Sunny Isles Beach. a Florida municipal corporation. as
presently constituted and including any area henceforth added thereto during the terms of any
franchise granted under this chapter.
Grantee means a holder of a cable television franchise issued by the franchise entity.
Public Rights-of-Way means public rights-of-way as defined in Chapter 129, Article III,
Section 129-64. of the City Code. as it may be amended.
113-4. - Intent and purposes. Franchise to operate necessary.
A. It is the intent of the City and the purpose of this chapter 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
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
policy of the City to encourage competition, experimentation and innovation in the development
community to the extent consistent with applicable laws.
While Chapter 610. Florida Statutes. is in effect. it is the intent of the City that Chapter 610
shall govern the issuance of franchises for cable and video services within the City. The City
reserves the right to require a franchise granted by the City in the event the authority to obtain a
certificate of franchise authority from the Florida Department of State. pursuant to Florida Statute
ch. 610. pt. I (F.S. § 610.102 et seq.) is repealed. overturned by a court of competent jurisdiction
or preempted by federal law. including the Communications Act. A cable or video service
provider that has been issued and holds a certificate of franchise authority from the Florida
Department of State may place and maintain a cable system in the City of Sunny Isles Beach public
rights-of-way, subject to an effective City registration and City permit as required by the City
Code.
§ 113 5. Grant of authority; franchise required. Limitations of grantee and certificateholder.
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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 chapter.
C. Unless otherwise authorized by law, any franchise granted pursuant to this chapter is solely for the
provision of cable service and shall not be construed to authorize the provision of telephone,noncable,
video or other telecommunications service. However, any person including but not limited to a
franchisee shall, unless otherwise prohibited by applicable law, submit a- . :: ' . - •
the privilege of providing other telecommunications services including, but not limited to telephone
service and/or noncable video programming services.
A. A certificateholder shall. at all times. be subject to the lawful exercise of the City's police power
and such reasonable regulations as the City franchise authority may subsequently promulgate
thereunder.
B. Subject to applicable law. except as may be specifically provided in this chapter or under the
terms of an 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 chapter.
applicable law. or a franchise agreement shall not be deemed to constitute a waiver of such right
or a waiver of compliance or performance
C. Nothing in this chapter shall be deemed to in any way impair or affect the right of the City to
acquire the property of the grantee or certificateholder. either by purchase or through the exercise
of the right of eminent domain and nothing in this chapter shall be construed to constitute a waiver
or bar to the exercise of any governmental right or power of the City.
§ 113-6. - Franchise characteristics. Use of Public Rights-of-Way.
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
conduit,or any other equipment or facilities upon,private property without owner consent(except for
owners.
B. A franchise is nonexclusive, and will not expressly or implicitly preclude the issuance of other
C. The City reserves the right to reasonably designate where a franchisee's facilities are to be placed
within the streets.
without the prior consent of the City and unless application is made by the franchisee and City
approval obtained pursuant to this chapter and applicable federal law.
E. A franchise granted to an applicant pursuant to an application submitted pursuant to this chapter 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
chapter and the franchise.Aii 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.
A certificateholder shall, at all times. comply with the City Code, including the City of Sunny Isles
Beach Communications Rights-of-Way Ordinance, Chapter 129. Article III. of the City of Sunny
Isles Beach Code of Ordinances. as it may be amended.
§ 113-7. -Compliance with applicable laws required. Government Channels and Facilities.
with all applicable federal, state,county and local laws, rules and regulations,and shall at all times be
subject to all lawful exercise of the police power of the City.
. . .. • .- - . - . -- • . •- -• . - -- - --
more occasions, to exercise a right or to require compliance or performance under this chapter, 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.
(A) A certificate holder, not later than 180 days following a request by the City. shall
designate a sufficient amount of capacity on its network to allow the provision of public,
educational, and governmental access channels for noncommercial programming as set forth in
Section 610.109. Florida Statutes.
(b) A certificate holder shall designate a sufficient amount of capacity on its network
to allow the provision of the same number of public,educational,and governmental
access channels or their functional equivalent that the City had activated under the
incumbent cable or video service provider's franchise agreement as of July 1. 2007.
For the purposes of this section. a public, educational, or governmental channel is
deemed activated if the channel is being used for public. educational• or
governmental programming within the City: The City may request additional
channels or their functional equivalent permitted under the incumbent cable or
video service provider's franchise agreement as of July 1. 2007. Within 6 months
after a request of the City for an additional channel or its functional equivalent. a
public access channel or capacity equivalent may be furnished after a polling of all
subscribers of the cable or video service in their service area. The usage of one
public access channel or capacity equivalent shall be determined by a majority of
all the provider's subscribers in the jurisdiction. The video or cable service
subscribers must be provided with clear. plain language informing them that public
access is unfiltered programming and may contain adult content.
If the City did not have public. educational. or governmental access channels
activated under the incumbent cable or video service provider's franchise
agreement as of July 1. 2007. within 6 months after a request by the City within
whose jurisdiction a certificate holder is providing cable or video service.. the
certificate holder shall furnish up to two (2) public, educational, or governmental
channels or their functional equivalent. The usage of the channels or their functional
equivalent shall be determined by a majority of all the video service provider's
subscribers in the jurisdiction in order of preference of all video service subscribers.
Cable or video service subscribers must be provided with clear. plain lanauaae
informing them that public access is unfiltered programming and contains adult
content.
(d) If the City has not used the number of access channels or their functional equivalent
permitted by subsection (c). access to the additional channels or their functional
equivalent allowed in subsection (c) shall be provided upon 6 months' written
notice.
�) A public, educational, or governmental access channel authorized by this section is
deemed activated and substantially used if the channel is being used for public.
educational, or governmental access programming within the City for at least ten
(10) hours per day on average. of which at least five (5) hours must be nonrepeat
programming and as measured on a quarterly basis. Static information screens or
bulletin-board programming shall not count toward this 10-hour requirement. If
the applicable access channel does not meet this utilization criterion. the video
service provider shall notify the applicable access provider in writing of this failure.
If the access provider fails to meet this utilization criterion in the subsequent
quarter. the cable or video service provider may reprogram the channel at its
discretion. The cable or video service provider shall work in good faith with the
access provider to attempt to provide future carriage of the applicable access
channel within the limits of this section if the access provider can make reasonable
assurances that its future programming will meet the utilization criteria set out in
this subsection.
(f) A cable or video service provider may locate any public. educational. or
governmental access channel on its lowest digital tier of service offered to the
provider's subscribers. A cable or video service provider must notify its customers
and the City at least 120 days prior to relocating the applicable educational or
governmental access channel.
(g) The operation of any public. educational, or governmental access channel or its
functional equivalent provided under this section shall be the responsibility of the
City receiving the benefit of such channel or its functional equivalent. and a
certificate holder bears only the responsibility for the transmission of such channel
content. A certificate holder shall be responsible for the cost of providing the
connectivity to one (1) origination point for each public, educational. or
governmental access channel up to 200 feet from the certificate holder's activated
video service distribution plant.
(h) The City shall ensure that all transmissions. content, or programming to be
transmitted over a channel or facility by a certificate holder are provided or
submitted to the cable or video service provider in a manner or form that is capable
of being accepted and transmitted by a provider without any requirement for
additional alteration or change in the content by the provider. over the particular
network of the cable or video service provider. which is compatible with the
technology or protocol used by the cable or video service provider to deliver
services. To the extent that a public, educational, or governmental channel content
provider has authority.the delivery of public. educational. or governmental content
to a certificate holder constitutes authorization for the certificate holder to carry
such content. including, at the provider's option. authorization to carry the content
beyond the jurisdictional boundaries of the City.
fj) Where technically feasible. a certificate holder and an incumbent cable service
provider shall use reasonable efforts to interconnect their networks for the purpose
of providing public, educational, and governmental programming. Interconnection
may be accomplished by direct cable, microwave link, satellite. or other reasonable
method of connection. Certificate holders and incumbent cable service providers
shall negotiate in good faith. and incumbent cable service providers may not
withhold interconnection of public. educational. and governmental channels. The
requesting party shall bear the cost of such interconnection.
(1) A certificate holder is not required to interconnect for. or otherwise to transmit.
public, educational, and governmental content that is branded with the logo. name.
or other identifying marks of another cable or video service provider. and the City
may require a cable or video service provider to remove its logo, name, or other
identifying marks from public. educational. and governmental content that is to be
made available to another provider. This subsection does not apply to the logo.
name, or other identifying marks of the public, educational. or governmental
programmer or producer.
(k) A court of competent jurisdiction within Miami-Dade County. Florida. shall have
exclusive jurisdiction to enforce any requirement under this section 113-7.
§ 113-8. -Interpretation of franchise terms;conflicts. Service to Schools. Libraries and Government
Buildings.
franchise agreement,and the express terms of this chapter will prevail over conflicting or inconsistent
waive a requirement of this chapter.
B. Except as-to matters which are governed by fedefal-law or regulatie. , . .
C. If any part, section, subsection or other portion of this chapter 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.
Upon a request by the City. a certificate holder shall provide. within 90 days after receipt
of the request. one active basic cable or video service outlet to K-12 public schools. public
libraries, or local government administrative buildings. to the extent such buildings are
located within 200 feet of the certificate holder's activated video distribution plant. At the
request of the City. the certificate holder shall extend its distribution plant to serve such
buildings located more than 200 feet from the certificate holder's activated video
distribution plant. In such circumstances.the governmental entity owning or occupying the
building is responsible for the time and material costs incurred in extending the certificate
holder's activated video distribution plant to within 200 feet adjacent to the building. The
cable or video services provided under this section shall not be available in an area viewed
by the general public and may not be used for any commercial purpose.
§ 113-9. - Applications for grant, renewal,modification or transfer of franchise. Reserved.
A. A written application shall be filed with the City for:
(1) Grant of new franchise;
516;
(3)Modification of a franchise agreement;
(1)Transfer of a franchise; or
(5)Any other relief from the City pursuant to this chapter 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 nonrefundable application filing fee in the amount as set
forth in Subsection J(1)(a) of this section, conform to any application forms, applicable requests for
proposals, and contain all r-asonably 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 m-uning of Section
addresses of persons authorized to act on behalf of the applicant with respect to the application. 1 II
All applications accepted for filing shall be made available by the City for public inspection:
.
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
nonresponsive and denied on that basis.
F. An application for the grant of an initial franchise shall contain, at minimum, the following
infematieni
(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 5%or more ownership interest in the applicant,
has been adjudged bankrupt, had a cable franchise or license revoked, or been found by any court or
any crime involving moral turpitude,and,if so,identification of any such person and a full explanation
of the circumstances;
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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;
(1) A statement prepared by a certified public accountant or duly authorized financial officer of the
operation, and identification of communities in which the applicant or any person controlling the
or license or any interest therein;
(6)A description of any and all pending federal and state litigation,whether judicial or administrative,
television service to which the applicant is currently a party;
(8) A description of the physical facilities proposed, including channel capacity, performance
characteristics, headend, and access facilities; upon request, the applicant shall make available for
inspection, information on technical design;
of plant mileage and its location,the proposed construction schedule,a description,where appropriate,
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 SMATV system within the City, a list of all such locations;
(12) For informational purposes, the proposed rate structure, including projected charges for each
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;
(11) 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 noncable 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 years of the franchise term,including a statement
explained in notes or supporting schedules;
operator,or SMATV,the identification 18)Any other information as may be r-asonably necessary to
demonstrate compliance with the requirements of this chapter and information that the City may
(19)An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy
and certifying that the proposal meets all federal and state law requirements.
••- . .. • . - .. . . . . - _ ------ . •- ..-, at minimum,the following
information:
(2)The justification for the requested modification,including the impact of the requested modification
disapproved;
(3) A statement whether the modification is sought pursuant to Section 625 of the Communications
• I ^. - . ... --::• .. ...
set forth in 17 U.S.C. § 545;
(1) 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
of the 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§ 113 22 hereof.
Subsections D and J of this section and § 113 23 hereof.
J. Filing fee.
(1) To be acceptable for filing, an application shall be accompanied by a nonrefundable filing fee in
the following amount, as appropriate:
(a)For a new or initial franchise: $7,500.
(b) For renewal of a franchise: $5,000.
(c)For a transfer of a franchise (other than a pro forma transfer): $2,500.
(d)For a pro forma transfer of a franchise: $1,000.
-- -. - ..• . •.• . . • .. . .•reement pursuant to 17 U.S.C. § 515: $2,500.
(0 For any other relief: $1,000.
- .. .. - . - - . fee is to defray a portion of the City's cost in processing an application.
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.
§ 113-10. -Grant of franchise. Reserved.
A. Evaluation.
(1) In evaluating an application for a franchise, the City shall consider among other things the
following factors:
(a)The economic impact upon private property within the franchise area;
(c)The capacity of public rights of way to accommodate the cable system;
(e)The potential disruption to existing users of the public rights of way to be used by the cable system
and the resulting inconvenience which may occur to the public;
(f)The legal, technical and financial ability of the franchise applicant to perform;
. . - --- - - -
(h) Such other additional matters, both procedural and substantive, as the City may in its sole
discretion determine to be rele\ant, including but not limited to the extent to which the proposal of
the public interest.
(2) Evaluation by the City shall not be based on the content of the programming the applicant
proposed to provide.
B. The City may grant a franchise for a period not to exceed 15 years.
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 10 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 haring,
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.
by any and all bonds,certificates of insurance or other obligations as required in a franchise agreement
within 15 calendar days from the date of the City resolution approving the franchise agreement. This
franchise grant will be null and void without further action by the City. The City may, at its option,
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
fees, less the amount of the filing fee set pursuant to § 113 9 up to an amount not to exceed $50,000.
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 of the amount of any processing fee and
its method of calculation. If the processing fee is not paid to the City within 60 calendar days of the
date of the City Commission resolution approving or denying the franchise agreement, any approval
granted by such resolution will be nuii 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
.-- - • . D -
fee imposed in a franchise agreement and shall not be passed through to subscribers.
§ 113-11. - Insurance; surety; indemnification. Reserved.
A. A franchisee shall maintain, and by its acceptance of the franchise, specifically agrees that it will
maintain, throughout the entire term of the franchise, including any renewals thereof, the followin
workers' 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
(1) $500,000 for property damage in any one accident;
(2) $500,000 for personal bodily injury to any one person; and
(3) $1,000,000 for personal bodily injury in any one accident.
E. • - - - - - - -
sureties with a minimum rating of A 1 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
D. All insurance policies shall name the City as additional insured and shall further provide that any
has been given to the City. A franchisee shall not cancel any required insurance policy without
submission of proof that the franchisee has obtained alternative insurance satisfactory to the City
which complies with this chapter.
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 of
franchisee's business in the City, regardless of whether the act or omission complained of is
authorized, allowed or prohibited by this chapter or a franchise agreement; provided, however, that
gross negligence of the City, its officials,beardsTeox i •. . . , .vents,or employees.
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, 17 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 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.
§ 113-12. - Security fund; corporate guarantee. Reserved.
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
franchise agreement,and other applicable law,and compliance with all orders, permits and directions
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
franchisee to comply with this chapter and the franchise agreement, and to enable the City to
to be followed with respect to the security fund or corporate guarantee.
•.• .. . . • . - .. ..•-: . - - . . :-
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
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
by the franchisee or limit the liability of the franchisee under the terms of its franchise for damages,
either to the full amount of the bond or otherwise.
credit are in addition to all other rights of the City, whether reserved by this chapter or authorized by
other law or the franchise agreement, and no action, proceeding or exercise of a right with respect to
§ 113-13. -Construction bond. Reserved.
or other significant work in the streets, a franchisee shall establish in the • ' . .
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.
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 er cast of removal or
abandonment of any property of the franchisee, or the cost of completing or repairing the system
against the security fund pursuant to § 113 12 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,
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 1 in Best's Key
- z -- • . •
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
agreement, or at law or equity.
§ 113-14. - Minimum facilities and services. Reserved.
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 r-asonable to meet the City's future cable related needs and interests or to
rebuild, upgrade or reconstruction after the effective date of this chapter 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.
(2)The City may require in a franchise agreement that a franchisee provide access channels, facilities
(3)At the City's request, a franchisee shall provide cablecasting of City Commission meetings live to
all subscribers located within the City.
(1) A cable system shall provide 1-ased access channels as required by federal law.
technically feasible, at least one additional outlet equipped for on line ac - . • ..• - - .
schools involved, and shall charge no more than its time and materia : . .._ . - ' -
outlets to such facilities.
(6)A franchise shall,upon request,provide all facilities,equipment,cabling,personnel and such other
Government Center. Such support may be allocated among all franchisees granted a franchise within
36 months of the effective date hereof on a pro rata basis.
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
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.
§ 113-15. -Technical standards. Reserved.
A. Any cable system within the City shall at minimum meet the to -.- ... . . - -
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
used in the system shall be designed to comply with all generally accepted industry practices and
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
written request,the proof of performance test results to the City within 30 days after completion.The
City shall have the right to inspect the cable system facilities during and afte - . .
D. The City may require any other tests as specified in a franchise agreeme- • .. • . . •
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.
test required in Subsections C and D above is scheduled so that the City may have an observer present.
signals of any broadcast station, the facilities of any public utility, the cable system of another
G. In any franchise granted pursuant to this chapter, the City may require a franchisee to agree to
maintain that level of technology to satisfy the state of the art as defined in § 113 3 herein.
accordance with§§ 113 11, 113 15 and 113 16,as well as such other benefits and services as provided
in a franchise agreement.
§ 113-16. - ' .. , . . . . - . - .... . Reserved.
facilities, equipment and support sufficient to meet the community's needs and interests with respect
to public, education and government activities.
B.A franchisee shall provide,at the request of the City,cable television services including installation
C. A franchisee shall provide, at the request of the City and as designated in the franchise agreement,
D. During the term of a 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
include a proposal to provide suc-h-suppert:
• •
meetings to all subscribers within the City.
agreement for the exclusive use of the City.
G.A franchisee may provide for a financial grant in lieu of or in addition to some or all of the facilities,
equipment and services referenced in this § 113 16.
' - - --
franchise to be incurred by franchisee for public, educational, or government access facilities within
.
not constitute a franchise fee or tax within the meaning of the Cable Act, state law,chapter of the City
Code, or a franchise agreement and that the franchisee shall waive, and will not assert in any
§ 113-17. - Franchise fee. Reserved.
A. A franchisee, as compensation for the privilege of the use of the 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:
-• - - . . . - - . .. -- - . - .. -
County; or
an agreement with respect to a fee increase with the City no later than it concludes an agreement with
Miami Dade County.
B. The franchisee's payment of the franchise fee to the City shall be reduced only by that amount the
franchisee is expressly required to pay to Miami 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 of the 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 of the method of computation. The statement
shall be certified by a certified public accountant or the franchisee's chief financial or other duly
authorized officer. The franchisee will bear the cost of the preparation of such financial statements.
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.
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 shall make all books and records necessary to satisfactorily perform the audit readily
available to the auditors in Miami 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 Miami
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%annually of
the amount of the unpaid or underpaid franchise fee payment; provided, however, that such rate does
- . •-- - . •- . - . .. . . . :-r 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
a
from the franchise fee imposed by this chapter or any franchise agreement.
I. When a franchise terminates for whatever reason, the franchisee shall file - - • .• •!
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.
§ 113-18. -Customer service requirements. Reserved.
• . •. . . .. - . . .. - --- . - . - . - . .. . .... . --- - - . .. .
in accordance with standards generally observed by the cable television industry. Sufficient
employees shall be retained to provide safe, adequate and prompt service : . . ' - .
facilities.
within five miles from the City limits to whichsubscribers may telephone without incurring added
.. •• . : !
Monday through Friday, and some weekend and evening hours.
C. The franchisee shall maintain a listed local, tollfree telephone number and employ a sufficient
number of telephone lines, personnel and answering equipment or service to allow reasonable access
by subscribers and members of the 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 ail customer service and repair telephone calls made under normal
transfer the call. Customers shall receive a busy signal less than 3%of the time. These standards shall
be met no less than 90%of the time under normal operating conditions, measured on quarterly basis.
evening and weekend hours;to schedule service installations,undertake normal repairs,initiate action
respond to service calls 21 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 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
subscriber will be telephoned by an employee of the franchisee the same day. Evening personnel shall
. . . . - . - . -- - - - --- -. - .'l .. . ::.! .. . -- .
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 18 hours after the problem becomes known. All service interruptions and service
problems within the control of the franchisee shall be corrected within 72 hours after receipt of a
complaint
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."
(5)And,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.
(6)Individual subscribers who have experienced a missed installation or service appointments due to
individual subscriber shall not in any manner mitigate any fine that may be imposed by the City
pursuant to Subsection S herein.
G. Disconnection.
(1)Voluntary disconnection.
system. No period of notice prior to-voluntary termination of service may be required of subscribers
by any franchisee.
(b) A subscriber may be asked, but not required, to disconnect the franchisee's equipment and return
it to the business office.
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; howe , . - .• . . - .
be effected until 35 days after the due date of the monthly subscriber fee or other charge, and 10 days'
not disconnect. After disconnection, upon payment by the subscriber in full of all proper fees or
reinstate service.
(3) Nothing in this chapter shall be construed to prevent the franchisee from removing its property
from a subscriber's premises upon the termination of service • -- - .
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
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.
- , ;
• Notice to multiple dwelling units may be provided to the property manager in lieu of to each
individual unit owner.
J. The franchisee shall cause all its field employees to wear a picture identification badge-indi ating
their employment by franchisee. This badge shall be cle. •. - . - .• . • .
equipment malfunction, which procedures shall be subject to the review and approval by the City
in consultation with the franchisee as appropriate, attempt to resolve the matter. A franchisee's good
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
the City.
L. To the extent reasonably required to monitor enforcement of this chapter or a franchise agreement,
- - A : - •- - - --
reason for requiring an inspection during said hours.
customers, bills and refunds:
,
(a)How to use the cable service;
(b)Installation and service policies;
(c) The products and services offered;
(d) Prices and service options;
(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 inquiries;
(h)The availability of a "lockout" device;
(i)The franchisee's information,collection, and disclosure policies for the protection of a subscriber's
privacy.
two advertisements no smaller than 1/4 page in the newspaper with the largest general circulation in
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 billin:
by franchisee or 15 days prior to the date that such advertising shall appear. Said notices shall be made
pursuant to this chapter and shall not be regarded as a franchise fee, as the term is defined in Section
(3) The franchisee's bills will be clear, concise and understandable.
(4) Refund checks will be issued promptly, but no later than the earlier of 30 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.
determination that a credit is warranted.
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 prorated twenty four hour credit to the subscriber's account for any
period of four hours or more within a twenty four 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:
as appropriate and shall reflect any security deposit.
♦ -
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
franchisee's office or at such other locations within the City and inform the subscriber of the address
of that office.
re tiering, restructuring a tier or otherwise)without the express permission of such subscriber, unless
it complies with this subsection.
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
right within the thirty 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.
. _ .. . . - -• - - - -•- •- . • _ -- City en J3. 1 and July 1 of each
it is in substantial compliance with the standards set forth in this § 113 18. At the request of the City,
the franchisee shall submit such documentation, as may be required, to demonstrate the franchisee's
R. Responsibility for the administration of this chapter 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
public. In cases where requests for service have been ignored or in cases where the service provided
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
• .-
whether instituted by the City Manager or by the City Commission shall be contrary to the provisions
of this chapter or any franchise agreement issued pursuant to this chapter and neither the City Manager
the right or authority to add to, modify or delete any provision of this chapter or of the franchise.
S. Fines.
-. ,, - --
authority to assess fines against a franchisee for any violation of this chapter or any franchise issued
pursuant to this chapter,which fines will be paid to the City.
below. Unless otherwise indicated, the fines listed are to be assessed on a per violation basis with
ach day of a continuing violation constituting a separate violation.
Schedule of Fines
Single Violation of: Maximum Fines
Subsection A hereof $100
Subsection B hereof $100
Subsection C hereof $100
Subsection D hereof $1,000 per quarter
Subsection E hereof $100
Subsection F hereof $100
Subsection G hereof $100
Subsection H hereof $100
Subsection J hereof $4-00
Subsection K hereof $100
Subsection L hereof $4-00
Subsection M(1)(a)to (i)hereof with bill cycle $100 per month billing
Subsection M(2)hereof $100
Subsection M(3)to (6)hereof $100
Subsection N hereof $180
Subsection 0 hereof $100
Subsection P hereof $-149-0
Subsection Q hereof $100
(3) 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,
by the franchisee to the party to the bull( agreement, rather than to individual subscribers. Refunds
company to each individual subscriber.
(1) Prior to ordering a refund and/or assessing a fine, the City Manager shall mail the franchisee
file a written response to the City Manager'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.
(5)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
r. .. „
response of the franchisee, waive or reduce any proposed refund or.
(6) 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 of the 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 damage . - - - • ..-
subscribers,
.subscribers, whether actual or potential, and may include without limitation, increased costs of
administration and other damages difficult to measure.
within 30 days of notice of the decision to the franchisee.
in the amount of$50 for the first violation and $100 for each subsequent violation.
(9)Intentional misrepresentation by a franchisee in any response to a notice of proposed refund and/or
fine shall be grounds for re . •. - .. .
T. In addition to complying with the customer service standards set forth in this chapter or in any
franchise issued pursuant to this chapter,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 franchise renewal,
modification or consent to a transfer.
§ 113-19. - Subscriber privacy. Reserved.
•
. -- . . •. • , • _._. . - . . . - .
§ 113 20. Discrimination prohibited. Reserved.
A. A franchisee may not in its rates or charges, or in the availability of the services or facilities of its
system, or in any other respect, make or grant undue preferences or advantages to any subscriber,
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
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. 2 11
residents of the area in which the subscriber resides.
C. A franchisee shall not refuse to employ, nor shall it 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.
§ 113-21. -Use of streets. Reserved.
A. Any pavements, side\Aalks, 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
.. - . - - .. . = the least inconvenience to the inhabitants of the City. A
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,
or his designee.
B.Except to the extent required by law,a franchisee shall,at its expense,protect,support,temporarily
disconnect, relocate, or remove, any of its property when required by the City by reason of traffic
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
changes.
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.
or overh-ad utility facilities whenever feasible. Copies of a ------ . - - . . -• -- • - -
party for use of conduits or other facilities shall be filed with the City, provided that the franchisee
to financial arrangements between the parties.
F. All wires, cable lines and other transmission lines, equipment and structures shall be installed and
G. All safety practices required by law shall be used during construction, maintenance and repair of
with any gas, electric, telephone, water, sewer or other utility facilities, or obstruct or hinder in any
public right of way.
H. A franchisee shall, at all times:
Building or Electrical Safety Code, and in such manner that they will not interfere with any
installations of the City.
(2) Keep and maintain in a safe, suitable, substantial condition; and in good order and repair; all
and public ways or places of the City, wherever situated or located.
L
On streets where electrical or telephone utility wiring is located undergfend, franchisee's cable shall
also be located underground at the franchisee's expense. Between a stree . -_ . . _ ' _ -
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 f-asible, that the public utility and
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
J. In the event the use of any part of a cable syste ' _ .. . - ...
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 chapter or a franchisee agreement, or the franchise has been
terminated; canceled or expired, the franchisee, within 30 days after written not' _ - •
commence removal from the streets of all such property as the City may require.
not to exceed 180 days and thereafter such equipment and facilities may be deemed abandoned.
condition as prior to such removal or abandonment.
§ 113-22. - Renewal of franchise. Reserved.
following requirements shall apply:
. A _ - --
proposal. The notice shall specify the information to be included in the renewal application and the
of the notice.
. .. ' - - . .' -- - • - _ . . •_ --
information requested in the notice. If the franchisee dos not submit a renewal application by the date
(2)Upon receipt of the 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.
tither:
- - - -
(2)Pass a resolution that makes a preliminary assessment that the franchise should not be renewed.
franchisee or on its own initiative, the City will commence proceeding in accordance with Section
--- • . - I . _ ..
A . .• • • . • •
denial of a proposal for renewal that has been submitted in compliance with Subsection(b)of§ 516
shall be based on one or more adverse findings made with respect to the factors described in §
516(c)(1)(A) through (D), pursuant to the record of proceedings under § 546(c). The City shall not
• - a : -
franchisee with notice and opportunity to cure, in any case in which it is documented that the City has
City fails to object within a reasonable time after receipt of such notice.
an informal proposal for renewal and shall be governed in accordance with Section 626(h) of the
• a . . - a ; - . - • - •. . . . - - - ' - .. .
implement other procedures under which comments from the public on an informal proposal for
renewal may be received. 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.
E. 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 § 113 9E through H of this
chapter, before such renewal becomes effective.
F. If renewal of a franchise is lawfully denied,the City may acquire ownership of the cable system or
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
pursuant to § 516(e).
G. If renewal of a franchise is lawfully denied and no appeal to a court is pending, and the City does
the City may require the former franchisee to remove its facilities and equipment at the former
City may have the removal done at the former franchisee's and/or surety's expense.
§ 113-23. -Transfer; sale; assignment. Reserved.
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 § 113 9 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
.. . . -
•
proposed transferee. The information required in § 113 9F(6) through (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 61st calendar day following the filing of such application with the City unless, prior to that date,
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 § 113 9F(1), (3) and (11) with respect to the proposed
transferee.
Commission shall consider the legal, financial; technical and other qualifications of the transferee to
material terms of its franchise agreement and this chapter and, if not, the proposed transferee's
affect cable services to subscribers, or otherwise be contrary to the public interest.
that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will
agreement.
F. Approval by the City of a transfer of a franchise does not constitute a waiver or release of of
date of the transfer.
§ 113-24. -Revocation or termination of franchise. Reserved.
• . • .. . - . . . . - - . . . .• . - - - - .
or maintain the cable system as required by this chapter or the franchise agreement, or for any other
material violation of this chapter 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 chapter or in material breach of
the franchise agreement and describing the nature of the alleged violation or breach with specificity.
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
B. Prior to revoking a franchise under Subsection A hereof, the City Commission shall hold a public
h-aring, 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.
If the 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 of the City
following a public hearing before the City Commission, be revoked 129 calendar days after an
benefit of creditors, or other action or proceeding, unless within that one hundred twenty day period:
(1) Such assignment, receivership or trusteeship has been vacated; or
(2) Such assignee, receiver or trustee has fully complied with the terms and conditions-of this chapter
and the franchise agreement and has executed an agreement, approved by-a-court having jurisdiction,
assuming and agreeing to be bound bythe terms and conditions of this chapter and the franchise
agreement.
D. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a
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-he-hound-by-the
terms and conditions of the franchise agreement and this chapter.
E. If the-City revokes a franchise, or if for any other reason a franchisee abandons,terminates or fails
and rights are effective:
(1) The City may require the former franchisee to remove its facilities and equipment at the former
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.
completion of construction, system upgrade or other specific obligation by a specified date, failure of
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.
system prior to activating the upgrade for all subscribers within the City, without prior authorization
from the City.
City pursuant to this section except after a noticed public hearing at which the franchisee is given an
opportunity to participate.
§ 113-25. -Continuity of service mandatory. Reserved.
A. It is the right of all subscribers to receive all available services requested from the franchisee-as
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
cable system shall be operated under such terms and conditions as the City and the franchisee niay
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 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
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.
free access to the franchisee's facilities and premises for purposes of continuing system operation.
§ 113-26. - Rates. Reserved.
A. Nothing in this chapter 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
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.
§ 113-27. - Performance evaluation. Reserved.
The City will conduct periodic performance evaluations of a franchisee as the City determines is
may require a franchisee to distribute the City's questionnaire to its subscribers at the City's expense.
of all responses.
§ 113-28. - Administration. Reserved.
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 chapter and franchise agreements.
The City Manager shall be empowered to take all administrative actions on behalf of the City,except
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.
§ 113-29. - Force majeure. Reserved.
In the event a franchisee's performance of or compliance with any of the provisions of this chapter or
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 of this chapter
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, -arthquakes, 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, maif asance or nonfeasance by
any of franchisee's directors, officers, employees, contractors or agents.
§ 113-30. Applicability. Reserved.
• . .. - . .. ' .. - . . . : - 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.
B. Any person shall notify the City in writing within 30 calendar days of the passage of this chapter,
or any subsequent amendment thereof, of:
(1)Any provision which it believes should not be applicable to it.
(2) The r-ason for each such claim of nonapplicability.
any right to object.
§ 113-31. - . . .. . . . --• . . . . .. . ' . Reserved.
A,
system.
Nothing in this chapter 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.
§ 113-32. - Penalties for offenses. Reserved.
- - - '' , .- - •
to correct the violation. If after 30 days, the recipient has failed to correct the alleged violation, or
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 a civil penalty as set forth below or, if not covered by said schedule,
•-- .^el . .. . .. .. .. . . - - • . - •- . -
reserves the right to withdraw said payments from the security fund upon three days'written notice to
include without limitation, increased costs of administration and other damages difficult to measure.
Civil Penalties
-- Penalty
Failure to obtain a telecommunications license $5,000
Failure to comply with-record and reporting requirements $598
Failure to obtain approval to transfer a license $27590
Failure to comply with construction and safety requirements $500
Failure to bury distribution system $100
Failure to maintain insurance $500
Failure to maintain faithful performance bond or letter of credit $500
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
of way.
§ 113-33. - Enforcement remedies. Reserved.
A. In addition to any other remedies available at law or equity or provided herein under§ 113 18,the
City may apply any one or combination of the following remedies in the e - . . -
this chapter, 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 m asure
of violation,as provided in the franchise agreement.Payment of liquidated damages by the franchisee
will not relieve the franchisee of its obligation to comply with the franchise agreement and
requirements of this chapter.
(2) Revoke the franchise pursuant to the procedures specified in § 113 24 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 of the violation,the person or persons b ring the impact of the violation,the nature of the
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 chapter shall not
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 chapter,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
authorized by this chapter.
§ 113-34. - Reservation of rights. Reserved.
its police powers.
B. Any additional regulations adopted by the City.shall be incorporated into this chapter and complied
with by all franchisees within 30 days of the date of adoption of such additional regulations.
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.
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 chapter and the franchisee's
franchise agreement.
§ 113-35. -Repeal of County Code provisions. Reserved.
Section 8AA of the Code of Miami Dade County, as adopted by § C 8.3 of the City Charter, has its
own ordinance on the same subject, and all parts or ordinances and all resolutions or parts of
of the ar-a 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;
f
SECTION 3. Repeal of Laws in Conflict. All local laws, resolutions, and/or ordinances
in conflict with any provision of this ordinance are hereby repealed to the extent of any conflict.
SECTION 4. Severability. If any provision of this ordinance or the application thereof to
any person or circumstance is held invalid, the invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or application,
and to this end the provisions of this ordinance are declared severable.
SECTION 5. Inclusion in Code. It is the intention of the City Commission that the
provisions of this Ordinance shall become and be made a part of the City Code, which provisions
may be renumbered or re-lettered and the ordinance be changed to "section," "article," or other
appropriate word to accomplish such intention.
SECTION 6. Effective Date. All of the foregoing amendments to the City Code shall
become effective upon adoption on second reading.
PASSED AND ADOPTED on first reading on this 2(3 day of S P M (2018.
PASSED AND ADOPTED on second readin!, on t i s day of OC,116Elz- 2018.
George d" Scholl, Mayor
ATTEt. it
Mauricio Betancur, CMC, City Clerk
APPROVED A TO FORM
AND LEG A . 'rFICIENCY
A4irA
an Ottinot, City A ttorney /'
Moved by: Viet I Il b- c cOLbi'UW/J
Seconded by: CYVIIM\Sstaki aP1TD
Vote:
Mayor Scholl (Yes) (No)
Vice Mayor Goldman V(Yes) (No)
Commissioner Aelion V (Yes) (No)
Commissioner Gatto ✓/ (Yes) (No)
Commissioner Svechin v (Yes) (No)
\823724\5-#5186934 vI
7
�s< Cihv Commission
_ F Cit of Sunn Isles Beach9 s y y George Bud"Scholl,Mayor
(4,--_,,,Ny
18070 Collins Avenue, Sl lte 250 Dana Goldman, Vice Mayor
'' v Isaac Action,Commissioner
o i y,- - = Sunny Isles Beach, Florida 3�160
g, , Jeanette Gatto,Commissioner
' (305)947-0606 CityHall Larisa Svechin,Commissioner
`�. ,fir
{ (305) 949-3113 Fax
y X99 37>Y��P (305)947-2150 BuildingDepartment Christopher J.Russo,City Manager
F 1* FLo� 5 p Hans Ottinot,City Attorney
c/ " OF SUN Pao (305)947-5107 Fax Mauricio Betancur,CMC,City Clerk
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Hans Ottinot, City Attorneyoite
DATE: September 20, 2018
RE: Proposed Amending to the City's Cable Television Ordinance
RECOMMENDATION:
This Ordinance is presented for your review and consideration.
REASONS:
This proposed Ordinance amends the City's Cable Television Ordinance, Chapter 113 of the City
Code. The amendments are required to make the City's cable ordinance consistent with state law,
Chapter 610, Florida Statutes, which regulates cable franchises in Florida. Moreover, the placement
of cable facilities in the public rights of way will be subject to the Communications Rights-of-Way.
Please be advised that this proposed Ordinance will maintain the status quo asto the benefits
provided under the City's Cable Television Ordinance. These benefits include but are not limited to
the City's cable public access channel.
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