47-87 ORDINANCE NO. 47-87
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY
BEACH, FLORIDA, REPEALING CHAPTER 10, "CABLE TELEVISION
FRANCHISE", AND ENACTING A NEW CHAPTER 10, "CABLE
TELEVISION FRANCHISE", TO THE CODE OF ORDINANCES OF THE
CITY OF DELRAY BEACH, FLORIDA, BY ENACTING NEW
SECTIONS 10-1 THROUGH 10-33; TO PROVIDE FOR A SHORT
TITLE; TO PROVIDE FOR DEFINITIONS; TO PROVIDE FOI~. GRANT
OF NON-EXCLUSIVE FRANCHISES; TO PROVIDE FOR COMPLIANCE
WITH APPLICABLE LAWS AND ORDINANCES; TO PROVIDE FOR
TERRITORIAL AREAS INVOLVED AND CONSTRUCTION REQUIRE-
MENTS; TO PROVIDE FOR LIABILITY AND INDEMNIFICATION; TO
PROVIDE FOR PERFORMANCE STANDARDS; TO PROVIDE FOR
OPERATION AND MAINTENANCE OF SYSTEMS; TO PROVIDE FOR
SERVICE TO SCHOOLS AND PUBLIC BUILDINGS; TO PROVIDE FOR
EMERGENCY USE OF FACILITIES; TO PROVIDE FOR OTHER
BUSINESS ACTIVITIES; TO PROVIDE FOR SAFETY REQUIRE-
MENTS; TO PROVIDE FOR CONDITIONS OF STREET OCCUPANCY;
TO PROVIDE FOR EMPLOYMENT PRACTICES; TO PROVIDE FOR
REMOVAL OF FACILITIES UPON REQUEST; TO PROVIDE FOR
TRANSFER OF FRANCHISE; TO PROVIDE ¥;DR CITY'S RIGHTS IN
FRANCHISE; TO PROVIDE FOR MAPS, PLATS AND REPORTS; TO
PROVIDE FOR PAYMENTS TO THE CITY; TO PROVIDE FOR FOR-
FEITURE OF FRANCHISE; TO PROVIDE FOR LIQUIDATED DAMAGES
FOR VIOLATION OF THIS ORDINANCE OR OF THE FRANCHISE
ORDINANCE; TO PROVIDE FOR CITY'S RIGHT OF INTERVENTION;
TO PROVIDE FOR FURTHER AGREEMENT AND WAIVER BY
GRANTEE; TO PROVIDE FOR APPLICATION FOR NEW OR EXPAND-
ED FRANCHISE; TO PROVIDE FOR DURATION AND ACCEPTANCE
OF FRANCHISE; TO PROVIDE FOR RENEWAL OF FRANCHISE; TO
PROVIDE FOR. ERECTION, REMOVAL, AND COMMON USE OF
POLES; TO PROVIDE FOR DESIGNATION OF CHANNEL CAPACITY
FOR PUBLIC, EDUCATIONAL, OR GOVERNMENTAL USE; TO
PROVIDE FOR LEASED ACCESS CHANNELS; TO PROVIDE FOR
RATES AND CHARGES TO SUBSCRIBERS; TO PROVIDE FOR RULES
AND REGULATIONS; TO PROVIDE FOR A CABLE TELEVISION
COORDINATOR; TO PROVIDE FOR PUBLICATION COSTS; PROVID-
ING A GENERAL REPEALER CLAUSE; PROVIDING A SAVING
CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council, of the City of Delray Beach, Florida, wishes to
comply with the provisions of the Cable Communications Policy Act of 1984;
WHEREAS, the City Council of the City of Delray Beach, 'Florida wishes to
insure that the residents and the citizens of the City of Delray Beach, Florida have
access to cable television services;
WHEREAS, the City Council of the City of Delray Beach, Florida wishes to
provide to the citize,,~s and residents of the City of Delray Beach, Florida, the brOadest
oversight possible of the rendition of cable television services within the City and in a
manner not inconsistent with the dictates of the Cable Communications Policy Act of
1984;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That Chapter 10, "Cable Television Franchise", of the Code of
Ordinances of the City of Delray Beach, Florida is hereby repealed in its entirety,
except that the provisions of Ordinance No. 8-87 and 156-86 and any other subsequent
ordinance granting, renewing or expanding a franchise as enacted or later modified or
amended are expressly incorporated herein.
Section 2. That the City Council of the City of Delray Beach, Florida hereby
enacts a new Chapter 10, "Cable Television Franchise" to the Code of Ordinances of the
City of Delray Beach, Florida to read as follows:
Sec. 10-1. Short title.
This chapter shall be known and may be cited as the "Delrav Beach CATV
Ordinance".
Sec. 10-2. Definitions.
For the purposes of this chapter, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the con-
text, words used in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
(a) "Cable Television System", hereinafter also referred to as "CATV System" or
"System", means a system of coaxial cables or other electrical conductors and equipment
used or to be used primarily to receive television or radio signals directly or indirectly
off-the-air and distribute them to subscribers for a fee and such other services as
specified by the Federal Communications Commission.
(b) "Cable Act" means the Cable Communications Policy Act of 1984 identified as
Public Law 98-549 enacted on October 30, 1984, as amended from time to time.
(c) "City" is the City of Delray Beach, Florida.
(d) "City Council" is the City Council of Delray Beach, Florida.
(e) "Dwelling unit" as used herein shall be an individual residential unit for
which a separate basic charge may potentially be collected. The number of dwelling
units shail not include the number of units in a multi-family residence or complex if the
Grantee from which service has been requested is prohibited from serving the complex
or building. The number of dwelling units shall include any commercial unit which has
specifically requested cable service or which now has cable service provided by any
Grantee.
(f) "Dwelling units per linear mile" as used herein shall be a measurement made
from the dwelling unit requesting service to the closest point at which the Grantee with
the request for service has live cable wire. Whenever the distance measured results in
a measurement which is less than a mile or includes a fraction of a mile, the number of
dwelling' units required to be passed to entitle the customer to receive service shall be
adjusted accordingly. (For example, if the distance from live cable to the customer
requesting service is one-third of a mile and no other units along that line request
service, service must be provided if there are at least four (4) dwelling units between
the live cable and the dwelling unit of the customer requesting service.)
(g) "Grantee" as used herein is a general term which, unless otherwise stated,
refers to each and every grantee of a franchise hereunder. The term "eligible
Grantee" refers to any grantee with the authority to provide service within the territo-
rial franchise area.
(h) "Public Facilities" shall mean streets, alleys, easements, swale areas, public
ways, public p~,a,~c~ and all other easements dedicated tc
meaning of Section 621(a)(2) of the Cable Act) now laid out or dedicated and all
extensions thereof and additions thereto in the City.
(i) "Person" is any person, firm, partnership, association, corporation, company
or organization of any kind.
2 ORD. NO. 47-87
Sec. 10-3. Grant of nonexclusive franchises.
(a) The City is hereby authorized to award one or more nonexclusive franchises
granting the right and Drivilege to construct, erect, operate and maintain in, upon,
along, across, above, over and under Public Facilities, Doles, wires, cables, under-
ground conduits, manholes and other television conductors and fixtures necessary for
the maintenance and operation in the City of a Cable Television System.
(b) The right to use and occupy Public Facilities for the purposes herein set
forth shall not be exclusive, and the Citv reserves the right to grant a similar use of
Grantee to any person at any time during the period of this franchise.
(c) Grantee shall have the right to enter into arrangements for the attachment
onto and use of facilities owned and operated by public utilities operating within the
City. Grantee shall strictly comply with the terms, provisions and restrictions of said
agreements, and copies of all agreements made with other public utilities operating
within the City shall be provided to the City upon request for the same.
Sec. 10-4. Compliance with applicable laws and ordinances.
(a) Grantee shall, at all times during the life of this franchise, be subject to all
lawful exercise of the police power by the City and to ~uch regulation as the City shall
hereafter provide, and Grantee shall fully compl.v with all applicable laws, rules and
regulations now in effect or hereinafter adopted by th~ Federal Communications Commis-
sion, the City the State of Florida and the United States.
(b) Copies of all petitions, applications, and communications submitted by the
Grantee to the Federal Communications Commission, Securities and Exchange Commission,
or any other federal or state regulatory commission or agency having jurisdiction in
respect to any matters affecting Grantee's Cable Television System authorized pursuant
to this franchise shall be provided to the City upon request for the same.
Sec. 10-5. Territorial area involved and construction requirements.
(a) Unless otherwise provided in the ordinance granting or renewing a franchise,
a franchise granted hereunder shall be for all areas within the present corporate limits
of the City and to any area henceforth added thereto during the term of a franchise
granted hereunder provided that an exclusive franchise is not in existence in the area
annexed.
(b) A request may be made to any eligible Grantee to extend cable service to a
dwelling unit within Grantee's franchise area, whether or not there are overlapping
franchises, and said request shall be governed by the following standards:
(1) Any eli~rible Grantee to whom a request for service has been directed
will be required to extend cable service to a dwelling unit when:
ti) There is a request by the resident of that dwelling unit to provide
such service; and,
(ii) There is an average of fifteen (15) dwelling units per linear mile or
more than five (5) dwelling units per linear mile requesting such service from an,r
eligible grantee, provided that no other franchise cable service has committed in writing
to provide service to the person now requesting service. This method of computation
'~or the p;-o~,z!on cf cable television service applies whether or not ~ ..... .~;ng ~ .......
has wired or served any of the dwelling units figured into the above computation. For
example, if there are an average of fifteen (15) dwelling units per linear mile or more
than five (5) dwelling units per linear mile requesting service from any elicible
Grantee, the fact that another Grantee provides service to one of the fifteen (15) or
five (5) dwelling units will not alter the fifteen (15) for five (5) dwelling unit
computation, so that if there is an average of fifteen (15) dwelling units or five (5)
dwelling units per linear mile requesting service from any of the eligible grantees,
service must be furnished to the dwelling unit now requesting service, provided that no
other grantee is providing service to the dwelling unit now requesting service.
3 ORD. NO. 47-87
(2) When a dwelling unit requesting cable service is determined to be outside
the service criteria, service shall be provided to that dwelling unit for a reasonable
additional hookul~ charge which shall represent the actual additional cost to the cable
company in providing service to that dwelling unit over its cost per mile where there
are five (5) customers requesting service per linear mile. Grantee shall establish a
system of rebating these additional charges on a pro rata basis as new customers are
added to the line.
(c) Specific additional construction requirements may be imposed in the franchise
accepted by Grantee.
Sec. 10-6. Liability and indemnification.'
(a) Grantee shall indemnify and hold harmless the City, its officers, agents and
employees from all claims, debts, liabilities, demands, interest, court costs and
attorney's fees, to itself, or to any third person, whether for bodily injury, death,
property damage or otherwise, in any way arising out of the operations of Grantee
under this ordinance or Grantee's franchise issued hereunder.
(b) Grantee shall pa.y and, by its acceptance of its franchise, specifically agrees
that it will pay, all expenses incurred by the City in defending itself with regard to all
damages and penalties, including, but not limited to, all out-of-pocket expenses, such
as attorney's fees, and the reasonable value of an~7 services rendered b.v the City
Attorney or his assistants or any employees of the Citer.
(c) Grantee shall maintain and, by its acceptance of its franchise, specifically
agrees that it will maintain throughout the term of its franchise liability insurance
insuring Grantee, and naming the City as an additional insured thereunder, against loss
or damage arising out of the operations or responsibility of Grantee under its franchise
with primary and umbrella insurance in a total limit of five million ($5,000,000.00).
Each such policy shall provide for not less than thirty (30) days written notice to the
City prior to cancellation of the policy. Copies of policies are to be furnished the
City.
(d) Grantee shall provide the City with security of faithful performance of all
terms and conditions of its franchise and this ordinance by providing either a payment
and performance bond running to the city with good and sufficient surety acceptable to
the City in the penal sum of seventy-five thousand dollars ($75,000.00), or an irrevo-
cable letter of credit issued by a bank in Palm Beach County, Florida, in the amount of
seventy-five thousand dollars ($75,000). In the event that the City in accordance with
the terms of this agreement recovers from the security, Grantee shall, within fifteen
(15) days after notice from the City, reinstate the security to the amount of seventy-
five thousand dollars ($75,000.00)
(e) The insurance required by subsection (c) and the bond or letter of credit
required by subsection (d) shall be subject to the approval of the City Council, and
the insurance policy or policies and the bond or letter of credit, along with the written
evidence of payment of the required premiums, if applicable, shall be filed and ~nain-
tained with the City Clerk of the city' during the term of Grantee's franchise.
(f) The insurance policy or policies and bonds or letter of credit which Grante~
is required to furnish under the requirements of this ordinance shall be first submitted
to the City Attorney for acceptance and approval on behalf of the City and, if so
accepted and approved, shall be filed in the office of the City Clerk together with
written evidence o~- payment of the required premiums due thereunder.
Sec. 10-7. Performance Standards.
Grantee shall at all times:
(a) Use at least four hundred (400) megahertz of bandwidth (the equivalent of
fifty four (54) television broadcast channels) available for immediate or potential use
within all parts of Grantee's franchise area within forty-eight (48) months after award
of its franchise hereunder.
4 ORD. NO. 47-87
(b) Maintain equipment that passes standard color television signals without
degradation and with a phase shift measured within its own System not to exceed plus
or minus seven (7) degrees. Said phase shift measured within its own System shall
mean the difference between the phase shift measured in the signal received by the
Grantee at its tower and the measure of phase shift at the subscriber's receiver.
(c) Provide a minimum level of one thousand (1,000) microvolts at the inDut
terminals of each television receiver on the line.
(d) Provide that the System and all equipment be designed and rated for twenty-fot~
-hours-per-day continuous operation.
(e) Provide a signal-to-noise ratio of not less than forty (40) decibels measured
at the subscriber's receiver.
(f) Provide a television signal with a hum modulation less than five percent (5%)
measured at the subscriber's receiver.
(g) Provide a television signal free of interaction between any channels which may
cause excessive cross-modulation distortion. The system cross-modulation distortion
level shall meet a minimum standard of forty (40) decibels below the level of the tele-
vision signals distributed to any subscriber connected to the system measured at the
subscriber's receiver.
(h) Operate the system in compliance with Subpart K or Part 78 of the Federal
Communications Commission Rules and Regulations relating to incidental radiation.
(i) Provide an intermodulation distortion not to exceed minus forty-six (46)
decibels measured at the subscriber's receiver.
(j) Provide that the plot of gain versus frequency across any six-megahertz
channel is to 'be flat, plus or minus two (2) decibels, measured at the subscriber's
receiver.
(k) Provide and keep accurate, calibrated test equipment for the testing of all
service and operation standards outlined in this chapter, and conduct tests as request-
ed by the City under the supervision of a City representative in order to establish the
level of performance of the system. The Grantee shall provide responsible service and
investigation in response to all subscriber complaints. Should any subscriber be unable
to obtain acceptable service from the Grantee, said subscriber may make application to
the City to require such tests by the Grantee. The subscriber, upon presenting his
request, shall deposit with the City through the office of the City Manager, the sum of
two hundred dollars ($200.00) as a deposit towards the cost of such tests. Should the
test indicate that the Grantee has failed to provide service to said subscriber in accor-
dance with the operational standards outlined in this chapter, then. the Grantee shall
bear the cost of said test, and the deposit herein required shall be returned to the
subscriber. Should the test indicate that the Grantee is conforming with the oI)era-
tionai standards set forth in this chapter, then the cost of said tests shall be borne by
the subscriber requesting such test. So much of said deposit as is necessary to
reimburse the Grantee for the actual cost of its tests shall be paid over the Grantee,
and the remainder of the deposit, if any, shall be returned to the subscriber.
Sec. 10-8. Operation and maintenance of system.
~} Z~'~n'~ ~L~ render efficient service, make repairs promptly, and intc~rupt
service only for good cause and for the shortest time possible. Such interruptions,
insofar as possible, shall be preceded by notice and shall occur during periods of
minimum use of the system. Grantee shall operate the system so that there will be no
interference with television reception, radio reception, telephone communications or
other installations which are or may hereafter be installed and in use by the City or
any persons in the City.
(b) Grantee shall have a customer service representative employed by Grantee
available to handle customer calls from 8 a.m. to 8 p.m. Monday through Friday exclud-
5 ORD. NO. 47-87
ing holidays and weekends. During all other times, each system must have a capable
answering service for messages on repair service phone lines. Answering machines are
not acceptable. Grantee shall maintain a log of calls made to the answering service,
which shall be made available to the Cable Television Coordinator.
(c) Grantee shall maintain the office and service center in the City of Delra¥
Beach which shall be open during all normal business hours, have a publicly listed
telephone, and receive complaints and requests for repairs on twenty-four (24) hour,
seven (7) day a week basis. The Grantee shall have a qualified technician on call on
twenty-four (24) hour basis to answer all service complaints. During the hours when
the Grantee service representative is not on duty to receive calls, the qualified techni-
cian shall call the answering service no less frequently than once ever3, two (2) hours.
(d) Upon receipt of a service complaint involving an outage or other severe
reception problem during normal working hours, the Grantee shall respond by correct-
ing the service complaint within four (4) hours or by contacting the complainant and
indicating why it cannot be corrected within the time period and when the situation will
be remedied. The Grantee shall respond to service complaints involving an outage or
severe reception problem received during non-normal business hours by correcting the
service complaint with twelve (12) hours or by contacting the complainant within the
same time period to indicate why it cannot be corrected in that time period and when
the situation will be remedied. All complaints shall be corrected within twenty-four
(24) hours except for matters outside of the control of the Grantee.
(e) Grantee shall schedule services calls with subscribers to the extent reason-
ably practicable. The scheduling shall, at a minimum, be in time-frames of visitation of
no more than four (4) hours. If the appointment cannot be kept, cable operator shall
notify the subscriber.
(f) In the event service to any subscriber is interrupted for twenty-four (24)
hours or more through the fault of Grantee, the Grantee shall provide such subscriber
with a pro rata rebate or credit. In calculating the rebate or credit, the time of
outage shall be calculated from the time the outage is reported to the Grantee.
(g) Grantee shall maintain records of the time of complaint, nature of complaint,
and any corrective action taken. These records shall be held by the Grantee for two
(2) years and shall be made available to the Cable Television Coordinator upon request.
A summary of complaints shall be prepared by the Grantee and submitted to the City
upon request but not more often than annually, beginning twelve (12) months after
service is provided to the first subscriber. The Cable Television Coordinator may
establish by rule a format for the annual summary.
(h) Grantee shall notify subscribers, at the time of initial subscription to the
system, of the procedure for reporting and resolving complaints by delivering to each
subscriber a written notice in a form ap~)roved by the Cable Television Coordinator,
including a statement that unresolved complaints may be reported to the Cable
Television Coordinator.
Sec. 10-9. Service to schools and public buildings.
Grantee shall install and provide basic service through one basic standard service
drop to each public school, fire station, police station and City administration buildin~
within the City located within Grantee's territory for educational or governmental
purposes upon request by the City and at no cost to the City or to the public school
........... ~+ .... ' ~: ........ :-- system within the building to which the free
is provided shall be at the expense of the party receiving the service and will
installed by Grantee at cost upon request except that in each fire station included in
Grantee's area, Grantee, at the City's request, shall provide one additional service
drop at no cost to City and, if anyone or more of the City Council chambers, City civic
center, City adult center and the public works building are included in Grantee's area,
Grantee, at the City's request, shall install two standard service drops at reasonably
accessible locations in each such building within its area at no cost to City. Grantee
may, at its election, provide similar services without cost to private schools, including
parochial or other religious schools.
6 ORD. NO. 47-87
Sec. 10-10. Emergency use of facilities.
In the case of any emergency or disaster, Grantee shall, upon request of the
Mayor or City Manager, make available its facilities to the City for emergency commu-
nications use during the emergency or disaster period. Grantee will provide a radio or
character-generated signal override capability which will facilitate audio or video
communications with all subscribers of Grantee during such emergency.
Sec. 10-11. Other business activities.
(a) A franchise hereunder authorizes only the operation of a CATV system as
provided for herein, and does not take the place of any other franchise, license or
permit which might be required by the City.
(b) Neither Grantee nor any of its officers, agents or employees shall indicate or
recommend, in any manner, a specific sale or service establishment or individual be
used for the sale or service of any television set. This shall not prohibit Grantee from
carrying paid advertisements by any company engaged in the sale or service of televi-
sion sets or other video or audio equipment.
Sec. 10-12. Safety requirements.
(a) Grantee shall at all times employ due care in the construction, operation,
maintenance, removal and use of the Cable Television System using commonly accepted
industry practices and equipment to avoid failures and accidents which are likely to
cause damage, injuries or nuisances to the public.
-(b) Grantee shall install, operate and maintain its wires, cables, fixtures and
other equipment in accordance with the requirements of the National Electric Safety
Code promulgated by the National Bureau of Standards and the National Electrical Code
of the American Insurance Association, and in such manner that they will not interfere
with any installations of the City or of a public utility serving the City.
(c) All structures and all lines, equipment and connections in, over, under and
upon the streets, easements and swales, sidewalks and public ways and places of the
city, wherever situated or located, shall at all times be kept and maintained in a safe,
suitable, substantial condition and in good order and repair.
(d) Grantee shall maintain a force of employees sufficient to provide a safe,
adequate and prompt service for its facilities in accordance with industry standards.
Sec. 10-13. Conditions of street occupancy.
(a) All transmissions and distribution structures, lines and equipment erected by
Grantee within the City shall be first approved by the City uoon application by the
Grantee and shall be so located as to cause minimum interference with the proper use of
streets, easements and swales, sidewalks, alleys and other public wa.rs and places and
to cause minimum interference with the rights and reasonable converiience of prooert¥
owners who join any of the said streets, easements and swales, sidewalks, alleys or
other public ways and places.
(b) In cases of disturbance of any street, easement and swale, sidewalk, alley,
public way or paved area, Grantee shall, at its own cost and expense and in a reason-
able manner approved by the City Engineer, replace and restore such street, sidewalk,
easement and swale, alley, public way or paved area in as good a condition as before
the work involving such disturbances was done, and shall maintain such repairs for one
(c) If at any time during the period of a franchise granted hereunder the City
shall lawfully elect to alter or change the grade of any street, easement and swale,
sidewalk, alley or other public way, or to relocate or install additional paving or
utilities, Grantee, upon reasonable notice by the City, shall remove, relay and relocate
its poles, wires, cables, underground conduits, manholes and other fixtures at its own
expense.
7 ORD. NO. 47-87
(d) Any poles or other fixtures placed in any public way by Grantee shall be
placed in such manner as not to interfere with usual travel or any utilities located in or
on such public way.
(e) Grantee 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 build-
ings. The expense of such temporary removal or raising or lowering of wires shall be
paid by the person requesting the same, and Grantee shall have the authority to
require such payment in advance. Grantee shall be given not less than seventy-two
(72) hours' advance notice to arrange for such temporary wire changes.
(f) Grantee, after notification to the City, shall have the authority to trim trees
upon and overhanging streets, easements and swales, alleys, sidewalks and public ways
and places of the City, so as to prevent the branches of such trees from coming in
contact with the wires and cables of Grantee; except that, at the option of the City,
upon request of Grantee, such trimming may be done by City or under City's super-
vision and direction at the expense of Grantee.
(g) In all sections of the City where the cables, wires or other like facilities of
public utilities are presently placed underground or are required to be placed under-
ground at any time in the future, Grantee shall place its cables, wires or other like
facilities underground to the maximum extent that existing technology reasonably
permits the Grantee to do so.
(h) The City shall not be required to assume any responsibility for the securing
of any rights-of-way or easements, nor shall the City be responsible for securing any
permits or agreements with other persons or utilities.
Sec. 10-14. Employment practices.
(a) Equal opportunity in employment shall be afforded all qualified persons by
Grantee and no person shall be discriminated against because of race, color, religion,
national origin or sex.
(b) Grantee shall establish and adhere to the procedures, policies and r~porting
requirements established by Section 634 of the Cable Act and the regulations adopted
thereunder.
Sec. 10-15. Removal of facilities.
Upon termination of service to any subscriber, Grantee shall promptly remove all
its facilities and equipment from the premises of such subscriber uDon his request,
except those facilities and equipment located in Public Facilities and repair any damages
resulting from such removal.
Sec. 10-16. Transfer of franchise.
Grantee shall not transfer its franchise to another person or corporation without
prior approval of the City Council by resolution. It shall be considered a transfer of
its franchise and prior approval of the City Council shall be required where ownership
or control of Grantee is transferred to or acquired b.¥ a Person or group of Persons
acting in concert. By its acceptance of its franchise, Grantee specifically agrees that
any such acquisition occurring without prior approval of the City Council shall consti-
t,,~...~ ~l~on of its franchise. The transfer by Grantee to a parent or subsidiary or
to an entity under common control with ~rantee of a franchise issued hereunder shall
not be deemed a violation of Grantee's franchise or this ordinance; provided that the
Grantee shall give notice to the City of such transfer and, in the case of the transfer
to a parent, subsidiary or commonly controlled entity, the transferee, after notice to
the City, acceptance of the terms of the franchise and this ordinance and provision to
the City of the information required by Sec. 10-23, shall have the authority to and
shall act as Grantee.
8 ORD. NO. 47-87
The word "control" as used herein is not limited to majority stock ownership, or
controlling partners, but includes actual working control in whatever manner exercised.
A rebuttable presumption that a transfer of control has occurred or will occur shall
arise upon the acquisition by any Person or group of Persons of twenty percent (20%)
of the issued voting shares or voting rights of Grantee unless a single and the same
Person or group of Persons holds more than fifty percent (50%) of the voting interest
both before and after the transfer. A rebuttable presumption that a transfer of control
has occurred or will occur shall arise when a change in the general partner occurred or
will occur. Any leasing of the system of Grantee's Cable Television System, or a
portion thereof, shall be presumptive of transfer of control. The term "control" as
used herein shall not include (i) leases of channels pursuant to Section 611 and 612 of
the Cable Act of 1984; (ii) a pledge, hypothecation, mortgage, or similar instrument
transferring conditional ownership of all or part of the Grantee's System within the City
to a lender or creditor in the ordinary course of business so long as a lender does not
thereby acquire the right of control of the Grantee's operation, but no such transfer or
conditional title shall be made absolute without prior approval of the City; or (iii)
disposition of facilities or equipment no longer required in the conduct of the business;
or (iv) incorporation of Grantees, provided ownership and management remains
unchanged.
Sec. 10-17. City rights in franchise.
(a) The right is hereby reserved to the City or the City Council to adopt, in
addition to the provisions contained herein and in existing applicable ordinances, such
additional regulations as it shall find necessary in the exercise of the police power.
(b) The City shall have the right to inspect during Grantee's normal business
hours the books, records, maps, plans and other like materials of Grantee, as such
books, records, maps, plans and other materials relate to or effect Grantee's financial
obligations to the City set forth in this chapter.
(c) The City shall have the right, during the life of a franchise issued here-
under, to install and maintain free of charge upon the poles of the Grantee any wire
and pole fixtures necessary for a police alarm system, on the condition that such wire
and pole fixtures do not interfere with the operations of Grantee's System.
(d) The City shall have the right to supervise all construction or installation
work performed by Grantee under this ordinance or its franchise and make such
inspections as it shall find necessary to insure compliance with the terms of this
ordinance and other pertinent provisions of law.
(e) The City's rights with respect to the renewal and purchase or transfer uDon
non-renewal or revocation of the Grantee's franchise are set forth in Sections 626 and
627 of the Cable Act.
Sec. 10-18. Maps, plats and reports.
(a) Upon request, Grantee shall file with the City Engineer accurate maps of its
System, showing construction and distribution networks, and Grantee shall maintain
same current.
(b) Grantee shall file annually with the City Finance Director, within ninety (90)
days after the end of Grantee's fiscal year, a certified public accountant's statement of
the gross receipts derived from Grantee's subscribers within the area designated by its
~--a~hise ~ .... ~ y.e~r..
Sec. 10-19. Payments to the City.
(a) Grantee shall pay the City three percent (3%) of the gross subscription
revenue received by the company for cable television service provided to subscribers
within the corporate limits of the City as now or hereafter constituted. Said payments
shall be made on a quarterly basis.
9 ORD. NO. 47-87
(b) Gross subscription revenue shall mean all revenue received by Grantee for
providing basic, expanded basic, premium, pay and other video and audio services to
subscribers.
Sec. 10-20. Forfeiture of franchise.
(a) In addition to all other rights and powers pertaining to the City by virtue of
this ordinance or otherwise, the City reserves the right to revoke, terminate and cancel
Grantee's franchise and all rights and privileges of the Grantee hereunder in the event
that Grantee:
(1) Violates any provision of this ordinance or its franchise or any lawful
rule, order or determination of the City or City Council made pursuant to this ordi-
nance.
(2) Becomes insolvent, is unable or unwilling to pay its debts, or is
adjudged bankrupt.
(3) Attempts to dispose of any of the facilities or property of the System
with intent to prevent the City from purchasing same.
(4) Attempts to evade any of the provisions of this ordinance or practices
any fraud or deceit upon the City.
(5) Fails to submit applications for all necessary licenses and permits within
thirty (30) days after grant of its franchise, copies of which applications shall be filed
with the City Clerk, and/or fails to commence construction within sixty (60) days after
Grantee's receipt of all required licenses and permits.
(6) Fails to construct the system or to extend service in accordance with the
provisions of Section 10-5 of this chapter.
(7) Exceeds the territorial limits of its franchise as set forth-in Sec. 10-5 or
in any other ordinance of the City establishing a Grantee's territorial limits.
(b) Such revocation, termination and cancellation shall be as follows:
(1) Notice shall be sent from the City by the City Manager to Grantee, by
registered or certified mail or hand delivery.
(2) Said notice shall specify in a general way, so as to be reasonable under-
stood, the particular terms, conditions or provisions of the franchise or ordinance
which have been or are being violated, and shall name a reasonable time not less than
twenty (20) days thereafter, within which to strictly comply with such terms, conditions
or provisions.
(3) If Grantee shall, after service of such notice, fail to comply or
undertake and maintain diligent efforts to comply with any of such terms, conditions
provisions within the time therein prescribed (not less than twenty (20) days), then
the City shall initiate a proceeding before the City Council for the forfeiture of
Grantee's said franchise, grants, privileges, rights, licenses and immunities.
(4) Upon failure of Grantee to comply with any such terms, conditions or
provisions of said notice within the reasonable time specified therein, the City may
remove from any ~,'~ ~ll~v.~ n~ o~.~rn~nt.~ All prope~'ty
chise, grant, privilege, right, license or immunity had ever been given.
Section 10-21. Liquidated Damages.
(a) The City Manager may impose upon a Grantee liquidated damages of up to
seventy-five (75) dollars per day per occurrence for any violation of a term, condition
or provision of this ordinance or of its franchise or any lawful rule, order or deter-
mination of the City or City Council made pursuant to this ordinance, for violations
10 ORD. NO. 47-87
other than those listed in Section 10-20(a)(6) and Section 10-20(a)(7), rather than
initiate formal revocation; cancellation or termination procedures as described in
subsection 10-20(b). The decision of the City Manager shall be reviewable b..v the City
Council. The imposition of liquidated damages pursuant to this section shall not
constitute a waiver of the City's ria'ht to halt the running of liquidated damages and/or
seek a forfeiture of the franchise.
(b) The City Manager may, rather than seeking a declaration of forfeiture,
require the payment of liquidated damages of up to one hundred dollars ($100.00) per
day per occurrence for any violations described in Sections 10-20(a)(6) or (a)(7)
upon failure to remedy such violation within sixty (80) days after notice by the City.
The City Manager shall be the arbiter of all disputes and conflicts regarding the viola-
tion of those subsections; provided however, the decision of the City Manager shall be
reviewable by the City Council. The imposition of liquidated damages shall not
constitute a waiver of the City's right to halt the running of liquidated damages and/or
seek a forfeiture of the franchise.
Sec. 10-22. City's right of intervention.
Grantee agrees not to oppose intervention by the City in any suit or proceeding to
which Grantee is a party.
Sec. 10-23. Further agreement and waiver by Grantee.
The Grantee agrees to abide by ail provisions, terms and conditions of this ordi-
nance, its franchise, the ordinance renewing its franchise and the terms of any
proposal submitted to the City in connection with such renewal. The terms, conditions,
and territorial limits of. any ordinance granting, renewing or expanding a franchise
currently existing, or as subsequently amended are expressly incorporated herein. Ail
Grantees further agree that they will not at any future time set up as against the City
or the City Council the claim that the provisions of this ordinance or its franchise are
unreasonable, arbitrary or void.
Sec. 10-24. Application for new or expanded franchise.
(a) Any application for a new franchise or for an expansion of an existing fran-
chise shall be submitted to the City Manager in triplicate and shall include, at a
minimum, the following information:
(1) The name, address and telephone number of the applicant and the name
and address of the person or persons who are authorized to act on applicant's behalf.
(2) If applicant is a corporation, partnership or any entity other than an
individual, the name, address and telephone number of each person owning or control-
ling more than five percent (5%) of the voting rights or control of such entity.
(3) Any agreements or arrangements whether or not in writing, with any
individual(s), corporation(s), partnership(s) or other entity (ies) for the purchase,
sale or other transfer of any ownership interest in the System or any entity owning an
interest in the System.
(4) The details of any criminal proceeding against the applicant, any of the
individuals or entities described in subparagraphs (2) and (3) above, any director or
officer or manager of the applicant or any affiliated company.
(5) The details of any Civil proceeding in which the applicant, any officer,
manager, or director of applicant, any of the individuals or entities described in
subparagraphs (2) and (3) above or any affiliated company was found to be liable for
or agreed to a settlement of an unfair, deceptive or anticompetative business practice
including any violation of state or federal antitrust laws.
(6) The details of any penalty assessed or proceeding conducted against
applicant an}, of the individuals or entities described in subparagraphs (2) and (3)
11 ORD. NO. 47-87
above, any director, officer or manager of applicant or any affiliated company arising
from a violation or alleged violation of any franchise for cable television or similar
services.
(7) The details of each cable television system owned, or managed by appli-
cant, any of the persons named in subparagraphs (2) and (3) above, any director,
officer or manager of the applicant or any affiliated company including:
(i) the location of the System,
(ii) the number of subscribers,
(iii) the number of years of ownership,
(iv) the number of years the System has. existed,
and
(v) the name and address of a public official in the city or county in
which the System is located who has knowledge of the performance
of the owners of the Systems.
(8) The name and address and experience of the manager, chief technician
and billing sunervisor of the System.
(9) The financial plan for the first three years of operation of the System in
sufficient detail to show with particularity the sources of all funds to be used in the
acquisition and operation of the System and the expenses to be incurred including all
capital and operational expenses.
(10) A detailed description of the System to be constructed including at a
minimum:
(i) the~ type and location of any antennas and satellite search stations
to be used,
(ii)the headend design including a detail of
all equipment to be used,
(iii) the distribution system, including the
cable plant, active and passive electronics, power supplies, standby
power supplies, and
(iv) the type and model of converters to be
used,
(11) The channel capacity of the System.
(12) The steps taken to insure that the System can be connected with other
systems for area-wide broadcasts which may be locally originated.
(13) A description of the System policies regarding restoration of interrupted
service, System maintenance, receiving and acting on subscriber complaints, keeping
records of complaints and the criteria for addition of employees for maintenance, repair
and complaint response.
(14) A detailed descriptior..~¢ ,h~ ~^- ,~ ~ ~v~,~ ,nd t~ +~"'~,~,~'~ e~
construction of the System.
(15) To the extent that the City has current information meeting any one or
more of the foregoing required submissions, the City may, in its discretion, waive such
required submission or submissions.
(b) Within thirty (30) days of receipt of an application submitted pursuant to
paragraph (a) above, the City Manager or his designee shall notify the applicant of any
12 ORD. NO. 47-87
apparent deficiencies in the information required. When all required information has
been submitted, the City Manager or his designee shall notify all holders of existing
franchises and the applicant that the application is ready for initial review by the City
Council, which review shall occur no sooner than thirty (30) days after such notice.
Such review shall be conducted at a public hearing after proper public notice.
(c) In considering the application for the award or expansion of a franchise the
City Council shall make an affirmative finding that (1) the level of service currently
provided by existing Grantees is inadequate to and does not meet the demonstrated
needs of the community, and (2) that the existence of an additional or expanded
franchise will not endanger service to the subscribers of any existing Grantee and (3)
that the applicant has the demonstrated experience, financial ability, and character to
construct the proposed System and make available a high quality Cable Television
System to the residents of Delray Beach.
(d) All applications for a franchise or the expansion of an existing franchise shall
be in the form required by the City and shall be accompanied by a five thousand dollar
($5,000.00) nonrefundable application fee which shall be used by the City to process
the application and set up the terms of any new franchise agreements. However, the
five thousand dollar ($5,000.00) nonrefundable application fee shall not be applicable to
any grantee requesting an expansion of its franchise prior to the effective date of this
ordinance.
Sec. 10-25. Duration and acceptance of franchise.
(a) The rights and privileges granted hereunder shall commence and terminate on
the dates specified in the ordinance granting the franchise to Grantee, unless sooner
terminated as herein provided or as provided in the ordinance granting the franchise.
(b) Within thirty (30) days after award of its franchise, Grantee shall file with
the City Clerk its unconditional acceptance of its franchise and agreement to comply
with and abide by all of its provisions, terms, conditions, and requirements of the
franchise and this ordinance.
Sec. 10-25. Renewal of franchise. --
(a) At the termination of the initial franchise period, the rights and privileges
granted hereunder may be renewed for the existing Grantee pursuant to the provisions
of the Cable Act.
(b) All applications for a renewal of a franchise shall be in the form required by
the City and shall be accompanied by a five thousand dollar ($5,000.00) nonrefundable
application fee which shall be used by the City to process the application and set up
the terms of any new franchise agreements.
Sec. 10-27. Erection, removal and common land use of poles.
(a) No underground facilities, poles or other wire-holding structures shall be
erected by Grantee without prior approval of the City Engineer with regard to location,
height, type and any other pertinent aspect. However, the approval of the location of
any underground facility, pole or wire-holding structure of Grantee shall not create a
vested right in Grantee for the use of that location, and such poles or structures shall
be removed or modified by Grantee at its own expense whenever the City Manager
reasonable determines that the public convenience would be enhanced thereby.
(b) Where poles or other wire-holding structures are already existing for use in
serving the City and are available for use by Grantee, but Grantee does not make
arrangements for such use, the City Council may require Grantee to use such poles and
structures if it determines that the public convenience would be enhanced thereby and
the terms of the use available to the Grantee are just and reasonable.
(c) Where the City or a public utility serving the City desires to make use of the
poles or other wire-holding structures of Grantee, but agreement therefor with Grantee
13 ORD. NO. 47-87
cannot be reached, the City Council may require the Grantee to permit such use for
such consideration and upon such terms as the City Council shall determine to be iust
and reasonable, if the City Council determines that the use would enhance the public
convenience and would not unduly interfere with the Grantee's operations.
Sec. 10-28. Designation of channel capacity for public, educational or governmental
use.
Within one (1) year from the date of the award of a franchise hereunder but not
before December 31, 1990, Grantee shall designate in writing and activate one channel
for use by the City, in common with other franchising authorities, for the broadcast by
the City or such other franchising authority or its duly established designee of such
public, educational or governmental programming as desired from time to time by the
City or other franchising authorities utilizing the said channel and shall have reasonable
access to such channel on a par with other-franchising authorities having access to
such channel.
Sec. 10-29. Leased Access channels.
When any Grantee shall have 36 or more (but less than 55) activated channels, as
defined by Section 612 of the Cable Act, Grantee shall designate and make available to
persons unaffiliated with the Grantee channels equaling ten percent (10%) of such
activated channels for commercial use upon such te.-~s and conditions and for such
access fees as shall be determined by Grantee consistent with Section 612 of the Cable
Act and the regulations thereunder. When Grantee shall have 56 or more such acti-
vated channels, Grantee shall designate and make available channels equaling fifteen
percent (15%) of the activated channels for such commercial use on such terms. At any
time any channel(s) designated for commercial use hereunder are not actually being
used by a third party, whether or not subject to a lease for such sue, such channel(s)
may be used by Grantee for any purpose consistent with this ordinance. This section
shall be interpreted and construed to be consistent with the requirements of Section 612
of the Cable Act and the lawful regulations adopted thereunder. Pursuant to the
authority granted under Section 612(h) of the Cable Act, the City may require the
lease of any channel space made available under this Section or under the Cable Act to
prohibit or condition the exhibition of any programming which is, in the judgement of
the City, obscene or in conflict with community standards in that such programming is
lewd, lascivious, filthy or indecent or otherwise unprotected by the Constitution of the
United States.
Sec. 10-30. Rates and charges to subscribers.
(a) The rates and charges for all cable television services offered by the Grantee,
including all installation charges for such services, shall be set by the Grantee.
(b) Notice of any change in the structure of programs offered as a basic service
or any increase in basic cable service rates and/or charges by th~ Grantee shall be
given to subscribers in writing no less than thirty (30) days prior to th~ effective date
of the institution of such program changes within its basic service, or any such
increase in rates and/or charges for basic cable service. Provided, however, that
thirty days notice of any change in the structure of programs offered as a basic
service shall not be required if the program structure change is beyond the control of
the Grantee and the Grantee was not ~ven thirty (30) days notice from its supplier of
the change.
(c) Grantee shall not di~crimine+.~ ~etween i~divid~l .~,,h~,,o o~v~(~ ~v ~nv
integrated Cable Television System controlled by Grantee, whether such subscribers are
inside or outside the City, as to any charge for cable or other services unless the
services are different; provided, however, that nothing shall prevent Grantee from
entering into bulk rate contracts for cable services.
(d) No cable or other services shall be denied to any group of potential residen-
tial subscribers because of the income of the residents of the local area in which such
group resides.
14 ORD. NO. 47-87
Sec. 10-31. Rules and Regulations.
Grantee shall have the authority to promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably necessary to
enable Grantee to exercise its rights and to perform its obligations under this ordinance
and its franchise and to assure uninterrupted service to each and all its subscribers;
provided, however, that such rules, regulations, terms and conditions shall not be in
conflict with the provisions hereof and shall be filed with the City.
Sec. 10-32. Cable Television Coordinator.
In order to assure good communications between Grantee and the City and to
assure prompt resolution of matters involving subscribers, franchise requirements and
other matters relating to the City and Grantee, the City Manager, or his designee, is
hereby appointed Cable Television Coordinator ("CTC"). The CTC shall be the person
within the City to whom all matters concerning cable television, this ordinance and any
Grantee are referred.
Sec. 10-33. Publication costs.
Grantee shall assume the cost of publication of its franchise as such publication is
required by law, and such is payable upon Grantee's filing of acceptable of its
franchise.
Section 3. That if any section, subsection, sentence, clause, phrase or
portion of this chapter is for any reason held invalid or unconstitutional by any court
of competent jurisdiction or becomes invalid under federal or state law or in the event
that the Federal Communications Commission declares any section invalid, then such
section or subsections including those effected by the decision will be renegotiated by
the City and the Grantee. All non-affected sections and subsections shall be deemed
separate, distinct and independent provisions and as such shall not effect the validity
of the remainder hereof as a whole or part thereof other than the part declared to be
invalid.
Section 4. That all ordinances or parts of ordinances in conflict herewith be
and the same are hereby repealed.
Section 5. That this ordinance shall apply to all persons who apply for or
are required to apply for a franchise, expansion of a franchise, amendment to a
franchise or renewal of a franchise for a cable television system in the City.
Section 6. This ordinance shall become effective immediately upon adoption
after second and final reading on thi~~~ , 1987.
MAYOR
Attest:
~'lrst Reading June 23, 1987
Second Reading July 14, 1987
15 ORD. NO. 47-87