Boynton.5 Chapter 5
CABLE SYSTEMS AND OPEN VIDEO SYSTEMS
Art. I. Regulation of Rates for Basic Service and shall have the meanings given herein, unless
Equipment, §§ 5 - 1 — 5 - 5 otherwise expressly stated. When not inconsistent
Art. II. Franchising and Licensing of Cable and with the context, words used in the present tense
Open Video Service Providers, §§ 5 - include the future tense; words in the plural number
6 — 5 - 30 include the singular number; and words in the
Art. IIA. Genera l singular number include the plural n umber; and the
Provisions, §§ 5 - 6 — 5 - 5 masculine gender includes the feminine gender.
Art. IIB. Special Rules Applicable "And" and "or" may be read conjunctively or
to Open Video Systems disjunctively. The words "shall" and "will" are
and Open Video System mandatory, and "may" is permissive. Unless
Operators, §§ 5 - 16 — 5 - 20 otherwise expressly stated, words not defined in this
Art. IIC. Special Rules Applicable arti cle shall be given the meaning set forth in 47
to Cable Television USC, and, if not defined therein, their common and
Stations, §§ 5 - 21 — 5 - 30 ordinary meaning. References to governmental
entities (whether persons or entities) refer to those
entities or their successors in authority. If specific
ARTICLE I. REGULATION OF RATES FOR prov isions of law referred to herein are renumbered,
BASIC S ERVICE AND EQUIPMENT then the reference shall be read to refer to the
renumbered provision. References to laws,
ordinances or regulations shall be interpreted broadly
Sec. 5 - 1. Scope and applicability. to cover government actions, however nominated,
and include l aws, ordinances and regulations now in
This article governs the regulation of rates for force or hereinafter enacted or amended.
basic service and equipment within the city for any
franchisee which has been notified that (a) the city (2) Definitions.
has been certified to regulate its basic s ervice and
equipment rates; (b) the city has adopted regulations Affiliate , means a person that, (directly or
governing regulation of basic service and equipment indirectly), owns or controls, is owned or controlled
rates; and (c) the city desires to exercise its regulatory by, or is under common ownership or control with,
authority. anoth er person.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00)
Cable service means:
Sec. 5 - 2 — 5 - 5. Reserved. 1. The one - way transmission to
subscribers of (i) video programming, or (ii) other
programming service, and
ARTICLE II. FRANCHISING AND
LICENSING OF CABLE AND OPEN 2. Subscriber interaction, if any,
VIDEO SERVICE PROVIDERS which is required for the selection or use of such
video programmin g or other programming service.
IIA. GENERAL PROVISIONS Cable System means a facility, consisting of
a set of closed transmission paths and associated
Sec. 5 - 6. Definitions. signal generation, reception, and control equipment
that is designed to provide cable service which
(1) Generally. For the purposes of this article, includes video programmin g and which is provided to
the following terms, phrases, words, and multiple subscribers within a community, but such
abbreviations terms does not include (A) a facility that serves only
to retransmit
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the television signals of one or more television excavation.
broadcast stations; ( B) a facility that serves
subscribers without using any public right - of - way; FCC means the Federal Communications
(C) a facility of a common carrier which is subject, in Commission o r its designee.
whole or in part, to the provisions of Title II
(Common Carriers) of the Communications Act of Franchise refers to the authorization
1934, as amended, except tha t such facility shall be granted by the city to an operator of a cable system or
considered a cable system to the extent such facility an open video system, giving the operator the non -
is used in the transmission of video programming exclusive right to provide, through facilities
directly to subscribers, unless the extent of such use is maintained or operated upon, across, beneath, or over
solely to provide interactive on - demand services; or any public right - of - way in the city, a specified service
(D) any facilitie s of any electric utility used solely for within a franchise area. Any such authorization, in
operating its electric utility systems; or (E) an open whatever form granted, shall not mean or include: (i)
video system that is certified by the FCC. A reference any other permit or authorization required for the
to a cable system includes pedestals, equipment privilege of transacting and carry ing on a business
enclosures (such as equipment cabinets), amplifiers, within the city required by the ordinances and laws of
pow er guards, nodes, cables, fiber optics and other the city; (ii) any permit, agreement or authorization
equipment necessary to operate the cable system. required in connection with operations on public
streets or property including, without limitation,
Construction, operation or repair . "Const - permits and agreements for pl acing devices on or in
ruction, operation or repair" and similar formulations poles, conduits or other structures, whether owned by
of that term means the named actions interpreted the
broadly , encompassing, among other things,
installation, extension, maintenance, replacement of
components, relocation, undergrounding, grading, site 2000 S - 13
preparation, adjusting, testing, make - ready, and
city or a private entity, or for excavating or
performing other work in or along public rights - of -
way.
Franchise Agreement means a contract
entered into in accordance with the provisions of this
chapter between the city and a franchisee that sets
forth, subject to this chapter, the terms and conditions
under which a franchise will be exercised.
Franchise area means the area of the city
that a franchise e is authorized to serve by its
Franchise Agreement.
Franchisee refers to a person holding a
franchise issued under this chapter, or a franchise
issued prior to this chapter, subject to the provisions
of Section 5 - 12 hereof.
License refers to the l egal authorization,
terminable at will, to use a particular, discrete and
limited portion of the public rights - of - way.
Open Video System, or "OVS", refers to a
facility consisting of a set of transmission paths and
associated signal generation, receptio n, and control
equipment that is designed to provide cable service,
which includes video programming, which is
provided to multiple subscribers within a community,
and which the Federal Communications Commission
or its successor has certified as compliant with Part
76 of the Rules of the Federal Communications
Commission, 47 CFR 76, as amended from time - to -
time.
Operator, when used with reference to a
system, refers to a person (A) who provides service
over a cable system or an open video system and
dir ectly or through one or more affiliates owns a
significant interest in such facility; or (B) who
otherwise controls or is responsible for, through any
arrangement, the management and operation of such a
facility.
Person includes any individual,
corpor ation, partnership, association, joint stock
company, trust, or any other legal entity, but not the
city.
Public rights - of - way means the surface, the
air space above the surface, and the area below the
surface of any public street, highway, lane, path,
Cable Systems and Open Video Systems
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alley, sidewalk, boulevard, drive, bridge, tunnel, a cable system or providing cable service; an operator
parkway, waterway, public easement, or similar of an open video system must o btain a franchise
property in which the city now or hereafter holds any before constructing an open video system or
property interest, which, consistent with the purposes providing services via an open video system. No
f or which it was dedicated, may be used for the franchise shall become effective without the
purpose of constructing, operating and repairing a franchisee entering into a franchise agreement with
cable system or open video system. Public rights - of - the city. The fact that a cable system or open vi deo
way do not include buildings, parks, or other property system may be used for multiple purposes does not
owned or leased by the city. No reference herein, o r obviate the need to obtain a franchise, license, or
in any franchise agreement, to a public right - of - way other authorization for those other purposes. By way
shall be deemed to be a representation or guarantee of illustration and not limitation, a cable operator of a
by the city that its interest or other right to control the cable system must obtain a cable franch ise, and,
use of such property is sufficient to permit its use for should it intend to provide telecommunications
such purposes, and a franchisee shall be deemed to services over the same facilities, it must comply with
gain only those rights to use as are properly in the requirements applicable to providers of
city and as the city may have the undisputed right and telecommunications services or to operators of
power to give. telecommunication facilities.
Telecommunications services means the (2) Purpose and charac teristics . The purpose
transmission, for hire, of information in electronic or of requiring authorizations by service is to ensure as
optical form, inc luding, but not limited to voice, far as possible and appropriate that persons providing
video, or data, whether or not the transmission similar services are treated similarly, considering
medium is owned by the provider itself. differences in circumstances, and to comply with
"Telecommunications services" includes telephone requirements of fede ral law which may require the
service but does not include over - the - air broadcasts to city to separate its authority over cable systems or
the public - at - large from fac ilities licensed by the open video systems from its authority over other
Federal Communications Commission or any providers of telecommunications services, the city
successor thereto. shall require individual franchises for the provision of
particular servi ces. The revocation of a franchise for
Transfer means any transaction in which: one particular service in and of itself will not affect
(i) all or a portion of the cable system or open video the authority of a franchise holder to continue to
system is sold or assigned (except a sale or provide services for which it holds other franchises.
assignment that results i n removal of a particular No franchise shall be exclusive and competition shall
portion of the facility from the public rights - of - way); be encouraged. The issuance of a franchise shall not
(ii) there is any change, acquisition, or direct or affect the city's right to itself construct, operate, or
indirect transfer of control of the franchisee or repair any cable system or open video system, with or
licensee; or (iii) the rights and/or obligations held by without a franchise.
the franchisee or licensee under the franchise or
license are transferred, sold, assigned, or leased, in (3) Exceptions . A franchise requirement may
whole or in part, directly or indirectly, to another be waived for a cable syst em or an open video system
party. In succeeding provisions of this chapter, all that is not designed to provide service in the city, and
these activities are referred to as franchise transfers. that does not provide service in the city. For such
(Or d. No. 00 - 31, § 1, 6 - 20 - 00) facilities, the city may issue a license. Every license
shall require the licensee to obtain a franchise if it is
determ ined that the license is being used in a manner
Sec. 5 - 7. Franchise required. that creates a competitive advantage for that operator
or otherwise unduly discriminates in favor of such
(1) Every operator must obtain . A cable operator. In any case, the license must provide that if
operator must obtain a franchise prior to constructing limitations of license are violated, the lic ensee must
pay the maximum franchise fee required by Articles
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IIB and IIC and otherwise bring itself into
compliance with this chapter.
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(4) Nature of grant . Neither a franchise nor a
license shall convey title, equitable or legal, in the
rights - of - way. The right is only the personal right to
occupy rights - of - way, for the purposes and for the
period stated in the franchise or license; the right may
not be subdivided or subleased.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see S ection
5 - 11
Sec. 5 - 8. Compensation required.
(1) Every operator must pay . Every cable
operator and every operator of an open video system
must pay a fee except as provided in Section 5 - 8(2).
Except as provided in Section 5 - 8(2), this fee shall
be bas ed upon a percentage of gross revenues.
(2) Exceptions . The franchise fees required
under Articles IIB and IIC need not be paid if:
(A) State law or charter requires otherwise;
or during any transition period for a current franchise
holder. In case s subject to this exception, the highest
permissible fee shall be paid.
(B) In the case of a cable system or an
open video system that is not designed to provide
service in the city, and that does not provide service
in the city. The city shall establi sh a fee in lieu of the
fees specified in Articles IIB and IIC that recovers an
amount equivalent to the fair market value of the
property used in the City and reserves the right to
charge additional fees as contemplated by Section 5 -
8(4).
(3) Applicat ion to persons that provide
different types of services . The fact that a fee is paid
on one type of service provided over a cable or open
video system, does not excuse an operator from its
duty to pay fees on other types of services provided
over that fa cility. As an example, and not as a
limitation of the foregoing, a cable operator that pays
a franchise fee on revenues derived from the
provision of cable services must pay the fees imposed
upon
telecommunication service providers to the ex tent
that it provides telecommunications services;
likewise, the operator of a telecommunications
facility must pay a franchise fee to the extent it
provides cable services to subscribers via a cable
system.
(4) General rules for payment of fees.
( A) Unless otherwise specified in a
franchise agreement or a license, franchise and
license fees shall be paid to the city quarterly, and not
later than forty - five (45) calendar days after the end
of each calendar quarter.
(B) Unless a franchise agreemen t or
license provides otherwise, each franchise or license
fee payment shall be accompanied by a statement
showing the manner in which the fee was calculated.
(C) No acceptance by the city of any
franchise or license fee shall be construed as an
accord that the amount paid is in fact the correct
amount, nor shall such acceptance of such franchise
fee payment be construed as a release of any claim
the city may have for additional sums payable.
(D) The franchise or license fee payment is
not a payment i n lieu of any tax, fee or other
assessment except as specifically provided in this
title, or as required by applicable law. By way of
example, and not limitation, permit fees and business
license taxes are not waived and remain applicable,
and other fees and assessments to recover costs
associated with operating and maintaining the right -
of - way that may be established from time to time by
resolution of the city commission.
(E) Within ninety (90) calendar days
following the end of the calendar year, ea ch person
which paid a franchise fee based upon gross revenues
shall submit a statement, attested to by a certified
public accountant or the chief financial officer of
such person, setting forth gross revenues of the cable
or open video system, by categor y, and describing
what revenues were included and what revenues, if
any, generated or derived from operations in the city
were excluded in the fee calculation, and any
adjustments made to gross revenues. If payments are
late, in addition to paying any appl icable penalties or
damages, the person that owes the fee shall pay
Cable Systems and Open Video Systems
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interest on the amount owed at the statutory interest limitation, this includes zoning codes and safety
rates applicable to judgments. codes. In addition, the construction, operation and
repair shall be performed in a manner consistent with
(F) The city may, upon five (5) business high industry stan dards. Persons engaged in the
days advan ce written notice, inspect and examine any construc - tion, operation or repair of cable or open
and all books and records reasonably necessary to the video systems shall exercise reasonable care in the
determination of whether fees have been accurately performance of all their activities, and use commonly
computed and paid. accepted methods and devices for preventing failures
and accidents t hat are likely to cause damage, injury,
(G) Notwithstanding the foregoing, in the or nuisance to the public or to property.
event that a person that is obligated to pay a fee
ceases to provide service for any reason (including as (B) Construction, operation or repair of a
a result of a transfer), such person shall make a final cable or open video system shall not commence until
payment of any amounts owed to the city within written permits, if required, have been properly filed
ninety (90) calendar days of the date its operations in for and obtained fro m the proper city officials and all
the city cease, and shall provid e a statement of gross required permits and associated permit fees paid. In
revenues for the calendar year through the dates any permit so issued, the city may impose as a
operations ceased, which statement shall contain the condition of the granting of the permit such
information and certification required by Section 5 - conditions and regulations as may be necessary to the
8(4)(E). manage - ment of the ri ght - of - way, including, by way
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section of example and not limitation, for the purpose of
5 - 11 protecting any structures in the public rights - of - way,
for the proper restoration of such public rights - of - way
and structures, and for the protection of the city and
Sec. 5 - 9. General conditions upon use of the public and the continuity of pedestrian and
rights - of - way. vehicular traffic.
(1) Responsibility for costs. Except as (C) Without limiting the foregoing, cable
expressly provided otherwise, any act that a cable or or open video systems shall be constructed, operated
open video systems operator, its contractors or and repaired in accordance with good engineering
subcontractors are required to perform under this practices. No work on the facilities shall be
section shal l be performed at their cost. If a cable or perfor med except by experienced and properly
open video systems operator fails to perform work trained personnel. The operator of a cable or open
that it is required to perform within the time provided video system is responsible for all the acts of its
for performance, the city may perform the work, and contractors and subcontractors, and for ensuring that
bill the cable or open video systems operator therefor . its contractors and subcontractors perform all work in
The cable or open video systems operator shall pay comp liance with this chapter and any applicable
the amounts billed within thirty (30) calendar days. franchise agreement.
(2) Construction procedures and placement of (D) Operators of cable or open video
facilities; obligation to minimize interference with use systems must follow city - established requirements for
of rights - of - way . placement of facilities in rights - of - way, and must in
any event install facilities in a mann er that minimizes
(A) The construction, operation and repair interference with the use of the rights - of - way by
of cable or open video systems are subject to the others, including others that may be installing
supervision of all of the authorities of the city that communications facilities. The city may require that
have jurisdiction in such matters, and shall be facilities be installed at a particular time, place, or
performed in compliance with all laws, ordinances, manner as a condition of access to a particular right -
departmental rules and regulat ions and practices of - way, and may require a person using the right - of -
affecting such system. By way of example, and not
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way to cooperate with others to minimize adverse water pipes, power lines, signal lines, tracks, or any
impacts on the right - of - way through joint trenching other type of government - owned communications or
and other arrangements.
2000 S - 13
(E) To the extent poss ible, operators of cable or open video system, p ublic work or improve -
cable or open video systems shall use existing poles ment of any government - owned utility; public right -
and existing conduit in installing their system. In no of - way vacation; or for any other purpose where the
case may additional poles be installed in the right - of - work involved would be aided by the removal or
way without the permission of the city; any person relocation of the cable or open video system.
who is permitted to in stall poles must lease capacity Collectively, such matters are referre d to below as the
on those poles to others, at a rate not higher than the “public work.”
rate that would be permitted if 47 USC 224 applied.
1. Except in the case of
(F) Except as city may direct otherwise, emergencies, the city shall provide written notice
cable or open video systems may be constructed describing where the public work is to be performed
overhead where poles ex ist and electric or lines of a at least thirty (30) calendar days prior to the deadline
local exchange carrier franchised before 1990 are by which a cable or open video sys tem operator must
overhead, but where both electric or such telephone protect, support, temporarily disconnect, relocate or
lines are underground, or are being initially placed remove its facilities. A cable or open video system
underground (whether voluntarily or at the city's operator may seek an extension of the time to
direction), other ca ble or open video systems shall be perform such tasks where they cannot be performed
constructed underground. Whenever and wherever in thirty (30) calendar days and su ch request for an
the owner of the poles upon which aerial facilities are extension shall not be unreasonably refused.
located moves its plant from overhead to
underground placement in an area, all cable or open 2. In the event of an emergency, or
video systems in that are a shall be similarly moved where a cable or open video system creates or is
underground. contributing to an imminent danger to health, safety,
or property, the city may protect, support, tempo rarily
(G) Any and all public rights - of - way, disconnect, remove, or relocate any or all parts of the
public property, or private property that is disturbed cable or open video system without prior notice, and
or damaged during the construction, operation or charge the cable or open video system operator for
repair of a cable or open video system shall be costs incurred. In case of such emergency, where in
promptly repaired b y the cable or open video system's the judgment of the city, conditions permit, the city
operator. shall reasonably attempt to notify the cable or open
video system operator.
(H) Tree trimming shall be performed in
strict accordance with the City Code. (B) If any person that is authorized to
place facilities in the right - of - way requests another
(3) Relocation of facilities. cable or open video system operator receiving the
request to pro tect, support, temporarily disconnect,
(A) A cable or open video system operator remove, or relocate its facilities to accommodate the
shall, by a time specified by the city, protect, supp ort, construction, operation, or repair of the facilities of
temporarily disconnect, relocate, or remove any of its such other person, the cable or open video system
property when required by the city or any other operator shall, after thirty (30) calendar days' advance
governmental entity by reason of traffic conditions; written notice, take action to effect the necessary
public safety; public right - of - way construction; changes requested. Unless the matter is governed by
public right - of - way repair (including resurfac ing or a valid contract or a state or federal law or regulation,
widening); change of public right - of - way grade; or in other cases where the cable or open video
construction, installation or repair of sewers, drains, system that is being requested to move was no t
properly installed, the reasonable cost of the same relocation and at no charge to the city.
shall be borne by the party requesting the protection,
support, temporary discon - nection, removal, or
Cable Systems and Open Video Systems
7
(C) A cable or open video system 2000 S - 13
operator shall, on the request of any person holding
a valid permit issued by a governmental authority,
temporarily raise or lower its wires to permit the
moving of buildings or other objects. The expense of
such tempora ry removal or raising or lowering of
wires shall be paid by the person requesting the same.
A cable or open video system operator shall be given
not less than seven (7) calendar days advance notice
to arrange for such temporary wire changes.
(D) A cabl e or open video system operator
may abandon any property in place upon notice to the
city, unless the city determines, in the exercise of its
reasonable discretion within ninety (90) calendar days
of the notice of abandonment from the operator, that
the sa fety, appearance, functioning or use of the
public right - of - way and facilities in the public right -
of - way will be adversely affected thereby, in which
case the operator must remove its property within a
reasonable period of time specified by the city.
(E) If a state statute requires the city to
compensate a person for the cost of relocation or
removal, nothing in this chapter shall be read to
abrogate any right such person may have to that
compensation.
(4) Facility subject to inspection; operator
m ust provide information. Every cable or open video
system shall be subject to the right of periodic
inspection and testing by the city to determine
compliance with the provisions of this chapter, a
franchise or license agreement, or other applicable
law. The city shall have the right, upon written
request, to be notified and present when the cable or
open video system is tested by the operator for its
semi - annual FCC testing. Each operator must respond
to requests for information regarding its system and
p lans for the system as the city may from time to time
issue, including requests for information regarding its
plans for construction, operation and repair and the
purposes for which the plant is being constructed,
operated or repaired.
(5) Underground services alert . Each operator
of a cable or open video system that places facilities
underground shall be a member of the regional
notification center for subsurface installations
(underground services alert) and shall field mark the
locations of its underground cable or open video
system upon request. The operator shall locate its
facilities for the city at no charge.
(6) Publicizing Work.
(A) A cable or open video system operator
shall publicize the initial build or any substantial
reb uild, upgrade, or extension of its facility that
involves work in public rights - of - way in each
affected neighborhood at least one (1) week prior to
commencement of that work by causing written
notice of such construction work to be delivered to
the city an d by notifying those persons whose
property is within 300 feet of the work in at least two
(2) of the following ways: by telephone, in person, by
mail, by distribution of flyers to residences, by
publication in local newspapers, or in any other
manner reas onably calculated to provide adequate
notice. Apart from any initial build or substantial
rebuild or upgrade, any underground construction
will be publicized in accordance with applicable
notice requirements. In other cases, before entering
onto any privat e property to perform work, a cable or
open video system operator shall use its best efforts
to contact the property owner or (in the case of
residential property) the resident at least one (1) day
in advance, and describe the work to be performed.
(B) Each cable or open video system
owner shall provide the city a plan for any initial
system construction, or for any substantial rebuild,
upgrade or extension of its facility, which shall show
its timetable for construction of each phase of the
project, and the areas of the city that will be affected.
(7) No discrimination.
(A) A cable or open video system operator
shall not deny service, deny access, or otherwise
discriminate against subscribers, programmers, or
residents of the city on the basis of r ace, color, creed,
national origin, sex, age, conditions of physical
handicap, religion, ethnic background, marital status,
or sexual orientation.
(B) A cable or open video system operator
shall not discriminate among persons or the city or
take any ret aliatory action against a person or the city
because of that entity's exercise of any right it may
Boynton Beach Code
8
have under federal, state, or local law, nor may the 2000 S - 13
operator require a person or the city to waive such
rights as a condition of taking service.
(C) A cable or open video system operator
shall not deny access or levy different rates and
charges on any group of potential customers because
of the income of the residents of the local area in
which such group resides.
(D) A cable or open video system operator
shall comply with all federal, state, and local laws
and regulations governing equal employment
opportu - nities, as the same may be from time to time
amended.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 10. Protection of the city and residents.
(1) Indemnification .
(A) The city may not enter into any
franchise, or otherwise authorize any cable or open
video system operator to use the public rights - of - way,
until and unless the city obtains an adequa te
indemnity from such operator. The indemnity must at
least:
1. Release the city from and against
any and all liability and responsibility in or arising
out of the construction, operation or maintenance of
the cable or open video system.
2. Indemnify and hold harmless the
city, its trustees, elected and appointed officers,
agents, and employees, from and against any and all
claims, demands, or causes of action of whatsoever
kind or nature, and the resulting losses, costs,
expenses, reasonable attorneys' fees, reasonable
paralegal expenses, liabilities, damages, orders,
judgments, or decrees, sustained by the city or any
third party arising out of, or by reason of, or resulting
from or of the acts, errors, or omissions of the cable
or open vide o system operator, or its agents,
independent contractors or employees related to or in
any way arising out of the construction, operation or
repair of the facility.
3. Provide that the covenants and
representations relating to the indemn ification
provision shall survive the term of any agreement and
continue in full force and effect as to the party's
responsibility to indemnify.
(2) Insurance. The city may not enter into any
franchise, or otherwise authorize any cable or open
video sys tem operator to use the public rights - of - way,
until and unless the city obtains assurance that such
operator (and those acting on its behalf) have
adequate insurance. At a minimum, the following
requirements must be satisfied.
(A) A cable or open video system operator
shall not commence construction or operation of the
facility without obtaining all insurance required under
this section and approval of such insurance by Risk
Management of the city, nor shall a cable or open
video system operator allow a ny contractor or
subcontractor to commence work on its contract or
subcontract until all similar insurance required of the
same has been obtained and approved. The required
insurance must be obtained and maintained for the
entire period the cable or open v ideo system operator
has facilities in the right - of - way, and for a period
thereafter as specified in the minimum coverages
described below. If the operator, its contractors or
subcontractors do not have the required insurance, the
city may order such enti ties to stop operations until
the insurance is obtained and approved.
(B) Certificates of insurance, reflecting
evidence of the required insurance, shall be filed with
the Risk Manager Coordinator. For entities that are
entering the market, the certifi cates shall be filed
prior to the commencement of construction and once
a year thereafter, and as provided below in the event
of a lapse in coverage. For entities that have facilities
in the right - of - way as of the effective date of this
chapter, the certif icate shall be filed within sixty (60)
calendar days of the adoption of this chapter,
annually thereafter, and as provided below in the
event of a lapse in coverage, unless a pre - existing
franchise agreement provides for filing of certificates
in a differe nt manner.
Cable Systems and Open Video Systems
9
(C) These certificates of insurance shall to the city. Policies shall be issued by companies
contain a provision that coverages afforded under authorized to do business under the laws of the State
these policies will not be canceled until at least thirty of Florida. Financial ratings must be no less than "A"
(30) calendar days prior written notice has be en given in the latest edition of Best's Key Rating Guide ,
published by A.M. Best Guide. Completed Operations and Products
Liabi lity shall be maintained for two (2) years after
(D) In the event that the insurance the termination of the franchise agreement or license
certificate provided indicates that the insurance shall agreement (in the case of the cable or open video
terminate or lapse during the period of this contract, system operator) or completion of the work for the
then in that event, the cable or open video system cable or open video system operator (in the case of a
operator shall furnish, at least thirty (30) calendar contractor or subcontractor).
days pr ior to the expiration of the date of such
insurance, a renewed certificate of insurance as proof Property Damage Liability Insurance shall
that equal and like coverage for the balance of the include coverage for the following hazards: X –
period of the franchise or license under which cable explosion, C – Collapse, U – underground.
or open video system operates.
2. Workers' Compensation
(E) A cable or open video system operator, Insurance shall be maintained during the life of this
and its contractors or subcontractors engaged in work contr act to comply with statutory limits for all
on the operator's behalf in, on, under or over public employees, and in the case any work is sublet, each
rights - of - way, shall maintain the following minimum cable or open video system operator shall require the
insurance: subcontractors similarly to provide Workers'
Compensation Insurance for all the latter's
1. Comprehensive General Liability employees, unless such employees are covered by the
Insurance to cover lia bility bodily injury and property protection afforded by each cable or open video
damage. Exposures to be covered are: premises, system operator. Each cable or open video system
operations, products/completed operations, and operator and its contractors and subcontractors shall
certain contracts. Coverage must be written on an maintain, during the life of this policy, Employers
occurrence basis, with the following limits of Liability Insuran ce. The following limits must be
liability: maintained:
Bodily Injury. Workers' Compensation: Statutory
Each Occurrence: $1,000,000 Employer's Liability: $500,000 per
Annual Aggregate: $3,000,000
Property Damage.
Each Occurrence: $1,000,000
Annual Aggregate: $3,000,000
Personal Injury.
Annual Aggregate: $3,000,000
3. Comprehensive Auto Liability.
2000 S - 13 Bodily Injury.
Each Occurrence: $1,000,000
Annual Aggregate: $3,000,000
Property Damage.
Each Occurrence: $1,000,000
Annual Aggregate: $3,000,000
Coverage shall include owned, hired and non -
owned vehicles.
Boynton Beach Code
10
(F) Each cable or open video system security fund/letter of credit is not necessary to secure
operator shall hold the city, its agents, a nd the required performance. The city may, from time to
employees, harmless on account of claims for time, upon reasonable notice and after the cable o r
damages to persons, property or premises arising out open video system
of its construction, operation or repair of its cable or
open video system and name the city as an additional 2000 S - 13
insured.
(3) Performance/payment bonds . Eve ry
operator of a cable or open video system may be
required to obtain performance bonds and, if
necessary, payment bonds to ensure the faithful
performance of its responsibilities under this chapter
and any franchise agreement or license for an initial
bu ild, any substantial rebuild, upgrade, or extension
of its facility, or when construction plans show that
there would be more than one thousand (1,000) feet
of open trenching in the right - of - way at any given
time. The amount of the performance and payment
bonds shall be set by the city manager in light of the
nature of the work to be performed, and is not in lieu
of any additional bonds that may be required through
the permitting process. The bond shall be in a form
acceptable to the city attorney. The city may, from
time to time, increase the amount of the required
performance bond to reflect increased risks to the city
and to the public.
(4) Security fund . Every cable or open video
system operator shall establish a $25,000 cash
security fund, or provid e the city an irrevocable letter
of credit in the same amount, to secure the payment
of fees owed, to secure any other performance
promised in a franchise agreement, and to pay any
taxes, fees or liens owed to the city. The letter of
credit shall be in a f orm and with an institution
acceptable to the city attorney and director of
financial management. Should the city draw upon the
cash security fund or letter of credit, it shall promptly
notify the cable or open video system operator, and
the cable or open video system operator shall
promptly restore the fund or the letter of credit to the
full required amount. This security fund/letter of
credit may be waived or reduced by the city for a
franchisee or licensee where the city determines in its
discretion th at a particular franchisee's or licensee's
operations are sufficiently limited that a $25,000
operator has had an opportunity to respond thereto,
increase the amount of the required security
fund/letter of credit to reflect increased risks to the
city and to the public.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see S ection
5 - 11
Sec. 5 - 11. Enforcement and remedies.
(1) Administration. The city manager or its
designee is responsible for enforcing and
administering this chapter, and the city manager or its
designee is authorized to give any notice required by
law or under any franchise agreement, including by
way of example and not limitation, a notice required
under 47 USC 626. The city manager or its designee
is also authorized to seek information from any cable
or open video system operator, to establish forms fo r
submission of applications and other information, and
to take all other actions necessary or appropriate to
the administration of this chapter. Franchises may
only be issued or revoked by action of the city
commission.
(2) Application for a franchise.
(A) An application must be filed for an
initial franchise or license; for a transfer; or for
renewal of a franchise or license. Each entity that is
required to hold a franchise or license must submit an
application therefore to the financial managemen t
department or as otherwise designated by the city, in
accordance with the requirements of Articles IIB and
IIC. To be accepted for filing, an original and six (6)
copies of a complete application must be submitted to
the purchasing division, financial ma nagement
department. All applications shall be available for
public inspection. All applications shall include the
names and addresses of persons authorized to act on
behalf of the applicant with respect to the application.
(B) An application may be fil ed by any
person on that person's own initiative or in response
to a request for proposals. The purchasing adminis -
trator is authorized to issue requests for proposals
from time to time.
(C) Every application shall be
accompanied by a nonrefundable fe e in amounts
established from time to time by the city commission
by resolution.
Cable Systems and Open Video Systems
11
(D) An applicant that is awarded a 2000 S - 13
franchise or license shall pay to the city a sum of
money sufficient to reimburse it for all publication
expenses incurred by it in connection with the
granting of a franchise or license pursuant to the
provisions of this article. Such payment shall be made
within thirty (30) calendar days after the city
furnishes the franchisee or licensee wi th a written
statement of such expenses by delivery of same to the
city clerk.
(E) Notwithstanding any other provision
of this chapter, pledges in trust or mortgages of the
assets of a franchised or licensed cable or open video
system to secure the cons truction, operation or repair
of the system may be made without application and
without the city's prior consent; except that no such
arrangement may be made if it would in any respect
under any condition prevent the cable or open video
system operator or any successor from complying
with the franchise or license and applicable law, nor
may any such arrangement permit a third party to
succeed to the interest of the operator, or to own or
control the cable or open video system without the
prior consent of th e city. Any mortgage, pledge or
lease shall be subject and subordinate to the rights of
the city under this chapter or other applicable law.
(3) Minimum contents of every franchise or
license . In addition to satisfying the other applicable
requirements of Article II, every franchise agreement
or license for a cable or open video system shall
contain the following provisions:
(A) The franchise agreement or license
shall provide that neither the granting of any
franchise or license, or any provision the reof, shall
constitute a waiver or bar to the exercise of any
governmental right or power, police power, or
regulatory power of the city as may exist at the time
the franchise is issued or thereafter be obtained.
(B) The franchise agreement or license
s hall only authorize occupancy of the right - of - way to
provide the services and for the purposes described in
the franchise or license.
(C) A franchise or license shall be a
privilege that is held in the public trust and personal
to the original franchise e. The franchise agreement or
license shall ensure that no transfer of the franchise or
license may occur, directly or indirectly, without the
prior consent of the city; except as contemplated by
Section 5 - 11(2)(E).
(D) The franchise agreeme nt or license
shall ensure that any person placing a cable or open
video system in the right - of - way will not discriminate
in hiring, in contracting, or in the provision of
services.
(E) The franchise agreement or license
shall contain appropriate provi sions for enforcement,
compensation, and protection of the public, consistent
with the other provisions of this chapter.
(F) The franchise or license shall be for a
specified term, set forth in the franchise agreement or
license. No franchise issued un der this chapter shall
be for a term of longer than ten (10) years; no license
issued under this chapter shall be for a term of longer
than five (5) years.
(4) Penalties . Any person who violates any
provision of this chapter shall be fined for each da y
the violation continues in accordance with Chapter
162 of the 1996 Florida Statutes, as amended.
(5) Revocation, reduction of term, or forfeiture
of franchise or license .
(A) Licenses shall be revocable at the will
of the city commission.
(B) W here, after notice and providing the
franchisee an opportunity to be heard (if such
opportunity is timely requested by a franchisee), the
city finds that the facility is being operated in
violation of this chapter or substantial violation of the
terms of t he franchise agreement, the city may make
an appropriate reduction in the remaining term of the
franchise or to revoke the franchise. The city manager
is authorized to establish and conduct a proceeding
that comports with the requirements of this Section 5 -
11(5)(B), and to issue a recommended decision, but
any such decision may be appealed to the city
commission. Any appeal must be filed within thirty
(30) calendar days of the decision of the city manager
or it shall be deemed waived. Notwithstanding the
Boynton Beach Code
12
foregoing, the franchise may not be revoked unless the franchisee:
period:
1. Was given notice of the default;
1. Such assignment, receivership or
2. Was given thirty (30) calendar trusteeship has been vacated; or
days to cure the default; and
2. Such assignee, receiver or trustee
3. Failed to cure the default, or to has fully complied with the terms and conditions of
propose a s chedule for curing the default acceptable this chapter and the franchise agr eement and has
to the city where it is impossible to cure the default in executed an agreement, approved by a court having
thirty (30) calendar days. jurisdiction, assuming and agreeing to be bound by
the terms and conditions of this chapter and the
The required notice may be given before franchise agreement.
the city conducts the proceeding required by this
section. No opportunity to cure is required for (F) Notwithstanding the foregoing, in the
repeated violations, and fraud shall be deemed event of foreclosure or o ther judicial sale of any of
incurable. the facilities, equipment or property of a franchisee,
the city may revoke the franchise, following a public
(C) Notwithstanding the foregoing, the city hearing before the city commission, by serving notice
may declare a franchise forfeited where the upon the franchisee and the successful bidder at the
franchisee: sale, in wh ich event the franchise and all rights and
privileges of the franchise will be revoked and will
1. Fails to begin to exercise its rights terminate thirty (30) calendar days after serving such
under the franchise within a peri od specified in the notice, unless:
franchise agreement;
1. The city has approved the transfer
2. Stops providing service it is of the franchise to the successful bidder; and
required to provide in the franchise;
2. The successful bidder has coven -
3. Without the prior consent of the anted and agreed with the city to assume and be
city, transfers the franchise; or bound by the terms and conditions of the franchise
agreement and this chapter.
4. Fails to pay any fees required
hereunder, including, but not limited to, application (6) Effect of termination or forfeiture . Upon
fees, permit fees, or franchise fees. termination or forfeiture of a license or franchise,
whether by action of the city as provided above, or by
(D) The city shall give a franchisee thirty passage of time, the franchisee or licensee shall be
(30) calendar days notice of an intent to declare a obligated to cease using the cable or open video
franchise forfeited, and shall provide the franchisee system for the purposes authorized by the franchise.
an opportunity to show cause why t he franchise The city may either take possessi on of some or all of
should not be forfeited. the licensee's or franchisee's facilities in the public
rights - of - way after furnishing the cable or open video
(E) Notwithstanding the foregoing, any system operator with written notice and granting the
franchise may, at the option of the city following a cable or open video system operator a reasonable
public hearing before the city commission, be period of time, but in no event more than thirty (30)
revoked one hundred twenty (120) calendar days after calendar days, to remove same, or require the licensee
an assignment for the be nefit of creditors or the or franchisee or its bonding company to remove some
appointment of a receiver or trustee to take over the
business of the franchisee, whether in a receivership,
2000 S - 13
reorganization, bankruptcy assignment for the benefit
of creditors, or other action or proceeding, unless
with in that one hundred twenty (120) calendar day
Cable Systems and Open Video Systems
13
or all of the licensee's or franchisee's facilities from derived from the
the public r ights - of - way and restore the public rights -
of - way to their proper condition. Should the 2000 S - 13
franchisee or licensee neglect, refuse, or fail to
remove such facility, the city may remove the facility
at the expense of the franchisee or licensee. The
obligation o f the licensee or franchisee to remove
shall survive the termination of the franchise or
license for a period of two (2) years. Provided that the
city may not take possession of, or require the
franchisee or licensee to remove, any facilities that
are used to provide another service for which the
franchisee holds a valid franchise or license issued by
the city.
(7) Remedies cumulative. All remedies under
this chapter and any franchise agreement are
cumulative unless otherwise expressly stated. The
exerc ise of one remedy shall not foreclose use of
another, nor shall the exercise of a remedy or the
payment of liquidated damages or penalties relieve a
cable or open video system operator of its obligations
to comply with its franchise. Remedies may be used
s ingly or in combination; in addition, the city may
exercise any rights it has at law or equity. Recovery
by the city of any amounts under insurance, the
performance bond, the security fund or letter of
credit, or otherwise does not limit a cable or open
vi deo system operator's duty to indemnify the city in
any way; nor shall such recovery relieve a cable or
open video system operator of its obligations under a
franchise, limit the amounts owed to the city, or in
any respect prevent the city from exercising any other
right or remedy it may have. Nothing herein shall be
read to authorize the double - recovery of damages.
(8) Access to books and records .
(A) Each cable or open video system
operator shall, upon thirty (30) calendar days, if
reasonably possib le, but in no event less than five (5)
business days written notice, provide the city access
to all books and records related to the construction,
operation, or repair of the cable or open video system
so that the city may inspect these books and records.
Any and all non - proprietary or non - confidential
books and records may be copied by the city. The
operators' obligation includes the obligation to
produce all books and records related to revenues
operation of the cable or ope n video system. An
operator is responsible for obtaining or maintaining
the necessary possession or control of all books and
records related to the construction, operation or repair
of the cable or open video system, so that it can
produce the documents up on request. Books and
records must be maintained for a period of five (5)
years, except that any record that is a public record
must be maintained for the period required by state
law; and a franchise may specify a shorter period for
certain categories of voluminous books and records
where the information contained therein can be
derived simply from other materials.
(B) For purposes of this chapter, the terms
"books and records" shall be read expansively to
include information in whatever format stored . Books
and records requested shall be produced to the city at
City Hall, except by agreement or pursuant to Section
5 - 11(8)(C).
(C) If any books and records are too
voluminous, or for security reasons cannot be copied
and moved, then a cable or open video system
operator may request that the inspection take place at
some other location mutually agreed to by the city
and the operator, provided that the operator must
make necessary arrangements for copying documents
selected by the city after its revie w; and the operator
must pay all travel and additional copying expenses
incurred by the city in inspecting those documents or
having those documents inspected by its designee.
(D) Without limiting the foregoing, the
operator of a cable or open video sys tem shall
provide the city the following within ten (10)
calendar days of their receipt or (in the case of
documents created by the operator or its affiliate)
filing:
1. Notices of deficiency or forfeiture
related to the operation of the cable or open video
system, and
2. Copies of any request for protec -
tion under bankruptcy laws, or any judgment related
to a declaration of bankruptcy by the franchisee or by
any partnership or corporation that owns or controls
the franchisee directly or indirec tly.
Boynton Beach Code
14
(9) Retention of records; relation to privacy rights. Each cable or open video system operator
shall take all reasonable steps required, if any, to
ensure that it is able to provide the city all information manager, and the city commission may adjust, settle
which must be provided or may be requested under or compromise any controversy or cancel any charge
this chapter, a franchise agreement, or applicable law, arising from the operations of any franchisee or from
including by providing appropriate subscriber privacy any provision of this article.
notices. Each operator shall be responsible for reacting
any data that applicable law prevents it from prov iding (14) No waiver . The failure of the city to insist
to the city. Nothing in this section shall be read to on time ly performance or compliance by any person
require an operator to violate state or federal law holding a license or franchise shall not constitute a
protecting subscriber privacy. waiver of the city's right to later insist on timely
performance or compliance by that person or any
(10) Reports . The city may require operators of other person holding such a license or franchise.
a cable or open video system to maintain records, and
to prep are reports relevant to determining the (15) Ordinance not a contract . The city
compliance of the cable or open video system operator expressly reserves the right to amend this chapter
with the terms and conditions of this chapter and a from time to time in the exercise of its lawful powers.
franchise agreement. This and any ordinance adopting provisions of this
chapter shall not be construed to be a contract.
(11) Maps . Each cable or open video system (Ord. No. 0 0 - 31, § 1, 6 - 20 - 00; Ord. No. 02 - 033, § 1,
operator shall maintain accurate maps an d improve - 8 - 20 - 02)
ment plans which show the location, size, and a
general description of all facilities installed in the
rights - of - way and any power supply sources Sec. 5 - 12. Transitional provisions.
(including voltages and connections). Maps shall be
based upon post - construction (as - built) inspecti on to (1) Persons operating without a franchise or
verify location. The operator of each cable or open license . The operator of any facility, the operation of
video system shall provide a map to the city showing which is required to be franchised or licensed under
the location of its facilities, in such detail and scale as this chapt er, shall have three months from the
may be directed by the city engineer. New maps shall effective date of this chapter to file one or more
be promptly submitted to the cit y when the facility applications for a franchise or a license under this
expands or is relocated. Copies of maps shall be chapter.
provided on disk, in a format specified by the city
engineer. (2) Persons holding franchises or licenses.
Any person holding an outstanding franchise from the
(12) Compliance with laws. Each franchisee city f or a cable system to provide specified services
shall comply with all applicable laws heretofore and may continue to operate under the existing franchise
hereafter adopted or es tablished during the entire term to the conclusion of its present term (but not any
of its franchise. renewal or extension thereof) with respect to those
activities expressly authorized by the franchise or
(13) Reservation of authority. The city may do license; provided, however, that such franchisee or
all things which are necessary and convenient in the licensee may elect at any time to apply for a
exercise of its jurisdiction under this article. The city superseding franchise or license under this chapter,
manager or its designee is hereby authorize d and and must seek additional franchises or licenses to
empowered to adjust, settle or compromise any provide other services. Provided further, that licens es
controversy involving performance or charges arising that are revocable at will may be revoked by the city,
from the operations of any franchisee under this article and the licensee may be required to obtain a new
on behalf of the city. The city commission may accept, license under this chapter.
reject or modify the decision of the ci ty
(3) Persons with pending applications .
Pending applications shall be subject to this chapter.
A person
2002 S - 18
Cable Systems and Open Video Systems
15
with a pending application shall be provided thirty
(30) calendar days from the effective date of this
chapter to submit additional information to comply 2000 S - 13
with the requirements of this governing applications
chap ter.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 13. Special rules for government
entities.
Nothing herein requires the city to apply the
provisions of these articles to a government entity if
the city determines that it is not in the public interest
to do so, and nothing in this chapter shall be read to
require a government entity to comply with this
chapter, where the city cannot enforce the chapter
against such entity as a matter of law.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00)
Secs. 5 - 14. — 5 - 15. Reserved.
IIB. SPECIAL RULES APPLICABLE TO
OPEN VIDEO SYSTEMS AND OPEN
VIDEO SYSTEM OPERATORS
Sec. 5 - 16. Application for a franchise.
(1) Contents of application for initial or
renewal franchise . In order to obtain an initial or
renewal f ranchise, an operator of an open video
system must apply for a franchise. The application
must contain the following information, and such
information as the city may from time to time require.
(A) Identity of the applicant, the persons
who exercise wor king control over the applicant and
the persons who control those persons, to the ultimate
parent.
(B) A proposal for construction of the
open video system that sets forth at least the
following:
1. A description of the services that
are to be provi ded over the facility.
2. The location of proposed facility
and facility design, including a description of the
miles of plant to be installed, where it is to be located,
and the size of facilities and equipment that will be
located in, on , over, or above the rights - of - way.
3. Identification of the area of the
city to be served by the proposed system, including a
description of the proposed franchise area's
boundaries.
(C) A description of the manner in which
the system will be i nstalled, and the time required to
construct the system, and the expected effect on right -
of - way usage, including information on the ability of
the rights - of - way to accommodate the proposed
system, including, as appropriate given the system
proposed, an es timate of the availability of space in
conduits and an estimate of the cost of any necessary
rearrangement of existing facilities.
(D) A description, where appropriate, of
how services will be converted from existing
facilities to new facilities, and wh at will be done with
existing facilities.
(E) Proof in the form of financial state -
ments, attested to by a certified public accountant,
that the applicant has the financial resources to
complete the proposed project, and to construct,
operate and repair the proposed facility over the
franchise term. It is not the intent of the city to
require an applicant to prove that the services it
proposed to offer will succeed in the marketplace.
(F) Proof that applicant is technically
qualified to construct, o perate and repair the proposed
facility. At a minimum, the applicant must show that
it has experience or resources to ensure that work is
to be performed adequately, and can respond to
emergencies during and after construction is
complete.
(G) Proof tha t the applicant is legally
qualified, which proof must include a demonstration
that the applicant:
1. Has received, or is in a position to
receive, necessary authorizations from state and
federal authorities;
Boynton Beach Code
16
2. Has not engaged in conduct (4) City review . The city may request such
(fraud, racketeering, violation of antitrust laws, additional information as it finds necessary, and
consumer protection laws, or similar laws) that allows require such modifications to the application as may
city to conclude the applicant cannot be relied upon be necessary in the exercise of the city's authority
to comply with requirements of franchise, or ov er open video systems. Once the information
provisions of this article; required by the city has been provided, the
application shall be promptly reviewed and shall be
3 . Was not a convicted vendor granted if the city finds that:
thirty - six (36) months or fewer prior to the date of the
application pursuant to Chapter 287, Florida Statutes, (A) The applicant has the qualifications to
or was removed from the convicted vendor list construct, operate and repair the sys tem proposed in
pursuant to Section 287.133, Florida Statutes; conformity with applicable law. The city shall
provide a reasonable opportunity to an applicant to
4. Is willing to e nter into a franchise, show that it would be inappropriate to deny it a
to pay required compensation and to abide by the franchise under Section 5 - 16(1)(G)2, by virtue of the
provisions of applicable law, including those relating particular circumstances surrounding t he matter and
to the construction, operation or maintenance of its the steps taken by the applicant to cure all harms
facilities, and has not entered into any agreement that flowing therefrom and prevent their recurrence, the
would prevent it fro m doing so. lack of involvement of the applicant's principals, or
the remoteness of the matter from the operation of an
(H) An affidavit or declaration of the open video system. An applicati on for a franchise
applicant or authorized officer thereof certifying the area shall not be granted if the franchisee has no plans
truth and accuracy of the information in the for constructing a system within the entire area for
application, and certifying that the application meets which the franchise is sought.
all requirements of applicable law.
(B) The applicant accepts the
(2) Addit ional information regarding affiliates; modifications required by the city to its proposed
presumptions. To the extent that the applicant is in system. This section shall not be read to authorize the
any respect relying on the financial or technical city to exercise authority it does not otherwise have
resources of another person, including another under applicable law.
affiliate, the proofs required by Section 5 - 16(1)(C) -
(E) should b e provided for that person. An applicant (C) The applicant enters into a franchise
will be presumed to have the requisite financial, or agreement and complies with any conditions
technical or legal qualifications to the extent such precedent to its effectiveness.
qualifications have been reviewed and approved by a
state agency of competent jurisdiction; or if applicant (D) In the ca se of a transfer, the city must
i s a holder of a franchise in the city for a cable system also determine that:
or open video system, and conduct under such other
franchise provides no basis for additional 1. There will be no adverse effect on
investigation. the public interest, or the city's interest in the
franchise;
(3) Applications for transfer . An application
for a transfer of a franchise must con tain same infor - 2. Transferee agrees to be bound by
mation required by Section 5 - 16(1), except that, if the all the conditions of the franchise and to assume all
transferor submitted an application pursuant to th e obligations of its predecessor; and
Section 5 - 16(1), to the extent information provided
by the transferor under Section 5 - 16(1) remains 3. Any outstanding compliance and
accurate, the transferee may simply cross - reference compensation issues are resolved or preserved to the
the earlier application. satisfaction of the city.
2000 S - 13
Cable Systems and Open Video Systems
17
(E) An applicant shall not be issued a
franchise if it files, or in the previous three years, 2000 S - 13
filed materially misleading information in a franchise ( 6) Customer Service Standard Certification .
application; or intentionally withheld information that An open video system that enters into an agreement
the applicant lawfully is required to provide. to comply with the customer service standards
applicable to cable systems may be certified by the
(5) Compensation . Every operator of an open city as "Consumer Friendly - CITY OF BOYNTON
video system shall pay compensation to the city as BEACH" for so lon g as it complies with those
follows: requirements.
(A) To the extent that the system is used to (7) Every cable or open video system and every
provide cable services: a percentage of gross cable or open video system operator shall be required
revenues (as that term is defined in Article IIC as if to interconnect with every other cable or open video
the open video system operator were a cable operator) system and cable or open video system operator
each quarter equal to the gross revenue percentage within the city on fair and reasonable terms for
paid by any cable operator for the same quarter. In purposes of providing PEG and I - Net services.
addition, unless a franchise agreement provides (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
otherwise, an open video system operator shall pay to 5 - 11
the city, at a time directed by the city, an amoun t
equal to the highest amount contributed by any cable
operator under its franchise for and in support of Secs. 5 - 17 – 5 - 20 Reserved.
public, educational and government use (including
institu - tional network use) of its cable system. To the
extent that a cable operator is providing ot her support IIC. SPECIAL RULES APPLICABLE
for public, educational or governmental use, the TO CABLE TELEVISION SYSTEMS
operator must duplicate that support within a time and
in a manner directed by the city, or provide a cash
equivalent acceptable to the city. In applying this Sec. 5 - 21. Definit ions.
section, the city shall ensure that the obligations
borne by the open video system operator are no Access channel means any capacity on a cable
greater or lesser than the obligation imposed upon the system set aside by a franchisee for public,
cable operator providing the greatest benefits to the educational, or governmental use.
community. The compensation required under this
section or specified in a franchise shall increase as the Basic cable service or basic service means any
compensation that a cable operator is required to service tier that includes the retransmission of local
provide (in cash and in other forms) increases. television broadcast signals.
(B) To the extent that the open video Cable Act means the Cable Communications
system is used for the provision of Policy Act of 1984, 47 USC 521 et seq ., as amended
telecommunications services, the open video system by the Cable Television Consumer Protection and
opera tor shall pay the fee required of a Competition Act of 1992, as further amended by the
telecommunications service provider. Telecommunications Act of 1996, as further amended
(C) Such other compensation as the city fr om time to time.
may charge in the future, consistent with federal or
state law, including fees imposed upon open video Equitable price means fair market value adjusted
system lessees. downward for the harm to the city or subscribers, if
any, resulting from a franchisee's breach of its
franchise agreement or violation of this chapter and
as further adjusted to account fo r other equitable
factors that may be considered consistent with 47
USC 547.
Boynton Beach Code
18
Fair market value means the price for the cable revenues; revenues from program guides; and
system valued as a going concern but with no value revenues from home shopping channels. Home
allocated to the franchise itself. shopping revenue shall be based on the number of
homes in a zip code area provided that where a
Governmental access channel means any common zip code serves more than one city, the
capacity on a cable system set aside by a franchisee revenues from that zip co de shall be allocated based
for government use. on the number of homes in the zip code area
attributable to the city divided by the total homes in
Gross revenues means any and all cash or other the zip code area. This provision shall be read broadly
consideration of any cable operator of a cable system to prevent the avoidance of franchise fees by a cable
in any way derived from the operation of that cable operator through ar rangements with affiliates. Gross
sy stem to provide cable services in the franchise revenues shall not include any taxes on services
area. Gross revenues include, by way of illustration furnished by a franchisee which are imposed directly
and not limitation, monthly fees charged subscribers on any subscriber or user by the state, city, or other
for any basic, optional, premium, per - channel, or per - governmental unit and which are collected by a
program service; installation, disconnection, franchisee on beha lf of said govern - mental unit; bad
reconnection, and change - in - service fees; leased debt expense; subscriber deposits in segregated
channel fees; late fees and administrative fees; accounts; or copyright fees. If an amount written off
revenues received from programmers for carriage of as bad debt is recovered, or if a deposit is applied to
programming on the cable system (excluding money unpaid service revenues, said amount shall be
received from programmers which is passed through included in the g ross revenue base.
to offse t the cost of launching the service including
equipment expense and cost, advertising expense as
well as other pass through incomes for advertising or
marketing such programming); revenues from rentals
or sales of converters or other equipment; advertising 2000 S - 13
Non - cable service means any service that is subscriber.
authorized to be distributed over the cable system, (Ord. No. 00 - 31, § 1, 6 - 20 - 00)
other than a cable service.
Public access channel means any capacity on a Sec. 5 - 22. No exclusivity.
cable system set aside by a franchisee fo r use by the
general public, including groups and individuals, and A franchisee may not require a subscriber or a
which is available for such use on a non - building owner or manager to enter into an exclusive
discriminatory basis. contrac t as a condition of providing or continuing
service. However, nothing herein prevents a fran -
Service tier means a package of two or more chisee from entering into an otherwise lawful,
cable services for which a separate charge is made by mutually desired exclusive arrangement with a
the franchisee, other tha n a package of premium and building owner or manager of a multiple dwelling
pay - per - view services that is not subject to rate unit or commercial su bscriber.
regulation under the Cable Act and applicable FCC (Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
regulations because those services are also sold on a 5 - 11
true à la carte basis.
Subscriber means the city, any government Sec. 5 - 23. Relation to 47 USC 545 — 546.
entity o r any person who legally receives any cable
service from a cable operator delivered over that This Article IIC shall be read and applied so that
cable operator’s cable system. it is consistent with Sections 625 and 626 of the
Cable Act, 47 USC 545 — 546.
User means a person or the city utilizing a (Ord. No. 00 - 31, § 1, 6 - 20 - 00)
channel, capacity or equipment and facilities for
purposes of producing or transmit ting material, as
contrasted with the receipt thereof in the capacity of a
Cable Systems and Open Video Systems
19
Sec. 5 - 24. Applications for grant, renewal, or the persons who control those persons, to the ultimate
modification of franchise. paren t.
(1) Written application. (B) Identification of the area of the city to
be served by the proposed cable system, including a
(A) A written application shall be filed description of the proposed franchise area's
with the city for grant of an initial franchi se; renewal boundaries.
of a franchise under 47 USC 546(a) - (g); or
modification of a franchise agreement pursuant to this (C) A detailed description of the physical
chapter or a franchise agreement. A request for facilities proposed, which shall include at least the
renewal may also be filed informally, pursuant to 47 following:
USC 546(h), as provided in Section 5 - 24(5).
1. A description of the channel
(2) Contents of applications. A request for capacity, technical design, performance character -
proposals for a franchise, including for a renewal istics, head - end, access (and institutional network)
franchise under 47 USC 546(c), shall require, and any facilities and equipment.
application submitted pursuant to this Section 5 - 24(1)
(and expressly not an informal renewal applicat ion 2. The location of proposed facility
submitted pursuant to 47 USC 546(h)) shall contain, and facility design, including a d escription of the
at a minimum, the following information: miles of plant to be installed, where it is to be located,
and the size of facilities and equipment that will be
(A) Identity of the applicant, the persons located in, on, over, or above the rights - of - way.
who exercise working control over the applicant, and
3. A description of the manner in required to construct the system, and the expected
which the system will be installed , and the time effect on rights - of - way usage, including information
on the ability of the rights - of - way to accommodate
the proposed system, including, as appropriate given
2000 S - 13 the system proposed, an estimate of the availability of
space in conduits and an estimate of the cost of any
necessary rearrangement of existing facilities.
4. A description, where appropriate,
of how services will be converted from existing
facilities to new facilities, and what will be done with
existing facilities.
(D) A demonstration of how the applicant
will reasonably meet the future cable - related needs
and interests of the community, including
descriptions of the capacity, facilities and support for
public, educa tional, and governmental use of the
cable system (including institutional networks)
applicant proposes to provide and why applicant
believes that the proposal is adequate to meet the
future cable - related needs and interests of the
community.
(E) A demon stration of the financial
qualifications of the applicant, including at least the
following:
1. The proposed rate structure,
including projected charges for each service tier,
installation, converters, and all other proposed
equipment or services;
2. A financial statement attested to
by a certified public accountant demonstrating the
applicant's financial ability to complete the
construction and operation of the cable system
proposed; and
3. Pro forma financial projections
for the proposed franc hise term, including a statement
of projected income, and a schedule of planned
capital additions, with all significant assumptions
explained in notes or supporting schedules.
(F) A demonstration of the applicant's
technical ability to construct and/or operate the
proposed cable system;
Boynton Beach Code
20
(G) Proof that the applicant is legally
qualified, which proof must include a demonstration 2000 S - 13
that the applicant:
1. Has received, or is in a position to
receive, necessary authorizations from state and
federal authorities;
2. Has not engaged in conduct
(fraud, racketeering, violation of antitrust laws,
consumer protection laws, or similar laws) that allows
city to conclude the applicant cannot be relied upon
to comply with requirements of franchise, or
provisions of this article;
3. Was not a convicted vendor
thirty - six (36) months or fewer prior to the date of the
application pursuant to Chapter 287, Florida Statutes,
or was removed from the convicted vendor list
pursuant to Secti on 287.133, Florida Statutes;
4. Is willing to enter into a franchise,
to pay required compensation and to abide by the
provisions of applicable law, including those relating
to the construction, operation or repair of its facilities;
and has not enter ed into any agreement that would
prevent it from doing so; and
5. The applicant must not have
submitted an application for an initial or renewal
franchise to the city, which was denied on the ground
that the applicant failed to propose a cable system
m eeting the cable - related needs and interests of the
community, or as to which any challenges to such
franchising decision were finally resolved (including
any appeals) adversely to the applicant, within three
(3) years preceding the submission of the appli cation.
The city shall provide a reasonable opportunity
to an applicant to show that it would be inappropriate
to deny it a franchise under Section 5 - 24(2)(G)2., by
virtue of the particular circumstances surrounding the
matter and the steps taken by the applicant to cure all
harms flowing therefrom and prevent their
recurrence, the lack of involvement of the applicant's
principals, or the remoteness of the matter from the
operation of a cable system.
(H) To the extent that the applicant is in
any respect relying on the financial or technical
resources of another person, including another
affiliate, the proofs required pursuant to Sections 5 -
24(2)(E) and (F) should be provided for that person.
(I) A description of the applicant's prio r
experience in cable system ownership, construction,
and operation, and identification of cities and
counties in Florida in which the applicant or any of its
principals have a cable franchise or any interest
therein, provided that an applicant that holds a
franchise for the city and is seeking renewal of that
franchise need only provide this information for other
cities and counties in Florida where its franchise is
scheduled to expire during the twelve (12) month
period prior to the date its application i s submitted to
the city and for other cities and counties in Florida
where its franchise had been scheduled to expire
during the twelve (12) month period after the date its
application is submitted to the city. If an applicant has
no other franchise in Flo rida, it shall provide the
information for its operations in other states.
(J) An affidavit or declaration of the
applicant or authorized officer thereof certifying the
truth and accuracy of the information in the
application, and certifying that the ap plication meets
all requirements of applicable law.
(3) Procedure for applying for grant of a
franchise, other than a Cable Act renewal franchise.
(A) A person may apply for a franchise in
response to a request for proposals ("RFP") issued by
the city . Any response to an RFP shall contain the
information required by Section 5 - 24(2), and such
other information as the RFP may require, and must
be submitted in accordance with the restrictions in the
RFP. A properly filed response to an RFP shall be
evalua ted in accordance with Section 5 - 24(3)(C). The
city may conduct such investigations from time to
time as may be appropriate to establish RFP
requirements.
(B) Notwithstanding the provisions of
Section 5 - 24(3)(A), a person may apply for an initial
franch ise by submitting an unsolicited application
Cable Systems and Open Video Systems
21
containing the information required in Section 5 - pursuant to Section 5 - 24(3)(C). Prior to evaluating
24(2) and requesting an evaluation of that application that a pplication, the city may conduct such
investigations as are necessary to determine whether complaints , billing practices, and the like, has been
the application satisfies the standards set forth in reasonable in light of the needs and interests of the
Section 5 - 24(3)(C), including by commencing a communities served;
proceeding to identify the future cable - related needs
and interest s of the community. It also may seek 3. Whether the applicant has the
additional applications prior to evaluating the financial, technical, and legal qualifications to hold a
application. An applicant for an initial franchise shall cable franchise;
be provided an opportunity to amend its application
in light of the result of any investigation conducted 4. Whether the applicat ion satisfies
by the c ity, prior to evaluation of that application any minimum requirements established by the city
pursuant to Section 5 - 24(3)(C). under this article or in the RFP or and is otherwise
reasonable to meet the future cable - related needs and
(C) In evaluating an application for a interests of the community, taking into account the
franchise, the city shall consider, among other things, cost of meeting such needs and int erests;
the following factors:
5. Whether, to the extent not
1. The extent to which the applicant considered as part of Section 5 - 24(3)(C)4., the
has substantially complied with the applicable law applicant will provide adequate public, educational,
and the material terms of any existing cable franchise and governmental use capacity, facilities, or financial
for the city; support;
2. Whether the quality of the
applicant's service under any existing franchise in the
city, including signal quality, response to customer 2000 S - 13
6. Whether issuance of a fra nchise is
in the public interest considering the immediate and
future effect on the rights - of - way and private
property that would be used by the cable system,
including the extent to which installation or
maintenance as planned would require replacement of
property or involve disruption of property, public
services, or use of the rights - of - way; and the
comparative superiority or inferiority of competing
applications; and
7. Whether the approval of the
application may eliminate or reduce competition in
t he delivery of cable service in the city.
(D) If the city finds that it is in the public
interest to issue a franchise considering the factors set
forth above, and subject to the applicant's entry into
an appropriate franchise agreement, it shall issue a
franchise. If the city denies a franchise, it will issue a
written decision explaining why the franchise was
denied. Prior to deciding whether or not to issue a
franchise, the city shall hold one or more public
hearings or implement other procedures unde r which
comments from the public on an application may be
received as required by state or federal statute. The
city also may grant a franchise based on its review of
an application without further proceedings and may
reject any application that is incompl ete or fails to
respond to an RFP.
(4) Procedure for applying for grant of a Cable
Act renewal franchise. Requests for renewal under
the Cable Act shall be received and reviewed in a
manner consistent with Section 626 of the Cable Act,
47 USC 546. It is the proposal submitted by a
franchisee under 47 USC 546(b), and not the request
for commence - ment of the renewal proceedings
submitted under 47 USC 546(a), that must contain the
information required under Section 5 - 24(2). If neither
a franchisee nor th e city activates in a timely manner,
or can activate the renewal process set forth in 47
USC 546(a) - (g) (including, for example, if the
provisions are repealed), and except as to applications
submitted pursuant to 47 USC 546(h), the provisions
of Section 5 - 24(3) shall apply and a renewal request
shall be evaluated using the same criteria as any other
request
Boynton Beach Code
22
for a franchise. The following requirements shall (B) If an administrative hearing is com -
apply to renewal requests properly submitted menced pursuant to 47 USC 546(c), the franchisee’s
pursuant to the Cable Act: application shall be evaluated considering such
matters as may be considered consistent with federal
(A) If the provisions of 47 USC 546(a) - (g) law. The following p rocedures shall apply:
are properly invoked, the city shall issue an RFP after
conducting a proceeding to review the franchisee’s 1. The proceeding shall be
past performance and to identify future cable - related conducted with all deliberate speed in accordance
community needs and interests. The city shall mak e with such lawful procedures as the city may adopt by
available for review by a franchisee the results of the resolution.
city's review and ascertainment proceedings. The city
shall establish deadlines and procedures for 2. The City Commission may
responding to the RFP, may seek additional appoint an administrative hearing officer or officers
information from the franchisee related to the city’s or may conduct the administrative hearing itself. The
ev aluation of the proposal given the standards for entity that will conduct the administrative hearing is
review of that proposal under applicable law, and referred to as the "hearing officer."
shall establish deadlines for the submission of that
additional information. Following receipt of the 3. The hearing officer shall establish
application responding to that RFP (and such a schedule for proceeding. The hearing officer shall
additional information as may be provided in have the author ity to require the production of
response to requests), the city commission will evidence from any person as the interests of justice
determine that the franchise should be renewed, or may require. Any order regarding the production of
make a preliminary assessment that the franchise evidence may be enforced by a court of competent
should not be renewed in accordance with the jurisdiction or by imposing appropriate sanctions in
provisions of the Cable Act applicable to that the administrativ e hearing.
preliminary decision. The preliminary determination
shall be made by resolution. If the city commission 4. The hearing officer may conduct a
determines that the franchise should not be renewed, pre - hearing conference and establish appropriate pre -
and the franchisee notifies the city, either in its RFP hearing orders. Intervention by non - parties is not
response or within thir ty (30) business days of the authorized except to the extent required by the Cable
preliminary assessment, that it wishes to pursue any Act.
rights to an administrative proceeding it has under the
Cable Act, then the city shall commence an 5. The hearing officer shall require
administrative proceeding after providing prompt the city and the franchisee to submit prepared
public notice thereof, in accordance with the Cable testimony prior to the hearing. Unless the parties
Act. If the city commission decides preliminarily to agree otherwise, the franchisee shall present evidence
grant renewal, it shall prepare a final franchise first, and the city shall present evidence second.
agreement that incorporates, as appropriate, the
commitments made by the franchisee in the 6. Any reports or the transcript or
application. If the franchisee accep ts the franchise summary of a ny proceedings conducted pursuant to
agreement, and the final agreement is approved by 47 USC 546(a) shall be, for purposes of the adminis -
the city commission, the franchise shall be renewed. trative hearing, regarded no differently than any other
If the franchise agreement is not so accepted and evidence. The city and the franchisee shall be
approved within the time limits established by 47 afforded fair opportunity for full participation in the
USC 546(c)(1), renewal shall be deem ed proceedi ng, including the right to introduce evidence
preliminarily denied, and an administrative (including evidence related to issues raised in the
proceeding commenced if the franchisee requests it proceeding under subsection 47 USC 546(a)), to
within thirty (30) business days of the expiration of require the production of evidence, and to question
the time limit established by 47 USC 546(c)(1), witnesses.
unless the time limit is extended by mutual agreement
of the city and the franchisee.
2000 S - 13
Cable Systems and Open Video Systems
23
7. Following completion of any financial impact on the applicant if the modification
hearing, the hearing officer shall require the parties to is
submit proposed findings of fact with respect to the
matters that the city is entitled to consider in 2000 S - 13
determining whether renewal ought to be granted.
Based on th e entire record of the administrative
hearing, the hearing officer shall then prepare written
findings, and submit those findings to the city
commission and to the parties (unless the hearing
officer is the city commission, in which case the
written findin gs shall constitute the final decision of
the city).
8. If the hearing officer is not the
city commission, the parties shall have thirty (30)
calendar days from the date the findings are
submitted to the city commission to file exceptions to
those find ings. The city commission shall thereafter
issue a written decision granting or denying the
application for renewal, consistent with the
requirements of the Cable Act and based on the
record of such proceeding. A copy of the final
decision of the city com mission shall be provided
promptly to the applicant.
(5) Informal applications for renewal .
Notwithstanding the above, a cable operator may
submit a proposal for renewal of a franchise pursuant
to 47 USC 546(h) at any time, and the city may, after
affo rding the public adequate notice and opportunity
for comment, grant or deny such proposal. An
application shall not be granted unless the city
determines that it is in the public interest to do so. An
application may be denied for any reason, without
preju dice to the applicant's right to seek renewal
under other provisions of this section.
(6) Application for modification of a franchise.
(A) An application for modification of a
franchise agreement shall include, at minimum, the
following information:
1. The specific modification
requested;
2. The justification for the requested
modification, including the impact of the requested
modification on subscribers and others, and the
approved or disapproved, demonstrated through, inter
alia, submission of pro forma financial statements.
3. A statement indicating whether
the modification is sought pursuant to Section 625 of
the Cable Act, 47 USC 545, and, if so, a
demonstration that the requested modification meets
the standards set forth in 47 USC 545;
4. Any other information that the
applicant believes is necessary for the city to make an
informed determination on the application for
modification; and
5. An affidavit or de claration of the
applicant or applicant's authorized officer certifying
the truth and accuracy of the information in the
application, and certifying that the application is
consistent with the requirements of applicable law.
(B) A request for modificati on submitted
pursuant to 47 USC 545 shall be considered in
accordance with the requirements of that section.
(7) Public hearings. An applicant shall be
notified of any public hearings held in connection
with the evaluation of its application and shall b e
given a reasonable opportunity to be heard. In
addition, prior to the issuance of a franchise, the city
shall provide for the holding of a public hearing
within the proposed franchise area, following notice
to the public, at which each applicant and its
application shall be examined and the public and all
interested parties afforded a reasonable opportunity to
be heard.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 25. Construction provisions.
(1) System construction schedule. Ev ery
franchise agreement shall specify the construction
schedule that will apply to any required construction,
upgrade, or rebuild of the cable system. The schedule
shall provide for prompt completion of the project,
considering the amount and type of const ruction
required.
Boynton Beach Code
24
(2) Use of franchisee facilities. The city shall upon any poles or in any conduit owned by a
have the right to install and maintain free of charge franchisee any wire and pole fixtures that do not
unreasonab ly interfere with the cable system extension or installation costs, and franchisee requires
operations of the franchisee. Provided that, if the city the potential subscriber to bear such costs, the time
uses a franchisee's conduit or poles to install a cable for extension shall be measured from the date the
system that competes with that franchisee in the subscriber agrees to bear such costs or, if a franchisee
provision of cable service to residential subscribers, requires prepayment of all or a portion of the
the franchise agreement may provide that the estimated costs, from the date the prepayment is
franchisee may charge the city a fair market rate made. A franchisee that requires a potential
pursuant to that franchise agreement. Franchisee shall subscriber to bear a portion of installation or
notify the city when it enters into an agreement for extensio n costs must prepare a written estimate of
use of its poles and conduits. Copies of agreements extension costs within seven (7) business days of a
for u se of franchisee's conduits or poles in the public request for an installation or extension that would be
rights - of - way or on other public property shall be subject to cost - sharing.
available for review upon the city's request. A
franchise agreement may include a provision under (C) Any cable system within the city shall
which the city shall indemnify, defend and hold a meet or exceed the technical standa rds set forth in 47
franch isee harmless for all claims arising out of the CFR 76.601 and any other applicable technical
city's use of that franchisee's poles and conduits standards.
where the franchisee and the city do not have a joint
pole or conduit use agreement. (D) A franchisee shall perform all tests
necessary to demonstrate compliance with the
(3) Provision of service/quality of service . In requirements of the franchise agreement and other
addition to satisfy ing such requirements as may be technical and performance standards est ablished by
established in a franchise, every cable system shall be applicable law. Unless a franchise agreement or
subject to the following conditions, except as applicable law provides otherwise, all tests shall be
prohibited by federal law: conducted in accordance with federal rules and in
accordance with the most recent edition of National
(A) It is the policy of the city to ensure that Cable Television Association's Recommend ed
every franchisee provide service in the fra nchise area Practices for Measurements on Cable Television
upon request to any person or any government Systems , or such other manual as may be directed
building. Each franchisee shall extend service upon under FCC regulations. A written report of any test
request within its franchise area, provided that a results shall be filed with the city within seven (7)
franchise agreement may permit a franchisee to calendar days of a request by the city. If a locati on
require a potential subscriber to contribute a fa ir share fails to meet technical or performance specifications,
of the capital costs of installation or extension as a the franchisee, without requirement of additional
condition of extension or installation in cases where notice or request from city, shall promptly take
such extension or installation may be unduly corrective action, and retest the locations.
expensive. Service must be provided within time
limits specified in Section 5 - 25(3)(B). (E) Every cable or open video system and
every cab le or open video system operator shall be
(B ) Except as a franchise agreement required to interconnect with every other cable or
otherwise provides, a franchisee must extend service open video system and cable or open video system
to any person or to any government building in the operator within the city on fair and reasonable terms
franchise area which requests it within seven (7) for purposes of providing PEG and I - Net services.
business days of the request, where service can be
provided by activ ating or installing a drop; within
2000 S - 13
ninety (90) calendar days of the request where an
extension of one - half mile or less is required; or
within six (6) months where an extension of one - half
mile or more is required. Provided that, in cases
where a franchise agreement permits a franchisee to
require a potential subscriber to bear a share of
Cable Systems and Open Video Systems
25
(4) System maintenance . Scheduled
maintenance shall be performed so as to minimize the
effect of any necessary interruptions of cable service. 2000 S - 1 3
(5) Continuity of service. Each franchise
agreement shall, during the t erm of the franchise,
ensure that subscribers are able to receive continuous
service and that, in the event the franchise is revoked
or terminated, the franchisee may be obligated to
continue to provide service for a reasonable period to
assure an orderly transition of service from the
franchisee to another entity.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 26. Operation and reporting provisions.
(1) Communication with regulatory agencies.
If requested by the city in writing, a f ranchisee shall
file with the city all reports required by the FCC
including, without limitation, any proof of
performance tests and results, Equal Employment
Opportunity (EEO) reports, and all petitions,
applications, and communications of all types direc tly
related to the cable system, or a group of cable
systems of which the franchisee's cable system is a
part, submitted or received by the franchisee, an
affiliate, or any other person on the behalf of the
franchisee, either to or from the FCC, the Securi ties
and Exchange Commission, or any other federal or
state regulatory commission or agency having
jurisdiction over any matter affecting operation of the
franchisee's cable system. Provided that, nothing
herein requires the franchisee to produce regulator y
or court filings that are treated by the agency or court
as confidential, such as Hart - Scott - Rodino Act
filings. Nothing in this section affects any rights the
city may have to obtain books and records under
Article II.
(2) Reports .
(A) If request ed by the city in writing
within forty - five (45) calendar days after the end of
each calendar quarter, a franchisee shall submit a
report to the city containing the following
information, within thirty (30) calendar days of such
written request:
1. The number of service calls (calls
requiring a truck roll); and
2. The number and type of outages
known by the franchisee for the prior quarter,
identifying separately the following:
a. Each planned outage, the
time it occurred, its durat ion, and the estimated area
affected;
b. Each known unplanned
outage, the time it occurred, its estimated duration
and the estimated area affected, and if known, the
cause;
c. The total estimated hours of
known outages. An outage is a loss of so und and
video on all channels.
(B) Upon written request of the city, no
later than ninety (90) calendar days after the end of its
fiscal year, a franchisee shall submit a written report,
within forty - five (45) calendar days of such request,
tha t shall contain such information as may be
required from time to time by the city, and at least the
following, unless the city waives the requirement:
1. A summary of the previous year's
activities in the development of the cable system,
including desc riptions of services begun or
discontinued, the number of subscribers gained or lost
for each category of cable service;
2. A summary of service calls for
which records are required under Section 5 - 26(3)(A),
identifying both the number and nature of th e service
calls received and an explanation of their
dispositions, if any;
3. A revenue report from the
previous fiscal year for the cable system, audited by a
certified public accountant;
4. An ownership report, indicating
all persons who at the time of filing control or own an
interest in the franchisee of ten percent (10%) or
more;
Boynton Beach Code
26
5. A list of officers and members of affiliates directly involved in the operation or the
the board of directors of the franchisee and any maintenance of the cable system;
(B) Records of outages known to the
6. An organizational chart showing franchisee, with information suffic ient to allow a
all corporations or partnerships with more than a ten franchisee to prepare the reports required in this
(10) percent interest ownership in the franchisee, and section;
the nature of that ownership interest (limited partner,
general partne r, preferred shareholder, etc.); and (C) Records of service calls for repair and
showing the same information for each corporation or maintenance indicating the date and time, if available,
partnership that holds such an interest in the service was requested, and date and time, if available,
corporations or partnerships so identified and so on service was schedule d (if it was scheduled), and the
until the ultimate corporate and partnership interests date and time, if available, service was provided, and
are identif ied; (if different) the date and time the problem was
solved, if available; and
7. An annual report of each entity
identified in Section 5 - 26(2)(B)6. which issues an (D) Records of installation/reconnection
annual report; and requests for service extension, indicating da te of
request, date of acknowledgment, if available, and the
8. A complete report on its plant. date and time, if available service was provided.
This plant report shall state the physical miles of (Ord. No. 00 - 31, § 1, 6 - 20 - 00)
plant construction and plant in operation during the
prior calendar year categorized as aerial and
underground, provide revisions to the cable system Sec. 5 - 27. Rate regulation and consumer
maps filed with the city, and report the results of protection.
appropriate electronic measurements to show
conformity with FCC technical standards. (1) Scope and applicability . The city reserves
all rig hts to implement and impose regulation of a
9. A report showi ng, for each cable franchisee's rates and charges to the maximum extent
customer service standard in force, the franchisee’s permitted by law, and may do so by amendment to
performance with respect to that standard for each this chapter, by amendment to a franchise agreement,
quarter of the preceding year. In each case where or in any other lawful manner.
franchisee concludes it did not comply fully, the
franchisee will describe the corr ective actions it is (2) Rate regulation pro cedures . Rate
taking to assure future compliance. regulation shall be performed in accordance with the
rules and regulations of the FCC. The city manager,
10. Notwithstanding the above, once or his designee, may take any required steps to file
the information required by Sections 5 - 26(2)(B)4. - 6. complaints, toll rates, issue accounting orders or take
has been filed once, it need only be refiled if it any other steps required to comply with FCC
changes. regulations. The city commission shall be responsible
for issuing final rate orders that establish rates or
(3) Records Required. A franchisee shall at all order refunds. No rate may be put into effect without
times maintain: the prior review and approval of the city, except as
federal law may otherwis e require.
(A) Records of all service calls received
with information sufficient to allow the franchisee to (3) Rate discrimination prohibited. Except to
prepare the reports required in this section; the extent the city may not enforce such a
requirement, a franchisee is prohibited from
discriminating in its rates or charges or from granting
2000 S - 13 undue preferences to any subscriber, potential
subs criber, or group of subscribers or potential
Cable Systems and Open Video Systems
27
subscribers; provided, however, that a franchisee may
offer temporary, bona fide promotional discounts in
order to attract or maintain subscribers, so long as 2000 S - 13
suc h discounts are offered on a non - discriminatory
basis to similar classes of subscribers throughout the
franchise area; and a franchisee may offer discounts
for the elderly, the disabled, or the economically
disadvantaged; and such other discounts as it is
expressly entitled to provide under federal law, if
such discounts are applied in a uniform and consistent
manner. A franchisee shall comply at all times with
all applicable federal, state, and city laws, and all
executive and administrative orders relatin g to non -
discrimination.
(4) Cable consumer protection standards.
Each franchisee must satisfy cable consumer
protection standards established by the city from time
to time by ordinance or by resolution. In addition,
each franchisee shall at all times s atisfy any
additional or stricter requirements established by
applicable law including, without limitation, FCC
customer service standards and consumer protection
laws.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 28. Franchise fee.
A franchisee shall pay to the city a franchise fee
in an amount equal to five percent (5%) of gross
revenues.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 29. Transfers.
(1) City approval required. No transfer shall
occur withou t prior written notice to and approval of
the city commission. Transfer without the prior
written approval of the city shall be considered to
impair the city's assurance of due performance. The
granting of approval for a transfer in one instance
shall not render unnecessary approval of any
subsequent transfer.
(2) Application.
(A) The franchisee shall promptly notify
the city of any proposed transfer. If any transfer
should
take place without prior notice to the city, the
franchisee wil l promptly notify the city that such a
transfer has occurred.
(B) At least one hundred twenty (120)
calendar days prior to the contemplated effective date
of a transfer, the franchisee shall submit to the city an
application for approval of the transfer . Such an
application shall 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 serv ice. At a minimum, the
following information must be included in the
application, provided that a franchisee is not required
to duplicate information that it submits to the city to
comply with its obligations under federal or state law:
1. All informat ion and forms
required under federal law or the equivalent of such
forms if no longer required by federal law;
2. All information required in
Sections 5 - 24(2)(A) and 5 - 24(2)(E) - J. of this chapter;
3. Any contracts or other documents
that relate t o the proposed transaction, and all
documents, schedules, exhibits, or the like referred to
therein to the extent that such documentation is
required by the FCC;
4. Any shareholder reports or filings
with the Securities and Exchange Commission (SEC)
th at discuss the transaction;
5. Other information necessary to
provide a complete and accurate understanding of the
financial position of the cable system before and after
the proposed transfer;
6. Complete information regarding
any potential impac t of the transfer on subscriber
rates and service;
Boynton Beach Code
28
7. A brief summary of the proposed transferee's plans for at least the next five (5) years
regarding line extension, plant and equipment proposed transferee's commitment to cure such
upgrades, channel capacity, expans ion or elimination noncompliance; whether the transferee owns or
of services, and any other changes affecting or controls any other cable system in the city, and
enhancing the performance of the cable system. whether operation by the transfer ee may eliminate or
reduce competition in the delivery of cable service in
(C) For the purposes of determining the city; and whether operation by the transferee or
whether it shall consent to a transfer, the city or its approval of the transfer would adversely affect
agents may inquire into all qualifications of t he subscribers, the public, or the city's interest under this
prospective transferee and such other matters as the chapter, the franchis e agreement, or other applicable
city may deem necessary to determine whether the law.
transfer is in the public interest and should be
approved, denied, or conditioned as provided under (4) Transferee's Agreement. Subject to any
Section 5 - 29(3). The franchisee and any prospective transitional provisions that may apply, no application
transferees shall assist the city in any such inquiry, for a transfer of a franchise shall be granted unless the
and if they fail to do so, the request for transfer may transferee agrees in writing that it will abide by and
be denied. acce pt all terms of this chapter and the franchise
agreement, and that it will assume the obligations,
(3) Determination by city. In making a liabilities, and responsibility for all acts and
determination as to whether to grant, deny, or grant omissions, known and unknown, of the previous
subject to conditions an application fo r a transfer of a franchisee under this chapter and the franchise
franchise, the city shall consider the legal, financial, agreement for all
and technical qualifications of the transferee to
operate the cable system; any potential impact of the
transfer on subscriber rates or services; whether the
incumbent cable operato r is in compliance with its 2000 S - 13
franchise agreement and this chapter and, if not, the
purposes, including renewal, unless the city, in its
sole discretion, expressly waives this requirement in
whole or in part.
(5) Approval does not constitute waiver.
Approval by the city of a transfer of a franchise does
not constit ute a waiver or release of any of the rights
of the city under this chapter or a franchise
agreement, whether arising before or after the date of
the transfer.
(6) Exception for intra - company transfers.
Notwithstanding the foregoing, a franchise agreeme nt
may provide that transfers to affiliates of a franchisee
shall be excepted from the requirements of Section 5 -
29(1) and (2) where the affiliate is wholly - owned and
managed by an entity that will guarantee the
performance under a franchise agreement; and ,
subject to any transitional provisions that may apply
the transferee affiliate:
(A) Notifies the city of the transfer at least
sixty (60) calendar days before it occurs and, at that
time provides the agreements and warranties required
by this section, describes the nature of the transfer,
and submits complete information describing who
will have direct and indirect ownership and control of
the cable system after the transfer;
(B) Warrants that it has read, accepts and
agrees to be bound by each and every term of the
franchise and related amendment, regulations,
ordinances and resolutions then in effect;
(C) Agrees to assume all responsibility for
all liabilities, acts and omissions known and unknown
of its predecessor franchisees for all purposes,
including renewal;
(D) Agrees that the transfer shall not
permit it take any position or exercise any right which
could not have been exercised by its predecessor
franchisees;
(E) Warrants that the transfer will not
substantially increase the financ ial burdens upon or
substantially diminish the financial resources
available to the franchisee (the warranty to be based
on comparing the burdens upon and resources that
will be
Cable Systems and Open Video Systems
29
available to the transferee compared to its
predecessors), or otherwise adversely affect the
ability of the franchisee to perform;
(F) Warrants that the transfer will not in
any way adversely affect the city or subscribers
(including by increasing rates);
(G) Notifies the cit y that the transfer is
complete within five (5) business days of the date the
transfer is complete; and
(H) Agrees that the transfer in no way
affects any evaluation of its legal, financial or
technical qualifications that may occur under the
franchise or applicable law after the transfer, and
does not directly or indirectly authorize any
additional transfers.
(Ord. No. 00 - 31, § 1, 6 - 20 - 00) Penalty, see Section
5 - 11
Sec. 5 - 30. Connections to cable system; use of
antennae.
(1) Subscriber right t o attach. To the extent
consistent with federal law, subscribers shall have the
right to attach VCRs, receivers, and other terminal
equipment to a franchisee's cable system to receive
services for which they paid. Subscribers also shall
have the right to use their own remote control devices
and converters, and other similar equipment to
receive services for which they paid.
(2) Removal of existing antennae. A franchisee
shall not, as a condition of providing service, require
a subscriber or potential su bscriber to remove any
existing antenna, or disconnect an antenna except at
the express direction of the subscriber or potential
subscriber, provided that such antenna is connected
with an appropriate device and complies with
applicable law.
(Ord. No. 00 - 3 1, § 1, 6 - 20 - 00)
2000 S - 13
Boynton Beach Code
30