Ordinance No. 40-79-9 v ORDINANCE NO. 40-79-9
410
AN ORDINANCE PROVIDING FOR THE GRANTING OF A NON-
EXCLUSIVE FRANCHISE TO OPERATE A CABLE TELEVISION
SYSTEM IN THE CITY OF ATLANTIC BEACH; SJITfING FORTH
CONDITIONS ACCOMPNAYING THE GRANTING OF FRANCHISE;
PROVIDING FOR CITY REGULATION OF THE CABLE TELEVISION
SYSTEM; PRESCRIBING PENALTIES FOR VIOLATIONS OF THE
FRANCHISE PROVISIONS; AND ESTABLISHING GENERAL RULES
FOR THE APPLICATION PROCEDURES REQUIRED BEFORE
GRANTING A FRANCHISE.
BE IT ENACTED BY THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA:
SECTION 1. Short Title. This ordinance shall be known and may be
cited as the "Jacksonville Beaches Cable Television Ordinance."
SECTION 2. Definitions. For the purpose of this ordinance, the
following terms, phrases, words, and their derivations shall have the .
meaning given herein, unless the context clearly indicates that another
meaning is intended. When not inconsistent with the context, words used
in the present tense shall include the future, words in plural number include
the singular number, and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
A. Applicant - Any person submitting an application to The
Jacksonville Beaches CATV Board for a franchise to operate
a cable television system under the terms and conditions set
forth in this ordinance.
B. Board - The Jacksonville Beaches CATV Board which was created by
the Cities of Atlantic Beach, Jacksonville Beach, and Neptune
Beach in an Interlocal Agreement dated March 12, 1979. This
Board shall have only those powers enumerated by this ordinance
and said Agreement.
S
C. CATV or Cable Television System - Any facility that in whole
or in part receives directly or indirectly over the air and
amplifies or otherwise modifies the signals transmitting
programs broadcast by one or more television or radio stations
and distributes such signals by wire or cable to subscribing
members of the public who pay for such service . Such term shall
not include (1) any such facility that serves fewer than fifty
(50) subscribers , or (2) any such facility that serves or will
serve only subscribers in one or more multiple unit dwellings
under common ownership , control, or management .
D. Channel - A band of frequencies that is six (6) meghertz wide
in the electromagnetic spectrum.
E. City - The City of Atlantic Beach, Florida and its muni-
cipal government.
F. City Clerk - The City Clerk of the City of Atlantic Beach,
Florida.
G. City Manager - The City Manager of the City of Atlantic
Beach, Florida.
H. Commission - The City Commission of the City of Atlantic Beach,
Florida.
I. FCC or The Federal Communications Commission - The present
agency of the United States Government of that name as con-
stituted by the Communications Act of 1934 or any successor
agency created by the United States Congress .
J. Franchisee or Grantee - The person that is awarded a franchise
by the Board to construct and operate a cable television system
within Atlantic Beach in accordance with the provisions
410
of this ordinance.
K. Gross Revenues - All revenues derived directly or indirectly
by a grantee , its affiliates. , subsidiaries , parents , and any
person in which a grantee has a financial interest , exclusive
of all taxes , from or in connection with the oicratio n of a
cable television system in the City with no deductions whatsoever.
L. Person - Any individual, firm, partnership , association, cor-
poration, company , or ether legally recognized entities .
M. Regular Subscriber Service - That service regularly provided.
• to all subscribers : includes all broadcast signal carriage ,
ae.cess channel carriage including origination prograrrind.ng;
does not include specialized programming for which a per
program or per channel charge is made .
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r ,
N. Service Area - All territory currently or in the future located
within the corporate limits of the Cities of Atlantic Beach,
Jacksonville Beach, and Neptune Beach, Florida.
0. Street - The surface of and the space above or below any
public street , road, highway, freeway , lane , path, public
way, place, alley, court, boulevard, parkway, drive , or other
easement now or hereafter held by the City for the purpose of
public travel and shall include other easements or rights-of-
way now held or hereafter held by the Cityfor the purpose of
public travel.
P. Subscriber - Any person receiving regular subscriber service
over the cable television system.
Q. User - A person or organization utilizing a system channel
for purposes of production and/or transmission of material ,
as contrasted with receipt thereof, in a subscriber capacity .
R. Any term used herein, and the definition thereof , that is
defined in the rules of the Federal Communications Commission ,
in Section 76 . 5 or elsewhere , and not mentioned in the above
definitions , is incorporated herein by reference.
SECTION 3 . Grant of Authority.
A. The Council herein sets forth the conditions for the grant
of a non-exclusive right , privilege, and franchise to construct ,
operate, and maintain a cable television system within the City.
B. Any franchise granted under the provisions of this ordinance
shall include the right to locate the system in, upon, along, across ,
over, and under the streets of the City as now existing and all
extensions and additions thereto pursuant to all regulations contained
in this ordinance.
C. The Council hereby assigns to the Jacksonville Beaches CATV
Board the authority to provide for the regulation and control of the
„12,101costelevisiov, ilvqreul as prescribed rip;^<1. s CF3.'li1P^`; ;-n the award
of a franchise and to review such franchise periodically.
D. The City itself or asp assigned by this ordinance to the Board
assumes jurisdiction not entirely preempted by the Federal Communica-
tions Conunission to enforce all laws and regulations relating to cable
television service in Atlantic Beach.
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is E. It shall be unlawful to commence or engage in the construc-
tion, operation, or maintenance of a cable television system without
a franchise issued pursuant to this ordinance .
SECTION 4. Extension of Service.
A. A grantee shall install and make operational, in accor-
dance with provisions of this ordinance, cable, amplifiers , and
related equipment throughout the Service Area as rapidly as practicable,
but, in any event, shall:
(1) Begin construction of its proposed system within
three (3) months after the signing of a franchise
agreement with the Board based on a Resolution en-
acted as required under Section 14C. of this ordinance .
(2) Begin rendering service to subscribers within six (6)
• months after the signing of a franchise agreement.
(3) Complete construction and make operational twenty
percent (20%) of its proposed system within eighteen
(18) months after the signing of a franchise agreement
and complete an additional twenty percent (20%) each
year thereafter so that after five (5) years the entire
system shall be substantially constructed and the
grantee capable of providing service no more than sixty
(60) days after receiving an application for service to
every dwelling unit within the Service Area except
to the extent that density of homes , adverse terrain,
or other factors render making service available imprac-
tical. For the purposes of determining compliance with
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this provision and to provide a reasonable policy re-
quiring extension of energized trunk lines of the cable
system so as to achieve compliance with the obligations
4nnne- cri 1-T� H- c eco^t,-nn lin gr- ant-. ,171. 11 exf-cnA cuc1.
lines to all sections of the Service .Area having a
minimum of fifty (50) dwelling units per linea/ street
11411/ mile. In any area where the average density is less
than fifty (50) deelling units per street mile and the
residents desire regular subscriber service , the system
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shall bear its pro rata share of the current construc-
tion costs . The remaining construction cost will be
borne on a pro rata basis by each subscriber committing
to service within the extension area. In the case of
new subdivisions , developers may elect to bear the
remaining costs , and service will be made available
to residents at normal rates . Mileage will be measured
from the end of the nearest trunk cable.
B. Failure on the part of a grantee to commence and diligently
pursue each of the foregoing requirements and to complete each of the
matters set forth herein, shall be grounds for revocation of its fran-
chise pursuant to the terms of Section 9C. hereof; or should the Board
choose not to revoke the franchise the term of the franchise may be
reduced by one (1) year for each three (3) month delay in complying
with a specific deadline required in this section; provided, however,
that the Board may, in its discretion, extend the time for the commence-
ment and completion of construction and installation for additional
periods in the event the grantee, acting in good faith , experiences
delays by reason of circumstances beyond its control.
SECTION 5. System Design.
A. Channel Capacity. The system shall be capable of initially
transmitting over at least twenty (20) channels for delivery to
subscribers upon coiuuencement of operation. Grantee shall provide
all broadcast signals required or permitted by the FCC to be carried
and shall provide other types of channels as follows :
(1) Grantee shall provide without charge one (1) public
access channel that is available in part for users
with prior reservations on a non-discriminatory first
come first serve basis for any person residing in the
Arc- .
(2) Grantee shall provide without charge one (I) educa-
tionalaccess channel that is available to educational
institutions located within the Service Area.
• (3) Grantee shall provide without charge one (1) local
government access channel that is available to local
government agencies in the Service Area.
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(3) The City shall give grantee reasonable notice of plans
for street improvements when paving or resurfacing
of a permanent nature is involved. The notice shall
contain the nature and character of the improvements ,
streets upon which the improvements are to be made,
the extent of the improvements , and the work schedule
for the project. The notice shall give the grantee
sufficient time to make any additions , alterations ,
or repairs to its facilities as it deems necessary in
advance of the actual commencement of the work. Any
relocation required by the City under this paragraph
shall be at the expense of the grantee.
(4) If all or part of a street within the City is closed
or discontinued, then the rights and privileges con-
tained within this ordinance, with respect to said
streets or any part thereof so closed or discontinued,
shall cease and determine upon the date of the adoption
of the map closing and discontinuing such street , and
the grantee shall not be entitled to damages from the
City due to the closing or discontinuance of such street
or for any injury to any part of the system in the
street or for the removal or relocation of lines and
cables .
(5) The grantee shall, on the request of any person holding
a building moving permit, temporarily raise or lower
its wires to permit moving of said building. The
expense of such temporary removal, raising, or lowering
of wires shall be paid by the person requesting these
services and the grantee shall have the authority to
require such payment in advance. fhe grantee shall
be given not less than three (3) days advance notice
of any move contemplated to arrange for temporary
• wire changes .
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(1) Before any construction is commenced the grantee
shall submit plans to the City Manager and receive a
written notice to proceed at least ten (10) days
prior to such construction . The City Manager shall
have the right to inspect all construction or installa-
tion work performed by the grantee in the streets and to
make such periodic inspections as the City deems
necessary to insure compliance with the terms of its
franchise and other pertinent provisions of the law.
(2) All wires , cable, amplifiers , and other property shall
be constructed and installed in an orderly and workman-
like manner. All cables and wires shall be installed
parallel with existing telephone and electric wires
wherever. possible . Nothing in this ordinance, or any
franchise granted hereunder, shall authorize the grantee
to erect and maintain in the City, new poles where
existing poles are servicing the area. The grantee
shall obtain permission from the City before erecting any
new poles or underground conduit at the time the
grantee seeks to install, any lines . All installations
shall be underground in those section of the City where
both telephone and electric utility service are under-
ground at the time of installation. In sections where
either telephone or electric utility facilities are above
ground at the time of installation, the grantee may
install its service above ground with the understanding
that at such time as those facilities are required to
be placed underground by the City the grantee shall
likewise place its services underground without addi-
tional cost to the residents of the City or the remain-
der of the Service Area. It shall be the policy of
the City that underground installation, even when riot
required, is preferable to the placing of additional
• poles .
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(2) The grantee shallmaintain equipment which passes
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standard color television and FM signals without
degredation.
(3) The grantee shall provide that the system and all
equipment be designed and rated for twenty-four (24)
hours per day continuous operation.
(4) There shall be no visible cross modulation products
produced in the cable television system on any channel.
These shall be considered minimum signal reception and sub-
scriber viewing standards and overall technical performance of the
system shall be assessed in relation to these minimum standards and
the grantee' s applicaticn setting forth the technical standards it
proposes to provide .
410 B . Performance Testing. The grantee shall conduct all tests
required by current FCC rules . The results of these tests shall be
retained on file at the grantee' s local business office for at least
five (5) years . The grantee shall provide and keep accurately cali-
brated test equipment on hand in the Service Area at all times for the
testing of all service and operational standards outlined in this
ordinance or the FCC rules and shall conduct these tests when requested
by the Board or the City under the supervision of a Board or City
representative in order to establish the level of performance of the
system. Successful completion of performance tests at specified loca-
tions does not relieve the system of the obligation to comply with all
pertinent technical standards at all subscriber terminals .
C. Safety Requirements . The grantee shall install and maintain
4410 its wires , cablEs., fixtures , towers , and other equipment in accordance
with the City' s duly adopted building and electrical codes . The
grantee shall keep and maintain in a safe condition and in good order
and repair all structures , lines , towers , equipment , and connections in,
over, under, and upon the streets , sidewalks , alleys , and public ways
or places of the City.
SECTION 7 . System Regulations .
411 A. System construction, In the use of City streets , the
following conditions shall apply :
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(4) Grantee shall reserve the remaining unused channels
or unused portions of the foregoing channels available
as leased access channels with part time users given
preference on one (1) channel.
B. Access Programming Facilities . Grantee shall provide
both mobile and stationary equipment including designated equipment
to be used by access cable casters with the aid of some technical
and production assistance to be provided by the grantee , including
equipment that can store programs for delayed broadcasting. Grantee
shall provide one (1) access studio located in the Service Area as-to encourage its us(
which shall be available to all access users on a first come first
serve basis . A full schedule of rates for the 'use of equipment and
studio facilities must be submitted by grantee at the time of franchise
application.
C. Two-Way Provisions . Grantee shall install and maintain a
cable television system with capacity for two-way communications .
D. Standby Power. The grantee shall maintain equipment
capable of providing standby power for headernd, transportation -and 'trunk
amplifiers for a. minimum of two (2) hours . The equipment shall he
constructed so as to automatically notify the cable office when it is
in operation and to automatically revert to the standby mode when the
normal cormercial power returns .
SECTION 6. Technical Standards .
A. Performance Standards . The cable television system shall be
safely constructed and operated at all times in full compliance with
the technical standards established by the FCC. Signal reception
standards and subscriber viewing standards shall be maintained by the
grantee at a level at least equal to the minimum standards prescribed
by the FCC new and hereafter. In addition, the grantee shall insure
�.
1 . tt ;? fn7 1ow�ng p:?Tf!'1Y?Tl^`"�(`P C1'�T'.d r s a.Y.'� met
(1) The facilities used by the grantee shall be capable
of distributing color television signals and when the
signals distributed are received in color, they shall
• always be distributed in color.
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(6) Grantee shall have the authority to trim trees upon
and overhanging streets , alleys , sidewalks , and other
public places of the City so as co prevent the branches
of such trees from coming in contact with the wires
and cables of the grantee. All trimming is to be done
under the supervision and direction of the City after
the explicit prior written notification and approval
of the City Manager and be at the expense of the
Grantee.
(7) Nothing contained in this section shall relieve any
person, company, or corporation from liability arising
out of failure to exercise reasonable care to avoid
injuring the grantee ' s facilities while performing
any work connected with grading , re-grading, or changing
the line of any street or public place or with the
construction or reconstruction of any sewer , water ,
electric, or telephone system.
B. Subscriber rates .
(1) Any franchise issued pursuant to this ordinance shall
set forth the initial rates which grantee may charge
its subscribers upon commencing service.
(2) Any subscriber rate established shall be reasonable,
just , and fair to the public and the grantee and shall
be generally defined as the minimum rates necessary to
meet all applicable cost of service, including fair
return on all invested capital, all assuming efficient
and economical management . Subscribers may be divided
into coiiuiercialand residential classes , The grantee
may waive installation and basic service charges as
p L L ui a pl Viioiunai LO o.%La:in sdbscrib rs .
Rates shallbe non-discriminatory and shall not affcr('
any undue preference or advantage among subscribers
in the same class'.
•
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(3) If any subscriber fails to pay the monthly prescribed
charge or any other fee or charge , the grantee may
disconnect the subscriber' s service outlet provided,
however, that such disconnection shall not be effected
until thirty (30) days after the due date of the de-
linquent fee or charge and shall include ten (10) days
written notice of the; intent to disconnect delivered
to the subscriber. If a subscriber pays within thirty
(30) days after payment is due and after notification
of disconnection has been given, the grantee shall not
disconnect the subscriber service. After disconnection,
upon payment in full of the delinquent fee or charge and
the payment of a reconnection charge , the grantee shall
promptly reinstate a subscriber' s cable service . There
shall be no charge for disconnection of any outlet.
(4) Franchisee may require subscribers to pay for each month
of basic service in advance at the beginning of each
month. A refundable deposit on converters will be per-
mitted. No other advance payment or deposit of any
kind shall be required by any franchisee for regular
subscriber service. Nothing in this provision shall
• be construed to prohibit charges for or waiver of
charges for initial installation or reconnection.
(5) The Board and a franchisee may request rate increases
or decreases at any time; provided, however, that the
initial rates as established as part of the franchise
agreement shall not be increased until system construc-
tion has been completed. The grantee shall otherwise
be allowed to increase its subscriber rates only upon
receiving approval of the Board after a full public
proceeding.
(a) Should a grantee desire to change any rate or rates ,
it shall file z1 petition with the Board at least
410
ninety (90) days prior to the proposed date of
change . The petition shall detail proposed changes
and set forth the reasons changes are desired.
Upon receipt of a petition for rate change , the
Board shall schedule and publish notice of a public
hearing on the matter to be held within thirty
' (30) days from date of receipt of petition. The
public notice shall be made at least ten (10) days
prior to the hearing and shall be announced by
the franchisee on at least two (2) channels of its
system, between the hours of 7 :00 a.m. and 9 : 00 p .m.
for five (5) consecutive days . At the public hearing
all interested parties shall be heard. Thereafter ,
the Board shall decide the matter by a majority
vote and render a written decision approving,
disapproving , or modifying the proposed rate changes .
(b) If the Board fails to act within ninety (90) days
of the franchisee's petition pursuant to paragraph
(a) above, the franchisee shall thereafter be
entitled to put its proposed new rates into effect
on a provisional basis , provided that it shall keep
a full and accurate accounting of all income
resulting from said provisional rates and shall
be obliged for a period of up to six (6) months
thereafter to refund the amount by which said pro-
visional rates exceed the rates ultimately estab-
lished by the Board. Upon request by the Board
the franchisee shall provide a bond or other reason-
able surety in an amount not to exceed the previously
existing rates to insure that possible refunds due
under this subsection shall be promptly made.
44 (c) In order for the Board to determine whether proposed
rate changes comport with the criteria established
in Subsection B2 . above, the grantee' s petition
for a rate increase shall include the following
financial reports , which shall reflect the operations
of the Jacksonville Beaches system only:
(i) Balance sheet
111 (ii) Income_ statement
(iii) Cash flow statement
(iv) Statement of sources and applications of funds
(v) Detailed supporting schedules of expenses , in-
come , as. d' '-b items as may be required
w� J{�i [..L1 Ll.l l.af.
(vi) Statewent of current and projected subscribers
and penetration
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The franchisee' s accounting records applicable to
the system shall be available for inspection by
the Board at all reasonable times . The Board shall
have access to records of financial transactions
for the purpose of verifying burden rates cr other
indirect costs prorated to the Jacksonville Beaches
operation. The 'documents listed above shall in-
clude sufficient detail and/or footnotes as may
be necessary to provide the Board with the informa-
tion needed to make accurate determinations as to
the financial condition of the system. All financial
statements shall be certified as accurate by an
officer of franchisee.
(d) Should the Board desire to change rates , the same
notice and hearing procedure shall be followed.
C. Customer and user complaints .
(1) The grantee shall maintain a conveniently located
business office and service center within the Service
Area which shall be open during all normal business
hours , have a publicly listed telephone , and be so
operated that complaints and requests for repairs or
adjustments may be received on a twenty-four (24) hour
basis . A log book shall be maintained by the grantee
recording the time of complaint , nature of complaint ,
and corrective action taken. These records shall be
made available to the Board or. the City upon request .
The grantee shall notify subscribers at the time of
initial subscription to the system of the procedure
for reporting and resolving complaints by delivering
to each subscriber a written notice in form approved
by the Board including a statement that unresolved
complaints may be reported to a representative(s) of
the Board.
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(2) The grantee shall maintain a repair service capable
of responding to subscriber complaints or request for
regular service within twenty-four (24) hours after
receipt of the complaint or request. No direct charge
shall be made to the subscriber for this service. In
the event of interruption of regular subscriber service for_twenty-fot
(24) consecutive hours , except for acts beyond the
control of grantee, and except in circumstances where
prior approval of the City Manager is obtained, grantee
shall provide a ten percent (107) rebate of monthly
fees to the affected subscribers . In the event of
interruption of service for forty-eight (48) consecu-
tive hours except for acts beyond the control of the
grantee and unless approval of the City Manager is
ee
obtained, grantee shall provide a twenty percent (20%)
rebate of monthly fees to the affected subscribers .
Time under this provision shall be counted from the
hour the complaint is first reported to the grantee.
D. Records and reports . The grantee shall keep complete and
accurate books of accounts and records of its business and operations
under and in connection with its franchise . All such accounts and
records or copies thereof shall be maintained at the grantee ' s local
business office . The Board and the City or their officially designated
representatives shall have access to all reports and records during
all reasonable hours . Any false entry in the accounts or records of
the grantee or false statement in the reports as to a material fact
knowingly made by the grantee or its representatives shall constitute.
a violation of a material provision of this ordinance and constitute
grounds for revocation of the franchise . Within five (5) days after
the grantee , its affiliates and/or subsidiaries have filed a report ,
petition, or communication with any city , state , or federal agency
pertaining to any aspect of operations hereunder or the financial
arrangements therefor , it shall ,file a copy of such report , petition ,
• or communication with the Board.
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E. Liability and indemnification. Except for any liability
which may accrue to the City with regard to its own programming on
a governmental access channel, the grantee shall indemnify and hold
the City and the Board harmless for all liability, damage , cost , or
expense (including reasonable attorney' s fees) arising from claims
or injury to persons or damage to property occasioned by reason of
any conduct undertaken under the terms of this ordinance by a grantee.
The City or Board shall not and does not , by reason of this ordinance
or the granting of a franchise hereunder, assum2 any liability of the
grantee whatsoever for injury to persons or damage to property. The
grantee agrees to maintain and keep in full force and effect at all
times during the term of its franchise sufficient liability insurance
coverage to protect the City and Board against any such claims , suits ,
judgments , execution or demand in a sum not less than Three Hundred
Thousand Dollars ($300 ,000) per person in any one claim, Five Hundred
Hundred Thousand Dollars ($500 ,000) as to any one accident or occur-
rence and not less than Three Hundred Thousand Dollars ($300 ,000)
for property damage as to any one accident or occurence or in such
larger sums as may be required by subsequent resolution of the Board.
The grantee shall also maintain in full force and effect throughout
the term of its franchise sufficient workmen' s compensation insurance
coverage to adequately and fully protect its agents and employees
as required by law.
F. Performance bond. The grantee shall maintain and by
acceptance of any franchise hereunder agrees that it will maintain
through the term of the franchise or any renewal or extension thereof
a faithful performance bond running to the Board with one (1)
good and sufficient surety approved by the Board in the penal sum
of One Hundred Thousand Dollars ($100 , 000) conditioned upon the
fa ?_?-,f• 1 p eYfoorT,1m^:c.e oft e zrai,f pP ard the 't lir 11E r onndi f f :'n f Cr i`
in the event the grantee shall fail to comply with any law, ordinance ,
or regulation governing the franchise , there shall be recoverable ,
jointly and severally, from the 'principaland surety of the bond ,
• any damage or loss suffered by the City or the Eoard as a result
including the full amount of anv compensation , ind. =if_ication, or
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cost of removal or abandonment of any property of the grantee plus
a reasonable allowance for attorney' s fees and costs up to the full
amount of the bond. The bond shall contain the following endorsement :
It is hereby understood and agreed that this bond may
not be cancelled nor the intention not to renew be
stated until thirty (30) days after receipt by the
Chairman of the Jacksonville Beaches CATV Board by
registered mail of two (2) copies of a written notice
of such intent tc cancel‘ or not renew.
Two (2) copies of all bonds shall be filed and maintained with
the Board during the term of any franchise granted hereunder or any
renewal thereof.
G. Preferential or discriminatory practices prohibited.
The grantee shall not as to rates , charges , service , service facili-
ties , rules , regulations , or any other respect make or grant any
undue preference or advantage to any subscriber or potential sub-
scriber, or to any user or potential user nor subject any such
persons to any prejudice or disadvantage .
H. Penalties . Notwithstanding any other penalties prescribed
by this ordinance , the Board, after notice and opportunity for hear-
ing, may impose the following monetary penalties on the grantee :
(1) For failure to provide data and reports as requested
by the City or the Board,* grantee shall forfeit Fifty
Dollars ($50) per day or part thereof that the viola-
tion continues .
(2) For failure to comply with the operational standards
following a resolution of the Board directing grantee
to make improvements , grantee shall forfeit One Hundred
Dollars ($100) per day or part thereof that the vio-
lation continues .
(3) For failure to test , analyze and report on the
� per-
formance of thm uJ: L. m following 1-1 � rcnoor � ✓ro roj
• o. a
of the Board, grantee shall forfeit Fifty Dollars ($50)
per day or part thereof that the violation continues .
(4) For failure to pay the franchise fee when due , grantee
• shall forfeit Fifty Dollars ($50) per day or part
thereof that the violation contin_aes .
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(5) For persistent failure to comply with such reason-
able requests and recommendations as may be made by
the Board or the City pursuant to authority granted
by this ordinance , grantee shall forfeit Fifty Dollars
($50) per day or part thereof that the violation continues .
I. Compliance with local laws . A grantee shall, at all times
during the life of its franchise , bye subject to the lawful exercise
of the City' s police power and such reasonable regulations as the
City Council or Board may subsequently promulgate thereunder. All
privileges prescribed by such franchise shall be subordinate to any
prior lawful occupancy of the public streets .
SECTION 8 . Franchise Fee .
A. The grantee shall pay as compensation for a. franchise
granted pursuant to this ordinance and in consideration of permission
to use streets and public ways of the City for the construction,
operation, maintenance, and reconstruction of a cable system an annual
fee of three percent (3%) of its gross revenues . In the event that
it is determined that the Federal Communications Commission lacks the
jurisdiction to impose the three percent (3%) limitation on franchise
fees , then the franchise fee shall be subject to renegotiation between
the Board and the franchisee.
B. Payments due the City under this section shall be made to
the City Clerk and computed quarterly for the preceding quarter as
of January 1, April 1, July Land October 1. Each quarterly payment
shall be due and payable no later than thirty (30) days after the
relevant computation date . Each payment shall be accompanied by a
brief report to the City Clerk showing the basis for the computation
and such other facts as may be required by the City.
C. Acceptance of any payment shall not be construed as an
accord that the amount paid is , in fact , the correct amount nor shall
any such acceptance of payment be construed as a release of any
claim that the City may have for further or additional suns payable
under the provisions of the or ivance . All amounts paid shall e
• subject to audit and recompucation by the City. In the event that
recomputa.ti.on results in additional revenue to he paid to the City ,
such amount shall be subject to an eight percent (g0 interest charge .
-17-
D. Nothing in this section shall limit a grantee' s liability
to pay other applicable local taxes .
SECTION 9 . Length, Renewal, and Transfer of Franchise.
A. Length of franchise . Any franchise granted by the Board
under this ordinance shall be for a term of fifteen (15) years commencing
six (6) months from the date of award of a franchise . At least one (1)
year prior to the expiration of the 'franchise , grantee shall inform
the Board in writing of its intent to seek renewal of the franchise.
After giving public notice, the Board shall proceed to determine whether
the operator has satisfactorily performed his obligations under the
franchise. To determine satisfactory performance , the Board shall
consider technical developments and performance of the system, program-
ming, other services offered, cost of services , and any other particular
requirements set in the ordinance; also, the Board shall consider the
grantee' s annual reports to it and the FCC. Industry performance on
a national basis shall be considered. Provision shall be made for
community comment. A four-month (4) period shall be provided to
determine the grantee' s eligibility for renewal. The Board shall then
prepare within two (2) months , any amendments to the Jacksonville
Beaches cable television ordinance that it believes necessary and submit
such changes to the City. If the Board finds the grantee' s performance
satisfactory, a new franchise shall be granted pursuant to the ordinance
as amended for a period of five (5) to fifteen (15) years at the dis-
cretion of the Board. In the event the current grantee is determined
by the Board to have performed unsatisfactorily, new applicants shall
be sought aril evaluated and a franchise award shall be made by the Board
according to franchising procedures adopted by the Board.
B. Renegotiation. The Board and the grantee shall hold sche-
duled renegotiation sessions within thirty (30) days of the 5th and
10th anniversary dates of the award of the initial franchise . All such
renegotiation sessions shall be open to the public with due public
notice. Special renegotiation sessions may be held at any time during
the term of the franchise at the xequest of the Board or the grantee.
Such special renegotiation sessions shall be open to the public with
due public notice. The following topics shall be discussed at every
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renegotiation session: service rate structures ; free or discounted
services ; application of new technologies ; system perfolmance ; services
provided; programming offered; customer complaints ; and judicial and
FCC rulings . Topics in addition to those listed may he added if agreed
upon by both parties . Members of the general public mat, add topics
either by working through the negotiating parties or be presenting a
petition containing the valid signatures of fifty (50) or more qualified
electors of the Service Area.
C. Revocation. In addition to all of the right ; and powers
reserved by or pertaining to the City , the City, acting through the
Jacksonville Beaches CATV Board, reserves as an additional and as a
separate and distinct power, the right to terminate the franchise
and all rights and privileges of the grantee hereunder 1or any of the
following reasons :
(1) Material breach whether by act or omission of any
terms or conditions of this franchise ordinance.
(2) Material misrepresentation of fact in the application
for or negotiation of the franchise.
(3) Insolvency of the grantee or inability ,>r unwilling-
ness of the grantee to pay its just debts when they
accrue; or application of the grantee for adjudication
as a bankrupt.
(4) If for ten (10) consecutive days the cal,le television
system, or any part thereof , is inoperative , or if
the same is inoperative for thirty (30) days out of
any consecutive twelve (12) months .
(5) Failure to provide subscribers or users with adequate
service in the best interest of the pub convenience
and welfare.
(f ) T'a,.. 'r-p to n l 411 tots?] ;hp 1inim?.1If? FCP ni nb.-�al
1_ ---- - 'mo `
tion and subscriber viewing standards a,, required in
Section 6 . of this ordinance.
No revocation shall be effected unless or until the Board shall
have adopted a resolution setting forth causes and reasons for the
termination and the effective date thereof. Such reso] ot.ion shall not
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be adopted without thirty (30) days notice prior thereto to the
grantee and an opportunity for the grantee to be heard upon the
proposed action. Findings of fact as made by the Board after such
hearing shall be conclusive .
D. Transfer, assignment , foreclosure , and receivership .
(1) Transfer or assignment .
(a) No transfer of effective ownership or
control of the cable system may take place ,
whether by forced or voluntary sale , lease,
mortgage , assignment, encumbrance or any
other form of disposition, without prior
notice to and approval by the Board, which
shall not be unreasonably refused. The
notice shall include full identifying
particulars of the proposed transaction,
and the Board shall act by resolution, The
Board shall have sixty (60) days from
receipt of notice to approve or disapprove
a transfer of control. If no action is
taken within sixty (60) days , approval
shall be deemed to have been granted.
(b) For the purposes of this sub-section, a
"transfer of effective ownership or control"
shall be taken to mean and include the
acquisition, within any consecutive period
of thirty-six (36) months , of more than a
ten (10) percent interest in the grantee' s
voting capital stock, franchise, plant,
equipment or other property used 5n the
conduct of the business , 07 more than a ten
(10) percent representation on the grantee' s
board of directors , by any person or group of
• persons acting in concert who before that
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period did not enjoy such interest or
representation; but such definition shall
not include :
i . A pledge or hypothecation or mortgage or
similar instrument transferring con-
ditional ownership of all or part of
1
the system' s assets to a lender or cre-
ditor in the ordinary course of business
so long as the lender does not thereby
acquire the right to control the sys-
tem' s operations ; but no such transfer
of conditional title can be made absolute
without prior approval of the Board; or
ii. The disposition of facilities or equip-
ment no longer required in the conduct
of the business .
(c) In the absence of extraordinary circumstances ,
the Board will not approve any such trans-
action before the completion of construction
of the entire system as required in Section
4AC3) '
(2) Foreclosure . Upon the foreclosure or other judicial
sale of all or a substantial part of the system the
grantee shall notify the Board of such fact and such..
notification shall be treated as a notification that
a change in control of the grantee has taken place and.
the provisions of Section 9D . (1) . of this ordinance
governing the consent of the Board to such. change in
control of the grantee shall apply.
(3) Receivership . The Board shall have the right to
revoke a franchise one hundred and twenty (120) Jays
after the appointment of a receiver or trustee to take
111 over and conduct the business of the grantee whether
in receivership , reorguization , bankruptcy , or other
action or proceeding unless such receivership or trus-
teeship shall have been vacated prior to the expiration
of said one hundred and twenty (120) days or unless :
-21
(a) Within one hundred and twenty (120) days after
his election or appointment such receiver or
trustee shall have fully complied with all provisions
of this ordinance and remedied all defaults there-
under; or
(b) such receiver or trustee within said one hundred
and twenty (120j days shall have executed an agree-
ment duly approved by the court having jurisdiction
in the premises whereby such receiver or trustee
assumes and agrees to be bound by each provision
of this ordinance.
E. Continuity of service. If a franchise granted under this
ordinance terminates for any reason, the Board tna.y require the grantee
to continue to provide all services at the prevailing subscriber rate
for not more than six (6) months .
F. Option to purchase system. In the event a franchise
granted under this ordinance is revoked or expires , the Board shall
have the option to purchase , on behalf of the City, the cable television
system. The Board shall offer to purchase the system at a price not
to exceed its then book value (i . e. , original cost of property less
accumulated depreciation) . Under no circumstances shall any valuation
be made for "good will" or any right or privileges granted by the
franchise agreement . If the grantee shall refuse to accept the offer
of the Board, the Board shall still retain the right to purchase or
refuse to purchase the system az the same price as the best offer made
by a third party.
SECTION 10. Miscellaneous Provisions .
A. Grantee may promulgate rules. A grantee shall have the
authority to promulgate such rules , regulations , germs, and conditions of
its. business as shall be reasonably necessary to enable it co exercise
its rights and perform its services under this ordinance and the rules
of the FCC and to assure uninterrupted service to its subscribers .
• Such rules and regulations shall 'not be deemed to have the force of law
and shall not in any way conflict with the ordinances of the City.
B. Tampering and unauthorized connections . It shall be
unlawful for any person without the consent of the owner to willfully
tamper with, remove , or injure any cables , wires , or equipment con-
stituting a part of the cable television system. It shall be unlawful
for any person, firm, or corporation to make or use any unauthorized
connection whether physically, electrically, acoustically, inductively,
or otherwise , with any part of a franchise cable television system
within the City for the purpose of enabling himself or others to receive
any television signal, radio signal, picture, program, or sound without
payment to the owner of said system.
C. Service to public buildings . Public buildings shall be
connected to the cable system at no charge if they are within three
hundred (300) feet of a trunk or a feeder line . Such requests for
service are to be initiated by authorized local government officials .
Installations at locations exceeding three hundred (300) feet shall be
at the franchisee' s actual cost for time and materials exceeding three
hundred (300) feet . One service drop per facility shall be made
at each municipal auditori.um, city hall, community center , police station,
fire station, public library, and all public and parochial schools .
If more than one (1) drop is required (per facility) , the charge shall
be based on the grantee's cost of time and materials . No monthly
charges shall be made for providing regular subscriber service at these
public buildings .
D. Prohibition from engaging in radio and television sales ,
service , and repair. The grantee, any and all of its officers , agents ,
and employees , are specifically prohibited from engaging in the sale ,
service , rental, or leasing of television receivers , radio receivers ,
or television or radio receiver related parts and accessories with any
person anywhere in the' service Area whether for a fee or charge or not .
B. Use Uf UI °L LL, Tile glanLee shall be
responsible for obtaining permission from the Jacksonville Beach Elec-
tric Department or other utility companies operating within the City
0 to use any facilities belonging to such Department or company.
SECTION 11 . ,hts Reserved to the Ci y .
Without limitation upon the rights which the City might other-
wise have , the City does hereby expressly reserve the following rights
and powers and authorities :
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/ ,
A. The City shall have continuing regulatory jurisdiction and
supervision over the operation of any franchise granted hereunder , unless
specifically assigned by this ordinance to the Jacksonville Beaches CA1V
Board, and may, from time to time, adopt such reasonable rules and
regulations as it may deem necessary for the conduct of the business
contemplated hereunder. The continuing reguls )ry jurisdiction of the
City not assigned to the Board shall be exercised by the City Manager_
B. The City shall reserve the power to grant , through the
Board, additional franchises within the City to other persons for the
conduct of cable television under any other conditions whatsoever
acceptable to the City.
C. The City shall continue to exercise its governmental powers
now or hereafter to the full extent that such powers may be vested
in or granted to the City and shall exercise any other rights , powers ,
or duties required or authorized to the City under the Constitution
of the State of Florida or the City Charter.
SECTION 12 . FCC Changes Part of Franchise.
Should the FCC modify, change , or alter any of its provisions
as to operational standards , technical performance standards , or
other applicable rules , such modification, changes , alteratio:is , or
amendments shall be incorporated into any franchise issued hereunder
within ninety (90) days of the adoption by the FCC of the modification,
change , or alteration.
SECTION 13. Notices .
Every direction, notice, or order to be served upon the grantee
shall be delivered or sent by certified mail to the grantee' s local
office as described in Section 7C. of this ordinance. Every notice
to be served upon the Board shall be delivered or sent to a location
designated by Resolution of the Board. Every notice to be served upon
tlLe City by the grantee snail be delivered or sent by c,2rtified mail
to the City Hall , City of Atlantic Beach Florida. The delivery of
such notice shall be deemed to have been at the time of receipt .
SECTION 14. rranchi.se Alp licati.cn Procedures .
This ordinance grants no authority to operate a cable television
system to any person. Such grants are only made by the adoption of a
franchise agreement awarded to a specific applicant who has complied
-24-
r •. •
with the provisions of this ordinance . The Board shall award such a
franchise to an applicant only after a public proceeding on the appli-
cation and information filed therewith. The Board shallsolicit appli-
cants who will meet the highest standards of service and character.
No franchise shall he awarded except upon a showing by the applicant of
satisfaction of these criteria among others :
A. Evidence must be presentee assuring the Board that the
applicant is a United States citizen or corporation and does not
directly or indirectly own more than one percent (i%) interest in any
of the following :
(1) A national broadcasttnlevision network (such as ABC,
CBS , or NBC) .
(2) A television broadcast station whose predicted Grade
B contour overlaps in whole or in part the Service
Area of the proposed cable system.
(3) A television translator station licensed to the
Jacksonville area.
(4) A telephone company operating in Duval County .
B. Applicants shall present evidence as to whether or net
the applicant or any principal has ever been convicted in a criminal
proceeding where felonies or misdemeanors were charged. Evidence
shall be presented as to whether applicant or any principal has ever
been a party to a civil proceeding in which it was held there was :
unfair or anti-competitive business practices ; anti-trust violations ;
violations of security laws ; false/misleading advertising . Evidence
shall be presented as to whether applicant has ever had a business
license (including FCC license) revoked.
C. The Board shall establish, other criteria for the evaluation
of. applicants . This criteria shall include but not be limited to the
f i 1 - ng : pcpc.s eC. vi.nl 1 . i:v of the applicant .
experience of the proposed operator , and service and technical standars
Lo be provided .
Each applicant shall file, copies of the application en forms
• provided by the Board. The applications shall be reviewed by the Boatd
or an appropriate committee thereof and the applicants afforded proper
-25-
time during a public proceeding to explain their application. After
the conclusion of the public proceedings , the Board shall, by resolution ,
endorse -the recomanended applicant and transmit a copy of the reso-
lution to the Council . The Council shall review the recommendation
and authorize the Board to enter into an agreement for a cable tele-
vision franchise . •
Each application shall be ' accompanied by a filing fee in the
amount of One Thousand Dollars ($1, 000) . This fee shall be used to
pay the cost of processing the application including, but not limited
to, consultation fees , and the time and materials of the City departments
required for such processing. Any part of the filing fee which is not
required to meet the cost of such processing shall be returned pro
rata to the applicant following the selection process .
D. All provisions of a grantee' s application, unless modified
by the franchise award resolution , shall be incorporated by reference
as a part of this ordinance . Failure to provide the services included
in a franchise application shall be considered a material breach of this
ordinance , subject to the penalties outlined in Section 9C .
SECTION 15 . Non-Severability.
If any section, sentence, clause , phrase , or provision of this
ordinance is held to be unlawful or invalid by a court of competent
jurisdiction, the remaining provisions shall not be affected thereby.
Provided, however, that in the event that the Federal Communications
Commission declares any section invalid, then such section or sections
shall be re-written and adopted by the City Council in consultation-
with the grantee .
Any agreement for a franchise-as- between the Board and a grantee
pursuant to this ordinance is intended to be entire and. indivisible,
and no provision nor any part thereof as between said parties is
-- - ....,..< a.0 t'.. , and .'iV•.'I1J...lJL:v QJ 1 1 �...in t::7e City and any
grantee thereunder as between said parties are in contemplation of one
entire and nonseverable disposition of the subject matter. In the event
any provision or part of any provision of such franchise agreement is
• :geld to be unlawful or invalid bycourt of competent jurisdictionin
a p
any action brought or instigated or caused to be instigated by the
grantee , its successors , or assi`;ns , then: the entire franchise agree -
ment
ree --
anent shall thereupon terminate and be of no further force and effc_c._ .
SECTION 16. Repeal of Other Ordinances.
All ordinances and parts of ordinances in conflict herewith are
hereby repealed.
SECTION 17. This ordinance shall take effect immediately upon its
passage.
* ., * * * .. ., .; ., * ., .,
Passed by the City Commission on First Reading May 14, 1979
Passed by the City Commissinon on Second Reading May 28, 1979
Passed by the City Commission on Third and Final Reading June 11, 1979 .
ATTEST:
Adelaide R. Tucker
City Clerk
•