HomeMy WebLinkAboutOrdinance 99-37
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
1. "Cable System," or "System," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
K. "City" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207.wpd
L. " Control of a Franchisee or Applicant" .......................... 4
M. "Fair Market Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
N. "FCC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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 ofthe 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 Subiect 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
Grant of Franchises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Insurance: Surety: Indemnification. ................22
Security Fund. ................................. 24
Construction Bond. ............................. 26
Minimum Facilities and Services. .................. 28
Technical Standards. ............................ 32
Access Channels and Facilities. . . . . . . . . . . . . . . . . . . . . 33
Franchise Fee. ................................. 34
Section 57-09.
Section 57-10.
Section 57-11.
Section 57-12.
Section 57-13.
Section 57-14.
Section 57-15.
Section 57-16.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
11
Section 57-17.
Section 57-18.
Section 57-19.
Section 57-20.
Section 57-21.
Section 57-22.
Section 57-23.
Section 57-24.
Section 57-25.
Section 57-26.
Section 57-27.
Section 57-28.
Section 57-29.
Section 57-30.
Section 57-31.
Section 57-32.
Section 57-33.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
Reports and Records. ........................... 37
Customer Service Requirements. . . . . . . . . . . . . . . . . . . . 41
Subscriber Privacy. ............................. 56
Discrimination Prohibited. ....................... 57
Use of Streets. .................................57
Enforcement Remedies. ......................... 61
Renewal of Franchise. ........................... 63
Transfers. .................................... 66
Revocation or Termination of Franchise. ............ 67
Continuity of Service Mandatory. .................. 70
Rates. ........................................ 71
Performance Evaluation. ......................... 72
Administration. ................................ 73
Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Applicability. .................................. 74
Municipal Cable System Ownership Authorized. ......74
Reservation of Rights. ...........................74
Repeal of Conflicting Ordinances. . . . . . . . . . . . . . . . . . . . . . . . . 76
Savings. ............................................ 76
Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Applicable Law. ..................................... 77
Effective Date. ....................................... 77
C\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
111
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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
1
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 US.C. ~ 521 et seq., 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.
E. "Applicant" means any person submitting an application within the meaning of this
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
2
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 US.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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
3
signal generation, reception and control equipment that is designed to provide cable service which
includes video programming, and which is provided to multiple subscribers within the City. Such
term does not include (a) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations; (b) a facility that serves subscribers without using any public right
of way; (c) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title
II of the Communications Act of 1934,47 US.C. ~ 201 et seq., except that such facility will be
considered a cable system to the extent it is used in the transmission of video programming directly
to subscribers, unless the extent of such use is solely to provide interactive on demand services; (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 ofa 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
4
for a going concern but with no value allocated to the franchise itself.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
5
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 (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 internet 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 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
6
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. 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
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,
C:\225\ I 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
7
ordinances, codes, rules, regulations and orders.
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,
C\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
8
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.
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
C:\225\ 1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
9
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 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
10
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.
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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207.wpd
11
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, 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
C\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
12
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 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 Subiect 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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
13
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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
14
together with seven (7) copies, be accompanied by the required non-refundable application filing fee
as set forth in Section 57-08(1) 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. Ifthe 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
15
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;
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
16
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.
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;
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
17
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. Ifrequested, 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
18. An affidavit or declaration ofthe 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 ofthe
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
18
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 ofthe 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: $ 2,500
4) For modification of a franchise agreement
pursuant to 47 U.S.C. ~ 545: $ 2,500
5)
F or any other relief:
$ 2,500
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
19
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.
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 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
20
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(1). 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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
21
minimum amounts of:
1. $250,000 for property damage in anyone accident;
2. $500,000 for personal bodily injury to anyone person; and
3. $1,000,000 for personal bodily injury in anyone 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-I 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
22
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 ofthe 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 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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
23
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 ofthe 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
24
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 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
25
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
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
26
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-I
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
27
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 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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
28
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 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
29
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.
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
30
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 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,
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
31
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, m
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
32
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 oflive
and video-taped municipal programs, subject to reasonable availability and scheduling requirements
ofthe 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 is technically
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
33
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
ofthe 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
34
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. 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
C\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
35
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 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
36
City an annual report that, at minimum, includes the following information:
1. Upon request, 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
37
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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
38
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 ofthe 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.
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
39
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.
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
C\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
40
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 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/or 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
41
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-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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
42
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 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 ofthe 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;
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
43
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 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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
44
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 ofthe 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 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
45
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
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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
46
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
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 ofthe 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
47
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:
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
48
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;
1. 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 ofthe Communications Act, 47 US.c. ~ 542. Franchisee's
material failure to comply with this subsection may result in a fine in the amount of Three Hundred
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
49
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 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
50
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 ofthe 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
51
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.
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.
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.
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
C:\225\ 1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
52
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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
53
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
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
54
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.
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.
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 ofthe customer
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
55
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
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
56
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, or marital status. 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.
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 ofOcoee, 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
C:\225\ 1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
57
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
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
58
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
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
59
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 ifthe 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 ifboth 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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
60
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 anyone 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.
C\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
61
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 may result in the assessment ofliquidated 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 shall provide such
information as it may have concerning its 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 anyone or combination of the remedies otherwise
authorized by this Ordinance.
F. Notwithstanding anything to the contrary, and notwithstanding being subjected to a
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
62
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 US.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 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 Fra.'1chisee 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207.wpd
63
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) ofthe Communications Act, 47 US.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 S
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
C\225\ 1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
64
the time period set forth in Section 626(a) of the Communications Act, 47 US.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 m
subsections 57-08(E)-(H) ofthis 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 ofa denial for renewal is pending in any court pursuant to 47 U.S.C ~ 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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
65
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. 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 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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
66
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.
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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
67
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
2. The successful bidder has covenanted and agreed with the City to assume and
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
68
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 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.
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
69
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 ofthe 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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
70
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 conclusion of the public hearing, the City
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
71
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 into of
C:\225\ I 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
72
franchise agreements, modify franchise agreements, renew or deny renewal of franchises, revoke
franchises, and authorize the transfer of a franchise.
Section 57-30.
Force Maieure. 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
C:\225\1999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
73
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.
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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
74
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.
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 ofthe 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
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207. wpd
75
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, 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.
C:\225\ 1 999\Ocoee\Cable Ordinance\Final-adopted.1207 .wpd
76
PASSED AND ADOPTED this 2:nL day of --.D E t t= MB E It
ATTEST:
ht(J.A~ Jvw~
Jean Grafton, City Clerk
('J\l\I\T.f\'" GA.EENj ~C.T:ti'4G CXYV Cl.u..'(,
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVEP AS TO FORM AND LEGALITY
this 8 J :;;, day of --Jt:UAM..&-l1 '~D
zt;JCJ
LEIBOWITZ AND ASSOCIATES
Spe i Counsel
\\225\data\1999\Ocoee\Cable Ordinance\Final-adopted.1207.wpd 77
,1999.
APPROVED:
CITY OF OCOEE, FLORIDA
-s:~d
S. Scott Vandergrift, Mayor
ADVERTISED No". 2.'7 , 1999
READ FIRST TIME No". I ~ , 1999
READ SECOND TIME AND ADOPTED
\)E r..E.~Qi!. ~ 'J , 1999 'Ie
UNDER AGENDA ITEM NO. vr A
~ W;Ll"Jo\ P1t.\l!rHHo\SNTS.