97-20 ORDINANCE NO. 97-20
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, REPEALING ORDINANCE NO. 96-15;
PROVIDING THE TERMS AND CONDITIONS FOR THE
OPERATION OF CABLE TELEVISION SYSTEMS AND
THE APPLICATION, PROCEDURES AND
REQUIREMENTS RELATING TO THE GRANT OF
FRANCHISES FOR THE CONSTRUCTION,
INSTALLATION, OPERATION AND MAINTENANCE OF
CABLE TELEVISION SYSTEMS, EQUIPMENT AND
FACILITIES IN, ON, ACROSS, ABOVE OR THAT IN ANY
MANNER WHATSOEVER USE THE CITY'S PUBLIC
RIGHTS OF WAYS AND TO ENSURE THAT USE OF THE
CITY'S PUBLIC RIGHTS OF WAYS IS IN THE PUBLIC
INTEREST AND IN CONFORMANCE WITH APPLICABLE
LAW; PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABIL1TY; PROVIDING A SAVINGS CLAUSE AND
EFFECTIVE DATE.
WHEREAS, effective with the adoption of the Charter of the City of Aventura (the
"Charter") on November 7, 1995, the City of Aventura, Florida was created as a municipal
corporation pursuant to the Constitution of the State of Florida and the Home Rule Charter of
Metropolitan Dade County; and
WHEREAS, the City Council has determined it is in the public interest of the City of
Aventura (hereinaRer referred to as the '~City of Aventura" or the "City") to permit the operation
of one or more cable television systems in the City; and
WHEREAS, one or more cable operators are occupying the City's public rights of ways
and operating cable systems pursuant to licenses granted by Metropolitan Dade County; and
Ordinance No. 97-20
Page 2
WItEREAS, pursuant to Chapter 8AA-16 of the Code of Metropolitan Dade County,
cable operators operating in unincorporated areas of the County pay to the county a fee of 5% of
the gross revenues and operators in the incorporated areas pay to the County a fee of 3%; and
WltEREAS, under Federal law, the maximum franchise fee that may be imposed on a
cable operator is 5% of the operator's gross revenues; and
WHEREAS, the City of Aventura, as now incorporated, is entitled to collect the
maximum fee permitted by applicable law less only that amount due to Dade County; and
WltEREAS, it is the intent of the City of Aventura to exercise its authority as a local
franchising authority to the fullest extent allowed by law; and
WltEREAS, pursuant to Section 621 of the Communications Act of 1934, as amended,
47 U.S.C. § 541, a cable operator may not provide cable service without obtaining a franchise
from the franchising authority; and
WltEREAS, pursuant to Section 4.03 of the Charter, the City Council shall take action to
grant, renew, or extend a franchise only by Ordinance; and
WltEREAS, the City of Aventura had adopted an Interim Ordinance providing terms and
conditions relating to cable television systems; and
WHEREAS, cable operator(s) have submitted applications for cable television franchises
to the City; and
WItEREAS, the City Council has determined that adoption of a comprehensive
Ordinance is in the interests of the citizens of the City of Aventura.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Ordinance No. 97-20
Page 3
Section 1. Short Title..
This Ordinance shall be known and may be cited as City of Aventura, Florida Cable
Television Ordinance.
Section2. Creation of Ordinance The City of Aventura, Florida, Cable
Television Ordinance is hereby created to read as follows:
Section 3. Definitions.
For the purpose of this Ordinance and any application made pursuant hereto, the following
terms, phrases, words and their derivations shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include the future, words in the
plural number include the singular number, and words in the singular number include the plural
number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not
otherwise defined herein or in any franchise agreement that might be granted hereunder shall be
given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 521 et seq., and the
Telecommunications Act of 1996, and as those Acts have and may hereinafter be amended
(collectively the "Communications Act"), and, if not defined therein, their common and ordinary
meaning.
A. "Activated Channel" means those channels engineered at the headend of a cable
system for the provision of services generally available to residential subscribers of the cable
system, regardless of whether such services actually are provided, including any channel
designated for public, educational, or governmental use. Channels on which signals flow in the
direction from the headend to the subscriber are referred to as "downstream channels". Where
the signal flows to the headend for re-distribution, it shall be referred to as an '~tpstream channel".
Ordinance No. 97-20
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B. "Access Channel" means any channel on a cable system set aside without charge
by the cable operator for public, educational and/or local governmental use.
C "Affiliate" means any person who owns or controls, is owned or controlled by, or
is under common ownership or control with a franchisee.
D. "Applicant" means any person submitting an application within the meaning of
this Ordinance.
E. "Application" means any proposal, submission or request to (1) operate a cable
system within the City; (2) construct and install a cable system within the City; (3) transfer a
franchise or control of the franchisee; (4) renew a franchise; (5) modify a franchise; or (6) seek
any other relief from the City pursuant to this Ordinance, 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.
F. "Basic Cable Service" or Basic Service" means any service tier which includes
the retransmission of local television broadcast signals, and public, educational, or governmental
access channels.
G. "Business Day" or "Working Day" shall mean any Monday through Saturday,
52 weeks per year, except that such definition shall not include holidays.
H. "Communications Act" means the Communications Act of 1934, 47 U.S.C. §
151 ~ seq., as that Act has and may hereinafter be amended.
"Cable Operator" means any person who operates or otherwise controls a cable
system within the City.
Ordinance No. 97-20
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J. "Cable service" means (i) the one way transmission to subscribers of video or
other programming services; and (ii) subscriber interaction, if any, which is required for the
selection or use of such video programming or other services.
K. "Cable System," "Cable Television System," or "System," means any facility
consisting of a set of closed transmission paths and associated signal generation, reception and
control equipment that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the City. Such term does not include (a) a
facility that serves only to retransmit the television signals of one (1) or more television broadcast
stations; (b) a facility that serves subscribers without using any public right of way; (c) a facility of
a common carrier that is subject, in whole or in pan, to the provisions of Title II of the
Communications Act of 1934, 47 U.S.C. § 201 ~ seq., except that such facility will be considered
a Cable System to the extent it is used in the transmission of video programming directly to
subscribers, unless the extent of such use is solely to provide interactive on demand services; (d)
an open video system that complies with Section 653 of the Telecommunications ACt of 1996; or
(e) any facilities of any electric utility used solely for operating its electric utility systems. Subject
to applicable law, the foregoing definition of"Cable System" shall not be deemed to circumscribe
the valid authority of the City to regulate the activities of any other communications system or
provider of communications services, including but not limited to telephony and open video
systems.
L. "City" means the City of Aventura, a municipal corporation of the State of
Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
Ordinance No. 97-20
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M. "Control of a Franchisee or Applicant" means possession of the ability to
direct or cause the direction of the management or policies of a Franchisee or Applicant, or the
operation of a Franchisee's system, whether through operational control in whatever manner
exercised or ownership of voting securities, by contract or understanding, or in any other manner.
N. "County" means Metropolitan Dade County.
O. "Fair Market Value" means the price that a willing buyer would pay to a willing
seller for a going concern but with no value allocated to the franchise itsel£
P. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
Q "Franchise" means the right granted by the City to a franchisee in a Franchise
agreement to construct, maintain and operate a Cable System under, on, and over Streets, roads
and any other public ways, rights-of-ways, or easements within all or specified areas of the City.
The term does not include any license or permit that may be required by this Ordinance or other
laws, ordinances or regulations of the City for the privilege of transacting and carrying on a
business within the City or for disturbing or carrying out any work on any Street.
R. "Franchise Agreement" means a contract entered into in accordance with the
provisions of this Ordinance between the City and a franchisee that sets forth the terms and
conditions under which the Franchise will be exercised.
S. "Franchisee" means any person granted a Franchise pursuant to this Ordinance
who has emered imo a Franchise agreement with the City.
T. "Gross Revenues" means all revenues recognized in accordance with Generally
Accepted Accounting Procedures (GAAP) generated directly or indirectly by the Franchisee from
Ordinance No. 97-20
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any source whatsoever arising from, attributable to, or in any way derived from the operation of
the Cable System in the City to provide cable services. Gross revenues includes, but is not limited
to, fees charged subscribers for basic service; fees charged subscribers for any optional, premium,
per-channel or per-program service; fees charged subscribers for any tier of service other than
basic service; installation, disconnection, reeonneetion and change-in-service fees; late fees; leased
access fees; fees, payments or other consideration from programmers for carriage of programming
on the system (excluding marketing support provided for the launch of new services on the system
to the extent such funds are not considered revenue under GAAP); revenue from converter,
remote, modem or any other equipment rentals or sales; revenues from studio and studio
equipment rental; revenues from leases of cable or fiber optic lines and other transmission devices
and equipment; revenues from transmission of data; revenues from consumer products including
but not limited to cable guides; advertising revenues allocable to the City based on a percentage of
subscriber base in the City divided by the subscriber base of the system. Such percentage will
then be multiplied by the systems' total advertising revenue to determine the allocable gross
revenue stemming from advertising; revenues from home shopping channels or other sources
allocable to the City, provided that where certain home shopping channel or other such revenue is
allocable to more than one franchise area due to common zip codes, the Franchisee will allocate
the pementage of revenue to the City which is equivalent to the percentage of the City's
population divided by the total population for the allocable franchise areas in question; and the
sale, exchange or cablecast by the Franchisee of any programming developed on or for access
channels or institutional users. Gross revenues shall be the basis for computing the franchise fee
imposed pursuant to Section 10 hereof. Gross revenues shall not include any taxes on services
Ordinance No. 97-20
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furnished by the Franchisee which are imposed upon any subscriber or user by the State, County,
City or other governmental unit and collected by the Franchisee on behalf of said governmental
unit and which the Franchisee passes on in full to the applicable tax authority or authorities.
However, the Franchise fee shall not be considered such a tax and shall be included within the
definition of gross revenues unless otherwise prohibited by applicable law. Notwithstanding
anything to the contrary, gross revenues shall not include bad debt, interest, returned check
charges, late fees and promotional payments from programmers unless and until any or all of the
above-listed items are included within the definition of Gross Revenues used to calculate franchise
fee payments to Dade County. At such time as any revenue items not included herein are
incorporated into the Gross Revenues definition used by Dade County, such items shall
automatically be included in the definition of Gross Revenues herein without any further action by
the City.
U. "Institutional Network" means a voice, data and/or video communications
network constructed and/or operated and/or maintained by the Franchisee for the City, the
transmissions on which are generally available only to, and intended to be sent and received by,
persons other than cable subscribers generally.
V. "Intereonnection" means the electronic connection of two or more Cable
Systems for the purpose of sharing access channel programming or other services.
W. "Law" means all duly enacted and applicable federal, state, county and City laws,
ordinances, codes, rules, regulations and orders.
Ordinance No. 97-20
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X. "Leased Access Channel" means a channel designated in accordance with
Section 612 of the Communications Act, 47 U.S.C. § 532, for commercial use by persons
unaffiliated with the Franchisee.
Y. "Overbuild" means a Cable System constructed to serve subscribers in an area of
the City served by an existing Cable System.
Z. "Person" means any individual, corporation, partnership, association and any
lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not
mean the City unless applicable law so requires.
AA. "Service Tier" means a category of cable service provided by a Franchisee and
for which a separate charge is made by the Franchisee.
BB. "State of the Art" means that level of production facilities, technical
performance, capacity, equipment, components and service equal to that which has been
developed and demonstrated to be more modern than generally accepted and used in the cable
industry for comparable areas of equivalent population. The Cable System shall have, at
minimum, the capability of providing the channel capacity, products, services and technology
available from a Cable System controlled by a franchisee or a parent, subsidiary or affiliate of a
franchisee to any other community in the state of Flofida.
CC. "Street or Streets" means the surface, the air space above the surface and the
area below the surface of any public street, highway, road, boulevard, concourse, driveway,
freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead,
wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public fight-of-way
or public place, including public utility easements dedicated for compatible uses, or any other
Ordinance No. 97-20
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property in which the City holds any kind of property interest or over which the City exercises any
type of lawful control, and any temporary or permanent fixtures or improvements located thereon,
as may be ordinarily necessary and pertinent to construct and operate a cable system.
DD. "Subscriber" means any person who lawfully receives cable service delivered
over the Cable System with the Franchisee's express permission.
EE. "Subscriber Base" means the total number of residential and commercial
subscribers within the City. For purposes of calculating subscribers under bulk or multi-user
contracts, the Franchisee shall count each unit included within a contract for service as one
subscriber. Franchisee shall not use any equivalency measures including calculation based on
market rate, except as expressly required by applicable law.
FF. "System malfunction" means any Cable System equipment, facility or signal
failure or malfunction that results in the loss of satisfactory service on one or more channels to
one or more subscribers. A malfunction is major if it affects twenty-five (25) or more subscribers,
or a multiple dwelling unit consisting of more than 25 or more units.
GG. "Transfer of a Franchise" means any transaction in which (1) an ownership or
other interest in a Franchisee or its Cable System is transferred from one person or group of
persons to another person or group of persons so that control of a Franchisee is transferred; or (2)
the rights and/or obligations held by a Franchisee under a Franchise agreement are transferred or
assigned to another person, group of persons or business entity.
HH. "Two-Way Capability" means the incorporation into a Cable System of all
appropriate design and engineering characteristics and features so that two-way interactive
Ordinance No. 97-20
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transmission, including but not limited to addressability, over the system can be implemented and
activated.
II. "Video Channel or Channel" means a portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a television channel,
including the associated audio signal, as television channel is defined by the FCC by regulation or
otherwise.
Section 4. Intent and Purposes.
A. It is the intent of the City and the purpose of this Ordinance to promote the public
health, safety, and general welfare by providing an application procedure for the grant of one or
more Franchises for the operation and/or construction of a Cable System within the City; to
provide for the regulation to the extent permitted by applicable law, of each Cable System within
the City in the public interest; to provide for the payment of fees and other valuable consideration
by cable operators to the City for the use of Streets by its Cable System; to promote the
widespread availability of quality cable service to City residents and businesses, the City, and
other public institutions; to encourage the development of cable and other communications
technologies and Cable Systems as a means of communication between and among members of
the public, City businesses, the City, and other public institutions; to promote competitive cable
rates and services; to promote the safe and efficient use of City Streets; to enhance and maximize
the communicative potential of Streets used by Cable Systems; and to encourage the provision of
a diversity of information sources to City residents, businesses, the community, the City, and
other public institutions by cable technology.
Ordinance No. 97-20
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B. Recognizing the continuing development of communications technology and uses,
it is the policy of the City to encourage competition, experimentation and innovation in the
development of Cable System uses, services, programming and techniques that will be of general
benefit to the community to the extent consistent with applicable laws.
Section 5. Grant of Authority; Franchise Required.
A. The City may grant one or more Franchises in accordance with this Ordinance.
B. No person may operate or construct a Cable System or any other communications
transmission facilities over, on, or under public streets in the City without a Franchise granted by
the City unless otherwise expressly authorized by law, and no person may be granted a Franchise
without having entered into a Franchise agreement with the City pursuant to this Ordinance.
C. Unless otherwise authorized by law, any Franchise granted pursuant to this
Ordinance is solely for the provision of Cable Service and shall not be construed to authorize the
provision of telephone, non-cable video or other telecommunications service. However, any
person including but not limited to a Franchisee shall, unless otherwise prohibited by applicable
law, submit an application to the City for the privilege of providing other telecommunications
services including, but not limited to telephone service and/or non-cable video programming
services.
Section 6. Franchise Characteristics.
A. A Franchise authorizes use of City Streets for installing cables, wires, lines, optical
fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary
and pertinent to operate a Cable System within a specified area of the City, but does not expressly
or implicitly authorize the Franchisee to provide service to, or install cables, wires, lines,
Ordinance No. 97-20
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underground conduit, or any other equipment or facilities upon private property without owner
consent (except for use of compatible easements pursuant to Section 621 of the Communications
Act, 47 U.S.C § 541(a)(2)), or to use publicly or privately owned conduits without a separate
agreement with the owners.
B. A Franchise is nonexclusive, and will not expressly or implicitly preclude the
issuance of other Franchises to operate Cable Systems within the City, or affect the City's right to
authorize use of City Streets to other persons to operate cable systems or for other purposes as it
determines appropriate.
C. The City reserves the right to reasonably designate where a Franchisee's facilities
are to be placed within the Streets.
D. A Franchise shall be a privilege which is in the public trust. No transfer of a
Franchise shall occur without the prior consent of the City and unless application is made by the
Franchisee and City approval obtained pursuant to this Ordinance and applicable Federal law.
E. A Franchise granted to an applicant pursuant to an application submitted pursuant
this Ordinance 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 Ordinance, of the City of Aventura, and the Franchise. All relevant
representations made by the Franchisee in its application and/or public heatings before the City
Council shall be deemed to be material and made for the purpose of inducing the City to grant the
Franchise in the form accepted.
Ordinance No. 97-20
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F. Notwithstanding anything to the contrary, in the event that Franchisee, its parent,
affiliate or subsidiary elects to offer to subscribers video programming semites through any means
or method not included within the definition of a Cable System, including but not limited to an
"open video system", Franchisee shall remain subject to all terms and conditions of the cable
television Franchise granted by the City.
Section 7. Subiect to Other Laws~ Police Power.
A. Any person operating a cable system in the City shall, at all times, be subject to and
shall comply with all applicable Federal, state, county and local laws, roles and regulations, and
shall at all times be subject to ail lawful exercise of the police power of the City.
B. Subject to applicable law, except as may be specifically provided in this Ordinance
or under the terms of a Franchise agreement and subject to the Communications Act, the failure
of the City, upon one or more occasions, to exercise a right or to require compliance or
performance under this Ordinance, a Franchise agreement or a license granted by the County shall
not be deemed to constitute a waiver of such right or a waiver of compliance or performance.
Section 8. Interpretation of Franchise Terms; Conflicts.
A. The provisions of this Ordinance shall apply to a Franchise agreement as if fully set
forth in the Franchise agreement, and the express terms of this Ordinance will prevail over
conflicting or inconsistent provisions in a Franchise agreement unless such Franchise agreement
expresses an explicit intent to waive a requirement of this Ordinance.
B. Except as to matters which are governed by Federal law or regulation, a Franchise
agreement will be governed by and construed in accordance with the laws of the State of Florida.
Ordinance No. 97-20
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C. If any part, section, subsection of other portion of this Ordinance conflicts or
subsequently comes into conflict with any Federal, state, county or local law, the prevailing law
will apply, to the extent expressly pennitted by applicable law.
Section9. Applications for Grant~ Renewal~ Modification or Transfer of
Franchise.
A. A written application shall be filed with the City for (a) grant of a new Franchise;
(b) renewal of a Franchise in accordance with Section 626 of the Communications Act, 47 U.S.C.
546; (c) modification of a Franchise agreement; (d) transfer of a Franchise; or (e) any other relief
from the city pursuant to this Ordinance or a Franchise agreement.
B. To be acceptable for filing, a signed original of the application shall be submitted
together with five (5) copies, be accompanied by the required non-refundable application filing fee
in the amount of $7,500, conform to any application forms, applicable requests for proposals, and
contain all reasonably required information. The purpose of the filing fee is to defray a portion of
the City's cost in processing an application. The filing fee is therefore intended to be a charge
incidental to the awarding or enforcing of a franchise within the meaning of Section 622(g)(2) (D)
of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the
franchise fee imposed in a franchise agreement. All applications shall include the names and
addresses of persons authorized to act on behalf of the applicant with respect to the application.
C. All applications accepted for filing shall be made available by the City for public
inspection.
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D. An application for the grant of a ~anchise shall be submitted by any person
desirous of operating a cable system in the City notwithstanding whether any such person is
operating a system pursuant to a County license on the effective date hereo£
E. An application for the grant of a new Franchise may be filed pursuant to a request
for proposals issued by the City or on an unsolicited basis. The City, upon receipt of an
unsolicited application, may issue a request for proposals. If the City elects to issue a request for
proposals upon receipt of an unsolicited application, the applicant may submit an amended
application in response to the request for proposals, or may inform the City that its unsolicited
application should be considered in response to the request for proposals, or may withdraw its
unsolicited application. An application which does not conform to the reasonable requirements of
a request for proposals may be considered non-responsive and denied on that basis.
F. An application for the grant of an initial Franchise shall contain, at minimum, the
following information:
1. Name and address of the applicant and identification of the ownership and
control of the applicant, including: the names and addresses of all persons with five percent (5%)
or more ownership interest in the applicant, including 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, or director or person with five percent (5%) or more ownership interest
in the applicant, has been adjudged bankrupt, had a cable Franchise or license revoked, or been
Ordinance No. 97-20
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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/or operate the proposed Cable System, including identification of key personnel;
4. Copies of all Federal, state, county and city licenses, permits and
registrations in regard to any part of the applicant's facilities located in the City.
5. A statement prepared by a certified public accountant or duly authorized
financial officer of the applicant regarding the applicant's financial ability to complete the
construction and operation of the Cable System proposed;
6. 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 applicant or having more than a five percent (5%) ownership interest
in the applicant has or has had, a cable Franchise or license or any interest therein;
7. A description of any and all pending Federal and State litigation, whether
judicial or administrative, that in any manner relates to the operation of a cable television system
or the provision ora cable television service to which the applicant is currently a party;
8. Identification of the area of the City to be served by the proposed Cable
System, including a description of the service area's boundaries;
9. A description of the physical facilities proposed, including channel capacity,
performance characteristics, headend, and access facilities; upon request, the applicant shall make
information on technical design available for inspection;
Ordinance No. 97-20
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10. Where applicable, a description of the construction of the proposed system,
including an estimate of plant mileage and its location, the proposed construction schedule, a
description, where appropriate, of how services will be converted from existing facilities to new
facilities, and information on the availability of space in conduits including, where appropriate, an
estimate of the cost of any necessary rearrangement of existing facilities;
11. If applicant is currently operating a Cable System within the City, a
description of the existing System and capacity and the operator's plans to upgrade the system.
12. If applicant or applicant's parent, or any subsidiary or affiliate of applicant
is currently operating a SMATV system within the City, a list of all such locations;
13. For informational proposes, 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;
14. Upon written request, a schedule and description of Franchisee's contracts
with any and all residential and or commercial complexes including but not limited to
condominiums, homeowner's associations and apartment buildings.
15. 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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16. A description of any non-cable telecommunications services offered or
proposed to be offered by the applicant or its parent, affiliate or subsidiary and Franchisee's plan
with respect to the availability of such services to subscribers in the City.
17. Pro forma financial projections for the first five (5) years of the Franchise
term, including a statement of projected income, and a schedule of planned capital additions, with
all significant assumptions explained in notes or supporting schedules;
18. If an applicant proposed to provide cable service to an area already served
by an existing cable operator, or SMATV, the identification of the area where the overbuild
would occur, the potential subscriber density in the area which would encompass the overbuild,
and the ability of the Streets to accommodate an additional system;
19. Any other information as may be reasonably necessary to demonstrate
compliance with the requirements of this Ordinance and information that the City may request of
the applicant that is relevant to the City's consideration of the application; and
20. 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 certifying that the proposal meets all Federal and state law
requirements.
G. An application for modification of a Franchise agreement shall include, at
minimum, the following information:
1. The specific modification requested;
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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 Section 625 of
the Communications Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested
modification meets the standards set forth in 47 U.S.C. § 545.
4. Any other reasonable information necessary for the City to make an
informed determination on the application for modification; and
5. An affidavit or declaration of the applicant or authorized officer certifying
the truth and accuracy of the information in the application, and certifying that the application is
consistent with all Federal and state law requirements.
H. An application for renewal of a Franchise shall comply with the requirements of
Section 22 hereof.
I. An application for approval of a transfer of a Franchise shall comply with the
requirements of Section 9(E and I) and Section 24 hereof.
J. To be acceptable for filing, an application shall be accompanied by a non-
refundable filing fee in the following amount, as appropriate:
1) For a new or initial Franchise: $7,500
2) For renewal of a Franchise: $5,000
3) For a transfer of a Franchise (other than
a pro forma transfer): $2,500
4) For a pro forma transfer of a Franchise: $1,000
5) For modification of a Franchise
Ordinance No. 97-20
Page 21
agreement pursuant to 47 U.S.C.§545: $2,500
6) For any other relief: $1,000
The purpose of the filing fee is to defray a portion of the City's cost in processing an
application. The filing fee is therefore intended to be a charge incidental to the awarding or
enforcing of a Franchise within the meaning of Section 622(g)(2)(D) of the Communications Act,
47 U.S.C § 542(g)(2)(D), and may not be deducted from the Franchise fee imposed in a
Franchise agreement.
Section 10. Grant of Franchise.
A. In evaluating an application for a Franchise, City shall consider among other things
the following factors:
1. The economic impact upon private property within the Franchise area;
2. Public need for such Franchise, if any;
3. The capacity of public rights of way to accommodate the Cable System;
4. The present and future use of the public's rights of way to be used by the
Cable System
5. The potential disruption to existing users of the public's rights of way to be
used by the Cable System and the resulting inconvenience which may occur to the public
6. The legal, technical and financial ability of the Franchise applicant to
perform;
7. Other societal interests as are generally considered in cable television
franchising; and
Ordinance No. 97-20
Page 22
8. Such other additional matters, both procedural and substantive, as the City
may in its sole discretion determine to be relevant, including but not limited to the extent to which
the proposal of the applicant will meet the anticipated cable related needs and interests of the
community and serve the public interest. Evaluation by the City shall not be based on the content
of the programming the applicant proposes to provide.
B. The City may grant a Franchise for a period not to exceed fifteen (15) years.
C. The City may make the grant of a Franchise conditioned upon the completion of
construction within a reasonably prescribed time or upon the performance and fulfillment of
specific terms, which are to be set forth in the Franchise agreement specifying that failure to
comply with the conditions will cause the Franchise to become null and void without further
action by the City.
D. Following at least ten (10) days notice to the applicant, the City shall hold a public
hearing to consider an application or applications. The applicant(s) shall be notified of the hearing
and shall be given an opportunity to be heard. Based upon the application(s), the testimony
presented at the public hearing, any recommendations of the City Manager or staff, and any other
information relevant to the application(s), the City shall decide by Resolution whether to grant or
deny a Franchise application(s) and decide the terms and conditions of any Franchise(s) granted.
If the City grants a franchise the Franchisee shall file an acceptance of the
Franchise accompanied by any and all bonds, certificates of insurance or other obligations as
requked in a Franchise agreement within forty-five (45) calendar days from the date of the City
Resolution approving the Franchise Agreement. This period may be extended for good cause by
the City. If the acceptance is not filed with the City within forty-five (45) calendar days from the
Ordinance No. 97-20
Page 23
date of the City Resolution, or if the period is not extended by the City, the Franchise grant will
be null and void without further action by the City. The City may, at its option, grant Franchisee
a short term extension(s). The grant of such a short term extension(s) will not coffer on
Franchisee the right to an automatic acceptance, transfer, modification or renewal.
F. The grant, renewal, modification, or transfer of a Franchise may be subject to a
processing fee in an amount not to exceed the reasonable and justifiable out-of-pocket costs
incurred by the City in considering the application, including but not limited to consulting,
advertising and legal costs and fees, less the amount of the filing fee set pursuant to Section 9 up
to an amount not to exceed Fif~ Thousand Dollars ($50,000). Within thirty (30) calendar days
from the date of the Resolution approving or denying the Franchise agreement by the City
Council, the City shall notify the Franchisee of the amoum of any processing fee and its method of
calculation. If the processing fee is not paid to the City within sixty (60) calendar days of the date
of the City Council Resolution approving or denying the Franchise agreement, any approval
granted by such Resolution will be null and void. This processing fee is therefore intended to be a
charge incidental to the awarding or enforcing of a Franchise within the meaning of Section 622
(g)(2)(D) of the Cable Act, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from the
Franchise fee imposed in a Franchise agreement and shall not be passed through to subscribers.
Section 1!. lnsurance~ Suret3q Indemnification.
A. A Franchisee shall maintain, and by its acceptance of the Franchise specifically
agrees that it will maimain, throughout the entire term of the Franchise including any renewals
thereof, the following liability insurance coverage insuring the Franchisee and naming the City as
an additional insured: worker's compensation and employer liability insurance to meet all
Ordinance No. 97-20
Page 24
requirements of Florida State law and general comprehensive liability insurance with respect to
the construction, operation and maintenance of the Cable System, and the conduct of Franchisee's
business in the City, in the minimum amounts of:
1. $500,000 for property damage in any one accident;
2. $500,000 for personal bodily injury to any one person; and
3. $1,000,000 for personal bodily injury in any one accident.
B. All insurance policies shall be with sureties qualified to do business in the State of
Florida; shall be with sureties with a minimum rating of A-1 in Best's Key Rating Guide,
Property/Casualty Edition. The City may require coverage and amounts in excess of the above
minimum where necessary to reflect changing liability exposure and limits or where required by
law.
C. A Franchisee shall keep on file with the City certificates of insurance which
certificates shall indicate evidence of payment of the required premiums and shall indicate that the
City, its Councilmembers, officers, boards, commission, commissioners, agents and employees are
listed as additional insureds. In the event of a potential claim such that the City claims insurance
coverage, Franchisee shall immediately respond to all reasonable requests by the City for
information with respect to the scope of the insurance coverage.
D. All insurance policies shall name the City, as additional insureds and shall further
provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days
prior written notice thereof has been given to the City. A Franchisee shall not cancel any required
insurance policy without submission of proof that the Franchisee has obtained alternative
insurance satisfactory to the City which complies with this Ordinance.
Ordinance No. 97-20
Page 25
E. A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its officials, boards, commissions, commissioners, agents, and employees, against
any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief,
and costs and expenses arising out of the construction, maintenance or operation of its Cable
System, the conduct of Franchisee's business in the City, regardless of whether the act or
omission complained of is authorized, allowed or prohibited by this Ordinance or a Franchise
agreement, provided, however, that Franchisee's obligation hereunder shall not extend to any
claims caused by the misconduct or sole gross negligence of the City, its officials, boards,
commissions, commissioners, agents, or employees. This provision includes, but is not limited to,
the City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; and claims arising out of copyright infringements or a failure by the Franchisee to
secure consents from the owners, authorized distributors, or providers of programs to be
delivered by the Cable System, claims arising out of Section 638 of the Communications Act, 47
U.S.C. 558, and claims against the Franchisee for invasion of the right of privacy, defamation of
any person, finn or corporation, or the violation or infringement of any copyright, trade mark,
trade name, service mark or patent, or of any other right of any person, firm or corporation.
Notwithstanding the foregoing, Franchisee may select counsel to represent the City. City agrees
to notify Franchisee, in writing, within ten (10) days of City receiving notice, of any issue it
determines may require indemnification. Nothing in this section shall prohibit the City from
participating in the defense of any litigation by its own counsel if in the City's reasonable belief
there exists or may exist a conflict, potential conflict or appearance of a conflict.
Section 12. Security Fund/Corporate Guarantee.
Ordinance No. 97-20
Page 26
A. A Franchise agreement may provide that, prior to the Franchise becoming
effective, the Franchisee shall post with the City a cash security deposit or in the alternative at the
City's discretion a bond, letter of credit, or corporate guarantee in a form acceptable to the City
to be used as a security fund to ensure the Franchisee's faitlfful performance of and compliance
with all provisions of this Ordinance, the Franchise agreement, and other applicable law, and
compliance with ail orders, permits and directions of the City, and the payment by the Franchisee
of any claims, liens, fees, or taxes due the City which arise by reason of the construction,
operation or maintenance of the system. The amount of the security fund or corporate guarantee
shail be the amount that the City determines, under circumstances existing at the time, that is
necessary to protect the public, to provide adequate incentive to the Franchisee to comply with
this Ordinance and the franchise agreement, and to enable the City to effectively enforce
compliance therewith. The Franchise agreement shall provide for the procedures to be followed
with respect to the security fund or corporate guarantee.
B. Any bond or letter of credit shall be obtained at the sole expense of the Franchisee
and shall be renewed for the full term of the Franchise plus an additional twelve (12) months
thereat'~er. The Franchisee and its surety shall be jointly and severally liable under the terms of the
bond or letter of eredit for any damages or loss suffered by the City as a result of the Franchisee's
nonperformance, including the full amount of any compensation, indemnification or cost of
removal of any property of the Franchisee in the event of default, a reasonable allowance for
attorneys' fees and costs, up to the full amount of the bond or letter of credit. The bond or letter
of credit shall provide for thirty (30) days' prior written notice to the City of any intention on the
part of the Franchisee to cancel, fail to renew, or otherwise materially aiter its terms. Neither the
Ordinance No. 97-20
Page 27
filing of an indemnity bond or letter of credit with the City, nor the receipt of any damages
recovered by the City thereunder, shall be construed to excuse faithful performance by the
Franchisee or limit the liability of the Franchisee under the terms of its franchise for damages,
either to the full amount of the bond or otherwise.
C. The rights reserved to the City with respect to the security fund or an indemnity
bond or letter of credit are in addition to all other rights of the City, whether reserved by this
Ordinance or authorized by other law or the Franchise agreement, and no action, proceeding or
exercise of a right with respect to such security fund or indemnity bond or letter of credit will
affect any other right the City may have.
Section 13. Construction Bond.
A. A Franchise agreement may provide that, prior to any Cable System construction,
upgrade, rebuild or other significant work in the Streets a Franchisee shall establish in the City's
favor a construction bond in an amount specified in the Franchise agreement or other
authorization as necessary to ensure the Franchisee's faithful performance of the construction,
upgrade, rebuild or other work.
B. In the event a Franchisee subject to such a construction bond fails to complete the
Cable System construction, upgrade or other work in the Streets in a safe, timely and competent
manner in accord with the provisions of the Franchise agreement, there shall be recoverable,
jointly and severally from the principal and surety of the bond, any damages or loss suffered by the
City as a result, including the full amount of any compensation, indemnification or cost of removal
or abandonment of any property of the Franchisee, or the cost of completing or repairing the
system construction, upgrade or other work in the Streets, plus a reasonable allowance for
Ordinance No. 97-20
Page 28
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 12 hereof where such
amount exceeds that available under the security fund.
C. The Franchise agreement may specify that upon completion of the system
construction, upgrade, rebuild or other work in the Streets and payment of all construction
obligations of the Cable System to the satisfaction of the City, the City may eliminate the bond or
reduce its amount. However, the City may subsequently require an increase in the bond amount
for any subsequent construction, upgrade, rebuild or other work in the Streets.
D. The construction bond shall be issued by a surety having a minimum rating of A- 1
in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City
Attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice t~om the issuer of the bond of intent
to cancel or not to renew."
E. The rights reserved by the City with respect to any construction bond established
pursuant to this section are in addition to all other rights and remedies the City may have under
this Ordinance, a Franchise agreement, or at law or equity.
Section 14. Minimum Facilities and Services.
A. The following minimum requirements for facilities and services apply to all
Franchises granted by the City. The City may require in a Franchise agreement that a Franchisee
exceed these minimum requirements where it determines, under circumstances existing at the time
of the application, that the additional requirements are reasonable to meet the City's future cable
related needs and interests or to serve the public interest. Notwithstanding anything to the
Ordinance No. 97-20
Page 29
contrary, a Franchisee shall make available facilities, services, products, benefits, and a level of
technology to all subscribers in the City no less than that offered by the Franchisee, its parent,
affiliate, or subsidiary to any community in the state of Florida.
1. Any Cable System that commences construction, including but not limited
to initial construction, rebuild, upgrade or reconstruction after the effective date of this Ordinance
shall have a minimum capacity of at least 750 MI-IZ providing no less than seventy eight (78)
video channels available for immediate use. A Franchise agreement may provide for a larger
minimum channel capacity requirement.
2. The City may require in a Franchise agreement that a Franchisee provide
Access Channels, facilities and other support for public, educational and/or governmental use.
3. At the City's request, a Franchisee shall provide cablecasting of City
Council meetings live to all subscribers located within the City.
4. A Cable System shall provide leased Access Channels as required by
Federal law.
5. A Franchisee shall, upon request, provide at least one cable television
service outlet and when technically feasible, at least one additional outlet equipped for on-line
access to all City buildings and all public schools within its Franchise area that are passed by its
Cable System at no cost to the City or schools involved, and shall charge no more than its time
and material costs for any additional service outlets to such facilities.
6. A Franchise shall, upon request, provide all facilities, equipment, cabling,
personnel and such other support as may be required to allow production of programming and
Ordinance No. 97-20
Page 30
live cablecasting from Government Center. Such support may be allocated among all Franchisees
granted a Franchise within thirty six (36) months of the effective date hereof on a pro-rata basis.
7. A Franchisee shall design its system to allow the City or other appropriate
government body, to interrupt cable service in an emergency to deliver necessary information to
subscribers.
8. A Franchisee shall make available to its subscribers equipment capable of
decoding dosed circuit captioning information for the heating impaired. A Franchisee may
impose a reasonable charge for such equipment.
9. 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.
Residential drops in excess of one hundred twenty five (125) feet may be charged according to the
Franchisee's rate schedule.
B. Unless a Franchise agreement provides otherwise, a Franchisee shall make cable
service available to every dwelling and every building within the Franchise service area or the
Franchisee's designated services area as defined in a Franchise agreement unless prohibited by a
private property owner from doing so.
C. Applications for an initial or renewed Franchise shall include a proposal for the
interconnection of Franchisee's system to any or all other Cable Systems operating within the
City.
Section 15. Technical Standards.
A. Any Cable System within the City shall at minimum meet the technical standards of
the FCC or other applicable Federal or state technical standards, including any such standards as
Ordinance No. 97-20
Page 31
hereinafter may be amended or adopted including but not limited to digital transmission, HDTV
or other advanced technologies. All television signals transmitted on a Cable System shall include
any closed circuit captioning information for the hearing impaired. Antennas, supporting
structures, and outside plants used in the system shall be designed to comply with all generally
accepted industry practices and standards and with all Federal, state, county, and City laws,
ordinances, rules and regulations.
B. All construction, installation and maintenance shall comply with the National
Electrical Safety Code, the National Electric Code, the South Florida Building Code, and all laws
and accepted industry practices, and as hereinafter may be amended or changed.
C. As required by FCC rules, the Franchisee shall perform at its expense proof of
performance tests designed to demonstrate compliance with FCC requirements. The Franchisee
shall provide, upon written request, the proof of performance test results to the City within thirty
(30) days after completion. The City shall have the fight to inspect the Cable System facilities
during and after their construction to ensure compliance with the requirements of the Franchise
agreement, this Ordinance and FCC standards.
D. The City may require any other tests as specified in a Franchise agreement or
applicable law or regulation, to be performed at the expense of the Franchisee. The Franchisee
shall provide the test results to the City within thirty (30) days of completion of the proof of
performance or other tests.
E. The Franchisee shall provide the City ten (10) days advance written notice when a
proof of performance test required in subsections (C) and (D) above is scheduled so that the City
may have an observer present.
Ordinance No. 97-20
Page 32
F. A Franchisee shall not design, install or operate its facilities in a manner that will
interfere with the signals of any broadcast station, the facilities of any public utility, the Cable
System of another Franchisee, or individual or master antennas used for receiving television or
other broadcast signals.
G. In any Franchise granted pursuant to this Ordinance, a Franchisee shall agree to
maintain that level of technology to satisfy the state of the art as defined in Section 2(CC) herein.
H. Franchisee shall provide Access Channels, equipment and facilities, and financial
support in accordance with this Sections 14, 15, and 16, as well as such other benefits and
services as provided in a Franchise agreement.
Section 16. Public~ Education and Government Support.
A. It is the purpose and intent of the City to require that all Franchisees provide
Access Channels, facilities, equipment and support sufficient to meet the community's needs and
interests with respect to public, education and government activities.
B. A Franchise shall provide, at the request of the City, cable television services
including installation and basic service to all municipal offices and schools within the City.
C. A Franchisee shall provide, at the request of the City and as designated in a
Franchise Agreement, Access Channels to be allocated to public, education and government use
at the sole discretion of the City.
D. During the term of a Franchise, a Franchisee shall provide at the request of the
City and as designated in a franchise agreement, such equipment, facilities and technical support
as the City Council may determine is useful for the production and cablecasting of programming
Ordinance No. 97-20
Page 33
on the public, education and government channels. Applications for an initial or renewed
Franchise shall include a proposal to provide such support.
E. A Franchisee shall provide for live and repeat cablecasting of all City Council
meetings to all subscribers within the City.
F. At the request of the City and as designated in a franchise agreement, a Franchisee
shall provide the City with a dedicated I-NET, or such equivalent PEG support as may be
designated in a franchise agreement for the exclusive use of the City.
G. A Franchise may provide for a financial grant in lieu of or in addition to some or all
of the facilities, equipment, and services referenced in this Section 16.
H. A Franchisee shall agree that the facilities, equipment, monetary grant, and all
other support to be provided by Franchisee pursuant to this Section 16 Constitute capital costs
which are required by the Franchise to be incurred by Franchisee for public, educational, or
government access facilities within the meaning of Section 622(g)(2)(C) of the Cable Act, 47
U.S.C. § 542(g)(2)(C); that such grant does not constitute a Franchise fee or tax within the
meaning of Cable Act, state, law, Chapter of the City Code, or a franchise agreement and that the
Franchisee shall waive, and will not assert in any proceeding, any claim to the contrary.
Section 17. Franchise Fee.
A. A Franchisee, as compensation for the privilege of the use of the City's Streets to
construct and/or operate a Cable System, shall pay to the City a Franchise fee in an amount up to
a maximum of either (1) five percent (5%) of the Franchisee's Gross Revenues derived directly or
indirectly from the operation of its cable system within the City during the term of its Franchise
less only that amount due to Dade County; or (2) in the event the Communications Act or other
Ordinance No. 97-20
Page 34
applicable law is amended to permit the City to assess a Franchise fee of a greater amount than
that specified in (1) above, the Franchise agrees to pay to the City the new amount after a public
hearing in which the public and Franchisee are given an opportunity to comment on the impact of
the higher fee. Moreover, Franchisee shall conclude an agreement with respect to a fee increase
with the City no later than it concludes an agreement with Dade County.
B. Franchisee's payment of the Franchise fee to the City shall be reduced only by that
amount the Franchisee is expressly required to pay to Dade County pursuant to any applicable
cable license, Franchise or Ordinance of the County.
C. A Franchisee shall pay the Franchise fee due to the City on a quarterly basis.
Payment for each quarter shall be made to the City not later than thirty (30) calendar days after
the end of each calendar quarter, provided, however, that payment for the fourth quarter
(October, November, December) shall not be due until seventy five (75) days aRer the end of the
quarter.
D. A Franchisee shall file with the City, on a quarterly basis with the payment of the
Franchise fee, a financial statement setting forth the computation of gross revenues used to
calculate the Franchise fee for the preceding quarter and a detailed explanation of the method of
computation. The statement shall be certified by a certified public accountant or the Franchisee's
chief financial or other duly authorized officer. The Franchisee will bear the cost of the
preparation of such financial statements.
E. Subject to applicable law, no acceptance by the City of any Franchise fee payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
Ordinance No. 97-20
Page 35
acceptance of payment be construed as a release of any claim the City may have for additional
sums payable.
F. The Franchise fee payment is not a payment in lieu of any other tax, fee or
assessment.
G. The City may, from time to time, but not more frequently than once per year, and
upon reasonable notice, inspect, copy and audit any and all books and records of the Franchisee
relevant to the determination of gross revenues and the computation of Franchise fees due, and
may recompute any amounts determined to be payable under the Franchise. The cost of the audit
will be borne by the Franchisee if, as a result of the audit, the City determines that the Franchisee
has underpaid the Franchise fees owed in an amount equal to or exceeding three and a half
percent (3.5%) of the franchise fees actually paid. A Franchisee shall make all books and records
necessary to satisfactorily perform the audit readily available to the auditors in Dade County, for
inspection and copying or in the alternative, Franchisee shall pay all costs necessary for the City to
perform the audit at a location outside of Dade County.
H. In the event that a Franchise fee payment is not received by the City on or before
the due date set forth in subsection B above, or is underpaid, the Franchisee will pay a late charge
of eighteen (18%) percent annually of the amount of the unpaid or underpaid Franchise fee
payment, provided however, that such rate does not exceed the maximum amount allowed under
Florida law. Any interest and/or late charges paid by Franchisee is intended to be a charge
incidental to the enforcing of a Franchise within the meaning of Section 622 (g)(2)(D) of the
Communications Act, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from the Franchise fee
imposed by this Ordinance or any Franchise agreement.
Ordinance No. 97-20
Page 36
I. When a franchise terminates for whatever reason, the Franchisee shall file with the
City within ninety (90) calendar days of the date its operations in the City cease a financial
statement, certified by a certified public accountant or the Franchisee's chief financial officer,
showing the gross revenues received by the Franchisee since the end of the previous quarterly
payment . Adjustments will be made at that time for Franchise fees due to the date that the
Franchisee's operations ceased.
Section 18. Customer Service Requirements.
A. Any person operating a Cable System shall maintain ail parts of its system in good
condition and in accordance with standards generally observed by the cable television industry.
Sufficient employees shall be retained to provide safe, adequate, and prompt servSce for all of its
customers and facilities.
B. Franchisee shall maintain at least one conveniently located business office and
service center within five (5) miles from the City limits to which subscribers may telephone
without incurring added message units or toll charges. This business office shall be open at
minimum from 8:00 a.m. to 6:00 p.m., Monday through Friday, and some weekend and evening
hours.
C. Franchisee shall maintain a listed local, toll-free telephone number and employ a
sufficient number of telephone lines, personnel and answering equipment or service to allow
reasonable access by subscribers and members 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 will be available to respond to customer
telephone inquiries, twenty-four (24) hours per day, seven (7) days per week including holidays.
Ordinance No. 97-20
Page 37
D. 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 thirty (30) seconds to transfer the call. Customers shall receive a busy signal less than
three (3) 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.
E. A Franchisee shall employ and maintain sufficient qualified personnel and
equipment to be available (I) to accept payments; (ii) to exchange or accept converters or other
equipment; (iii) to receive subscriber complaints or requests for service or repairs on a full-time
basis, twenty-four (24) hours per day, seven (7) days per week; (iv) to initiate service
installations, undertake normal repairs, initiate action with respect to any subscriber service
complaints within twenty-four (24) hours; (v) to enable a service technician to respond to service
calls twenty-four (24) hours per day, seven (7) days a week including holidays when more than 5
subscribers served from the same nearest active electronic device, such as an amplifier or node,
call with the same complaint.
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) business
days after an order has been placed except in those instances where a subscriber specifically
requests an installation date beyond the seven (7) business day period. "Standard" installations
are up to one hundred and fifty (150) feet from the existing distribution system. If scheduled
installation is neither started nor completed as scheduled, the subscriber will be telephoned by an
employee of the Franchisee the same day. Evening personnel shall also attempt to call subscribers
Ordinance No. 97-20
Page 38
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;
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 service interruptions, and service problems within the control of Franchisee,
shall be corrected within seventy-two (72) hours after receipt of a complaint;
3. The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities will be either a specific time, a four-hour time
block during normal business hours, or at the election and discretion of the subscriber, "all day";
4. Franchisee may not cancel an appointment with a subscriber after the close
of business on the business day prior to the scheduled appointment; and
5. If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer will be made and the appointment rescheduled as
necessary at a time winch is convenient for the customer.
Subscribers who have experienced a missed installation or service appointments due to the
fault of Franchisee shall receive a credit of not less than twenty dollars ($20.00). If the
installation was to have been provided free of charge or if the appointment was for service or
repair, the subscriber shall receive a credit on its bill of not less than twenty dollars ($20.00).
G. Disconnection.
1. Voluntary Disconnection.
(a) A subscriber may terminate service at any time.
Ordinance No. 97-20
Page 39
(b) 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.
(c) A subscriber may be asked, but not required, to disconnect the
Franchisee's equipment and return it to the business office.
(d) Any security deposit and/or other funds due the subscriber shall be
refunded on disconnected accounts after the converter has been recovered by the Franchisee. The
refund process shall take a maximum of thirty (30) days from the date that the converter or other
equipment was returned to franchisee or made available to Franchisee for pickup to the date the
customer receives the refund.
2. Involuntary Disconnection. If a subscriber fails to pay a monthly subscriber
or other fee or charge, the Franchisee may disconnect the subscriber's service outlet; however,
such disconnection shall not be effected until thirty-five (35) 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 thirty-five (35) days of the
due date and after notice of disconnection has been given, the Franchisee shall not disconnect.
After disconnection, upon payment by the subscriber in full of all proper fees or charges, including
the payment of the reconnection charge, if any, the Franchisee shall promptly reinstate service.
Ordinance No. 97-20
Page 40
3. Nothing in this Ordinance shall be construed to prevent the Franchisee
from removing its property from a subscriber's premises upon the termination of service consistent
with FCC rules and regulations and any other applicable law. At the subscriber's request, a
Franchisee shall remove all of its facilities and equipment from the subscriber's premises within
thirty (30) calendar days of the subscriber's request. Where removal is impractical, such as with
buried cable or internal wiring, facilities and equipment may be disconnected and abandoned
rather than removed, unless there is a written agreement stating otherwise, provided, however,
that such agreement must be consistent with applicable law and FCC rules.
H. Franchisee shall intentionally interrupt service only for good cause and for the
shortest time possible and where feasible shall provide 48 hours notice to the City Manager and to
all subscribers. Notice to multiple dwelling units may be provided to the property manager in lieu
of to each individual trait owner.
I. Franchisee shall notify the City Manager immediately if a service interruption
affects fifty (50) or more individual subscribers for a time period greater than four hours.
J. Franchisee shall cause all its field employees to wear a picture identification badge
indicating their employment by Franchisee. This badge shall be clearly visible to the public.
K. A Franchisee shall develop written procedures for the investigation and resolution
of all subscriber or City resident complaints, including, but not limited to, those regarding the
quality of service and equipment malfunction, which procedures shall be subject to the review and
approval by the City Manager. A subscriber or City resident who has not been satisfied by
following the Franchisee's procedures may file a written complaint with the City Manager, who
will investigate the matter and, in consultation with the Franchisee as appropriate, attempt to
Ordinance No. 97-20
Page 41
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
Franehisee'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 quarterly
basis. The list for each calendar quarter shall be supplied to the City Manager no later than the
15th day following the last day of the preceding quaxter. Franchisee shall also maintain a list of all
complaints received, which list will be available to the City.
L. To the extent reasonably required to monitor enforcement of this Ordinance or a
franchise agreement, a Franchisee shall permit the City designee to inspect and test the system's
technical equipment and facilities upon reasonable notice not to be less than forty-eight (48)
hours. Such inspection shall not be performed between the hours of 12 midnight and 6:00am
unless the City or its designee offers a specific reason for requiring an inspection during said
hours.
M. Franchisee shall abide by the following requirements governing communications
with customers, bills and refunds:
1. Each Franchisee shall provide to subscribers written information in each of
the following areas at the time of installation, at least once annually, and at any future time upon
request by the Subscriber:
(a) How to use the cable service;
(b) Installation and service policies;
(c) The products and services offered;
Ordinance No. 97-20
Page 42
(d) Prices and service options;
(e) Channel positions of programming carried on the system;
(f) The Franchisee's procedures for the receipt and resolution of customer
complaints, the Francinsee'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 '%ck-out" device;
(i) The Franchisee's information, collection, and disclosure policies for
the protection of a subscriber's privacy.
2. In addition, each Franchisee shall provide written notice either in its
monthly billing or through two (2) advertisements no smaller than 1/4 page in the newspaper with
the largest general circulation in the City, at the request of the City, of any City meeting regarding
requests or applications by the Franchisee for renewal, transfer or modification of its license or
change in service, rates or charges to subscribers. If agreed by the City, notice may be provided
over the cable system in certain instances. The City shall make such a request in writing, no less
than forty-five (45) days prior to the mailing of any billing by Franchisee of or fifteen (15) days
prior to the date that such advertising shall appear. Said notices shall be made at Franchisee's
expense and said expense shall not be considered part of the franchise fee assessed pursuant to
this Ordinance and shall not be regarded as a franchise fee, as the term is defined in Section 622
of the Communications Act, 47 U.S.C. Section 542.
3. Franchisee's bills will be clear, concise and understandable.
Ordinance No. 97-20
Page 43
4. Refund checks will be issued promptly, but no later than the earlier of thirty
(30) days or the customer's next billing cycle following the resolution of a refund request, or the
return of the equipment supplied by the Franchisee if service is terminated.
5. Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
6. A Franchisee shall provide subscribers, the City Manager, and the City
Council 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.
N A Franchisee shall provide a pro-rated 24-hour credit to the subscriber's account
for any period of four hours or more within a 24-hour period during which a subscriber
experienced an outage of service or substantial impairment of service, whether due to a system
malfunction or other cause.
O. Billing.
1. The Franehisee'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 Franehisee's billing statement must be fully itemized, with itemizations
including, but not limited to, basic and premium service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period, including optional charges, rebates and
credits.
3. The Franchisee's billing statement must show a specific due date not earlier
than ten (10) days alter the date of the beginning of the service period. Any balance not received
Ordinance No. 97-20
Page 44
within ten (10) days after the due date may be assessed an administrative charge. The charge will
appear on the following month's billing statement.
(a) Any administrative charge applied to unpaid bills shall be subject to
regulation by the City consistent with applicable law.
(b) Subscribers shall not be charged an administrative fee, a late fee or
otherwise penalized for any failure by the Franchisee, its employees, or contractors, including
failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a
payment timely made.
4. The Franchisee must notify the subscriber that he or she can remit payment
in person at the Franchisee's office or at such other locations within the City and inform the
subscriber of the address of that office.
P. A Franchisee may not substantially alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) without the express permission of such
subscriber, unless it complies with this subsection.
1. If a Franchisee wishes to alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) in such a way that the subscriber will no
longer be able to obtain the same package of services, then the Franchisee must provide the
subscriber with 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 thirty (30) day period following
notice, to opt to receive any combination of services offered by the Franchisee.
Ordinance No. 97-20
Page 45
2. Except as provided herein, no charge may be made for any service or
product which the subscriber has not affirmatively indicated, in a manner separate and apart from
payment of the regular monthly bill, that he or she wishes to receive.
Q. Franchisee shall certify in writing to the City on Janumy 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 18. At the request of the
City, the Franchisee shall submit such documentation, as may be required, to demonstrate
Franchisee's compliance with this Section 18. This documentation shall be submitted within forty
five (45) days of the Franchisee's receipt of the City's request.
R. Responsibility for the administration of this Ordinance and any franchise granted
hereunder and for the resolution of alt complaints against a Franchisee regarding the quality of
servSce, equipment malfunctions, and related matters, including the authority to order refunds or
fees, is hereby delegated to the City Manager, which is empowered, among other things, to settle,
or compromise any controversy arising from operations of the Franchisee, in accordance with the
best interests of the public. In cases where requests for service have been ignored or in cases
where the service provided is unsatisfactory for whatever reason, the City Manager shall have the
power to require the Franchisee to provide service if in the opinion of the City Manager such
request for service is reasonable. Provided, that any person aggrieved by a decision of the City
Manager, including the Franchisee, may appeal the matter to the City Council for heating and
determination. The City Council may accept, reject or modify the decision of the City Manager.
No adjustment, settlement, or compromise, whether instituted by the City Manager or by the City
Council shall be contrary to the provisions of this Ordinance or any Franchise agreement issued
Ordinance No. 97-20
Page 46
pursuant to this Ordinance, and neither the City Manager nor the City Council, in the adjustment,
settlement, or compromise of any controversy shall have the right or authority to add to, modify
or delete any provision of this Ordinance or of the Franchisee.
S. 1. In addition to the powers delegated in subsection t4~ (R) above, the City
Manager shall have the authority to order refunds from a Franchisee to individual cable television
subscribers who have submitted a written complaint to the City and to assess fines against a
Franchisee for any violation of this Ordinance or any franchise issued pursuant to this Ordinance,
which fines will be paid to the City.
2. In ordering refunds to cable television subscribers, the City Manager shall
be governed by the schedule set out below in which the refund indicated is expressed as a
percentage of the subscriber's monthly bill. The refunds listed are to be made on a per violation
basis with each day of a continuing violation constituting a separate violation. The refund ordered
by the City Manager pursuant to this Section 18 shall not exceed 100 percent of a subscriber's
monthly bill, unless a violation has continued at least 30 days from the date first reported to the
Franchisee.
SCHEDULE OF REFUNDS TO SUBSCRIBERS
~ Maximum Refund
(a) Failure to comply with the telephone 10%
availability requiremems of
Section 18(C) and 11 (D), hereof
(b) Failure to comply with the repair 50%
and installation requirements of
Section 18(F), hereo£
Ordinance No. 97-20
Page 47
3. In assessing fines against a Franchisee, the City Manager shall be governed
by the schedule set out below. The fines listed are to be assessed on a per violation basis with
each day of a continuing violation constituting a separate violation.
SCHEDULE OF FINES
Single Violation Of: Maximum Fines
(a) Section & hereof. $100.00
(b) Section B, hereof. $300.00
(c) Section C, hereof. $300.00
(d) Section D, hereof. $300.00
(e) Section E hereof. $300.00
(f) Section F hereof. $100.00
(g) Section G, hereof. $500.00
(h) Section H, hereof. $100.00
(i) Section I, hereof $200.00
(j) Section J, hereof $200.00
(k) Section K, hereof. $100.00
(j) Section L, hereof. $200.00
(m) Section M(1)(a)-(i) hereof $100.00
Section M(2), hereof $500.00
Section M(3)-M(6), hereof $200.00
(n) Section N, hereof $500.00
(o) Section O, hereof. $500.00
Ordinance No. 97-20
Page 48
(p) Section P, hereof. $300.00
(q) Section Q hereof $300.00
4. For the purpose of assessing and calculating refunds and fines for violations
of this Section with respect to multiple dwelling units, each individual unit shall be counted as a
subscriber. However, any and all refunds with respect to services provided pursuant to a bulk
agreement shall be remitted by the Franchisee to the party to the bulk agreement, rather than to
individual subscribers. Refunds due to subscribers for service purchased on an individual basis
shall be remitted directly by the Company to each individual subscriber.
5. Prior to ordering a refund and/or assessing a fine, the City Manager shall
mall the Franchisee written notice by certified or registered mall of the proposed refund and/or
fine, specifying the violation at issue. The Franchisee shall have thirty (30) days from the date of
receipt of the written notice to file a written response to the City Manager's notice. Franchisee's
written response shall be signed by management level personnel of Franchisee and all statements
contained therein will be regarded as material representations to the City.
6. Prior to ordering a refund and/or assessing a fine, the City Manager shall
consider any justification or mitigating factor advanced in Franchisee s written response, including
but not limited to rebates or credits to the subscriber or a cure of the violation. The City Manager
may, after consideration of the response of the Franchisee, waive or reduce any proposed refund
or fine.
7. Subsequent to the notice of proposed refund and/or fine to Franchisee and
consideration of the Franchisee's response, if any, the City Manager may issue an assessment of
refund or fine. The refund and/or fine shall be paid within thirty (30) days of written notice to the
Ordinance No. 97-20
Page 49
Franchisee. This refund and/or fine shall constitute liquidated damages to the subscriber and City
for the violation and the City may enforce payment of the refund or fine in any court having
jurisdiction. It is the intent of the City to determine fines/refunds as a reasonable estimate of the
damages suffered by the City and/or its subscribers, whether actual or potential, and may include
without limitation, increased costs of administration and other damages difficult to measure.
8. Franchisee may appeal any decision of the City Manager directly to the
City Council within thirty (30) days of notice of the decision to the Franchisee.
9. Any person who intentionally files a false complaint against a Franchisee
shall be subject to a fine in the amount of $50 for the first violation and $100 for each subsequent
violation.
10. Intentional misrepresentation by a Franchisee in any response to a notice of
proposed refund and/or fine shall be grounds for revocation of the franchise.
U. In addition to complying with the customer service standards set forth in this
Ordinance or in any franchise issued pursuant to this Ordinance, a Franchisee shall comply with all
customer service standards applicable to Cable Systems of the FCC and any other applicable
federal, state or county law concerning customer service standards, consumer protection, and
unfair or deceptive trade practices.
V. The City expressly reserves the right to consider violations of the customer service
requirements by a Franchisee in deciding whether to enter into a franchise agreement, grant a
franchise renewal, modification or consent to a transfer.
Ordinance No. 97-20
Page 50
Section 19. Subscriber Privacy. A Franchisee shall at all times protect the privacy of
all subscribers to the full extent required by Section 631 of the Communications Act, 47 U.S.C. §
551 and state law.
Section 20. Discrimination Prohibited. A Franchisee may in its rates or charges, or in
the availability of the services or facilities of its system, or in any other respect, make or grant
undue preferences or advantages to any subscriber, potential subscriber, or group of subscribers
or potential subscribers, nor subject any such persons or group of persons to any undue prejudice
or any disadvantage. A Franchisee shall not deny, delay or otherwise burden service or
discriminate against subscribers or users on the basis of age, race, creed, religion, color, sex,
handicap, national origin, marital status, or political affiliation, except for discounts for senior
citizens, the economically disadvantaged or handicapped that are applied in a uniform and
consistent manner. A Franchisee may also offer bulk discounts to multiple dwelling buildings to
the extent such discounts are otherwise permissible by law.
B. A Franchisee shall not deny cable service to any potential subscriber because of the
income 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, national origin, marital
status, or political affiliation. The Franchisee shall comply with Federal, state and local laws and
regulations governing equal employment opportunities, as the same may from time to time
amended.
Section 21. Use of Streets.
Ordinance No. 97-20
Page 51
A. Any pavements, sidewalks, curbing or other paved area taken up or any
excavations made by a Franchisee shall be done pursuant to permits issued for work by the proper
officials of the City, and shall be done in such manner as to give the least inconvenience to the
inhabitants 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 pavements, sidewalks, curbing or other paved
areas in as good a condition as before the work involving such disturbance was done, and shall
also prepare, maintain and provide to the City Manager or his designee, full and complete plats,
maps and records showing the exact locations of its physical facilities used in connection with the
Cable System located within the public Streets, ways, and easements of the City. These maps
shall be available in any form requested by the City Manager or his designee.
B. Except to the extent required by law, a Franchisee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any of its property when required by the
City by mason of traffic conditions, public safety, Street construction. Street resurfacing or
widening, change of Street grade, installation or sewers, drains, water pipes, power lines, signal
lines, tracks, or any other type of municipal or public utility improvements; provided, however,
that the Franchisee shall, in all such cases, have the privilege of abandoning any property in place.
C. A Franchisee shall, on the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal or raising or lowering of wires shall be paid by the person
requesting same, and the Franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall be
Ordinance No. 97-20
Page 52
required. The Franchisee shall be given not less than five calendar (5) days advance notice to
arrange for such temporary wire changes.
D. A Franchisee shall upon notice to the City of not less than seven (7) days, have the
authority to trim the trees or other natural growth upon and overhanging the Streets so as to
prevent the branches of such trees from coming in contact with the wires, cables and other
equipment of the Franchisee, except that, at the option of the City, such trimming may be done by
it or under its supervision and direction at the expense of the Franchisee.
E. A Franchisee shall use, with the owner's permission, existing underground conduits
(if applicable) or overhead utility facilities whenever feasible. Copies of agreements between a
Franchisee and third party for use of conduits or other facilities shall be filed with the City
provided that the Franchisee shall have the right to redact proprietary and confidential information
in such agreements as it pertains to financial arrangements between the parties.
F. All wires, cable lines, and other transmission lines, equipment and structures shall
be installed and located to cause minimum interference with the rights and convenience of
property owners. The City may issue such rules and regulations concerning the installation and
maintenance of a cable system installed in, on, or over the Streets, as may be consistent with this
Ordinance and the franchise agreement.
G. All safety practices required by law shall be used during construction, maintenance
and repair of a Cable System. A Franchisee shall not place facilities, equipment or fixtures where
they will interfere with any gas, electric, telephone, water, sewer or other utility facilities, or
obstruct or hinder in any manner the various utilities serving the residents of the City of their use
of any Street or any other public right of way.
Ordinance No. 97-20
Page 53
H. A Franchisee shall, at all times:
1. Install and maintain its wires, cables, fixtures and other equipment in
accordance with the requirements of the City's Building Code and Electrical Safety Ordinances
and any other applicable Building or Electrical Safety Code, and in such manner that they will not
interfere with any installations of the City.
2. Keep and maintain in a safe, suitable, substantial condition, and in good
order and repair, all structures, lines, equipment, and connections in, over, under, and upon the
Streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located.
I. On Streets where electrical or telephone utility wiring is located underground,
Franchisee's cable shall also be located underground at the Franchisee's expense. Between a
Street and a subscriber's residence, a Franehisee's cable must be located underground if both
electrical and telephone utility wiring are located underground. The City shall encourage, to the
extent feasible, that the public utility and 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 would be shared equally by all users of such trenches. Franchisee shall at
all times comply with the requirements of the Trench Safety Act.
J. In the event the use of any part of a Cable System is discontinued for any reason
for a continuous period of six (6) months, or in the event such system or property has been
installed in any Street without complying with the requirements of this Ordinance or a Franchisee
agreement, or the Franchise has been terminated, canceled or expired, the Franchisee, within thirty
(30) days after written notice by the City, shall commence removal from the Streets of all such
property as the City may require.
Ordinance No. 97-20
Page 54
K. The City may extend the time for the removal of Franchisee 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.
Section 22. Renewal of Franchise.
Renewal shall be conducted in a manner consistent with Section 626 of the
Communications Act, 47 U.S.C. 546. To the extent such additional requirements are consistent
with applicable law, the following requirements shall apply.
A. Upon completion of the review and evaluation process set forth in Section
626(a)(1)(2) of the Communications Act, 47 U.S.C 546, should that process be invoked, the City
shall notify the Franchisee, by certified or registered mail that it may file a renewal application
including a renewal proposal. The notice shall specify the information to be included in the
renewal application and the deadline for filing the application, which shall be no earlier than thirty
(30) calendar days following the date of the notice.
1. The application shall comply with the requirements of Section 9 hereof and
provide the specific information requested in the notice. If the Franchisee does not submit a
renewal application by the date specified in the City's notice to the Franchisee given pursuant to
this subsection, the Franchisee will be deemed not to be seeking renewal of its Franchise.
2. Upon receipt of the renewal application, the City shall publish notice of its
receipt and make copies available to the public. The City, following prior public notice, may hold
one or more public heatings on the renewal application.
Ordinance No. 97-20
Page 55
B. In the event a public heating on the renewal application is held, or in the event that
the City Council considers the renewal application without a public hearing, the City Council will
either:
1. Pass a resolution agreeing to renew the Franchise, subject to the
negotiation ora Franchise agreement satisfactory to the City and the Franchisee; or
2. Pass a resolution that makes a preliminary assessment that the Franchise
should not be renewed.
C. If a preliminmy assessment is made that a Franchise should not be renewed, at the
request of the Franchisee or on its own initiative, the City will commence a proceeding in
accordance with Section 626(c) of the Communications Act, 47 U.S.C. § 546(c) to address the
issues set forth in Section 626(c)(1)(A)-(D) of the Communications Act, 47 U.S.C.§
546(c)(1)(A)-(D). Any denial of a proposal for renewal that has been submitted in compliance
with subsection (b) of § 546 shall be based on one or more adverse findings made with respect to
the factors described in § 546(c)(1)(A)-(D), pursuant to the record of proceedings under §
546(c). The City shall not base a denial of renewal on a failure to substantially comply with the
material terms of the Franchise under § 546(c)(1)(A) or on events considered trader §
546(c)(1)(B) unless the City has provided the Franchisee with notice and opportunity to cure, or
in any case in which it is documented that the City has waived its right to object, or the Franchisee
gives written notice of a failure or inability to cure and the City fails to object within a reasonable
time after receipt of such notice.
D. Any request to initiate a renewal process or proposal for renewal not submitted
within the time period set forth in Section 626(a) of the Communications Act, 47 U.S.C § 546(a),
Ordinance No. 97-20
Page 56
shall be deemed an informal proposal for renewal and shall be governed in accordance with
Section 626(h) of the Communications Act, 47 U.S.C.§ 546(h). The City may hold one or more
public hearings or implement other procedures under which comments from the public on an
informal proposal for renewal may be received. Following such public hearings or other
procedures, the City Council shall determine whether the Franchise should be renewed and the
terms and conditions of any renewal.
E. If the City Council grants a renewal application, the City and the Franchisee shall
agree on the terms of a Franchise agreement, pursuant to the procedures specified in subsection
9(E)-(H) of this Ordinance, before such renewal becomes effective.
F. If renewal of a Franchise is lawfully denied, the City may acquire ownership of the
Cable System or effect a transfer of ownership of the system to another person upon approval of
the City Council. Any such acquisition or transfer shall be at fair market value, determined on the
basis of the Cable System valued as a going concern but with no value allocated to the franchise
itsel£ The City may not acquire ownership of the system while an appeal of a denial for renewal
is pending in any court pursuant to § 546(e).
G. If renewal of Franchise is lawfully denied and no appeal to a court is pending, and
the City does not purchase the Cable System or approve or effect a transfer of the Cable System
to another person, the City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee falls 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.
Section 23. Transfer/Sale/Assignment.
Ordinance No. 97-20
Page 57
A. No transfer ora Franchise shall occur without prior approval of the City.
B. An application for a transfer of a Franchise shall meet the requirements of Section
9 hereof, and provide complete information on the proposed transaction, including details on the
legal, financial, technical and other qualifications of the transferee, and on the potential impact of
the transfer on subscriber rates and service. Except in the case of a pro forma transfer, the
application shall provide, at a minimum, the information required in subsection Section 9(F)(1)-
(F)(5) and (F)(14) with respect to the proposed transferee. The information required in
subsections 9(F)(6)-(F)(13) shall also be provided whenever the proposed transferee expects
material changes to occur in those areas.
C. An application for approval of a pro forma transfer of a Franchise shall be
considered granted on the sixty first (614) 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 fi'anchise 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 (30) calendar days of the filing of
an application for a pro forma transfer, the applicant shall be required only to provide the
information required in subsections (9)(F)(1),(3) and (14) 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 Council shall consider the legal, financial, and technical and other
qualifications of the transferee to operate the system; whether the incumbent cable operator is in
substantial compliance with the material terms of its Franchise agreement and this Ordinance and,
if not, the proposed transferee's commitment to cure such noncompliance; and whether operation
Ordinance No. 97-20
Page 58
by the transferee would adversely affect cable services to subscribers, or othenvise 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 ail terms of this Ordinance and the Franchise
agreement, and that it will assume the obligations and liabilities of the previous Franchisee under
this Ordinance and the Franchise agreement.
F. Approval by the City of a transfer of a Franchise does not constitute a waiver or
release of any of the rights of the City under this Ordinance or the Franchise agreement, whether
arising before or after the date of the transfer.
Section 24. Revocation or Termination of Franchise
A. A Franchise may be revoked by the City Council for a Franchisee's failure to
construct, operate or maintain the Cable System as required by this Ordinance or the Franchise
agreement, or for any other materiai violation of this Ordinance or material breach of the
Franchise agreement. To invoke the provisions of this subsection (A), the City shall give the
Franchisee written notice, by certified mail at the last known address, that Franchisee is in materiai
violation of this Ordinance or in material breach of the Franchise agreement and describing the
nature of the alleged violation or breach with specificity. If within thirty (30) calendar days
following receipt of such written notice fxom the City to the Franchisee, the Franchisee has not
cured such violation or breach, or has not commenced corrective action and such corrective
action is not being actively and expeditiously pursued, the City may give written notice to the
Franchisee of its intent to revoke the Franchise, stating its reasons.
Ordinance No. 97-20
Page 59
B. Prior to revoking a Franchise under subsection (A) hereof, the City Council shall
hold a public hearing, upon thirty (30) calendar days notice, at which time the Franchisee and the
public shall be given an opportunity to be heard. Following the public hearing the City Council
may determine whether to revoke the Franchise based on the evidence presented at the hearing,
and other evidence of record. If the City Council determines to revoke a Franchise, it shall issue a
written decision setting forth the reasons for its decision. A copy of such decision shall be
transmitted to the Franchisee.
C. Notwithstanding subsections (A) and (B) hereof, any Franchise may, at the option
of the City following a public hearing before the City Council, be revoked one hundred twemy
(120) calendar days at~er 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 hundred 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 Ordinance 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 Ordinance and the Franchise agreement.
D. In the event of foreclosure or other judicial sale of any of the facilities, equipment
or property of a Franchisee, the City may revoke the Franchise, following a public hearing before
the City Council, by serving notice upon the franchise and the successful bidder at the sale, in
Ordinance No. 97-20
Page 60
which event the Franchise and all rights and privileges of the Franchise will be revoked and will
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 the Franchise agreement and this Ordinance.
E. If the City revokes a Franchise, or if for any other reason a Franchisee abandons,
terminates or fails to operate or maintain service to its subscribers for a period of six months, the
following procedures and rights are effective:
1. The City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
2. The City, by resolution of the City Council, may acquire ownership, or
effect a transfer, of the Cable System at an equitable price.
3. If a Cable System is abandoned by a Franchisee, the City may sell, assign or
transfer all or part of the assets of the system.
F. Where the City has issued a Franchise specifically conditioned in the Franchise
agreement upon the completion of construction, system upgrade or other specific obligation by a
specified date, failure of the Franchisee to complete such construction or upgrade, will result in
the automatic forfeiture of the Franchise without further action by the City where it is so provided
Ordinance No. 97-20
Page 61
in the Franchise agreement, unless the City, at its discretion and for good cause demonstrated by
the Franchisee, grants an extension of time.
G No Franchisee will construct or activate a system upgrade in any community
served by the same system prior to activating the upgrade for all subscribers within the City,
without prior authorization from the City.
H. Except as provided in subsection (F), no adverse action against a Franchisee may
be taken by the City pursuant to this section except after a noticed public hearing at which the
Franchisee is given an opportunity to participate.
Section 25. Continuity of Service Mandatory.
A. It is the right of all subscribers to receive all available services requested from the
Franchisee as long as their financial and other obligations to the Franchisee are satisfied.
B. In the event of a termination or transfer of a Franchise for whatever reason, the
Franchisee shall ensure that all subscribers receive continuous, uninterrupted service regardless of
the circumstances. The Franchisee shall cooperate with the City to operate the system for a
temporary period following termination or transfer as necessary to maintain continuity of service
to all subscribers. The temporary period will not exceed six (6) months without the Franchisee's
written consent. During such period the Cable System shall be operated under such terms and
conditions as the City and the Franchisee may agree, or such other terms and conditions that will
continue, to the extent possible, the same level of service to subscribers and that will provide
reasonable compensation to the cable operator.
C. In the event a Franchisee fails to operate the system for seven (7) consecutive days
without prior approval of the City or without just cause, the City may, at its option, operate the
Ordinance No. 97-20
Page 62
system or designate an operator until such time as the Franchisee restores service under
conditions acceptable to the City or until a permanent operator is selected. If the City is required
to fulfill this obligation for the Franchisee, the Franchisee shall reimburse the City for all costs or
damages resulting form the Franchisee's failure to perform that are in excess of the revenues from
the system received by the City. Additionally, the Franchisee will cooperate with the City to
allow City employees and/or City agents free access to the Franchisees' facilities and premises for
purposes of continuing system operation.
Section 26. Rates.
A. Nothing in this Ordinance shall prohibit the City from regulating rates for cable
services to the full extent permitted by law.
B. Any rate or charge established for cable television service, equipment, repair and
installation shall be reasonable to the public. Upon written request from the City or its agent,
Franchisee shall provide all requested data, records and documentation to show the
reasonableness o£ the rates or to comply with FCC guidelines. Where such information is
designated proprietary and confidential, it shall not be copied or removed or otherwise subject to
public inspection, to the extent the City is permitted to protect such information from public
inspection under applicable law.
C. Subject to the City's regulation of rates as permitted under applicable Federal and
state law, should a Franchisee desire to change any rate or charge, it shall submit a written
proposal for the amounts and effective date of such change to the City Manager who shall
evaluate the proposal in a manner consistent with FCC cable television rate regulation standards
or other applicable law in effect at the time and repo~ this evaluation to the City Council. The
Ordinance No. 97-20
Page 63
City Manager's report shall be placed before the City Council at a duly noticed public hearing.
The City will provide written notice of the public hearing to the Franchisee no later than five (5)
days prior to the public hearing. The City may require the Franchisee to notify each subscriber, by
placing an announcement of not less than one quarter page in a newspaper of general circulation
and/or via the Cable System, of the proposed rate change and the date and time of the public
hearing, with such notice commencing no later than forty-eight (48) hours prior to time of the
public hearing. At such hearing, the Franchisee and members of the public will be given an
opportunity to present their respective views on the proposed rates. Upon conclusion of the
public heating, the City Council shall decide the matter by majority vote and adopt a Resolution
approving, disapproving, or modifying the proposed rate changes and providing such further relief
as is appropriate and authorized by FCC rate regulation standards. The resolution shall set forth
complete findings of fact and conclusions regarding all of the basic elements considered in the
City Council's determination.
Section 27. Performance Evaluation.
The City will conduct periodic performance evaluations of a Franchisee as the City
determines is necessary. A Franchisee shall cooperate with these evaluations reasonably and in
good faith. If the City implements a survey of cable subscribers in connection with a performance
evaluation, the City may require a Franchisee to distribute the City's questionnaire to its
subscribers at the City's expense. Upon request and upon reimbursement of the City's copying
costs, the Franchisee may receive copies of all responses.
Section 28. Administration.
Ordinance No. 97-20
Page 64
A. The City Manager, either directly or through a duly appointed designee, shall have
the responsibility for overseeing the day-to-day administration of this Ordinance and Franchise
agreements. The City Manager shall be empowered to take all administrative actions on behalf of
the City, except for those actions specified in this Ordinance that are reserved to the City
Council. The City Manager may recommend that the City Council take certain actions with
respect to the Franchise. The City Manager shall keep the City Council apprised of developments
in cable and provide the City Council with assistance, advice and recommendations as
appropriate.
B. Subject to Federal and state law, the City Council shall have the sole authority to
regulate rates for cable services, grant Franchises, authorize the entering into of franchise
agreements, modify Franchise agreements, renew or deny renewal of Franchise, revoke Franchise
and, authorize the transfer of a Franchise.
Section 29. Force Mnieure.
In the event a Franchisee's performance of or compliance with any of the provisions of
this Ordinance or the Franchisee's Franchise agreement is prevented by a cause or event not
within the Franchisee's control, such inability to perform or comply shall be deemed excused and
no penalties or sanctions shall be imposed as a result thereof, provided, however, that Franchisee
uses all practicable means to expeditiously cure or correct any such inability to perform or
comply. For purposes of this Ordinance and any Franchisee agreement granted or renewed
hereunder, causes or events not within a Franchisee's control shall include, without limitation,
acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of
public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a
Ordinance No. 97-20
Page 65
governmental agency or court. Causes or events within Franchisee's control, and thus not falling
within this section, shall include, without limitation, Franchisee's financial inability to perform or
comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Franchisee's
directors, officers, employees, contractors or agents.
Section 30. ApplicabiliO,.
A. This Ordinance shall be applicable to all cable systems now existing in the City on
the date hereof and to all applicants for cable franchises, to the full extent permitted by Federal
and state law.
B. Any person shall notify the City in writing within thirty (30) calendar days of the
passage of this Ordinance, or any subsequent amendment thereof, ot~
1. any provision which it believes should not be applicable to it.
2. the reason for each such claim of non-applicability.
C. Failure to notify the City as provided in subsection (B) of this Section shall
constitute a waiver of any right to object.
Section 31. Municipal Cable System Ownership Authorized.
A. To the full extent permitted by law, the City may acquire, construct, own, and/or
operate a Cable System.
B. Nothing in this Ordinance 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 32. Violations of Ordinance.
Ordinance No. 97-20
Page 66
A. Whenever the City finds that a person has allegedly violated any provision of this
Ordinance, not otherwise described in Section 18 herein, such person shall have thirty (30) days
subsequent to receipt of notice to correct the violation. If after 30 days, the recipient has failed to
correct the alleged violation, or commence curing to a substantial extent and to the satisfaction of
the City, the City shall determine if the person has committed a violation and shall make written
findings of fact. If a violation is found, the person shall pay to the City Five Hundred Dollars
($500) per day, or any part thereof for each day each violation occurs or continues. The City
reserves the right to withdraw said payments from the security fund upon 3 days written notice to
Franchisee. It is the intent of the City to impose the above discussed fines as a reasonable
estimate of the damages suffered by the City and/or its subscribers, whether actual or potential,
and may include without limitation, increased costs of administration and other damages difficult
to measure.
B. The City hereby reserves any and all rights to require that a person remove its
equipment and facilities from the City's public rights of way where the City has determined and
issued a written decision finding that the damages suffered by the City or its residents can not be
remedied by any reasonable means other than by termination or revocation of a person's rights to
use the City's rights of ways.
Section 33. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided herein
under Section 18, the City may apply any one or combination of the following remedies in the
event a Franchisee violates this Ordinance, its Franchise agreement, applicable Federal or state
law, or applicable local law or order:
Ordinance No. 97-20
Page 67
1. Impose liquidated damages in such amount, whether on a per-diem, per-
incident, or other measure of violation, as provided in the franchise agreement. Payment of
liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to comply
with the Franchise agreement and the requirements of this Ordinance.
2. Revoke the Franchise pursuant to the procedures specified in Section 24
hereo£
3. In addition to or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
B. In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons beating the impact of the
violation, the nature of the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
C. Failure of the City to enforce requirements of a Franchise agreement or this
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.
D. In any proceeding wherein there exists an issue with respect to a Franchisee's
performance of its obligations pursuant to this Ordinance, the Franchisee has, throughout any
such proceedings and appeals thereof, the burden of proving that said Franchisee is in compliance
with the terms of the Ordinance. The City Council may find a Franchisee that does not
demonstrate compliance with the terms and conditions of this Ordinance in default and apply any
one or combination of the remedies otherwise authorized by this Ordinance.
Section 34. Reservation of Rights.
Ordinance No. 97-20
Page 68
A. The City reserves the right to amend this Ordinance as it shall find necessary in the
lawful exercise of its police powers.
B. Any additional regulations adopted by the City shall be incorporated into this
Ordinance and complied with by all Franchisees within thirty (30) days of the date of adoption of
such additional regulations.
C. The City reserves the right to exercise the power of eminent domain to acquire the
property of 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.
D. The City shall at all times have the right, upon reasonable notice and during normal
business hours, to examine and copy a Franchisee's records and to inspect a Franchisee's facilities
to the extent needed to monitor a Franchisee's compliance with and performance under this
Ordinance and the Franchisee's Franchise agreement.
Section 35. Repeal of Conflicting Ordinances.
That Ordinance No. 96-15 providing an Interim Ordinance on the same subject and all
parts of ordinances, and all resolutions or parts of resolutions in conflict herewith be and the same
are hereby repealed to the extent of such conflict.
Section 36. Savings.
All rates, fees, charges and financial obligations previously accrued pursuant to the
ordinances and resolutions repealed pursuant to Section 35 above shall continue to be due and
owing until paid.
Section 37. Severabilitv.
Ordinance No. 97-20
Page 69
If any part, section, subsection, or other portion of this Ordinance or any application
thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason,
such part, section, subsection, or other portion, or the prescribed application thereof, shall be
severable, and the remaining provisions of this Ordinance, and all applications thereof not having
been declared void, unconstitutional or invalid, shall remain in full force and effect. The City
declares that no invalid or prescribed provision or application was an inducement to the enactment
of this Ordinance, and that it would have enacted this Ordinance regardless of the invalid or
prescribed provision or application.
Section 38. Effective Date. This Ordinance shall take effect and be in force
immediately upon its passage and adoption on second reading.
The foregoing Ordinance was offered by Councilmember Rogers-Libert, who moved its
adoption on first reading. The motion was seconded by Councilmember Cohen, and upon being
put to a vote, the vote was as follows:
Councilmember Arthur Berger yes
Councilmember Jay Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Patricia Rogers-Libert yes
Vice Mayor Jeffrey M. Peflow yes
Mayor Arthur I. Snyder absent
The foregoing Ordinance was offered by Councilmember Beskin, who moved its adoption
on second reading. The motion was seconded by Councilmember Rogers-Libert, and upon being
put to a vote, the vote was as follows:
Councilmember Arthur Berger yes
Councilmember Jay Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Ordinance No. 97-20
Page 70
Councilmember Patricia Rogers-Libert yes
Vice Mayor Jeffrey M. Perlow yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 5th day of August, 1997.
PASSED AND ADOPTED on second reading 2 day of Septe/mb,er, 19~7. ~//
/]
ART~3~' I,,]SNYDE~,, IV(AYOR
ATTEST( ,
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
CITY ATTORNEY