HomeMy WebLinkAboutVI (A) Public Hearing - Ordinance No. 99-37, Cable Television Agenda 12-7-99
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" Item VI A
Ocoee S.SCOTT VANDERGRIFT
O
CITY OF OCOEE COMMISSIONERS
prg:j Q- 150 N.LAKESHORE DRIVE DANNY HOWELL
SCOTT ANDERSON
OCOEE,FLORIDA 34761-2258 RUSTY JOHNSON
(407)656-2322 NANCY J.PARKER
E4 Op 000V
CITY MANAGER
ELLIS SHAPIRO
Staff Report
Date: November 9, 1999
To: The Honorable Mayor and City Commissioners
From: Janet G. Shira, Community Relations/Projects Director
Subject: Cable Television Ordinance
Issue
Should the Mayor and City Commissioners approve Ordinance 99-37, creating a new cable television ordinance in
the City of Ocoee?
Background and Discussion
This ordinance is the culmination of more than a year of workshops, research, and meetings to discuss cable
television. With the constant advances in technology, it was a high priority to include language that will allow
enforcement of upgrades to the system as those upgrades are made in the Orlando area. This will keep the service
our residents and businesses receive comparable to what Orlando area residents and businesses receive, within a
reasonable time frame. We also tried to include provisions that as the state-of-the-art changes and as cable
regulation and applicable law may change, that Ocoee keeps its options open to take advantage of any new
opportunities this may afford the City and its residents.
As the only current franchise in the City, Time Warner representatives have been involved in all meetings and
discussions, and we have worked hard to compromise in an effort to provide the best possible position for the City
while understanding the needs of cable television businesses. Staff and our consulting attorneys feel that good
faith negotiations have been upheld and that this ordinance represents a win-win situation for the City, our existing
cable television franchise holder, and any future franchisees who may want to do business in Ocoee.
Attached to this staff report is a brief summary from our special counsel outlining some of the major issues
included in the new franchise. The ordinance you received in your last packet has had a few minor changes since
you received it. Attached to this report is a new copy of the proposed cable franchise ordinance as amended and a
lined copy so that you can easily see the changes made to create the proposed final draft.
Recommendation
Staff respectfully recommends that upon second reading and public hearing, the City Commission adopt Ordinance
99-37.
cc: Ellis Shapiro, City Manager
Paul Rosenthal,City Attorney
Matt Leibowitz,Leibowitz&Associates
Diane Pickett,Time Warner
POW!'
Protect Dcoee's Water Resources
0305 530 9917 ASSOCIATES 11/29/99 12 : 51 P . 002/004
LEIBOWITZ & ASSOCIATES, RA.
SUITE 1450
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ILA L.FELD
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CAROLINE A.SORET
MEMORANDUM
TO: Ellis Shapiro,City Manager
FROM: Braulio L.Baez) I'
RE: Errata Sheet for Proposed Ordinance No. 99-37
City of Ocoee, Florida
DATE: November 24, 1999.
The following corrections are appropriate for the proposed Ordinance No. 99-37. The changes
represent agreed upon modifications which were inadvertently omitted from the final draft under
consideration.
Section 57-02. Definiti, s,
S. Gross Revenues shall not include - •: •••• ••• •w
revenues directly generated by affiliated programmers for the
provision of programming;any taxes on services furnished by the Franchisee which are imposed
upon any Subscriber or user by the state,county,City or other governmental unit and collected by
the Franchisee on behalf of said governmental unit and which the Franchisee passes on in frill to the
applicable tax authority....
T. "Institutional Network" means a dedicated closed network, or an alternative
acceptable to the City,for use by the City to provide Cable Services and non-Cable Services for
public;educational and governmental use within the City..._
Section 57-18. Customertitmice Requirements.
CA2251199910cocagb.a am.wpd
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Memorandum.to Mr.Ellis Shapiro
November 24, 1999
Page 2
B. ...This business office shell be open at minimum during normal business hours,
Monday through Friday,and some weekend and/or evening hours.__.
Q. No charge may be made for any service or product which the Subscriber has not
affirmatively requested by name. Subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative request for service or equipment. A
Subscriber's affirmative request for service or equipment may be made orally or in writing.
Franchisee's material Failure to comply with this subsection shall may result
in a fine in the amount of One Hundred Dollars($100)per violation,per day or part thereof that the
violation continues.
T. ...
6. Intentional material misrepresentation by a Franchisee in any response to a
notice of proposed credit,refund and/or fine,whether oral or written, shall be considered a material
breach of the Franchise Agreement, subject to a penalty of no less than Five Thousand Dollars
($5,000.00) in liquidated damages to the City, and shall be grounds for Franchise revocation.
Section 57-20. Discrimination Prohibited.
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, or marital status-or
politica filiation. The Franchisee shall comply with federal, state and local laws and regulations
governing equal employment opportunities,as the same may be from time to time amended.
Section 57-22. Enforcement Kan ies_
C. Notwithstanding anything to the contrary,Franchisee's failure to comply with Section
57-13(A)hereof sit may result in the assessment of liquidated damages in the amount of Seven
Hundred Fifty Dollars($750.00)per day for each day such violation continues.
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LEppowITZ& ASSOCIATI+S. P.4-
SUITE 1450,ONE SOUTHEAST THIRD AVENUE, MIAMI,FLORIDA 33131-1715•TELEPHONE(305)530-13U
0305 530 9911 LEIBO11I11 ASSOCIATES 11/29/99 12 : 52 P . 001/001
Memorandwn to Mr.Ellis Shapiro
November 24, 1999
Page 3
Section 57-24. Transfers.
B. An application for a transfix of a franchise shall meet the requirements of Section 57-
08 hereof,and provide complete information on the proposed transaction, including details on the
Iegal,financial,technical and other qualifications of the tran,feree, and on the potential impact of
the transfer on subscriber rates and service_ Ex. ..-1,t in , Tthe
application shall provide,at a minimum,the information required in subsections 57-08(E)(1)-(E)(5)
with respect to the proposed transferee. The information required in subsections 57-08(E)(6)-(E)(13)
shall also be provided whenever the pi oposed transferee expects material changes to occur in those
areas.
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Nortmber 2l,1999(12:47PM)
LEu%owaTz Be AssocL&n's, P.A.
SUITE 1450.ONE SOUTHEAST THIRD AVENUE, MIAMI,FLORIDA 33131-1715 -TELEPHONE(305)530.1322
The Orlando Sentinel, Saturday, November 27, 1999
NOM
PUBUNG
CITYEE
Notice is hereby given pursuant
to Article VIII of the Constitution
of the State of Florida and Sec-
tion; .041, Florida Statutes,
tha Ocoee City Commission
will a public hearing in the
Co Sion Chambers, City
Hall, ted at 150 N. Lake-
shore 'e,Ocoee,Florida dur-
ing a regular session to be held
on December 7,1999 at 7:15
p.m. or as soon thereafter as
possible in order to consider the
adoption of the following ordi-
nance:
ORDINANCE NO.99-37
AN ORDINANCE OF THE
CITY COMMISSION OF
THE CITY OF OCOEE,
FLORIDA, CREATING OR-
DINANCE NO. 99-37 OF
THE CITY OF OCOEE,
FLORIDA, BY PROVIDING
THE PROCEDURES AND
REQUIREMENTS RELAT-
ING TO CABLE TELEVI-
SION FRANCHISES TO RE-
FLECT CHANGES IN
APPUCABLE LAW AND TO
BETTER ENSURE THAT
USE OF CITY STREETS BY
CABLE SYSTEMS SERVES
THE PUBLIC INTEREST ;
PROVIDING FOR CON-
FLICTS; PROVIDING FOR
SEYERABIUTY;AND PRO-
VIDING A SAVINGS
CLAUSE AND EFFECTIVE
DATE.
Interested parties may appear at
the meeting and be heard with
respect to the proposed action.
A copy of the proposed ordi-
nance may be examined in the
office of the City Clerk at City
Hall, 150 N. Lakeshore Drive,
Ocoee, Florida between the
hours of 8:00 a.m. and 5:00
p.m., day through Friday,
exc holdays.
N Any person who de-
sires- appeal,any decision
made by Commission with re-
- spect to any matter considered
at such meeting will need a re-
cord of the proceedings and for
such purpose may need to en-
sure that a im record of
the proce made,which
record in the testimony
and evidence on which the
appeal is based.Persons with
disabilities needing assistance
to participate in any of these
proceedings should contact the
Office of the City Clerk,150 N.
Lakeshore Drive,Ocoee,Florida
34761,(407)656-2322 Ext.146,
48 hours in advance of the
meeting.
Jean Grafton,City Clerk
November 25,1999
COR303491I NOV.27,19,39
e305 530 9411 LEIBONI1l ASSOCIATES 12/06/99 15 : 09 P . 002/005
t J u .
LEYsowITz & ASSOCIATES, P.A. \ 4)--1-1199
suIYE 1450
CHIRAL/Lie L.RACE SUNTRUST INTERNATIONAL CENTER TELEPHONE(30S)530-1322
JOSEPH A.BELISLE ONE SOUTHEAST THIRD AVENUE TELECOPIER(305)530-5AI7
ILA L.rem. MIAMI,FLORIDA 33131.1715 E-MAIL Broadlaw@aol.com
MATTHEW L.LEIBOWITZ
CAROLINE A.50RET
December 6, 1999
Via Facsimile(407) 6564504
Mr. Ellis Shapiro
City Manager
City of Ocoee
150 N.Lakeshore Drive
Ocoee, FL 34761
RE: City of Ocoee Cable Ordinance
Dear Ellis:
The Finn has had an opportunity to review Time Warner's written comments submitted to
the City on December 1, 1999- In their comments,the Company sets forth their objections on three
separate issues,which remain outstanding,as a result of discussions between the Firm,on the City's
behalf,and the Company concerning the provisions included in the proposed cable ordinance,set
for second reading on December 7, 1999. The Firm wishes to submit the following comments in
response to Time Warner's objections.
With regard to Time Warner's objections concerning Section 57-17(A) of the proposed
Ordinance,requiring a Franchisee to file with the City an annual report describing developments in
the state-of-the-art of cable systems, Time Warner maintains that a compulsory requirement to
produce such a report diverts resources and manpower from its obligations to provide service and
operate the cable system. The Company further suggests that such reports often go unread by City
staff;resulting in a waste of resources to the Company,and therefore suggest that the report should
be provided upon request by the City.
During the course of renewal negotiations with the Company,the City staff has consistently
maintained that a priority for the City is maintenance of a state-of-the-art cable system, providing
the services and benefits to its residents,consistent with the future cable related needs and interests
of a growing community. The Company,through discussions with City staff,has agreed to support
state-of-the-art obligations which would require ongoing improvements in technology and services
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Letter to Mr. Ellis Shapiro
December 6, 1999
Page 2
available on the cable system. Requiring an annual report on state-of-the-art developments ensures
that the City and its staff will be regularly kept abreast of developments in technology and services
and allow the City to determine the appropriate time at which to address the changing needs of the
community, in terms of those new developments in technologies and services. In its ongoing
relationship with the City' the community and its customers, the Franchisee is best able to stay
abreast of any new developments in the state-of-the-art, and consequently should have the
responsibility to keep the City informed of such developments on a regular basis.
Similarly,the Company's objections to Section 57-22E of the proposed Ordinance, which
imposes on the Franchisee the burden of proving its compliance with the terms of the Ordinance in
any matter before the Commission,or on an appeal of a Commission decision,turns on the notion
of whom is better equipped and able to obtain,maintain and provide the information necessary to
establish with certainty that the Franchisee is in fact complying with the terms of the Ordinance.
Time Warner's proposed language would only require the franchisee to provide such information
"as it may have"concerning its compliance with the terms of the Ordinance. In a situation where,
between the City and Time Warner,only Time Warner has the resources, ability and expertise to
maintain necessary information,the City is left at a disadvantage to obtain that information when the
Company is merely obligated to provide only the information it chooses to have. This,without more,
leaves to much discretion in the Company's hands as to what information regarding compliance with
the Ordinance it will decide to keep and maintain.
The language contained in the proposed ordinance, by contrast, would ensure that the
Company would be obligated to maintain all necessary information in the event it should have to
prove its compliance with the terms of the Ordinance. It is an efficient way of employing the
resources that are already available to the City and the Company to address compliance issues.
Therefore, the language proposed by Time Warner on this issue is inadequate and should not be
adopted.
Lastly, the Company strenuously objects to Sections 57-08(I)and 57-09(D)of the proposed
Ordinance. These sections concern the requirement of a filing fee for the branch renewal transfer
modification of the Franchise,and a processing fee for cost and expenses in considering franchise
applications,respectively. Both sections state that such fees are not to be credited as franchise fees.
Concerning this issue,Time Warner first states that it will not agree to any statement that
such fees are not franchise fees under Federal Law. When confronted with the fact that such fees
are not credited as franchise fees or passed through to customers pursuant to Time Warner franchises
New York City,the Company justifies its action on the basis of the size of the Franchise area in that
instance,as well as the fact the New York City is the corporate home of Time Warner. No matter,
this fact is illustrative of the fact that whether or not Time Warner credits such fees as franchise fees,
or even passes them through to subscribers,is merely a business decision. Time Warner relies on
its interpretation of Federal Law,and on court decisions in other jurisdictions where itis convenient
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LEIBOWITZ&ASSOCIATES,P.A.
SUITE 1.SO,ONE SOUTHEAST THIRD AVENUE.MIAMI,FLORIDA 33131.1715 •TELEPHONE 1305)530-132B
8305 530 9411 LEIBOiiZ ASSOCIATES 12/06/99 15 : 10 P . 004/005
Letter to Mr.Ellis Shapiro
December 6, 1999
Page 3
as a business issue,and such arguments should not sway the commission in any definitive sense.
As to the supporting cases which the Company relies on, interpreting the Cable Act with
respect to the definition of franchise fees,it is important to keep in perspective the precedential affect
of such cases within the Middle District of Florida_ In fact,none of the cases have binding authority
in Florida. In fact,as trial court decisions,the referenced cases are not even binding authority within
their own district. In addition,the Company points out that,in two of the three cases that they have
submitted, Time Warner was the litigant, and uses that fact to support its assertion that the
Company's position on this issue has been consistent and long standing. In light of its treatment of
the same issue in New York,the Company's assertion should more accurately be that its position is
long standing and consistent,subject to its own discretion,and applied where convenient.
Basically,this issue is ultimately a business decision for the Company,and a policy decision
for the City. As you know,the proposed ordinance,in Section 57-08(1)requires an application fee,
which may not be deducted from the franchise fee imposed in the franchise agreement,and may not
be passed through to subscribers. In addition,Section 57-09(t))requires reimbursement of costs and
expenses of the City in awarding or renewing a franchises which shall not be credited against the
franchise fee nor passed through to subscribers,up to the limit of the application fee under Section
57-08(1). Therefore,any reimbursement which the Company would be required to make to the City
over and above the application fee($10,000)would be permitted to be passed through to subscribers
at the discretion of the Company.
Time Warner currently hold franchises in other jurisdictions in Florida which by ordinance
require cost recovery for the franchising authority's expenses in granting,renewing, transferring,or
modifying franchises. Alachua County Code Section 61.10(g)allows imposition of a processing fee
in an amount not to exceed the County's out-of-pocket costs in considering an application_ Time
Warner acquired the Alachua County franchise in January 1996. Section 2-7-9(i)of Manatee County
Ordinance No.91-24 also allows for a processing fee not to exceed the County's out-of-pocket costs
in considering an application, less the filing fee required by Section 2-7-8(i) of the Ordinance.
Neither of these ordinances prohibits passing cost recovery on to subscribers, or the treatment of
such fees as franchise fees.
The City's total expenses for consulting fees on the renewal now stand at approximately
$53,700. This total is the result of protracted negotiations with the Franchisee. Generally,renewal
costs should not be so high. However,consultant fees,in this case billed on an hourly rate,are a
direct result of the level of cooperation,or lack thereof,of the Franchisee. Applying the provisions
of the proposed Ordinance,the Company would have the discretion to pass through approximately
$43,700 onto the subscribers. Based on the current number of subscribers in the City,approximately
7,000, and spread out over the life of the franchise agreement(ten years), the actual pass through
would breakdown into approximately$0.63 per year per subscriber,or just over$0.05 per month per
subscriber.
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Dacmba 7.1999(11:O4AM)
Lzr owrrZ&ASSOCIATES,P.A.
SUITE 1450.ONE SOUTHEAST THIRD AVENUE,MIAMI.FI.ONIDA 33131-1715 •TELEPHONE(305)530-13ZZ
0305 530 9417 LE10l 171 ASSOCIATES 12/06/99 15 : 11 P . 005i005
Letter to Mr.Ellis Shapiro .
December 6, 1999
Page 4
Time Warner's position is taken in good faith. As the:Company has mentioned,at least three
courts in other jurisdictions have agreed with the Company's interpretation of the law. However,
these cases are not binding law. At least two other jurisdictions in which Time Warner holds
franchises,at a minimum,require cost recovery,though neither prohibit the franchisee from passing
such cost recovery through to subscribers. The City's.proposed language only excepts the
application fee from being passed through. However,the question as to whether Time Warner will
challenge the City's proposed provisions is unclear.
The Firm appreciates the opportunity to address these issues. If you have any questions,
please do not hesitate to contact me.
Sincerely,
';i
raulio L.Ba->
cc: Ms. Janet Shira
Ms. Diane Pickett
John A.Fogarty,Esq.
•
•
•
•
•
•
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December 3,1997(11:04AM) '
LEIBOWITZ&AsSOCIATES. P.A.
SUITE 1450.ONE SOUTHEAST THIRD AVENUE. MIAMI,FLORIDA 33131-17 IS •TELEPHONE(30S)S30-1322 .
..r
4.9 (JS-A.A2)
Agenda 12-7-99
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE"
Item VI A
Ocoee S.SCOTT VANDERGRIFT
61pcj CITY O F O C O E E DANNY HOWELL
O e3 � COMMISSIONERS
a 150 N.LAKESHORE DRIVE
� D SCOTT ANDERSON
OCOEE,FLORIDA 34761-2258 RUSTY JOHNSON
�`y> ��i� (407)656-2322 NANCY J.PARKER
``40f000�``
CITY MANAGER
ELLIS SHAPIRO
Staff Report
Date: . November 9, 1999
To: The Honorable Mayor and City Commissioners
From: Janet G. Shira, Community Relations/Projects Director
Subject: Cable Television Ordinance
Issue
Should the Mayor and City Commissioners approve Ordinance 99-37, creating a new cable television ordinance in
the City of Ocoee?
Background and Discussion
This ordinance is the culmination of more than a year of workshops, research, and meetings to discuss cable
television. With the constant advances in technology, it was a high priority to include language that will allow
enforcement of upgrades to the system as those upgrades are made in the Orlando area. This will keep the service
our residents and businesses receive comparable to what Orlando area residents and businesses receive, within a
reasonable time frame. We also tried to include provisions that as the state-of-the-art changes and as cable
regulation and applicable law may change, that Ocoee keeps its options open to take advantage of any new
opportunities this may afford the City and its residents.
As the only current franchise in the City, Time Warner representatives have been involved in all meetings and
discussions, and we have worked hard to compromise in an effort to provide the best possible position for the City
while understanding the needs of cable television businesses. Staff and our consulting attorneys feel that good
faith negotiations have been upheld and that this ordinance represents a win-win situation for the City, our existing
cable television franchise holder, and any future franchisees who may want to do business in Ocoee.
Attached to this staff report is a brief summary from our special counsel outlining some of the major issues
included in the new franchise. The ordinance you received in your last packet has had a few minor changes since
you received it. Attached to this report is a new copy of the proposed cable franchise ordinance as amended and a
lined copy so that you can easily see the changes made to create the proposed final draft.
Recommendation
Staff respectfully recommends that upon second reading and public hearing, the City Commission adopt Ordinance
99-37.
cc: Ellis Shapiro,City Manager
Paul Rosenthal,City Attorney
Matt Leibowitz,Leibowitz&Associates
Diane Pickett,Time Warner
p0%jL1I F
Protect Ocoee's Water Resources q,-;) 1
�•e305 530 9411 LEIBONII1 ASSOCIATES 11/24/99 12 : 51 P . 002/004
LEIBOwITZ & ASSOCI. .TEs, RA.
SUITE 1450
eRAuuo L. 6AEz
SUNTRUST INTERNATIONAL CENTER TELEPHONE(3057 530-1322
JOSEPH A.BELISLE ONE SOUTHEAST THIRD AVENUE TELECOPIER C305)530-9.417
ILA L.FELD MIAMI,FLORIDA 33131.1715 E-MAIL 5rDadlawsgaolcD1r1
MATTHEW L.LEIBOWITz
CAROLINE A.SORET
MEMO RAN DI)M
TO: Ellis Shapiro,City Manager
FROM: Braulio L.Baez,
RE: Errata Sheet for Proposed Ordinance No. 99-37
City of Ocoee, Florida
DATE: November 24, 1999
The following corrections are appropriate for the proposed Ordinance No. 99-37. The changes
represent agreed upon modifications which were inadvertently omitted from the final draft under
consideration.
Section 57-02. Definiti m,
S. ...Gross Revenues shall not include • • - ' . • •= 1•1
1 . • •
• 41 •11. • I • •• • • • •_ .1 I • •• • •• •• III.1 P • • • •••
, revenues directly generated by affiliated programmers for the
provision of programming; any taxes on services furnished by the Franchisee which are imposed
upon any Subscriber or user by the state,county,City or other governmental unit and collected by
the Franchisee on behalf of said governmental unit and which the Franchisee passes on in full to the
applicable tax authority....
T. "Institutional Network" means a dedicated closed network, or an alternative
acceptable to the City,for use by the City to provide Cable Services and non-Cable Services for
public;educational and governmental use within the City....
Section 57-18. Customer:e v •e Requirements.
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Memorandum to Mr.Ellis Shapiro
November 24, 1999
Page 2
B. ...This business office shall be open at minimum during normal business hours,
Monday through Friday,and some weekend and/or evening hours....
Q. No charge may be made for any service or product which the Subscriber has not
affirmatively requested by name. Subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative request for service or equipment_ A
Subscriber's affirmative request for service or equipment may be made orally or in writing.
l Franchisee's material fai lure to comply with this subsection shall may result
in a fine in the amount of One Hundred Dollars($100)per violation,per day or part thereof that the
violation continues.
T. ...
6. Intentional material misrepresentation by a Franchisee in any response to a
notice of proposed credit,refund and/or fine,whether oral or written, shall be considered a material
breach of the Franchise Agreement, suhicct to a penalty of no less than Five Thousand Dollars
($5,000.00) in liquidated damages to the City, and shall be grounds for Franchise revocation.
Section 57-20. Discrimination Prohibited.
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, or marital status,or
poli tion. The Franchisee shall comply with federal, state and local laws and regulations
governing equal employment opportunities,as the same may be from time to time amended.
Section 57-22. Enforcement Kern ¢ies_
C. Notwithstanding anything to the contrary,Franchisee's failure to comply with Section
57-13(A)hereof shall may result in the assessment of liquidated damages in the amount of Seven
Hundred Fifty Dollars($750.00)per day for each day such violation continues.
e:122A199910cocclb1b.c r1t Wpd
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LfirfsOWITZ & ASSOC/ATI:S. PA.
SUITE 1450,ONE SOUTHEAST THIRD AVENUE, MIAMI,FLORIDA 33131-1713 •TELEPHONE(305)530-13Ez
0305 530 9411 LE1601111 ASSOCIATES 11/24/99 12 : 52 P . 001/004
Memorandum to Mr.Ellis Shapiro
November 24, 1999
Page 3
Section 57-24. Transfers.
B. An application for a transfer of a franchise shat l meet the requirements of Section 57-
08 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. C.<,\..-pt tl.t east of a pro furrua transfer, Tthe
application shall provide,at a minimwn,the information required in subsections 57-08(E)(1)-(E)(5)
with respect to the proposed transferee. The information required in subsections 57-08(E)(6)-(E)(13)
shall also be provided whenever the pioposed transferee expects material changes to occur in those
areas.
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r
t t
The Orlando Sentinel, Saturday, November 27, 1999
NOTICE OF
PUBUC HEARING
CITY OF OCOEE
Notice is herebygiven pursuant
to Article VIII oftheConstitution
of the State of Florida and Sec-
tion 166.041, Florida Statutes,
that the Ocoee City Commission
will hold a public hearing in the
Commission Chambers, City
Hall, located at 150 N. Lake-
shore Drive,Ocoee,Florida dur-
ing a regular session to be held
on December 7,1999 at 7:15
p.m. or as soon thereafter as
possible in order to consider the
adoption of the following ordi-
nance:
ORDINANCE NO.99-37
AN ORDINANCE OF THE
CITY COMMISSION OF
THE CITY OF OCOEE,
FLORIDA, CREATING OR-
DINANCE NO. 99-37 OF
THE CITY OF OCOEE,
FLORIDA, BY PROVIDING
THE PROCEDURES AND
REQUIREMENTS RELAT-
ING TO CABLE TELEVI-
SION
FRANCHISES
HANGES RE-
FLECT N
APPLICABLE LAW AND TO
BETTER ENSURE THAT
USE OF CITY STREETS BY
CABLE SYSTEMS SERVES
THE PUBLIC INTEREST ;
PROVIDING FOR CON-
FLICTS; PROVIDING FOR
SEVERABILITY;AND PRO-
VIDING A SAVINGS
CLAUSE AND EFFECTIVE
DATE.
Interested parties may appear at
the meeting and be heard with
respect to the proposed action.
A copy of the proposedordi-
nance may be examinedin the
office of the City Clerk at City
Halt, 150 N. Lakeshore Drive,
Ocoee, Florida between the
hours of 8:00 a.m. and 5:00
p.m., Monday through Friday,
except legal holidays.
NOTICE: Any person who de-
sires to appeal any decision
made by Commission with re-
spect to any matter considered
at such meeting will need a re-
cord of the proceedings and for
such purpose mayneed to en-
sure that a verbatim record of
the proceeding is made,which
record includes the testimony
and evidence upon which the
appeal is based Persons with
disabilities needing assistance
to participate in any of these
proceedings should contact the
Office of the City Clerk,150 N.
Lakeshore Drive,Ocoee,Florida
34761,(407)656-2322 Ext.146,
48 hours in advance of the
meeting.
Jean Grafton,City_Clerk
November 25,199
C0R3034911 NOV.27,1939
251 Lucien llirc Diane II. Pickett
Suite 171 L'6;-Pu-cirlrnr. l'uhlir:l,J/rrir:c
L irlunri. l irn irl:r.7751 curd Gen r•r:unrnr Windom
'!r• 1/17-21,5-5524
Ii,. -407-715-5536
� TI E WARNER
COMMUNICATIONS
HAND DELIVERED
December 1, 1999
Mayor and Commissioners
City of Ocoee
150 N. Lakefront Drive
Ocoee, FL 34761
Re: City of Ocoee Cable Ordinance
Dear Mayor and Commissioners:
The proposed Ordinance No. 99-26 concerning cable television franchises which is on your agenda
for final consideration on December 7, 1999 has been the subject of several negotiating sessions with
representatives of the City and Time Warner. As a result of these negotiations and the willingness
of-both parties to reach an accommodation, almost all issues have been resolved in a manner both
parties are willing to accept. We wrote to Mr. Baez of the City's Cable Consultants on November
18, 1999 outlining certain changes in the Ordinance which we thought had been agreed to by both
parties. He has assured us that the final version of the Ordinance will include those changes and we
are relying on that assurance.
However, there remain three outstanding issues which the City representatives have advised must
be presented to you in order to reach a mutually agreeable resolution. If these three issues can be
resolved in an acceptable way,Time Warner will be able to support the passage of this Ordinance
as part of the franchise renewal. We can then turn our attention to finalizing the franchise
agreement.
The three issues which we submit to you are discussed below. We respectfully urge you to consider
Time Warner's proposals and revise the proposed Ordinance as we request. It would be preferable
to resolve these issues in the Ordinance. If this is not possible,Time Warner believes that given the
significance of the issues,they will have to be addressed again in the franchise agreement. The three
issues are:
Franchise Application Fees and City Franchise Costs
Sections 57-081.requires that a franchisee pay certain filing fees for an initial grant,renewal,transfer
or modification of a franchise. In addition, Section 57-09D requires that a franchisee reimburse the
•City in the form of a processing fee for its costs and expenses in considering and processing
franchise applications. Both sections state that these fees are not to be credited as franchise fees as •
defined in Federal law.
pini<'Nsrrnrrl_rnrr;rnn,nrnr-:lelr,nrrr/A'ru'hnusr l'ru'nu'r slrir, - Florida Division
Mayor and Commissioners
City of Ocoee
December 1, 1999
Page 2
Time Warner will not agree to any statement that these fees are not franchise fees under Federal law.
Our view of the law is exactly contrary. We believe that the purpose of franchise fees is to cover
costs to the City incurred in the franchise process and that the Federal law intends that a cable
operator's reimbursement of these costs be counted as franchise fees.
At least three Federal district courts have ruled on this issue with respect to renewal expenses and
supported Time Warner's view that any such payments are franchise fees under Federal law. Copies
of the decisions in these cases ( Robin Cable Systems v. The City of Sierra Vista; Time Warner
Entertainment Company. L.P. v. Briggs; Birmingham Cable Communications Inc. v. City of
Birmingham)are enclosed for your review. We are aware of no cases holding to the contrary. You
will note that in two of the three cases Time Warner was a party, so our position on this issue has
been consistent and of long standing.
These two sections of the Ordinance also contain a prohibition on the pass-through to subscribers
of the costs imposed. This is contrary to Federal law. Rates for cable service may be regulated only
as permitted by Federal law and regulations as §623(a)of the Cable Act clearly states. If, as argued
above,these costs are franchise fees,they are certainly passed through to subscribers. And even if
they are not franchise fees, they can be passed through to subscribers as the cost of a franchise
requirement under §76.925 of the Rules and Regulations of the FCC.
Since the payments required by these sections are franchise fees under Federal law and since the
franchise fee imposed by the proposed Ordinance is set at the maximum permitted by Federal law,
these sections should be deleted.
State-of-the-Art Report
Section 57-17A. requires that a franchisee file with the City an annual report containing several
sections, some of which are specified to be included only upon request. Time Warner believes that
the section of the annual report describing developments in the state-of-the-art of cable systems
should be included only upon request. This particular section of the report will require considerable
time and resources which should be expended only when needed. Therefore, add at the very
beginning of part 1 Section 57-17A the words "upon request".
Time Warner is willing to provide the City with this information when the City believes that such
a report would be useful at the time and the City requests it. Our experience in many franchises has
been that, if such reports are provided automatically and not upon a particular request,they are often
filed away and ignored. Preparation of such a report takes the time and effort of Time Warner staff
which is normally dedicated to providing service to our customers. This time and effort should be
diverted to report preparation only if the City has a particular and real need for the information at
that time.
Mayor and Commissioners
City of Ocoee
December 1, 1999
Page 3
Enforcement Remedies
Section 57-22E establishes the requirement that in any proceeding where there is an issue of a
franchisee's performance of its obligations, the franchisee has the burden of proving that it is in
compliance with the Ordinance.
This establishes an unfair presumption that a franchisee is in violation of the Ordinance. Such a
presumption denies a franchisee the benefit of due process and the usual American presumption of
innocence.
The City's representatives indicated that the reason for this provision is that the City wants
assurances that a franchisee will provide information necessary to an evaluation of its compliance
with the Ordinance. Therefore,Time Warner proposes that the first sentence of Section 57-22E read
as follows:
In any proceeding wherein there exists an issue with respect to a franchisee's
performance of its obligations pursuant to this Ordinance, the Franchisee shall
provide such information as it may have concerning its compliance with the terms
of the Ordinance.
We thank you for your consideration of these issues.
Sincerely,
Pig4L.1)-
Diane Pickett
Enclosures
cc: Ellis Shapiro, City of Ocoee
Janet Shira, City of Ocoee
Paul Rosenthal, City of Ocoee
David Spencer, Time Warner
John Fogarty, Time Warner
Frank Kruppenbacher, Attorney
Leibowitz& Associates
(. . ( e
. FIt._ =
IN THE UNITED STA &k ' DISTRICT COORT
• FOR THE NORTHORN D S' • CV OF ALABANA.89 Yr�T•-5 ,
t s iiii3Z . • 111.V • i, Ht.'S
II: of
U.S. L:ST1()c t Co:; ;;:c
BIRMINGHAM CABLE COMMUNICATIONS N.V. GF kL„gr±.-r
INC. , an Alabama co4oration,
) .
Plaintiff,vs. ) ;CIVIL ACTION ENTEREE
• .
CITY OF BIRMINGHAM, ALABAMA, ) ;CV 87-L-0755--S RI 0 5.1989
an Alabama Municipal
corporation, . . )
Defendant. • )
•
•
This cause, coming on t be heard, was submitted upon .
plaintiff's motion for summary ju gment. Upon consideration of
such motion, the pleadings:, thi oral ; ar arguments and briefs of
5u
• counsel in support thereof and o osition thereto, together with
the documents contained in th appendices to the respective
briefs, 1 the Court °concludes t at there is no genuine issue of
material fact as to: the facial i validity of the' ordinance in
question and that plaintiff is en itled to judgment as a matter
of law. - •
.
It is ORDERED, ADJUDGED nd DECREED by the Court that:
1. The motion for uruuaryi judgment is GRANTED as
1
The Court dijsclaims an elianCe upon such documents as
reflecting the motives of . the 'ty ih enacting the ordinance
under attack. The City's motiva i n is not a justiciable issue_
The relevance of such documents 's strictly confined to the issue
of whether plaintiff's facial c allenge to the ordinance is
premature, as defendant conten s or whether it is ripe for
judicial resolution under the to ing ?of Abbott Laboratories 1."-
Gardner, 387 U.S. 136 (1967) , as p aintiff insists.
hereinafter appears.:
2. Ordinance No. 8.-072, ' enacted by the City of
Birmingham on December 29, 1'8 . , ib void and unenforceable
because it is in cpnflict with she Cable Communications Policy
Act of 1984, 47 U.S:C. § 521, e :e• . [hereinafter "Cable Act") ,
and the Supremacy Clause of the . . Constitution.
3. Defendant City is permanently enjoined from
enforcing or applying Ordinance J. 86-272.
4. Plaintiff is ent'tled to apply for and may obtain
renewal of its cable television Franchise in Birmingham, Alabama,
without having to payor to ag .e to ;pay, above and beyond the
Cable Act five percent franchisJ fee,2 the City's franchising
expenses,3 consultant costs, o y Qther regulatory costs. or
2 47 U.S.C. -§ 542(b) . •
3 The defendant reads to much into the language of 47
U.S.C. § 542 (g) (2) 0) :
(g) "Franchise fee" define
For the purpose of this sec i n ----
(1)
-(1) the term "franchi a teen- includes any tax, fee, or
assessment of anyd imposed by a franchising
authority or other go ernm§ntal entity on a cable
operator or cable sub-c ibex, or both, solely because
of their status as suc ;
(2) the term "franchi- - fee" does not include --
•
(D) requirements or charges incidental to the
awarding or enfo 'ng of the franchise, including
paymeits for bo • , sdcurity funds, letters of
credit, insuranc- , indeMnification, penalties, or
ligUikiated damage- , . . ;. .
Section 542 obviously oes not confer authority upon
.
•
( !-
•
fees.
5. Defeidant City i - joined and required to comply
•
with each and every substanti e and :procedural requirement in
sections 622 and 626 of the Cab e Act :(47 U.S.C. §§ 542 and 546)
pertaining to the cable televis'o franchise fees and renewals. 4
•
• 6. The Court prete is adjudication of plaintiff's
claim that defendant has de r ved ; it of its civil rights
guaranteed by the :Cable Act n. the Supremacy Clause of the
United States Constitution ,pursuant to -the provision of 42 U.S.C.
§§ 1983 and 1988. :
DONE this :5th day of May, 1989.
•
•
•
•
• SENIOR J E
•
•
•
•
•
•
the franchisor to impose t,nilate ally upon an applicant
consultant costs in an unlimiteck amount, which may not be passed
through to subscribers (47 U.S1C § 542(0) ) , as a condition to
the grant of a renet4al franchise. Tested by the maxim Noscitur A
Sociis, the Court is of the opixi"n that it would be an aberrant
construction of the: phrase "inc d-ntal' to the awarding . of
the franchise," in: its conte , to conclude that the phrase
embraces consultant fees incurre .-ole)Jy. by the City.
4 it was cpnceded . by a endant at oral argument that
Ordinance No. 86-272 was enactdd prior to the ascertainment of
needs and interests: and prior o the ;submission of plaintiff's
• proposal balancing needs and int =stsagainst costs. Thus, such
ordinance is uneinforcable a ause its enactment is in.
irreconcilable conflict with h- procedural requirements of
section 626 of the Cable Act (47 • .S.C. § 546) .
•
•
•
•
•
•
•
•
•
R9M LARKIN HOFFMAN LAY 15TH SOUTH 696 3835 a .12.1994 15454 P. 2
' : �• HE(:e1VE0 HY
I • ' A I 45 OW tasl Jodrn,it bi alfIs ave
RUSING & LOPEZ
11ttti inti' !tcbct I . - e VEDCOPY'
DISTRICT OF A •I 0 a �.
ROBIN CABLE SYSTEMS, L.T. , etc. , u S DISTRICtrGOU
INSTRICT QF DIANA
Plaintiff,
THE
Y _ DEau
V.
THE CITY OF SIERRA VISTA, etc. ,
Defendant. CASE NUMBER: CIV-•93-020-TUC-ACM
•
0 Jury Verdict.Thio action c.me baton the Court far a trial by jury. The WOO have been tried and the Jury hoe rsnderad
he verdict,
(O Decision by Court.This motion acme to trial or hearing before the Court. The issues have bun tried or heard and a
decision has bun tared.
1TISORDEREDANDADJUDGED THAT THE Plaintiff's Motion for Summary
Judgment is hereby GRANTED and that the Defendant'* Croap4iotion for
Stmantry Judgment ix hereby DENIED,
• .Judgment is entered in favor of the plaintiffs and agtinast the
dafendesnt.
Jute 10, 1993 RICAHRD H. WEARS
Date lark
ac, IWSINO, FAUVER, ACM, .7IB - '
(8 11 Deputy Clerk
FROM LARKIN HOFFMAN LAY 15TH SOUTH 856 3833 65.12.1994 15155 P. 3
}
fit
Phy itED LOD=
.�,a nrED......,OOP
IN THE UHITED STATES DISTRx couRa3UN 1 0 1993
FOR THE DISTRICT Ol ARIL' 'COURT
�� TR) OF
44.
3
EY
IR4aXN CABLE SYSTEMS, L.P., eta.,)
4
Plaintiff, • ) CIV 93.020 TUC ACC
)
• PAM
6 THE CITY of SIERRA VISTA, eta., ) 141993
) 'WNW £ Lora
Defendant.
6I ' • ) OSDIR
9I
10 I. DYZRYYE1
11 'landing. before the Court are Crass•-Kotion' for Summary
12 3udgment. The central issue in this case revolves around Section
13 622(g) of the Cable Communiceti.ons Aot, 47 U.B.C. I s42(q) ("than
141 Cabs.+•Act u y .
IS I XX. ATSCURBICK
16 Section 2.2 of the Licensing Agreement ("Agreement“)
. 17 j provide' an annual lioanse fee which Robin Cable will pay the city
18 (� of Sierra -Vista aaounting to five percent (S#) of Gross Revenues
191 from operation of the cable system in the City of Sierra Vista.
21:J Section 2.3 of the Agreement mandator that Robin Cable reimburse
21 j Sierra Vista the costs incurred in the liooneinv process not to
22I exceed $30,000. Section 2.11 of the Agreement provides that
23 "tglrantor and grantee reserve all right' that they may paleness
24 under the lrw unless expressly waived herein."
2 I Section 2.2 of the Agreeuent is a permiamible foe to be
/�� e0010 •' argad under 47 U.S.C. S 542(b) . section 2.3 of the Agreement,
1
r
FROA LARKIN HOFFMAN LAY 13TH SOUTH 996 383Y 65. 12.1994 15155 P. 4
• .r (1
• I
I '
however, appaara they violet* the Cable A,ct. The tern *franchise
1
fee" is defined broadly to include "any tax, fee, or assessment of
2
any kind imposed by a franchising authority or other government
3
entity on a cable officer or cable subscriber. . .* 47 V.S.C.
4
$42(g) (1). The exceptions listed under 47 V.G.C. 5 S42(y) (2)
5 ',
appear to be narrowly tailored. Section 042(g) (2) (D) allow' a
6 '
municipality to make charges *incidental to the awarding . . . of
7
the franohise . . ." 47 U.s.C. i 542(g) (2) (U) . A fee of up to
0 $30,000 is more than incidental. Any substantial, fee charged on top
9
of the annual license tee is inconsistent With the Cable Act.
10
The detendant contends that the plaintiff waived or is
11 •
&stopped tram asserting its Legal, rights. This is not a valid
12
argument. By letter dated August 11, 3.992, Robin Cable expressly
12 ,
Objected to Election 2.3 Of the Agreement. By the vary terms of the
14
reservation of rights clause, cited above, Robin Cable did not waive
15
its right to object to this provision. There is nothing expressed
1;9
in the contract which shows that Robin Cable waived or is estopped
17
from asserting its statutory rights.
1n
%IX ralg181114,1111
1e
Accordingly, XT IS ORDERED AS OLLOW9s
20
1) That the Plaintiff's Ration for Summary Judgment le
21 i
hereby MASTED and that the Defendant's cross-Notion for Summary
22 '
Judgment is hereby DENXED:
• 23
2) That Section 4.17 of Ordinance 909 is void and
24
unenforceable because it ie violative of the Cable Apt;
25
3) That Seation 2.3 of the License Agreement la void and
26
2
4072
04./0111
. FROH LARKIN HOFFMAN LAU *5TH SOUTH 896 3033 83.*2.199 I '56IS'56 P. s
•
unenforceable!
j
I . 4) That the defendant is per enently enjoined from
a ! entoroinq or applying paragraph 40.7 of section 4 of Ordinance 909
3
and Section 2.3 of the Licensing Agreement.
4
S) That 3Udgi ont bs entered accordingly.
Si
8i
7 '
DATED this .��R1"� day of June, 2.992'.
8
9 '
10
e-
11 IOP -$81EPIe
ALPABDo C. . •U'
12 9eniar Judge
13 i /ate
14
IS
15
17
1B
19
20
21
22
23
24
2$
28
3
0.0$41,6121
***F_HD*t*
•
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
C.A. N0. 92-40117,GN
TIME WARNER ENTERTAINMENT COMPANY, L.P. , )
)
• Plaintiff,
)
Vs )
WILL BRIGGS, ALAN' RICH, WILLIAM GEFFERT )
ANNE KILLAY and JOSEPH MAGA, as they
are Members of the Board of Selectmen of )
the Town of Athol and not individually; )
THE TOWN OF ATHOL, MASSACHUSETTS; ARTHUR )
• REPPAS, JANE PIERCE and WILLIAM HOWE, as )
they are Members of the Board of )
Selectmen of the Town of Orange and not )
individually; and THE TOWN OF ORANGE, )
MASSACHUSETTS, )
Defendants. )
BUDEVIDuM OF DZQUION
GORTON, a.
Plaintiff, Time Warner Entertainment Company, L.P. ("warner
Cable") , commenced this action on July 17, 1992 against the members
of the Boards of Selectmen of the Towns of Athol and Orange in
their official capacities (the "Boards") as well as against the
Towns of Athol, and Orange (the. "Towns") for injunctive and
'
declaratory •relief. .Warner Cable. alleges that bylaws regulating
the issuance of cable television licenses, which were enacted by
each of the Towns (the "Bylaws") , violate the rights of Warner
Cable under the United States Constitution and are inconsistent
with 47 U.S.C. 55521-556 (1988) (amended by cable Television
1
Consumer Protection and Competition Act of 1992, Pub.L.No. 102-385,
106 Stat. 1460) (the "Cable Act") and M.G.L. C. 166A.
on October 19, 1992, Warner cable and the Boards reached an
agreement on the terms for renewal of Warner Cable's cable
television licenses with the Towns. On October 20, 1992, the
Boards voted to grant the renewed licenses (the "Licenses") .2
Certain portions •of the Licenses, however, are inconsistent with
the Bylaws. Pending before this Court is Warner Cable's Substitute
Motion for Partial Summary Judgment and Entry of Declaratory
Judgment (the "Motion for Summary Judgmont") , in which Warner Cable
requests that the Court grant it summary judgment on Counts III, IV
and V of its Verified Complaint ("Complaint") and declare that: (1)
specific portions of the Bylaws are preempted by federal and state
law; (2) the Licenses are valid, binding and enforceable; and (3)
any specific terms of the Licenses shall be enforceable if in
conflict with any provisions of the Bylaws.2
1I Paragraphs 44 and 45 of its Proposed Findings of Fact end
Conclusions of Law, Warner Cable states that the Boards granted
"Renewal Agreement(s)," which term is defined in the Proposed
Findings as "agreement() on the terms for renewal of the .
License() ." The Court presumes that the Boards, in effect,
granted the renewed licenses.
2 Counts I and XI of the Complaint, which allege that the Towns
violated Warner Cable's rights in denying its application for
renewal, are now moot because the Boards have since granted the
Licenses.
2
•
I. WARNER CABLE'S MOTION FOR SUMMARY aunGMENT ON COUNTS III, Iv.
AND V OF ITS COMPLAINT.
Summary judgment shall be rendered where the pleadings,
discovery on file, and affidavits, if any, show "there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law. " Fed.R.Civ.P. 56(o) ;
Griggs-Ryan V. Smith, 904 F.2d 112, 115 (1st Cir. 1990) .
Defendants have not opposed the Motion for Summary Judgment and
have not filed a statement of contested material facts. Therefore,
pursuant to Rule 56.1 of the Local Rules of the United States
District Court for the District of Massachusetts, the facts set
forth in Warner Cable's statement of uncontested material facts are
deemed admitted by dofendants.3
A. COUNT III - In Count III of its Complaint, Warner Cable
contends that the Bylaws "are inconsistent with the Gable Act and
are therefore preempted . . . ." (Complaint 141) . The Cable Act
provides, in pertinent part:
(A)ny provision of law of any State,
political subdivision, or agency thereof,
or franchising authority . . . which is
inconsistent with this chapter shall be
deemed to be preempted and superseded.
47 Q.S.C. S556(c) .
Not all of the Bylaws, however, are inconsistent with the
Cable Act. Therefore, Warner Cable's Motion for Summary Judgment
Warner Cable has submitted its Rule 56.1 statement of
uncontested material facts in the form of proposed findings of
fact.
3
• on Count III of its Complaint is allowed only with respect to those
provisions of the Bylaws that are inconsistent with the Cable Act.
Those inconsistent provisions are set forth in Section II of this
Memorandum of Decision (the "Decision") . In all other respects,
Warner Cable's Motion for Summary Judgment on Count Ill of its
Complaint is denied.
•
B. COUNT IV - In Count IV of its Complaint, Warner Cable
alleges that certain parts of the Bylaws compel speech in violation
of Warner Cable's rights under the First and Fourteenth Amendments
to the United States Constitution and Article XVI of the.
Massachusetts Declaration of tights. Those particular parts of the
Bylaws, however, also contravene federal statutory law, and are
preempted for that reason. Therefore, the Court need not and does
not reach the constitutional issues raised by Warner Cable.
stiector Motor Service. Inc v. 1.CIauahlin, 323 U.S. 101, 105 (1944) -
(where the Supreme. Court stated: "If there is one doctrine more
deeply rooted than any other in the process of constitutional
• adjudication, it is that we ought not to pass on questions of
constitutionality . .. unless such adjudication is unavoidable.")
Warner •Cable's Motion for Summary Judgment on Count IV of the
Complaint is accordingly denied.
c. couxT V - In Count V of its complaint, Warner Cable
contends that "(t)he Bylaws abridge the Massachusetts Home Rule
Amendment because they are inconsistent with the regulatory
4
structure established by Chapter 166A [the State cable television
statute] ." (Complaint 146) . The Massachusetts Home Rule Amendment
provides, in pertinent part, that a town ". . . may, by the adoption
. . . of local ordinances or by-laws, exercise any power or function
. . . which is not inconsistent with the constitution or laws enacted
by the general court . . . ." Mass. Const. Am. Art. 89, §6. The
Board of Selectmen of a town is made the "issuing authority" for
cable television licenses by M.G.L. c.166A, $1(d) .
In its Complaint, Warner Cable maintains that, as a whole, the
Bylaws, which were enacted through Special Town Meetings in Athol
and Orange, impermissibly encroach on the authority of the Boards
of the Towns in their capacities as "issuing authorities." In its
Memorandum in Support of its Motion for Partial Summary Judgment
and Entry of Declaratory Judgment ("Warner Cable's Memo") , however,
Warner Cable acknowledges _that its Complaint challenges certain
provisions of the Bylaws that do not deviate materially from the
provisions of the Licenses. Warner Cable further states that the
issues relating to such non-deviating provisions are moot. Warner
Cable 's Memo at 19 n.1O. Therefore, with one specific exception
described in the next paragraph and in. Section II a. below, the
Court denies Warner Cabla's Motion for.Summary Judgment on Count V
• of its Complaint because to grant the motion in full would be to
rule that the Bylaws as a whole improperly impinge on the authority
of the Boards, a conclusion that Warner Cable acknowledges it is no
longer necessary to reach.
5
•
Warner Cables Motion for summary Judgment on Count V of its
Complaint with respect to the first sentence of Section 2 of the
Bylaws (quoted in Section II a. below) is allowed because that
sentence infringes on the powers specifically granted to the Boards
as "issuing authorities," and for that reason is invalid.
II. PORTIONS 01 TU BYLAWS INCONSISTENT VIM Mirth/ OR STATE LAR.
Warner Cable requests that the Court declare twelve specific
provisions of the Towns' Bylaws preempted by and, therefore,
unenforceable under the Cable Act or M.G.L. c.166A.4 The Court'
addresses and rules upon each of those specific requests as
follows:
a. The first sentence of Section 2 of the Bylaws, which
states:
Any cable television license
hereafter granted, or renewed or
extended shall expire no later that •
(sic] six (6) years from the
effective date of said grant,
renewal or extension. •
That provision of the Bylaws is *inconsistent with the Boards'
authority, under M•.G.L. .c. 166A, S13, to determine the renewal
period for a cable license. Section 13 of chapter 166A provides:
"Any license issued hereunder may be renewed after hearing by the
4 Although Warner Cable has requested that the Court declare
parts of the Bylaws preempted and unenforceable under the Cable Act
and. M.G.L. c.166A, the Court addresses Warner Cable s request in
the disjunctive rather than in the conjunctive.
6
issuing authority for additional periods not to exceed ten years."
Because of this inconsistency, the first sentence of section 2 of
the Bylaws is preempted and declared unenforceable.
b. The last [three) sentences of Section 2 of the Bylaws,
which state:
In. the event the Licensee and the
Issuing Authority are unable to
arrive at mutually acceptable
amendment provisions, a single
arbitrator acceptable to both
parties, shall be appointed by the
Issuing Authority. The decision of
the arbitrator shall be binding by
(sic) both parties. All costs of
arbitration shall be borneby the
Licensee.
That provision of the Bylaws is inconsistent with 47 D.S.C.
5S545(b) and 555, which permit, under certain circumstances, a
cable operator whose request for modification of a license has been
denied, to seek judicial review of the denial. Because of this -
inconsistency, the last three sentences of Section 2 of the Bylaws.
are preempted and declared unenforceable.
c. The first sentence of Section 3. of the Bylaw$, which
. states; •
The Licensee shall construct the
CATV system in much a way that it
is capable of delivering all
signals and services to all' homes,
businesses and institutions within
the Town that are served by
electric power lines.
7
That provision of the Bylaws is inconsistent with the license
renewal requirements set, forth in 47 U.S.C. 5546. The Cable Act
requires a town to analyze a cable operator's renewal proposal on
a case by case basis. When a cable operator submits a renewal
proposal, a town must consider, among other things, whether "the
operator's proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of
meeting such needs and interests." 47 U.S.C. 5546(c) (3) (.D) . The
first sentence of Section 3 of the Bylaws eliminates case by case
consideration of a cable operator's renewal proposal by }mandating
the service areas for a cable license, irrespective of the demand
for cable in and the costs of providing cable to such areas.
Consequently, this portion of the Bylaws is inconsistent with the
Cable Act and, therefore, it is preempted and declared
unenforceable.
d. The words "and service" in the second sentence of Section
3 of the Bylaws which sentence states in full: "There shall be an
identical pattern of installation and service charges for all
Subscribers."
The Cable Act prohibits 'a town from regulating cable .gervice
rates except in limited circumstances. 47 U.S.C. 5543(a) . If such
circumstances do not exist in the present case, the words "and
service" are preempted.
The Cable Television Consumer Protection and Competition Act
of 1992, Pub.L.No. 102-385, 106 Stat. 1460 (the "Amended Cable
8
Act") , which was enacted October 5, 1992, significantly amends
certain provisions of 47 U.S.G. 55521-559. Although most
provisions of the Amended Cable Act took effect 60 days after the
date of enactment (December 4, 1992) , Pub.L.No. 102-385, 528, 106
Stat. 1503, the section amending 47 U.S.C. 5543 ("Regulation of
Rates") , Pub.L.No. 102-385, S3 (a) , 106 Stat. 1464, takes effect 180
days after the date of enactment (April 3, 1993) . Pub.L.No. 7.02--
385, S3 (b) , 106 Stat. 1471. Because the Licenses at issue in the
present case extend beyond •April 3, 1993, the Bylaws relating to
the regulation of rates are addressed here under the statute as it
reads now ("Pre-amendment 5543") and as it will read on and after
April 3, 1993 ("Post-Amendment S543") .
Under pre-amendment 5543, a town could regulate rates only "in
circumstances in which a cable system [was] not subject to
effective competition." 47 U.S.C. S543(b) . The Federal
Communications Commission ("FCC") determined that "effective
• competition" would be deemed to exist where any three "off-the-air"
broadcast signals (signals transmitted by a local television
station and received by a consumer by means of a home antenna) were
available to the community in question. .lee Implementation.of.the
•
- •• le '_a. _ ts at - - , 5o
Fed.Reg. 18,637, 18,648-1.8, 650 (1985) . It is apparent that
"effective competition", as that phrase is used in Pre--amendment
5543, does, in fact, exist in the Towns. ,gee Warner Cable's Memo
at 26. Therefore, the Towns are not permitted to regulate cable
service rates under Pre-amendment 5543.
9
Post-amendment S543 authorizes much broader rate regulation by
towns. The FCC, however, is required, within 180 days of enactment
of the Amended Cable Act, to prescribe regulations to ensure that
the rates for basic cable service are reasonable. Pub.L.No. 102-
385, $3(a) , 106 Stat. 1465. Promulgation of such regulations is a
prerequisite to any regulation of rates by a town under Post-
amendment S543. - Furthermore, before a town can regulate rates
under Post-amendment 8543, it must file with the FCC a
certification that: 1) it will adopt regulations consistent with
the regulations promulgated by the FCC, 2) it has the legal
authority to adopt regulations, and 3) its procedures for rate
regulation provide for consideration of the views of interested
parties. The FCC van disapprove of a town's certification.
Pub.L.No. 102-385, 53(a) , 106 Stat. 1464-1465. The Towns,
therefore, may not attempt to regulate cable service rates until
the FCC has promulgated regulations and until they have filed
certificates with the FCC. Because these preconditions have not
been satisfied, the Towne may not regulate cable service rates
under Post-amendment 5543.
Because inclusion of the words "and service" in the second
sentence •of Section 3 of the Bylaws. constitutes an attempt 'by the
Towns to regulate cable service rates in contravention of both Pre-
amendment 5543 and Poet-amendment 5543, that portion of the Bylaws
is preempted and declared unenforceable.
10
e. The words "at a minimal rate" in the first sentence of
Section 4 of the Bylaws which sentence states in full: "The
Licensee shall provide a basic level of service at a minimal rate
to any subscriber who shall desire it, and shall publicize that
level of service at least twice a year by mailing to each
subscriber receiving a higher level of service [sic], and a
statement for the- current monthly rate for the service."
By including the words "at a minimal rate" in that sentence,
the Towns again engage in rate regulation. For the reasons set
forth in subsection d. above, such regulation by the Towns is not
permitted under Pre-amendment 5543 or Post-amendment 5543.
Therefore, the words "at a minimal rate" in the first sentence of
Section 4 of the Bylaws are preempted and declared unenforceable.
f. The last sentence of section 4 of the Bylaws, Which
states:
At minimum, the basic level of
service shall consist of one
channel carrying the programming of •
each television network, including
the Public Broadcast System; at
least two channels carrying
independent programming; at least
one all news channel; one channel
regularly carrying news of
Massachusetts, including State
House news; one channel carrying
full-time coverage of U.s.
Congressional deliberations and
aasociated governmental activities;
and all local Public Access
Channels.
That portion of the Bylaws is inconsistent with 47 U.S.C.
5544, which permits a town to establish requirements only "for
11
broad categories of video programming or other services." 47
U.S.C. S544(b) (2) (8) . The detailed programming requirements of the
last sentence of Section 4 of the Bylaws can hardly be construed as
broad categories of video programming. Because of this
inconsistency, the last sentence of Section 4 of the Bylaws is
preempted and declared unenforceable.
•
g. The underlined words in the last sentence of Section 5 of
the orange Bylaw3, which sentence states:
Said sums [paid to the town] shall be
payable on or before the fifteenth
(15th) day of March of each year,
AgPananied. by a..sworn and audited
statement of the Licmnsoa's rjevenlies
and expenses attxibutahle to oranQe
fo he veer for which said payment
is rendered.~
warner Cable does not explain, nor does this Court understand,
how the underlined words are inconsistent with the Cable Act or
Massachusetts law, and, therefore, they are not preempted.
h. The words nattorney's fees, consultant's fees" in Section
6 of the Bylaws, which states: "All chargee and fees incidental to
awarding, renewing, extending ' and/or enforcing the License,
including, but not limited to, . .. - reimbursement to the Town for
legal advertising, attorney's fees, consultant's fees . . . shall be
paid by the Licensee."
' This is the only objectionable provision that does not appear
in both the Orange Bylaw and the Athol Bylaw.
12
That provision is inconsistent with 47 U.s.c. 5542, which
limits the annual franchise fee a cable operator can be required to
pay to five percent (5%) of the cable operator's annual gross
revenues. 47 U.B.C. 5542(b) . The term "franchise fee" is defined
broadly to include "any tax, fee, or assessment of any kind imposed
by a franchising authority or other governmental entity on a cable
operator or cable subscriber, or both, solely because of their
status as such . . . ."0 47 U.S.C. §542(g) (1) .
Apparently, there is no dispute among the parties that, under
the Licenses, Warner Cable will be required to pay five percent
(5%) of its gross revenues to the Towns in franchise fees. an
Warner Cable's Memo at 28-29. Any additional franchise fee imposed
by the Towns will exceed the maximum allowable fee. By requiring
Warner Cable to reimburse them for attorney's and consultant's
fees, the Towns impose a "franchise fee" on Warner Cable, as that
term is defined in 47 U.S.C. 5542. Consequently, inclusion of the
words . "attorney's fees, consultant's fees" in Section .6 of the
Bylaws contravenes federal law, and, therefore, those words are
preempted and declared unenforceable.
x. The underlined words in the third paragraph of Section 7
of the Bylaws, which paragraph states:
The term "franchise fee" does not include "requirements or
charges incidental to the ,awarding or enforcing of the franchise,
including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages . . . ."
47 U.S.C. 5542(g) (2) (n) .
13
The Licensee shall notify its
Subscribers of all performance
evaluation sessions by announcement
on at least one (1) channel of its
cable system as, disignatsd [sic) by
h@ .ssuincx authority, between the
hours of 7;QO p.m. and 2100 p.m. , -
for at least five consecutive days
preceding each session.
The underlined words of that section of the Bylaws establish
video programming requirements inconsistent with the provisions of
47 U.S.C. S544 (see subsection f. above) . Because .of this
inconsistency, the third paragraph of Section 7 of the Bylaws is
preempted and declared unenforceable.
J. The last paragraph of Section 7 of the Bylaws, which
states:
Any and all reasonable costs
incurred by the Town in connection
with such evaluation sessions,
including, but not limited to,
attorney's fees end consultants'
fees, shallbe reimbursed to the
Town by the Licensee.
That paragraph again imposes an additional franchise fee on
Warner Cable. For the reasons set forth in• subsection. h. above,
the last paragraph of Section 7 of the Bylaws is inconsistent with
47 U.S.C. 5542, and, therefore, is preempted and declared
unenforceable.
k. (1) The word "legitimates" in the second paragraph of
Section 6 of the Bylaws, which states:
Neither the Licensee nor any of its
officers . ., shall tap [or) monitor . . .
14
• any cable . . . for any purpose whatsoever,
other than legitimate technical testing
or the monitoring of service status,
without the prior written consent of
all affected parties.
The Cable Act contains comprehensive provisions to protect
subscriber privacy. See 47 U.s.c. S551. Towns, however, may enact
laws consistent with S551 for the protection of subscriber privacy.
47 U.S.C. S551(g)•.
The Cable Act permits a cable operator to:
. . . use the cable system to collect
(personally identifiable] information
in order to-
(A) obtain information necessary •
to render a cable service or other
service provided by the cable
operator to the subscriber; or
(B) detect unauthorized reception
of cable communications.
47 U.S.C. S551(b) (2) .
Warner Cable again does not explain, nor does this Court
understand, how inclusion of the word "legitimate" in the second
paragraph of Section 8 of the Bylaws is inconsistent with 47 U.S.C.
5551(b) (2) or any other provision of the Cable Act. Therefore, the
•word "legitimate" in the second paragraph of Section 8 of the
Bylaws is not preempted.
(2) The second sentence of the fifth paragraph of
Section 8 of the Bylaws, which states:
The maintenance of such information
shall be subject to approval by the
Issuing Authority, which approval
shall not be unreasonably or
arbitrarily withheld, provided that
15
Licensee presents sound business
reasons for the need to maintain
such information.
The information referred to in that sentence is "information
that will be maintained regarding both individual subscribers and
the aggregate of Subscribers." (Bylaws, Section 8 at Paragraph 5,
Sentence 1) . The sentence in question again relates to the
protection of subscriber privacy.
The Cable Act sets forth specific requirements for the
collection and maintenance of personally identifiable information
by a cable operator. 47 U.S.C. $551(a) (1) . These requirements
address the cable operator's duty to disclose to subscribers the
nature of personally identifiable information collected and the
length of time such information will be maintained. Thus, these
provisions of the Cable Act implicitly recognize the authority of
a cable operator to maintain personally identifiable information,
without having to obtain the approval of the Issuing Authority.
Consequently, the second sentence of the fifth paragraph of Section
8 of the Bylaws, which subjects the maintenance of such information
by Warner Cable to Board approval, is inconsistent with 47 U.S.C.
S551, and, therefore, that sentence is preempted and declared •
unenforceable. • • •
1. Section 9 of the Bylaws in its entirety (the "Most
Favored Community Status" Section) , which states:
The Licensee shall offer to the
' residents of Orange (Athol) any and
all cable television services and/or
programming available to any other
16
Massachusetts community with a
comparable subscriber base or
population served by the Licensee,
other than off the air signals
unobtainable in Orange (Athol] .
If in providing service to any
surrounding uncabled communities
with population densities
comparable to that of Orange
[Athol] , the Licensee offers a
lower monthly rate than that in • •
effect in Orange (Athol) at the
time, the Licensee shall adjust
the Town of Orange [Athol] rate
to be the •same as the lowest rate
in any such community or less.
That Section of the Bylaws is inconsistent with at least two
provisions of the Cable Act. Section 9 of the Bylaws attempts to
regulate rates in a manner inconsistent with both Pre-amendment
5543 and Post-amendment §543 Mee subsection d. above) . Section 9
also attempts to establish requirements for video programming,
thereby contravening 47 U.S.C. 5544 (see subsection f. above) .
Because of these inconsistencies, Section 9 of the Bylaws is
preempted and declared unenforceable.
III. CONFLICTS BETWEEN THE LICENSES 1ND TEE BYLAWS.
Time warner also requests that the Court declare that: (a) the
Licenses are valid, binding and enforceable and (b) any specific
terms of the Licenses are enforceable over any provisions of the
Bylaws where they are in conflict. In that regard, the Court
rules:
a. None of the defendants contends that the Licenses are
invalid, non-binding or unenforceable. Because there is no dispute
17
among the parties as to status of the Licenses, the court refrains
from assessing their validity.
b. In Section II of this Decision, the Court has preempted
and declared unenforceable numerous provisions of the Bylaws
because of their inconsistency with federal ,or state law. As a
result, many of the conflicts between the Licenses and the Bylaws
have been eliminated. Warner Cable does not contend that any
provisions of the Bylaws not addressed in section II of this
Decision are inconsistent with federal or state law. Absent such-
inconsistency, the Court is without authority to declare that
specific terms of the Licenses are enforceable if in conflict with
any provisions of the Bylaws and, therefore, declines to so
declare.
7T. Conclusion
2. Warner Cable's Motion for Summary 3udgment on Count III
of its Complaint is allowed with respect to those provisions of the
Bylaws preempted by the Cable Act as set forth in Paragraph 4
below. In all other respects, Warner Cable's Motion for Summary
Judgment on count III is denied.
2. Warner Cable's Motion for Summary Judgment on Count IV of
its Complaint is denied.
3. Warner Cables Motion for Summary Judgment on Count V of
its complaint is allowed with respect to the provision of the
Bylaws addressed in Section II a. of this Decision. In all other
18
1
• respect$, warner Cable's Motion for Summary Judgment on Count V is
denied.
4. The provisions of the Bylaws addressed in Section
II a. , b. , c. , d. , e. , f. , h. , i. , j . , k. (2) , and 1. of this
Decision are hereby preempted and declared unenforceable.
'NATHANIEL M. RTON
1,1� UNITED STATES DISTRICT NUDGE
Dated: January ` � , 1993. •
•
19
a
CITY OF OCOEE
FLORIDA
Ordinance No. 99-37
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF OCOEE, FLORIDA, CREATING ORDINANCE NO. 99-37
OF THE CITY OF OCOEE, FLORIDA, BY PROVIDING THE
PROCEDURES AND REQUIREMENTS RELATING TO
CABLE TELEVISION FRANCHISES TO REFLECT CHANGES
IN APPLICABLE LAW AND TO BETTER ENSURE THAT
USE OF CITY STREETS BY CABLE SYSTEMS SERVES THE
PUBLIC INTEREST; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING A
SAVINGS CLAUSE AND EFFECTIVE DATE.
Table of Contents
SECTION 1: Authority. 1
SECTION 2: Creation of Cable Communications Ordinance . 1
Section 57-01 A. Short Title. 1
1
Section 57-02.Definitions 1
1
A. "Activated Channel" 2
B. "Access Channel" 2
C. "Affiliate" 2
E. "Applicant" 2
F. "Application" 3
G. "Basic Cable Service" or"Basic Service" 3
H. "Communications Act" 3
I. "Cable Service" 3
J. "Cable System,"or"System," 3
K. "City" 4
L. " Control of a Franchisee or Applicant" 4
M. "Fair Market Value" 4
N. "FCC"5
C:\225\1999\Ocoee\Cable Ordinance\Final-11I0.doc
O. "Franchise" 5
P. "Franchise Agreement" 5
Q. "Franchise Area" 5
R. "Franchisee" 5
S. "Gross Revenues" 5
T. 7
U. "Interconnection" 7
V. "Internet" 7
W. "Internet Service Provider" 7
X. "Law" 8
Y. "Leased Access Channel" 8
Z. "Overbuild" 8
AA. "Person" 8
BB. "Service Tier"8
CC. "State of the Art" 8
DD. "Street or Streets" 9
EE. "Subscriber" 9
FF. "Subscriber Base" 9
GG. "System Malfunction" 9
HH. "Transfer of a Franchise" 10
II. "Two-way Capability" 10
JJ. "Video Channel or Channel" 10
Section 57-03. Intent and Purposes. 10
Section 57-04.Grant of Authority; Franchise Required. 11
Section 57-05.Franchise Characteristics. 12
Section 57-06.Franchisee Subject to Other Laws, Police Power. 13
Section 57-07.Interpretation of Franchise Terms; Conflicts.
14
Section 57-08.Applications for Grant, Renewal, Modification or Transfer of
Franchises. 14
Section 57-09.Grant of Franchises. 20
Section 57-10.Insurance; Surety; Indemnification. 22
Section 57-11.Security Fund.24
Section 57-12. Construction Bond. 26
Section 57-13.Minimum Facilities and Services. 28
Section 57-14. Technical Standards. 32
Section 57-15. Access Channels and Facilities. 33
Section 57-16. Franchise Fee. 34
Section 57-17.Reports and Records. 37
Section 57-18.Customer Service Requirements. 41
Section 57-19. Subscriber Privacy. 56
Section 57-20. Discrimination Prohibited. 57
Section 57-21. Use of Streets. 57
C:\225\1999\Ocoee\Cable Ordinance\Final-1II0.doc
Section 57-22. Enforcement Remedies. 61
Section 57-23. Renewal of Franchise.63
Section 57-24. Transfers. 66
Section 57-25. Revocation or Termination of Franchise. 67
Section 57-26. Continuity of Service Mandatory. 70
Section 57-27. Rates. 71
Section 57-28. Performance Evaluation. 72
Section 57-29. Administration. 73
Section 57-30.Force Majeure. 73
Section 57-31. Applicability. 74
Section 57-32.Municipal Cable System Ownership
Authorized. 74
Section 57-33. Reservation of Rights. 74
SECTION 3. Repeal of Conflicting Ordinances. 76
SECTION 4. Savings. 76
SECTION 5. Severability. 76
SECTION 6. Applicable Law. 77
SECTION 7. Effective Date. 77
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
WHEREAS, the City of Ocoee, has under consideration the renewal of its existing cable
franchise pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§ 521 et seq.;
and
WHEREAS, the enactment of the Telecommunications Act of 1996, recent court
precedent construing the scope of municipal regulatory authority over cable franchises granted
in their jurisdiction, and applicable changes and developments in cable technology and services
have resulted in a changed regulatory environment; and
WHEREAS, the City Commission of the City of Ocoee, Florida, deems it necessary to
enact a new comprehensive Cable Code, to take into account the afore-described changes and
developments and to better ensure that use of City streets by cable systems serves the public
interest.
NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY
OF OCOEE, FLORIDA, AS FOLLOWS:
SECTION 1: Authority. The City Commission of the City of Ocoee has the authority
to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and
Chapter 166, Florida Statutes, and the Communications Act of 1934, 47 U.S.C. § 151 et seq., as
amended.
SECTION 2: Creation of Cable Communications Ordinance . A new Article II of
Chapter 57 of the Code of Ordinances of the City of Ocoee, Florida, entitled Cable
Communications Ordinance, is hereby adopted as follows:
Section 57-01 A. Short Title. This Ordinance shall be known and may be cited as
City of Ocoee, Florida Cable Communications Ordinance.
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
Section 57-02.Definitions. For the purpose of this Ordinance , 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 sem., and the
Telecommunications Act of 1996, and as those Acts 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 educational or governmental use. Channels on which signals flow in the direction
from the headend to the subscriber are referred to as "downstream channels". Where the signal
flows to the headend for re-distribution, it shall be referred to as an"upstream channel".
B. "Access Channel" means any channel on a cable system set aside without charge
by the Franchisee for non-commercial educational and/or local governmental use.
C. "Affiliate" means any person which directly or indirectly owns or controls a
grantee or Franchisee, any person which a grantee or Franchisee directly or indirectly owns or
which it controls, or any person under common ownership or control with a grantee or
Franchisee.
D. "Analog Channel" means bandwidth in the electromagnetic spectrum capable of
carrying one (1) standard television signal that is delivered in an analog format.
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
E. "Applicant" means any person submitting an application within the meaning of
this Ordinance.
F. "Application" means any proposal, submission or request to (1) construct and
operate a cable system within the City; (2) transfer a franchise or control of the Franchisee; (3)
renew a franchise; (4) modify a franchise; or (5) 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.
G. "Basic Cable Service" or "Basic Service" means any service tier which includes
the retransmission of local television broadcast signals, and educational or governmental access
channels.
H. "Communications Act" means the Communications Act of 1934, 47 U.S.C. § 151
et seq., as that Act has been and may hereinafter be amended.
I. "Cable Service" means the transmission of video or other programming services
over a cable system to subscribers together with any subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming services.
Unless otherwise preemptively provided by applicable law, cable internet services, including, but
not limited to @Home, Roadrunner or other services, provided by a Franchisee, its parent,
affiliate or subsidiary over the cable system shall be deemed "cable services" as permitted under
Title VI of the Communications Act of 1934, as amended.
J. "Cable System," or "System," means any facility consisting of a set of closed
transmission paths or other transmission lines or forms of terrestrial transmission and associated
signal generation, reception and control equipment that is designed to provide cable service
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
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
part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et
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. 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.
K. "City" means the City of Ocoee, a municipal corporation of the State of Florida,
in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
L. " 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, grantee or applicant, or the
operation of a Franchisee's system, either directly or indirectly, whether through ownership of
voting securities,by contract or in any other manner.
M. "Fair Market Value" means the price that a willing buyer would pay to a willing
seller for a going concern but with no value allocated to the franchise itself.
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
N. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
O. "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 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.
P. "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.
Q. "Franchise Area" means that territory within the corporate limits of the City, as
those limits may change from time to time through annexation or contraction, over which the
terms of a franchise agreement shall extend.
R. "Franchisee" means any person granted a franchise pursuant to this Ordinance
who has entered into a franchise agreement with the City.
S. "Gross Revenues" means all revenues derived by the Franchisee and, any
Affiliates, subsidiaries or parent of the Franchisee from the operation of the Cable System to
provide Cable Services in the City. Gross Revenues include, but are not limited to, fees charged
Subscribers for Basic Service; fees charged Subscribers for any optional, premium, per-channel
or per-program service; fees charged Subscribers for any tier of service other than Basic Service;
installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees,
payments or other consideration from programmers for carriage of programming on the system
C:\225\1999\Ocoee\Cable Ordinance\Final-1110.doc
(excluding marketing support to the extent such funds are not considered revenue under GAAP);
revenue from converter, remote, modem or any other equipment rentals; revenues from leases of
cable or fiber optic lines and other transmission devices and equipment; revenues from
transmission of data; revenues from installation, service and content enhanced interne products
and services including, but not limited to, access services and content enhanced services;
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 shall then be multiplied by the
total advertising revenue of the system 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 shall allocate the percentage of
revenue to the City which is equivalent to the percentage of the population of the City divided by
the total population for the allocable franchise areas in question. Gross Revenues shall be the
basis for computing the franchise fee imposed pursuant to Section 57-16 hereof. Gross Revenues
shall not include revenues received from programmers and used by Franchisee to market or
promote a new program for a period of no more than six (6) months from the initial launch of the
program; revenues directly generated by affiliated programmers for the provision of
programming; any taxes on services furnished by the Franchisee which are imposed upon any
Subscriber or user by the state, county, City or other governmental unit and collected by the
Franchisee on behalf of said governmental unit and which the Franchisee passes on in full to the
applicable tax authority. However, it is hereby expressly provided that franchise fees shall be
included in the calculation of Gross Revenues. Further, franchise fees shall not be paid on
Subscriber deposits unless and until said deposits are applied to a customer account for services
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rendered. Revenue of an Affiliate, subsidiary or parent shall be Gross Revenue under this
definition only to the extent such revenue is derived from the operation of the cable system to
provide cable service by the Affiliate, subsidiary or parent acting in the capacity of a cable
operator and not in another capacity such as programmer.
T. "Institutional Network" means a dedicated closed network, or an
alternative acceptable to the City, for use by the City to provide Cable Services and
non-Cable Services for public, educational and governmental use within the City.
The network shall be capable of providing one-way, two-way, interactive, and
machine-to-machine transfer of audio, video, voice and data signals within the
network as designated by the City.
U. "Interconnection" means the electronic connection of two or more franchised
cable systems for the purpose of sharing programming.
V. "Internet" shall mean collectively the myriad of computer and
telecommunications facilities, including equipment and operating software, which comprise the
interconnected worldwide network of networks that employ the Transmission Control
Protocol/Internet Protocol, or any predecessor or successor protocols to such protocols to
communicate information of all kinds by wire or radio.
W. "Internet Service Provider" shall mean a person who provides a service that
enables users to access content, information, electronic mail, or other services offered over the
internet.
X. "Law" means all duly enacted and applicable federal, state, county and City laws,
ordinances, codes, rules, regulations and orders.
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Y. "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.
Z. "Overbuild"means that portion of a cable system constructed to serve subscribers
already served by an existing cable system.
AA. "Person" means any individual, corporation, partnership, association, joint
venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee,
transferee or personal representative thereof, but shall not mean the City.
BB. "Service Tier" means a category of multi-channel cable service provided by a
Franchisee and for which a separate charge is made by the Franchisee.
CC. "State of the Art" means that level of cable system technical performance,
capacity, equipment, components and service (without reference to the content of service) equal
to that which has been developed and demonstrated to be generally acceptable and used by the
Franchisee, its parents, affiliates or subsidiaries in systems of comparable size, excluding Tests,
and which is technically and commercially feasible in the Franchisee's system. In no event shall
State of the Art be less than that level of cable system technical performance, capacity,
equipment, components and service (without reference to the content of service) available on a
cable system owned or operated by the Franchisee, its parents, affiliates or subsidiaries serving
the City of Orlando.
DD. "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 right-of-way or public
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place, including public utility easements dedicated for compatible uses, or any other property in
which the City holds any kind of property interest or over which the City exercises any type of
lawful control, and any temporary or permanent fixtures or improvements located thereon, as
may be ordinarily necessary and pertinent to construct and operate a cable system. The term
includes any right-of-way granted to the public or to any governmental body by way of
conveyance, dedication, restriction, or by easement and any area within an easement given for
governmental purposes.
EE. "Subscriber" means any person who lawfully receives cable service delivered
over the cable system.
FF. "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 individual unit (e.g., in a multiple family dwelling, a
unit will be defined as each subscriber unit within the structure) included within a contract for
service as one subscriber, or may use any reasonable equivalency measures provided it uses such
measures uniformly for all franchise areas served by the System.
GG. "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 ten (10) or more subscribers.
HH. "Transfer of a Franchise" means any transaction in which (1) any ownership or
control of 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. A transfer shall be considered "pro
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forma"when it involves a transfer to a person, group of persons or business entity affiliated with
the Franchisee and will not result in a change in the control or ownership of the Franchisee.
II. "Two-way Capability" means the incorporation into a cable system of all
appropriate design and engineering characteristics and features so that two-way transmission,
including but not limited to addressability, over the system can be implemented and activated.
JJ. "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.
Section 57-03. 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 for the grant of one or more franchises for the
construction and operation of a cable system within the City; to provide for the regulation, to the
extent provided for by law, of each cable system within the City in the public interest; to provide
for the payment of fees and other valuable consideration by a Franchisee 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.
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B. Recognizing the continuing development of communications technology and uses,
it is the policy of the City to encourage experimentation and innovation in the development of
cable system uses, services, programming and techniques that will be of general benefit to the
community to the extent all such experiments and innovations are consistent with applicable
laws.
Section 57-04.Grant of Authority., Franchise Required.
A. The City may grant one or more franchises in accordance with this Ordinance.
B. No person may construct or operate 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 and no person may be granted a franchise without having entered into a franchise
agreement with the City pursuant to this Ordinance or other such Ordinance of the City as may
be applicable.
C. Any franchise granted pursuant to this Ordinance shall be 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.
D. Nothing in this Ordinance shall prevent a Franchisee from applying for a separate
franchise for the provision of telephone, non-cable video or other telecommunications service,
pursuant to applicable law.
Section 57-05.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 to serve subscribers within the City, but does
not expressly or implicitly authorize the Franchisee to provide service to, or install cables, wires,
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lines, 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 as otherwise may be provided by binding law), 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. Franchises shall be granted in a nondiscriminatory and competitively
neutral manner, consistent with applicable law.
C. All privileges prescribed by a franchise shall be subordinate to any prior lawful
occupancy of the Streets, and the City reserves the right to reasonably designate where a
Franchisee's facilities are to be placed within the Streets. Such designation may include, but not
be limited to, consideration of the availability of space in the rights of way.
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 Section 57-24 hereof and the franchise
agreement.
E. A Franchise granted to an applicant pursuant to this Ordinance to construct,
operate and maintain a cable system within the City, 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
system as required by the provisions of this Ordinance and the Franchise. The Franchise
Agreement shall constitute all of the terms and conditions of the Franchise that are finally
negotiated and agreed upon by the City and Franchisee. Franchisee shall be bound by all
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documents or other portions of an Application which the City relies upon as material and an
inducement to granting a Franchise, and which are integrated by the City and Franchisee as an
exhibit to the Franchise. All oral representations made by an Applicant, or its representatives,
before the City Commission and on which the Commission explicitly relies in the grant of a
franchise, shall be part of the record and binding upon the Franchisee.
F. Notwithstanding anything to the contrary, in the event that Franchisee, its parent,
affiliate or subsidiary elects to offer to subscribers video programming services through any
means or method not included within the definition of a cable system, including but not limited
to an "open video system", Franchisee shall remain subject to all terms and conditions of the
cable Franchise granted pursuant to this Ordinance, with respect to its operation of the cable
system under the Franchise.
Section 57-06. Franchisee Subject to Other Laws, Police Power.
A. A Franchisee shall at all times be subject to and shall comply with all applicable
Federal, State and local laws. A Franchisee shall at all times be subject to all lawful exercise of
the police power of the City, to the extent not inconsistent with the express terms of a Franchise
Agreement.
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 or a franchise agreement shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance.
Section 57-07.Interpretation of Franchise Terms; Conflicts.
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A. The provisions of this Ordinance in effect at the time of a grant of an initial or
renewal Franchise shall apply to a Franchise Agreement as if fully set forth in the Franchise
Agreement, and the express terms of this Ordinance in effect at the time of a grant of an initial or
renewal Franchise shall prevail over conflicting or inconsistent provisions in a Franchise
Agreement unless such Franchise Agreement, expresses an explicit intent to amend or modify 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.
Section 57-08.Applications for Grant, Renewal, Modification or Transfer of Franchises.
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) a 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 seven (7) copies, be accompanied by the required non-refundable application filing
fee as set forth in Section 57-08(I) hereof, conform to any applicable request for proposals, and
contain all reasonably required information. All applications shall include the names and
addresses of persons authorized to act on behalf of the applicant with respect to the application.
C. All applications accepted for filing shall be made available by the City for
public inspection.
D. 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
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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, including an unsolicited application which applicant has
subsequently designated as responsive, which does not conform to the reasonable requirements
of a request for proposals may be considered non-responsive and denied on that basis.
E. An application for the grant of an initial franchise 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
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;
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4. 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;
5. A description of the applicant's prior experience in cable system
ownership, construction and operation, and identification of communities in which the applicant
or any person controlling the applicant or having more than a ten percent (10%) ownership
interest in applicant has, or has had, a cable franchise or license or any interest therein;
6. 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;
7. 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;
8. For informational purposes, the proposed rate structure, including
projected charges for each service tier, installation, converters, and other equipment or services,
and the applicant's ownership interest in any proposed program services to be delivered over the
cable system;
9. 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 and any surveys or other research conducted by Franchisee.
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10. A description of the applicant's proposal to provide access channels,
facilities, equipment, personnel and financing in support of the City's education and government
related activities.
11. A description of any cable and non-cable telecommunications services
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.
12. 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;
13. If an applicant proposes to provide cable service to an area already served
by an existing cable Franchisee, the identification of the area where the overbuild would occur,
the potential subscriber density in the area which would encompass the overbuild, and the ability
of the Streets to accommodate an additional system;
14. A detailed statement of Franchisee's policies and practices with respect to
granting access to its cable system for the provision of cable internet services.
15. If requested, a proposal to provide an I-Net to the City.
16. A description of the Applicant's proposal to transmit the City's access
channels to neighboring communities, upon request of a neighboring community which receives
services from the City.
17. 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
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18. 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.
F. An application for modification of a franchise agreement shall include, at
minimum, the following information:
1. The specific modification requested;
2. The justification for the requested modification, including the impact of
the requested modification on subscribers and others, and the financial impact on the applicant if
the modification is approved or disapproved;
3. A statement whether the modification is 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.
G. An application for renewal of a franchise shall comply with the requirements of
Section 57-23 hereof.
H. An application for approval of a transfer of a franchise shall comply with the
requirements of Section 57-24 hereof.
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I. 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: $ 10,000
2) For renewal of a franchise: $ 10,000
3) For a transfer of a franchise: $ 2,500
4) For modification of a franchise agreement
pursuant to 47 U.S.C. § 545: $ 2,500
5) For any other relief: $ 2,500
The purpose of the filing fee is to defray a portion of the City's cost in processing an
application. Such fee shall be credited against amounts due under Section 57-09(D) herein. 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,
and shall not be passed through to subscribers.
Section 57-09.Grant of Franchises.
A. The City may grant a franchise for a period not to exceed fifteen (15) years.
B. In evaluating an application for a franchise, the City may consider, among other
things, the following factors: the applicant's technical, financial, and legal qualifications to
construct and operate the proposed system; the adequacy of the proposed construction
arrangements, if any, facilities, equipment, and services based on the public convenience, safety
and welfare; the applicant's experience in constructing and operating cable systems and
providing cable service in other communities, if any; the ability of City Streets to accommodate
the proposed system, if any; the potential disruption to users of City Streets and any resultant
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inconvenience to the public; and whether the proposal will meet reasonably anticipated
community needs and serve the public interest. Evaluation by the City shall not be based on the
content of the programming the applicant proposes to provide.
C. The City shall hold a public hearing to consider an application or applications.
The City shall not consider an application for a franchise unless and until applicant has submitted
a proposed Franchise Agreement which it is prepared to execute. 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 or
staff, and any other information relevant to the application(s), and the terms and conditions
contained in the proposed franchise agreement, the City shall decide by resolution whether to
approve or deny the proposed franchise agreement(s), and thereby grant or deny a franchise. The
City may make the grant of a franchise conditioned upon the completion of construction within a
reasonably prescribed time or upon the performance of other specific obligations which are to be
set forth in the franchise agreement, specifying that failure to comply with the condition will
cause the franchise to become null and void.
D. Franchisee shall reimburse the City for all costs and expenses incurred by the City
in considering and processing the application, including but not limited to consulting and legal
costs, less the amount of the filing fee set pursuant to Section 57-08(I). Within five (5) calendar
days prior to the planned date of the resolution approving or denying the franchise agreement or
renewal or modification or transfer thereof by the City Commission, the City shall advise the
Franchisee of the amount of the processing fee and its method of calculation. If the processing
fee is not paid to the City within ten (10) calendar days of the date of the City Commission
resolution approving or denying the franchise agreement or a modification or transfer thereof,
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•
any approval granted by such resolution will be null and void without further action by City.
This processing fee is 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 shall not be credited against the franchise fee imposed in a franchise
agreement and shall not be passed through to subscribers up to the limit of the application fee
required under Section 57-08(I).
Section 57-10.Insurance; Surety; Indemnification.
A. A Franchisee shall maintain, and by its acceptance of the franchise specifically
agrees that it will maintain, throughout the entire term of the franchise including any renewals
thereof, the following liability insurance coverage insuring the Franchisee and naming the City as
an additional insured: worker's compensation and employer liability insurance to meet all
requirements of Florida 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. $250,000 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
minimums where necessary to reflect changing liability exposure and limits or where required by
law.
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C. A Franchisee shall keep on file with the City copies of certificates of insurance
which certificates shall indicate evidence of payment of the required premiums and shall indicate
that the City, its 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 .
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, or in any way arising out of
the Franchisee's enjoyment or exercise of a franchise granted hereunder, 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 to the extent caused by the misconduct or negligence of the City, its officials,
boards, commissioners, agents or employees. This provision includes, but is not limited to, the
City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; and claims arising out of copyright infringements or a failure by the Franchisee to
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secure consents from the owners, authorized distributors, or providers of programs to be
delivered by the cable system, claims arising out of Section 638 of the Communications Act, 47
U.S.C. § 558, and claims against the Franchisee for invasion of the right of privacy, defamation
of any person, firm or corporation, or the violation or infringement of any copyright, 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 and at its own cost if in the City's
reasonable belief there exists or may exist a conflict, potential conflict or appearance of a
conflict.
Section 57-11. Security Fund.
A. A franchise agreement shall provide that, prior to the franchise becoming
effective, the Franchisee shall post with the City a cash deposit, performance bond, letter of
credit, or such other form of security as determined by the City in its sole discretion and as set
forth in a Franchise Agreement, to be used as a security fund to ensure the Franchisee's faithful
performance of and compliance with all provisions of this Ordinance, the franchise agreement,
and other applicable law, and compliance with all orders, permits and directions of the City, and
the payment by the Franchisee of any claims, liens, fees, or taxes due the City which arise by
reason of the construction, operation or maintenance of the system.
B. The amount of the security fund shall be set in the Franchise, and shall be an
amount that, under circumstances existing at the time, that is necessary to protect the public
against financial loss, to provide adequate incentive to the Franchisee to comply with this
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Ordinance and the franchise agreement, and to enable the City to effectively enforce compliance
therewith; but in no event shall be less than $50,000.00. The City reserves the right to increase
or decrease the minimum security fund amount required by this Section as it may deem
necessary from time to time, provided that such change shall not affect an existing Franchise
unless specifically so provided in a Franchise Agreement.
C. The franchise agreement may provide for procedures to be followed with respect
to the security fund which exceed the minimum requirements contained herein. Neither the
posting of the cash deposit or filing of an indemnity bond or any form of surety bond 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 security fund or otherwise.
D. The rights reserved to the City with respect to the security fund or an indemnity
bond 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 will affect any other right the City
may have.
E. If the Franchisee fails to pay to the City any compensation within the time fixed
herein or any fines, or fails to repay the City within thirty (30) days any damages, costs or
expenses which the City is compelled to pay by reason of any act or default of the Franchisee in
connection with the franchise, or fails, after ten (10) business days written notice of such failure
by the City to comply with any provision of the franchise agreement which the City reasonably
determines can be remedied by demand on the security fund, the City may withdraw the amount
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thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the City
shall notify the licensee of the amount and the date thereof.
F. Within fifteen (15) days after notice to it that any amount has been withdrawn
from the security fund deposited pursuant to subsection A of this section, the Franchisee shall
pay to, or deposit with, the City a sum sufficient to restore such security fund to the amounts
specified in Subsection A. Failure to replenish the security fund shall subject the Franchisee to
penalties as set forth in Section 57-22, and interest on the amount in question shall accrue at the
maximum rate under applicable law.
G. That portion of the security fund deposited pursuant to this Section necessary to
compensate the City for damages and costs sustained shall become the property of the City in the
event that a franchise granted pursuant to this Ordinance is canceled or terminated by reason of
the default of the Franchisee. The Franchisee, however, shall be entitled to the return of such
security fund, or portion thereof, with interest, as remains on deposit with the City at the
expiration of the term of the franchise, provided that there is then no outstanding default on the
part of the Franchisee.
H. In the event Franchisee disputes or otherwise challenges an amount determined by
the City to be a deficiency in the security fund under Subsection F hereof, the amount in question
shall be placed in an escrow account until such time as the dispute is resolved. The placement by
Franchisee of amounts in escrow pending resolution of a dispute under this Section shall toll the
accrual of penalties or interest under this Section.
Section 57-12. Construction Bond.
A. A franchise agreement shall provide that, prior to any cable system construction,
upgrade, rebuild or other work in the Streets a Franchisee shall establish in the City's favor a
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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
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 57-11 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 thirty
(30) days after receipt by the City, by certified mail, return receipt
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requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
E. The rights reserved by the City with respect to any construction bond established
pursuant to this section are in addition to all other rights and remedies the City may have under
this Ordinance , the franchise agreement, or at law or equity.
Section 57-13.Minimum Facilities and Services.
A. Notwithstanding anything herein to the contrary, when reasonably practicable but
no later than twelve (12) months after notice from the City, a Franchisee shall make such
technically and commercially feasible improvements to its System as may be necessary to bring
the System to the State of the Art. The State of the Art shall be made available to Subscribers in
the same categories (e.g. residential, commercial, etc.) as in the cable system owned or operated
by Franchisee, its parents, affiliates or subsidiaries serving the City of Orlando. The availability
of a specific level of cable system technical performance, capacity, equipment, components and
service (without reference to the content of service) on any cable system owned or operated by
the Franchisee, its parents, affiliates or subsidiaries serving the City of Orlando shall create a
presumption of technical and commercial feasibility, provided, however, that the Franchisee may
make a showing to the contrary which, if sufficient, shall overcome the presumption. Such
showing shall be made to the City Commission, which shall determine whether a showing of
competent and substantial evidence sufficient to overcome the presumption has been made,
subject to a challenge to such determination in an appropriate legal proceeding. The City shall
grant extensions of the time within which a Franchisee must comply with the obligations set
forth herein, to accommodate the process to be afforded a Franchisee hereunder, for good cause
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shown (including evidence that the Franchisee has commenced necessary measures to comply
with the obligations herein), but in no event to exceed twelve (12) months.
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 MHZ 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 and a Franchisee shall agree in a franchise agreement that a
Franchisee provide access channels, facilities and other support for educational and/or
governmental use.
3. Cablecasting of City Commission meetings live to all Subscribers located
within the City may be provided by the City on a government channel.
4. A cable system shall provide leased access channels as required by federal
law.
5. (a) A Franchisee shall, upon request, provide at least one cable
television service outlet and when technically feasible and available in the area, at least one
standard installation connection to a cable on-line service to each public elementary and
secondary school within its franchise area that is passed by its cable system, and shall provide
basic cable service and on-line cable internet service to those installations at no cost to the City
or school involved, and shall charge no more than its time and material costs for any additional
cable service outlets (including cable internet service) to such facilities.
(b) A Franchisee shall, upon request, provide at least one standard
installation for basic cable television service to each and every City government building within
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its franchise area that is passed by its cable system and shall provide basic cable service to those
installations at no cost to the City and shall charge no more than its costs for any additional basic
cable service outlets to such facilities.
6. 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, at minimum consistent with FCC regulations.
7. A Franchisee shall make available to its subscribers equipment capable of
decoding closed circuit captioning information for the hearing impaired. A Franchisee may
impose a reasonable charge for such equipment.
8. Standard installation shall consist of a drop, not exceeding one hundred
twenty five (125) feet from the cable plant to the nearest part of a Subscriber's residence; or, if a
commercial subscriber, the nearest part of Subscriber's place of business.
9. Any and all rights which the City may have, now or in the future, to
regulate a Franchisee's provision of cable Internet services are hereby reserved by the City and
may be exercised at any time throughout the term of the Franchise, unless otherwise prohibited
by applicable law. If a Franchisee provides access to its system to internet service providers on
an open, non-discriminatory basis on a cable system owned or operated by the Franchisee, its
parents, affiliates or subsidiaries serving the City of Orlando, Franchisee shall provide access on
such basis on any service which the Franchisee provides in the City.
10. A Franchisee shall, at all times during the term of a Franchise, maintain a
State-of-the-Art cable system within the Franchise Area, as that term is defined in this
Ordinance, and consistent with the provisions of Subsection A hereof.
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B. A Franchisee shall make cable service available to every dwelling within the
Franchise area as defined in a franchise agreement unless prohibited by a private property owner
from doing so; provided that such dwelling is in an area of density of at least twenty-five (25)
dwelling units per cable mile. For purposes of this section, if a Franchisee has not been granted
the authority by an owner or associations of owners to extend its facilities to individual
apartments, condominiums, and co-operative units within the interior or a multiple-unit buildings
or complex of buildings, then any such multiple-unit building or complex of buildings shall be
considered a single dwelling unit. Density per cable mile shall be computed by dividing the
number of dwelling units in the area by the length, in miles or fractions thereof, of the total
amount of aerial or underground cable necessary to make service available to the dwelling units
in such area in accordance with the Franchisee's system design parameters. The cable length
shall be measured from the nearest point of access to the then-existing system, provided that
extension is technically feasible from that point of access, and located within the public streets.
C. Notwithstanding anything herein to the contrary, service shall be required for new
developments located adjacent to an area which already meets the density requirement in B
above, but only to the extent, in whole or in part, to which such development has been platted
consistent with the density requirement in B above, and public utility facilities are being or have
been extended.
Section 57-14. Technical Standards.
A. Any cable system within the City shall at minimum meet the technical standards
of the FCC or other applicable federal or state technical standards, including any such standards
as hereinafter may be amended or adopted including but not limited to digital transmission,
HDTV or other advanced technologies. All television signals transmitted on a cable system shall
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include any closed circuit captioning information for the hearing impaired received by the
Franchisee's cable system. Antennas, supporting structures, and outside plant used in the system
shall be designed to comply with all generally accepted industry practices and standards and with
all federal, state, county, City and/or utility laws, ordinances, rules and regulations.
B. All construction, installation and maintenance shall comply with the National
Electrical Safety Code, the National Electric Code, all applicable building codes, and all laws 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. At any time during the term of a Franchise, the City shall have the
right to inspect the cable system facilities in the streets during and after their construction to
ensure compliance with the requirements of the franchise agreement, this Ordinance, and FCC
standards.
D. The Franchisee shall notify the City within ten (10) days of Franchisee's failure
of proof of performance or other test required in subsection C above.
E. A Franchisee shall not design, install or operate its facilities in a manner that will
interfere with the signals of any broadcast station, the preexisting facilities of any public utility,
the preexisting cable system of another Franchisee, or individual or master antennas used for
receiving television or other broadcast signals.
F. Franchisee shall provide access channels, facilities, and financial support, in
accordance with the terms of a Franchise.
Section 57-15. Access Channels and Facilities.
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A. Applications for an initial or renewal franchise shall include proposals for the
provision of access channels and equipment and facilities relating to such channels sufficient to
meet community needs as determined by the City. Any franchisee granted an initial or renewal
franchise on or after the effective date hereof, shall, at minimum, provide the City for its
exclusive use with two (2) activated access channels for, educational and/or governmental use, as
determined by the City.
B. A City may, as provided in a Franchise Agreement, require Franchisee to provide
use of Franchisee's studio equipment and technical services, at no cost to the City, for production
of live and video-taped municipal programs, subject to reasonable availability and scheduling
requirements of the Franchisee.
C. The City may require a Franchisee to provide equipment and other facilities
and/or support in order to facilitate the City's operation of an educational or governmental access
channel, as provided in a Franchise.
D. As provided in a Franchise, a Franchisee may be required to provide, at no cost to
the City, trained personnel to assist the City in production of live and video-taped municipal
programs at locations other than the City's studio, or Franchisee's studio as the case may be, as
designated by the City.
E. Applications for an initial or renewal franchise may and, at the City's request,
shall include proposals for the provision of an Institutional Network interconnecting City,
educational institution, and/or other public facilities.
F. Applications for an initial or renewal franchise may and, at the City's request,
shall include proposal for the interconnection of Franchisee to any or all other franchised cable
systems operating within the City or in areas adjacent to the City, provided that interconnection
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is technically feasible and Franchisee and the other operator agree upon reasonable
interconnection arrangements, including an allocation of the costs of interconnection between
Franchisee and such other operator that is reasonable in light of the relative benefits and burdens,
including consideration of support provided for educational and governmental access purposes.
G. A franchise may provide for a financial grant in lieu of some or all of the
facilities, equipment, and services referenced in Section 57-15(B)(C)(D)(E).
Section 57-16. Franchise Fee.
A. A Franchisee, as compensation for the privilege granted under a franchise for the
use of the City's streets to construct and 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 to
provide cable services during the term of its franchise; or (2) in the event the Communications
Act or other applicable law is amended to permit the City to assess a franchise fee of a greater
specific amount or on a broader revenue basis than that specified in (1) above, the Franchisee
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. In no event
shall a Franchisee pay a Franchise fee greater than the maximum permitted by applicable law.
B. A Franchisee shall pay the franchise fee due to the City on a quarterly basis.
Payment for each quarter shall be made to the City not later than forty five (45) calendar days
after the end of each calendar quarter.
C. A Franchisee shall file with the City, on a quarterly basis with the payment of the
franchise fee, a financial statement setting forth the computation of gross revenues used to
calculate the franchise fee for the preceding quarter and a detailed explanation of the method of
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computation. The statement shall be certified by a certified public accountant and the
Franchisee's chief financial or other duly authorized officer. The Franchisee will bear the cost of
the preparation of such financial statements.
D. Subject to applicable law, no acceptance by the City of any franchise fee payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the City may have for additional
sums payable.
E. The franchise fee payment is not a payment in lieu of any other tax, fee or
assessment.
F. The City may, from time to time, and upon reasonable notice, inspect, and audit
any and all books and records of the Franchisee, for the current and five (5) prior years, 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 two percent (2%) of the
franchise fees actually paid excluding amounts underpaid due to miscoded accounts where the
City has failed to advise the Franchisee of an annexation. A Franchisee shall make all books and
records necessary to satisfactorily perform the audit readily available to the auditors at the system
headquarters in Central Florida, or such other location within Orange County, for inspection and
copying.
G. In the event that a franchise fee payment is not received by the City on or before
the due date set forth in subsection (B) above, or is underpaid, the Franchisee will pay a late
charge of eighteen percent (18%) of the amount of the unpaid or underpaid franchise fee
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payment, computed on an annual basis, 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.
H. 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 fiscal year.
Adjustments will be made at that time for franchise fees due to the date that the Franchisee's
operations ceased. Payments under this subsection shall be due and payable within forty five
(45) days of the date the determination of fees due to the City is made, and subject to late charges
as described in Subsection G above.
I. Any transaction or arrangement which has the effect of circumventing payment of
required franchise fee and/or evasion of payment of franchise fee by non-collection, non-
reporting of Gross Revenue, collection of revenues by Affiliates, bartering, or any other means
which evade the actual collection of revenues subject to the franchise fee by Franchisee is
prohibited
Section 57-17.Reports and Records.
A. Within six (6) months of the close of its fiscal year, a Franchisee shall provide the
City an annual report that, at minimum, includes the following information:
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1. A summary of the previous year's activities in development of the State of
the Art of cable systems and the system serving the City including but not limited to, services
and products initiated or discontinued, new technologies, number of subscribers, homes passed,
and miles of cable distribution plant in service. The summary shall also include a comparison of
any construction, including system upgrades, during the year with any projections previously
provided to the City, as well as rate and charge increases and/or decreases for the previous fiscal
year. It is the obligation of the Franchisee to include within this report any and all information
necessary to evaluate Franchisee's system as compared to the definition of"State of the Art" as
defined in Section 57-2.
2. A financial statement, including a statement of sources of revenues for the
Franchise Area. The statement shall be audited if Franchisee has audited statements performed
in its normal course of business. If not, the statement shall be certified by the Franchisee's chief
financial officer or other duly authorized financial officer of the Franchisee. The statement shall
include notes that specify all significant accounting policies and practices upon which it is based.
3. To the extent there have been changes from maps already filed by
Franchisee, a copy of updated maps depicting the location of all cable plant, showing areas
served and locations of all trunk lines and feeder lines in the City. Upon request by the City,
such maps shall be provided in digitized form at Franchisee's expense.
4. Upon a request, a summary of subscriber or resident written complaints
and/or complaints requiring a service call, identifying the number and nature of complaints and
their disposition. Where complaints involve recurrent system problems, the nature of each
problem and the corrective measures taken shall be identified. More detailed information
concerning complaints shall be submitted upon written request of the City.
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5. Upon written request, a summary of the number of outages exceeding one
(1) hour, including number of planned outages, number of outages during prime viewing hours
(8:00 p.m. - 11:00 p.m. daily), and number of outages by duration including number of
subscribers affected.
6. If the Franchisee is a corporation, a list of officers and members of the
board of directors; the officers and members of the board of directors of any parent corporation;
and if the Franchisee or its parent corporation's stock or ownership interests are publicly traded,
a copy of its most recent annual report.
7. If the Franchisee is a partnership, a list of the partners, including any
limited partners, and their addresses; and if the general partner is a corporation, a list of officers
and members of the board of directors or the corporate general partner, and the officers and
directors of any parent corporation; and where the general partner or its parent corporation's
ownership interests are publicly traded, a copy of its most recent annual report.
8. A list of all persons holding five percent (5%) or more ownership or
otherwise cognizable interest in the Franchisee pursuant to 47 C.F.R. 76.501.
9. Upon request, a copy of the Franchisee's rules and regulations applicable
to Subscribers of the Cable System.
10. Upon request, a report on the number of senior citizen, economically
disadvantaged or handicapped subscribers receiving any rate discounts, if any, and the amount of
any such discounts for specific services if Franchisee offers separate rates or discounts for those
categories of subscribers.
11. A full schedule and description of all products, services, and equipment
offer to cable subscribers, service hours and location of the Franchisee's customer service office
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or offices available to subscribers, and a schedule of all rates, fees and charges for all product,
services and equipment provided over the Cable System.
12. A report on the number of total subscribers served by the Franchisee in
the Cable System.
B. Upon written request by the City, a Franchisee shall provide, on an annual basis,
the following documents to the City as received or filed, without regard to whether the
documents are filed by the Franchisee or an affiliate:
1. Annual report of the Franchisee or its parent or any affiliate of Franchisee
which controls Franchisee and issues an annual report;
2. Copyright filings reflecting the operation of the system;
3. FCC Forms 325 and 395A for the system, or their successor forms;
4. Any and all pleadings, petitions, applications, communications, reports
and documents (collectively referred to as "filings") submitted by or on behalf of the Franchisee
to the FCC, SEC or any state or federal agency, court or regulatory commission which filings
may impact the Franchisee's operation of the Franchisee's cable system in the City or that may
impact the City's rights or obligations under this Ordinance of the Franchise Agreement issued
pursuant to this Ordinance and any and all responses, if any, to the above mentioned filings.
5. Any and all notices of deficiency, forfeiture, or documents instituting any
investigation, civil or criminal proceeding issued by any state or federal agency regarding the
system, Franchisee, or any Affiliate of Franchisee, provided, however, that any such notice or
documents relating to an Affiliate of Franchisee need be provided only to the extent the same
may concern Franchisee's operations in the City. For example, a notice that an Affiliate which
has a management contract for the City's system was not in compliance with FCC EEO
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requirements with respect to its activities in the City would be deemed to affect or bear on
operations in the City.
6. Any request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy.
7. Notwithstanding anything to the contrary, the Franchisee agrees to provide
the City, within thirty (30) days of filing or receipt of such, any document filed with or received
from a governmental agency that may adversely impact Franchisee's obligations under its
Franchise with respect to the construction, operation or maintenance of the Franchisee's cable
system or the City's rights with respect thereto.
C. Upon reasonable notice and during normal business hours, a Franchisee shall
make a complete set of books and records available for inspection and audit by the City in the
Central Florida Area, for purposes of ascertaining compliance with requirements of this
Ordinance and the franchise agreement.
D. Any materials requested by the City which are deemed proprietary and
confidential under applicable law shall be made available to the City for review and inspection
(but not copying or removal), but shall not be required to be filed with the City unless such filing
is required by applicable law. To the extent consistent with applicable law, the City shall
maintain the confidentiality of information provided by Franchisee, when designated as
proprietary and confidential by Franchisee.
Section 57-18.Customer Service Requirements.
A. A Franchisee shall at a minimum maintain all parts of its system in good
condition and in accordance with FCC standards or such more stringent standards provided in
this Ordinance or a Franchise Agreement. Sufficient employees shall be retained to provide safe,
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adequate and prompt service for all of its customers and facilities, as set forth in this Ordinance
and a Franchise Agreement. The customer service requirements set forth herein are applicable to
all services subject to the Ordinance. Franchisee's material failure to comply with this
subsection may result in a fine in the amount of Three Hundred Fifty Dollars ($350.00), per
violation, per day or part thereof that the violation continues.
B. A Franchisee shall maintain at least one (1) conveniently located business office
and service center within five (5) miles of the City limits, to which Subscribers may telephone
without incurring added message units or toll charges. This business office shall be open at
minimumduring normal business hours, Monday through Friday, and some weekend and evening
hours. Further, Franchisee shall locate, construct, design, staff, operate and maintain said
office(s) so as to provide all Subscribers, including but not limited to those Subscribers who may
be elderly, disabled or otherwise impaired, with access to its office, in accordance with
applicable law. The office shall make available for all customers sufficient covered waiting areas
and adequate seating capacity in an air conditioned space. Such office must have adequate
counter personnel to keep wait time to a reasonable length. Franchisee's material failure to
comply with this subsection may result in a fine in the amount of Three Hundred Fifty Dollars
($350.00)per violation, per day or part thereof that the violation continues.
C. Franchisee shall maintain a listed local, toll-free telephone number under the
name by which Franchisee is doing business in the City, 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 shall be available to respond to customer telephone inquiries, twenty-
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four(24) hours per day, seven (7) days per week including holidays. Franchisee's material failure
to comply with this subsection may result in a fine in the amount of Two Hundred Dollars
($200.00), per violation, per day or part thereof that the violation continues.
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 percent (3%) of the time. These standards shall be met no less than ninety percent (90%) of
the time under normal operating conditions, measured on a quarterly basis. Franchisee shall
maintain performance data necessary to confirm compliance with the standards set forth herein,
and such records shall be made available for review and inspection by the City or its designee
pursuant to Section 57-17 of this Ordinance. Such records shall be maintained at the franchise
level, or for all the franchise areas in the same regional Division of the Franchisee. Franchisee's
material failure to comply with this subsection may result in a fine in the amount Three Hundred
Fifty Dollars ($350.00)per violation, per day or part thereof that the violation continues.
E. A Franchisee shall employ and maintain sufficient qualified personnel and/or
equipment to be available (1) to accept payments; (2) to exchange or accept converters or other
equipment during normal business hours; (3) 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;
(4) to undertake normal repairs, by the next business day; (5) to enable a service technician to
respond to service calls twenty-four (24) hours per day, under normal operating conditions,
seven (7) days a week including holidays, when more than five (5) Subscribers served from the
same nearest active electronic device, such as an amplifier or node, call with the same technical
complaint. Franchisee's material failure to comply with this subsection may result in a fine in
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the amount of Two Hundred Dollars ($200.00) per violation, per day or part thereof that the
violation continues.
F. Franchisee must meet each of the following standards no less than ninety-five (95)
percent of the time under normal operating conditions as measured on a quarterly basis:
1. Standard installation work shall be performed within seven (7) calendar
days after an order has been placed except in those instances where a Subscriber specifically
requests an installation date beyond the seven (7) calendar day period. "Standard" installations
are up to one hundred and twenty-five (125) feet from the existing distribution system. If
scheduled installation is neither started nor completed as scheduled, the Subscriber shall be
telephoned by an employee of the Franchisee the same day;
2. Franchisee shall respond to service interruptions promptly and in no event
later than twenty-four (24) hours after the interruption becomes known to Franchisee. Other
service problems shall be responded to promptly and in no event later than the next business day
after the problem becomes known to the Franchisee;
3. The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities shall 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." These options shall be clearly explained to the customer at the time of scheduling;
4. Franchisee may not cancel an appointment with a Subscriber after the
close of business on the business day prior to the scheduled appointment;
5. If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer shall be made and the appointment rescheduled
as necessary at a time which is convenient for the customer.
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6. Franchisee's material failure to comply with this subsection may result in
a fine in the amount of Two Hundred Dollars ($200.00), per violation, per day or part thereof that
the violation continues.
G. Franchisee shall institute and maintain a program providing a reasonable
subscriber credit for missed appointments. The City's determination that Franchisee's program
is unreasonable and/or Franchisee's material failure to comply with this subsection may result in
a fine in the amount of One Hundred Dollars ($100) per violation, per day or part thereof that the
violation continues.
H. Disconnection.
1. Voluntary Disconnection.
a. A Subscriber may terminate service at any time.
b. A Franchisee shall promptly disconnect any Subscriber who so
requests from the Cable System of the Franchisee. No period of notice prior to voluntary
termination of service may be required of Subscribers by any Franchisee. No charge may be
imposed by any Franchisee for such voluntary disconnection, or for any Cable Services delivered
after the date of the requested disconnection.
c. A Franchisee may hold a Subscriber responsible for the return of
equipment of the Franchisee which has been provided for Subscribers use. The Franchise may
request the Subscribers to return the equipment to Franchisee's office but, if the Subscriber
requests, Franchisee shall pick up the equipment at the Subscriber's premises, subject to (b)
above.
d. Any security deposit and/or other funds due the Subscriber shall be
refunded on disconnected accounts after any customer premises equipment including all
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converters but excluding wiring have been recovered by the Franchisee. The refund process shall
take a maximum of forty-five (45) days from the date equipment is returned to Franchisee 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 service outlet of the
Subscriber; however, such disconnection shall not be effected until twenty-five (25) 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 twenty-
five (25) 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. Franchisee reserves the right to deny service to any customer who
has been repeatedly disconnected for non-payment of services to the extent such rights are
consistent with applicable state and federal Law.
3. With respect to any disconnection, whether requested or involuntary, a
Franchisee shall comply with the rules and regulations of the FCC and applicable Law with
respect to ownership, sale, removal and abandonment of home wiring. Failure to comply with
such rules including, but not limited to providing applicable notice to Subscribers and property
owners shall
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be considered a violation of this Ordinance.
4. Franchisee's material failure to comply with this subsection may result in
a fine in the amount of Two Hundred Dollars ($200.00) per violation, per day or part thereof that
the violation continues.
I. Franchisee shall intentionally interrupt service only for good cause and for the
shortest time possible and shall use its best efforts to minimize the number of service
interruptions between 6:00 p.m. and 11:00 p.m. Franchisee shall maintain a written log for all
intentional service interruptions. Franchisee's material failure to comply with this subsection
may result in a fine in the amount of Three Hundred Dollars ($300) per violation, per day or part
thereof that the violation continues.
J. Franchisee shall provide the City Manager or designee telephone number(s)
and/or pager number(s) to enable the City Manager or designee to contact at any time a person
responsible for the operation of the System of Ocoee. Franchisee's material failure to comply
with this subsection shall make Franchisee subject to a fine as provided herein. Franchisee's
material failure to comply with this subsection may result in a fine in the amount of Two
Hundred Dollars ($200.00)per violation, per day or part thereof that the violation continues.
K. Franchisee shall cause all of its field employees to wear a picture identification
badge indicating employment by Franchisee. This badge shall be clearly visible to the public.
All company vehicles shall display the company name and logo, if any, in a manner clearly
visible to the public. Contractor vehicles shall display the contractor name, telephone number,
and contractor license number, as required by applicable law. Employees of contractors
working for Franchisee shall wear a picture identification badge. Franchisee's material failure to
comply with this subsection may
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result in a fine in the amount of One Hundred Dollars ($100.00) per violation, per day or part
thereof that the violation continues.
L. A Franchisee shall develop written procedures for the investigation and resolution
of all Subscriber or City resident complaints, including, but not limited to, those regarding the
quality of service and equipment malfunction, which procedures shall be provided upon request
to the City Manager. The good faith or lack thereof of the Franchisee in attempting to resolve
Subscriber and resident complaints in a fair and equitable manner shall be considered in
connection with the renewal application of the Franchisee, to the extent consistent with
applicable law. Franchisee shall maintain a complete list of all complaints requiring a service
call not resolved within seven (7) days of receipt and the measures taken to resolve those
complaints. This list shall be provided to the City upon request. Franchisee shall also maintain a
list of all written complaints received, which list shall be available to the City upon request.
Franchisee's material failure to comply with this subsection may result in a fine in the amount of
Three Hundred Dollars ($300.00) per violation, per day or part thereof that the violation
continues.
M. Upon reasonable request by the City, Franchisee shall permit the City Manager or
his/her designee to inspect and test the technical equipment and facilities upon reasonable notice
not to be less than forty-eight (48) hours, and accompanied by an employee of the Franchisee.
Franchisee's material failure to comply with this subsection may result in a fine in the amount of
Three Hundred Fifty Dollars ($350.00) per violation, per day or part thereof that the violation
continues.
N. Franchisee shall abide by the following requirements governing communications
with customers, bills and refunds:
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•
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 maintenance policies;
c. All products and services offered;
d. Prices and service options;
e. Channel positions of programming carried on the system;
f. The Franchisee's procedures for the receipt and resolution of
customer complaints, the address of the Franchisee and telephone number to which complaints
may be reported, and the hours of operation;
g. The telephone number and address of the City office designated to
handle cable complaints and inquiries shall be printed on the bill. The information shall be
placed so as to not be confused with similar information for Franchisee;
h. The availability and costs of a "lock-out" device and/or other
parental control mechanisms, if any;
i. The information of the Franchisee, collection, and disclosure
policies for the protection of the privacy of the Subscriber.
j. Franchisee's material failure to comply with this subsection may
result in a fine in the amount of One Hundred Dollars ($100.00) per violation, per day or part
thereof that the violation continues.
2. To the extent a Franchisee's billing schedule allows, each Franchisee shall
provide written notice in or on its monthly billing, at the request of the City, of any City meeting
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regarding requests or applications by the Franchisee for renewal, transfer or modification of its
Franchise. The City shall make such a request in writing, with reasonable notice prior to the
mailing of any billing by Franchisee, such that Franchisee's regular billing cycle shall not be
interrupted. 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
considered part of the Franchise fee, as defined in Section 622 of the Communications Act, 47
U.S.C. § 542. Franchisee's material failure to comply with this subsection may result in a fine in
the amount of Three Hundred Fifty Dollars ($350.00) per violation, per day or part thereof that
the violation continues. In addition, Franchisee shall, consistent with applicable law, provide
written notice in or on its monthly billing of any change in service, rates or charges to subscribers
unless such written notification takes place by separate mailing or other means.
3. Franchisee bills shall be clear, concise and understandable to Subscribers.
Franchisee's material failure to comply with this subsection may result in a fine in the amount of
One Hundred Dollars ($100.00)per violation, per day or part thereof that the violation continues.
4. Credits for service or refunds shall be issued no later than thirty (30) days
of the next billing cycle of the customer following the determination that a credit or refund is
warranted. Franchisee's material failure to comply with this subsection may result in a fine in
the amount of One Hundred Dollars ($100.00) per violation, per day or part thereof that the
violation continues.
5. A Franchisee shall provide Subscribers, the City Commission, and the
City Manager 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 whenever practicable. Franchisee's material failure to comply
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with this subsection may result in a fine in the amount of One Hundred Dollars ($100) per
violation, per day or part thereof that the violation continues.
O. Except in the case of a system malfunction, upon a Subscriber's request, a
Franchisee shall provide a refund or credit to the account of the Subscriber, prorated on a daily
basis, for any period of four (4) hours or more within a twenty-four (24) hour period during
which a Subscriber experienced an interruption of service or substantial impairment of service,
whether due to a System Malfunction or other cause. No refunds shall be due for service
interruptions directly related to a rebuild, upgrade or routine maintenance of the Cable System
which is planned, noticed properly to Subscribers, and occurs during a time other than between
6:00 p.m. and 11:00 p.m. and lasts for four (4) hours or less. Franchisee's material failure to
comply with this subsection may result in a fine in the amount of Two Hundred Dollars
($200.00)per violation, per day or part thereof that the violation continues.
P. Billing.
1. The first billing statement of the Franchisee after a new installation or
service change shall be pro-rated as appropriate and shall reflect any security deposit.
2. The billing statement of the Franchisee must be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Statements shall also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
3. Any balance not received within ten (10) days after the due date may be
assessed an administrative charge. However, in no event shall administrative charges for an
overdue balance accumulated against any individual subscriber exceed twenty five dollars
($25.00). The charge shall appear on the billing statement for the following month. Any
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administrative charge applied to unpaid bills shall be subject to regulation by the City consistent
with applicable law. 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 payment can be remitted in
Person at the office of the Franchisee in the City and inform the Subscriber of the address of that
office where payment can be made.
5. Franchisee's material failure to comply with this subsection may result in
a fine in the amount of One Hundred Dollars ($100) per violation, per day or part thereof that the
violation continues.
Q. No charge may be made for any service or product which the Subscriber has not
affirmatively requested by name. Subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative request for service or equipment. A
Subscriber's affirmative request for service or equipment may be made orally or in writing.
1. Franchisee's material failure to comply with this subsection shall result in
a fine in the amount of One Hundred Dollars ($100)per violation, per day or part thereof that the
violation continues.
R. The Franchisee shall, upon request, certify in writing to the City, 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. At the request of the City, the
Franchisee shall submit such documentation as may be required to demonstrate compliance with
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this Section. This documentation shall be submitted within forty five (45) days of the receipt by
the Franchisee of the City's request.
S. Responsibility for the administration of this Ordinance, and any Franchise granted
pursuant to this Ordinance, and for the resolution of all complaints referred to the City against a
Franchisee regarding the quality of service, equipment malfunctions, and related matters, is
hereby delegated to the City Manager (who can in turn designate to a City employee), who is
empowered, among other things, to settle, or compromise any controversy arising from
operations of the Franchisee, on behalf of the City, 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 or designee, hereafter referred
to jointly as City Manager, shall have the power to require the Franchisee to provide service
consistent with the terms of the Franchise, if in the opinion of the City Manager or designee such
request for service is reasonable. Any Person aggrieved by a decision of the City Manager,
including the Franchisee, may appeal the matter to the City Commission for hearing and
determination. The City Commission may accept, reject or modify the decision of the City
Manager. No adjustment, settlement, or compromise, whether instituted by the City Manager or
by the City Commission shall be contrary to the provisions of this Ordinance or any Franchise
agreement issued pursuant to this Ordinance, and neither the City Manager nor the City
Commission, in the adjustment, settlement, or compromise of any controversy shall have the
right or authority to add to, modify or delete any provision of this Ordinance or of the Franchise,
or to interfere with any rights of Subscribers or any Franchisee under applicable federal, or state
Law or private contract.
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T. 1. The fines to which the Franchisee is subject as set forth in this Section are
to be assessed by the City Commission on a per violation basis, with each day of a continuing
violation constituting a separate violation. Where a credit required by this Section is not possible
because service has been terminated, Franchisee shall issue a refund to the former Subscriber for
the appropriate amount.
2. Prior to the City Commission's assessment of a fine pursuant to this
Ordinance, the City Manager shall mail to the Franchisee a written notice, by hand delivery or
certified or registered mail, of the proposed 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 notice of the City Manager or his/her designee as to whether the violation
has been cured. The written response of the Franchisee shall be signed by management level
personnel of Franchisee and all statements contained therein shall be regarded as material
representations of the Franchisee to the City.
3. The City shall consider any justification or mitigating factor advanced in
the
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1
written response of the Franchisee, including but not limited to rebates or credits to the
Subscriber or a cure of the violation. The City may not assess any fine if the Franchisee has
reasonably resolved the complaint or cured the violation within a reasonable time frame.
However, said Subscriber may be entitled to a credit or refund as provided herein.
4. Subsequent to the notice of proposed fine to Franchisee, and consideration
of the response of the Franchisee, if any, the City may, after a public hearing at which Franchisee
shall have an opportunity to heard, issue an assessment of fine. The fine shall be paid within
thirty (30) days of written notice to the Franchisee or, if Franchisee challenges the assessment in
a court of competent jurisdiction, within thirty (30) days of a final non-appealable decision that
the assessment is valid. If said refund, credit or fine is not paid by Franchisee within such thirty
(30) day period, as the case may be, the City may, at its discretion, withdraw immediately the
amount thereof from the Security Fund. Upon such withdrawal, the City shall notify Franchisee
of the withdrawal amount, after which Franchisee shall have ten (10) days from the date of such
notice to deposit in the Security Fund an amount sufficient to restore the Security Fund to the
amount specified in the Franchise Agreement. This fine shall constitute liquidated damages to
the City for the violation and the City may enforce payment of the fine in any court having
jurisdiction. It is the intent of the City to determine 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.
5. Franchisee may appeal any decision of the City Manager or his/her
designee directly to the City Commission within thirty (30) days of notice of the decision to the
Franchisee.
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6. Intentional misrepresentation by a Franchisee in any response to a notice
of proposed credit, refund and/or fine, whether oral or written, shall be considered a material
breach of the Franchise Agreement, subject to a penalty of no less than Five Thousand Dollars
($5,000.00) in liquidated damages to the City, and shall be grounds for Franchise revocation.
7. 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, at
minimum, comply with all customer service standards applicable to Cable Systems of the FCC
and any other applicable federal or state Law concerning customer service standards, consumer
protection, and unfair or deceptive trade practices.
8. The City expressly reserves the right to consider violations of the customer
service requirements in evaluating any renewal, modification or transfers of any Franchise, to the
extent not inconsistent with applicable law.
Section 57-19. Subscriber Privacy.
A. 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. A
Franchisee shall not condition subscriber or other service on the subscriber's grant of permission
to disclose information which, pursuant to federal or state law, cannot be disclosed without the
subscriber's explicit consent. No penalties or extra charges may be invoked by the Franchisee
for a subscriber's failure to grant consent.
B. Unless otherwise permitted by federal or state law, neither the Franchisee nor its
agents or employees shall, without the prior and specific written authorization of the subscriber
involved, sell, or otherwise make available for commercial purposes the names, addresses or
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telephone numbers of any subscriber or subscribers, or any information which identifies the
individual viewing habits of any subscriber or subscribers.
Section 57-20. Discrimination Prohibited.
A. No 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 any illegal 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 illegal 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 or marital status, 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 be from time to time
amended.
Section 57-21. Use of Streets.
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A. Any pavements, sidewalks, curbing or other paved area taken up or any
excavations made by a Franchisee shall be done in compliance with City requirements under
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. Nothing herein shall be construed to
exempt a Franchisee from compliance with the provisions of Article I of Chapter 153 of the Code
of Ordinances of the City of Ocoee, entitled Right of Way Utilization Permitting, and the
payment of the appropriate fees established pursuant to said Article.
B. 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 Engineer full and complete plats, maps and records showing
the exact locations of its facilities located within the public Streets, ways, and easements of the
City. These maps shall be available to the City Engineer.
C. Except to the extent required by law, a Franchisee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any of its property when required by the
City by reason of traffic conditions, public safety, Street construction, Street resurfacing or
widening, change of Street grade, installation 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. Franchisee shall do so at its expense to the extent other users of the rights-of-way are so
responsible, consistent with applicable law.
D. 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
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expense of such temporary removal or raising or lowering of wires shall be paid by the person
requesting same, and the Franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall
be required. The Franchisee shall be given not less than five (5) business days advance notice to
arrange for such temporary wire changes.
E. A Franchisee shall upon notice to the City of not less than 7 days, emergency
situations excepted, 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.
F. A Franchisee shall use, with the owner's permission, existing underground
conduits (if applicable) or overhead utility facilities whenever feasible and if available on
reasonable terms and conditions. Copies of agreements between a Franchisee and third party for
use of conduits or other facilities shall be filed with the City upon request 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.
G. 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 generally applicable rules and regulations concerning
the
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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.
H. 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 preexisting gas, electric, telephone, water, sewer or
other utility facilities, or obstruct or hinder in any manner the preexisting facilities of various
utilities serving the residents of the City of their use of any Street or any other public right of
way.
I. 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.
J. On Streets where electrical or telephone utility wiring is located underground,
either at the time of initial construction of a cable system or at any time thereafter, a Franchisee's
cable shall also be located underground at the Franchisee's expense only if the utilities in the area
are also required to relocate their facilities underground at their expense or at such time other
utilities elect to locate underground. Between a Street and a subscriber's residence, a
Franchisee's cable must be located underground if both electrical and telephone utility wiring are
located underground. The City
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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 proportionately by all users of
such trenches.
K. In the event the use of any part of a cable system is discontinued for any reason
for a continuous period of twelve (12) months, or in the event such system or property has been
installed in any Street without complying with the requirements of this Ordinance or a franchise
agreement, or the franchise has been terminated, canceled or expired, without right of renewal,
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.
L. The City may extend the time for the removal of Franchisee's equipment and
facilities for a period not to exceed one hundred eighty (180) days, and thereafter such equipment
and facilities may be deemed abandoned, unless Franchisee is diligently pursuing the removal.
M. 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 57-22. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided herein
under Section 57-18, the City may apply any one or combination of the following remedies in the
event a Franchisee violates this Ordinance, its franchise agreement, applicable state or federal
law, or applicable local law or order:
1. Impose liquidated damages in such amount, whether on a per-diem,
per-incident, or other measure of violation, as provided in this Ordinance or in a franchise
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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. Impose as liquidated damages a fine in an amount not less than One
Thousand Dollars ($1,000) per day for failure to obtain a Franchise Agreement from the City
pursuant to this Ordinance.
3. Impose as liquidated damages a fine in the amount of Three Hundred Fifty
Dollars ($350.00) per day per violation for material failure to comply with any provision of this
Ordinance, except as otherwise provided for in Section 57-18 hereof or as otherwise provided for
in a Franchise Agreement.
4. In the event of a material failure to comply with the provision of this
Ordinance, revoke the franchise pursuant to the procedures specified in Section 57-25
hereof.
5. 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 bearing the impact of the
violation, the nature of the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
C. Notwithstanding anything to the contrary, Franchisee's failure to comply with
Section 57-13(A) hereof shall result in the assessment of liquidated damages in the amount of
Seven Hundred Fifty Dollars ($750.00)per day for each day such violation continues.
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D. Failure of the City to enforce any requirements of a franchise agreement or this
Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent
violations of the same type or to seek appropriate enforcement remedies.
E. 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 Commission 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.
F. Notwithstanding anything to the contrary, and notwithstanding being subjected to
a fine or refund requirement, Franchisee shall be obligated to cure, or take all reasonably
practicable steps to cure, any violation of this Ordinance or of any Franchise Agreement granted
hereto within thirty (30) days after receipt of notice from the City of the alleged violation. If the
alleged violation is not cured within such period, the City may exercise all rights and remedies
available pursuant to this Ordinance, or applicable law, or the Franchise Agreement.
Section 57-23. 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 may notify the Franchisee, by certified or registered mail that it may file a renewal
application in the form of a renewal proposal. The notice shall specify the information to be
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included in the renewal proposal 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 57-08
hereof to the extent specifically applicable to franchise renewals 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 City
may take such action as appropriate under law.
2. Upon receipt of the renewal application, the City shall publish notice of its
receipt and make copies available to the public. The City, following prior public notice, may
hold one or more public hearings on the renewal application.
B. In the event a public hearing on the renewal application is held, or in the event
that the City Commission considers the renewal application without a public hearing, the City
Commission may either:
1. Pass a resolution approving the proposed Franchise Agreement and
thereby renew the Franchise; or
2. Only after a public hearing properly noticed, pass a resolution that makes a
preliminary assessment that the franchise should not be renewed.
C. If a preliminary assessment is made that a franchise should not be renewed, at the
request of the Franchisee or on its own initiative, the City will commence 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
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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 under § 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), 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 Commission shall determine whether the franchise should be renewed and
the terms and conditions of any renewal.
E. If the City Commission grants a renewal application, the City and the Franchisee
shall agree on the terms of a franchise agreement, pursuant to the procedures specified in
subsections 57-08(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 or effect a transfer to
another person upon approval of the City Commission. Any such acquisition or transfer shall be
at fair market value, determined on the basis of the cable system valued as a going concern but
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•
with no value allocated to the franchise itself. The City may not acquire ownership of the system
while an appeal of a denial for renewal is pending in any court pursuant to 47 U.S.0 § 546(e).
G. If renewal of a franchise is lawfully denied and no appeal to a court is pending,
and the City does not purchase the cable system or approve or effect a transfer of the cable
system to another person, the City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
Section 57-24. Transfers.
A. No transfer of a franchise shall occur without prior approval of the City, which
shall not be unreasonably withheld.
B. An application for a transfer of a franchise shall meet the requirements of Section
57-08 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 subsections 57-08(E)
(1)-(E)(5) with respect to the proposed transferee. The information required in subsections 57-
08(E)(6)-(E)(13) shall also be provided whenever the proposed transferee expects material
changes to occur in those areas.
C. In making a determination on whether to grant an application for a transfer of a
franchise, the City Commission shall consider the legal, financial, and technical capacity 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
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proposed transferee's commitment to cure such noncompliance; and whether operation by the
transferee would adversely affect cable services to subscribers, or otherwise be contrary to the
public interest.
D. No application for a transfer of a franchise shall be granted unless the transferee
agrees in writing, in the form of an affidavit signed by a duly authorized officer of the transferee,
that it will abide by and accept all terms of this Ordinance and the franchise agreement, and that
it will assume the obligations and liabilities of the previous Franchisee to the City under this
Ordinance and the franchise agreement.
E. 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 57-25. Revocation or Termination of Franchise.
A. A franchise may be revoked by the City Commission for a Franchisee's material
failure to construct, operate or maintain the cable system as required by this Ordinance or the
franchise agreement, or for any other material 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
material 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 from the City to the Franchisee, the
Franchisee has not cured such violation or breach, or has not commenced corrective action and
such corrective action is not being actively and expeditiously pursued, the City may give written
notice to the Franchisee of its intent to revoke the franchise, stating its reasons.
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B. Prior to revoking a franchise under subsection (A) hereof, the City Commission
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
Commission may determine whether to revoke the franchise based on the evidence presented at
the hearing, and other evidence of record. If the City Commission determines to revoke a
franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of
such decision shall be transmitted to the Franchisee.
C. Notwithstanding subsections (A) and (B) hereof, any franchise may, at the option
of the City following a public hearing before the City Commission, be revoked one hundred
twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of
a receiver or trustee to take over the business of the Franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding,
unless within that one 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 a significant part of the
facilities, equipment or property of a Franchisee's system in the Public Rights-of-Way, the City
may revoke the franchise, consistent with the procedures of subsections A and B hereof,
including a public hearing before the City Commission, by serving notice upon the Franchisee
and the successful bidder at the sale, in which event the franchise and all rights and privileges of
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the Franchisee 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 Commission, may acquire ownership,
or effect a transfer, of the cable system at an equitable price, consistent with applicable law.
3. If a cable system is abandoned by a Franchisee, the City may sell, assign
or transfer all or part of the assets of the system.
F. Where the City has issued a franchise specifically conditioned in the franchise
agreement upon the completion of construction, system upgrade or other specific obligation by a
specified date, failure of the Franchisee to complete such construction or upgrade, will result in
the automatic forfeiture of the franchise without further action by the City where it is so provided
in the franchise agreement, unless the City, at its discretion and for good cause demonstrated by
the Franchisee, grants an extension of time.
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G. Except as provided in Subsection F, no adverse action against a Franchisee may
be taken by the City pursuant to this section except as consistent with the procedures set forth in
Subsections A and B hereof.
Section 57-26. 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. The
Franchisee shall cooperate with the City to operate the system for a temporary period following
termination or transfer as necessary to maintain continuity of service to all subscribers. The
temporary period will not exceed six (6) months without the Franchisee's written consent.
During such period the cable system shall be operated under such terms and conditions as the
City and the Franchisee may agree, or such other terms and conditions that will continue, to the
extent possible, the same level of service to subscribers and that will provide reasonable
compensation to the cable operator.
C. In the event a Franchisee fails to operate the system for seven (7) consecutive
days without prior approval of the City or without just cause, the City may, at its option, operate
the system or designate an operator until such time as the Franchisee restores service under
conditions consistent with the terms of the Franchise 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 from the Franchisee's failure to perform that are in excess
of the revenues from the system received by the City. Additionally, the Franchisee will
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• - .
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 57-27. 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 service, equipment, repair and
installation shall be reasonable to the public and in compliance with FCC guidelines.
Compliance with applicable laws and regulations shall be considered reasonable. Upon written
request from the City or its agent, Franchisee shall provide all requested data, records and
documentation to show the reasonableness of the rates as required by FCC regulations or other
applicable law. 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. The City's regulation of rates as permitted under applicable law, shall be
consistent with Federal Communications Commission cable rate regulation standards or other
applicable law in effect at the time. A Franchisee shall notify the City of any changes in rates or
service no less than thirty (30) days prior to the effective date of such change. Unless otherwise
prohibited by applicable law, 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, or by written notice to the Subscriber, or such other reasonable
means consistent with applicable law, of the proposed rate change. At any hearing conducted by
the City in the exercise of any rate regulatory authority, the Franchisee and members of the
public will be given an opportunity to present their respective views on the proposed rates. Upon
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. ' .
conclusion of the public hearing, the City Commission shall decide the matter by majority vote
and adopt a Resolution taking such action and providing such relief as is appropriate and
authorized by Federal Communications Commission rate regulation standards or other applicable
law. The resolution shall set forth complete findings of fact and conclusions regarding all of the
basic elements considered in the City Commission's determination.
Section 57-28. Performance Evaluation. The City will conduct periodic
performance evaluations of a Franchisee as the City, in its sole discretion, 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 and Franchisee may agree in a Franchise Agreement that Franchisee shall distribute the
City's questionnaire to its subscribers at the Franchisee's expense.
Section 57-29. Administration.
A. The City Manager, either directly or through a duly appointed designee, shall have
the responsibility for overseeing the day-to-day administration of this Ordinance and franchise
agreements on behalf of the City. The 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 Commission. The Manager may recommend that the Commission take
certain actions with respect to the franchise. The Manager shall keep the Commission apprised
of developments in cable and provide the Commission with assistance, advice and
recommendations as appropriate.
B. Subject to federal and state law, the City Commission shall exercise the sole
authority of the City to regulate rates for cable services, grant franchises, authorize the entering
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• C V
into of franchise agreements, modify franchise agreements, renew or deny renewal of franchises,
revoke franchises, and authorize the transfer of a franchise.
Section 57-30.Force Majeure. 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
franchise agreement granted or renewed hereunder, causes or events not within a Franchisee's
control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes,
fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage,
strikes and restraints imposed by order of a governmental agency or court . Causes or events
within Franchisee's control, and thus not falling within this Section, shall include, without
limitation, Franchisee's financial inability to perform or comply, economic hardship, and
misfeasance, malfeasance or nonfeasance by any of Franchisee's directors, officers, employees,
contractors or agents.
Section 57-31. Applicability. This Ordinance shall be applicable to all cable
franchises granted, transferred, modified, or renewed after its effective date, and shall apply to all
cable franchises granted prior to the effective date of this Ordinance, to the full extent not
inconsistent therewith.
Section 57-32.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.
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B. Nothing in this Ordinance shall be construed to limit in any way the ability or
authority, if any, of the City to acquire, construct, own, and/or operate a cable system to the full
extent permitted by law or consistent with the terms of a Franchise.
Section 57-33. Reservation of Rights.
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 unless imposition of such regulations would be otherwise
prohibited by applicable law, or inconsistent with an existing Franchise.
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 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.
E. The City shall have the right, during the life of this Franchise, to install and
maintain free of charge upon the poles of the Grantee any wire and pole fixtures necessary for
any municipal purpose on the condition that such wire and pole fixtures do not interfere with the
operations of the Grantee.
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•
F. At the expiration, without right of renewal, of the term for which a Franchise is
granted or upon its termination and cancellation, as provided for herein, or in any Franchise
Agreement granted pursuant hereto, the City shall have the right to require the Franchisee to
remove at its own expense all portions of its system from all public ways within the City.
G. At the expiration without right of renewal of the term for which this Franchise is
granted, including any renewal term, or upon its termination and cancellation, as provided for
herein, the City, at its election, and upon payment of the fair market value to the Franchisee
consistent with applicable law, shall have the right to purchase and take over the Franchisee's
system in the public rights-of-way. The above price shall not include, and the Grantee shall not
receive, anything for the valuation of any right or privilege appertaining to it under a Franchise.
Upon the exercise of this option by the City and its service of an official notice of such action
upon the Franchisee, the Franchisee shall immediately transfer to the City possession and title to
all facilities and property, real and personal, of the system, free from any and all liens and
encumbrances not agreed to be assumed by the City in lieu of some portion of the purchase price
set forth above, and the Franchisee shall execute such warranty deeds or other instruments of
conveyance to the City as shall be necessary for this purpose. The Franchisee shall do nothing
during the term of this franchise or any extension thereof to or in any way prevent or hinder the
City from purchasing the system under the option contained herein.
SECTION 3. Repeal of Conflicting Ordinances. That all sections or parts of
sections of the Code of Ordinances, all ordinances or 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.
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JO ^ 4
SECTION 4. Savings. All rates, fees, charges and financial obligations
previously accrued pursuant to the ordinances and resolutions repealed pursuant to Section 2
above shall continue to be due and owing until paid.
SECTION 5. Severability. 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 6. Applicable Law. This Ordinance shall be construed in accordance
with the law of the State of Florida and is subject to applicable local, state and federal law.
SECTION 7. Effective Date. This Ordinance shall become effective immediately
upon passage and adoption.
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Op 4!.
PASSED AND ADOPTED this day of , 1999.
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
ADVERTISED , 1999
READ FIRST TIME , 1999
READ SECOND TIME AND ADOPTED
, 1999
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND LEGALITY
this day of , 1999
LEIBOWITZ AND ASSOCIATES
Special Counsel
By:
Name:
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CITY OF OCOEE
FLORIDA
REDLINE DRAFT
Ordinance No. 99-37
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF OCOEE, FLORIDA, CREATING ORDINANCE NO. 99-37
OF THE CITY OF OCOEE, FLORIDA, BY PROVIDING THE
PROCEDURES AND REQUIREMENTS RELATING TO
CABLE TELEVISION FRANCHISES TO REFLECT CHANGES
IN APPLICABLE LAW AND TO BETTER ENSURE THAT
USE OF CITY STREETS BY CABLE SYSTEMS SERVES THE
PUBLIC INTEREST; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING A
SAVINGS CLAUSE AND EFFECTIVE DATE.
Table of Contents
SECTION 1: Authority. 1
SECTION 2: Creation of Cable Communications Ordinance . 1
Section 57-01 A. Short Title. 1
Section 57-02.Definitions 1
A. "Activated Channel" 2
B. "Access Channel" 2
C. "Affiliate" 2
E. "Applicant" 2
F. "Application" 3
G. "Basic Cable Service" or"Basic Service" 3
H. "Broadband" 3
I. "Broadband Internet Access Transport Services" 3
J. "Communications Act" 3
K. "Cable Service" 3
L. "Cable System," or"System," 4
M. "City" 4
N. " Control of a Franchisee or Applicant" 4
O. "Fair Market Value" 5
P. "FCC"5
Q. "Franchise" 5
R. "Franchise Agreement" 5
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S. "Franchise Area" 5
T. "Franchisee" 5
U. "Gross Revenues" 6
V. " Institutional Network" 7
W. "Interconnection" 7
X. "Internet" 7
Y. "Internet Service Provider" 7
Z. "Law" 8
AA. "Leased Access Channel" 8
BB. "Overbuild" 8
CC. "Person" 8
DD. "Service Tier" 8
EE. "State of the Art" 8
FF. "Street or Streets" 8
GG. "Subscriber" 9
HH. "Subscriber Base" 9
II. "System Malfunction" 9
JJ. "Transfer of a Franchise" 9
KK. "Two-way Capability" 10
LL. "Video Channel or Channel" 10
Section 57-03. Intent and Purposes. 10
Section 57-04.Grant of Authority; Franchise Required. 11
Section 57-05.Franchise Characteristics. 11
Section 57-06.Franchisee Subject to Other Laws, Police Power. 13
Section 57-07.Interpretation of Franchise Terms; Conflicts. 14
Section 57-08.Applications for Grant, Renewal, Modification or Transfer of
Franchises. 14
Section 57-09.Grant of Franchises. 20
Section 57-10.Insurance; Surety; Indemnification. 22
Section 57-11. Security Fund.24
Section 57-12. Construction Bond. 26
Section 57-13.Minimum Facilities and Services. 28
Section 57-14. Technical Standards. 30
Section 57-15. Access Channels and Facilities. 32
Section 57-16. Franchise Fee. 33
Section 57-17.Reports and Records. 36
Section 57-18.Customer Service Requirements. 40
Section 57-19. Subscriber Privacy. 54
Section 57-20. Discrimination Prohibited. 55
Section 57-21. Use of Streets. 56
Section 57-22. Enforcement Remedies. 60
Section 57-23. Renewal of Franchise.62
Section 57-24. Transfers. 64
Section 57-25. Revocation or Termination of Franchise. 66
Section 57-26. Continuity of Service Mandatory. 69
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Section 57-27. Rates. 70
Section 57-28. Performance Evaluation. 71
Section 57-29. Administration. 71
Section 57-30.Force Majeure. 72
Section 57-31. Applicability. 72
Section 57-32.Municipal Cable System Ownership Authorized. 73
Section 57-33. Reservation of Rights. 73
SECTION 3. Repeal of Conflicting Ordinances. 75
SECTION 4. Savings. 75
SECTION 5. Severability. 75
SECTION 6. Applicable Law. 75
SECTION 7. Effective Date. 75
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WHEREAS, the City of Ocoee, has under consideration the renewal of its existing cable
franchise pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§ 521 et seq.;
and
WHEREAS, the enactment of the Telecommunications Act of 1996, recent court
precedent construing the scope of municipal regulatory authority over cable franchises granted
in their jurisdiction, and applicable changes and developments in cable technology and services
have resulted in a changed regulatory environment; and
WHEREAS, the City Commission of the City of Ocoee, Florida, deems it necessary to
enact a new comprehensive Cable Code, to take into account the afore-described changes and
developments and to better ensure that use of City streets by cable systems serves the public
interest.
NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY
OF OCOEE, FLORIDA, AS FOLLOWS:
SECTION 1: Authority. The City Commission of the City of Ocoee has the authority
to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and
Chapter 166, Florida Statutes, and the Communications Act of 1934, 47 U.S.C. § 151 et seq., as
amended.
SECTION 2: Creation of Cable Communications Ordinance . A new Article II of
Chapter 57 of the Code of Ordinances of the City of Ocoee, Florida, entitled Cable
Communications Ordinance, is hereby adopted as follows:
Section 57-01 A. Short Title. This Ordinance shall be known and may be cited as
City of Ocoee, Florida Cable Communications Ordinance.
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t �
Section 57-02.Definitions. For the purpose of this Ordinance , 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 q., and the
Telecommunications Act of 1996, and as those Acts 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 p i h k. educational- or governmental use. Channels on which signals flow in the
direction from the headend to the subscriber are referred to as "downstream channels". Where
the signal flows to the headend for re-distribution, it shall be referred to as an "upstream
channel".
B. "Access Channel" means any channel on a cable system set aside without charge
by the Franchisee for non-commercial educational and/or local governmental use.
C. "Affiliate" means any person which directly or indirectly owns or controls a
grantee or Franchisee, any person which a grantee or Franchisee directly or indirectly owns or
which it controls, or any person under common ownership or control with a grantee or
Franchisee.
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D. "Analog Channel" means no l: : than O \ll-IZ of bandvv kith. bandwidth in the
electromagnetic spectrum capable of carrying one (1) standard television signal that is
delivered in an analog format.
E. "Applicant" means any person submitting an application within the meaning of
this Ordinance.
F. "Application" means any proposal, submission or request to (1) construct and
operate a cable system within the City; (2) transfer a franchise or control of the Franchisee; (3)
renew a franchise; (4) modify a franchise; or (5) 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.
G. "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.
H. "Broadband" shall mean a capability in excess of 144 kilobits per second.
I. "Broadband Internet .Access Transport Services" shall mean thz broadband
tlansmis ion of data between subscriber and an Internet Service Provider's point of
interconnection vv ith the. broadband int:rnet access transport provider's facilities.
"Communications Act"means the Communications Act of 1934, 47 U.S.C. § 151 et
as that Act has been and may hereinafter be amended.
4 J. "Cable Service" means the transmission of video or other programming services
over a cable system to subscribers together with any subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming services.
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Unless otherwise prohihitcJJ preemptively provided by applicable law, cable internet services,
including,but not limited to @Home, Roadrunner or other services, provided by a Franchisee, its
parent, affiliate or subsidiary over the cable system shall be deemed "cable services" as permitted
under Title VI of the Communications Act of 1934, as amended.
K. "Cable System," or "System," means any facility consisting of a set of closed
transmission paths or other transmission lines or forms of terrestrial transmission and associated
signal generation, reception and control equipment that is designed to provide cable service
which includes video programming Br,\,:dbin,i _,�r�ic��, 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 part, to the provisions of Title II of the Communications Act of 1934, 47
U.S.C. § 201 et sec., 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. 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.
41-L. "City" means the City of Ocoee, a municipal corporation of the State of Florida,
in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
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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, grantee or applicant, or the
operation of a Franchisee's system, either directly or indirectly, whether through ownership of
voting securities,by contract or in any other manner.
N. "Fair Market Value" means the price that a willing buyer would pay to a willing
seller for a going concern but with no value allocated to the franchise itself.
42 O. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
Q P. "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 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.
4:4 Q. "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.
4 R. "Franchise Area" means that territory within the corporate limits of the City, as
those limits may change from time to time through annexation or contraction, over which the
terms of a franchise agreement shall extend.
S. "Franchisee" means any person granted a franchise pursuant to this Ordinance
who has entered into a franchise agreement with the City.
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T. "Gross Revenues" means all revenues derived by the Franchisee and, any
Affiliates, subsidiaries or parent of the Franchisee from the operation of the Cable System to
provide Cable Services in the City. Gross Revenues include, but are not limited to, fees charged
Subscribers for Basic Service; fees charged Subscribers for any optional, premium, per-channel
or per-program service; fees charged Subscribers for any tier of service other than Basic Service;
installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees,
payments or other consideration from programmers for carriage of programming on the system;
revenue from converter, remote, modem or any other equipment rentals; revenues from leases of
cable or fiber optic lines and other transmission devices and equipment; revenues from
transmission of data; revenues from installation, service and content enhanced interne products
and services including, but not limited to, access services and content enhanced services;
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 shall then be multiplied by the
total advertising revenue of the system 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 shall allocate the percentage of
revenue to the City which is equivalent to the percentage of the population of the City divided by
the total population for the allocable franchise areas in question. Gross Revenues shall be the
basis for computing the franchise fee imposed pursuant to Section 57-16 hereof. Gross Revenues
shall not include revenues received from programmers and used by Franchisee to market or
promote a new program for a period of no more than six (6) months from the initial launch of the
program; revenues directly generated by affiliated programmers for the provision of
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programming; any taxes on services furnished by the Franchisee which are imposed upon any
Subscriber or user by the state, county, City or other governmental unit and collected by the
Franchisee on behalf of said governmental unit and which the Franchisee passes on in full to the
applicable tax authority. However, it is hereby expressly provided that franchise fees shall be
included in the calculation of Gross Revenues. Further, franchise fees shall not be paid on
Subscriber deposits unless and until said deposits are applied to a customer account for services
rendered.
V U. "Institutional Network" means a dedicated closed network, or an
alternative acceptable to the City, for use by the City to provide Cable Services and
non-Cable Services for public, educational and governmental use within the City.
The network shall be capable of providing one-way, two-way, interactive, and
machine-to-machine transfer of audio, video, voice and data signals within the
network as designated by the City.
V. "Interconnection" means the electronic connection of two or more franchised
cable systems for the purpose of sharing programming.
W. "Internet" shall mean collectively the myriad of computer and
telecommunications facilities, including equipment and operating software, which comprise the
interconnected worldwide network of networks that employ the Transmission Control
Protocol/Internet Protocol, or any predecessor or successor protocols to such protocols to
communicate information of all kinds by wire or radio.
X. "Internet Service Provider" shall mean a person who provides a service that
enables users to access content, information, electronic mail, or other services offered over the
internet.
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Y. "Law" means all duly enacted and applicable federal, state, county and City laws,
ordinances, codes, rules, regulations and orders.
- Z. "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.
44-14 AA. "Overbuild" means that portion of a cable system constructed to serve
subscribers already served by an existing cable system.
CC BB. "Person" means any individual, corporation, partnership, association,
joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee,
transferee or personal representative thereof, but shall not mean the City.
4443 CC. "Service Tier" means a category of multi-channel cable service provided
by a Franchisee and for which a separate charge is made by the Franchisee.
DD. "State of the Art" means that level of cable system technical performance,
capacity, equipment, components and service (without reference to the content of service) equal
to that which has been developed and demonstrated to be generally acceptable and used by the
Franchisee, its parents, affiliates or subsidiaries in systems of comparable size, excluding Tests,
and which is technically and commercially feasible in the Franchisee's system. In no event shall
State of the Art be less than that level of cable system technical performance, capacity,
equipment, components and service (without reference to the content of service) available on a
cable system owned or operated by the Franchisee, its parents, affiliates or subsidiaries serving
the City of Orlando.
EE."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,
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thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier,
court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public
place, including public utility easements dedicated for compatible uses, or any other property in
which the City holds any kind of property interest or over which the City exercises any type of
lawful control, and any temporary or permanent fixtures or improvements located thereon, as
may be ordinarily necessary and pertinent to construct and operate a cable system. The term
includes any right-of-way granted to the public or to any governmental body by way of
conveyance, dedication, restriction, or by easement and any area within an easement given for
governmental purposes.
FF. "Subscriber" means any person who lawfully receives cable service
delivered over the cable system.
444 GG. "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 individual unit (e.g., in a multiple family dwelling, a
unit will be defined as each subscriber unit within the structure) included within a contract for
service as one subscriber. Franchisee shall not use any equivalency measures unless required by
FCC rules.
14 HH. "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 ten (10) or more subscribers.
H. "Transfer of a Franchise" means any transaction in which (1) any ownership or
control of 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
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and/or obligations held by a Franchisee under a franchise agreement are transferred or assigned
to another person, group of persons or business entity. A transfer shall be considered "pro
forma" when it involves a transfer to a person, group of persons or business entity affiliated with
the Franchisee and will not result in a change in the control or ownership of the Franchisee.
. JJ."Two-way Capability" means the incorporation into a cable system of all
appropriate design and engineering characteristics and features so that two-way transmission,
including but not limited to addressability, over the system can be implemented and activated.
KK. "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.
Section 57-03. 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 for the grant of one or more franchises for the
construction and operation of a cable system within the City; to provide for the regulation, to the
extent provided for by law, of each cable system within the City in the public interest; to provide
for the payment of fees and other valuable consideration by a Franchisee 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
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•
City residents, businesses, the community, the City, and other public institutions by cable
technology.
B. Recognizing the continuing development of communications technology and uses,
it is the policy of the City to encourage experimentation and innovation in the development of
cable system uses, services, programming and techniques that will be of general benefit to the
community to the extent all such experiments and innovations are consistent with applicable
laws.
Section 57-04.Grant of Authority; Franchise Required.
A. The City may grant one or more franchises in accordance with this Ordinance.
B. No person may construct or operate 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 and no person may be granted a franchise without having entered into a franchise
agreement with the City pursuant to this Ordinance or other such Ordinance of the City as may
be applicable.
C. Any franchise granted pursuant to this Ordinance shall be 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.
D. Nothing in this Ordinance shall prevent a Franchisee from applying for a separate
franchise for the provision of telephone, non-cable video or other telecommunications service,
pursuant to applicable law.
Section 57-05.Franchise Characteristics.
A. A franchise authorizes use of City Streets for installing cables,wires, lines,
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optical fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as
necessary and pertinent to operate a cable system to serve subscribers within the City, but does
not expressly or implicitly authorize the Franchisee to provide service to, or install cables, wires,
lines, underground conduit, or any other equipment or facilities upon private property without
owner consent (except for use of compatible easements pursuant to Section 621 of the
Communications Act, 47 U.S.C. § 541(a)(2) or as otherwise may be req u i rai provided by
binding law), 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. Franchises shall be granted in a nondiscriminatory and competitively
neutral manner, consistent with applicable law.
C. All privileges prescribed by a franchise shall be subordinate to any prior lawful
occupancy of the Streets, and the City reserves the right to reasonably designate where a
Franchisee's facilities are to be placed within the Streets. Such designation may include, but not
be limited to, consideration of the availability of space in the rights of way.
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 Section 57-24 hereof and the franchise
agreement.
E. A Franchise granted to an applicant pursuant to this Ordinance to construct,
operate and maintain a cable system within the City, shall be deemed to constitute both a right
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and an obligation on the part of the Franchisee to provide the services and facilities of a cable
system as required by the provisions of this Ordinance and the Franchise. The Franchise
Agreement shall constitute all of the terms and conditions of the Franchise that are finally
negotiated and agreed upon by the City and Franchisee. Franchisee shall be bound by all
documents or other portions of an Application which the City relies upon as material and an
inducement to granting a Franchise, and which are integrated by the City and Franchisee as an
exhibit to the Franchise. All oral representations made by an Applicant, or its representatives,
before the City Commission and on which the Commission explicitly relies in the grant of a
franchise, shall be part of the record and binding upon the Franchisee.
F. Notwithstanding anything to the contrary, in the event that Franchisee, its parent,
affiliate or subsidiary elects to offer to subscribers video programming services through any
means or method not included within the definition of a cable system, including but not limited
to an "open video system", Franchisee shall remain subject to all terms and conditions of the
cable Franchise granted pursuant to this Ordinance, with respect to its operation of the cable
system under the Franchise.
Section 57-06. Franchisee Subject to Other Laws, Police Power.
A. A Franchisee shall at all times be subject to and shall comply with all applicable
Federal, State and local laws. A Franchisee shall at all times be subject to all lawful exercise of
the police power of the City, to the extent not inconsistent with the express terms of a Franchise
Agreement.
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
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•
•
or performance under this Ordinance or a franchise agreement shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance.
Section 57-07.Interpretation of Franchise Terms; Conflicts.
A. The provisions of this Ordinance in effect at the time of a grant of an initial,
renewal, or transfer of a Franchise, shall apply to a Franchise Agreement as if fully set forth in
the Franchise Agreement, and the express terms of this Ordinance in effect at the time of a grant
of an initial, renewal, or transfer of a Franchise, shall prevail over conflicting or inconsistent
provisions in a Franchise Agreement unless such Franchise Agreement expresses an explicit
intent to amend or modify 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.
Section 57-08.Applications for Grant, Renewal, Modification or Transfer of Franchises.
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) a 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 seven (7) copies, be accompanied by the required non-refundable application filing
fee as set forth in Section 57-08(I) hereof, conform to any applicable request for proposals, and
contain all reasonably required information. All applications shall include the names and
addresses of persons authorized to act on behalf of the applicant with respect to the application.
C. All applications accepted for filing shall be made available by the City for
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public inspection.
D. 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, including an unsolicited application which applicant has
subsequently designated as responsive, which does not conform to the reasonable requirements
of a request for proposals may be considered non-responsive and denied on that basis.
E. An application for the grant of an initial franchise 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
found by any court or administrative agency to have violated a security or antitrust law, or to
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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. 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;
5. A description of the applicant's prior experience in cable system
ownership, construction and operation, and identification of communities in which the applicant
or any person controlling the applicant or having more than a ten percent (10%) ownership
interest in applicant has, or has had, a cable franchise or license or any interest therein;
6. 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;
7. 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;
8. For informational purposes, the proposed rate structure, including
projected charges for each service tier, installation, converters, and other equipment or services,
and the applicant's ownership interest in any proposed program services to be delivered over the
cable system;
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9. 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 and any surveys or other research conducted by Franchisee.
10. A description of the applicant's proposal to provide access channels,
facilities, equipment, personnel and financing in support of the city public. City's education
and government related activities.
11. A description of any cable and non-cable telecommunications services
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.
12. 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;
13. If an applicant proposes to provide cable service to an area already served
by an existing cable Franchisee, the identification of the area where the overbuild would occur,
the potential subscriber density in the area which would encompass the overbuild, and the ability
of the Streets to accommodate an additional system;
14. A detailed statement of Franchisee's policies and practices with respect to
granting access to its Broadband platform. cable system for the provision of cable internet
services.
15. If requested, a proposal to provide an I-Net to the City.
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16. A description of the Applicant's proposal to transmit the City's access
channels to neighboring communities, upon request of a neighboring community which receives
services from the City.
17. 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
18. 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.
F. An application for modification of a franchise agreement shall include, at
minimum, the following information:
1. The specific modification requested;
2. The justification for the requested modification, including the impact of
the requested modification on subscribers and others, and the financial impact on the applicant if
the modification is approved or disapproved;
3. A statement whether the modification is 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
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5. An affidavit or declaration of the applicant or authorized officer certifying
the truth and accuracy of the information in the application, and certifying that the application is
consistent with all federal and state law requirements.
G. An application for renewal of a franchise shall comply with the requirements of
Section 57-23 hereof.
H. An application for approval of a transfer of a franchise shall comply with the
requirements of Section 57-24 hereof.
I. 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: $ 10,000
2) For renewal of a franchise: $ 10,000
3) For a transfer of a franchise
(other than a pro forma transfer): $ 2,500
4) For a pro forma transfer of a franchise: $ 1,500
5) For modification of a franchise agreement
pursuant to 47 U.S.C. § 545: $ 2,500
6) For any other relief: $ 2,500
The purpose of the filing fee is to defray a portion of the City's cost in processing an
application. Such fee shall be credited against amounts due under Section 57-09(D) herein. 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,
and shall not be passed through to subscribers.
Section 57-09.Grant of Franchises.
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A. The City may grant a franchise for a period not to exceed fifteen (15) years.
B. In evaluating an application for a franchise, the City may consider, among other
things, the following factors: the applicant's technical, financial, and legal qualifications to
construct and operate the proposed system; the adequacy of the proposed construction
arrangements, if any, facilities, equipment, and services based on the public convenience, safety
and welfare; the applicant's experience in constructing and operating cable systems and
providing cable service in other communities, if any; the ability of City Streets to accommodate
the proposed system, if any; the potential disruption to users of City Streets and any resultant
inconvenience to the public; and whether the proposal will meet reasonably anticipated
community needs and serve the public interest. Evaluation by the City shall not be based on the
content of the programming the applicant proposes to provide.
C. The City shall hold a public hearing to consider an application or applications.
The City shall not consider an application for a franchise unless and until applicant has submitted
a proposed Franchise Agreement which it is prepared to execute. 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 or
staff, and any other information relevant to the application(s), and the terms and conditions
contained in the proposed franchise agreement, the City shall decide by resolution whether to
approve or deny the proposed franchise agreement(s), and thereby grant or deny a franchise. The
City may make the grant of a franchise conditioned upon the completion of construction within a
reasonably prescribed time or upon the performance of other specific obligations which are to be
set forth in the franchise agreement, specifying that failure to comply with the condition will
cause the franchise to become null and void.
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D. Franchisee shall reimburse the City for all costs and expenses incurred by the City
in considering and processing the application, including but not limited to consulting and legal
costs, less the amount of the filing fee set pursuant to Section 57-08(I). Within five (5) calendar
days prior to the planned date of the resolution approving or denying the franchise agreement or
renewal or modification or transfer thereof by the City Commission, the City shall advise the
Franchisee of the amount of the processing fee and its method of calculation. If the processing
fee is not paid to the City within ten (10) calendar days of the date of the City Commission
resolution approving or denying the franchise agreement or a modification or transfer thereof,
any approval granted by such resolution will be null and void without further action by City.
This processing fee is 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 shall not be credited against the franchise fee imposed in a franchise
agreement and shall not be passed through to subscribers up to the limit of the application fee
required under Section 57-08(I).
Section 57-10.Insurance; Surety; Indemnification.
A. A Franchisee shall maintain, and by its acceptance of the franchise specifically
agrees that it will maintain, throughout the entire term of the franchise including any renewals
thereof, the following liability insurance coverage insuring the Franchisee and naming the City as
an additional insured: worker's compensation and employer liability insurance to meet all
requirements of Florida 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:
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1. $250,000 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
minimums where necessary to reflect changing liability exposure and limits or where required by
law.
C. A Franchisee shall keep on file with the City copies of certificates of insurance
which certificates shall indicate evidence of payment of the required premiums and shall indicate
that the City, its 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 .
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
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of its cable system, the conduct of Franchisee's business in the City, or in any way arising out of
the Franchisee's enjoyment or exercise of a franchise granted hereunder, 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 to the extent caused by the misconduct or :oI negligence of the City, its officials,
boards, commissioners, agents or employees. This provision includes, but is not limited to, the
City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings; and claims arising out of copyright infringements or a failure by the Franchisee to
secure consents from the owners, authorized distributors, or providers of programs to be
delivered by the cable system, claims arising out of Section 638 of the Communications Act, 47
U.S.C. § 558, and claims against the Franchisee for invasion of the right of privacy, defamation
of any person, firm or corporation, or the violation or infringement of any copyright, 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 and at its own cost if in the City's
reasonable belief there exists or may exist a conflict, potential conflict or appearance of a
conflict.
Section 57-11.Security Fund.
A. A franchise agreement shall provide that, prior to the franchise becoming
effective, the Franchisee shall post with the City a cash deposit, performance bond, letter of
credit, or such other form of security as determined by the City in its sole discretion and as set
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forth in a Franchise Agreement, to be used as a security fund to ensure the Franchisee's faithful
performance of and compliance with all provisions of this Ordinance, the franchise agreement,
and other applicable law, and compliance with all orders, permits and directions of the City, and
the payment by the Franchisee of any claims, liens, fees, or taxes due the City which arise by
reason of the construction, operation or maintenance of the system.
B. The amount of the security fund shall be set in the Franchise, and shall be an
amount that, under circumstances existing at the time, that is necessary to protect the public
against financial loss, 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; but in no event shall be less than $50,000.00. The City reserves the right to increase
or decrease the minimum security fund amount required by this Section as it may deem
necessary from time to time, provided that such change shall not affect an existing Franchise
unless specifically so provided in a Franchise Agreement.
C. The franchise agreement may provide for procedures to be followed with respect
to the security fund which exceed the minimum requirements contained herein. Neither the
posting of the cash deposit or filing of an indemnity bond or any form of surety bond 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 security fund or otherwise.
D. The rights reserved to the City with respect to the security fund or an indemnity
bond 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
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right with respect to such security fund or indemnity bond will affect any other right the City
may have.
E. If the Franchisee fails to pay to the City any compensation within the time fixed
herein or any fines, or fails to repay the City within thirty (30) days any damages, costs or
expenses which the City is compelled to pay by reason of any act or default of the Franchisee in
connection with the franchise, or fails, after ten (10) business days written notice of such failure
by the City to comply with any provision of the franchise agreement which the City reasonably
determines can be remedied by demand on the security fund, the City may withdraw the amount
thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the City
shall notify the licensee of the amount and the date thereof.
F. Within fifteen (15) days after notice to it that any amount has been withdrawn
from the security fund deposited pursuant to subsection A of this section, the Franchisee shall
pay to, or deposit with, the City a sum sufficient to restore such security fund to the amounts
specified in Subsection A. Failure to replenish the security fund shall subject the Franchisee to
penalties as set forth in Section 57-22, and interest on the amount in question shall accrue at the
maximum rate under applicable law.
G. That portion of the security fund deposited pursuant to this Section necessary to
compensate the City for damages and costs sustained shall become the property of the City in the
event that a franchise granted pursuant to this Ordinance is canceled or terminated by reason of
the default of the Franchisee. The Franchisee, however, shall be entitled to the return of such
security fund, or portion thereof, with interest, as remains on deposit with the City at the
expiration of the term of the franchise, provided that there is then no outstanding default on the
part of the Franchisee.
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H. In the event Franchisee disputes or otherwise challenges an amount determined by
the City to be a deficiency in the security fund under Subsection F hereof, the amount in question
shall be placed in an escrow account until such time as the dispute is resolved. The placement by
Franchisee of amounts in escrow pending resolution of a dispute under this Section shall toll the
accrual of penalties or interest under this Section.
Section 57-12. Construction Bond.
A. A franchise agreement shall provide that, prior to any cable system construction,
upgrade, rebuild or other 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
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 57-11 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
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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 thirty
(30) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
E. The rights reserved by the City with respect to any construction bond established
pursuant to this section are in addition to all other rights and remedies the City may have under
this Ordinance , the franchise agreement, or at law or equity.
Section 57-13.Minimum Facilities and Services.
A. Notwithstanding anything herein to the contrary, when reasonably practicable but
no later than twelve (12) months after notice from the City, a Franchisee shall make such
technically and commercially feasible improvements to its System as may be necessary to bring
the System to the State of the Art. The State of the Art shall be made available to all
Subscribers, by category, on the same basis. The availability of a specific level of cable system
technical performance, capacity, equipment, components and service (without reference to the
content of service) on any cable system owned or operated by the Franchisee, its parents,
affiliates or subsidiaries serving the City of Orlando shall create a presumption of technical and
commercial feasibility, provided, however, that the Franchisee may make a showing to the
contrary which, if sufficient, shall overcome the presumption. Such showing shall be made to
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the City Commission, which shall determine whether a showing of competent and substantial
evidence sufficient to overcome the presumption has been made, subject to a challenge to such
determination in an appropriate legal proceeding. The City shall grant extensions of the time
within which a Franchisee must comply with the obligations set forth herein, to accommodate
the process to be afforded a Franchisee hereunder, for good cause shown (including evidence that
the Franchisee has commenced necessary measures to comply with the obligations herein), but in
no event to exceed twelve (12) months.
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 MHZ 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 and a Franchisee shall agree in a franchise agreement that a
Franchisee provide access channels, facilities and other support for educational and/or
governmental use.
3. Cablecasting of City Commission meetings live to all Subscribers located
within the City may be provided by the City on a government channel.
4. A cable system shall provide leased access channels as required by federal
law.
5. (a) A Franchisee shall, upon request, provide at least one cable
television service outlet and when technically feasible and available in the area, at least one
standard installation connection to a cable on-line service to each public elementary and
secondary school within its franchise area that is passed by its cable system, and shall provide
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basic cable service and on-line cable internet service to those installations at no cost to the City
or school involved, and shall charge no more than its time and material costs for any additional
cable service outlets (including cable internet service) to such facilities.
(b) A Franchisee shall, upon request, provide at least one standard
installation for basic cable television service to each and every City government building within
its franchise area that is passed by its cable system and shall provide basic cable service to those
installations at no cost to the City and shall charge no more than its costs for any additional basic
cable service outlets to such facilities.
6. 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, at minimum consistent with FCC regulations.
7. A Franchisee shall make available to its subscribers equipment capable of
decoding closed circuit captioning information for the hearing impaired. A Franchisee may
impose a reasonable charge for such equipment.
8. Standard installation shall consist of a drop, not exceeding one hundred
twenty five (125) feet from the cable plant to the nearest part of a Subscriber's residence; or, if a
commercial subscriber, the nearest part of Subscriber's place of business.
9. Any and all rights which the City may have, now or in the future, to
regulate a Franchisee's provision of cable Internet services are hereby reserved by the City and
may be exercised at any time throughout the term of the Franchise, unless otherwise prohibited
by applicable law. If a Franchisee provides access to its system to internet service providers on
an open, non-discriminatory basis on a cable system owned or operated by the Franchisee, its
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parents, affiliates or subsidiaries serving the City of Orlando, Franchisee shall provide access on
such basis on any service which the Franchisee provides in the City.
10. A Franchisee shall, at all times during the term of a Franchise, maintain a
State-of-the-Art cable system within the Franchise Area, as that term is defined in this
Ordinance, and consistent with the provisions of Subsection A hereof.
B. A Franchisee shall make cable service available to every dwelling within the
Franchise area as defined in a franchise agreement unless prohibited by a private property owner
from doing so; provided that such dwelling is in an area of density of at least twenty-five (25)
dwelling units per cable mile. For purposes of this section, if a Franchisee has not been granted
the authority by an owner or associations of owners to extend its facilities to individual
apartments, condominiums, and co-operative units within the interior or a multiple-unit buildings
or complex of buildings, then any such multiple-unit building or complex of buildings shall be
considered a single dwelling unit. Density per cable mile shall be computed by dividing the
number of dwelling units in the area by the length, in miles or fractions thereof, of the total
amount of aerial or underground cable necessary to make service available to the dwelling units
in such area in accordance with the Franchisee's system design parameters. The cable length
shall be measured from the nearest point of access to the then-existing system, provided that
extension is technically feasible from that point of access, and located within the public streets.
C. Notwithstanding anything herein to the contrary, service shall be required for new
developments located adjacent to an area which already meets the density requirement in B
above, but only to the extent, in whole or in part, to which such development has been platted
consistent with the density requirement in B above, and public utility facilities are being or
have been extended.
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•
Section 57-14. Technical Standards.
A. Any cable system within the City shall at minimum meet the technical standards
of the FCC or other applicable federal or state technical standards, including any such standards
as hereinafter may be amended or adopted including but not limited to digital transmission,
HDTV or other advanced technologies. All television signals transmitted on a cable system shall
include any closed circuit captioning information for the hearing impaired received by the
Franchisee's cable system. Antennas, supporting structures, and outside plant used in the system
shall be designed to comply with all generally accepted industry practices and standards and with
all federal, state, county, City and/or utility laws, ordinances, rules and regulations.
B. All construction, installation and maintenance shall comply with the National
Electrical Safety Code, the National Electric Code, all applicable building codes, and all laws 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. At any time during the term of a Franchise, the City shall have the
right to inspect the cable system facilities in the streets during and after their construction to
ensure compliance with the requirements of the franchise agreement, this Ordinance, and FCC
standards.
D. The Franchisee shall notify the City within ten (10) days of Franchisee's failure
of proof of performance or other test required in subsection C above.
E. A Franchisee shall not design, install or operate its facilities in a manner that will
interfere with the signals of any broadcast station, the preexisting facilities of any public utility,
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the preexisting cable system of another Franchisee, or individual or master antennas used for
receiving television or other broadcast signals.
F. Franchisee shall provide access channels, facilities, and financial support, in
accordance with the terms of a Franchise.
Section 57-15. Access Channels and Facilities.
A. Applications for an initial or renewal franchise shall include proposals for the
provision of access channels and equipment and facilities relating to such channels sufficient to
meet community needs as determined by the City. Any franchisee granted an initial or renewal
franchise on or after the effective date hereof, shall, at minimum, provide the City for its
exclusive use with two (2) activated access channels for, educational and/or governmental use, as
determined by the City.
B. A City may, as provided in a Franchise Agreement, require Franchisee to provide
use of Franchisee's studio equipment and technical services, at no cost to the City, for production
of live and video-taped municipal programs, subject to reasonable availability and scheduling
requirements of the Franchisee.
C. The City may require a Franchisee to provide equipment and other facilities
and/or support in order to facilitate the City's operation of an educational or governmental access
channel, as provided in a fi-an:,hi Franchise.
D. As provided in a Franchise, a Franchisee may be required to provide, at no cost to
the City, trained personnel to assist the City in production of live and video-taped municipal
programs at locations other than the City's studio, or Franchisee's studio as the case may be, as
designated by the City.
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E. Applications for an initial or renewal franchise may and, at the City's request,
shall include proposals for the provision of an Institutional Network interconnecting City,
educational institution, and/or other public facilities.
F. Applications for an initial or renewal franchise may and, at the City's request,
shall include proposal for the interconnection of Franchisee to any or all other franchised cable
systems operating within the City or in areas adjacent to the City, provided that interconnection
is technically feasible and Franchisee and the other operator agree upon reasonable
interconnection arrangements, including an allocation of the costs of interconnection between
Franchisee and such other operator that is reasonable in light of the relative benefits and burdens,
including consideration of support provided for educational and governmental access purposes.
G. A franchise may provide for a financial grant in lieu of some or all of the
facilities, equipment, and services referenced in Section 57-15(B)(C)(D)(E).
Section 57-16. Franchise Fee.
A. A Franchisee, as compensation for the privilege granted under a franchise for the
use of the City's streets to construct and 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 to
provide cable services during the term of its franchise; or (2) in the event the Communications
Act or other applicable law is amended to permit the City to assess a franchise fee of a greater
specific amount or on a broader revenue basis than that specified in (1) above, the Franchisee
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. In no event
shall a Franchisee pay a Franchise fee greater than the maximum permitted by applicable law.
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B. A Franchisee shall pay the franchise fee due to the City on a quarterly basis.
Payment for each quarter shall be made to the City not later than forty five (45) calendar days
after the end of each calendar quarter.
C. A Franchisee shall file with the City, on a quarterly basis with the payment of the
franchise fee, a financial statement setting forth the computation of gross revenues used to
calculate the franchise fee for the preceding quarter and a detailed explanation of the method of
computation. The statement shall be certified by a certified public accountant and the
Franchisee's chief financial or other duly authorized officer. The Franchisee will bear the cost of
the preparation of such financial statements.
D. Subject to applicable law, no acceptance by the City of any franchise fee payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the City may have for additional
sums payable.
E. The franchise fee payment is not a payment in lieu of any other tax, fee or
assessment.
F. The City may, from time to time, and upon reasonable notice, inspect, and audit
any and all books and records of the Franchisee, for the current and five (5) prior years,
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 two percent (2%) of
the franchise fees actually paid excluding amounts underpaid due to miscoded accounts where
the City has failed to advise the Franchisee of an annexation of occupicd dA
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Franchisee shall make all books and records necessary to satisfactorily perform the audit readily
available to the auditors at the system headquarters in Central Florida, or such other location
within Orange County, for inspection and copying.
G. In the event that a franchise fee payment is not received by the City on or before
the due date set forth in subsection (B) above, or is underpaid, the Franchisee will pay a late
charge of eighteen percent (18%) of the amount of the unpaid or underpaid franchise fee
payment, computed on an annual basis, 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.
H. 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 fiscal year.
Adjustments will be made at that time for franchise fees due to the date that the Franchisee's
operations ceased. Payments under this subsection shall be due and payable within forty five
(45) days of the date the determination of fees due to the City is made, and subject to late charges
as described in Subsection G above.
I. Any transaction or arrangement which has the effect of circumventing payment of
required franchise fee and/or evasion of payment of franchise fee by non-collection,
non-reporting of Gross Revenue, collection of revenues by Affiliates, bartering, or any other
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means which evade the actual collection of revenues subject to the franchise fee by Franchisee is
prohibited
J. [DARK FIBER L.\\GL`.\GE TO BE DISCUSSED;
Section 57-17.Reports and Records.
A. Within six (6) months of the close of its fiscal year, a Franchisee shall provide the
City an annual report that, at minimum, includes the following information:
1. A summary of the previous year's activities in development of the State of
the Art of cable systems and the system serving the City including but not limited to, services
and products initiated or discontinued, new technologies, number of subscribers, homes passed,
and miles of cable distribution plant in service. The summary shall also include a comparison of
any construction, including system upgrades, during the year with any projections previously
provided to the City, as well as rate and charge increases and/or decreases for the previous fiscal
year. It is the obligation of the Franchisee to include within this report any and all information
necessary to evaluate Franchisee's system as compared to the definition of"State of the Art" as
defined in Section 57-2.
2. A financial statement, including a statement of sources of revenues for the
Franchise Area. The statement shall be audited if Franchisee has audited statements performed
in its normal course of business. If not, the statement shall be certified by the Franchisee's chief
financial officer or other duly authorized financial officer of the Franchisee. The statement shall
include notes that specify all significant accounting policies and practices upon which it is based.
3. To the extent there have been changes from maps already filed by
Franchisee, a copy of updated maps depicting the location of all cable plant, showing areas
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served and locations of all trunk lines and feeder lines in the City. Upon request by the City,
such maps shall be provided in digitized form at Franchisee's expense.
4. Upon a request, a summary of subscriber or resident written complaints
and/or complaints requiring a service call, identifying the number and nature of complaints and
their disposition. Where complaints involve recurrent system problems, the nature of each
problem and the corrective measures taken shall be identified. More detailed information
concerning complaints shall be submitted upon written request of the City.
5. Upon written request, a summary of the number of outages exceeding one
(1) hour, including number of planned outages, number of outages during prime viewing hours
(8:00 p.m. - 11:00 p.m. daily), and number of outages by duration including number of
subscribers affected.
6. If the Franchisee is a corporation, a list of officers and members of the
board of directors; the officers and members of the board of directors of any parent corporation;
and if the Franchisee or its parent corporation's stock or ownership interests are publicly traded,
a copy of its most recent annual report.
7. If the Franchisee is a partnership, a list of the partners, including any
limited partners, and their addresses; and if the general partner is a corporation, a list of officers
and members of the board of directors or the corporate general partner, and the officers and
directors of any parent corporation; and where the general partner or its parent corporation's
ownership interests are publicly traded, a copy of its most recent annual report.
8. A list of all persons holding five percent (5%) or more ownership or
otherwise cognizable interest in the Franchisee pursuant to 47 C.F.R. 76.501.
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•
9. Upon request, a copy of the Franchisee's rules and regulations applicable
to Subscribers of the Cable System.
10. 4 Upon request, a report on the number of senior citizen, economically
disadvantaged or handicapped subscribers receiving any rate discounts, if any, and the amount of
any such discounts for specific services if Franchisee offers separate rates or discounts for those
categories of subscribers.
11. The number of multiple dwelling units being served under bulk agreements.
12. A full schedule and description of all products, services, and equipment offer
to cable subscribers, service hours and location of the Franchisee's customer service office or
offices available to subscribers, and a schedule of all rates, fees and charges for all product,
services and equipment provided over the Cable System.
13. A report on the number of total subscribers served by the Franchisee in
the Cable System.
B. Upon written request by the City, a Franchisee shall provide, on an annual basis,
the following documents to the City as received or filed, without regard to whether the
documents are filed by the Franchisee or an affiliate:
1. Annual report of the Franchisee or its parent or any affiliate of Franchisee
which controls Franchisee and issues an annual report;
2. Copyright filings reflecting the operation of the system;
3. FCC Forms 325 and 395A for the system, or their successor forms;
4. Any and all pleadings, petitions, applications, communications, reports
and documents (collectively referred to as "filings") submitted by or on behalf of the Franchisee
to the FCC, SEC or any state or federal agency, court or regulatory commission which filings
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may impact the Franchisee's operation of the Franchisee's cable system in the City or that may
impact the City's rights or obligations under this Ordinance of the Franchise Agreement issued
pursuant to this Ordinance and any and all responses, if any, to the above mentioned filings.
5. Any and all notices of deficiency, forfeiture, or documents instituting any
investigation, civil or criminal proceeding issued by any state or federal agency regarding the
system, Franchisee, or any Affiliate of Franchisee, provided, however, that any such notice or
documents relating to an Affiliate of Franchisee need be provided only to the extent the same
may concern Franchisee's operations in the City. For example, a notice that an Affiliate which
has a management contract for the City's system was not in compliance with FCC EEO
requirements with respect to its activities in the City would be deemed to affect or bear on
operations in the City.
6. Any request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy.
7. Notwithstanding anything to the contrary, the Franchisee agrees to provide
the City, within thirty (30) days of filing or receipt of such, any document filed with or received
from a governmental agency that may adversely impact Franchisee's obligations under its
Franchise with respect to the construction, operation or maintenance of the Franchisee's cable
system or the City's rights with respect thereto.
C. Upon reasonable notice and during normal business hours, a Franchisee shall
make a complete set of books and records available for inspection and audit by the City in the
Central Florida Area, for purposes of ascertaining compliance with requirements of this
Ordinance and the franchise agreement.
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D. Any materials requested by the City which are deemed proprietary and
confidential under applicable law shall be made available to the City for review and inspection
(but not copying or removal), but shall not be required to be filed with the City unless such filing
is required by applicable law. To the extent consistent with applicable law, the City shall
maintain the confidentiality of information provided by Franchisee, when designated as
proprietary and confidential by Franchisee.
Section 57-18.Customer Service Requirements.
A. A Franchisee shall at a minimum maintain all parts of its system in good
condition and in accordance with FCC standards or such more stringent standards provided in
this Ordinance or a Franchise Agreement. Sufficient employees shall be retained to provide safe,
adequate and prompt service for all of its customers and facilities, as set forth in this Ordinance
and a Franchise Agreement. The customer service requirements set forth herein are applicable to
all services subject to the Ordinance. Franchisee's material failure to comply with this
subsection shall result in a 1-:fund ordcr in the amount of a SubGcriber's monthly bill, and a fine
in the amount of Three Hundred Fifty Dollars ($350.00), per violation, per day or part thereof
that the violation continues.
B. A Franchisee shall maintain at least one (1) conveniently located business office
and service center within five (5) miles of the City limits, to which Subscribers may telephone
without incurring added message units or toll charges. This business office shall be open at
minimumduring normal business hours, Monday through Friday, and some weekend and evening
hours. Further, Franchisee shall locate, construct, design, staff, operate and maintain said
office(s) so as to provide all Subscribers, including but not limited to those Subscribers who may
be elderly, disabled or otherwise impaired, with access to its office, in accordance with
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applicable law. The office shall make available for all customers sufficient covered waiting areas
and adequate seating capacity in an air conditioned space. Such office must have adequate
counter personnel to keep wait time to a reasonable length. Franchisee's material failure to
comply with this subsection shall result in a fine in the amount of Three Hundred Fifty Dollars
($350.00)per violation, per day or part thereof that the violation continues.
C. Franchisee shall maintain a listed local, toll-free telephone number under the
name by which Franchisee is doing business in the City, 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 shall be available to respond to customer telephone inquiries,
twenty-four (24) hours per day, seven (7) days per week including holidays. Franchisee's
material failure to comply with this subsection may result in a fine in the amount of Two
Hundred Dollars ($200.00), per violation, per day or part thereof that the violation continues.
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 percent (3%) of the time. These standards shall be met no less than ninety percent (90%) of
the time under normal operating conditions, measured on a quarterly basis. Franchisee shall
maintain performance data necessary to confirm compliance with the standards set forth herein,
and such records shall be made available for review and inspection by the City or its designee
pursuant to Section 57-17 of this Ordinance. Such records shall be maintained at the franchise
level, or for all the franchise areas in the same regional dig ision Division of the Franchisee.
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Franchisee's material failure to comply with this subsection shall result in a fine in the amount
Three Hundred Fifty Dollars ($350.00) per violation, per day or part thereof that the violation
continues.
E. A Franchisee shall employ and maintain sufficient qualified personnel a and/or
equipment to be available (1) to accept payments; (2) to exchange or accept converters or other
equipment during normal business hours; (3) 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;
(4) to undertake normal repairs, by the next business day; (5) to enable a service technician to
respond to service calls twenty-four (24) hours per day, under normal operating conditions,
seven (7) days a week including holidays, when more than five (5) Subscribers served from the
same nearest active electronic device, such as an amplifier or node, call with the same technical
complaint. Franchisee's material failure to comply with this subsection shall result in a fine in
the amount of Two Hundred Dollars ($200.00) per violation, per day or part thereof that the
violation continues.
F. Franchisee must meet each of the following standards no less than ninety-five(95)
percent of the time under normal operating conditions as measured on a quarterly basis:
1. Standard installation work shall be performed within seven (7) calendar
days after an order has been placed except in those instances where a Subscriber specifically
requests an installation date beyond the seven (7) calendar day period. "Standard" installations
are up to one hundred and twenty-five (125) feet from the existing distribution system. If
scheduled installation is neither started nor completed as scheduled, the Subscriber shall be
telephoned by an employee of the Franchisee the same day;
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2. Franchisee shall respond to service interruptions promptly and in no event
later than twenty-four (24) hours after the interruption becomes known to Franchisee. Other
service problems shall be responded to promptly and in no event later than the next business day
after the problem becomes known to the Franchisee;
3. The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities shall 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." These options shall be clearly explained to the customer at the time of scheduling;
4. Franchisee may not cancel an appointment with a Subscriber after the
close of business on the business day prior to the scheduled appointment;
5. If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer shall be made and the appointment rescheduled
as necessary at a time which is convenient for the customer.
6. Franchisee's material failure to comply with this subsection shall result in
a fine in the amount of Two Hundred Dollars ($200.00), per violation, per day or part thereof that
the violation continues.
G. Franchisee shall institute and maintain a program providing a reaosnable
subscriber credit for missed appointed appointments. The City's determination that
Franchisee's program is unreasonable and/or Franchisee's failure to comply with this subsection
shall result in a fine in the amount of One Hundred Dollars ($100) per violation, per day or part
thereof that the violation continues.
H. Disconnection.
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1. Voluntary Disconnection.
a. A Subscriber may terminate service at any time.
b. A Franchisee shall promptly disconnect any Subscriber who so
requests from the Cable System of the Franchisee. No period of notice prior to voluntary
termination of service may be required of Subscribers by any Franchisee. No charge may be
imposed by any Franchisee for such voluntary disconnection, or for any Cable Services delivered
after the date of the requested disconnection.
c. A S.ih:;crib,2r ;iii.:. a:;kcd, but not raquircd. to di:;conncct tho
Franchisee may hold a Subscriber responsible for the return of equipment of the Franchisee
rind r:tarn it to the bun oflics which has been provided for Subscribers use. The
Franchise may request the Subscribers to return the equipment to Franchisee's office butt
if the Subscriber requests, Franchisee shall pick up the equipment at the Subscriber's
premises, subject to (b) above.
d. Any security deposit and/or other funds due the Subscriber shall be
refunded on disconnected accounts after any customer premises equipment including all
converters but excluding wiring have been recovered by the Franchisee. The refund process shall
take a maximum of forty-five (45) days from the date equipment is returned to Franchisee 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 service outlet of the
Subscriber; however, such disconnection shall not be effected until twenty-five (25) 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
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twenty-five (25) days of the due date and after notice of disconnection has been given, the
Franchisee shall not disconnect. After
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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.
Franchisee reserves the right to deny service to any customer who has been repeatedly
disconnected for non-payment of services to the extent such rights are consistent with applicable
state and federal Law.
3. With respect to any disconnection, whether requested or involuntary, a
Franchisee shall comply with the rules and regulations of the FCC and applicable Law with
respect to ownership, sale, removal and abandonment of home wiring. Failure to comply with
such rules including, but not limited to providing applicable notice to Subscribers and property
owners shall be considered a violation of this Ordinance.
4. Franchisee's material failure to comply with this subsection may result in
a fine in the amount of Two Hundred Dollars ($200.00) per violation, per day or part thereof that
the violation continues.
I. Franchisee shall intentionally interrupt service only for good cause and for the
shortest time possible and shall use its best efforts to minimize the number of service
interruptions between 6:00 p.m. and 11:00 p.m. Franchisee shall maintain a written log for all
intentional service interruptions. Franchisee's material failure to comply with this subsection
may result in a fine in the amount of Three Hundred Dollars ($300) per violation, per day or part
thereof that the violation continues.
J. Franchisee shall notify the City Manager or designee immediately if a service
interruption affects fifty (50) or more Subscribers for a time period greater than four (4)
hours. The City Manager, in his or her discretion, shall establish appropriate methods for
the
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notification required herein, including any procedures for notification after normal
business hours. Franchisee' failure to comply with this subsection shall result in a fine in
the amount of Two Hundred Dollars ($200.00) per violation, per day or part thereof that
the violation continues.
K. Franchisee shall cause all of its field employees to wear a picture identification
badge indicating employment by Franchisee. This badge shall be clearly visible to the public.
All company vehicles shall display the company name and logo, if any, in a manner clearly
visible to the public. Contractor vehicles shall display the contractor name, telephone number,
and contractor license number, +f consistent with applicable law. Employees of contractors
working for Franchisee shall wear a picture identification badge. Franchisee's material failure to
comply with this subsection may result in a fine in the amount of One Hundred Dollars ($100.00)
per violation, per day or part thereof that the violation continues.
4 L. A Franchisee shall develop written procedures for the investigation and resolution
of all Subscriber or City resident complaints, including, but not limited to, those regarding the
quality of service and equipment malfunction, which procedures shall be provided upon request
to the City Manager. The good faith or lack thereof of the Franchisee in attempting to resolve
Subscriber and resident complaints in a fair and equitable manner shall be considered in
connection with the renewal application of the Franchisee, to the extent consistent with
applicable law. Franchisee shall maintain a complete list of all complaints requiring a service
call not resolved within seven (7) days of receipt and the measures taken to resolve those
complaints. This list shall be provided to the City upon request. Franchisee shall also maintain a
list of all written complaints received, which list shall be available to the City upon request.
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Franchisee's failure to comply with this subsection shall result in a fine in the amount of Three
Hundred Dollars ($300.00)per violation, per day or part thereof that the violation continues.
b.M. Upon reasonable request by the City, Franchisee shall permit the City Manager or
his/her designee to inspect and test the technical equipment and facilities upon reasonable notice
not to be less than forty-eight (48) hours, and accompanied by an employee of the Franchisee.
Franchisee's failure to comply with this subsection shall result in a fine in the amount of Three
Hundred Fifty Dollars ($350.00) per violation, per day or part thereof that the violation
continues.
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 maintenance policies;
c. All products and services offered;
d. Prices and service options;
e. Channel positions of programming carried on the system;
f. The Franchisee's procedures for the receipt and resolution of
customer complaints, the address of the Franchisee and telephone number to which complaints
may be reported, and the hours of operation;
g. The telephone number and address of the City, and as required by
County ordinance, i f ani, the Count} office designated to handle cable complaints and inquiries
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shall be printed on the hack oldie bill. The information shall be placed so as to not be confused
with similar information for Franchisee o,- C Dant%;
h. The availability and costs of a "lock-out" device and/or other
parental control mechanisms, if any;
i. The information of the Franchisee, collection, and disclosure
policies for the protection of the privacy of the Subscriber.
j. Franchisee's material failure to comply with this subsection may
result in a fine in the amount of One Hundred Dollars ($100.00) per violation, per day or part
thereof that the violation continues.
2. To the extent a Franchisee's billing schedule allows, each Franchisee shall
provide written notice in or on its monthly billing, at the request of the City, of any City meeting
regarding requests or applications by the Franchisee for renewal, transfer or modification of its
Franchise. The City shall make such a request in writing, with reasonable notice prior to the
mailing of any billing by Franchisee, such that Franchisee's regular billing cycle shall not be
interrupted. 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
considered part of the Franchise fee, as defined in Section 622 of the Communications Act, 47
U.S.C. § 542. Franchisee's material failure to comply with this subsection shall result in a fine in
the amount of Three Hundred Fifty Dollars ($350.00) per violation, per day or part thereof that
the violation continues. In addition, Franchisee shall, consistent with applicable law, provide
written notice in or on its monthly billing of any change in service, rates or charges to subscribers
unless such written notification takes place by separate mailing or other means.
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3. Franchisee bills shall be clear, concise and understandable to Subscribers.
Franchisee's material failure to comply with this subsection may result in a fine in the amount of
One Hundred Dollars ($100.00)per violation, per day or part thereof that the violation continues.
4. Credits for service or refunds shall be issued no later than thirty (30) days
of the next billing cycle of the customer following the determination that a credit or refund is
warranted. Franchisee's failure to comply with this subsection may result in a fine in the amount
of One Hundred Dollars ($100.00) per violation, per day or part thereof that the violation
continues.
5. A Franchisee shall provide Subscribers, the City Commission, and the
City Manager 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 whenever practicable. Franchisee's material failure to comply
with this subsection may result in a fine in the amount of One Hundred Dollars ($100) per
violation,per day or part thereof that the violation continues.
0. Except in the case of a system malfunction, upon a Subscriber's request, a
Franchisee shall provide a refund or credit to the account of the Subscriber, prorated on a daily
basis, for any period of four (4) hours or more within a twenty-four (24) hour period during
which a Subscriber experienced an interruption of service or substantial impairment of service,
whether due to a System Malfunction or other cause. No refunds shall be due for service
interruptions directly related to a rebuild, upgrade or routine maintenance of the Cable System
which is planned, noticed properly to Subscribers, and occurs during a time other than between
6:00 p.m. and 11:00 p.m. and lasts for four (4) hours or less. Franchisee's material failure to
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comply with this subsection may result in a fine in the amount of Two Hundred Dollars
($200.00)per violation, per day or part thereof that the violation continues.
A P. Billing.
1. The first billing statement of the Franchisee after a new installation or
service change shall be pro-rated as appropriate and shall reflect any security deposit.
2. The billing statement of the Franchisee must be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Statements shall also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
3. Any balance not received within ten (10) days after the due date may be
assessed an administrative charge. However, in no event shall administrative charges for an
overdue balance accumulated against any individual subscriber exceed twenty five dollars
($25.00). The charge shall appear on the billing statement for the following month. Any
administrative charge applied to unpaid bills shall be subject to regulation by the City consistent
with applicable law. 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 payment can be remitted in
Person at the office of the Franchisee in the City and inform the Subscriber of the address of that
office where payment can be made.
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5. Franchisee's material failure to comply with this subsection may result in
a fine in the amount of One Hundred Dollars ($100) per violation, per day or part thereof that the
violation continues.
P.Q. No charge may be made for any service or product which the Subscriber has not
affirmatively requested by name. Subscriber's failure to refuse a cable operator's proposal to
provide such service or equipment is not an affirmative request for service or equipment. A
Subscriber's affirmative request for service or equipment may be made orally or in writing.
1. Franchisee's material failure to comply with this subsection shall result in
a fine in the amount of One Hundred Dollars ($100) per violation, per day or part thereof that the
violation continues.
Q R. The Franchisee shall, upon request, certify in writing to the City, 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. At the request of the City, the
Franchisee shall submit such documentation as may be required to demonstrate compliance with
this Section. This documentation shall be submitted within forty five (45) days of the receipt by
the Franchisee of the City's request.
R S. Responsibility for the administration of this Ordinance, and any Franchise granted
pursuant to this Ordinance, and for the resolution of all complaints referred to the City against a
Franchisee regarding the quality of service, equipment malfunctions, and related matters, is
hereby delegated to the City Manager (who can in turn designate to a City employee), who is
empowered, among other things, to settle, or compromise any controversy arising from
operations of the Franchisee, on behalf of the City, in accordance with the best interests of the
public. In cases where requests for service have been ignored or in cases where the service
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provided is unsatisfactory for whatever reason, the City Manager or designee, hereafter referred
to jointly as City Manager, shall have the power to require the Franchisee to provide service
consistent with the terms of the Franchise, if in the opinion of the City Manager or designee such
request for service is reasonable. Any Person aggrieved by a decision of the City Manager,
including the Franchisee, may appeal the matter to the City Commission for hearing and
determination. The City Commission may accept, reject or modify the decision of the City
Manager. No adjustment, settlement, or compromise, whether instituted by the City Manager or
by the City Commission shall be contrary to the provisions of this Ordinance or any Franchise
agreement issued pursuant to this Ordinance, and neither the City Manager nor the City
Commission, in the adjustment, settlement, or compromise of any controversy shall have the
right or authority to add to, modify or delete any provision of this Ordinance or of the Franchise,
or to interfere with any rights of Subscribers or any Franchisee under applicable federal, or state
Law or private contract.
g T. 1. The fines to which the Franchisee is subject as set forth in this Section are
to be assessed by the City Commission on a per violation basis, with each day of a continuing
violation constituting a separate violation. Where a credit required by this Section is not possible
because service has been terminated, Franchisee shall issue a refund to the former Subscriber for
the appropriate amount.
2. Prior to the City Commission's assessment of a fine pursuant to this
Ordinance, the City Manager shall mail to the Franchisee a written notice, by hand delivery or
certified or registered mail, of the proposed 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 notice of the City Manager or his/her designee as to whether the violation
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has been cured. The written response of the Franchisee shall be signed by management level
personnel of Franchisee and all statements contained therein shall be regarded as material
representations of the Franchisee to the City.
3. The City shall consider any justification or mitigating factor advanced in
the written response of the Franchisee, including but not limited to rebates or credits to the
Subscriber or a cure of the violation. The City may not assess any fine if the Franchisee has
reasonably resolved the complaint or cured the violation within a reasonable time frame.
However, said Subscriber may be entitled to a credit or refund as provided herein.
4. Subsequent to the notice of proposed fine to Franchisee, and consideration
of the response of the Franchisee, if any, the City may, after a public hearing at which Franchisee
shall have an opportunity to heard, issue an assessment of fine. The fine shall be paid within
thirty (30) days of written notice to the Franchisee or, if Franchisee challenges the assessment in
a court of competent jurisdiction, within thirty (30) days of a final non-appealable decision that
the assessment is valid. If said refund, credit or fine is not paid by Franchisee within such thirty
(30) day period, as the case may be, the City may, at its discretion, withdraw immediately the
amount thereof from the Security Fund. Upon such withdrawal, the City shall notify Franchisee
of the withdrawal amount, after which Franchisee shall have ten (10) days from the date of such
notice to deposit in the Security Fund an amount sufficient to restore the Security Fund to the
amount specified in the Franchise Agreement. This fine shall constitute liquidated damages to
the City for the violation and the City may enforce payment of the fine in any court having
jurisdiction. It is the intent of the City to determine 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.
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?5. Franchisee may appeal any decision of the City Manager or his/her
designee directly to the City Commission within thirty (30) days of notice of the decision to the
Franchisee.
4 6. Intentional misrepresentation by a Franchisee in any response to a notice
of proposed credit, refund and/or fine, whether oral or written, shall be considered a material
breach of the Franchise Agreement, subject to a penalty of no less than Five Thousand Dollars
($5,000.00) in liquidated damages to the City, and shall be grounds for Franchise revocation.
117. 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, at
minimum, comply with all customer service standards applicable to Cable Systems of the FCC
and any other applicable federal or state Law concerning customer service standards, consumer
protection, and unfair or deceptive trade practices.
4- 8. The City expressly reserves the right to consider violations of the customer
service requirements in evaluating any renewal, modification or transfers of any Franchise, to the
extent not inconsistent with applicable law.
Section 57-19. Subscriber Privacy.
A. 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. A
Franchisee shall not condition subscriber or other service on the subscriber's grant of permission
to disclose information which, pursuant to federal or state law, cannot be disclosed without the
subscriber's explicit consent. No penalties or extra charges may be invoked by the Franchisee
for a subscriber's failure to grant consent.
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B. Unless otherwise permitted by federal or state law, neither the Franchisee nor its
agents or employees shall, without the prior and specific written authorization of the subscriber
involved, sell, or otherwise make available for commercial purposes the names, addresses or
telephone numbers of any subscriber or subscribers, or any information which identifies the
individual viewing habits of any subscriber or subscribers.
Section 57-20. Discrimination Prohibited.
A. No 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 any illegal 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 illegal 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
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regulations governing equal employment opportunities, as the same may be from time to time
amended.
Section 57-21. Use of Streets.
A. Any pavements, sidewalks, curbing or other paved area taken up or any
excavations made by a Franchisee shall be done in compliance with City requirements under
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. Nothing herein shall be construed to
exempt a Franchisee from compliance with the provisions of Article I 4 of Chapter 153 of the
Code of Ordinances of the City of Ocoee, entitled Right of Way Utilization Permitting, and the
payment of the appropriate fees established pursuant to said Article.
B. 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 Engineer full and complete plats, maps and records showing
the exact locations of its facilities located within the public Streets, ways, and easements of the
City. These maps shall be available to the City Engineer.
C. Except to the extent required by law, a Franchisee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any of its property when required by the
City by reason of traffic conditions, public safety, Street construction, Street resurfacing or
widening, change of Street grade, installation 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
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place. Franchisee shall do so at its expense to the extent other users of the rights-of-way are so
responsible, consistent with applicable law.
D. A Franchisee shall, on the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal or raising or lowering of wires shall be paid by the person
requesting same, and the Franchisee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall
be required. The Franchisee shall be given not less than five (5) business days advance notice to
arrange for such temporary wire changes.
E. A Franchisee shall upon notice to the City of not less than 7 days, emergency
situations excepted, 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
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done by it or under its supervision and direction at the expense of the Franchisee.
F. A Franchisee shall use, with the owner's permission, existing underground
conduits (if applicable) or overhead utility facilities whenever feasible and if available on
reasonable terms and conditions. Copies of agreements between a Franchisee and third party for
use of conduits or other facilities shall be filed with the City upon request 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.
G. 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 generally applicable 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.
H. 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 preexisting gas, electric, telephone, water, sewer or
other utility facilities, or obstruct or hinder in any manner the preexisting facilities of various
utilities serving the residents of the City of their use of any Street or any other public right of
way.
I. 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
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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.
J. On Streets where electrical or telephone utility wiring is located underground,
either at the time of initial construction of a cable system or at any time thereafter, a Franchisee's
cable shall also be located underground at the Franchisee's expense only if the utilities in the area
are also required to relocate their facilities underground at their expense or at such time other
utilities elect to locate underground. Between a Street and a subscriber's residence, a
Franchisee's cable must be located underground if both electrical and telephone utility wiring are
located underground. The City shall encourage, to the extent feasible, that the public utility and
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
proportionately by all users of such trenches.
K. In the event the use of any part of a cable system is discontinued for any reason
for a continuous period of twelve (12) months, or in the event such system or property has been
installed in any Street without complying with the requirements of this Ordinance or a franchise
agreement, or the franchise has been terminated, canceled or expired, without right of renewal,
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.
L. The City may extend the time for the removal of Franchisee's equipment and
facilities for a period not to exceed one hundred eighty (180) days, and thereafter such equipment
and facilities may be deemed abandoned, unless Franchisee is diligently pursuing the removal.
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M. 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 57-22. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided herein
under Section 57-18, the City may apply any one or combination of the following remedies in the
event a Franchisee violates this Ordinance, its franchise agreement, applicable state or federal
law, or applicable local law or order:
1. Impose liquidated damages in such amount, whether on a per-diem,
per-incident, or other measure of violation, as provided in this Ordinance or in a 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. Impose as liquidated damages a fine in an amount not less than One
Thousand Dollars ($1,000) per day for failure to obtain a Franchise Agreement from the City
pursuant to this Ordinance.
3. Impose as liquidated damages a fine in the amount of Three Hundred Fifty
Dollars ($350.00) per day per violation for material failure to comply with any provision of this
Ordinance, except as otherwise provided for in Section 57-18 hereof or as otherwise provided for
in a Franchise Agreement.
4. In the event of a material failure to comply with the provision of this
Ordinance, revoke the franchise pursuant to the procedures specified in Section 57-25
hereof.
5. In addition to or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
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B. In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons bearing the impact of the
violation, the nature of the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
C. Notwithstanding anything to the contrary, Franchisee's failure to comply with
Section 57-13(A) hereof shall result in the assessment of liquidated damages in the amount of
Seven Hundred Fifty Dollars ($750.00)per day for each day such violation continues.
€D. Failure of the City to enforce any requirements of a franchise agreement or this
Ordinance shall not constitute a waiver of the City's right to enforce that violation or subsequent
violations of the same type or to seek appropriate enforcement remedies.
E. 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 Commission 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.
4 F. Notwithstanding anything to the contrary, and notwithstanding being subjected to
a fine or refund requirement, Franchisee shall be obligated to cure, or take all reasonably
practicable steps to cure, any violation of this Ordinance or of any Franchise Agreement granted
hereto within thirty (30) days after receipt of notice from the City of the alleged violation. If the
alleged violation is not cured within such period, the City may exercise all rights and remedies
available pursuant to this Ordinance, or applicable law, or the Franchise Agreement.
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Section 57-23. 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 may notify the Franchisee, by certified or registered mail that it may file a renewal
application in the form of a renewal proposal. The notice shall specify the information to be
included in the renewal proposal 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 57-08
hereof to the extent specifically applicable to franchise renewals 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 City
may take such action as appropriate under law.
2. Upon receipt of the renewal application, the City shall publish notice of its
receipt and make copies available to the public. The City, following prior public notice, may
hold one or more public hearings on the renewal application.
B. In the event a public hearing on the renewal application is held, or in the event
that the City Commission considers the renewal application without a public hearing, the City
Commission may either:
1. Pass a resolution approving the proposed Franchise Agreement and
thereby renew the Franchise; or
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2. Only after a public hearing properly noticed, pass a resolution that makes a
preliminary assessment that the franchise should not be renewed.
C. If a preliminary assessment is made that a franchise should not be renewed, at the
request of the Franchisee or on its own initiative, the City will commence 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 under § 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), 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 Commission shall determine whether the franchise should be renewed and
the terms and conditions of any renewal.
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E. If the City Commission grants a renewal application, the City and the Franchisee
shall agree on the terms of a franchise agreement, pursuant to the procedures specified in
subsections 57-08(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 or effect a transfer to
another person upon approval of the City Commission. Any such acquisition or transfer shall be
at fair market value, determined on the basis of the cable system valued as a going concern but
with no value allocated to the franchise itself. The City may not acquire ownership of the system
while an appeal of a denial for renewal is pending in any court pursuant to 47 U.S.0 § 546(e).
G. If renewal of a franchise is lawfully denied and no appeal to a court is pending,
and the City does not purchase the cable system or approve or effect a transfer of the cable
system to another person, the City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
Section 57-24. Transfers.
A. No transfer of a franchise shall occur without prior approval of the City, except as
otherwise provided herein with respect to a pro forma transfer.
B. An application for a transfer of a franchise shall meet the requirements of Section
57-08 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 subsections 57-08(E)
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(1)-(E)(5) with respect to the proposed transferee. The information required in subsections
57-08(E)(6)-(E)(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 (61') calendar day following the filing of such application
with the City unless, prior to that date, the City notifies the Franchisee to the contrary. An
application for approval of a pro forma transfer of a franchise shall clearly identify the
application as such, describe the proposed transaction, and explain why the applicant believes the
transfer is pro forma. Unless otherwise requested by the City within thirty (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 57-08(E)(1), (3) with respect to the proposed
transferee.
D. In making a determination on whether to grant an application for a transfer of a
franchise, the City Commission shall consider the legal, financial, and technical capacity 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 by the
transferee would adversely affect cable services to subscribers, or otherwise be contrary to the
public interest.
E. No application for a transfer of a franchise shall be granted unless the transferee
agrees in writing, in the form of an affidavit signed by a duly authorized officer of the transferee,
that it will abide by and accept all terms of this Ordinance and the franchise agreement, and that
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it will assume the obligations and liabilities of the previous Franchisee to the City 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 57-25. Revocation or Termination of Franchise.
A. A franchise may be revoked by the City Commission for a Franchisee's material
failure to construct, operate or maintain the cable system as required by this Ordinance or the
franchise agreement, or for any other material 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
material 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 from the City to the Franchisee, the
Franchisee has not cured such violation or breach, or has not commenced corrective action and
such corrective action is not being actively and expeditiously pursued, the City may give written
notice to the Franchisee of its intent to revoke the franchise, stating its reasons.
B. Prior to revoking a franchise under subsection (A) hereof, the City Commission
shall hold a public hearing, upon 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
Commission may determine whether to revoke the franchise based on the evidence presented at
the hearing, and other evidence of record. If the City Commission determines to revoke a
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franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of
such decision shall be transmitted to the Franchisee.
C. Notwithstanding subsections (A) and (B) hereof, any franchise may, at the option
of the City following a public hearing before the City Commission, be revoked one hundred
twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of
a receiver or trustee to take over the business of the Franchisee, whether in a receivership,
reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding,
unless within that one 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 a significant part of the
facilities, equipment or property of a Franchisee's system in the Public Rights-of-Way, the City
may revoke the franchise, consistent with the procedures of subsections A and B hereof,
including a public hearing before the City Commission, by serving notice upon the Franchisee
and the successful bidder at the sale, in which event the franchise and all rights and privileges of
the Franchisee 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
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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 Commission, may acquire ownership,
or effect a transfer, of the cable system at an equitable price, consistent with applicable law.
3. If a cable system is abandoned by a Franchisee, the City may sell, assign
or transfer all or part of the assets of the system.
F. Where the City has issued a franchise specifically conditioned in the franchise
agreement upon the completion of construction, system upgrade or other specific obligation by a
specified date, failure of the Franchisee to complete such construction or upgrade, will result in
the automatic forfeiture of the franchise without further action by the City where it is so provided
in the franchise agreement, unless the City, at its discretion and for good cause demonstrated by
the Franchisee, grants an extension of time.
G. Except as provided in uh,,.ction (F) Subsection F, no adverse action against a
Franchisee may be taken by the City pursuant to this section except as consistent with the
procedures set forth in Subsections i- A and 4-B- B hereof.
Section 57-26. Continuity of Service Mandatory.
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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 re ardle
of the circumstance:7f. The Franchisee shall cooperate with the City to operate the system for a
temporary period following termination or transfer as necessary to maintain continuity of service
to all subscribers. The temporary period will not exceed six (6) months without the Franchisee's
written consent. During such period the cable system shall be operated under such terms and
conditions as the City and the Franchisee may agree, or such other terms and conditions that will
continue, to the extent possible, the same level of service to subscribers and that will provide
reasonable compensation to the cable operator.
C. In the event a Franchisee fails to operate the system for seven (7) consecutive
days without prior approval of the City or without just cause, the City may, at its option, operate
the system or designate an operator until such time as the Franchisee restores service under
conditions consistent with the terms of the Franchise 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 from the Franchisee's failure to perform that are in excess
of the revenues from the system received by the City. Additionally, the Franchisee will
cooperate with the City to allow City employees and/or City agents free access to the
Franchisees' facilities and premises for purposes of continuing system operation.
Section 57-27. Rates.
A. Nothing in this Ordinance shall prohibit the City from regulating rates for cable
services to the full extent permitted by law.
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B. Any rate or charge established for cable service, equipment, repair and
installation shall be reasonable to the public and in compliance with FCC guidelines. Where
FCC guidelines exist, compliance with :;uch applicable laws and regulations shall be
considered reasonable. Upon written request from the City or its agent, Franchisee shall provide
all requested data, records and documentation to show the reasonableness of the rates as required
by FCC regulations or other applicable law. 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. The City's regulation of rates as permitted under applicable law, shall be
consistent with Federal Communications Commission cable rate regulation standards or other
applicable law in effect at the time. A Franchisee shall notify the City of any changes in rates or
service no less than thirty (30) days prior to the effective date of such change. Unless otherwise
prohibited by applicable law, 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, or by written notice to the Subscriber, of the proposed rate
change. At any hearing conducted by the City in the exercise of any rate regulatory authority, 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 hearing, the City Commission shall
decide the matter by majority vote and adopt a Resolution taking such action and providing such
relief as is appropriate and authorized by Federal Communications Commission rate regulation
standards or other applicable law. The resolution shall set forth complete findings of fact and
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conclusions regarding all of the basic elements considered in the City Commission's
determination.
Section 57-28. Performance Evaluation. The City will conduct periodic
performance evaluations of a Franchisee as the City, in its sole discretion, 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 and Franchisee may agree in a Franchise Agreement that Franchisee shall distribute the
City's questionnaire to its subscribers at the Franchisee's expense.
Section 57-29. Administration.
A. The City Manager, either directly or through a duly appointed designee, shall have
the responsibility for overseeing the day-to-day administration of this Ordinance and franchise
agreements on behalf of the City. The 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 Commission. The Manager may recommend that the Commission take
certain actions with respect to the franchise. The Manager shall keep the Commission apprised
of developments in cable and provide the Commission with assistance, advice and
recommendations as appropriate.
B. Subject to federal and state law, the City Commission shall exercise the sole
authority of the City to regulate rates for cable services, grant franchises, authorize the entering
into of franchise agreements, modify franchise agreements, renew or deny renewal of franchises,
revoke franchises, and authorize the transfer of a franchise.
Section 57-30.Force Majeure. 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
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I
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
franchise agreement granted or renewed hereunder, causes or events not within a Franchisee's
control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes,
fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage,
strikes and restraints imposed by order of a governmental agency or court . Causes or events
within Franchisee's control, and thus not falling within this Section, shall include, without
limitation, Franchisee's financial inability to perform or comply, economic hardship, and
misfeasance, malfeasance or nonfeasance by any of Franchisee's directors, officers, employees,
contractors or agents.
Section 57-31. Applicability. This Ordinance shall be applicable to all cable
franchises granted, transferred, modified, or renewed after its effective date, and shall apply to all
cable franchises granted prior to the effective date of this Ordinance, to the full extent not
inconsistent therewith.
Section 57-32.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, if any, of the City to acquire, construct, own, and/or operate a cable system to the full
extent permitted by law or consistent with the terms of a Franchise.
Section 57-33. Reservation of Rights.
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, L
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 unless imposition of such regulations would be otherwise
prohibited by applicable law, or inconsistent with an existing Franchise.
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 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.
E. The City shall have the right, during the life of this Franchise, to install and
maintain free of charge upon the poles of the Grantee any wire and pole fixtures necessary for
any municipal purpose on the condition that such wire and pole fixtures do not interfere with the
operations of the Grantee.
F. At the expiration, without right of renewal, of the term for which a Franchise is
granted or upon its termination and cancellation, as provided for herein, or in any Franchise
Agreement granted pursuant hereto, the City shall have the right to require the Franchisee to
remove at its own expense all portions of its system from all public ways within the City.
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I
G. At the expiration without right of renewal of the term for which this Franchise is
granted, including any renewal term, or upon its termination and cancellation, as provided for
herein, the City, at its election, and upon payment of the fair market value to the Franchisee
consistent with applicable law, shall have the right to purchase and take over the Franchisee's
system in the public rights-of-way. The above price shall not include, and the Grantee shall not
receive, anything for the valuation of any right or privilege appertaining to it under a Franchise.
Upon the exercise of this option by the City and its service of an official notice of such action
upon the Franchisee, the Franchisee shall immediately transfer to the City possession and title to
all facilities and property, real and personal, of the system, free from any and all liens and
encumbrances not agreed to be assumed by the City in lieu of some portion of the purchase price
set forth above, and the Franchisee shall execute such warranty deeds or other instruments of
conveyance to the City as shall be necessary for this purpose. The Franchisee shall do nothing
during the term of this franchise or any extension thereof to or in any way prevent or hinder the
City from purchasing the system under the option contained herein.
SECTION 3. Repeal of Conflicting Ordinances. That all sections or parts of
sections of the Code of Ordinances, all ordinances or 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 4. Savings. All rates, fees, charges and financial obligations
previously accrued pursuant to the ordinances and resolutions repealed pursuant to Section 2
above shall continue to be due and owing until paid.
SECTION 5. Severability. If any part, section, subsection, or other portion of
this Ordinance or any application thereof to any person or circumstance is declared void,
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w e
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 6. Applicable Law. This Ordinance shall be construed in accordance
with the law of the State of Florida and is subject to applicable local, state and federal law.
SECTION 7. Effective Date. This Ordinance shall become effective immediately
upon passage and adoption.
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4. 4
PASSED AND ADOPTED this day of , 1999.
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
ADVERTISED , 1999
READ FIRST TIME , 1999
READ SECOND TIME AND ADOPTED
, 1999
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND LEGALITY
this day of , 1999
LEIBOWITZ AND ASSOCIATES
Special Counsel
By:
Name:
C:\225\1999\Ocoee\Cable Ordinance\REDLINE.FINAL-DRAFT.WPD
225/Lucien 1111. Diane B.Pickett
r
Suite t20 1'ui'Prrkr,l,nt, I'utuu.rl/ran'
Maitland, /7 ri le 1275! :mri( Rclattims
lel
407-215-5524
lin- 17-_2I?-? to
TIME WARNER
COMMUNICATIONS
HAND DELIVERED
December 7, 1999
Mayor and Commissioners
City of Ocoee
150 N. Lakefront Drive
Ocoee, FL 34761
Re: City of Ocoee Cable Ordinance
Dear Mayor and Commissioners:
This will respond briefly to the arguments raised in the letter of December 6, 1999 to City
Manager Ellis Shapiro from Braulio Baez with respect to Time Warner's suggested changes
in the proposed cable Ordinance as set forth in my letter of December 1, 1999.
State-of-the-Art Report
The unresolved issue is not Time Warner's willingness to agree to provide information to the
City concerning the State of the Art. It is rather a question of whether the work necessary
to provide this information should be undertaken without regard to whether there is a
particular need for it at the time. We believe it is in the interest of the company, the
community and our customers that, to the maximum extent possible, our operations be
efficient and directed to the primary task of providing quality cable service to our customers.
A certain level of reporting and other administrative work is necessary to accomplish this
task. But overemphasis on reports - and certainly the preparation of unnecessary reports -
will only detract from the efficient operation of the system.
New developments in cable service which provide recognizable benefits to customers are
generally well publicized throughout the country. It is realistic to expect, if only from
customer anticipation, that the City will be quite capable of determining when it needs a
report and requesting it at that time. This will avoid the need to prepare reports which are
unnecessary.
Burden of Proof
The issue is not, as argued in Mr Baez' letter, who is best able to provide the information
concerning a franchisee's compliance with the terms of the proposed ordinance. Time
Jim(' < -IYnrulu I)irivinu
Mayor and Commissioners
City of Ocoee
December 7, 1999
Page 2 of 3
Warner and the City have reached agreement on all provisions regarding the maintenance
and provision of such information. The proposed ordinance requires a franchisee to maintain
certain information regarding its performance and to make this information available to the
City. If these provisions are not adequate(although Time Warner believes that they certainly
are), I reiterate the statement of my December 1, 1999 letter that Time Warner agrees to a
requirement that when there is an issue of compliance, it shall provide all information which
it has concerning that issue. Such information would, of course, include the information
which the proposed ordinance requires the franchisee to maintain.
The language proposed by the City to which Time Warner objects does not concern the
provision of information but rather establishes by ordinance a presumption of non-
compliance. We believe that this is fundamentally unfair. It is also totally unnecessary as
a means to ensure the production of information when such production is required in other
sections of the proposed ordinance.
City Expenses
In my letter of December 1, 1999, I made clear Time Warner's position that the fees required
under both Section 57-08I and 57-09D of the proposed ordinance are franchise fees under
Federal law and subject to the law's five percent cap. Mr. Baez does not set forth any
arguments contrary to that position. Rather he points out that the cases which I cited
supporting our position are from courts which do not exercise jurisdiction in Florida. While
this is true, it is also true that no court in Florida - or anywhere else to our knowledge - has
disagreed with the position Time Warner is taking. The existing court precedent, while
perhaps not legally binding in Florida, is unanimous and would, we believe, be extremely
persuasive to a Florida court.
Mr. Baez' main argument is seemingly that Time Warner can waive its rights with respect
to this issue. I believe it is Time Warner's obligation to be candid and clear with you and
therefore must state that Time Warner will not waive its rights. If other Time Warner
operating divisions in other areas of the country may have done so, I am not aware of the
particular circumstances involved. I can advise you that our Central Florida Division has not
agreed to waive our rights to treat any such payments as franchise fees and we do not believe
that the circumstances in our current renewal in Ocoee warrant any such waiver.
The fact that the City 's renewal expenses have exceeded $50,000 is, Mr. Baez asserts, a
result of the level of cooperation or lack thereof of the franchisee. Cooperation in Mr. Baez'
dictionary must mean the willingness of the franchisee to agree to whatever proposal the
City's cable consultants chose to make. In fact, the initial proposed ordinance and franchise
.
Mayor and Commissioners
City of Ocoee
December 7, 1999
Page 3 of 3
that Time Warner received,was significantly longer than most and included many provisions
which were completely unacceptable. Over the course of negotiations and based on the
willingness of both sides to compromise, we have limited the number of provisions to which
Time Warner objects to those described above. Had the initial proposal from the City
consultant been more realistic and consistent with franchises in this area,Time Warner would
have been more "cooperative" and the expenses significantly less.
We reiterate our hope that you will make the changes to the proposed ordinance suggested
by Time Warner. Upon passage of a mutually agreeable proposed ordinance, we can move
forward to finalize the terms of the franchise agreement. We have received a draft franchise
agreement from Mr. Baez and expect to provide our comments in response next week.
Thank you for your courtesy and consideration.
Sincerely,
A64kl&
Diane Pickett
cc: Ellis Shapiro
Janet Shira
Leibowitz &Associates
David Spencer
Frank Kruppenbacher
John Fogarty
A 8'305 530 9411 LBIBOKI?Z ASSOCIAI S 12/06/99 15: 39 3 . 002/905
LErsowITz & ASSOCIATES, P.A.
SUIYE 1450
DRAVLIO L_EAEZ SUNTRUST INTERNATIONAL CENTER TELEPHONE(305)534.43z2
JOSEPH A.BEL15LE ONE SOUTHEAST THIRD AVENUE TELECOPIER C305)5317-WAIF
R.A.L.FIELD MIAMI,FLORIDA 37131.1715 E-MAIL BroadlaWOaQI.com
MATTHEW L.LEISOWITZ
CAROLINE A.SORET
December 6, 1999
Via Facsimile(407)656-8504
Mr. Ellis Shapiro
City Manager
City of Ocoee
150 N.Lakeshore Drive
Ocoee, FL 34761
RE: City of Ocoee Cable Ordinance
Dear Ellis:
The Firm has had an opportunity to review Time Warner's written comments submitted to
the City on December 1, 1999. In their comments,the Company sets forth their objections on three
separate issues,which remain outstanding,as a result of discussions between the Firm,on the City's
behalf, and the Company concerning the provisions included in the proposed cable ordinance,set
for second reading on December 7, 1999. The Firm wishes to submit the following comments in
response to Time Warner's objections_
With regard to Time Warner's objections concerning Section 57-17(A) of the proposed
Ordinance,requiring a Franchisee to file with the City an annual report describing developments in
the state-of-the-art of cable systems, Time Warner maintains that a compulsory requirement to
produce such a report diverts resources and manpower from its obligations to provide service and
operate the cable system. The Company further suggests that such reports often go unread by City
staff;resulting in a waste of resources to the Company,and therefore suggest that the report should
be provided upon request by the City.
During the course of renewal negotiations with the Company,the City staff has consistently
maintained that a priority for the City is maintenance of a state-of-the-art cable system, providing
the services and benefits to its residents,consistent with the future cable related needs and interests
of a growing community. The Company,through discussions with City staff,has agreed to support
state-of--the-art obligations which would require ongoing improvements in technology and services
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Letter to Mr.Ellis Shapiro
December 6, 1999
Page 2
available on the cable system. Requiring an annual report on state-of-the-art developments ensures
that the City and its staff will be regularly kept abreast of developments in technology and services
and allow the City to determine the appropriate time at which to address the changing needs of the
community, in terms of those new developments in technologies and services. In its ongoing
relationship with the City' the community and its customers, the Franchisee is best able to stay
abreast of any new developments in the state-of-the-art, and consequently should have the
responsibility to keep the City infomied of such developments on a regular basis.
Similarly, the Company's objections to Section 57-22E of the proposed Ordinance, which
imposes on the Franchisee the burden of proving its compliance with the terms of the Ordinance in
any matter before the Commission, or on an appeal of a Commission decision,turns on the notion
of whom is better equipped and able to obtain, maintain and provide the information necessary to
establish with certainty that the Franchisee is in fact complying with the terms of the Ordinance.
Time Warner's proposed language would only require the franchisee to provide such information
"as it may have"concerning its compliance with the terms of the Ordinance. In a situation where,
between the City and Time Warner, only Time Warner has the resources, ability and expertise to
maintain necessary information,the City is left at a disadvantage to obtain that information when the
Company is merely obligated to provide only the information it chooses to have. This,without more,
leaves to much discretion in the Company's hands as to what information regarding compliance with
the Ordinance it will decide to keep and maintain.
The language contained in the proposed ordinance, by contrast, would ensure that the
Company would be obligated to maintain all necessary information in the event it should have to
prove its compliance with the terms of the Ordinance. It is an efficient way of employing the
resources that are already available to the City and the Company to address compliance issues.
Therefore, the language proposed by Time Warner on this issue is inadequate and should not be
adopted.
Lastly, the Company strenuously objects to Sections 57-08(I)and 57-09(D)of the proposed
Ordinance. These sections concern the requirement of a filing fee for the branch renewal transfer
modification of the Franchise,and a processing fee for cost and expenses in considering franchise
applications,respectively. Both sections state that such fees are not to be credited as franchise fees.
Concerning this issue,Time Warner first states that it will not agree to any statement that
such fees are not franchise fees under Federal Law. When confronted with the fact that such fees
arc not credited as franchise fees or passed through to customers pursuant to Time Warner franchises
New York City,the Company justifies its action on the basis of the size of the Franchise area in that
instance,as well as the fact the New York City is the corporate home of Time Warner. No matter,
this fact is illustrative of the fact that whether or not Time Warner credits such fees as franchise fees,
or even passes them through to subscribers,is merely a business decision. Time Warner relies on
its interpretation of federal Law,and on court deci5ion5 in other jurisdictions where it is convenient
C:12Z51199910.:occ\LcacrsZbapiro-CableOrdiu 'c .1206.wpd
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LEIBOWITZ&A55OCIATZS, P.A.
SUITE IAO,ONE SOUTHEAST THIRD AVENUE.MMANI,FLORIDA 33131-1715 •TELEPHONE(305)530-1352
' 8305 530 9417 LE1 uJJZ ASSOCIATES
12/06/99 15 : 10 P . 004I005
Letter to Mr.Ellis Shapiro
December 6, 1999
Page 3
as a business issue,and such arguments should not sway the commission in any definitive sense.
As to the supporting cases which the Company relies on, interpreting the Cable Act with
respect to the definition of franchise fees,it is important to keep in perspective the precedential affect
of such cases within the Middle District of Florida.. In fact;none of the cases have binding authority
in Florida. In fact,as trial court decisions,the referenced cases are not even binding authority within
their own district. In addition,the Company points out that, in two of the three cases that they have
submitted, Tune Warner was the litigant, and uses that fact to support its assertion that the
Company's position on this issue has been consistent and long standing. In light of its treatment of
the same issue in New York,the Company's assertion should more accurately be that its position is
long standing and consistent,subject to its own discretion,and applied where convenient.
Basically,this issue is ultimately a business decision for the Company,and a policy decision
for the City. As you know,the proposed ordinance,in Section 57-08(1)requires an application fee,
which may not be deducted from the franchise fee imposed in the franchise agreement,and may not
be passed through to subscribers. In addition,Section 57-09(D)requires reimbursement of costs and
expenses of the City in awarding or renewing a franchises which shall not be credited against the
franchise fee nor passed through to subscribers, up to the limit of the application fee under Section
57-08(1). Therefore,any reimbursement which the Company would be required to make to the City
over and above the application fee($10,000)would be permitted to be passed through to subscribers
at the discretion of the Company.
Time Warner currently hold franchises in other jurisdictions in Florida which by ordinance
require cost recovery for the franchising authority's expenses in granting,renewing, transferring,or
modifying franchises. Alachua County Code Section 61.10(g)allows imposition of a processing fee
in an amount not to exceed the County's out-of-pocket costs in considering an application. Time
Warner acquired the Alachua County franchise in January 1996. Section 2-7-9(i)of Manatee County
Ordinance No.91-24 also allows for a processing fee not to exceed the County's out-of-pocket costs
in considering an application, less the filing fee required,by Section 2-7-8(i) of the Ordinance.
Neither of these ordinances prohibits passing cost recovery on to subscribers, or the treatment of
such fees as franchise fees.
The City's total expenses for consulting fees on the renewal now stand at approximately
$53,700. This total is the result of protracted negotiations with the Franchisee. Generally,renewal
costs should not be so high. However,consultant fees,in this case billed on an hourly rate,are a
direct result of the level of cooperation,or lack thereof,of the Franchisee. Applying the provisions
of the proposed Ordinance,the Company would have the discretion to pass through approximately
$43,700 onto the subscribers. Based on the current number of subscribers in the City,approximately
7,000, and spread out over the life of the franchise agreement(ten years), the actual pass through
would breakdown into approximately$0.63 per year per subscriber,or just over$0.05 per month per
subscriber.
CA2'51199910cocc\Letters13bap abte Ordiaanc.1206.wpd
December3.1999(1 I:1&AM)
LEreowrrz&.ASSOCIATES, P.A.
SUITE 1450.ONE SOUTHEAST THIRD AVENUE, MIAMI,FLORID 33131-1715 •TEI.EPHONE(305)530-1322
��305 530 9411 LEIB09ITZ ASSOCIATES 12/06/0 15 : 11 P . 005/J65
Letter to Mr,Ellis Shapiro
December 6, 1999
Page 4
Time Warner's position is taken in good faith. As the:Company has mentioned,at least three
courts in other jurisdictions have agreed with the Company's interpretation of the law. However,
these cases are not binding law. At least two other jurisdictions in which Time Warner holds
franchises,at a minimum,require cost recovery,though neither prohibit the franchisee from passing
such cost recovery through to subscribers. The City's•proposed language only excepts the
application fee from being passed through. However,the question as to whether Time Warner will
challenge the City's proposed provisions is unclear.
The Firm appreciates the opportunity to address these issues. If you have any questions,
please do not hesitate to contact me.
Sincerely,
it
raulio L. Ba
cc: Ms.Janet Shira '
Ms. Diane Pickett
John A.Fogarty,Esq.
•
•
•
C: 2 I9999OcoedLetters\A/pito-Cahk Ordinance 1206 wpd
December 3,1999(11:04AM)
LExBowrrz &AssocuAxEs. P.A.
SUITE 14150.ONE SOUTHEAST THIRD AVENUE, MIAMI,FLORIDA 33131-17IS •TELEPHONE(3O3)S30-1322
‘' 2251 Lucien tttnv Diane B.Pickett
ShIte'2/) 1'i e Pie c/cu,t, Public A11.10
hluitland. 1100,11 727`1 and(7 cc'rinrcnt nclrnunt�.
Tel 407-?1 s-5 c_'4
[(i.e-107-215.5,_
TIME WARNER
COMMUNICATIONS
HAND DELIVERED
December 1.1999
Mayor and Commissioners
City of Ocoee
150 N. Lakefront Drive
Ocoee, FL 34761
Re: City of Ocoee Cable Ordinance
Dear Mayor and Commissioners:
The proposed Ordinance No. 99-26 concerning cable television franchises which is on your agenda
for final consideration on December 7, 1999 has been the subject of several negotiating sessions with
representatives of the City and Time Warner. As a result of these negotiations and the willingness
of both parties to reach an accommodation, almost all issues have been resolved in a manner both
parties are willing to accept. We wrote to Mr. Baez of the City's Cable Consultants on November
18, 1999 outlining certain changes in the Ordinance which we thought had been agreed to by both
parties. He has assured us that the final version of the Ordinance will include those changes and we
are relying on that assurance.
However, there remain three outstanding issues which the City representatives have advised must
be presented to you in order to reach a mutually agreeable resolution. If these three issues can be
resolved in an acceptable way, Time Warner will be able to support the passage of this Ordinance
as part of the franchise renewal. We can then turn our attention to finalizing the franchise
agreement.
The three issues which we submit to you are discussed below. We respectfully urge you to consider
Time Warner's proposals and revise the proposed Ordinance as we request. It would be preferable
to resolve these issues in the Ordinance. If this is not possible, Time Warner believes that given the
significance of the issues,they will have to be addressed again in the franchise agreement. The three
issues are:
Franchise Application Fees and City Franchise Costs
Sections 57-081.requires that a franchisee pay certain filing fees for an initial grant,renewal,transfer
or modification of a franchise. In addition, Section 57-09D requires that a franchisee reimburse the
City in the form of a processing fee for its costs and expenses in considering and processing
franchise applications. Both sections state that these fees are not to be credited as franchise fees as
defined in Federal law.
7unr Itiunci l:n,cr,4rinrnrr.'-l,lr,rri„ {d,-„ , P_nr'u Jain i7urid<r1%irivII
Mayor and Commissioners
City of Ocoee
December 1, 1999
Page 2
Time Warner will not agree to any statement that these fees are not franchise fees under Federal law.
Our view of the law is exactly contrary. We believe that the purpose of franchise fees is to cover
costs to the City incurred in the franchise process and that the Federal law intends that a cable
operator's reimbursement of these costs be counted as franchise fees.
At least three Federal district courts have ruled on this issue with respect to renewal expenses and
supported Time Warner's view that any such payments are franchise fees under Federal law. Copies
of the decisions in these cases ( Robin Cable Systems v. The City of Sierra Vista; Time Warner
Entertainment Company, L.P. v. Briggs; Birmingham Cable Communications Inc. v. City of
Birmingham)are enclosed for your review. We are aware of no cases holding to the contrary. You
will note that in two of the three cases Time Warner was a party, so our position on this issue has
been consistent and of long standing.
These two sections of the Ordinance also contain a prohibition on the pass-through to subscribers
of the costs imposed. This is contrary to Federal law. Rates for cable service may be regulated only
as permitted by Federal law and regulations as §623(a)of the Cable Act clearly states. If, as argued
above,these costs are franchise fees, they are certainly passed through to subscribers. And even if
they are not franchise fees, they can be passed through to subscribers as the cost of a franchise
requirement under §76.925 of the Rules and Regulations of the FCC.
Since the payments required by these sections are franchise fees under Federal law and since the
franchise fee imposed by the proposed Ordinance is set at the maximum permitted by Federal law,
these sections should be deleted.
State-of-the-Art Report
Section 57-17A. requires that a franchisee file with the City an annual report containing several
sections, some of which are specified to be included only upon request. Time Warner believes that
the section of the annual report describing developments in the state-of-the-art of cable systems
should be included only upon request. This particular section of the report will require considerable
time and resources which should be expended only when needed. Therefore, add at the very
beginning of part 1 Section 57-17A the words"upon request".
Time Warner is willing to provide the City with this information when the City believes that such
a report would be useful at the time and the City requests it. Our experience in many franchises has
been that,if such reports are provided automatically and not upon a particular request,they are often
filed away and ignored. Preparation of such a report takes the time and effort of Time Warner staff
which is normally dedicated to providing service to our customers. This time and effort should be
diverted to report preparation only if the City has a particular and real need for the information at
that time.
Mayor and Commissioners
City of Ocoee
December 1, 1999
Page 3
Enforcement Remedies
Section 57-22E establishes the requirement that in any proceeding where there is an issue of a
franchisee's performance of its obligations, the franchisee has the burden of proving that it is in
compliance with the Ordinance.
This establishes an unfair presumption that a franchisee is in violation of the Ordinance. Such a
presumption denies a franchisee the benefit of due process and the usual American presumption of
innocence.
The City's representatives indicated that the reason for this provision is that the City wants
assurances that a franchisee will provide information necessary to an evaluation of its compliance
with the Ordinance. Therefore,Time Warner proposes that the first sentence of Section 57-22E read
as follows:
In any proceeding wherein there exists an issue with respect to a franchisee's
performance of its obligations pursuant to this Ordinance, the Franchisee shall
provide such information as it may have concerning its compliance with the terms
of the Ordinance.
We thank you for your consideration of these issues.
Sincerely,
Bytiou
Diane Pickett
Enclosures
cc: Ellis Shapiro, City of Ocoee
Janet Shira, City of Ocoee
Paul Rosenthal, City of Ocoee
David Spencer, Time Warner
John Fogarty, Time Warner
Frank Kruppenbacher, Attorney
Leibowitz& Associates
•
`7 R , ' • if
• .C.
. (
•
FILED
•
IN THE UNITED STA Hs - DISTRICT COORS
FOR THE NORTHERN., D 5' CT: OF ALu a 7 -5 .. 1 : fl f
TKi4 i CO:ori,
BIRMINGHAM CABLE COMMUNICATIONS ) N.B. OF ALAEAM'A
INC. , an Alabama corporation, i "� ���:, , '•= r�
• Plaintiff,vs. ) ;CIVIL ACTION E N TER E L
•
•CITY OF BIRMINGHAM, ALABAMA 1
;CV 87-L-0755-S giffY 0 51989
an Alabama Municipal
corporation, . . )
Defendant. • ) •
X111v4i1, . 1e I. viAtLl
•
This cause, coming on t be heard, was submitted upon .
plaintiff's motion for summary juclgment. Upon consideration of
P
such motion, the pleadings:, th oral ; arguments and briefs of
counsel in support thereof and o position thereto, together with
the documents contained in th appendices to the respective
briefs, 1 the Court 'concludes t at theme is no genuine issue of
material fact as to: the facial i validity of the ordinance in
question and that plaintiff is enlitlec3 to judgment as a matter
of law. •
.
It is ORDERED, ADJUDGE nd DECREED by the Court that:
1. The motion for u. ,ary; judgment is GRANTED as
1 •
The Court di1sclaims an eliance upon such documents as
reflecting the motives of . the 'ty in enacting the ordinance
under attack. The City's motiva i.n is not a justiciable issue.
The relevance of such documents 's strictly confined to the issue
of whether plaintiff's facial c allenge to the ordinance is
premature, as defendant conten•s or whether it is ripe for
judicial resolution under the te: •i ing ?of Abbott Laboratories v,
Gardner, 387 U.S. 135 (1967) , as p aintiff insists.
.
hereinafter appears.: .
2. ordinance No. 8.-072, : enacted by the City of
Birmingham on December 29, 1 .8 . , ik void and unenforceable
because it is in conflict with -he Coble Communications Policy
Act of 1984, 47 U_S.C. § 521, e ,es . [hereinafter "Cable Act") ,
and the Supremacy Clause of the .S. Cdnstitution.
3. Defendant City Is pfermanently enjoined from
enforcing or applying Ordinance J. 86-272_
4. Plaintiff is ent"tled to apply for and may obtain
renewal of its cable television '-ranch.±se in Birmingham, Alabama,
without having to pay or to age to ;pay, above and beyond the
Cable Act five percent franchis fee;2 the City's franchising
expenses,3 consultant costs, o I y Other regulatory costs. or
2 47 U.S.C_ § 542(b) .
•
3 The defendant reads t o much into the language of 47
U.S.C. § 542 (g) (2) (D) :
(g) "Franchise fee" defined
For the purpose of this secti n ----
(1) the term "franchi a fee" includes any tax, fee, or
assessment of any 3$i d imposed by a franchising
authority or other go ernmental entity on a cable
operator or cable sub-c ibex, or both, solely because
of their status as suc ;
(2) the term "franchi- - fee" does not include --
(D) requirements or charges incidental to the
awarding or enfo 'ng of the franchise, including
payments for bo • , selcurity funds, letters of
credit, insuranc= , indetnification, penalties, or
liquiUated damage- ; . . ;. .
Section 542 obviously oes_ not confer authority upon
•
•
•
•
fees.
•
5. Defendant City i - joi!ned and required to comply
with each and every substanti e and procedural requirement in
sections 622 and 626 of the Cab e Act ;(47 U.S.c. §§ 542 and 546)
pertaining to the cable televis'o franchise fees and renewals. 4
6. The Court Prete is adjudication of plaintiff's
claim that defendant has de r ved ; it of its civil rights
guaranteed by the :Cable Act n. the Supremacy Clause of the
United States Constitution .purslant to •the provision of 42 U.S.C.
§§ 1983 and 1988. •
DONE this :5th day of May, 1989.
tri �
A:25-:"ejl-a".4-v%.1. SENTOR .746;"
•
•
•
the franchisor to impose unilate' ally upon an applicant
consultant costs in. an unlimited amoun , which may not be passed
through to subscribers (47 U.S.0 § 542 (c) ) , as a condition to
the grant of a reneWal franchise. Tested by the maxim Noscitur A
Sociis, the Court is of the opiqi un that it would be an aberrant
construction of the: phrase 'incid-ntaii to the awarding . of
the franchise," in: its context, to :conclude that the phrase
• embraces consultant fees incurre{i -oley• by the City.
4 It was conceded by de� endaht at oral argument that
Ordinance No. 86-272 was enactdd prior to the ascertainment of
needs and interests: and prior to the ;submission of plaintiff's
proposal balancing needs and int tsts against costs. Thus, such
ordinance is uneinforcable e ause its enactment is in•
irreconcilable conflict with h- procedural requirements of
section 626 of the Cable Act (47 1 .S.C. § 546) .
f
7281LARKIN HOFFMAN LAN 13TH SOUTH 896 3833 03.12.199 I5834 P. 2
0 •
kRUECalVEO Hy
•
• At 480 tRw w al audpmMl to r ddi aN
•
RUSING & LOPEZ
Ptitgb $fth Yztr ict Or . FILE
Vt:a�— BE
,.�' OPY
DISTRICT OR i • I 0 i
ROBIN CABLE SYSTEMS, L.T. , etc. , ASK U S QISTRt;Ut1
iR,STt;lCY'OF A NA
Plaintiff JUDGMENT IN Y _ DEPu
V
THE CITY OF SIERRA VISTA, etc. ,
pefendltstt;. CASE NUMBER: CIV-93-020•-TING-ACM
0 Jury Verdict.Thie action cams before the Court for to trial by jury. The issue*have been Irlad and the Wry has rendorcd
Its verdict.
OD Decision by Court.This action came to trial or hearing before the Court. The Leos*have been tried or heard and a
decision has bean rendered.
ITISORDEREDANDADJUDGED THAT THE Plaintiff's Motion for Summary
Judgment is hereby GRANTED and that: the Defendant's Croag4lotion for
Sumamry Judgment it hereby DENIED.
Judgment is entered in favor of the plaintiffs and against the
defendant.
June 10, 1993 _ RICAHRD H. WEARS
Dia km
*Cs IiUSINO. FAWLR. ACM. JIB 4
(Oy/O.pury Clark AIM
0. ,
FROM LARKIN HOFFMAN LAU 15114SOUTH a96 3833 85.12.1994 15155 P. 3
• - . • "
).
.t ' "
r Fop LODOED
RIVED_...,,.Con
IN THE UNITED irrATES DIATRI
3
' FOR THE DISTRICT OP ARIZ• � UN i 0 ,49
� ; M u � r c�uat
�"'�'CA�'�o�l�oo�'CY
9
BY
{ Row CABLE SYSTEMS, L.P. , etc.')
Plaintiff,
CIV 93.020 TUC ACH
?v.
itiadlVIA BY
s THE j NO 141993
T ) IMMO & Cortez
Defendant.
8I _____ ' .. .) ORDER
81
i0 I. QVKTWXEW
-
11 Fending before the Court are CVOS;-Motion for Summary
12 : Judgment. The central issue in this Case revolves around Section
13 622(q) of the Cable Communications Act, 47 U.O.C. 1 542(q) ("thy
I '
14 Cable•Act„) .
IS XX. AIBCtt ZQt( ;
ie1 Section 2.2 of the LiCanning hgroanant („Agreement”)
17 I provides an annual lioanea fes which Robin Cable will pay the city
18 of Sierra -Vista anountinq to five percent (54) of Orono Rovenuaa
19 ifrom operation of the cable system in the City of sierra Vista.
ZD Section 2.3 of the Agreement taandatoe that itabin Cable reimburse
21 1 Sierra Vista the costs incurred in the liaeneing process not to
221 •xoeed $30,000. Section 2.11 of the Agreement provides that
23 "Cg]rentor and grantee reserve all rights= that they may poseese
34 under the law unless expressly valved herein."
3 2 i Section 2.2 of the Agreement is a parwiamible fee to be
t� ;r. arged under 47 U.S.C. 5 542('b) . section 2.3 or the Agreement,
t
11411.s
.
4
F1408 LARKIN HOFFHRH LAY 15TH SOUTH 896 3833 05. 12.1994 15155 P.
•
however, appeax'a they violate the Cable Act. The tarn ''franchisee
fee" is defined broadly to include "any tax, fee, or asseaneament of
2
any kind imposed by a franchising authority or other government
entity on a cable officer or cable subeecriber, . ." 47 U.S.C.
4
a $42(g) (1) . The exceptions listed under 47 V.G.C. $ 542(g) (2)
appear to be narrowly tailored. Section 542(q) (2) (D) allows a
6 '
municipality to make charges "incidental to the awarding . . . of
7
the franchise . . . ." 47 U.s.C. ; 542(9) (2) (p) . A fee of up to
A $30,000 is more than incidental. Any eubetantiel fee charged on top
9
of the annual license fee is inconsistent with the Cable Act.
10
The defendant contende that the plaintiff waived or is
11
estopped from asserting its legal rights. This is not a valid
12
argument. By letter dated August 11, 1992, Robin Cable expressly
13
objected to Section 2.3 of the Agreement. By the very terms of the
14
reservation of rights clause, cited above, Robin Cable did not waive
15
its right to object to this provision. There is nothing expressed
le
in the contract which shows that Robin Cable waived or is eatopped
17
from asserting its statutory rights.
is rix, rataMEXQX
,g
Accordingly, IT IS ORDERED AS FOLLOWS:
20
'i
1) That the Plaintiff's Motion for Summary 1udgment in
21
heretby GRANTED and that the Defendant's cross-motion for Summary
22
Judgment is hereby DENIED:
33
2) That Section 4.17 of ordinance 909 is void and
24
unenforoeable because it Lee violhtive of the cable Act;
75
3) That section 2.3 of the License Agreement la void and
26 •
2
AD 72
*+s21
•
•
FROH LRRKIH HOFFMAN LRY 15TH SOUTH 896 3833 05.12.1994 1SIS6 P. 5
unenloraeabl•r
1j
• 4) That the defendant is permanently enjoined from
2 '
enforcing or applying paragraph 40.7 of Section 4 of Ordinance 909
3 '
land Section 2.3 of the Licensing Agreement.
4
S fl) That Judgment be entered accordingly.
7
DATED this b�.,. day of June, 110T.
8 ;
81
10
11 - r
ALFRED() C. . k U
d".
12 Senior Judge
19 /OS
14
15
10
17
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12 i _ _
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22
23
24
25
28
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*MMEHD+tM
• 1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
C.A. NO. 92-40117-GN
TIME WARNER ENTERTAINMENT COMPANY, L.P. , )
Plaintiff, )
' Yr ;
WILL BRIGGS, ALAN' RICH, WILLIAM GEFFERT, )ANNE KILL? and JOSEPH MAGA, as they ) 10‘11 .4are Members of the Board of Selectmen of )
the Town of Athol and not individually; )
THE TOWN OF ATHOL, MASSACHUSETTS; ARTHUR )
REPPAS, JANE PIERCE and WILLIAM HOWE, as )
they are Members of the Board of )
Selectmen of the Town of Orange and not )
individually; and THE TOWN OF ORANGE, )
MASSACHUSETTS, )
Defendants. )
)
MEMORANDUM OF DECZs nu
GORTON, a.
Plaintiff, Time Warner Entertainment Company, L.P. ("Warner
Cable") , commenced this action on July 17, 1992 against the members
of the Boards of Selectmen of the Towns of Athol and Orange in
their official capacities (the "Boards") as well as against the
Towns of Athol, and Orange (the "Towns") for injunctive and
• :declaratory 'relief; Warner cable alleges that Wawa *regulating
the issuance of cable television licenses, which were enacted by
each of the Towns (the "Bylaws") , violate the rights of Warner
Cable under the United States Constitution and are inconsistent
with 47 U.S.C. SS521-556 (198a) (amennded by Cable Television
1 -��
Consumer Protection and competition Act of 1992, Pub.L.No. 102-385,
106 Stat. 1460) (the "Cable Act") and M.G.L. 0.166A.
on October 19, 1992, Warner Cable and the Boards reached an
agreement on the terms for renewal of Warner Cable's cable
television licensees with the Towns. On October 20, 1992, the
Boards voted to grant the renewed licenses (the "Licenses-") .2
Certain portions -of the Licenses, however, are inconsistent with
the Bylaws. Pending before this Court is Warner Cable's Substitute
Motion for Partial Summary Judgment and Entry of Declaratory
Judgment (the "Motion for Summary Judgment") , in which Warner Cable
requests that the Court grant it summary judgment on Counts III, IV
and V of its Verified Complaint (11complaint") and declare that: (1)
specific portions of the Bylaws are preempted by federal and state
law; (2) the Licenses are valid, binding and enforceable; and (3)
any specific terms of the Licenses shall be enforceable if in
conflict with any provisions of the Bylaws.2
t In Paragraphs 44 and 45 of its Proposed Findings of Fact and
Conclusions of Law, Warner Cable states that the Boards granted
"Renewal Agreement(sj," which term is defined in the Proposed
Findings as "agreenent[s] on the terms for renewal of the . . :
License(s] . " The Court presumes that the Boards, in effect,
granted the renewed licenses.
2 Counts I and Tx of the Complaint, which allege that the Towns
violated Warner Cable's rights in denying its application for
renewal, are now moot because the Boards have since granted the
Licensees.
2
•
I. WARNER CABLE'S MOTION FOR SUMMARY JUDGMENT ON COUNTS III, IV
AND V or ITS COMA/NT.
Summary judgment shall be rendered where the pleadings,
discovery on fila, and affidavits, if any, show "there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P, 56(o) ;
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (let Cir. 1990) .
Defendants have not oppose the Motion for Summary Judgment and
have not filed a statement of contested material facts. Therefore,
pursuant to Rule 56.1 of the Local Rules of the United States
District Court for the District of Massachusetts, the facts set
forth in Warner cable's statement of uncontested material facts are
deemed admitted by defendants.3
A. COUNT III - In Count III of its Complaint, Warner Cable
contends that the Bylaws "are inconsistent with the Cable Act and
are therefore preempted . . . ." (Complaint 541) . The Cable Act
provides, in pertinent part;
(A)ny provision of law of any State,
political subdivision, or agency thereof,
or franchising authority . . . which is
inconsistent with this chapter shall be
deemed to be preempted and superseded.
47 U.S.C. 5556(c) .
Not all of the Bylaws, however, are inconsistent with the
cable Act. Therefore, Warner Cable's Motion for Summary Judgment
3 Warner Cable has submitted its Rule 56.1 statement of
uncontested material facts in the form of proposed findings of
fact.
3
•
• on Count III of its Complaint is allowed only with respect to those
provisions of the Bylaws that are inconsistent with the Cable Act.
Those inconsistent provisions are set forth in Section II of this
Memorandum of Decision (the "Decision") . In all other respects,
Warner Cable's Motion for Summary Judgment on Count IYY of its
Complaint is denied.
•
B. COUNT IV - In Count IV of its Complaint, Warner Cable
alleges that certain parts of the Bylaws compel speech in violation
of Warner Cable's rights under the First and Fourteenth Amendments
to the United States Constitution and Article XVI of the
Massachusetts Declaration of Rights. Those particular parts of the
Bylaws, however, also contravene federal statutory law, and are
preempted for that reason. Therefore, the Court need not and does
not reach the constitutional issues raised by Warner Cable.
SDQCtQr Motor Service, Inc. v. McLauchlin, 323 U.S. 101, 105 (1944) -
(where the Supreme. Court stated: "If there is one doctrine more
deeply rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of
constitutionality . .. unless such adjudication:is unavoidable..")
•
• • • Warner. 'Cable's Motion for Summary Judgment on Count IV of the
Complaint is accordingly denied.
C. COUNT V In Count V of its complaint, Warner Cable
contends that "[t]he Bylaws abridge the Massachusetts Home Rule
Amendment because theyera inconsistent with the regulatory
4
structure established by Chapter 166A (the State cable television
statute) ." (Complaint 146) . The Massachusetts Home Rule Amendment
provides, in pertinent part, that a town ". . . may, by the adoption
. . . of local ordinances or by-laws, exercise any power or function
. . . which is not inconsistent with the constitution or laws enacted
by the general court . .. . " Mass. Const. Am. Art. 89, S6. The
Board of Selectmen of a town is made the "issuing authority" for
cable television licenses by M.G.L. c.166A, S1(d) .
In its Complaint, Warner Cable maintains that, as a whole, the
Bylaws, which were enacted through Special Town Meetings in Athol
and orange, impermissibly encroach on the authority of the Boards
of the Towns in their capacities as "issuing authorities." In its
Memorandum in Support of its Motion for Partial Summary Judgment
and Entry of Declaratory judgment ("Warner Cable's Memo") , however,
Warner Cable acknowledges _that its Complaint challenges certain
provisions of the Bylaws that do not deviate materially from the
provisions of the Licenses. Warner cable further states that the
issues relating to such non-deviating provisions are moot. Warner
Cable 's Memo at 19 n.10. Therefore, with one specific exception
described in the next paragraph and in Section II a. below, the
Court denies Warner Cables Motion for Summary Judgment on Count V
• of its Complaint because to grant the motion in full would be to
rule that the Bylaws as a whole improperly impinge on the authority
of the Boards, A conclusion that Warner cable acknowledges it is no
longer necessary to reach.
5
Warner Cable's Motion for summary Judgment on Count V of its
Complaint with respect to the first sentence of Section 2 of the
Bylaws (quoted in Section II a. below) is allowed because that
sentence infringes on the powers specifically granted to the Boards
as "issuing authorities," and for that reason is invalid.
II. PORTIONS 01 TBB BYLAWS INCONSISTENT WITH PLDEItAL OR STATS LAW.
Warner Cable requests that the Court declare twelve specific
provisions of the Towns' Bylaws preempted by and, therefore,
unenforceable under the Cable Act or M.G.L. c.166A.4 The Court-
addresses and rules upon each of those specific requests as
follows:
a. The first sentence of Section 2 of the Bylaws, which
states:
Any cable television license
hereafter granted, or renewed or
extended shall expire no later that
[sic) six (6) years from the
effective date of said grant,
renewal or extension.
That provision of the Bylaws is inconsistent with the Boards'
authority, under :M.G.L. c. 166A, 513, to determine the renewal
period for a cable license. Section 13 of chapter 166A providers
"Any license issued hereunder may be renewed after hearing by the
4 Although Warner Cable has requested that the court declare
parts of the Bylaws preempted and unenforceable under the Cable Act
And M.G.L. c.166A, the Court addresses Warner Cable's request in
the disjunctive rather than it the conjunctive.
6
issuing authority for additional periods not to exceed ten years."
Because of this inconsistency, the first sentence of section 2 of
the Bylaws is preempted and declared unenforceable.
b. The last [three] sentences of Section 2 of the Bylaws,
which state:
In. the avant the Licensee and the
Issuing Authority are unable to
arrive at mutually acceptable
amendment provisions, a single
arbitrator acceptable to both
parties, shall be appointed by the
Issuing Authority. The decision of
the arbitrator shall be binding by
(sic) both parties. All costs of
arbitration shall be borneby the
Licensee.
That provision of the Bylaws is inconsistent with 47 U.S.C.
S045(b) and 555, which permit, under certain circumstances, a
cable operator whose request for modification of a license has been
denied, to seek judicial review of the denial. Because of this -
inconsistency, the last three sentences of Section 2 of the Bylaws.
are preempted and declared unenforceable.
•
c. The first sentence of Section 3 of the Bylaws, which
states:
The Licensee shall construct the
CATV system in such a way that it
is capable of delivering all
signals and services to all homes
businesses and institutions within
the Town that are served by
electric power lines.
7
That provision of the Bylaws is inconsistent with the license
renewal requirements set forth in 47 D.S.C. $546. The Cable Act
requires a town to analyze a cable operator's renewal proposal on
a case by case basis. When a cable operator submits a renewal
proposal, a town must consider, among other things, whether "the
operator's proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of
meeting such needs and interests." 47 O.s.c. 5546(c) (l) (.p) . The
first sentence of Section 3 of the Bylaws eliminates case by case
consideration of a cable operator's renewal proposal by mandating
the service areas for a cable license, irrespective of the demand
for cable in and the costs of providing cable to such areas.
Consequently, this portion of the Bylaws is inconsistent with the
Cable Act and, therefore, it is preempted and declared
unenforceable.
d. The words "and service" in the second sentence of Section
3 of the Bylaws which sentence states in full: "There shall be an
identical pattern of installation and service charges for all
Subscribers."
The Cable Mit prohibits a town from regulating cable service
rates except in limited circumstances. 47 U.S.C. S543 (a) . If such
circumstances do not exist in the present case, the words "and
service" are preempted.
The Cable Television Consumer Protection and Competition Act
of 1992, Pub.L.No. 102-385, 106 Stat. 1460 (the "Amended Cable
8
Act") , which was enacted October 5, 1992, significantly amends
certain provisions of 47 U.S.C. 5$521-559. Although most
provisions of the Amended Cable Act took effect 60 days after the
date of enactment (December 4, 1992) , Pub.L.No. 102-385, 528, 106
Stat. 1503, the section amending 47 U.S.C. 5543 ("Regulation of
Rates") , Pub.L.No. 102-385, 53 (a) , 106 stat. 1464, takes effect 180
days after the date of enactment (April 3, 1993) . Pub.L.No. 102-
385, 53 (b) , 106 Stat. 1471. Because the Licenses at issue in the
present case extend beyond •April 3, 1993, the Bylaws relating to
the regulation of rates are addressed here under the statute as it
reads now ("Pre-amendment 5543") and as it will read on and after
April 3, 1993 ("Post-Amendment 5543") .
Under Pre amendment 5543, a town could regulate rates only "in
circumstances in which a cable system [was] not subject to
effective competition." 47 U.S.C. 5543(b) . The Federal
Communications Commission ("FCC") determined that "effective
• competition" would be deemed to exist where any three "off-the-air"
broadcast signals (signals transmitted by a local television
station and received by a consumer by means of a home antenna) were
available to the community in question. ,gee Implementation ofthe '
gzoyisions of the Cable, Communications Policy Act of 1984, 50.
Fed.Reg. 18,637, 18,648-.18, 650 (1985) . It is apparent that
"effective competition", as that phrase is used in Pre-amendment
5543, does, in fact, exist in the Towns. j e Warner Cable's Memo
at 26. Therefore, the Towns are not permitted to regulate cable
service rates under Pre-amendment 5543.
9
•
Post-amendment S543 authorizes much broader rate regulation by
towns. The FCC, however, is required, within 180 days of enactment
of the Amended Cable Act, to prescribe regulations to ensure that
the rates for basic cable service are reasonable. Pub.L.No. 102-
385, §3(a) , 106 Stat. 3465. Promulgation of such regulations is a
prerequisite to any regulation of rates by a town under Post-
amendment §543. . Furthermore, before a town can 'regulate rates
under Post-amendment 8543, it must file with the FCC a
certification that: 1) it will adopt regulations consistent with
the regulations promulgated by the FCC, 2) it has the legal
authority to adopt regulations, and 3) its procedures for rata
regulation provide for consideration of the views of interested
parties. The FCC can disapprove of a town's certification.
Pub.L.No. 102-385, 53(a) , 106 Stat. 1464-1465. The Towns,
therefore, may not attempt to regulate cable service rates until
the FCC has promulgated regulations and until they have filed
certificates with the FCC. Because these preconditions have not
been satisfied, the Towns may not regulate cable service rates
under Post-amendment §543.
Because inclusion of the words "and service" in the second
sentence of Section 3 of the. Bylaws constitutes an attempt by the-
_
Towns to regulate cable service rates in contravention of both Pre-
amendment 9543 and Post-amendment 8543, that portion of the Bylaws
is preempted and declared unenforceable.
10
e. The words "at a minimal rate" in the, first sentence of
Section 4 of the Bylaws which sentence states in full: "The
Licensee shall provide a basic level of service at a minimal rate
to any subscriber who shall desire it, and shall publicize that
level of service at least twice a year by mailing to each
subscriber receiving a higher level of service (sic], and a
statement for the- current monthly rate for the service."
By including the words "at a minimal rate" in that sentence,
the Towns again engage in rate regulation. For the reasons set
forth in subsection d. above, such regulation by the Towns is not
permitted under Pre--amendment S543 or Post-amendment 5543.
Therefore, the words "at a minimal rate" in the first sentence of
Section 4 of the Bylaws are preempted and declared unenforceable.
f. The last sentence of Section 4 of the Bylaws, which
states:
At minimum, the basic level of
service shall consist of ono
channel carrying the programming of •
each television network, including
the Public Broadcast system; at
least two channels carrying
independent programming; at least
one all news channel; one channel
• • regularlycarrying news of
Massachusetts, including State
•House news; one channel carrying
full-time coverage of U.B.
congressional deliberations and
associated governmental activities;
and all local Public Access
Channels.
That portion of the Bylaws is inconsistent with 47 U.S.C.
5544, which permits a town to establish requirements only "tor
11
broad categories of video programming or other services." 47
U.S.C. 5544(b) (2) (B) . The detailed programming requirements of the
last sentence of Section 4 of the Bylaws can hardly be construed as
broad categories of video programming. Because of this
inconsistency, the last sentence of Section 4 of the Bylaws is
preempted and declared unenforceable.
•
g. The underlined words in the last sentence of section 5 of
the Orange Bylaw/, which sentence states:
Said sums [paid to the town) shall be
payable on or before the fifteenth
(15th) day of March of each year,
ggnnanigcl by a .sworn and audited
statement of the License 's revenues
and exnensea at rit,frr lag t o Orange
fo X43 vee for hick_ said peymsnt
meandered%
warner Cable does not explain, nor does this Court understand,
how the underlined words are inconsistent with the Cable Act or
Massachusetts law, and, therefore, they are not preempted.
h. The words "attorney's fees, consultant's fees" in section
15 of the Bylaws, which states: "All charges and fees incidental to
awarding, renewing, extending and/or enforcing the License,
including, but not limited to, . .. reimbursement to the Town for
legal advertising, attorney's fees, consultant's fees . . . shall be
paid by the Licensee."
This is the only objectionable provision that doss not appear
in both the Orange Bylaw and the Athol Bylaw.
12
I
That provision is inconsistent with 47 U.S.C. 5542, which
limits the annual franchise fee a cable operator can be required to
pay to five percent (5%) of the cable operator's annual gross
revenues. 47 U.B.C. 5542(b) . The term "franchise fee" is defined
broadly to include "any tax, fee, or assessment of any kind imposed
by a franchising authority or other governmental entity on a cable
operator or cable subscriber, or both, solely because of their
status as such . . . ."' 47 U.S.C. 5542(g) (1) .
Apparently, there is no dispute among the parties that, under
the Licenses, Warner Cable will be required to pay five percent
(5%) of its gross revenues to the Towns in franchise fees. fign
Warner Cable's Memo at 28-29. Any additional franchise fee imposed
by the Towns will exceed the maximum allowable fee. By requiring
Warner Cable to reimburse them for attorney's and consultant's
fees, the Towns impose a "franchise fee" on Warner Cable, as that
term is defined in 47 U.S.C. 5542. Consequently, inclusion of the
words "attorney's fees, consultant's fees" in section .6 of the
Bylaws contravenes federal law, and, therefore, those words are
preempted and declared unenforceable.
i. The underlined words in the third paragraph of Section 7 •
of the Bylaws, which paragraph states:
e The term "franchise fee" does not include "requirements or
charges incidental to the awarding or enforcing of the franchise,
including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages . . . ."
47 U.S.C. 5542(7) (2) (D) .
13
The Licensee shall notify its
Subscribers of all performance
evaluation sessions by announcement
on at least one (1) channel of its
cable system as disignated [sic) by
Zhe j.ssuina authority, between the
hours of 7:Q0 bait, and 2:OQ p.m. ,
for at least five consecutive days
preceding each session.
The underlined words of that Section of the Bylaws establish
video programming'requirements inconsistent with the provisions of
47 U.S.C. 5544 Om subsection f. above) . Because .of this
inconsistency, the third paragraph of Section 7 of the Bylaws is
preempted and declared unenforceable.
J. The last paragraph of Section 7 of the Bylaws, which
states:
Any and all reasonable costs
incurred by the Town in connection
with such evaluation sessions,
including, but not limited to,
attorney's fees and consultants'
fees, shall be reimbursed to the
Town by the Licensee.
That paragraph again imposes an additional franchise fee on
Warner Cable. For the reasons set forth in subsection h. above,
the last paragraph of Section 7 of the Bylaws is inconsistent with
47 . D_S.C. 5542, and, therefore, is preempted . and declared
unenforceable.
k. (1) The word „legitimate" in the second paragraph of
Section a of the Bylaws, which states:
Neither the Licensee nor any of its
officers . ., shall tap [or) monitor . . .
14
any cable . . . for any purpose whatsoever,
other than legitimate technical testing
or the monitoring of service status,
without the prior written consent of
all affected parties.
The Cable Act contains comprehensive provisions to protect
subscriber privacy. Sec 47 U.S.C. S551. Towns, however, may enact
laws consistent with 5551 for the protection of subscriber privacy.
47 U.S.C. S551(q)•.
The Cable Act permits a cable operator to:
. . . use the .cable system to collect
[personally identifiable] information
in order to-
(A) obtain information necessary
to render a cable service or other
service provided by the cable
operator to the subscriber; or
(B) detect unauthorized reception
of cable communications.
47 U.S.C. S551(b) (2) .
Warner Cable again does not explain, nor does this Court
understand, how inclusion of the word "legitimate" in the second
paragraph of Section 8 of the Bylaws is inconsistent with 47 U.S.C.
S551(b) (2) or any other provision of the Cable Act. Therefore, the
word "legitimate" in the second paragraph of Section 8 of the
Bylaws is not preempted.
(2) The second sentence of the fifth paragraph of
section 8 of the Bylaws, which states:
The maintenance of such information
shall be subject to approval by the
Issuing Authority, which approval
shall not be unreasonably or
arbitrarily withheld, provided that
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Licensee presents sound business
reasons for the need to maintain
such information.
The information referred to in that sentence is "information
that will be maintained regarding both individual Subscribers and
the aggregate of Subscribers." (Bylaws, Section 8 at Paragraph 5,
Sentence 1) . The sentence in question again relates to the
protection of subscriber privacy.
The Cable Act sats forth specific requirements for the
collection and maintenance of personally identifiable information
by a cable operator. 47 U.S.G. $551(a) (1) . These requirements
address the cable operator's duty to disclose to subscribers the
nature of personally identifiable information collected and the
length of time such information will be maintained. Thus, these
provisions of the Cable Act implicitly recognize the authority of
a cable operator to maintain personally identifiable information,
without having to obtain the approval of the Issuing Authority.
Consequently, the second sentence of the fifth paragraph of Section
S of the Bylaws, which subjects the maintenance of such information
by Warner Cable to Board approval, is inconsistent with 47 U.S.C.
S551, and, therefore, that sentence is preempted and declared •
•
unenforceable.
1. section 9 of the Bylaws in its entirety (the "Most
Favored Community status" Section) , which states:
The Licensee shall offer to the
residents of Orange [Athol] any and
all cable television services and/or
programming available to any other
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Massachusetts community with a
comparable subscriber base or
population served by the Licenses,
other than off the air signals
Unobtainable in Orange [Athol] .
If in providing service to any
surrounding uncabled communities
with population densities
comparable to that of Orange
[Athol] , the Licensee offers a
lower monthly rate than that in •
effect in Orange [Athol] at the
time, the Licensee shall adjust
the Town of Orange [Athol] rate
to be the •same as the lowest rate
in any such community or less.
That Section of the Bylaws is inconsistent with at least two
provisionsof the Cable Act. Section 9 of the Bylaws attempts to
regulate rates in a manner inconsistent with both Pre-amendment
5543 and Post-amendment 5543 (,egg subsection d. above) . Section 9
also attempts to establish requirements for video programming,
thereby contravening 47 U.S.C. 5544 (See subsection f. above) .
Because of these inconsistencies, Section 9 of the Bylaws is
preempted and declared unenforceable.
III. CONTLICTS BETWEEN THE LICENSES AND THE BYLAWS.
Time Warner also requests that the Court declare that: (a) the
Licenses are valid, binding and enforceable and (b) any specific
terms of the Licenses are enforceable over any provisions of the
Bylaws where they are in conflict. In that regard, the Court
rules:
a. None of the defendants contends that the Licenses are
invalid, non-binding or unenforceable. Because there is no dispute
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among the parties AS to status of the Licenses, the Court refrains
from assessing their validity.
b. In Section II of this Decision, the Court has preempted
and declared unenforceable numerous provisions of the Bylaws
because of their inconsistency with federal or state law. As a
result, many of the conflicts between the Licenses and the Bylaws
have been eliminated. Warner Cable does not contend that any
provisions of the Bylaws not addressed in section II of this
Decision ars inconsistent with federal or state law. Absent such-
inconsistency, the court is without authority to declare that
specific terms of the Licenses are enforceable if in conflict with
any provisions of the Bylaws and, therefore, declines to so
declare.
VI. Conclusion
2. Warner Cable's Motion for Summary Judgment on Count III
of its Complaint is allowed with respect to those provisions of the
Bylaws preempted by the Cable Act as set forth in Paragraph 4
below. In all other respects, Warner Cable's Motion for Summary
Judgment on Count III is denied.
2. Warner Cable's Motion for Summary Judgment on count IV of
its Complaint is denied.
3. Warner Cable's Motion for Summary Judgment on Count V of
its Complaint is allowed with respect to the provision of the
Bylaws addressed in Section II a. of this Decision. In all other
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respects, warner Cable's Motion for S.uamary Judgment on Count V is
denied.
4. The provisions of the Bylaws addressed in Section
II a. , b. , c. , d. , e. , f. , h. , i. , j . , k. (2) , and 1. of this
Decision are hereby preempted and declared unenforceable.
NATHANIEL M. RTON
UNITED STATES DISTRICT JUDGE
Dated: January NI 1993. •
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