Ord 18-03ORDINANCE NO. 18-03
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA, AMENDING THE
CODE OF ORDINANCES OF THE CITY OF DELRAY
BEACH BY REPEALING CHAPTER 93, "CABLE
TELEVISION", IN ITS ENTIRETY AND ENACTING A NEW
CHAPTER 93, "CABLE TELEVISION"; PROVIDING A
SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND
AN EFFECTIVE DATE.
WHEREAS, the enactment of the Telecommunications Act of 1996, recent court precedent
and FCC rulings construing the scope of local government regulatory authority over cable television
franchises, and applicable changes and developments in cable television technology and services
have resulted in a changed regulatory environment; and
WHEREAS, the City Commission of Delray Beach, Florida deems it necessary to repeal
Chapter 93 and replace it with a new Chapter 93 to take into account the changes and developments
described above and to better ensure that the use of the City rights-of-way by cable television
operators serves the public interest.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELKAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That Chapter 93, "Cable Television" of the Code of Ordinances of the City of
Delray Beach is hereby repealed in its entirety and replaced by a new Chapter 93, "Cable Television"
to read as follows:
(~HAPTER 93: CABLE TELEVISION
Section 93.01 SHORT TITLE.
This chapter shall be known and may be cited as the Delray Beach, Florida, Cable Television
Ordinance.
~ection 93.02 AUTHORITY: APPLICATION.
This chapter is enacted under the home rule power of the City to promote the public health,
safety and general welfare by providing regulations for the installation, use and operation of cable
television systems in Delray Beach. This chapter shall apply to and be enforced within the municipal
1/mits of the City including any area annexed into the municipal limits of the City.
Section 93.03 DEFINITIONS.
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have
the meanings given herein. When not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular number, and words in the
singular number include the plural number. The words "shall" and "will" are mandatory, and the
word "may" is permissive. Words not otherwise defined herein or in any franchise agreement that
might be granted hereunder shall be given the meaning set forth in the Communications Act of
1934, 47 U.S.C. [~ 521 et seq., as amended by the Telecommunications Act of 1996, and as those
Acts may hereinafter be amended (collectively the "Communications Act"), and, if not defined
therein, they shall be given their common and ordinary meaning:
(A) "Access channel" shall mean any channel on a cable system set aside without charge by the
franchisee for educational or local governmental use which has been recognized and approved as
such by the City Commission. The City agrees not to use the access channels to provide commercial
or services that may compete, directly or indirectly, with services offered by Adelphia; provided,
however, that the City may cablecast acknowledgments of funding sources and the underwriting of
programming costs.
03) "Activated channels" shall mean those channels engineered at the headend of a cable system
for the provision of services generally available to residential subscribers of the cable system,
regardless of whether such services actually are provided, including any channel designated for
educational or governmental use. A channel on which signals flow in the direction from the headend
to the subscriber shall be referred to as a "downstream channel." A channel on which signals flow to
the headend for redistribution shall be referred to as an "upstream channel."
(C) "Affiliate" shall mean any person who or which directly or indirectly owns or controls a
grantee or franchisee, any person who or which a grantee or franchisee directly or indirectly owns or
controls, or any person under common ownership or control with a grantee or franchisee.
(D) "Applicant" shall mean any person submitting an application under and within the meaning
of this chapter.
(E) "Application" shall mean any proposal, submission or request to (1) construct, maintain and
operate a cable television system within the City; (2) transfer a franchise or control of a franchise; 0)
renew a franchise; (4) modify a franchise; or (5) seek any other relief from the City pursuant to this
chapter, a franchise agreement, the Communications Act, or other applicable law. An application
includes an applicant's initial proposal, submission or request, as well as any and all subsequent
amendments or supplements to the proposal and relevant correspondence.
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(F) "Basic cable service" or "Basic service" shall mean any service tier which includes the
retmnsmission of' local television broadcast signals and educational, governmental or pubhc access
channels.
(G) "Cable service" shall mean
(1) The one-way transmission to subscribers of video programming, or other
programming service; and
(2) Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service.
(H) "Cable system," "Cable television system," or "System" shall mean a facility, consisting of a
set of closed transmission paths and associated signal generation, reception and control equipment
that is designed to provide cable service which includes video programming and which is provided
to multiple subscribers within the City, but 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, which is subject, in whole or in part, to the provisions
of Title 11 of the Communications Act of 1934, 47 U.S.C. [4201 et seq., except that such facility
shall be considered a cable system (other than for purposes of 47 U.S.C. 4541 [c]) to the extent such
facility 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;
(4) An open video system (OVS) that complies with 47 U.S.C. 4573; or
(5) Any facilities of any electric utility used solely for operating ks electric utility systems.
(l) "City" shall mean the City of Delray Beach, Florida.
0) "City Commission" shall mean the City Commission of the City of Delray Beach, Florida.
(K) "Communications Act" shall mean the Communications Act of 1934, 47 U.S.C. 4 151 et
seq., as that Act has been and may hereinafter be amended or renumbered.
(L) "Control of a franchisee, applicant or franchise" shall mean possession of the ability to direct
or cause the direction of the management or policies of a franchisee, grantee or applicant, or the
operation of a franchisee's system, either directly or indirectly, whether through ownership of voting
3 ORD. NO. 18-03
securities, by contract or understanding, or in any other manner. Any such change shall be
considered a "transfer."
(M) "Easement dedicated for compatible use" shall mean an easement open for the use of a
franchisee pursuant to 47 U.S.C. [541(a)(2).
(lq) "Easement holder or beneficiary" shall mean the person to whom an easement was or is
dedicated, deeded or granted, and the person entitled to the lawful and permitted use of the
easement.
(0) "Exclusive easement" shall mean an easement which by its terms and which by the law is for
the exclusive use of the easement holder.
(P) "Facilities and equipment" shall include, but not be limited to, headends, hubs, antennae,
wires, cable, conductors, ducts, conduits, vaults, manholes, trenches, amplifiers, converters,
appliance, attachments, poles and other property and equipment which are designed, constructed or
wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber
optics, microwave, laser or other means, audio and video television, radio and electronic signuls to
and from subscribers, and any other equipment or facilities used in connection with a cable system
to provide cable service within the City. In the context of educational, governmental or public
access, this term shall include, but not be limited to, all of the above and studios, cameras, antennae,
dishes, buildings, chairs, desks, vehicles and all other capital equipment associated with the provision
of educational, governmental or public programming and access.
(Q) "Fair market value" shall mean the price that a willing buyer would pay a willing seller for a
going concern but with no value allocated to the franchise itself.
(R) "FCC" shall mean the Federal Communications Commission, or any successor governmental
entity thereto.
(S) "Fiscal year" shall mean a calendar year beginning October 1 st of each year.
(T) "Franchise" shall mean an initial authorization, or renewal thereof (including a renewal of an
authorization which has been granted subject to 47 U.S.C. [546), issued by the City as the
franchising authority. Such authorization shall be designated as a franchise and issued under a
franchise agreement, which authorizes the construction and/or operation of a cable system. The
term "franchise" does not include any license, permit or certificate that may be required by this
chapter or other applicable law for the privilege of transacting and carrying on a business within the
City or for disturbing or carrying out any work within any public right-of-way.
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(U) "Franchise agreement" shall mean a contract entered into in accordance with the provisions
of this chapter between the City and a franchisee which sets forth the terms and conditions under
which the franchise shall be exercised.
(V) "Franchisee" shall mean any person granted a franchise by the City pursuant to this chapter
who has entered into a franchise agreement.
(W) "Gross revenues" shall, at such time as the City is not otherwise limited by applicable federal
or state law, mean all the franchisee's revenues, from any source whatsoever arising from,
attributable to, or in any way derived from the operation of the cable system to provide cable service
in the City.
Unless this definition is further amended by the City, "Gross Revenue" includes, but is not limited
to, the following: (1) fees charged subscribers for basic service; (2) fees charged subscribers for any
optional, premium, per-channel or per-program service; O) fees charged subscribers for any tier of
service other than basic service; (4) installation, disconnection, reconnection and change-in-service
fees; (5) late fees; (6) leased access fees; (7) payments or other consideration from programmers for
carriage of programming on the system; (8) revenues from converter, remote, modem or any other
equipment rentals or sales; (9) revenues from the sale, exchange or cablecast of any programming
developed on or for access channels or institutional users; (10) advertising revenues allocable to the
City based on the subscriber base in the City divided by the subscriber base of the system (such
quotient to be multiplied by the system's total advertising revenue to determine the allocable revenue
stemming from advertising); (11) revenues from home shopping channels or other sources allocable
to the City based on the subscriber base in the City divided by the subscriber base of the system;
(12) revenues from local studio and local studio equipment rental; (13) revenues from leases of cable
or fiber optic lines and other transmission devices and equipment for the provision of cable services;
(14) revenues from transmission of data; and (15) revenues from consumer products and services
including but not limited to cable guides. In the event that a court of competent jurisdiction issues a
final decision or applicable law provides that Intemet access service provided via the cable system is,
as a matter of law, a cable service, or may otherwise be included in the definition of Gross Revenues
on which Franchise fees are based, such revenues shall be included in the definition herein.
"Gross revenues", unless prohibited by applicable law, shall be the basis for computing the franchise
fee imposed pursuant to Section 93.19 unless prohibited by applicable law.
As of the date hereof, the City acknowledges that Ch. 347 FL. Stat. preempts the City from defining
Gross Revenues for the purpose of collection of franchise fees by the City pursuant to this
Ordinance. However, should the statute be repealed or otherwise amended and the City has the
right pursuant to applicable law to establish the definition of Gross Revenues on which franchise
fees are collected, the "Gross Revenues" definition contained herein or as amended by the City shall
be applicable.
5 ORD. NO. 18-03
"Interconnection" shall mean the electronic connection of two or more cable systems for the
purpose of sharing programming or other cable services.
"Law" shall mean any duly enacted or executed applicable federal, state, county, or city law,
statute, ordinance, code, rule, regulation or order.
(Z) "Leased access channel" shall mean a channel designated in accordance with 47 U. S.C. [ 552
for commercial use by persons unaffiliated with the franchisee.
(AA) "Open video system (OVS)" shall mean a system certified by the FCC to provide video
programming to subscribers in a manner that complies with 47 U.S.C. 2573.
(BB) "Overbuild" shall mean a cable system constructed to serve subscribers in an area of the City
served by another cable system.
(CC) "Pay television" shall mean the delivery over the cable system of video signals in intelligible
form to residential subscribers for a fee or charge (over and above the charge for basic sexvice),
except for a service tier.
(DD) "Person" shall mean any individual, corporation, partnership, association, joint stuck
company, trust, joint venture, organization or legal entity of any kind, and any lawful trustee,
successor, assignee, transferee or personal representative thereof.
(EE) "Public right-of-way" shall mean the surface, the air space above the surface, and the area
below the surface of any street, highway, road, boulevard, concourse, driveway, freeway,
thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court,
lane, path, alley, way, drive, circle, easement, or other right-of-way, place or property, including
public utility easements dedicated for compatible uses, in which the City holds any kind of property
interest or over which the City exercises any type of lawful control.
(FF) "Setarice tier" shall mean a category of cable service or other services provided by a
franchisee and for which a separate rate is charged by the franchisee.
(GG) "Small cable operator" shall mean a franchisee who offers service to fewer than one
thousand (1,000) subscribers within the franchise area, and who directly, or through an affiliate,
services in the aggregate fewer than one percent (1%) of cable subscribers in the United States, and
whose annual revenues, when combined with the total annual revenues of all of its affiliates, do not
exceed $250 million in the aggregate, or as such term may be otherwise defined by applicable law.
(HH) "Subscriber" shall mean any person who lawfully receives cable service delivered over a cable
system.
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(II) "Subscriber base" shall mean the total number of a franchisee's residential and nonresidential
subscribers within the City. For purposes of calculating the number of subscribers under bulk or
multi-user contracts, the franchisee shall count each individual unit included within a contract for
service as one subscriber. The franchisee shall not use any equivalency measures including
calculations based on market rate unless required by FCC rules.
0J) "Sunshine State One-Call of Florida, Inc." shall mean the not-for-profit corporation created
by Section 556.103, Florida Statutes, to administer the provisions of the Underground Facility
Damage Prevention and Safety Act set forth at Chapter 556, Florida Statutes.
(KK) "System malfunction" shall mean any cable system equipment, facility or signal failure or
malfunction that results in the loss of satisfactory service on one or more channels to one or more
subscribers which results from the franchisee's action or inaction. A malfunction is deemed major if
it affects ten (10) or more subscribers.
(LL) "Technician" shall mean an employee, contractor or agent of a franchisee with the skills to
perform and who is available to perform, construct, repair and maintain the cable system, including
the facilities and equipment installed by or for the franchisee which are necessary to provide services
or signals to the subscriber or user of the system.
(MM) "Transfer of a franchise" shall mean any transaction in which (1) an ownership or other
interest in a franchisee or its cable system is transferred from one person or group of persons to
another person or group of persons so that control of a franchise is transferred; or (2) the rights
and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to
another person, group of persons or business entity. Any "Change of Control" under section (L)
herein shall be considered a "Transfer" for purposes of this Ordinance and any franchise granted
thereto. A transfer may be considered by the City to be "pro forma" where the transaction involves
an assignment of the franchise from one entity to another entity where both entities are wholly
owned and controlled by the same entity and there is no change of control or ownership.
(NN) "Two-way capacity" shall mean the incorporation into a cable system of all appropriate
design and engineering characteristics and features so that two-way transmission over the cable
system can be implemented and activated.
(OO) "Video channel or Channel" shall mean a portion of the electromagnetic frequency spectrum
which is used in a cable system and which is capable of delivering a television charnel, including the
associated audio signal, as "television channel" is defined by FCC regulation or otherwise.
(PP) "Video programming" shall mean programming provided by, or generally considered
comparable to programming provided by, a television broadcast station or cable system.
7 ORD. NO. 18-03
(QO0 "Viohtion" shall mean a violation of any term or provision of this chapter, or a failure to
satisfy any term or condition contained in any franchise agreement, or a breach of the contractual
relationship established pursuant to a franchise agreement.
Section 93.04 INTENT AND PURPOSE.
(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 for the grant of one or more franchises for the construction,
maintenance and operation of a cable system or cable systems within the City; to provide for the
regulation, to the extent provided for by law, of each cable system within the City; to provide for the
payment of fees and other valuable consideration by a franchisee to the City for the use of public
fights-of-way by its cable system; to promote the widespread availability of quality cable sexvice to
the City residents and businesses, the City, and other public institutions; to encourage the
development of cable and other communication technologies and cable systems as a means of
communication between and among the public, businesses, the City, and other public institutions; to
promote competitive cable rates and services; to promote the safe and efficient use of public
fights-of-way; to enhance and maximize the communicative potential of public fights-of-way used
by cable systems; and to encourage the provision of a diversity of information sources by cable
technology to the City residents, businesses, the community, the City, and other public institutions.
(B) Recognizing the continuing development of commumcations technology and uses, it is the
policy of the City to encourage experimentation and innovation in the development of cable system
uses, services, programming and techniques that will be of general benefit to the community to the
extent all such experiments and innovations are consistent with applicable law.
Section 93.05 GRANT OF AUTHORITY: FRANCHISE REOUIRED.
(A) The City may grant one or more franchises in accordance with this chapter.
(B) Unless otherwise provided under federal law, no person may construct or operate a cable
system or any other communications transmission facilities over, on, or under the public
fights-of-way without having been granted a franchise by the City and no person may be granted a
franchise without having entered into a franchise agreement with the City pursuant to this chapter or
other such ordinance of the City as may be applicable.
(C) Any franchise granted pursuant to this chapter is solely for the provision of cable service.
Consistent with applicable federal and state law, a franchisee electing to provide other
telecommunications services including, but not limited to, telephone services and/or alternative
video programming services, shall satisfy all applicable requirements of the City prior to installation
of facilities or commencement of such services.
Section 93.06 FRANCHISE CHARACTERISTICS.
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(A) Subject to any applicable permitting requirements, a franchise granted under this chapter
authorizes use of public rights-of-way for installing cables, wires, lines, optical fiber, underground
conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary and pertinent to
operate a cable television system within the City, but does not expressly or implicitly authorize the
franchisee to provide service to, or install cables, wires, tines, underground conduit, or any other
equipment or facilities upon private property without the owner's consent (except for use of
compatible easements pursuant to 47 U.S.C. § 541(a)(2), or as otherwise authorized by law), or to
use privately owned conduits without a separate agreement with the owners.
(B) Any franchise granted hereunder is non-exclusive, and shall not expressly or implicitly
preclude the issuance of other franchises to operate cable systems within the City, or affect the City's
right to authorize use of public rights-of-way to other persons to operate cable systems or for other
purposes as it determines appropriate and consistent with applicable federal and state law.
(C) All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of
the public fights-of-way, and the City reserves the fight to reasonably designate where a franchisee's
facilities are to be placed within the public rights-of-way.
(D) A franchise shall be a privilege which is held in the public trust. No transfer of a franchise
shall occur unless application is made by the franchisee, and approval is obtained from the City
pursuant to Section 93.27 hereof. Any unauthorized transfer of a franchise shall be deemed a
violation of this Ordinance and a material breach of a franchise, subjecting the franchise to
(E) A franchise granted to an applicant 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 services and facilities of a
cable television system as required by the provisions of this chapter and the franchise agreement.
The franchise agreement shall incorporate by reference all of the provisions of the franchisee's
application for the franchise that are finally negotiated and agreed upon by the City and the
franchisee.
(F) The City hereby adopts the national policy with respect to facilitating small business entry
into telecommunications, and prohibiting barriers to entry into the telecommunications market.
Thus, to the extent not in conflict with other laws, including without limitation, Section 166.046 of
the Florida Statutes and Section 93.0603), the City may consider the grant of waivers to small cable
operators who request waivers of provisions of this chapter in compliance with Section
93.09(E)(18), provided that any such waiver of provisions of this chapter based on the operator's
status as a small cable operator shall continue in effect only so long as the operator remains within
the definition of small cable operator as provided by applicable federal law.
9 ORD. NO. 18-03
(G) Notwithstanding anything to the contrary, in the event a franchisee elects to offer to
subscribers video programming services through any means or method not included within the
definition of a cable system or streaming video via the intemet, including but not limited to an open
video system, the franchisee shall remain subject to all terms and conditions of the franchise
agreement, unless otherwise relieved from compliance by federal or state law that expressly
preempts a term or condition of this chapter. Moreover, the City reserves the right to require a
franchisee offering service over an open video system to maintain such separate books and records
as may be required by the City from time to time to the extent not inconsistent with applicable state
law and FCC rules and regulations.
Section 93.07 FRANCHISEE SUBJECT TO LAWS; POLICE POWER: RESERVATION
OF RIGHTS.
(A) A franchisee shall at all times be subject to and shall comply with all applicable federal, state
and local laws. A franchisee shall at all times be subject to all lawful exercise of the police power of
the City to adopt and enforce generally applicable ordinances, resolutions, rules, regulations, written
policies and practices necessary to the convenience, health, safety and welfare of the public, and shall
comply with all applicable ordinances, resolutions, rules, regulations, written policies and practices
by the City pursuant to such power.
03) The City shall have all power conferred on a cable franchising authority not otherwise
preempted by federal or state law.
(C) If the Communications Act is amended or any provision thereof is held invalid or
unenforceable, either of which materially affects the City's authority with respect to the regulation of
cable operators or the terms and provisions of this chapter, the City shall have the right to amend
this chapter in a manner which is not inconsistent with such amendments or holdings.
(D) The City reserves the right to create, establish or appoint such boards and persons to assist it
in administering the provisions of this chapter and to establish a procedure for the creation,
establishment, appointment or operation of such.
(E) Subject to applicable law, except as may be specifically provided in this chapter or under the
terms of a franchise agreement, the failure of the City, upon one or more occasions, to exercise a
right or to require compliance or performance under this chapter or a franchise agreement shall not
be deemed to constitute a waiver of such right or a waiver of requiring compliance or performance.
Section 93.08 GOVERNING LAW: CONFLICTS.
(A) Except as to matters which are governed by federal law or regulation, a franchise agreement
shall be governed by and construed in accordance with the laws of the State of Florida and Section
93.34.
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03) If any part, section, subsection or other portion of this chapter conflicts or subsequently
comes into conflict with any federal or state law, the prevailing law shall control and apply.
Section 93.09 APPLICATIONS FOR GRANT. RENEWAL. MODIFICATION OR
TRANSFER OF FRANCHISES.
(A) A written application shall be flied with the City for (1) a grant of an initial franchise; (2)
renewal of a franchise in accordance with 47 U.S.C. [546; (3) modification of a franchise agreement;
(4) a transfer of a franchise; or (5) any other relief from the City pursuant to this chapter or a
franchise agreement.
03) To be acceptable for filing, a signed original of the application shall be submitted together
with seven (7) copies. It shall be accompanied by the required non-refundable application filing fee
as set forth in Section 93.09(I), conform to any applicable request for proposals, and contain all
reasonably required information. All applications shall include the names and addresses of persons
authorized to act on behalf of the applicant with respect to the application.
(C) All applications accepted for filing shall be available for public inspection.
0D) An application for the grant of an imtial franchise may be flied 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, may inform the City that its unsolicited application should be
considered in response to the request for proposals, or may withdraw its unsolicited application. An
application which does not conform to the reasonable requirements of a request for proposals may
be considered non-responsive and denied on that basis.
(E) An application for the grant of an initial franchise, a renewal of a franchise or a transfer of a
franchise shall contain, at a minimum, the following information unless submission of any item has
been expressly excused by the City Manager:
(1) The name and address of the applicant and identification of the ownership and
control of the applicant, including; the names and addresses of all persons with five percent (5%) or
more ownership interest in the applicant, inchidmg the names and addresses of parents or
subsidiaries holding such ownership interests directly or indirectly; the persons who control the
applicant; all officers and directors of the applicant; and any other cable system ownership or other
communication ownership interest of each named person;
(2) An indication of whether the applicant, or any person controlling the applicant, or
any officer, director or person with five percent (5O/o) or more ownership interest in the applicant,
11 ORD. NO. 18-03
has been adjudged bankrupt, had a cable franchise or license revoked, or been found by any court or
administrative agency to have violated a security or antitrust law, or to have committed a felony, or
any crime involving moral turpitude; and, if so, identification of any such person and a full
explanation of the circumstances;
(3) A demonstration of the applicant's technical, legal and financial ability to construct
and operate the proposed cable system, including identification of key personnel;
(4) A statement prepared by a certified pubhc accountant or duly authorized financial
officer of the applicant regarding the apphcant's financial ability to complete the construction and
operation of the cable system proposed;
(5) A description of the applicant's prior experience in cable system ownership,
construction and operation, and identification of communities in which the applicant or any person
controlling the apphcant or having more than a ten percent (10%) ownership interest in applicant
has, or has had, a cable franchise or license or any interest therein;
(6) Copies of all franchise agreements, licenses, permits or authorizations to operate a
cable television system or to provide telecommunications services within the City;
(7) Identification of the area of the City to be served by the proposed cable system,
including a description of the service area's boundaries;
(8) A description of the physical facilities proposed, including the extent and location of
all facilities and equipment, channel capacity, performance characteristics, headend, and access
facilities; upon request, the applicant shall complete information on technical design available for
inspection;
(9) Where applicable, a description of the construction of the proposed cable system,
including an estimate of plant mileage and its location, the proposed construction schedule; a
description, where appropriate, of how services will be converted from existing facilities to new
facilities; and information on the availability of space in conduits including, where appropriate, an
estimate of the cost of any necessary rearrangement of existing facilities, the technical or physical
impact on public rights of way, and potential conflicts with other users of public rights of way;
(10) For informational purposes, the proposed rate structure, including projected charges
for each service tier, installation, converters, and other equipment or services, and the applicant's
ownership interest in any proposed program services to be delivered over the cable system;
(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;
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(12) A description of any non-cable telecommunications services offered by the applicant
or its parent, affiliate or subsidiary and the applicant's plan with respect to the availability of such
services to subscribers in the City;
(13) Pro forma financial projections for the first five (5) years of the franchise texm,
including a statement of projected income, and a schedule of planned capital additions, with all
significant assumptions explained in notes or supporting schedules;
(14) If an applicant proposes to provide cable service to an area already served by a
franchisee, the identification of the area where the overbuild would occur, the potential subscriber
density in the area which would encompass the overbuild, and the ability of the public rights-of-way
to accommodate an additional cable system;
(15) A statement detailing how the applicant will ensure interconnection capability with
other cable systems pursuant to the requirement of Section 93.15(A)(6) or as such requirements may
be modified by the City Manager from time to time.
(16) Any other information as may be reasonably necessary to demonstrate compliance
with the requirements of this chapter or that the City may request of the applicant that is relevant to
the City's consideration of the application including, but not limited to financial sources and
guarantees; and
(17) Character qualifications. The past or current involvement of the applicant, any of its
principals or managers as a party in criminal or civil proceedings is relevant to evaluation of an
applicant's character qualifications. The applicant shall supply all records as deemed necessary by the
City. In addition:
(a) Criminal proceedings. Advise whether the applicant (including the parent
corporation, if applicable), any principal or manager has ever been found guilty in a criminal
proceeding (felonies or misdemeanors) in which any of the following offenses have been charged:
fraud, embezzlement, obstruction of justice (or other misconduct affecting public or judicial officers
in the performances of their official duties), advertising, perjury, antitrust violations (state or federal),
violations of FCC or SEC regulations, or conspiracy to commit any of the foregoing. If "yes" in any
instance, provide specifics, such as date, court, sentence or fine, etcetera.
Co) Civil proceedings. Advise whether the applicant, any principal, manager or
any cable operator of which any principal or manager was or is a principal or manager has ever been
a party to a civil proceeding in which he or it was held liable for any of the following, or is now a
party to any such proceedings or investigations: unfair or anti-competitive business practice, antitrust
violations (state and federal), including, but not limited to instances in which consent decrees were
entered, violations of securities laws (state and federal), false/misleading advertising violations of
13 ORD. NO, 18-03
FCC, FTC or SEC regulations, racketeer influenced and corrupt organizations, or contraband
forfeitures. If "yes" in any instance, provide specifics.
(c) Franchise violations. Advise whether the applicant, any principal, manager, or
any cable operator of which any principal or manager was or is a principal or manager has ever been
subject to any penalty, criminal or civil, involving failure to comply with the requirements of a cable
telex4sion franchise. If "yes," provide specifics.
(d) Legal action against franchising authority. Advise whether the applicant, any
principal, manager or any cable operator of which any principal or manager was or is a principal or
manager has ever instituted legal action against any of its franchising authorities. If "yes," describe
action and result.
(e) Revocation of licenses. Advise whether the applicant, any principal, manager,
or any cable operator of which any principal or manager was or is a principal or manager has ever
had a business license (defined to include FCC licenses, alcoholic beverage and restaurant licenses,
etc.) revoked, suspended or renewal denied, or is a party to a proceeding which may result in same.
If "yes" in any instance, provide specifics.
(18) Small cable operator. Where an applicant is a small cable operator, the operator shall
include in its application a statement (a) identifying any provisions of this chapter which it believes
should be inapplicable to its franchise or cable system; and (b) the legal authority under federal and
state law upon which the applicant is bas'rog its request for a waiver of such provision(s).
(19) An affidavit or declaration of the applicant or authorized officer certifying the truth
and accuracy of the information in the application, acknowledging the enforceability of application
commitments, and certify'rog that the proposal meets all federal and state law requirements.
(F) An application for modification of a franchise agreement shall include, at a minimum, the
following information:
(1) The specific modification requested;
(2) The justification for the requested modification, including the impact of the
requested modification on subscribers and others, and the financial impact on the applicant if the
modification is approved or disapproved;
(3) A statement whether the modification is sought pursuant to 47 U.S.C. [545, and, if
so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. [545;
(4) Any other information reasonably necessary for the City to make an informed
determination on the application for modification; and
14 ORD. NO. 18-03
(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.
(G) An application for renewal of a franchise shall comply with the requirements of Section
93.26.
(H) An application for approval of a transfer of a franchise shall comply with the requirements
of Section 93.27.
(1) To be acceptable for filing, an application shall be accompanied by a non-refundable filing
fee in the following applicable amount:
2.
3.
4.
5.
For a new or initial franchise:... $15,000
For renewal ora franchise:... $15,000
For a transfer ora franchise (other than a pro forma transfer):... $5,000
For a pro forma transfer of a franchise:... $2,000
For modification of a franchise agreement, including pursuant to 47 U.S.C. [ 545:..
$3,000
For any other relief:... $2,000
The purpose of the filing fee is to defray a portion of the City's costs in processing an application.
Unless otherwise prohibited by applicable federal law, the filing fee is a charge incidental to the
awarding or enforcing of a franchise within the meaning of 47 U.S.C. ~ 542(g)(2)(D). Therefore, the
filing fee is not included within the meaning of the term "franchise fee," it may not be deducted
from the franchise fee imposed in a franchise agreement or credited against payments made
pursuant to Florida Telecommunications Tax Simplification Act (FI. Stat), and it shall not be passed
through to subscribers.
In addition, the City, in considering and processing the application, may retain consultants, experts
and attorneys. Prior to final consideration of the application by the City, the City shall bill the
applicant for the amount of the retainee's reasonable fee due as of the date of billing, and its method
of calculation, and the applicant shall pay such amount. Unless otherwise prohibited by applicable
federal law, this fee is a charge incidental to the awarding or enforcing of a franchise within the
meaning of 47 U.S.C. [542(g)(2)(D). Therefore, it is not included within the meaning of the term
"franchise fee," it may not be deducted from the franchise fee imposed in a franchise agreement,
and it shall not be passed through to subscribers.
Section 93.10 REVIEW OF APPLICATION.
15 ORD. NO. 1843
(A) Information. The City shall, upon request of the applicant, provide the applicant with
information and application forms, if any, regarding the application process.
(B) City Manager. Upon the applicant's submitting an application, the City Manager shall review
the application and notify the applicant as to any facial deficiencies.
(C) Additional information. The City Manager shall review the application to ensure that all
information required is submitted. The City Manager may request relevant additional information of
the applicant at any time during the application process.
(D) Completeness of application. The City Manager shall approve, reject as incomplete or
deficient, or approve with conditions the application. Upon approval or, if approved with
conditions, upon the conditions being met, the City Manager shall notify the City Clerk to advertise
the public heating at which the City Commission will consider the application. The advertisement
shall be published by the City Clerk in a newspaper of general circulation in Palm Beach County
once weekly for two (2) consecutive weeks not more than twenty-one (21) days nor less than ten
(10) days prior to the public hearing.
(E) Sumnm~ report. The City Manager shall issue or cause to be issued a report summarizing
the application. It shall be presented to the City Commission.
Section 93.11 GRANT OF FRANCHISE.
(A) The City may grant an initial franchise for a period not to exceed fifteen (15) years to serve
all or a specified area of the City.
(B) The City may condition the grant of an imtial franchise upon the completion of construction
of a cable system within a reasonably prescribed time period or upon the performance of other
specific obligations which are to be set forth in the franchise agreement, specifying that failure to
comply with the condition will cause the franchise to become revocable.
(C) In evaluating the grant, renewal or transfer of a franchise, the City Commission may
consider, among other things, the following factors: the applicant's technical, financial, and legal
qualifications to construct and operate the proposed system; the adequacy of the proposed
construction arrangements, the adequacy of proposed financing, facilities, equipment, and services
based on the public convenience, safety and welfare; the applicant's experience in constructing and
operating cable systems and providing cable service in other communities, ff any; the ability of the
public rights-of-way to accommodate the proposed system; the potential disruption to users of the
public rights-of-way and any resultant inconvenience to the public; and whether the proposal will
meet reasonably anticipated community needs and serve the public interest.
16 ORD. NO. 1803
(D) The City Commission shall hold a public heating to consider an application for the grant of
an initial franchise renewal, transfer or modification of a franchise. The applicant shall be notified of
the heating and shall be given an opportunity to be heard. Based upon the application, the testimony
presented at the public hearing, any recommendations of the City staff, and any other information
relevant to the application, the City Commission shall decide whether to grant or deny the
application and decide the terms and conditions of any grant. Following at least ten (10) days prior
notice to the grantee and the public, the City Commission shall hold a public hearing to confider
approval of the proposed franchise agreement.
(E) After complying with the above requirements, the City Commission shaLl approve or
disapprove the proposed franchise agreement, or may direct that it be subject to further negotiation.
Section 93.12 INSURANCE AND INDEMNITY.
(A) Insurance.
(1) Within thirty (30) days after the effective date of the franchise agreement and prior
to any operations under the franchise, the franchisee shall provide proof of the insurance described
below against claims for liability and damages charged against the City or the franchisee as a result of
the franchise granted hereunder. Such insurance shall be with an insurance company authorized to
do business in the State of Florida with a best rating of no less than A-VII and shall be maintained
throughout the term of the franchise. It shall include, at a minimum, the following types and
mounts of insurance coverage:
(a) Commercial general liability ---five million dollars ($5,000,000.00) combined
single limit, covering:
1. Personal injury and bodily injury;
2. Broad form property damages without XCU exclusions;
3. Products/completed operations; and
4. Contractual liability to apply to the liability assumed by the franchisee under the
franchise agreement.
(b) Business automobile liability --- Five Million Dollars ($5,000,000.00)
combined single limit for bodily injury liability and property damage liability, coveting owned, leased,
hired and non-owner vehicles.
(c) Broadcasters' errors and omissions (or similar form) --- One Million Dollars
($1,000,000.00), coveting infringement of copyrights.
(d) Workers' Compensation coverage required by the state and employer's
liability ---Five Hundred Thousand Dollars ($500,000.00).
17 ORD. NO. 18-03
(2) The insurance coverage obtained by the franchisee in compliance with this
subsection shall be approved by the City and certificates of insurance with thirty 00) days prior
notice of cancellation or material change shall be filed and maintained with the City Manager during
the term of the franchise. The insurance coverage and policy requirements may be reviewed by the
City and may be changed from time to time at the discretion of the City Commission to reflect
changing liability exposure and limits in light of circumstances existing at the time. A franchisee shall
have ninety (90) days from the date of receipt of notice to comply with any such increase.
(3) Insurance policies maintained pursuant to the franchise shall contain the following
conditions by endorsement:
(a) The City shall be designated as an additional insured in the Commercial
General Liability Insurance, and the term "owner" or "City" shall include all authorities, boards,
divisions, departments and offices of the City and the individual members, employees, agents and
contractors thereof in their official capacities and/or while acting on behalf of the City.
(b) Each policy shall be endorsed to provide the City with thirty (30) days
written notice of cancellation of or a material change in the policy.
(c) Insurers shall have no right of subrogation or recovery against the City, it
being the intention that the insurance polities shall protect the City and shall be primary coverage
for all losses covered by the policies.
(13) Indemnity.
A franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its
officials, boards, commissions, commissioners, agents, and employees, against any and all claims,
suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the construction, maintenance or operation of its cable system, the conduct
of the franchisee's business in the City, or in any way arising out of the franchisee's enjoyment or
exercise of a franchise granted hereunder, provided, however, that the franchisee's obligation
hereunder shall not extend to any claims caused by the misconduct or negligence of the City, its
officials, boards, commissioners, agents or employees. This provision includes, but is not limited to,
the City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; 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 47 U.S.C. [ 558; and claims against the franchisee for invasion of
the fight of privacy, defamation of any person, firm or corporation, or the viohtion or infringement
of any copyright, trademark, trade name, service mark or patent, or of any other right of any person.
Nothing in this section shall prohibit the City, at the City's discretion, from participating in the
18 ORD. NO. 18-03
defense of any htigation by its own counsel and obtaining indemnification of the reasonable costs
associated therewith if in the City's reasonable behef there exists or may exist a conflict of interest.
Section 93.13 SECURITY FUND.
(A) The franchisee shall post and keep posted with the City a cash security deposit or non-
revocable letter of credit or a surety bond in a form and in an amount approved by the City m be
used as a security fund to ensure the franchisee's faithful performance of and compliance with all
terms and provisions of this chapter, the franchise agreement and other applicable law, compliance
with all orders, permits and directions of the City, the payment by the franchisee of any claims, liens,
fees, or taxes due the City which arise by reason of the construction, operation or maintenance of
the system, and to indemnify the City against all losses that it may suffer in the event the franchisee
fails to comply with any term or provision of this chapter, the franchise agreement or other
applicable law. The exact form and amount of the security fund as set forth in a franchise agreement
shall be an amount necessary to protect the public, to provide adequate incentive to the franchisee
to comply with this chapter and the franchise agreement, and to enable the City to effectively
enforce compliance therewith. The franchise agreement shall provide for the procedures to be
followed with respect to the security fund.
(B) The form and conditions of the Bonds and the Surety shall be acceptable and satisfactory to
the City and Surety shall be a nationally recognized Surety Company acceptable to the City, listed on
the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal
Bonds and Acceptable Reinsuring Companies" as published in circular 570 (amended) by the Audit
Staff, Bureau of Government Financial Operations, U.S. Treasury Department, all bonds shall be
placed with sureties with a Best Rating of no less than A-VII. Bonds shall be executed and issued by
a resident agent, licensed and having an office in Palm Beach, Dade, Broward or Martin Counties,
Florida, representing such corporate sureties. If the Franchisee is a partnership, the Bond should be
signed by each of the individuals who are partners; if a corporation, the Bond should be signed in
the correct corporate name by duly authorized officer, agent or attorney-in-fact. There should be
executed an appropriate number of counterparts of the bond corresponding to the number of
counterparts in the Franchise. Each executed bond should be accompanied by (a) appropriate
acknowledgment of the respective parties; (b) appropriate duly certified copy of Power-of-Attorney
or other certification of authority where bond is executed by agent, officer or other representative of
Franchisee or Surety; (c) duly certified extract from by-laws or resolutions of Surety under which
Power-of-Attorney, or other certificate of Authority of its agent, officer or representative was issued.
(C) If the surety on any Bond furnished by Franchisee is declared bankrupt or becomes
insolvent or its right to do business is terminated in the state of Florida or it ceases to meet the
requirements of paragraph B, Franchisee shall within ten (10) days thereafter substitute another
Bond, Surety or cash deposit which must be in conformance with paragraph B.
19 ORD. NO. 18-03
(D) The security fund shall be maintained at the amount specified in a Franchise Agreement,
even if amounts have to be withdrawn and replenished pursuant to subsection F.
If the franchisee fails to pay the City any compensation within the time fixed herein, fails to
pay any fines, fails to repay the City within ten (10) days any damages, costs or expenses which the
City is compelled to pay by reason of any act or default of the franchisee in connection with the
franchise, or fails, after fifteen (15) days notice by the City of failure to comply with any provision of
the franchise agreement which the City reasonably determines can be remedied by demand on the
security fund, the City may immediately withdraw the amount thereof, with interest and any
penalties, from the security fund. Upon such withdrawal, the City shall notify the franchisee of the
amount and the date thereof.
(F) Within thirty (30) days after notice to it that any amount has been withdrawn from the
security fund deposited pursuant to subsection A above, the franchisee shall pay to, or deposit with,
the City a sum sufficient to restore such security fund to the mounts specified in subsection A,
whatever the case may be. Failure to replenish the security fund shall subject the franchisee to
penalties. However, replenishment is without prejudice to the franchisee's right under Section 93.25
to contest the validity of the City's withdrawal of money from the security fund.
(G) The fights reserved to the City with respect to the security fund posted pursuant to this
section are in addition to all other rights and remedies the City may have under this chapter, the
franchise agreement, or at law or equity, and no action, proceeding or exercise of a right with respect
to such security fund shall affect any other fight or remedy of the City.
(H) The portion of the security fund deposited pursuant to this section necessary to compensate
the City for damages and costs sustained shall become the property of the City in the event that the
franchise is canceled or terminated by reason of the default of the franchisee. The franchisee,
however, shall be entitled to the remm of such security fund, or portion thereof, without interest, as
remains on deposit with the City at the expiration of the term of the franchise, provided that there is
then no outstanding default on the part of the franchisee.
Section 93.14 CONSTRUCTION BOND.
(A) A franchise agreement shall provide that, prior to any cable system construction, upgrade,
rebuild or other significant work in the public rights-of-way, a franchisee shall establish in the City's
favor a construction bond in an amount specified in the franchise agreement or other authorization
as determined by the City to ensure the franchisee's faithful performance of construction of the
cable system, upgrade, rebuild or other work in the public fights-of-way.
(B) The form and conditions of the Bonds and the Surety shall be acceptable and satisfactory to
the City and Surety shall be a nationally recognized Surety Company acceptable to the City, listed on
the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal
20 ORD. NO. 18-03
Bonds and Acceptable Reinsuring Companies" as published in circular 570 (amended) by the Audit
Staff, Bureau of Government Financial Operations, U.S. Treasury Department, all bonds shall be
placed with sureties with a Best Rating of no less than A-VII. Bonds shall be executed and issued by
a resident agent, licensed and having an office in Palm Beach, Dade, Broward or Martin Counties,
Florida, representing such corporate sureties. If the Franchisee is a partnership, the Bond should be
s~gned by each of the individuals who are partners; if a corporation, the Bond should be signed in
the correct corporate name by duly authorized officer, agent or attorney-in-fact. There should be
executed an appropriate number of counterparts of the bond corresponding to the number of
counterparts in the Franchise. Each executed bond should be accompanied by (a) appropriate
acknowledgment of the respective parties; Co) appropriate duly certified copy of Power-of-Attorney
or other certification of authority where bond is executed by agent, officer or other representative of
Franchisee or Surety; (c) duly certified extract from by-laws or resolutions of Surety under which
Power-of-Attorney, or other certificate of Authority of its agent, officer or representative was issued.
(C) If the surety on any Bond furnished by Franchisee is declared bankrupt or becomes
insolvent or its right to do business is terminated in the state of Florida or it ceases to meet the
requirements of paragraph B, Franchisee shall within ten (10) days thereafter substitute another
Bond, Surety, or cash deposit which must be in conformance with paragraph B.
(D) In the event a franchisee subject to such a construction bond fails to complete the cable
system construction, upgrade, rebuild or other work in the public rights-of-way in a safe, timely and
competent manner in accordance with the provisions of the franchise agreement, then there shall be
recoverable from the principal or surety of the bond, any damages or loss suffered by the City as a
result, including the full amount of any compensation, indemnification or cost of removal or
abandonment of any property of the franchisee, plus a reasonable allowance for attorneys' fees, up
to the full amount of the bond. The City may also recover against the bond any amount recoverable
against the security fund pursuant to Section 93.13 where such amount exceeds that available under
the security fund.
0g) The franchise agreement may specify that sixty (60) days after completion of the cable
system construction, upgrade, rebuild or other work in the public rights-of-way and payment of all
construction obligations of the cable system, the Franchisee may eliminate the bond or reduce its
amount unless the City has made a demand against the deposit or notified Franchisee of a potential
claim and requested maintenance of the security. However, the City may subsequently require the
reestablishment of or an increase in the bond amount for any subsequent construction, upgrade,
rebuild or other work in the public rights-of-way.
(F) The construction bond shall be subject to the approval of the City's Risk Manager and the
City Attorney, and shall provide that:
21 ORD. NO. 18-03
"This bond may not be canceled, or allowed to lapse, until ninety (90) 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."
(G) The rights reserved by the City with respect to any construction bond established pursuant to
this section are in addition to all other rights and remedies the City may have under this chapter, the
franchise agreement, or at law or equity, and no action, proceeding or exercise ora right with respect
to such bond shall effect any other right or remedy of the City.
Section 93.15 MINIMUM FACILITIES AND SERVICES.
(A) The following minimum requirements for facilities and services apply to all franchises. 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 a grant of the application, that the
additional requirements are necessary to meet the City's future cable related needs and interests or to
serve the public interest. The franchisee shall be responsible for obtaining all necessary
governmental and private approvals to satisfy such minimum requirements. City personnel shall not
be responsible for submitting information to the franchisee to ensure that all such approvals are
obtained.
(1) Any cable system that enters into a franchise agreement including, but not limited to
a renewal, or commences construction, including but not limited to initial construction, rebuild,
upgrade, or reconstruction after the effective date hereof, shall have a minimum capacity of not less
than 750 MHz capacity and activated channels of no less than 84 analog channels or the digital
equivalent. A franchise agreement may require a larger minimum channel capacity.
(2) The City shall require that a franchisee provide access channels, facilities and other
support for educational, governmental and/or public use consistent with Section 93.18.
(3) At the request of the City Manager, a franchisee shall cablecast City Commission
meetings on a governmental access channel live to all of its subscribers located within the City.
(4) A franchisee shall provide leased access channels as required by federal law.
(5) At the request of the City Manager, a franchisee shall provide at least one cable
television service outlet per floor and, when available on its system, at least one additional outlet
equipped for on-line access to all City owned or leased buildings and facilities, all buildings and
facilities used for a mumcipal purpose and all public schools that are passed by its cable system, at
no cost to the City or the public schools involved, and shall charge no more than its time and
material costs for providing any such additional service outlets to such facilities or service to
additional facilities. Franchisee shall at minimum, provide basic service to all such outlets at no cost
to the City or facility involved.
22 ORD. NO. 18-03
(6) (a) At the request of the City Manager, a franchisee shall interconnect its cable
system with all other cable systems operating within the City and, to the extent required by law, with
other providers of video programming (i) through independent interconnection or (ii) through
connection to a central facility designated by the City. Said interconnection shall be completed and
activated no later than six (6) months after the date of receipt of notice by the City Manager unless
the City Manager has extended the deadline or waived this obligation upon a showing by a
Franchisee of non-feasibility.
(b) Any application for an initial franchise, a renewal of an existing franchise, or
a transfer of a franchise, which may not have interconnected shall include a proposal for
interconnection.
(c) The costs of such interconnectinn shall be equitably distributed among the
franchisee and the other systems linked based on each affected franchise's respective number of
subscribers.
(7) To the extent required by federal law, a franchisee shall make available to its
subscribers equipment capable of decoding closed circuit captioning information for the hearing
impaired. A franchisee may impose a reasonable charge for such equipment.
(8) Standard installation shall consist of a drop, not exceeding one hundred twenty five
(125) feet from the cable plant to the nearest part of a subscriber's residence.
(9) Cable which is installed nndergronnd in public right-of-way shall be installed a
mimmum depth of thirty (30) inches.
(10) A franchisee shall provide and maintain "general" standby power for each headend.
"Battery" standby power for its system plant shall also be available to provide for up to two (2)
hours of continuous operation of the system.
(11) To the extent permitted by applicable law, a franchisee shall incorporate into its cable
system the capability for the City in times of emergency to override the audio portion of all channels
simultaneously, and the franchisee shall designate a channel (it may be the governmental access
channel) which shall be used for emergency broadcasts of both audio and video. The franchisee shall
also be responsible for ensuring that its cable system is designed, constructed and maintained to
ensure compliance with all applicable federal laws and regulations regarding the emergency alert
systems.
(12) The cable system and all equipment shall be designed and rated for twenty-four (24)
hour seven (7) day-a-week continuous operation.
23 ORD. NO. 18-03
(13) The signals produced by the cable system shall be of high quality throughout the
cable system with no difference perceptible to viewers regardless of whether they are in close
proximity to the headend or at the furthest extension of the trunk line.
(13) Unless a franchise agreement provides other, vise, and subject to Section 93.17, a franchisee
shall make cable serdce available to every dwelling within the franchisee's designated service area as
defined in a franchise agreement.
Section 93.16 TECHNICAL STANDARDS.
(A) Any cable system within the City shall at a minimum meet the technical standards of the
FCC or other applicable federal or state technical standards, including any such standards as
hereinafter may be amended or adopted, including but not limited to digital transmission, HDTV or
other advanced technologies. To the extent required by federal law and FCC hales, all television
signals transmitted on a cable system shall include closed circuit captioning information for the
heating impaked. Antennas, supporting smactures, and outside plants used in the system shall be
designed to comply with all generally accepted industry practices and standards and with all laws.
(13) All construction, inst, ll~tion and maintenance shall comply with the National Electrical
Safety Code, the National Electric Code, the Standard Building Code, and all laws and accepted
industry practices, as hereinafter may be amended or changed or as hereinafter may be adopted or
adopted with amendments by the City.
(C) To the extent required by FCC rules, the franchisee shall perform at its expense proof of
performance tests. At the request of the City, the franchisee shall provide the test results throughout
the term of its franchise. The City shall have the right to inspect the cable system during and after
its construction to ensure compliance with the requirements of the franchise agreement, this
chapter, and FCC standards, provided such inspection does not unreasonably interfere with the
franchisee's operation of the system.
(D) The City may require any other tests as specified in a franchise agreement or applicable law
or regulation, to be performed at the expense of the franchisee. The franchisee shall provide the test
results to the City within thirty 00) days of completion of the tests. If test results show compliance
with applicable federal standards, the City shall reimburse the franchisee for the costs of the test
performed.
(E) A franchisee shall not design, install or operate its facilities in a manner that will interfere
with the signals of any broadcast station, the facilities of any public utility, the cable system of
24 ORD. NO. 18-03
another franchisee, or individual or master antennas used for receiving television or other broadcast
signals in violation of any applicable laws or regulatory standards.
Section 93.17 STRANDING.
(A) Strand-mile density.
(1) Unless a more stringent standard is required under a franchise agreement, a
franchisee shall be required to extend its distribution facilities and provide service to residential and
nonresidential subscribers in any area within the franchise area as designated in a franchise
agreement where there exists fifteen (15) dwelling units for each strand-mile of cable extension
required or portion thereof where the ratio of fifteen (15) dwelling units per strand-mile is
maintained. In the case of any multiple dwelling umt or planned trait development each individual
unit shall be considered a unit and shall be considered a subscriber. In the case of an overbuild, the
franchisee having the technically feasible distribution point closest to the unserved area meeting the
above-referenced density requirements shall be responsible for providing service. The proximity of
the headend shall be determined by measuring the distance of public rights of way and compatible
easements which could be utilized for the facilities and equipment to provide service as identified by
the City Manager.
(2) The franchisee shall not be responsible for providing service in this area or meeting
the density requirements herein or contained in the franchise agreement iff
(a) The franchisee is precluded by the property owner, instrument of record or contract
from providing cable services or construction and installation of facilities and equipment;
Co) Another franchised cable operator is providing such service; or
(c) A SMATV operator is providing cable service to the area.
(3) Nothing herein shall preclude the franchisee from charging for the construction or
installation of facilities and equipment to provide service to subscribers requesting such where the
strand-mile density is less than that required, as set forth in subsection A1 above, provided that
when subscribers are added by utilizing the facilities and equipment for which the requesting
subscribers were charged, the requesting subscribers shall be reimbursed based upon an equitable
arrangement made at the time of the original extension for the requesting subscribers.
(B) Waiver. Subject to review and approval by the City Commission, the City Manager may issue
waivers to the strand-mile density requirements set forth in this section for good cause shown.
Affected persons shall be given notice of the meeting of the City Commission at which the matter of
the waiver will be considered.
25 ORD. NO. 18-03
(C) Compliance with construction schedule. The franchisee shall comply with the construction
schedule contained in its franchise agreement or as otherwise approved by the City Manager.
(D) Construction progress reports required. The franchisee shall furnish the City with a quarterly
construction progress report. The City may establish by rule or regulation a format for this report.
(E) Geographical coverage. The franchisee shall design and construct the distribution plant in
such a manner that when completed it will pass all single-family dwelling units, multiple-family
dwelling units, and schools and properties owned and occupied by public entities or agencies within
the designated franchise area.
(F) Stranding rebuilds. Except when interconnecting the cable system, the franchisee shall not
strand poles in the areas where all facilities and equipment necessary to make service immediately
available to subscribers are not in place and energized within four (4) months of the placing of
strands. The complete facilities and equipment necessary to provide service shall be installed within
four (4) months of the placing of strands unless a longer time schedule is agreed to in a franchise
agreement or approved by the City Manager. Stranding to prevent a competitor from serving an area
shall be prohibited. The franchisee shall remove the old facilities and equipment no later than ninety
(90) days after activation of the new facilities and equipment.
Section 93.18 ACCESS CHANNELS AND FACILITIES.
(A) Unless its franchise agreement expressly provides otherwise, a franchisee shall make
available, without charge, government and educational channels, as follows:
(1) A minimum of one (1) and a maximum of two (.2) local government access channel
for the exclusive noncommercial use of the City of Delray Beach, Florida, the allocation and use of
such to be determined by the City Commission; and
(2) All educational and government access channels carrying programming of the Palm
Beach County School Board and other designated educational institutions within Palm Beach
County. Such channels shall be interconnected with the educational channels of other cable systems
operating in adjacent municipalities and areas within the County.
03) (1) Any application for an initial franchise or renewal of an existing franchise shall
include a proposal for the provision of educational and local government access channels and
equipment and facilities relating to such channels sufficient to meet the City's needs and interests,
taking into account the cost of meeting such needs and interests. At a minimum, a franchisee shall
provide the following number of dedicated access channels: one (1) channel for governmental
access; with a provision to provide a second channel pursuant to terms and conditions set forth in a
franchise agreement, and one (1) channel for educational access, which will include coverage of
26 ORD. NO. 18-03
programming of the Palm Beach Pubhc School Board. Such channels shall be used exclusively for
purposes of educational, governmental access programming unless the City has provided notice to a
Franchisee of the availability of excess time on the channel. The franchisee shall carry and transmit
on its lowest basic service level the educational (E) and governmental (G) programming carried and
transmitted on the access channels approved by the City. These signals shall be of high quality and
made available to the City at no fee.
(2) In addition, all such applications shall include a proposal with respect to the amount
of the support (in the form of a financial grant, equipment, fac~ties, technical services or other
support) to be provided by the franchisee to the City for PEG-related activities sufficient to meet
the City's needs and interests, taking into account the cost of meeting such needs and interests. The
City may request a proposal for an institutional network. All applications shall contain a statement to
the effect that the franchisee agrees that to the extent such support represents capital costs
associated with PEG facilities within the meaning of 47 U.S.C. ~542(g), such support does not
constitute a franchise fee within the meaning of federal or state law.
(C) Local government and educational access channels shall be used exclusively for the non -
commercial purposes designated by the C~ty Commission.
Section 93.19 FRANCHISE FEE.
(A) Unless prohibited by applicable law, a Franchisee, as compensation for the privilege granted
under a franchise for the use of the public rights-of-way to construct, maintain and operate a cable
system, shall pay the City a franchise fee in an amount of either (1) five percent (5%) of the
franchisee's gross revenues; or (2) in the event 47 U.S.C. 8542 or other applicable law is amended to
permit the City to assess a franchise fee of a greater percentage or amount than that specified in
subsection (1) above, or on a broader revenue basis than defined in this chapter, the franchisee shall
pay the City the new percentage or amount as established by the City Commission after a public
hearing of which the franchisee has received notice.
03) Unless prohibited by applicable law, 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 forty-five (45)
calendar days after the end of each calendar quarter. All payments shall be accompanied by a
calculation of gross revenue certified by a certified public accountant or the franchisee's chief
financial officer.
(C) 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
officer. The franchisee shall bear the cost of the preparation of such financial statements.
27 ORD. NO. 18-03
(D) Subject to applicable law, no acceptance by the City of any franchise fee payment shall be
construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance
of payment be construed as a release of any claim the City may have for additional sums payable.
The franchise fee payment is not a payment in lieu of any other tax, fee or assessment.
(F) Unless prohibited by applicable law, the City may, from time to time, and upon reasonable
notice, but in no event not less than ten (10) days prior notice, inspect and audit any and all books
and records of the franchisee relevant to the determination of gross revenues and the computation
of franchise fees due, and may recompute any amounts determined to be payable under the
franchise. The cost of the audit shall be borne by the franchisee if, as a result of the audit, the City
determines that the franchisee has underpaid the franchise fees owed in an amount equal to or
exceeding three percent (3%) of the franchise fees actually paid. A franchisee shall make all books
and records necessary to satisfactorily perform the audit readily available for inspection to the
auditors in the City, or in the alternative, the franchisee shall pay all costs necessary for the City to
perform the audit at a location outside the City.
(G) 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 shall pay a late charge of
eighteen percent (18%) per annum of the amount of the unpaid or underpaid franchise fee payment,
provided, however, that such rate does not exceed the maximum amount allowed under Florida law,
and that the franchisee shall not be responsible for paying interest on delinquent franchise fees
resulting from erroneous database information provided by the City. Any interest and/or late charge
paid by the franchisee is intended to be a charge incidental to the enforcement of a franchise within
the meaning of 47 U.S.C. [542(g)(2)(D), and may not be deducted from the franchise fee imposed
by this chapter or any franchise agreement. Furthermore, the City may invoke all fights and remedies
available under applicable law and this chapter.
(H) If a franchise is revoked or terminates for whatever reason, the franchisee shall file with the
City within sixty (60) calendar days of the date its operations in the City cease, a financial statement,
certified by a certified public accountant or the franchisee's chief financial officer, showing the gross
revenues received by the franchisee since the end of the previous fiscal year. Adjustments shall be
made at that time for franchise fees due to the date that the franchisee's operations ceased.
(1) Any transaction or arrangement which has the effect of circumventing payment of
franchise fees and/or evasion of payment of franchise fees (for example, by non-collection of
revenues, non-reporting of revenues, collection of revenues by parents, affiliates or subsidiaries,
bartering, or any other means) from the operation of the franchisee's cable system to provide cable
service in the City is strictly prohibited.
28 ORD. NO. 18-03
(j) As of the date hereof, the City recognizes that Florida Law prohibits the City fi:om collecting
a franchise fee as set forth in this Section 93.19. However, the City hereby reserves all authority it
may now or subsequendy have to collect franchise fees from cable franchisees or other users of the
public rights of way within the City.
Section 93.20 REPORTS AND RECORDS.
(A) Within forty-five (45) days after the expiration of the calendar quarter and upon written
request by the City, a franchisee shall provide the City a quarterly report which includes the
following information:
(1) A summary of the previous quarter's activities in development of the system,
including but not limited to, services imtiated or discontinued, number of subscribers for each tier or
type of service (including gains and losses), homes passed, and miles of cable distribution plant in
service. The summary shall also include a comparison of any construction, including system
upgrades, during the quarter with any projections previously provided to the City, as well as rate and
charge increases and/or decreases for the previous fiscal year.
(2) A copy of updated strand maps depicting the location of all cable plants, showing
areas served and locations of all trunk lines and feeder lines in the ~xty. When such maps are
generally available in digitized form, those maps shall be made available in digitized form to the City
at the franchisee's expense. Upon request by the City, as-built maps may be reviewed at the local
office of the franchisee.
(3) A summary of the number, type and duration of outages, the reason for the outage,
and the number of subscribers affected.
(4) A log of all subscriber complaints, including the date of the complaint, nature of the
complaint and the date and form of resolution of the matter.
(13) Unless prohibited by applicable law, upon request of the City, a franchisee shall provide, on
an annual basis and upon written request, the following documents to the City as received or filed,
without regard to whether the documents are filed by the franchisee or an affiliate:
(1) A financial statement, including a statement of revenues and a statement of sources
of revenues. The statement shall be audited if the franchisee has statements audited in its normal
course of business. If not, the statement shall be certified by a certified public accountant or the
officer of the franchise. The statement shall include notes that specify all significant accounting
policies and practices upon which it is based. A summary shall be provided comparing the current
year with previous years since the beginning of the franchise.
29 ORD. NO. 18-03
(2) If the franchisee is a corporation, a list of officers and members of the board of
directors; the officers and members of the board of directors of any parent corporation; if the
franchisee or its parent corporation's stock or ownership interests are publicly traded, a copy of its
most recent annual report; and a list of all persons holding five percent (5%) or more ownership or
othezaxdse cognizable interest in the franchisee pursuant to 47 C.F.R. 76.501.
(3) A copy of the franchisee's rules and regulations applicable to its subscribers.
(4) A full schedule and description of services, service hours and location of the
franchisee's customer service office(s) available to subscribers, and a schedule of all rates, fees and
charges for all services provided over the cable system.
(5) Any and all pleadings, petitions, applications, communications, reports and
documents (collectively referred to as "filings") submitted by or on behalf of the franchisee to the
FTC, FCC, SEC, FPSC or any state or federal agency, court or regulatory commission, which filings
may impact the franchisee's operation of the franchisee's cable system or that may impact the City's
rights or obligations under this chapter or the franchise agreement issued pursuant to this chapter,
and any and all responses, if any, to the above mentioned filings.
(6) Any and all notices of deficiency, forfeiture, or documents instituting any
investigation, civ'fl or criminal proceeding issued by any state or federal agency regarding the cable
system, franchisee, or any affiliate of the franchisee, provided, however, that any such notice or
documents relating to an affiliate need be provided only to the extent the same may directly or
indirectly affect or bear on the franchisee's operations in the City.
(7) Any request for protection under bankruptcy laws or any iudgment related to a
declaration of bankruptcy.
(8) Notwithstanding anything to the contrary, the franchisee shall provide the City,
within thirty (30) days of filing or receipt of such, any document that may adversely impact the
construction, operation or maintenance of the franchisee's cable system.
(C) Upon written request by the franchisee and subject to applicable law, including Chapter 119
of the Florida Statutes, information of a proprietary nature submitted by the franchisee to the City
pursuant to this chapter or a franchise agreement shall not be made available for public inspection.
The City shall promptly notify a franchisee of any request it receives from a third party for such
information.
Section 93.21 CUSTOMER SERVICE REOUIREMENTS.
(A) A franchisee shall maintain ali parts of its system in good condition and, at minimum, in
accordance with standards no less than those generally observed by the cable television industry. A
30 ORD. NO. 18-03
sufficient number of employees shall be retained to provide safe, adequate, and prompt service for
atl of its customers and facilities.
(B) BuSiness office.
(1) A franchisee shall maintain an office and service center located within the City or no
further than five (5) road miles from the City's border to which subscribers may visit and telephone
without incurring added message units or toll charges. This business office shall be open from, at
minimum, 8:00 a.m. to 5:30 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m. on Saturday.
This business office shall be so operated that complaints and requests for repairs or adjustments
may be received by telephone twenty-four (24) hours per day, seven (7) days per week including
holidays. A franchisee shall be subject to liquidated damages in the amount of Two Hundred Dollars
($200.00) for each violation of this section with each incident and each day or part thereof
considered a separate violation.
(2) If franchisee does not locate its business office within five (5) road miles of the city
limits of the city, it shall either provide subscribers free pick-up and delivery of decoder boxes,
remote controls and other cable television customer premises equipment within twenty-four (24)
hours of receiv'mg a customer's request for such pick-up or delivery; provide a customer service
center located within five (5) road miles of the city limits of the city, said customer service center to
be adequately equipped and staffed to enable subscribers to pay bills and to pick up and return, all
cable television customer premises equipment. Customer service centers shall be open from 8:00
a.m. to 5:00 p.m., with at least one night being open until 9:00 p.m. , Monday through Friday. In
addition, the customer service center(s) must be open at least during the hours of 10:00 a.m. to 2:00
p.m. on Saturday. The business office or customer service center shall provide adequate parking,
adequate seating and an air conditioned waiting area. A franchisee shall be subject to liquidated
damages in the amount of Two Hundred Dollars ($200.00) for each violation of this section with
each incident and each day or part thereof considered a separate violation.
(C) Franchisee shall maintain a publicly listed local, toll-free telephone number and employ a
sufficient number of telephone lines, personnel and answering equipment or service to allow
reasonable access by subscribers and members of the public to contact the franchisee on a full-time
basis, twenty-four (24) hours per day, seven (7) days per week including holidays. Knowledgeable,
qualified franchisee representatives w'fll be available to respond to customer telephone inquiries,
Monday through Friday from 8:30 a.m. to 8:00 p.m.; and on Saturday from 8:30 a.m. until 5:00 p.m..
With respect to those calls received during the hours which franchisee is not required to provide
qualified franchisee representatives under this subsection, an answering machine or service capable
of receiving and recording service complaints shall be employed. Franchisee shall comply with the
telephone answer time standards set forth in subsection (D) below. A franchisee shall be subject to
liquidated damages in the amount of Two Hundred Dollars ($200.00) for each violation of this
section with each incident and each day or part thereof considered a separate violation.
31 ORD. NO. 18-03
(12)) Franchisee shall answer all customer service and repair telephone calls made under normal
operating conditions within thirty (30) seconds, including wait time and within an additional th/rty
00) seconds to transfer the call. Customers shall receive a busy signal less than three 0) percent of
the time. These standards shall be met no less than ninety (90) percent of the time under normal
operating conditions, measured on a quarterly basis. Franchisee shall submit a monthly telephone
log report to the ~lty on a quarterly basis no later than the 15~h of the month following the last
month of each quarter. A franchisee shall be subject to liquidated damages in the amount of Five
Hundred Dollars ($500.00) for each month Franchisee fails to satisfy the standard set forth herein.
0g) A franchisee shall employ and maintain sufficient planned personnel and equipment to be
available (i) to accept payments; (ii) to exchange or accept converters or other equipment; (fii) to
initiate service installations, undertake normal repairs, and imtiate action with respect to subscriber
service complaints on Monday through Friday, from 8:30 a.m. to 6:00 p.m., and on Saturday from
8:00 a.m. through 5:00 p.m.; and (iv) to enable a service technician to respond to any service call
received between 8:00 a.m. and 7:00 p.m., Monday through Friday, and 9:00 a.m. to 5:00 p.m. on
Saturdays, by the end of the next day, seven (7) days a week including holidays. A franchisee shall be
subject to liquidated damages in the amount of Five Hundred Dollars ($500.00) for each violation of
this section with each incident and each day or part thereof considered a separate violation.
(F) Franchisee must meet each of the following standards no less than ninety-five (95) percent
of the time under normal operating conditions as measured on a quarterly basis:
(1) Standard installation work shall be performed within seven (7) calendar days after an
order has been placed except in those instances where a subscriber specifically requests an
installation date beyond the seven (7) calendar day period. "Standard" installations are up to one
hundred twenty-five (125) feet from the existing distribution system. If scheduled installation is
neither started nor completed as scheduled, the subscriber w'fll be telephoned by an employee of the
franchise the same day. Evening personnel shall also attempt to call subscribers at their homes
between the hours of 5:30 and 8:00 p.m. If the call to the subscriber is not answered, an employee of
the franchisee shall telephone the subscriber the next day. A franchisee shall be subject to liquidated
damages in the amount of Two Hundred Dollars ($200.00) for each violation of this section with
each incident and each day or part thereof considered a separate violation.
(2) Franchisee will respond to service interruptions promptly and in no event later than
twenty-four (24) hours after the interruption becomes known. Other service problems will be
responded to promptly and in no event later than forty-eight (48) hours after the problem becomes
known. All servme interruptions, and service problems within the control of franchisee, will be
corrected within seventy-two (72) hours after receipt of a complaint. A franchisee shall be subject to
liquidated damages in the amount of One Hundred Dollars ($100.00) for each violation of this
section with each incident and each day or part thereof considered a separate violation.
32 ORD. NO. 18-03
(3) The appointment window alternatives made av, ihble for instulhtions, service calls,
repairs, and other inst, ll,tlon 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". A franchisee
shall be subject to liquidated damages in the amount of One Hundred Dollars ($100.00) for each
violation of this section with each incident and each day or part thereof considered a separate
(4) Franchisee may not cancel an appointment with a subscriber after the close of
business on the business day prior to the scheduled appointment. A franchisee shall be subject to
liquidated damages in the amount of One Hundred Dollars ($100.00) for each violation of this
section with each incident and each day or part thereof considered a separate violation.
(5) If at any time an installer or technician is running more than thirty (30) minutes 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. A franchisee shall be
subject to liquidated damages in the amount of One Hundred Dollars ($100.00) for each violation of
this section with each incident and each day or part thereof considered a separate violation.
(G) Installation work shall be prioritized as follows:
(1) Service change and rescheduling of appointments for existing subscribers;
(2) Instalhfion of service for new subscribers;
(3) Disconnection of service for existing subscribers.
Subscribers who have experienced two (2) missed installation or service appointments due to the
fault of franchisee shall receive installation free of charge. If the installation was to have been
provided free of charge or if the appointment was for service or repair, the subscriber shall receive
three (3) months of the most widely subscribed to service tier free of charge.
(Iq) Disconnection.
(1) Voluntary disconnection,
a. A subscriber may terminate service at any time.
b. A franchisee shall promptly disconnect any subscriber who so requests from
the franchisee's cable system. No period of notice prior to voluntary termination of service may be
required of subscribers by any franchisee. So long as the subscriber returns equipment within three
(3) business days of the disconnection, no charge may be imposed by any franchisee for such
voluntary disconnection, or for any cable services delivered after the date of disconnect request. A
33 ORD. NO. 18-03
franchisee shall be subject to liquidated damages in the amount of One Hundred Dollars ($100.00)
for each violation of this section with each incident and each day or part thereof considered a
separate violation.
c. A subscriber may be asked, but not required, to disconnect the franchisee's
equipment and return it to the business office.
d. Any security deposit and/or other fimds due the subscriber shall be refunded
on disconnected accounts after the converter has been recovered by the franchisee. The refund
process shall take a maximum of thirty (30) days from the date disconnection was requested to the
date the customer receives the refund. A franchisee shall be subject to liquidated damages in the
amount of Fifty Dollars ($50.00) plus interest for each violation of this section with each incident
and each month or l~flling cycle considered a separate violation.
(2) Involuntary disconnection. If a subscriber fails to pay a monthly subscriber or other
fee or charge, the franchisee may disconnect the subscribers service outlet; however, such
disconnection shall not be effected until forty-five (45) days after the due date of the monthly
subscriber fee or other charge, and ten (10) days advance written notice of intent to disconnect to
the subscriber in question. If the subscriber pays within forty-five (45) days of the due date and after
notice of disconnection has been given, the franchisee shall not disconnect. After disconnection,
upon payment by the subscriber in full of all proper fees or charges, including the payment of the
reconnection charge, if any, the franchisee shall promptly rimstate service. A franchisee shall be
subiect to liquidated damages in the amount of One Hundred Dollars ($100.00) for each violation of
this section with each incident and each day or part thereof considered a separate violation.
(3) Nothing in this article shall be construed to prevent the franchisee from removing its
property from a subscriber's premises upon the termination of service. At the subscriber's request, a
franchisee shall remove all of its facilities and equipment from the subscriber's premises within
seven (7) calendar days of the subscriber's request. Where removal is impractical, such as with buried
cable or internal wiring, facilities and equipment may be disconnected and abandoned rather than
removed, unless there is a written agreement stating otherwise, provided, however, that such
agreement must be consistent with applicable law and FCC rules.
(1) Franchisee shall intentionally interrupt serAce only for good cause and for the shortest time
possible. Franchisee shall use its best efforts to insure that such interruptions shall occur only during
the hours of 1:00 a.m. to 6:00 a.m. Franchisee shall maintain a written log for all intentional service
interruptions. A franchisee shall be subiect to liquidated damages in the amount of Five Hundred
Dollars ($500.00) for each violation of this section with each incident and each day or part thereof
considered a separate violation.
0) Franchisee shall notify the City Manager immediately if a service interruption affects two
hundred (200) or more subscribers for a time period greater than four (4) hours. A franchisee shall
34 ORD. NO. 18-03
be subject to liquidated damages in the amount of Two Hundred Dollars ($200.00) for each
violation of this section with each incident and each day or part thereof considered a separate
violation.
(K) Franchisee shall cause all its field employees to wear a picture identification badge indicating
their employment by franchisee. This badge shall be clearly visible to the public. A franchisee shall
be subject to liquidated damages in the amount of Two Hundred Dollars ($200.00) for each
violation of this section with each incident and each day or part thereof considered a separate
violation.
(L) A franchisee shall develop written procedures for the investigation and resolution of all
subscriber or city resident complaints, including, but not limited to, those regarding the quality of
service and equipment malfunction, which procedures shall be submitted for review and approval by
the City Manager. Implementation of any such procedures prior to receipt of approval from the City
Manager shall be a violation of this Ordinance and considered void ab initio. A subscriber or city
resident who has not been satisfied by fullow'mg the franchisee's procedures may file a written
complaint with the City Manager, who v/ill investigate the matter and, in consultation with the
franchisee as appropriate, attempt to resolve the matter. A franchisee's good faith or lack thereof in
attempting to resolve subscriber and resident complaints in a fair and equitable manner will be
considered in connection with the franchisee's renewal application. Franchisee shall maintain a
complete list of all complaints not resolved within seven (7) days of receipt and the measures taken
to resolve them. This list shall be compiled in a form to be approved by the City Manager. It shall be
compiled on a monthly basis. The list for each calendar month shall be supplied to the City Manager
no later than the fifteenth day of the next month. Franchisee shall also maintain a list of all
complaints received, which list will be available to the City Manager. A franchisee shall be subject to
liquidated damages in the amount of Two Hundred Dollars ($200.00) for each violation of this
section with each incident and each day or part thereof considered a separate violation.
('M) Franchisee shall permit the City Manager or def~nee to inspect and test the system's
technical equipment and facilities upon reasonable (12 to 24-hours') notice. A franchisee shall be
subject to liquidated damages in the amount of One Thousand Dollars ($1,000.00) for each violation
of this section with each incident and each day or part thereof considered a separate violation.
(lq) Franchisee shall abide by the following requirements governing communications with
customers, bills and refunds:
(1) Each franchisee shall provide to subscribers written information in each of the
following areas at the time of installation, at least once annually, and at any future time upon request
by the subscriber. A franchisee shall be subject to liquidated damages in the amount of Two
Hundred Dollars ($200.00) for each violation of this section with each incident and each day or part
thereof considered a separate violation.
35 ORD. NO. 18-03
a. How to use the cable service;
b. Insr, llafion and senrice maintenance pohcies;
c. The products and services offered;
d. Prices and service options;
e. Channel positions of programming carded on the system;
f. The franchisee's procedures for the receipt and resolution of customer
complaints, the franchisee's address and telephone number to which complaints may be reported,
and the hours of operation;
g. The telephone number and address of the city's office and the county's office
designated to handle cable television complaints and inquiries;
h. The availability of a "lock-out" device;
i. The availability of an input selector, or AB switch, and identification of those
local broadcast stations not carded on franchisee's system;
j. The franchisee's information collection and disclosure policies for the
protection of a subscriber's privacy; and
Complaint and dispute resolution procedures as approved by the City
Manager.
(2) In addition, each franchisee shall provide written notice in its monthly billing, at the
request of the City Manager, of any City meeting regarding requests or applications by the franchisee
for renewal, transfer or modification of its license. The City Manager shall make such a request in
writing, no less than forty-five (45) days prior to the mailing of any billing by franchisee. Said notices
shall be made at franchisee's expense and said expense shall not be considered part of the franchise
fee assessed pursuant to this article and shall not be regarded as a franchise fee, as the term is
defined in Section 622 of the Commumcations Act, 47 U.S.C. Section 542.
(3) Franchisee's bills will be clear, concise and understandable and comply with Section
(P) below. A franchisee shall be subject to liquidated damages in the amount of Fifty Dollars
($50.00) for each violation of this section with each incident and each day or part thereof considered
a separate violation.
36 ORD. NO. 18-03
(4) Refund checks will be issued promptly, but no later than the earlier of thirty (50)
days or the customer's next billing cycle following the resolution ora refund request, or the return of
the equipment supplied by the franchisee if service is terminated. A franchisee shall be subject to
liquidated damages in the amount of Fifty Dollars ($50.00) for each violation of this section with
each incident and each day or part thereof considered a separate violation.
(5) Credits for service will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted. A franchisee shall be subject to liquidated
damages in the amount of Fifty Dollars ($50.00) for each violation of this section with each incident
and each day or part thereof considered a separate violation.
(6) A franchisee shall provide subscribers, the City Manager, and the City Commission
with at least thirty (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. A
franchisee shall be subject to liquidated damages in the amount of One Thousand Dollars
($1,000.00) for each violation of this section with each incident and each day or part thereof
considered a separate violation.
(O) A franchisee shall, upon an affected subscriber's request, provide a pro-rated 24-hour credit
to the subscriber's account for any period of four (4) hours or more within a 24-hour period during
which a subscriber experienced an outage of service or substantial impairment of service, whether
due to a system malfunction or other cause. A franchisee shall be subject to liquidated damages in
the amount of Fifty Dollars ($50.00) for each violation of this section with each incident and each
day or part thereof considered a separate violation.
(P) mtL g.
(1) The franchisee's first billing statement after a new installation or service change shall
be pro-rated as appropriate and shall reflect any security deposit.
(2) The franchisee's billing statement must be fully itemized, with itemizations including,
but not limited to, basic and premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional charges, rebates, and credits.
(3) The franchisee's billing statement must show a specific payment due date not earlier
than twenty (20) days after the date the statement is mailed. Any balance not received by the due
date may be assessed a late charge consistent with applicable law. The late charge will appear on the
following month's billing statement.
a. The franchisee's billing statement shall show a specific due date no earlier
than ten (10) days after the date of the begriming of the service period. Any balance not received
within twenty-five (25) days after the due date may be assessed an administrative charge not to
37 ORD. NO. 18-03
exceed either (1) $4.00 or (2) the actual costs directly related to the collection of balances overdue,
whichever amount is higher. However, if the franchisee intends to assess an administrative charge
which exceeds $4.00, before assessing or continuing to assess such charge, the franchisee shall
demonstrate to the satisfaction of the City that its actual costs exceed $4.00. Thereafter, whenever
the franchisee intends to raise such charge by any additional amount, before raising such charge, the
franchisee shall demonstrate to the satisfaction of the City that its actual costs necessitate rai£mg
such charge. The charge shall appear on the following month's billing statement. For purposes of
this subsection, "actual costs" do not include such items as bad debt, the costs of field
disconnection, and fixed costs which exist regardless of costs caused by late payers. In the event it is
determined by the City that a franchisee has assessed a late fee in violation of this chapter, the City
shall have the right to order the franchisee to pay its subscribers a refund retroactive to the date that
such fee was assessed in violation of this chapter.
i. Any administrative charge applied to unpaid bills shall be subject to
regulation by the City consistent with applicable law.
ii. A subscriber shall not be charged an administrative fee, a late fee or
otherv/lse penalized for any failure by the franchisee, its employees, or its contractors, including
failure to timely or correctly l~fll the subscriber, or failure to properly credit the subscriber for a
payment timely received.
b. Subscribers shall not be charged a late fee or otherwise penalized for any
failure by the franchisee, its employees, or contractors, including failure to timely or correctly bill the
subscriber, or failure to properly credit the subscriber for a payment timely made.
(4) The franchisee must notify the subscriber that he or she can remit payment in person
at the franchisee's office in the City and inform the subscriber of the address of that office.
(00 Alteration of service. A franchisee may not substantially alter the service being provided to a
subscriber (including by re-tiering, restructuring a tier or otherwise) without the express affirmative
permission of such subscriber, unless it complies with this subsection. A franchisee shall be subject
to liquidated damages in the amount of Fifty Dollars ($50.00) for each violation of this section with
each incident and each day or part thereof considered a separate violation.
(1) If a franchisee wishes to alter the service b(mg provided to a subscriber (including by
re-tiering, restructuring a tier or otherwise) in such a way that the subscriber will no longer be able to
obtain the same package of services then the franchisee must provide the subscriber with thirty (30)
days notice of such alteration, explain the substance and the full effect of the alteration, and provide
the subscriber the right within the sixty (60) day period follov/mg notice, to opt to receive any
combination of services offered by the franchisee.
38 ORD. NO. 1843
(2) Except 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.
(R) Franchisee shall certify in writing to the City as of January 1 and July 1 of each year based
upon internal due diligence by the franchisee that to the best of franchisee's knowledge it is in
substantial compliance with the standards set forth in this section, said certification to be made as of
a date within thirty (30) days of January 1 and July 1. At the request of the City, the franchisee shall
submit such documentation, as may be required, to demonstrate franchisee's compliance with this
section. This documentation shall be submitted within thirty 00) days of the franchisee's receipt of
the City's request.
(S) In addition to complying with the customer service requirements set forth in this chapter or
in a franchise agreement, a franchisee shall comply with all customer service requirements applicable
to cable systems as adopted by the FCC and any other applicable law concerning customer service
requirements, consumer protection, and unfair or deceptive trade practices.
(T) Negative option billing is prohibited. Accordingly, a cable operator shall not charge a
subscriber for any service or equipment that the subscriber has not affirmatively requested by name.
For purposes of this subsection, a subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment shall not be deemed to be an affirmative request for such service
or equipment.
03) To the extent not inconsistent with any applicable law, the City expressly reserves the tight
to consider violations of the customer service requirements in evaluating any renewal, transfer or
modification of any franchise agreement.
Section 93.22 SUBSCRIBER PRIVACY.
(A) A franchisee shall at all times protect subscriber privacy to the full extent required by 47
U.S.C. §551 and applicable state law.
(B) Additionally, a franchisee shall not condition subscriber or other service on the subscriber's
grant of permission to disclose information which, pursuant to federal or state law, cannot be
disclosed without the subscriber's explicit consent. No penalties or extra charges may be invoked by
the franchisee for a subscriber's failure to grant consent.
(C) Unless otherwise permitted by federal and state law, neither the franchisee nor its agents,
employees or affiliates shall, without the prior and specific written authorization of the subscriber
involved, sell, or otherwise make available for commercial purposes the name, address or telephone
numbers of any subscriber, or any information which identities the individual viewing habits of any
subscriber.
39 ORD. NO. 18-03
$¢qtion 93.23 DISCRIMINATION PROHIBITED.
(A) No franchisee may in its rates or charges, or in the awihbility of the services or facilities of
its system, or in any other respect, make or grant illegal preferences or advantages to any subscriber,
potential subscriber, or group of subscribers or potential subscribers, nor subject any such persons
or group of persons to any illegal 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, disability or handicap, national origin, marital status, or political affiliation,
except for discounts for senior citizens, the economically disadvantaged or handicapped that are
applied in a uniform and consistent manner. A franchisee may also offer bulk discounts to multiple
dwelling buildings if such discounts are applied in a uniform and consistent manner, but only to the
extent such discounts are otherwise permitted by law.
(B) A franchisee shall not deny cable service to any potential subscriber because of the income
of the residents of the area in which the subscriber resides.
(C) A franchisee shall not refuse to employ, nor discharge from employment, nor discriminate
against any person in compensation or in terms, conditions or privileges of employment because of
age, race, creed, religion, color, sex, disability or handicap, 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 be from time to time amended. If Franchisee
violates any federal, state or local law or regulation, such violation shall be presumed a violation of
this Ordinance.
Section 93.24 USE OF PUBLIC RIGHTS-OF-WAY.
{A) Any public rights-of-way excavated or otherwise disturbed by a franchisee shall be done
under the supervision and direction of the City under permits issued for work by the City, and shall
be done in such manner as to give the least inconvenience to the people of the City. A franchisee
shall, at its own cost and expense, and in a manner approved by the City, replace and restore any
such rights-of-way to as good a condition as before the work was done, and shall also prepare,
maintain and provide to the City Engineer full and complete plats, maps and records showing the
exact locations of its facilities located within the public rights-of-way, as may be required under the
City's permitting procedures.
(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 conditions, public safety, street construction, street resurfacing or widening, change of
street grade, installation of sewers, drains, water pipes, or any other type of governmental
improvement; provided, however, that the franchisee shall, in any such case, have the privilege of
40 ORD. NO. 18-03
abandoning any property in place. If any other franchise cable operators are reimbursed for this
expense, then franchisee shall also be compensated at the same rate.
(C) A franchisee shall, at the request of any person holding a building moving permit issued by
the City, temporarily raise or lower its wires, cables, eteetera to permit the moving of the building.
The expense of such temporary removal or raising or lowering of wires shall be paid by the person
requesting same, and the franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall be
required. The franchisee shall be given not less than seven (7) business days advance notice to
arrange for such temporary cable or wire changes.
OD) A franchisee shall upon notice to the City of not less than seven (7) business days, have the
authority to trim trees or other natural growth upon or overhanging public rights-of-way so as to
prevent the branches of such trees or other natural growth from contacting wires, cables or other
facilities or equipment of the franchisee, except that, at the option of the City, such trimming may be
done by the City or under its supervision and direction at the expense of the franchisee.
(E) Underground. In those areas of the franchise area where the transmission or distribution
facilities of both the public utility providing telephone service and those of the utility providing
electrical services are underground or hereafter may be placed underground, the franchisee shall at
its expense likewise construct, operate and maintain all of its transmission and distribution facilities
underground. As transmission and distribution lines of such utilities are converted from overhead to
underground inst~llations within the franchise area, the franchisee's transmission and distribution
system shall also be so converted. The installation of new poles shall require specific approval of the
City, which consent shall not be unreasonably withheld. All installations shall be made in accordance
with the National Electrical Safety Code. Upon the request of the City, copies of agreements
between a franchisee and a third party for use of conduits, poles or other facilities shall be filed with
the City, provided that the franchisee shall have the right to redact proprietary and confidential
information in such agreements as it pertains to financial arrangements between the parties.
(F) All wires, cables, and other transmission lines, equipment and structures shall be installed
and located to cause minimum interference with the rights and convenience of property owners.
The City may adopt such rules and regulations concerning the installation and maintenance of a
cable system installed in, on, or over public rights-of-way, as may be consistent with this chapter, the
franchise agreement and applicable local, state or federal law.
(G) All safety practices required by law shall be followed during construction, maintenance,
repair and operation of a cable system. A franchisee shall not place facilities, equipment or fixtures
where they will interfere with any pre-existing gas, electric, telephone, water, sewer or other utility
facilities, so as to obstruct or hinder in any manner the various utilities serving the residents of the
City or their use of any street or any other public right of way.
41 ORD. NO. 18-03
(H) A franchisee shall, at all times:
(1) Install and maintain its wires, cables, fixtures and other equipment in accordance
with the requirements of any applicable building code 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 structures, lines, cables, equipment, and connections in, over, under, and upon the public
rights-of-way.
(I) The City shall encourage, to the extent feasible, that a public utility and the franchisee
cooperate in opening up trenches and making such trenches available to all parties with the
understanding that the costs of opening and refilling of such trenches will be shared equitably by all
users of such trenches. The franchisee shall at all times comply with the requirements of the Trench
Safety Act codified at Sections 553.60 through 553.64, Florida Statutes.
0) In the event the use of any part of a cable system is discontinued for any reason for a
continuous period of twelve (12) months, or in the event such system or property has been installed
in any public rights-of-way without complying with the requirements of this chapter or a franchise
agreement, or the franchise has been terminated, canceled or expired and no renewal proceedings
are pending, the franchisee shall, within tifilty (30) days after written notice by the City, commence
removal from the public rights-of-way of all such property as the City may reasonably require.
(K) The City may extend the time for the removal of the franchisee's equipment and facilities for
a period not to exceed one hundred eighty (180) days, and thereafter such equipment and facilities
may be deemed abandoned.
(L) In the event of such removal or abandonment, the franchisee shall restore the area to as
good a condition as prior to such removal or abandonment.
OM) Permits and compatible easements.
(1) It shall be the responsibility of the franchisee to obtain all necessary written permits
and approvals of governmental agencies and easement holders prior to beginning installation. It shall
also be its responsibility to determine any conflicts of its proposed installation with the facilities or
equipment of other easement holders or beneficiaries.
(2) The franchisee shall join and maintain a continuous membership in Sunshine State
One-Call of Florida, Inc., and use its services prior to each installation.
(3) The cable operator shall comply with the provisions of 47 U.S.C. 2541(a).
42 ORD. NO. 18-03
(4) Underground installations in compatible easements shall be in accordance with the
Na~ionalElectffcalS~e~ Code and all other applicable laws, codes and regulations.
(5) Delivery equipment including pedestals, amplifiers and power supplies installed or
worked on by the franchisee shall be marked by the franchisee with the name of the franchisee. All
pedestals and amplifiers of the cable operator shall be marked within eighteen (18) months of the
effective date of this Ordinance.
(6) Upon request from the City, the franchisee shall permit representatives of the City to
inspect as-built plans of the installation in compatible easements at Franchisee's office in the City.
Section 93.25 ENFORCEMENT REMEDIES.
(A) In addition to any other rights or remedies available at law or equity or provided under this
chapter, the City may apply any one or combination of the following remedies in the event a
franchisee violates this chapter, its franchise agreement, or any applicable federal, state or local law
or orderl
(1) Impose liquidated damages in the amount of Five Hundred Dollars ($500.00) per
violation or order subscriber refunds in such amount, or as provided below or in a franchise
agreement. Payment of liquidated damages or refunds by the franchisee shall not relieve the
franchisee of its obligation to comply with this chapter or the franchise agreement.
(2) In the event of failure to obtain the applicable grant of authority to operate a cable
system including, but not limited to failure to obtain a franchise or in the event of transfer or change
of control of the franchise or the system without prior approval of the City a Franchisee shall pay to
the City, liquidated damages in the amount of One Thousand Dollars ($1,000.00) per day with each
day constituting a separate violation.
0) In the event of a failure to produce insurance, bonds, letters of credit or other forms
of surety as required herein, a Franchisee shall pay to the City, liquidated damages in the amount of
Five Hundred Dollars ($500.00) per instrument per day with each day constituting a separate
violation.
(4) In the event of a failure to complete the system const_mction, upgrade or rebuild as
required herein or in a franchise agreement, a Franchisee shall pay to the City, liquidated damages in
the amount of Two Thousand Dollars ($2,000.00 per day with each day constituting a separate
violation.
(5) Whenever the City Manager recetves information that a franchisee has allegedly
violated any provision of this chapter or the franchise agreement, such franchisee shall have thirty
(30) days subsequent to receipt of notice to correct the alleged violation. If after 15 days, the
43 ORD. NO. 18-03
franchisee has failed to correct the alleged violation, the City Manager shall determine ff the
franchisee has actually committed the alleged violation and shall set forth with reasonable specificity
the circumstances and the nature of the alleged violation(s). If a violation is found, the fine assessed
shall be deemed to have accrued from the date of the initial notice to the franchisee and shall
continue until such time as the violation is corrected or otherwise resolved to the satisfaction of the
City Manager. The franchisee shall have thirty (30) days from the date of the City Manager's decision
to file a written request with the City Manager petitioning the City comrmssion for review of the
violation finding(s). If the franchisee timely files such a written request, the City Commission shall
review the decision at a public hearing at which interested parties may be heard, and thereafter
approve it, modify it, or disapprove it.
(6) The City Commission reserves the right to automatically withdraw any such
assessments from the security fund upon three (3) days written notice to the franchisee. It is the
intent of the City to impose the applicable above referenced assessments as a reasonable estimate of
the damages suffered by the City and/or its subscribers, whether actual or potential, and may
include without limitation, increased costs of administration and other damages too difficult to
(7) The City Commission reserves the fight to amend the assessment mounts or to
adopt further assessments for violations not specifically set forth in subsection (A)(1) above.
(8) The procedure, rights and remedies set forth in this section are not exdusive.
Alternative remedies which are not set forth in this section may be pursued simultaneously or
subsequently. Utilization by the City of the liquidated damages provisions set forth in this chapter
shall not constitute a waiver of any such alternative remedies.
(9) Revoke the Franchise pursuant to the procedures specified in Section 93.28 hereof.
(10) In addition to or instead of any other remedy, the City may seek legal or equitable
relief from any court of competent iurisdiction.
(11) If after heating the dispute the claim is uphdd by the City, Franchisee shall have ten
(10) business days from such a determination to remedy the violation or failure.
(12) In determining which remedy or remedies are appropriate, the City shall take into
considerafon the nature of the violation, the person or persons bearing 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.
(13) The time for Franchisee to correct any alleged violation may be extended by the City
if the necessary action to correct the alleged violation is of such a nature or character to require
more than thirty (30) days within which to perform provided Franchisee commences the corrective
44 ORD. NO. 18-03
action within the thirty (30) day period and thereafter uses reasonable diligence to correct the
(14) Failure of the City to enforce any requirements of a Franchise agreement or this
Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent
violations of the same type or to seek appropriate enforcement remedies.
Section 93.26 RENEWAL OF FRANCHISE.
(A) Renewal of a franchise shall be conducted in a manner consistent with 47 U.S.C. [546.
Unless prohibited by applicable law, the following requirements shall also apply:
(1) The application shall comply with the requirements of this section and provide the
specific information requested in the City's notice for renewal proposal. The City's notice may
specify a reasonable deadline for filing an application, but the deadline for filing the application shall
be no earlier than thirty (30) calendar days following the date of the notice.
(2) Upon a proposal for renewal of a franchise, the City shall determine the state-of-the
art level of services needed to satisfy the community's cable related needs and interests. The
proposal for renewal shall set forth the technical, equipment, construction, customer service, system
and performance upgrades and activation schedule the franchisee shall implement to meet the
community's state-of-the-art interests.
03) Any request to initiate a renewal process or proposal for renewal not submitted within the
time period set forth in [47 U.S.C. [ 546(a), shall be deemed an informal proposal for renewal and
shall be governed in accordance with 47 U.S.C. ~ 546(h). The City may hold one or more public
heatings or implement other procedures under which comments from the public on an informal
proposal for renewal may be received. Follov/mg 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.
(C) If the City Commission grants a renewal application pursuant to 47 U.S.C. [ 546(h), the City
and the franchisee shall agree on the terms of a franchise agreement, pursuant to the procedures
specified in this chapter, before such renewal becomes effective.
(D) If renewal of a franchise is lawfully denied, the City may acquire ownership of the cable
system or effect a transfer of the cable system to another person upon approval of the City
Commission consistent with the terms of 47 U.S.C. [547.
CE) If renewal of a franchise is lawfully denied and the City does not purchase the cable system
or approve or affect a transfer of the cable system to another person, the City may require the
former franchisee to remove its fac'dities and equipment at the former franchisee's expense. If the
45 ORD. NO. 18-03
former franchisee fails to do so within a reasonable period of time, the City may have the removal
done at the former franchisee's and/or surety's expense.
(la) The fee for consideration of a renewal proposal is set forth at Section 93.09(1).
(G) Period of effectiveness. The renewal shall be for a period not to exceed ten (10) years.
Depending upon the facts and circumstances, the City may provide for a shorter term in the
franchise agreement.
Section 93.27 TRANSFER OF FRANCHISE.
(A) No transfer of a franchise shall occur without prior approval of the City, which approval
shall not be unreasonably withheld.
03) An application for a transfer of a franchise shall meet the requirements of Section 93.09, 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. No application for a transfer or change of control shall be considered
complete until the applicant has provided all information required by the City.
(C) An application for approval of a pro forma transfer of a franchise shall be considered
granted on the sixty-first (61") calendar day following the filing of such application with the City
unless, prior to that date, the City notifies the franchisee to the contrary. An application for approval
of a pro forma transfer of a franchise shall clearly identify the application as such, describe the
proposed transaction, and explain why the applicant believes the transfer is pro forma. Unless
otherwise requested by the City within thirty 00) calendar days of the f. tling of an application for a
pro forma transfer, the applicant shall be required to provide only the information required in
Sections 93.09(E)(1)(2)(3)(4)(13)(16)(17) and (19) with respect to the proposed transferee.
(D) In making a determination on whether to grant an application for a transfer of a franchise,
the City Commission shall consider the legal, financial, technical and other qualifications of the
transferee to operate the system; whether the incumbent franchisee is in compliance with this
chapter and its franchise agreement, and, if not, the proposed transferee's commitment and
capability to cure such noncompliance; and whether operation by the transferee would adversely
affect cable services to subscribers, or otherwise be contrary to the public interest.
(E) No application for a transfer of a franchise shall be granted unless the transferee agrees in
writing that it will abide by and accept all terms and provisions of this chapter and the franchise
agreement and that it will assume the obligations and liabilities of the previous franchisee under this
chapter and the franchise agreement whether known or unknown as of the date of the proposed
transfer.
46 ORD. NO. 18-03
(F) Approval by the City of a transfer of a franchise does not constitute a waiver or release of
any of the rights or remedies of the City under this chapter or the franchise agreement, whether
arising before or after the date of the transfer.
(G) The applicable application fee for consideration of a transfer proposal is set forth at Section
93.09(1).
Section 93.28 REVOCATION OR TERMINATION OF FRANCHISE.
(A) A franchise may be revoked by the City Commission because of the franchisee's material
failure to construct, operate 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 subsection A, the City shall give the franchisee written
notice, by certified mail at its last known ad&ess, that the 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 reasonable specificity. If within thirty (30) calendar days following receipt of
such written notice from the City, the franchisee has not cured such violation or breach, or has not
commenced corrective action and such corrective action is not be'rog actively and expeditiously
pursued, the City may give written notice to the franchisee of its intent to revoke the franchise,
stating its reasons.
(B) Prior to revoking a franchise under subsection A above, the City Commission shall hold a
public heating upon thirty (3 0) calendar days notice, at which time the franchisee and the public
shall be given an opportunity to be heard. Follov/mg 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, at the option of the City, following a public
hearing before the City Commission, any franchise may be revoked one hun&ed twenty (120)
calendar days after an assignment for the benefit of creditors or the appointment of a receiver or
trustee to take over the business of the franchisee, whether in a receivership, reorganization,
bankruptcy, assignment for the benefit of creditors, or other action or proceeding, unless within that
one hun&ed twenty (120) 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 by the terms and conditions of this chapter
and the franchise agreement.
47 ORD. NO. 18-03
(3) Such action is otherwise prohibited by controlling law.
(D) In the event of foreclosure or other judicial sale of any of the facilities, equipment or
property of a franchisee, the City may revoke the franchise, following a public hearing before the
City Comrmssion, by serving notice upon the franchisee and the successful bidder at the sale, in
which event the franchise and all rights and privileges of the franchise shall be revoked and shall
terminate thirty (30) calendar days after serving such notice, unless:
(1) The City has approved the transfer of the franchise to the successful bidder; and
(2) The successful bidder has covenanted and agreed with the City to assume and be
bound by the terms and conditions of this chapter and the franchise agreement.
If the City revokes a franchise, or if for any other reason a franchisee abandons, terminates
or fails to operate or maintain service to its subscribers, the following procedures and fights are
effective:
(1) The City may require the former franchisee to remove its facilities and equipment at
the former franchisee's expense. Reasons for removal include, but are not limited to (a)
abandonment; Co) terminahon of franchise; (c) failure to operate or maintain service to subscribers;
or (d) failure to obtain the proper license, permit or franchise to have facilities located in the streets
or public fights-of-way and offer services via those facilities. Failure to obtain a permit to use the
cable system for OVS services is reason for City requirement of removal of facilities. If the former
franchisee fails to remove the facilities within a reasonable period of time, the City may have the
removal done at the former franchisee's and/or surety's expense. This section does not apply to
equipment which is leased by the franchisee from a third party.
(2) The City, by decision of the City Commission, may acquire ownership, or effect a
transfer, of the cable system at an equitable price subject to the terms of applicable law.
(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 subject to applicable law.
(F) Where the City has issued a franchise spedfically conditioned in the franchise agreement
upon the completion of construction of a cable system, a system upgrade or other specific obligation
by a specified date, failure of the franchisee to complete such construction or upgrade or other
obligation shall constitute a material breach of the franchise making it subject to revocation in
accordance with the procedures set forth herein, unless the City, at its discretion and for good cause
demonstrated by the franchisee, grants an extension of time.
48 ORD. NO. 18-03
(G) This section shall not be interpreted as a waiver of rights granted by federal law to the City
or any Franchisee.
Section 93.29 CONTINUITY OF SERVICE MANDATORY.
(A) It is the right of each subscriber to receive all available services requested from the
franchisee as long as such subscriber's financial and other obligations to the franchisee are satisfied.
03) In the event of a termination or transfer of a franchise for whatever reason, the franchisee
shall cooperate with the City to ensure that all subscribers receive continuous, uninterrupted service
regardless of the circumstances. The franchisee shall cooperate with the City to operate the cable
system for a temporary period following termination or transfer as necessary to maintain continuity
of service to all subscribers. However, the temporary period shall not exceed six (6) months without
the franchisee's written consent. During such period, the cable system shall be operated under such
terms and conditions as the City and the franchisee may agree, or such other terms and conditions
that will continue, to the extent possible, the same level of service to subscribers and that will
provide reasonable compensation to the franchisee.
(C) In the event a franchisee fails to operate the cable system for seven (7) consecutive days
without prior approval of the City or without just cause, the City may, at its option, operate the
system or designate an operator until such time as the franchisee restores service or until a
permanent operator is selected. If the City decides to pursue such option, the franchisee shall
reimburse the City for all costs or damages resulting from the franchisee's failure to perform that are
in excess of the revenues from the system received by the City. Additionally, the franchisee shall
cooperate with the City to allow the City's employees and/or agents free access to the franchisee's
facilities and premises for purposes of continuing system operation.
Section 93.30 RATES.
Nothing in this chapter shall prohibit the City from regulating rates for cable services to the full
extent permitted by law.
Section 93.31 PERFORMANCE EVALUATION.
The City shall conduct periodic performance evaluations of a franchisee as the City deems necessary.
A franchisee shall cooperate with these evaluations reasonably and in good faith. If the City
implements a survey of cable subscribers in connection with a performance evaluation, the City may
require a franchisee to distribute the City's questionnaire to its subscribers at the City's expense.
49 ORD. NO. 18-03
Upon request and upon reimbursement of the City's copying costs, the franchisee may receive
copies of all responses.
Section 93.32 ADMINISTRATION.
(A) The City Manager or his designee shall have the responsibility for overseeing the day-to-day
admimstration of this chapter and franchise agreement. The City Manager or his designee shall be
empowered to take all admimstrative actions on behalf of the City, except for those actions specified
in this chapter that are reserved to the City Commission. The City Manager may recommend that
the City commassion take certain actions with respect to any franchise.
(13) Responsibility for the administration of this article and any franchise granted hereunder and
for the resolution of all complaints against a franchisee regarding the quality of service, equipment
malfunctions, and related matters, including the authority to order refunds or fees is hereby
delegated to the City Manager, or his designee, who is empowered, among other things, to adjust,
settle, or compromise any controversy arising from operations of the franchisee, either on behalf of
the City, the franchisee or any subscriber, in accordance with the best interests of the public. In
cases where requests for service have been ignored or unfilled or for whatever reason are
unsatisfactory, the City Manager shall have the power to require the franchisee to provide service if
in the opinion of the City Manager such request for service is reasonable. Provided, that any person
aggrieved by a decision of the City Manager, including franchisee, may appeal the matter to the City
Commission for hearing and determination. The City Commission may accept, reject or modify the
decision of the City Manager, and may adjust, settle or compromise any controversy arising from the
operations of the franchisee under any franchise granted pursuant to this article. No adjustment,
settlement, or compromise, whether instituted by the City Manager or by the City Commission shall
be contrary to the provisions of this article or any franchise agreement issued pursuant to this article.
(C) To the extent permitted by federal law, the City Commission shall have the sole authority to
regulate rates for cable services, grant or not grant franchises, authorize the entering into of
franchise agreements, modify franchise agreements, renew or deny renewal of franchises, revoke
franchises, and authorize or not authorize the transfer of a franchise.
Section 93.33 FRANCHISE ACCEPTANCE.
A franchisee shall agree to abide by all of the provisions, terms and conditions of this chapter, its
franchise and any terms and conditions of a grant, renewal, transfer or modification. All franchisees
further agree that they will not, at any time, now or in the future, set up against the City or the City
Commission the claim that the provisions of this Chapter or its franchise are unreasonable, arbitrary
or void.
Section 93.34 FORCE MAJEURE.
50 ORD. NO. 18-03
In the event a franchisee's performance of or compliance with this chapter or the franchise
agreement is prevented by a cause or event not within the franchisee's control, such inability to
perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a
result thereof, provided, however, that the franchisee shall use all practicable means to expeditiously
cure or correct any such inability to perform or comply. For purposes of this chapter and any
franchise agreement, causes or events not within a franchisee's control shall include, without
limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters,
acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order
of a governmental agency or court. Causes or events within the franchisee's control, shall include,
without limitation, a franchisee's financial inability to perform or comply, economic hardship, and
misfeasance, malfeasance or nonfeasance by any of the franchisee's directors, officers, employees,
contractors or agents.
Section 93.35 APPLICABILITY.
(A) Any franchise entered into prior to the effective date of this Ordinance shall remain in effect
according to the terms and conditions of the franchise agreement and shall be subject to this chapter
to the full extent permitted by law including, but not limited to Sections 93.09,. 93.11, 93.21, 93.24,
93.26 and 93.27.
03) Any franchise entered into after the effective date of this Ordinance shall be subject to this
chapter and the terms and conditions of the franchise agreement. In the event of any conflicting or
inconsistent provisions, this chapter as in effect on the date of the grant of the franchise shall prevail
unless otherwise expressly set forth in the Franchise Agreement.
Section 93.36 CITY CABLE SYSTEM OWNERSHIP AUTHORIZED.
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.
Section 93.37 RESERVATION OF RIGHTS.
(A) The City reserves the right to amend this chapter as it shall find necessary in the lawful
exercise of its police powers.
03) The City reserves the right to attempt to exercise the power of eminent domain to acquire
the property of a 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.
Section 93.38 COSTS OF PUBLICATION.
51 ORD. NO. 18-03
A franchisee shall assume all costs in connection with publication of its franchise and any notices in
connection therewith including, but not limited to public heatings required by law.
Section 2. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than
the part declared to be invalid.
Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
Section 4. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED~DOPTED
day of
city Clerk
First Reading
Second Readin~/~
in regular session on second and final reading on this the
,2003.
52 ORD. NO. 18-03
[lTV OF I]ELRflV BER[H
CiTY ATTORNEY'S OFFICE
200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755
1993 DATE: June 11,2003
Wdter's Direct Line: 561/243-7091
MEMORANDUM
TO:
FROM:
City Commission_
Brian Shutt, Assistant City Attorney
SUBJECT: Cable Ordinance
The attached proposed ordinance repeals Chapter 93 "Cable Television" and
replaces it with a new Chapter 93 "Cable Television". Some of the highlights of
the proposed ordinance are as follows:
revised definitions
revised equipment standards
revised technical standards
- requirement of set fees for renewals, transfers, etc.
establishment of a security fund to provide that if the franchisee fails to
comply with the terms of the ordinance then the City may make a claim
on the fund
requirement of a construction bond prior to performing work in the right
of way
providing for a governmental and educational access channel
customer service requirements and fines for failure to comply with those
requirements
- guidelines for the use of the public right of way
- enforcement remedies for violations of the ordinance
guidelines for renewals
guidelines for transfers
This ordinance was drafted by the City's outside cable counsel, Ila Feld, Esq. of
Leibowitz & Associates. Adelphia has reviewed this ordinance and agreed to its
final form.
The City's current franchise agreement with Adelphia expires on July 22, 2004.
Once this Ordinance is adopted the City can then proceed to negotiate with
Adelphia regarding a franchise renewal that would incorporate the terms of the
Ordinance.
By copy of this memo to David Harden, our office requests that this item be placed
on the June 17, 2003 City Commission agenda for first reading. Please call if you
have any questions.
Attachment
CC:
David Harden, City Manager
Barbara Garito, City Clerk
[IT',F I)F I)ELRfl¥ BErlgH
CITY ATTORNEY'S OFFICE 2°° Nw .t AVENUE. DEL.^Y .EACH, FLO.IDA 3,444
TELEPHONE 561/243~7090 · FACSIMILE 561/278-4755
1993
Writer's Direct Line: 561/243-7091
MEMORANDUM
DATE:
TO:
FROM:
June 30, 2003
Brian Shutt, Assistant City Attorney
SUBJECT: Cable Ordinance
The Commission passed the proposed cable ordinance on first reading on June
17, 2003. Subsequent to first reading, comments were received and minor
changes have been proposed to Section 93.12(A)(2), clarifying that the City has
the right to change insurance requirements; Section 93.15(A)(5), clarifying that a
franchisee shall provide basic service to City buildings and public schools at no
charge; Section 93.18(A)(1 ) and 93.18(B)(1 ), clarifying that the City may require a
maximum of 3 access channels rather than 2; typographical errors have also been
corrected throughout the ordinance.
The ordinance is scheduled for second reading on July 8, 2003. Please call if you
have any questions.
Attachment
CC:
David Harden, City Manager
Barbara Garito, City Clerk