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O00-31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 ©0 OROINA CE , -al ORDINANCE OF THE CItY COMMISSION OF THE CItY OF BOYNTON BEACH, FLORIDA CREATING CHAPTER 5 OF THE CODE OF ORDINANCES OF THE CITY OF BOYNTON BEACH, ENTITLED "CABLE SYSTEMS", REGARDING THE FRANCHISING AND LICENSING OF CABLE SERVICE PROVIDERS AND OPEN VDEO SYSTEMS; ESTABLISHING REQUIREMENTS AND CONDITIONS UPON THE USE OF PUBLIC RIGHTS OF WAY BY SUCH ENTITIES; AND ESTABLISHING PROCEDURES FOR PROTECTING THE PUBLIC INTEREST IN SUCH FRANCHISES AND LICENSEES; PROVIDING FOR CONFLICT; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION; PROVDING FOR EFFECTIVE DATE. WHEREAS, the public streets, alleys, easements and other rights-of-way within the city: (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) can be partially occupied by utilities and other public service entities for facilities used in the delivery, conveyance, and transmission of utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well- being of the city and its citizens; and (3) are a unique and physically limited resource so that proper management by the city is necessary to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, emplacement, relocation, and maintenance in the rights-of-way; and (4) are intended for public uses and must be managed and controlled consistent with that intent; and Page 1 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WHEREAS, the right to place facilities and fixtures in such rights-of-way for the business of providing cable services or open video services is a valuable economic right to use a unique public resource that has been acquired and is maintained at great expense to the city and its taxpayers, the economic benefit of which should be shared with the taxpayers of the city; and WHEREAS, the CITY OF BOYNTON BEACH ("City") is authorized by state and local law to control the use of public rights-of-way, and to franchise operators of open video systems and cable systems which use such rights-of-way; and WHEREAS, the City Commission of the City finds that it is in the interest of the public to franchise and to establish standards for franchising such operators in a manner which: (1) provides for a structure that, as far as possible, compensates the city for the fair market value of such property used while also reserving the right to recover the ongoing costs associated with the use of that property; (2) encourages competition by establishing terms and conditions under which may use valuable public property to serve the public; (3) fully protects the public and the city from any harm that may flow from such private use of rights-of-way; (4) protects and carries out the regulatory authority of the city, in a manner consistent with federal and state law; and (5) otherwise protects the public interests in the development and use of the city, s infrastructure; and WHEREAS, the City Commission of the City finds that it is appropriate for various operators to obtain separate franchises based on the type of service provided, in order to Page 2 of 43 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 ensure that similarly situated operators can be treated as similarly as possible, and to avoid confusion as to regulatory authority applicable to each type of franchise; and WHEREAS, in light of federal and state law, and the changes to local procedures required by them, the city finds that it is necessary and appropriate to apply the provisions hereof to existing franchisees and licensees as far as is possible and to apply it to those with pending applications to place facilities in public rights-of-way. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby ratified and confirmed by the City Commission. Section 2. Chapter 5, of the Code of Ordinances of the CITY OF BOYNTON BEACH, entitled "Cable Systems", is hereby created to read as followS: Chapter 5 CABLE SYSTEMS AND OPEN VIDEO SYSTEMS ARTICLE I - REGULATION OF RATES FOR BASIC SERVICE AND EQUIPMENT Sec. 5-1. Scope and applicability. This article governs the regulation of rates for basic service and equipment within the city for any franchisee which has been notified that (a) the city has been certified to regulate its basic service and equipment rates; (b) the city has adopted regulations governing regulation of basic service and equipment rates; and (c) the city desires to exercise its regulatory authority. * * * Sec. 5-2. - 5-5. Reserved. ARTICLE II - FRANCHISING AND LICENSING OF CABLE AND OPEN VIDEO SERVICE PROVIDERS IIA. General Provisions Sec. 5-6. Definitions. Page 3 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (1) Generally. For the purposes of this Article, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. "And" and "or" may be read conjunctively or disjunctively. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this Ordinance shall be given the meaning set forth in Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. (2) Affiliate, means a person that, (directly or indirectly), owns or controls, is owned or controlled by, or is under common ownership or control with, another person. (3) Cable service means -- (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. (4) Cable System means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such terms does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carder which is subject, in whole or in part, to the provisions of Title II (Common Carders) of the Communications Act of 1934, as amended, eXcept that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; or (D) any facilities of any electric utility used solely for operating its electric utility systems; or (E) an open video system that is certified by the FCC. A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system. (5) Construction, operation or repair. "Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of Page 4 of 43 \\CI-I~AINZ SI-IRDAT A\CA\ORD\I J~ty~anchising liceashag of cable service pmvldets.doe 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation. (6) Franchise refers to the authorization granted by the City to an operator of a cable system, or an open video system giving the operator the non-exclusive right to provide, through facilities maintained or operated upon, across, beneath, or over any public right-of-way in the City, a specified service within a franchise area. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City; (ii) any permit, agreement or authorization required in connection with operations on public streets or property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along public rights-of-way. (7) Franchise Agreement means a contract entered into in accordance with the provisions of this Ordinance between the City and a Franchisee that sets forth, subject to this Ordinance, the terms and conditions under which a Franchise will be exercised. (8) Franchisee refers to a person holding a Franchise issued under this Ordinance, or a Franchise issued prior to this Ordinance, subject to the provisions of Section 5-12 hereof. (9) Franchise Area means the area of the City that a Franchisee is authorized to serve by its Franchise Agreement. (10) FCC means the Federal Communications Commission or its designee. (11) License refers to the legal authorization, terminable at will, to use a particular, discrete and limited portion of the public rights-of-way. (12) Open Video System, or "OVS", refers to a facility consisting of a set of transmission paths and associated signal generation, reception, 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 C.F.R., Part 76, as amended from time-to-time. (13) 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 directly 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. (14) Person includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City. Page 5 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (15) 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, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, public easement, or similar property in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of constructing, operating and repairing a cable system or open video system. Public rights of way do not include buildings, parks, or other property owned or leased by the City. No reference herein, or in any franchise agreement, to a public right-of-way shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the City and as the City may have the undisputed right and power to give. (16) Telecommunications services means the transmission for hire, of information in electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself. Telecommunications services includes telephone service but does not include over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto. (17) Transfer means any transaction in which: (i) all or a portion of the cable system or open video system is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the public rights-of-way); (ii) there is any change, acquisition, or direct or indirect transfer of control of the franchisee or licensee; or (iii) the rights and/or obligations held by the franchisee or licensee under the franchise or license are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. In succeeding provisions of this ordinance, all these activities are referred to as franchise transfers. Sec. 5-7. Franchise Required. (1) Every operator must obtain. A cable operator must obtain a franchise prior to constructing a cable system or providing cable service; an operator of an open video system must obtain a franchise before constructing an open video system or providing services via an open video system. No franchise shall become effective without the franchisee entering into a franchise agreement with the City. The fact that a cable system or open video system may be used for multiple purposes does not obviate the need to obtain a franchise, license, or other authorization for those other purposes. By way of illustration and not limitation, a cable operator of a cable system must obtain a cable franchise, and, should it intend to provide telecommunications services over the same facilities, it must comply with requirements applicable to providers of telecommunications services or to operators of telecommunication facilities. (2) Purpose and characteristics. The purpose of requiring authorizations by service is to ensure as far as possible and appropriate that persons providing similar services are treated similarly, considering differences in circumstances, and to comply with requirements of federal law which may require the city to separate its authority over cable Page 6 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 systems or open video systems from its authority over other providers of telecommunications services, the city shall require individual franchises for the provision of particular services. The revocation of a franchise for one particular service in and of itself will not affect the authority of a franchise holder to continue to provide services for which it holds other franchises. No franchise shall be exclusive and competition shall be encouraged. The issuance of a franchise shall not affect the city's right to itself construct, operate, or repair any cable system or open video system, with or without a franchise. (3) Exceptions. A franchise requirement may be waived for 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. For such facilities, the city may issue a license. Every license shall require the licensee to obtain a franchise if it is determined that the license is being used in a manner that creates a competitive advantage for that operator or otherwise unduly discriminates in favor of such operator. In any case, the license must provide that if limitations of license are violated, the licensee must pay the maximum franchise fee required by Articles IIB and IIC and otherwise bring itself into compliance with this chapter. (4) Nature of grant. Neither a franchise nor a license shall convey title, equitable or legal, in the fights-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. 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 based upon a percentage of gross revenues. (2) be paid if: Exceptions. The franchise fees required under Articles liB and IIC need not (A) State law or charter requires otherwise; or during any transition period for a current franchise holder. In cases 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 establish 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) Application 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 facility. 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 Page 7 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 imposed upon telecommunication service providers to the extent 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 agreement 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 in 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, each 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 category, 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 applicable penalties or damages, the person that owes the fee shall pay interest on the amount owed at the statutory interest rates applicable to judgments. (F) The City may, upon five (5) business days advance written notice, inspect and examine any and all books and records reasonably necessary to the determinatiOn of whether fees have been accurately computed and paid. (G) Notwithstanding the foregoing, in the event that a person that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such person shall make a final payment of any amounts owed to the city within ninety (90) calendar days of the date its operations in the city cease, and shall provide a statement of gross revenues for the calendar year through the dates operations ceased which statement shall contain the information and certification required by Section 5-8(4)(E). Page 8 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Sec. 5-9. General Conditions Upon Use of Rights-of-Way (1) Responsibility for costs. Except as expressly provided otherwise, any act that a cable or open video systems operator, its contractors or subcontractors are required to perform under this Section 5-9 shall be performed at their cost. If a cable or open video systems operator fails to perform work that it is required to perform within the time provided for performance, the City may perform the work, and bill the cable or open video systems operator therefor. The cable or open video systems operator shall pay the amounts billed within thirty (30) calendar days. (2) Construction procedures and placement of facilities; obligation to minimize interference with use of rights-of-way. (A) The construction, operation and repair of cable or open video systems are subject to the supervision of all of the authorities of the city that have jurisdiction in such matters, and shall be performed in compliance with all laws, ordinances, departmental rules and regulations and practices affecting such system. By way of example, and not limitation, this includes zoning codes and safety codes. In addition, the construction, operation and repair shall be performed in a manner consistent with high industry standards. Persons engaged in the construction, operation or repair of cable or open video systems shall exercise reasonable care in the performance of all their activities, and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property. (B) Construction, operation or repair of a cable or open video system shall not commence until written permits, if required, have been properly filed for and obtained from the proper City officials and all required permits and associated permit fees paid. In any permit so issued, the City may impose as a condition of the granting of the permit such conditions and regulations as may be necessary to the management of the right-of-way, including, by way of example and not limitation, for the purpose of 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 the public and the continuity of pedestrian and vehicular traffic. (C) Without limiting the foregoing, cable or open video systems shall be constructed, operated and repaired in accordance with good engineering practices. No work on the facilities shall be performed except by experienced and properly trained personnel. The operator of a cable or open video system is responsible for all the acts of its contractors and subcontractors, and for ensuring that its contractors and subcontractors perform all work in compliance with this ordinance, and any applicable franchise agreement. (D) Operators of cable or open video systems must follow city- established requirements for placement of facilities in rights-of-way, and must in any event install facilities in a manner that minimizes interference with the use of the rights-of-way by others, including others that may be installing communications facilities. The city may Page 9 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 require that facilities be installed at a particular time, place, or manner as a condition of access to a particular right-of-way, and may require a person using the right-of-way to cooperate with others to minimize adverse impacts on the right-of-way through joint trenching and other arrangements. (E) To the extent possible, operators of cable or open video systems shall use existing poles and existing conduit in installing their system. In no case may additional poles be installed in the right-of-way without the permission of the city; any person who is permitted to install poles must lease capacity on those poles to others, at a rate not higher than the rate that would be permitted if47 U.S.C. §224 applied. (F) Except as city may direct otherwise, cable or open video systems may be constructed overhead where poles exist and electric or lines of a local exchange cartier franchised before 1990 are overhead, but where both electric or such telephone lines are underground, or are being initially placed underground (whether voluntarily or at the city's direction), other cable or open video systems shall be constructed underground. Whenever and wherever the owner of the poles upon which aerial facilities are located moves its plant from overhead to underground placement in an area, all cable or open video systems in that area shall be similarly moved underground. (G) Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, operation or repair of a cable or open video system shall be promptly repaired by the cable or open video system's operator. (H) Tree trimming shall be performed in strict accordance with the City Code. (3) Relocation offacilities. (A) A cable or open video system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city or any other governmental entity by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications or cable or open video system, public work or improvement or any government-owned utility; public right-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the cable or open video system Collectively, such matters are referred to below as the "public work." 1. Except in the case of emergencies, the city shall provide written notice describing where the public work is to be performed at least thirty (30) calendar days prior to the deadline by which a cable or open video system operator must protect, support, temporarily disconnect, relocate or remove its facilities. A cable or open video system operator may seek an extension of the time to perform such tasks where they cannot Page 10 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 be performed in thirty (30) calendar days and such request for an extension shall not be unreasonably refused. 2. In the event of an emergency, or where a cable or open video system creates or is contributing to an imminent danger to health, safety, or .property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable or open video system without prior notice, and charge the cable or open video system operator for costs incurred. In case of such emergency, where in the judgment of the City, conditions permit, the City shall reasonably attempt to notify the cable or open video system operator. (B) If any person that is authorized to place facilities in the fight-of-way requests another cable or open video system operator receiving the request to protect, support, temporarily disconnect, remove, or relocate its facilities to accommodate the construction, operation, or repair of the facilities of such other person, the cable or open video system operator shall, after thirty (30) calendar days' advance written notice, take action to effect the necessary changes requested. Unless the matter is governed by a valid contract or a state or federal law or regulation, or in other cases where the cable or open video system that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the party requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the city. (C) A cable or open video system 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 temporary 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 cable 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 fi:om the operator, that the safety, 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 must 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 plans for the system as the city may fi:om time to time issue, Page 11 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 rebuild, 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 and 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 reasonably 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 private 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 race, color, creed, national origin, sex, age, conditions of physical handicap, religion, ethnic background, marital status, or sexual orientation. 03) A cable or open video system operator shall not discriminate among persons or the city or take any retaliatory action against a person or the city because of that entity's exercise of any right it may have under federal, state, or local law, nor may the 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. Page 12 of 43 ,r ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (D) A cable or open video system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended. 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 adequate 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 video 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 indemnification 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 system 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 any contractor or subcontractor to commence work on its contract or sub-contract until all similar such 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 video 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 entities to stop operations until the insurance is obtained and approved. Page 13 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (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 certificates 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 certificate 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 different manner. (C) These certificates of insurance shall contain a provision that coverages afforded under these pohcies will not be canceled until at least thirty (30) calendar days prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of Florida. Financial Ratings must be no less than "A" in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide. (D) In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of this contract, then in that event, the cable or open video system operator shall furnish, at least thirty (30) calendar days prior to the expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage for the balance of the period of the franchise or license under which cable or open video system operates. (E) A cable or open video system operator, and its contractors or subcontractors engaged in work on the operator's behalf in, on, under or over public rights- of-way, shall maintain the following minimum insurance: 1. COMPREHENSIVE GENERAL LIABILITY insurance to cover liability bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability: Bodily Injury i. Each Occurrence $1,000,000 ii. Annual Aggregate 3,000,000 Property Damage i. Each Occurrence $1,000,000 ii. Annual Aggregate 3,000,000 Co Personal Injury Annual Aggregate $3,000,000 d. Completed Operations and Products Liability shall be maintained for two (2) years after the termination of the franchise agreement or license agreement (in the case of the cable or open video system operator) or completion of the work for the cable or open video system operator (in the case of a contractor or subcontractor). Page 14 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 e. Property Damage Liability Insurance shall include Coverage for the following hazards: X - explosion, C - Collapse, U - underground. 2. WORKERS' COMPENSATION insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each cable or open video system operator shall require the Subcontractors similarly to provide Workers' Compensation Insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable or open video system operator. Each cable or open video system operator and its contractors and subcontractors shall maintain during the life of this policy Employers Liability Insurance. The following limits must be maintained: a. Workers' Compensation Statutory b. Employer's Liability $ 500,000 per occurrence 3. COMPREHENSIVE AUTO LIABILITY Bodily Injury i. Each Occurrence $1,000,000 ii. Annual Aggregate 3,000,000 Property Damage i. Each Occurrence $1,000,000 ii. Annual Aggregate 3,000,000 Coverage shall include owned, hired and non-owned vehicles. (F) Each cable or open video system operator shall hold the city, its agents, and employees, harmless on account of claims for damages to persons, property or premises arising out of its construction, operation or repair of its cable or open video system and name the city as an additional insured. (3) Performance/payment bonds. Every 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 ordinance and any franchise agreement or license for an initial build, 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 provide 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 Page 15 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 franchise agreement, and to pay any taxes, fees or liens owed to the city. The letter of credit shall be in a form 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 that a particular franchisee's or licensee's operations are sufficiently limited that a $25,000 security fund/letter of credit is not necessary to secure the required performance. The city may from time to time, upon reasonable notice and after the cable or open video system 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. 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 U.S.C. §626. The city manager or its designee is also authorized to seek information from any cable or open video system operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this ordinance. 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 management department or as otherwise designated by the city, in accordance with the requirements of Articles IIB- IIC. To be accepted for filing, an original and six (6) copies of a complete application must be submitted to the purchasing division, financial management 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 filed by any person on that person's own initiative or in response to a request for proposals. The Purchasing Administrator is authorized to issue requests for proposals from time to time. (C) Every application shall be accompanied by a nonrefundable fee in amounts established from time to time by the City Commission by resolution. (D) An applicant that is awarded a 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 Page 16 of 43 \\~ATA\CA\ORD~Ut ility~r anchis rig Iice~ing ofcallle selvice lXOvid~as.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 furnishes the franchisee or licensee with 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 construction, 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 the 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 thereof, 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 shall 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 franchisee. 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 agreement 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 provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this ordinance. (F) The franchise or license shall be for a specified term, set forth in the franchise agreement or license. No franchise issued under this chapter shall be for a term of longer than ten years; no license issued under this ordinance shall be for a term of longer than five years. Page 17 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (4) Penalties. Any person who violates any provision of this ordinance shall be freed for each day 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) Where, 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 the 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 foregoing, the franchise may not be revoked unless the franchisee: 1. was given notice of the default; 2. was given thirty (30) calendar days to cure the default; and 3. failed to cure the default, or to propose a schedule for curing the default acceptable to the City where it is impossible to cure the default in thirty (30) calendar days. The required notice may be given before the city conducts the proceeding required by this section. No opportunity to cure is required for repeated violations, and fraud shall be deemed incurable. (C) Notwithstanding the foregoing, the city may declare a franchise forfeited where the franchisee: 1. fails to begin to exercise its rights under the franchise within a period specified in the franchise agreement; 2. stops providing service it is required to provide in the franchise; 3. without the prior consent of the city, transfers the franchise; or 4. fails to pay any fees required hereunder, including, but not limited to, application fees, permit fees, or franchise fees. Page 18 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (D) The City shall give a franchisee thirty (30) calendar days notice of an intent to declare a franchise forfeited, and shall provide the franchisee an opportunity to show cause why the franchise should not be forfeited. (E) Notwithstanding the foregoing, any franchise may, at the option of the city following a public hearing before the city commission, be revoked one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that one hundred twenty (120) calendar day period: 1. Such assigmnent, receivership or trusteeship has been vacated; or 2. Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise agreement. (F) Notwithstanding the foregoing, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise, following a public heating before the city commission, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: successful bidder; and The city has approved the transfer of the franchise to the 2. The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise agreement and this chapter. (6) Effect of termination or forfeiture. Upon termination or forfeiture of a license or franchise, whether by action of the city as provided above, or by passage of time, the franchisee or licensee shall be obligated to cease using the cable or open video system for the purposes authorized by the franchise. The city may either take possession of some or all of the licensee's or franchisee's facilities in the public rights-of-way after furnishing the cable or open video system operator with written notice and granting the cable or open video system operator a reasonable period of time, but in no event more than thirty (30) calendar days, to remove same, or require the licensee or franchisee or its bonding company to remove some or all of the licensee's or franchisee's facilities from the public rights-of-way and restore the public rights-of-way to their proper condition. Should the 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 obhgation of the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two years. Provided that, the city may not take possession of, or require the franchisee or Page 19 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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 exercise 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 singly 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 video 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 possible, but in no event less than five (5) business days written n°tice, 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 derived from the operation of the cable or open 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 upon 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 review; 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. Page 20 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (D) Without limiting the foregoing, the operator of a cable or open video system 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 protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Franchisee or by any parmership or corporation that owns or controls the Franchisee directly or indirectly. (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 Which must be provided or may be requested under this chapter, a franchise agreement, or applicable law, including by providing appropriate Subscriber privacy notices. Each operator shall be responsible for reacting any data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require an operator to violate state or federal law protecting subscriber privacy. (10) Reports. The city may require operators of a cable or open video system to maintain records, and to prepare reports relevant to determining the compliance of the cable or open video system operator with the terms and conditions of this chapter and a franchise agreement. (11) Maps. Each cable or open video system operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The operator of each cable or open video system shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer. New maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a format specified by the city engineer. (12) Compliance with laws. Each franchisee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise. (13) Reservation of authority. The city may do all things which are necessary and convenient in the exercise of its jurisdiction under this article. The city manager or its designee is hereby authorized and empowered to adjust, settle or compromise any controversy involving performance or charges arising from the operations of any franchisee under this article on behalf of the city. The city commission may accept, reject or modify the decision of the city manager, and the city commission may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any franchisee or from any provision of this article. Page 21 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (14) No waiver. The failure of the city to insist on timely performance or compliance by any person holding a license or franchise shall not constitute a waiver of the city's right to later insist on timely performance or compliance by that person or any other person holding such a license or franchise. (15) Ordinance not a contract. The City expressly reserves the right to amend this chapter from time-to-time in the exercise of its lawful powers. This and any ordinance adopting provisions of this chapter shall not be construed to be a contract. Sec. 5-12. Transitional Provisions. (1) Persons operating without a franchise or license. The operator of any facility, the operation of which is required to be franchised or licensed under this chapter, shall have three months from the effective date of this chapter to file one or more applications for a franchise or a license under this chapter. (2) Persons holding franchises or licenses. Any person holding an outstanding franchise from the city for a cable system to provide specified services may continue to operate under the existing franchise to the conclusion of its present term (but not any renewal or eXtension thereof) with respect to those activities expressly authorized by the franchise or license; provided, however, that such franchisee or licensee may elect at any time to apply for a superseding franchise or license under this chapter, and must seek additional franchises or licenses to provide other services. Provided further, that licenses that are revocable at will may be revoked by the city, and the licensee may be required to obtain a new license under this chapter. (3) Persons with pending applications. Pending apphcations shall be subject to this chapter. A person with a pending application shall be provided thirty (30) calendar days from the effective date of this chapter to submit additional information to comply with the requirements of this governing applications chapter. 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. 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 franchise, an operator of an open video system must apply for a Page 22 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 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 working 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: facility. 1. A description of the services that are to be provided over the 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 installed, 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 estimate 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 what will be done with existing facilities. (E) Proof in the form of financial statements, attested to by a certified public accountant, that the applicant has the f'mancial 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, operate 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 that 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; Page 23 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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 Section 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 maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so. (H) An affidavit or declaration of the applicant or authorized officer thereof certifying the troth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law. (2) Additional information regarding affiliates; presumptions. 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 by sections 5-16(1)(C)-(E) should be provided for that person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a franchise in the City for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation. (3) Applications for transfer. An application for a transfer of a franchise must contain same information required by section 5-16(1), except that, if the transferor submitted an application pursuant to section 5-16(1), to the extent information provided by the transferor under Section 5-16(1) remains accurate, the transferee may simply cross- reference the earlier application. (4) City review. The city may request such additional information as it finds necessary, and reqtfire such modifications to the application as may be necessary in the exercise of the city's authority over open video systems. Once the information required by the city has been provided, the application shall be promptly reviewed and shall be granted if the city finds that: (A) The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law. The city shall provide a reasonable opportunity to an applicant to show that it would be inappropriate to deny it a franchise under section 5-16(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 an open video system. An application for a franchise area Page 24 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 shall not be granted if the franchisee has no plans for constructing a system within the entire area for which the franchise is sought. (B) The applicant accepts the modifications required by the city to its proposed system. This section shall not be read to authorize the city to exercise authority it does not otherwise have under applicable law. (C) The applicant enters into a franchise agreement and complies with any conditions precedent to its effectiveness. (D) In the case of a transfer, the city must also determine that: 1. there will be no adverse effect on the public interest, or the city's interest in the franchise; 2. transferee agrees to be bound by all the conditions of the franchise and to assume all the obligations of its predecessor; and 3. any outstanding compliance and compensation issues are resolved or preserved to the satisfaction of the city (E) An applicant shall not be issued a franchise if it files, or in the previous three years, filed materially misleading information in a franchise application; or intentionally withheld information that the applicant lawfully is required to provide. (5) Compensation. Every operator of an open video system shall pay compensation to the city as follows: (A) To the extent that the system is used to provide cable services: a percentage of gross revenues (as that term is defined in Article IIC as if the open video system operator were a cable operator) each quarter equal to the gross revenue percentage paid by any cable operator for the same quarter. In addition, unless a franchise agreement provides otherwise, an open video system operator shall pay to the city, at a time directed by the city, an amount equal to the highest amount contributed by any cable operator under its franchise for and in support of public, educational and government use (including institutional network use) of its cable system. To the extent that a cable operator is providing other support for public, educational or governmental use, the 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 section, the City shall ensure that the obligations borne by the open video system operator are no greater or lesser than the obligation imposed upon the cable operator providing the greatest benefits to the community. The compensation required under this section or specified in a franchise shall increase as the compensation that a cable operator is required to provide (in cash and in other forms) increases. Page 25 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (B) To the extent that the open video system is used for the provision of telecommunications services, the open video system operator shall pay the fee required of a telecommunications service provider. (C) Such other compensation as the City may charge in the future, consistent with Federal or State law, including fees imposed upon open video system lessees. (6) Customer Service Standard Certification. An open video system that enters into an agreement to comply with the customer service standards applicable to cable systems may be certified by the city as "Consumer Friendly - CITY OF BOYNTON BEACH" for so long as it complies with those requirements. (7) Every cable or open video system and every cable or open video system operator shall be required to interconnect with every other cable or open video system and cable or open video system operator within the city on fair and reasonable terms for purposes of providing PEG and I-Net services. Secs. 5-17 - 5-20 Reserved. IIC. Special Rules Applicable to Cable Television Systems Sec. 5-21. Definitions. (1) Access Channel means any capacity on a cable system set aside by a Franchisee for public, educational, or governmental use. (2) Basic Cable Service or Basic Service means any Service Tier that includes the retransmission of local television broadcast signals. (3) Cable Act means the Cable Communications Policy Act of 1984, 47 U.S.C. §521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time. (4) Equitable Price means Fair Market Value adjusted 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 for other equitable factors that may be considered consistent with 47 U.S.C. §547. (5) Fair Market Value means the price for the cable system valued as a going concern but with no value allocated to the Franchise itself. (6) Governmental Access Channel means any capacity on a cable system set aside by a franchisee for government use. (7) Gross Revenues means any and all cash or other consideration of any cable Page 26 of 43 \\CllhMM~S ttP. DAT A\CAkORl~Utilityk~mclfising licensing of cable sem4ce laovide~s.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 operator of a cable system in any way derived from the operation of that cable system to provide cable services in the franchise area. Gross Revenues include, by way of illustration and not limitation, monthly fees charged subscribers for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; revenues received from programmers for carriage of programming on the cable system (excluding money received from programmers which is passed through to offset 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 revenues; revenues from program guides; and revenues from home shopping channels. Home shopping revenue shall be based on the number of homes in a zip code area provided that where a common zip code serves more than one city, the revenues from that zip code shall be allocated based on the number of homes in the zip code area attributable to the city divided by the total homes in the zip code area. This provision shall be read broadly to prevent the avoidance of franchise fees by a cable operator through arrangements with affiliates. Gross revenues shall not include any taxes on services furnished by a Franchisee which are imposed directly on any subscriber or user by the state, City, or other governmental unit and which are collected by a Franchisee on behalf of said governmental unit,; bad debt expense; subscriber deposits in segregated accounts; or copyright fees. If an amount written off as bad debt is recovered, or if a deposit is applied to unpaid service revenues, said amount shall be included in the Gross Revenue base. (8) Non-Cable Service means any service that is authorized to be distributed over the cable system, other than a cable service. (9) Public Access Channel means any capacity on a cable system set aside by a Franchisee for use by the general public, including grOups and individuals, and which is available for such use on a non-discriminatory basis. (10) Service Tier means a package of two or more cable services for which a separate charge is made by the franchisee, other than a package of premium and pay-per- view services that is not subject to rate regulation under the Cable Act and applicable FCC regulations because those services are also sold on a true h la carte basis. (11) Subscriber means the City, any government entity or any person who legally receives any cable service from a cable operator delivered over that cable operator's cable system. (12) User means a person or the City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a Subscriber. Sec. 5-22. No Exclusivity. A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. Page 27 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial Subscriber. Sec. 5-23. Relation to 47 U.S.C. §545-§546. This Article IIC shall be read and applied so that it is consistent with Sections 625 and 626 of the Cable Act, 47 U.S.C. §545-§546. Sec. 5-24. Applications for Grant, Renewal, or Modification of franchise. (1) Written Application. (A) A written application shall be filed with the city for grant of an initial franchise; renewal of a franchise under 47 U.S.C. §546(a)-(g); or modification of a franchise agreement pursuant to this chapter or a franchise agreement. A request for renewal may also be filed informally, pursuant to 47 U.S.C. §546(h), as provided in Section 5-24(5). (2) Contents of Applications. A request for proposals for a franchise, including for a renewal franchise under 47 U.S.C, §546(c), shall require, and any application submitted pursuant to this Section 5-24(1) (and expressly not an informal renewal application submitted pursuant to 47 U.S.C. §546(h)) shall contain, at a minimum, the following information: (A) Identity of the applicant, the persons who exercise working control over the applicant, and the persons who control those persons, to the ultimate parent. (B) Identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area's boundaries. (C) A detailed description of the physical facilities proposed, which shall include at least the following: 1. A description .of the channel capacity, technical design, performance characteristics, headend, access (and institutional network) facilities and equipment. 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. A description of the manner in which the system will be installed, and the time required to construct the system, and the expected 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 the system proposed, an estimate of the Page 28 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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, educational, 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 demonstration 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 franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules. (F) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system; (G) Proof that 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; 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 Section 287.133, Florida Statutes; Page 29 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 entered 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 meeting 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 application. 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 prior 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 is 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 Florida, 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 troth and accuracy of the information in the application, and certifying that the application 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 evaluated 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. Page 30 of 43 \\C~ATA\CA\0R D~Ufillty~fr anchising ~ of cable service pmvide~.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (B) Notwithstanding the provisions of section 5-24(3)(A), a person may apply for an initial franchise by submitting an unsolicited application containing the information required in section 5-24(2) and requesting an evaluation of that application pursuant to section 5-24(3)(C). Prior to evaluating that application, the City may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in section 5-24(3)(C), including by commencing a proceeding to identify the furore cable-related needs and interests of the community. It also may seek additional applications prior to evaluating the application. An applicant for an initial franchise shall be provided an opportunity to amend its application in light of the result of any investigation conducted by the city, prior to evaluation of that application pursuant to section 5-24(3)(C). (C) In evaluating an application for a franchise, the city shall consider, among other things, the following factors: 1. The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the city; 2. Whether the quality of the applicant's service under any existing franchise in the city, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served; 3. Whether the applicant has the financial, technical, and legal qualifications to hold a cable franchise; 4. Whether the application satisfies any minimum requirements established by the city under this article or in the RFP or and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests; 5. Whether, to the extent not considered as part of Section5-24(3)(C)4., the applicant will provide adequate public, educational, and governmental use capacity, facilities, or financial support; 6. Whether issuance of a franchise 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 the delivery of cable service in the city. (D) If the city finds that it is in the public interest to issue a franchise Page 31 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 under which comments from the pubhc 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 incomplete 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 U.S.C. §546. It is the proposal submitted by a franchisee under 47 U.S.C. §546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. §546(a), that must contain the information required under section 5-24(2). If neither a franchisee nor the city activates in a timely manner, or can activate the renewal process set forth in 47 U.S.C. §546(a)-(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. §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 for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act: (A) If the provisions of 47 U.S.C. §546(a)-(g) are properly invoked, the city shall issue an RFP after conducting a proceeding to review the franchisee's past performance and to identify future cable-related community needs and interests. The city shall make available for review by a franchisee the results of the city's review and ascertainment proceedings. The city shall establish deadlines and procedures for responding to the RFP, may seek additional information from the franchisee related to the city's evaluation of the proposal given the standards for review of that proposal under applicable law, and shall establish deadlines for the submission of that additional information. Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the city commission will determine that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed in accordance with the provisions of the Cable Act applicable to that preliminary decision. The preliminary determination shall be made by resolution. If the city commission determines that the franchise should not be renewed, and the fi:anchisee notifies the city, either in its RFP response or within thirty (30) business days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the city shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If the city commission decides preliminarily to grant renewal, it shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the franchisee in the application. If the franchisee accepts the franchise agreement, and the fmal agreement is approved by the city commission, the franchise shall be renewed. If the franchise agreement is not so accepted and approved within the time limits established by 47 U.S.C. §546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the franchisee requests it within thirty (30) business days of the Page 32 of 43 \\C~ATA\CAXORD\Ufil/ty~anch/sing llcendng o f cable servlce provklets.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 expiration of the time limit established by 47 U.S.C. §546(c)(1), unless the time limit is extended by mutual agreement of the city and the franchisee. (B) If an administrative hearing is commenced pursuant to 47 U.S.C. §546(c), the franchisee's application shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply: 1. The proceeding shall be conducted with all deliberate speed in accordance with such lawful procedures as the city may adopt by resolution. 2. The City Commission may appoint an administrative hearing officer or officers or may conduct the administrative hearing itself. The entity that will conduct the administrative hearing is referred to as "hearing officer." 3. The hearing officer shall establish a schedule for proceeding. The hearing officer shall have the authority to require the production of evidence from any person as the interests of justice may require. Any order regarding the production of evidence may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing. 4. The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by non-parties is not authorized except to the extent required by the Cable Act. 5. The hearing officer shall require the city and the franchisee to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the franchisee shall present evidence first, and the city shall present evidence second. 6. Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. §546(a) shall be, for purposes of the administrative hearing, regarded no differently than any other evidence. The city and the franchisee shall be afforded fair opportunity for full participation in the proceeding, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection 47 U.S.C. §546(a)), to require the production of evidence, and to question witnesses. 7. Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the city is entitled to consider in determining whether renewal ought to be granted. Based on the 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 findings 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 findings. The city commission shall thereafter issue Page 33 of 43 ',\ClthMAIN ~ BRDATA\CA~O RD~Ulilit~hising licensing of cable service providers.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 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 Commission 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 U.S.C. §546(h) at any time, and the city may, after affording 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 prejudice to the applicant's right to seek renewal under other provisions of section 5-24. (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 financial impact on the applicant if the modification is 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 U.S.C. §545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. §545; 4. Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and 5. An affidavit or declaration 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 modification submitted pursuant to 47 U.S.C. §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 be 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. Page 34 of 43 \\~HRDATA\CAXDRl~Utilityhl'anchising licenslng o f cable se~ce provklers.doc 1 2 3 5 6 ? 8 9 10 11 12 13 15 16 17 18 19 2O 21 22 23 2~ 25 26 27 28 29 3O 31 32 33 3~ 35 36 37 38 39 ~0 ~2 43 ~5 ~6 Sec. 5-25. Construction Provisions. (1) System construction schedule. Every 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 construction required. (2) Use of franchisee facilities. The city shall have the right to install and maintain free of charge upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the franchisee. Provided that, if the city uses a franchisee's conduit or poles to install a cable system that competes with that franchisee in the provision of cable service to residential subscribers, the franchise agreement may provide that the franchisee may charge the city a fair market rate pursuant to that franchise agreement. Franchisee shall notify the city when it enters into an agreement for use of its poles and conduits. Copies of agreements for use of franchisee's conduits or poles in the Public Rights-of-Way or on other public property shall be available for review upon the city's request. A franchise agreement may include a provision under which the city shall indemnify, defend and hold a franchisee harmless for all claims arising out of the city's use of that franchisee's poles and conduits where the franchisee and the city do not have a joint pole or conduit use agreement. (3) Provision of Service/Quality of Service. In addition to satisfying such requirements as may be established in a franchise, every cable system shall be subject to the following conditions, except as prohibited by federal law: (A) It is the policy of the city to ensure that every franchisee provide service in the franchise area upon request to any person or any government building. Each franchisee shall extend service upon request w/thin its franchise Area, provided that, a franchise agreement may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension br installation may be unduly expensive. Service must be provided within time limits specified in Section 5-25(3)(B). (B) Except as a franchise agreement otherwise provides, a franchisee must extend service to any person or to any government building in the franchise area which requests it within seven (7) business days of the request, where service can be provided by activating or installing a drop; within 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 extension or installation costs, and franchisee requires the potential subscriber to bear such costs, the time for extension shall be measured from the date the subscriber agrees to bear such costs or, if a franchisee requires prepayment of all or a portion of the estimated costs, from the date the prepayment is made. A franchisee that requires a potential subscriber to bear a portion of installation or extension costs must prepare a written estimate of extension costs within seven (7) business days of a request for an installation or extension that would be subject to cost-sharing. Page 35 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (C) Any cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards. (D) A franchisee shall perform all tests necessary to demonstrate compliance with the requirements of the franchise agreement and other technical and performance standards established by applicable law. Unless a franchise agreement or applicable law provides otherwise, all tests shall be conducted in accordance with federal rules and in accordance with the most recent edition of National Cable Television Association's "Recommended Practices for Measurements on Cable Television Systems," or such other manual as may be directed under FCC regulations. A written report of any test results shall be filed with the city within seven (7) calendar days of a request by the city. If a location fails to meet technical or performance specifications, the franchisee, without requirement of additional notice or request from city, shall promptly take corrective action, and retest the locations. (E) Every cable or open video system and every cable or open video system operator shall be required to interconnect with every other cable or open video system and cable or open video system operator within the city on fair and reasonable terms for purposes of providing PEG and 1-Net services. (4) System maintenance. Scheduled maintenance shall be performed so as to minimize the effect of any necessary interruptions of cable service. (5) Continuity of service. Each franchise agreement shall, during the term 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 obhgated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. Sec. 5-26. Operation and reporting provisions. (1) Communication with regulatory agencies. If requested by the city in writing, a franchisee 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 directly 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 Security 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 regulatory or court filings that are treated by the agency or court as confidential, such as Hart-Scott-Rodino Act Page 36 of 43 \~CTrIXMA1NASHRDATA\CA\ORD~U6IiBA fr anchlsing licensing of cable se~vice pm~ide~.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 filings. Nothing in this Section 5-26(1) affects any rights the city may have to obtain books and records under Article II. (2) Reports. (A) If requested 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 requiting 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 duration, 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 sound 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, that 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 descriptions 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 the 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 often percent (10%) or more; 5. a list of officers and members of the Board of Directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the cable system; Page 37 of 43 \\CHkMAI~ SHRDATA\CAXORD\Ufilltyk fr anclfising licendng of cable serfice ptovid~s.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 6. an organizational chart showing all corporations or partnerships with more than a ten (10) percent interest ownership in the franchisee, and the nature of that ownership interest (limited parmer, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified; 7. an annual report of each entity identified in section 5-26(2)(B)6. which issues an annual report; 8. a complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, provide revisions to the cable system maps filed with the city, and report the results of appropriate electronic measurements to show conformity with FCC technical standards. 9. A report showing, for each cable customer service standard in force, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. 10. Notwithstanding the above, once the information required by sections 5-26(2)(B)4.-6. has been filed once, it need only be refiled if it changes. (3) Records Required. A franchisee shall at all times maintain: (A) Records of all service calls received with information sufficient to allow the franchisee to prepare the reports required in this section 5-26; (B) Records of outages known to the franchisee, with information sufficient to allow a franchisee to prepare the reports required in this section 5-26; (C) Records of service calls for repair and maintenance indicating the date and time, if available, service was requested, and date and time, if available, service was scheduled (if it was scheduled), and the date and time, if available, service was provided, and (if different) the date and time the problem was solved, if available; and (D) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, if available, and the date and time, if available service was provided. Sec. 5-27. Rate regulation and consumer protection. (1) Scope and applicability. The City reserves all rights to implement and impose regulation of a franchisee's rates and charges to the maximum extent permitted by Page 38 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 law, and may do so by amendment to this Chapter, by amendment to a franchise agreement, or in any other lawful manner. (2) Rate regulation procedures. Rate regulation shall be performed in accordance with the rules and regulations of the FCC. The City Manager, or his designee, may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The city commission shall be responsible for issuing final rate orders that establish rates or order refunds. No rate may be put into effect without the prior review and approval of the city, except as federal law may otherwise require. (3) Rate discrimination prohibited. Except to the extent the city may not enforce such a requirement, a franchisee is prohibited fi:om discriminating in its rates or charges or fi:om granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such 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 relating to non- discrimination. (4) Cable Consumer Protection Standards. Each franchisee must satisfy cable consumer protection standards established by the City fi:om time to time by ordinance or by resolution. In addition, each franchisee shall at all times satisfy any additional or stricter requirements established by applicable law including, without limitation, FCC customer service standards and consumer protection laws. Sec. 5-28. Franchise fee. Amount of Franchise Fee. A franchisee shall pay to the City a franchise fee in an amount equal to five percent (5%) of gross revenues. Sec. 5-29. Transfers. (1) City Approval Required. No transfer shall occur without 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. Page 39 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (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 will 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 service. 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 information and forms required under federal law or the equivalent of such forms if no longer required by federal law; of this Chapter; 2. all information required in Sections 5-24(2)(A) and 5-24(2)(E)-J. 3. any contracts or other documents that relate to 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") that 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 impact of the transfer on subscriber rates and service; 7. a brief summary of the proposed transferee's plans for at least the next five (5) years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system. (C) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned as provided under section 5-29(3) of this chapter. The franchisee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied. Page 40 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (3) Determination by City. In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a franchise, the city shall consider the legal, financial, 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 operator is in compliance with its franchise agreement and this ordinance and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the city's interest under this chapter, the franchise agreement, or other applicable law. (4) Transferee's Agreement. Subject to any transitional provisions that may apply, no application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Chapter and the franchise agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under this Chapter and the franchise agreement for all 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 constitute 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 agreement 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 5-29, 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; Page 41 of 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (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 financial 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 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 city 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. Sec. 5-30. Connections to cable system; use of antennae. (1) Subscriber right to attach. To the extent consistent with federal law, subscribers shall have the right to attach VCR's, 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 subscriber 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. Section 3. Conflicting Ordinances All prior ordinances or resolutions or parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 4. Severability. If any section, sentence, clause, or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this Ordinance. Page 42 of 43 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Section 5. Inclusion in Code. It is the intention of the City Commission of the CITY OF BOYNTON BEACH, Florida, that the provisions of this Ordinance shall become and be made a part of the CITY OF BOYNTON BEACH Code of Ordinances; and that the sections of this ordinance may be renumbered or relettered and the word "ordinance" may be changed to "section," "article," or such other appropriate word or phrase in order to accomplish such intentions. Section 6. Effective Date. This Ordinance shall become effective thirty (30) calendar days after adoption by the City Commission. FIRST READING this ~, day of '~.,,'~v',ff , 2000. SECOND, FINAL READING AND PASSAGE this o~Wday of ,,d'~v'~'., 2000. Mayor Pro Tern ATTEST: Commissioner Commissioner Page 43 of 43