Ordinance No. 40-87-15 v Elk
ORDINANCE NO. 40-87-15
AN ORDINANCE PROVIDING FOR THE GRANTING OF A
NONEXCLUSIVE FRANCHISE TO OPERATE A CABLE
TELEVISION SYSTEM IN THE NORTH SEMINOLE BEACH AREA
OF THE CITY OF ATLANTIC BEACH; SETTING FOR THE
CONDITIONS ACCOMPANYING THE GRANTING OF FRANCHISE;
PROVIDING FOR CITY REGULATION OF THE CABLE
TELEVISION SYSTEM ; PRESCRIBING PENALTIES FOR
VIOLATIONS OF THE FRANCHISE PROVISION ; AND
ESTABLISHING GENERAL RULES FOR THE APPLICATION
PROCEDURES REQUIRED BEFORE GRANTING A FRANCHISE ;
PROVIDING AN EFFECTIVE DATE
BE IT ORDAINED BY THE CITY OF ATLANTIC BEACH, FLORIDA:
Section 1 . This Ordinance and Franchise Agreement attached
hereto and made a part hereof, shall be know and may be cited as
the "Seminole Beach Cable Television Ordinance."
Section 2. The Mayor and Clerk be, and they hereby are,
authorized to execute a non-exclusive franchise agreement between
the City of Atlantic Beach and Continental Cablevision of
Jacksonville, Inc. for a non-exclusive cable television franchise
in the area known as Seminole Beach, under the agreement
setforth in Section 1 . as of January 1 , 1987.
Section 3. This Ordinance shall take effect upon its
adoption.
Passed by the City Commission on first reading August 24, 1987.
Passed by the City Commission on second and final reading September 28, 1987.
/6.64/ //
Wi ' iam S. Howell, Mayor, Presiding Officer
Approved as to Form and Correctness :
laude L. Mullis, City •rney
(SEAL)
ATTEST:
Ade aide R. Tucker, City Clerk
CABLE TELEVISION FRANCHISE ORDINANCE FOR THE
CITY OF ATLANTIC BEACH, FLORIDA
101 Grant of Authority
102 Definitions
103 System Design
104 Technical and Operational Standards
105 Installation of System
106 Service Area and Reports
107 Regulation of System
108 Franchise Fees
109 Residential and Multiple Unit Subscriber Rates
110 Modification of Franchise
111 Restrictions on Grantee
112 Remedies for Violation
113 Revocation of Franchise
114 Expiration of Revocation and Renewal of Franchise
115 Foreclosure ; Receivership
116 Rights Reserved to City
117 Notices
118 Successors and Assigns
119 Grantee to Have No Recourse
120 Arbitration
121 Miscellaneous Provisions
122 Unauthorized Use
123 Operation of Franchise
124 Application of State and Federal Law
-4-
• CABLE TELEVISION FRANCHISE ORDINANCE FOR THE
CITY OF ATLANTIC BEACH, FLORIDA
101 GRANT OF AUTHORITY
(a) The Commission herein sets forth the conditions for
the grant of non-exclusive right, privilege and franchise to
construct, operate and maintain a cable television system in the
City and for residents, the system to be located in, upon, along
across , over and under the streets and roads of the City within
that area designated in Exhibit A and all extensions and
additions thereto, and within any easements which have been
dedicated for compatible uses for a period of seven (7) years ,
commencing with the effective date of the franchise issued
pursuant to this ordinance, subject to the rights, obligations,
conditions, and restrictions as hereinafter provided. Applicants
for franchises to be issued after the effective date of the
Ordinance shall be required to show evidence of a registration
statement filed with the Federal Communications Commission,
pursuant to 47 C.F. R §76. 12.
(b) The Commission retains authority to provide for the
regulation and control of the cable television system as
prescribed herein subsequent to the award of the the franchise
and to review the franchise periodically.
(c) The City assumes jurisdiction, where consistent with
the Cable Communications Policy Act of 1984 and not entirely
preempted by the Federal Communications Commission, to enforce
all laws and regulations relating to cable television service in
the City.
-5-
(d) The grantee shall be selected as part of a public
proceeding affording due process, after which the applicant
approved by the Commission will enter into a contract with the
City pursuant to the provisions of this ordinance.
102 DEFINITIONS for purposes of this ordinance, unless the
context otherwise requires:
(a) Applicant means a person submitting an application to
the City for a franchise to operate a cable television system
under the terms and conditions set forth in this ordinance.
(b) Cablecasting means programming (exclusive of original
broadcast signals) carried on a cable television system, and:
(1 ) access cablecasting means services provided by a
cable television system on public , educational or local
government channels.
(2 ) ori&ination cablecasting means programming
(exclusive of broadcast signals) carried on a cable television
system over one or more channels and subject to the exclusive
control of the cable operator.
(b) Cable television 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
term does not include ( i) a facility that serves only to
retransmit the television signals of one of more television
broadcast stations ; (ii) a facility that serves only subscribers
-6-
in one or more multiple unit dwellings, under common ownership,
control , or management, unless such facility of facilities use
any public rights-of-way ; (iii) a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title
II of the Cable Communications Policy Act of 1984, except that
such facility shall be considered a cable system (other than for
purposes of Section 621c) of that Act) to the extent such
facility is used in the transmission of video programming
directly to subscribers; or (iv) any facilities of any electric
utility used solely for operating its electric utility systems.
(d) Channel means a portion of the electromagnetic
frequency spectrum which is used in a cable system and which is
capable of delivering a standard television channel, as defined
by the FCC>
(1 ) educational access channel means a specially
designated channel for use of local educational authorities.
(2) grantee channel means a channel that is reserved
or is available for the carriage of programming that is
originated by the grantee in accordance with FCC rules .
(3) local government access channel means a
specifically designated channel for local government use.
-7-
(4) public access channel means a specifically
designated, non-commercial channel available to any member of the
public on a first-come, nondiscriminatory basis.
(e) City shall mean that portion of Atlantic Beach known as
Seminole Beach, as indicated on Exhibit A.
(f) Converter means an electronic device which converts
signals to a desired frequency to permit the subscriber to view
all signals delivered.
(g) FCC means the Federal Communications Commission.
(h) Franchisee or grantee means the person that is awarded
a franchise by the City to construct and operate a cable
television system within the City in accordance with the
provisions of all applicable law and in the territory described
(i) Service area means that portion of the City where
energized trunk and distribution cable shall be extended and
service shall be made available to all persons.
(j) Master Antenna Television System means a facility that
serves only subscribers in one or more multiple dwelling units
under common ownership, control , or management, unless such
facility of facilities uses any public right-of-way.
(k) Monitoring means the observation or testing of a
signal or signals, or the absence thereof, whether the signal is
observed by visual or electronic means, where the observer is
neither the subscriber nor the initiator of the signal.
-8-
(1 ) Public proceeding means a meeting open to the general
public with prior announcement of the time and place at which
members of the public are provided an opportunity to be heard .
(m) Street means the surface of and the space above and
below a public street, road, highway, freeway, lane, path, public
way or place, alley, court, boulevard , parkway, drive or other
easements 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 City which shall , within their
proper use and meaning, entitle the City and its grantee to the
use thereof for the purposes of installing or transmitting cable
television system transmissions over poles, wires, cables ,
conductors, ducts , conduits, valuts, manholes, amplifiers ,
appliances, attachments and other property as may ordinarily be
necessary and pertinent to a cable television system.
Any of the terms used herein, and the definitions thereof,
that are defined in Section 76.5 of the rules of the FCC, or
elsewhere, and not mentioned in the above definitions, are
incorporated herein by reference, City and Continental shall
promulgate them in the rules.
-9-
103 SYSTEM DESIGN
(a) The cable system shall consist of one master
headend and as many area hubs as are necessary to serve
effectively the service are ; provided, however, that the cable
system may be an extension of the grantees system serving the
City of Jacksonville and shall include sufficient receiving and
transmission equipment necessary to effectively serve the service
area. The transportation system may consist of either microwave
or cable for downstream transmission. The distribution system
shall consist of:
(1 ) single trunk cable.
(2) single feeder cable.
(3) subscriber set converter .
(The system shall be capable of initially transmitting
over at least thirty (30) channels for delivery to subscribers
upon commencement of operation. The grantee, during the term of
its franchise, shall continuously carry the signals of all local
broadcast television stations now or hereafter required by the
FCC, if any such requirements exist, to serve the City (except
low power television stations as defined in FCC rules, which may
be carried at the grantees option) provided, that nothing herein
contained shall be construed to require the grantee to carry at
no charge a signal for which the television station received
remuneration from or on behalf of the recipient of the signal ,
-10-
including signals now known as Teletext or Extravision or other
signal programs for which a charge is made by the television
station.
(c) Residents of the service area shall be allowed to
utilize existing public, educational and government access
channels and equipment provided by the grantee in the City of
Jacksonville at the time of the effective date of this Ordinance.
(d) The grantee shall designate channel capacity for
commercial use by persons unaffiliated with the operator in
accordance with the requirements of Section 612 of the Cable
Communications Policy Act of 1984.
(1 ) The grantee may use any unused channel capacity
designated pursuant to this section until an agreement is reached
to lease that capacity.
(2) If a person unaffiliated with the grantee seeks to
lease channel capacity pursuant to this section, the grantee
shall establish the price, terms and conditions of such lease
which are at least sufficient to assure that the lease will not
adversely affect the operation, financial condition, or market
development of the cable system.
(e) The grantee shall install and maintain a cable
television with capacity for two-way communications.
(f) No monitoring of a terminal connected to the system
shall take place without the written authorization of the person
to be monitored; provided however, that this subsection shall not
prohibit maintenance and testing procedures designed to assure
compliance with technical standards (or to detect unauthorized
-11 -
reception) .
(g) The grantee may be required to interconnect, where it
does not conflict with FCC regulations, directly or by use of
microwave, its system with other broadband communications
facilities. The grantee shall install equipment which is capable
of accepting signals from other sources and of processing them
into the cable television system.
(h) Underground and overhead installation shall be done in
accordance with the following requirements :
(1 ) in areas of the City having telephone lines and
electric utility lines underground, whether required or not, all
cable television lines, cable and wires shall be underground. It
is the policy of the City that existing poles for electric and
communications purpose be utilized wherever possible without
placement of additional poles by the grantee and that underground
installation, even when not required, is preferred. The cost of
underground installations shall be borne by the grantee in
accordance with Sections 106a and 106c.
(2 ) it is the policy of the City to encourage
underground installation wherever practicable. If such
undergrounding entails additional costs, the grantee may collect
such added cost from residents of the affected area or from all
subscribers.
(3) the grantees cable television distribution system
in the public streets shall comply with all applicable laws and
regulations, and all its wires and cables suspended from poles in
-12-
the streets shall comply with the minimum clearances above ground
required for telephone lines, cables, wires and conduits in the
City.
( i) The cable system operator shall maintain equipment
capable of providing standby power for headend, transportation
and trunk amplifiers for a minimum of two hours.
104 TECHNICAL AND OPERATIONAL STANDARDS.
The policy of the City with respect to technical and
operational standards shall be to require that the cable
television system be safely constructed and operated and that the
system's components are durable and reliable. Signal reception
standards and subscriber viewing standards shall be maintained at
all times by the system operation at a level at least equal to
the "minimum" standards. In no event shall the City's technical
and operational standards exceed those sanctioned by the FCC.
9a) Construction standards and specifications. Methods of
construction, installation and maintenance of the City's cable
television system shall comply with the National Electrical
Safety Code, National Bureau of Standards Handbook 82 (part 2) ,
National Bureau of Standards, United States Department of
Commerce, dated November 1 , 1961 , to the extent that the code is
consistent with local law affecting the construction ,
installation, and maintenance of electric supply and
communications lines. To the extent that the code is
inconsistent with other provisions of this franchise or with
local law, the latter shall govern.
(1 ) Grounding. The neutral side of the power drop
-13-
shall be continuous and unfused. Where not in conflict with pole
joint use agreements, interconnection between the cable system
ground and the power company ground shall be made at the base of
the pole. Otherwise, the neutral line shall be bonded to the
cutout cabinet, which in turn shall be grounded to a driven earth
ground at the pole. The strand shall be bonded to the telephone
strand at the first, the last and at every fifth pole counting
from the first pole. All cabinets, housings and fused cutout
cabinets on a common pole shall be commonly bonded to each other
and to the cable system and telephone strands with a pressure
bonding and grounding clamp connected to a five-eighths-inch by
six-foot (5/8" x 6') copperclad steel ground rod with #6 solid,
soft- drawn copper wire. The anchor attachment shall be
effectively grounded and electrically continuous to earth through
the anchor. A guy bond clamp shall be inserted in all bolt and
nut thimble-eyes and at anchor-guyed poles, if the poles are the
last in any line of poles. If the strand at these locations
(deadends) is not effectively earth grounded , it shall be
grounded by a length of #6 solid bare copper wire bonded to the
messenger with the strand around clamps and subsequently bonded
to a ground rod driven into a suitable earth ground. All aerial
amplifier housings will be bonded to both the cable system strand
and the telephone company strand using #6 sof-drawn copper wire
with jacket bonding clamps.
(2) Strand .
(i) The strand of messenger cable used throughout
-14-
for trunks shall be one-quarter (1 /4") inch in diameter or
larger, high strength, seven-wire performed with galvanized zinc
coating A.
(ii) All electronics equipment shall be protected
by a housing which is corrosion resistant and weatherproofed.
( iii) All exposed splices , connectors and
terminators shall be weatherproofed. Exposed connectors shall be
corrosion resistant. All equipment connectors shall contain "0
rings" on the cable side of the connectors.
(3) Lashing. Stainless steel lashing wire, 0.045 inch
in diameter , shall be used in securing the cable to the
supporting strand. Tension on this lashing wire shall be
appropriate to the size of the cable being secured. Cables
extending over long spans shall be doubly-lashed. The lashing
wire shall terminate at each side of the pole with a lashing wire
clamp. The cables shall be fastened to the strand at each side
of the pole with a lashed cable support. The support shall be a
maximum of ten inches from the suspension clamp bolt connectors
except as otherwise necessary.
(4) Trenching Standards. Before trenching begins in
an area containing existing underground facilities it shall be
the grantees responsibility to have the facilities located by the
owner of the facilities at the grantees expense. Trenches in
which direct burial cables are placed shall have a minimum depth
of eighteen inches below grade and shall generally be in straight
lines between cable connections except as otherwise necessary.
Bends in trenches shall have a radius of not less than thirty-six
-15-
inches. Rock, where encountered, shall be removed to a depth of
not less than three inches below the cable depth and the space
filled with sand or clean earth, free from particles that would
be retained on a one-quarter inch sieve. With respect to cable:
( i) Cable of the same size being used for
different purposes and lashed together shall be clearly
identified as to its function. All main trunk and feeder cable
shall be clearly identified at the output of each equipment
location indications each cable's route.
(ii) Trunk and feeder cable shall have a
protective jacket covering the outer conductor.
( iii) No trunk or distribution cable shall be
directly buried unless it contains a secure polyethylene jacket
protecting the steel from corrosion and a moisture barrier
flooding compound inside both the inner and outer jacket, except
that, where the cable is not installed under a major highway or
thoroughfare, cable containing copper-clad aluminum (or, if
desired, solid copper) center conductor, inert gas expanded
polyethylene dielectric with active continuous bonding of the
center conductor to the dielectrics, and solid aluminum sheath
covered with a 0.05-inch outer jacket constructed of black, high
molecular weight polyethylene and Migra-Heal flooding compound
between the jacket and aluminum sheath may be used. should any
cable of this latter alternative type fail due to moisture
immigration, all cable as may require replacement will be of the
former type.
-16-
(b) Signal Reception Standards. The objective of the City
in this area is to ensure that the system will deliver good
quality pictures to subscriber terminals. The following
standards are prescribed to enable the City to pinpoint
responsibility for poor performance:
(1 ) FCC Standards. The system shall meet all FCC
"guideline" standards for reception of broadcast signals, as
described in 47 C.F. R. §§ 76.601 -076.613, FCC Rules , 1972, or
elsewhere, as amended from time to time. The signal reception
standards as now existing or hereafter issued by the FCC are
incorporated into and made a part of this chapter. Grading of
the quality of each "locally receivable signal" against the
performance of the system in delivering that signal to
subscribers shall be measured by tests sanctioned by the FCC upon
request by the City. Factors to be measured by a signal survey
are noise, hum modulation, beat interference reflections, signal
level and color quality.
(c) Subscriber Viewing Standards .
(1 ) The grantee shall comply full with the subscriber
viewing standards for cable television operations as adopted by
the FCC in 47 C.F.R. § § 76.613, or elsewhere. The standards as
now existing or hereafter promulgated by the FCC are incorporated
into and made a part of this ordinance and shall be promulgated
by Continental in rules.
(2) The system shall be capable of delivering all
signals of the FCC to Electronic Industries Association-approved
stereophonic or monaural FM receivers.
-17-
(3) The cable system shall meet all performance
criteria herein contained and specified under the ambient
temperature range prevailing in the franchise area from the
normal daily minimum temperature in February to the normal daily
maximum temperature in August.
(d) Proof of Performance Testing. The grantee shall
conduct at its own expense tests of the ability of the cable
system to meet technical guidelines prescribed by the FCC and
shall be responsible for insuring full compliance of said
guidelines. The test results shall be recorded in writing with
copies of those records furnished to City Manager of the City
within ten days. Records of tests together with a report
interpreting the results of such tests and action needed for
correction where the system is not meeting current FCC guidelines
or the guidelines set out in this chapter shall be submitted to
City Manager. The grantee shall be held fully accountable for
the accurate recording of test results and all such tests may be
subject to independent verification by City's Representative. At
the discretion of City Manager, a consultant nominated by the
grantee and approved by City manager shall monitor the grantees
technical performance annually at grantees expense to determine
whether all television signals meet the technical standards of
and are in compliance with the standards of the FCC and of the
City, provided no charge shall be made to grantee for this
service in any calendar year which exceed the cost of not more
than 50 hours of services of a consulting engineer at the then
-18-
prevailing rate in the industry.
(1 ) Annual proof of performance testing shall be done
as prescribed by the FCC.
(2) Special tests may be required by City Manager
whenever he has what he deems to be responsible evidence that
something is wrong with the system. Requests for special tests
shall be limited to the suspected fault in question rather than
an over-all proof of performance. The test shall be made, and
the results of the test shall be delivered to City Manager no
later than fourteen (14) days after the City formally notifies
the company.
(3) All measurements shall be made using instruments
which are each appropriate for making the particular test. The
instruments, where accuracy can be ultimately referenced to those
standards developed by the National Bureau of Standards for test
equipment, shall each have an accuracy sufficiently sensitive to
measure each parameter. The test equipment and instruments shall
have a know correction factor for bandwidth and scale position
where applicable.
(4) Those tests and measurements sanctioned by the FCC
to ensure compliance with technical standards shall be performed
in a manner that is consistent with the provisions of 47 C.F.R.
§ § 76.609 et seq.
(5) The testing procedures contained in this chapter
shall be utilized for measurements of performance charateristics
sanctioned by the FCC.
(6) The City shall have the right to review all test
-19-
results of system performance conducted by grantee and to require
compliance with all performance criteria prescribed by the FCC.
105 INSTALLATION OF SYSTEM.
(a) The grantee shall obtain a permit from City Manager and
give written notice of proposed construction at least ten days
prior to the construction so as to coordinate all work between
the City and the grantee. The City through its authorized
representative shall have the right to inspect all construction
or installation work performed by the company in the streets, and
to make such periodic inspections as the City deems necessary to
ensure compliance with the terms of its franchise and other
pertinent provisions of law.
(b) A grantee shall , at its expense, protect, support,
temporarily disconnect or relocate in the same street or other
public place any property of the grantee when required by reason
of traffic conditions, public safety, street closing, street
construction , change or establishment of street grade ,
installation of sewers, drains, water pipes, power or signal
lines owned by the City or any other type of structure of
improvement.
(c) Nothing in this chapter or any franchise granted
hereunder shall authorize the grantee to erect and maintain 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 its network.
-20-
(d) All wires, conduits , cables and other property and
facilities of the grantee shall be so located, constructed,
installed and maintained so as not to endanger or unnecessarily
interfere with the usual and customary traffic and travel upon
the streets and public places of the City. The grantee shall
keep and maintain all of its property in good condition, order
and repair. The grantee shall keep accurate maps and records as
requested by the City within thirty days from the date of the
request by the City. The grantee shall not place poles or other
equipment where they will interfere with the rights or property
owners, with gas , electric or telephone fixtures or with water
hydrants or mains.
(e) Nothing continued in this section shall relieve any
person from liability arising out of the failure to exercise
reasonable care to avoid injuring the grantees facilities while
performing work connected with grading, regarding or damaging the
line in a street or public place with the construction or
reconstruction of a sewer or water system.
(f) The City shall give the grantee reasonable notice of
plans for street improvements where paving or resurfacing of a
permanent nature is involved. The notice shall described the
nature and character of the improvements, the 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, so as to permit the grantee to
maintain continuity of service. If the grantee shall fail ,
-21 -
refuse or neglect to comply promptly, upon sufficient notice, the
City may make the changes in the grantees facilities at the
grantees cost and the City shall no be liable to the grantee for
damages resulting from the removal, alterations or relocation.
All costs in connection therewith shall be paid by the grantee
within thirty days from receipt of the invoice therefore.
(g) The grantee shall have the authority to trim trees upon
and overhanging streets, alleys, sidewalks and other public
places of the City so as to prevent the branches of the trees
from coming in contact with its wires and cables. All trimming
is to be done under the supervision and direction of the City,
after the prior written notification and approval of the City, at
the expense of the grantee. The grantee may contract for this
service; however, a firm or individual so retained shall receive
written City approval prior to commencing this activity.
(h) In cases of new construction or property development
where utilities are to be placed underground, upon request of
grantee the developer or property owner shall give grantee
reasonable notice of the particular date on which open trenching
will be available for grantees installation of conduit, pedestals
and/or vaults, and laterals to be provided at grantees expense.
106 SERVICE AREA AND REPORTS.
(a) Service Area. The service area shall include all areas
within the area shown on Exhibit A served by a cable television
system at the time an application is submitted pursuant to
Section 123. All reasonable applications for service will be
-22-
provided within a reasonable time. The grantee, within ninety
days after the effective date of the franchise, shall submit to
the City a map indicating in detail the schedule for providing
service to each portion of the initial service area.
(b) Time limitation for extension of service. Within one
(1 ) year after the effective date of the franchise issued
pursuant to this Ordinance, a grantee shall have energized trunk
and distribution cable extended completely throughout the service
area.
(c) Extension of service outside service area. Outside the
service area, the grantee shall extend its plant and make service
available as rapidly as economically and technically feasible .
(d) Progress and status reports.
(1 ) Within one (1 ) month of the effective date of the
franchise, the grantee shall submit to the City its construction
plan, including the timetable for construction of the various
segments of the system.
(2) From the date of commencement of construction
through the completion of the construction timetable, the grantee
shall furnish the City with progress reports at monthly
intervals, the first such report to be made one month from the
effective date of the franchise granted pursuant to this
Ordinance. Such reports shall indicate, in detail, the progress
of construction.
(3) Within ten ( 10) days after the grantee , its
affiliates, and/or subsidiaries have filed an annual report or
any other petition or communication having direct bearing on the
-23-
system with any governmental body, including all reports required
to be filed with the FCC, it shall maintain a file copy of the
document accessible by City's Authorized representative.
(e) Delay. For each day after thirty days' written notice
of delay of this construction schedule the grantee shall be
obligated to the City for liquidated damages in the amount of two
hundred fifty dollars ($250.00) for each day, not to exceed a
period of six months in total. However , the grantee shall not be
responsible for failure to meet all or part of the construction
schedule deadlines under this agreement due to federal , state or
municipal action, act of God, riot or other civil disturbance, or
by any other cause, contingency or circumstance beyond its
control which prevents or hinders the construction of the cable
television system. If construction is determined by the Council
to have been delayed or prevented by any of the circumstances set
for the hereinabove, the grantee shall be absolved from liability
upon a sufficient showing of the circumstances.
(f) Location of office and books of grantee.
(1 ) As long as it continues to operate the system or
any portion thereof in the City, the grantee shall maintain an
office in the City or in the City of Jacksonville if grantee also
provides cable service therein, and hereby designates the office
as the place where all legal notices , directions , orders and
requests may be served or delivered on it pursuant to the terms
of this chapter. The City shall immediately be notified of the
location of the office or any change thereof.
-24-
(2) The grantee shall keep complete and accurate books
of accounts and records of its business and operation in the City
and shall maintain those reports at the grantees office in the
City.
(3) The City or its duly authorized representative
shall have access to all of the records described above. The
grantee shall provide access during the hours of 9"00 a.m. to
5: 00 p.m. from Monday through Friday.
(4) A false entry in the records of the grantee
pertaining to a material or substantial fact that has been
knowingly made by the grantee shall constitute a violation of a
material provision of this chapter.
(g) Indemnity and insurance.
(1 ) The grantee shall at all times indemnify, protect
and save harmless the City from any and all penalty, damage or
charges arising out of the claims, suits or causes of action, of
award of damages whether compensatory or punitive, or expenses
arising therefrom , either at law or in equity, which might be
claimed now or in the future, including any payments required by
the worker' s compensation law, which may arise out of or be
caused by the erection, location, maintenance, repair ,
installation, replacement or removal of the cable television
system within the City or by an act of the grantee, its agents or
employees.
(2) Within thirty days after granting of the franchise
and at all times during the term of this franchise, there grantee
shall obtain, pay all premiums for and file with City Manager and
-25-
executed copy, together with receipts evidencing payment of the
premium, of a comprehensive general liability policy issued by a
company authorized to do business in the State, in the form and
substance approved by the City Attorney , of not less than ( i)
one-half million dollars for property damages for any one
accident ; (ii) one-half million dollars for each person; and
(iii) one and one-half million dollars for each occurrence for
liability due to personal injury or death. This insurance shall
protect the City from and against all claims, demands, actions,
judgments and liabilities which may arise or result, directly or
indirectly, for or by reason of loss, injury or damages. In lieu
of insurance, the grantees may deposit cash or securities
providing the security called for in this paragraph. All
insurance required hereby shall include the City as an insured
party.
(h) Surety and deposit. Within ninety days after the
effective date of the franchise issued pursuant to this
ordinance, the grantee shall post with the City a construction
bond, acceptable to the City Attorney, in an amount equal to the
cost of any construction required under this franchise as surety
for the faithful performance and discharge by it of such
construction obligations as are imposed by this chapter from the
date thereof. The bond shall remain in force and effect until
the construction is completed. The rights reserved to the City
with respect to the surety bond are in addition to all other
rights of the City, whether reserved by this chapter or
-26-
authorized by law, and no action, proceeding or exercise of a
right with respect to the bond shall affect any other right the
City may have.
(i) Fair employment practices. The grantee will not refuse
to hire or employ nor bar or discharge from employment, nor
discriminate against any person in compensation or in terms,
conditions or privileges of employment because of age, race,
creed, color, national origin or sex. The grantee shall comply
with the FCC any City regulations regarding affirmative action in
employment.
107 REGULATION OF SYSTEM
(a) The City shall have continuing regulatory jurisdiction
and supervision over the operation of any franchise granted
hereunder 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, provided that any such exercise
which is not of general applicability or applies exclusively to
grantee or to cable television systems or subscribers which
contains provisions inconsistent with the ordinance shall prevail
only if upon such exercise the City find an emergency exists
constituting a danger to health, safety or property, or such
exercise is compelled by supervising law.
(b) The continuing regulatory jurisdiction of the City
shall be exercised by City Manager or authorized representative.
He shall have the following responsibilities and duties and such
other responsibilities and duties as the Commission may assign :
(1 ) promulgating rules governing relationships between
-27-
subscribers and the grantee.
(2 ) resolving disputes or disagreements between
subscribers and the grantee after investigation, should the
subscriber and the grantee not first be able to resolve their
dispute or disagreement. The City Manager shall have authority
to make proposals to the grantee and subscriber resolving
disputes.
(3) reviewing all reports and filing submitted to the
City as required hereunder and such other correspondence as may
be submitted to the City concerning the operation of the system
and reviewing the rules and regulations set by the grantee under
the provisions herein.
(4) assuring that all rates and rules pertinent to the
operation of the system are communicated to the public at
reasonable hours and upon reasonable request.
(5) conferring and coordinating with the grantee on
the interconnection of the City's cable system with other
communications systems.
(6) reviewing reports regarding the technical
performance of the system in order to assess whether the system
is maintaining required technical standards.
(C) consumer and user complaints shall be handled as
follows :
(1 ) the grantee shall maintain an office in the City
or in the City of Jacksonville which shall be open during usual
business hours, have a publicly- listed telephone and be so
-28-
operated that complaints and requests for repairs or adjustments
may be received on a twenty-four hour basis. Records shall be
maintained by the grantee recording the time of complaint, nature
of complaint and corrective action taken. The grantee shall
report monthly to City Manager the number of complaints received
in the previous month for billing, service and programming
problems associated with its entire cable system (inclusive of
the City of Jacksonville, if grantee provides cable service
therein) and the grantee shall furnish to each subscriber in
writing procedures for reporting complaints to the grantee
initially and notice that unresolved complaints may be reported
to the City Manager.
(2) The grantees shall maintain a repair service
capable of responding to subscriber complaints or requests for
repair service within twenty-four 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
service for twenty-four consecutive hours, except for acts of
God, and except in circumstances where prior approval of City
Manager is obtained, the grantee shall provide a ten percent
rebate of monthly fees to the affected subscribers. In the event
of interruption of service for forty-eight consecutive hours ,
except for acts of God, and unless approval of the City Manager
is obtained, the grantee shall provide a twenty percent rebated
of monthly fees to the affected subscribers. Time under this
provision shall be counted from the hour the complaint is
reported to the grantee.
-29-
(3) City Manager shall , within six months from the
grant of the franchise, establish procedures and promulgate rules
for resolving complaints. city Manager shall be responsible for
receiving and acting upon and complaint that the grantee has not
resolved to the satisfaction of the complainant.
(4) The grantee shall advise subscribers at the time
of initial subscription for service of procedures for submission
and resolution of complaints.
108 FRANCHISE FEES
(a) The grantee shall pay, as compensation for a franchise
granted pursuant to this chapter, and in consideration of
permission to use the streets and public ways of the City for the
construction, operation, maintenance and reconstruction of a
cable system within the City, an annual fee of three percent of
its gross revenues derived from the sale of cable television
services within the City. This payment shall be made to City of
Atlantic Beach at City Hall.
(b) Payments due the City under this provisions shall be
computed quarterly, for the preceding quarter, as of January 1 ,
April 1 , July 1 and October 1 . Each quarterly payment shall be
due and payable no later than thirty days after the relevant
computation dated. Each payment shall be accompanied by a brief
report to the Director of Finance showing the basis for the
computation and such other relevant facts as may be required by
the City.
(c) No acceptance of a payment shall be construed as a
-30-
release of any claim that the City may have for further or
additional sums payable under the provisions of this ordinance.
All amounts paid shall be subject to audit and recomputation by
the Finance Department. In the event that recomputation results
in additional revenues to be paid to the City, the amount shall
be subject to a surcharge calculated in accordance with the prime
rate of interest of the First National City Bank of New York,
effective as of the date of recomputation.
(d) Nothing in this section shall limit a grantees
liability to pay other local taxes of general applicability. Any
tax, fee, or assessment which is imposed by the City upon grantee
or its subscribers solely because of their status as such shall
be treated as a franchise fee. Nothing herein contained shall
prohibit the levy and collection of Ad Valorem taxes.
(e) The fee schedule shall become operative upon the
effective date of the franchise contract.
(f) Grantee shall have the right to designate that portion
of a subscriber's bill attributable to the franchise fee as a
separated item on the bill and shall have the right to pass
through to subscribers the amount of any increase in a franchise
fee.
109 RESIDENTIAL AND MULTI-UNIT SUBSCRIBER RATES
(a) The rates and charges for residential cable television
service shall be fair and nondiscriminatory within each
classification of subscribers ; provided that the grantee may
adopt differing rates for reasonable classifications of
subscribers, including but not limited to multiple dwelling units
-31 -
and extensions to outlying areas.
(b) The initial rates for residential subscriber service
shall be in the application of the grantee.
(c) If a subscriber fails to pay the monthly subscriber fee
or any other fee or charge, the grantee may disconnect the
subscriber's service outlet; provided, that disconnection shall
not be effected until forty-five days after the due date of the
delinquent fee or charge and shall include ten days' written
notice of the intent to disconnect delivered to the subscriber.
If a subscriber pays within forty-five days after payment is due
and after notice of disconnection has been given, the grantee
shall not disconnect the subscriber' s service. After
disconnection, upon payment in full of the delinquent fee or
charge and the payment of a reconnection charge, plus any other
charges and one (1 ) month's service in advance, the grantee shall
promptly reinstate the subscriber's cable service.
(1 ) The grantee, with the approval of the commission,
may implement fees and charges for processing bad checks , for
reconnection after disconnection for non-payment and for
collection at the subscriber premises after notice of intent to
disconnect. Said fees shall be follows :
NSF Check $10. 00
Reconnect after disconnectin
for non-payment $20. 00
Collection at subscriber premises
after notice of intent to
disconnect $10.00
(d) If the grantee fails to provide a service requested by
a subscriber of user, the grantee shall be subject to the
-32-
penalties and rebate procedure set forth in Section 112(b). If a
subscriber terminates a monthly service prior to end of a prepaid
period, a pro rata portion of the prepaid subscriber service fee,
using the number of days as a basis, shall be refunded to the
subscriber by the grantee, so long as said portion is more than
one dollar. Rebates of less than one dollar shall be made only
if specifically requested by the subscriber.
(e) The grantee may waive installation and other service
charges as part of its promotional efforts.
( f) As part of its promotional effort to obtain
subscribers, the Grantee shall be allowed to call upon potential
subscribers at their residences in person or by telephone during
reasonable hours of the day. The grantee shall aside by any
notices posted at any given residence which prohibits
solicitation.
110 MODIFICATION OF FRANCHISE
The grantee may , at any time during the term of the
franchise , submit to the Commission a proposal seeking
modification of the franchise agreement.
(a) Any modification proposal submitted under this Section
shall be reviewed in a formal public hearing on the record. The
Commission shall render a final decision within 120 days after
receipt of such proposal , unless that period is extended by
mutual agreement.
(b) Within 120 days of an adverse modification decision on
the Commission the grantee may file for a trial de novo at a
-33-
federal or state court of competent jurisdiction. That court may
provide appropriate relief.
(c) During the pendency of any bona fide modification
proceeding (before City of court) , no penalties for breach of the
franchise may be imposed .
111 RESTRICTIONS ON GRANTEE
(a) Restrictions on assignment of franchise.
(1 ) No assignment of a franchise granted hereunder
shall take place without prior notice to and approval by the
City, which shall not be unreasonably withheld. The notice shall
include full identifying particulars of the proposed assignment,
and the City shall act by resolution or Ordinance. The City
shall have sixty days within which to approve or disapprove such
assignment. If no action is taken within such sixty days ,
approval shall be deemed to have been given. In the absence of
extraordinary circumstances , the City will not approve any
assignment of the franchise before the completion of construction
of the entire system.
(b) Disclosure required. Contracts with and payments by
and between the grantee and affiliates will be subject to
complete disclosure to the City. The City reserves the right to
inquire into the actual cost of performing services which may be
purchased or contracted for or from an affiliate.
(c) The grantee shall be prohibited from either directly or
indirectly owning or controlling, or being owned or controlled by
any television broadcast station if the predicted Grade B contour
of such station covers any portion of the community served by
-34-
grantees cable system; or any common carrier or utility which
directly or indirectly provides telephone exchange service,
conduit or pole rental arrangements within the community served
by grantees cable system.
112 REMEDIES FOR VIOLATIONS
(a) For failure to complete construction and installation
and to commence operations in accordance with the terms herein,
unless the Commission, upon the recommendation of City Manager,
approves the delay because of reasons beyond the control of the
grantee, the franchise term shall be reduced one year for each
three-month delay.
(b) In the event of violations of provisions of this
chapter by the grantee, the Commission reserves the right as
alternatives to revocation to require of the grantee either of
the following:
(1 ) that rebates be paid to subscribers in accordance
with a schedule of rebates to be established by the Commission
reflecting the seriousness of the violation.
(2) for all other violations not specified in the
schedule of rebates described in subsection (1 ) , that fines by
paid by the grantee to the City in the amount of two thousand
five hundred dollars for each violation. For purposes of
subsection (2) each share of stock transaction not in accordance
with this chapter shall constitute one violation.
City Manager and City Attorney shall review the violations
and make recommendations to the Commission .
113 REVOCATION OF FRANCHISE
-35-
(a) In addition to all of the rights and powers reserved by
or pertaining to the City, the City 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
in any of the following events or for any of the following
reasons :
(1 ) should the grantee by act or omission breach any
material terms or conditions of this chapter.
(2) should the grantee become insolvent, unable or
unwilling to pay its debts or be adjudged a bankrupt of all or a
substantial part of the grantees facilities by sold under an
instrument to secure a debt and not be redeemed by the grantee
within thirty days from the sale.
(3) should the entire cable television system or any
substantial portion thereof fail to meet in total the FCC signal
reception and subscriber viewing standards for two consecutive
annual tests required in Section 104(d) (2).
(4) should the grantee attempt or practice any fraud or
deceit in its conduct or relations under the franchise with the
City or subscribers or potential subscribers.
(b) No revocation shall be effected unless or until the
Commission shall have adopted an ordinance setting forth the
causes and reasons for the revocation and the effective date
thereof. The ordinance shall not be adopted without thirty days'
notice prior thereto to the grantee and an opportunity for the
grantee to be heard upon the proposed ordinance. The finding of
fact as made by the City after a hearing upon the revocation
-36-
ordinance is held shall be conclusive, and a 60 day opportunity
to cure the cases and reasons for revocation, or to commence cure
if complete cure is not reasonable possible within 60 days. The
City's decision to revoke shall be based upon the record of a
hearing affording due process.
(c) The grantee shall not be declared in default or be
subject to any sanction under any provision of the ordinance in
any case in which performance of the provision is prevented due
to events beyond its reasonable control.
(d) If the franchise is revoked for cause and the City
acquires ownership of the cable system or effects a transfer of
the system, the acquisition or transfer shall be at a fair market
value.
114 EXPIRATION OR REVOCATION AND RENEWAL OF FRANCHISE
(a) A franchise granted pursuant to this Ordinance may be
renewed for five (5) years if:
(1 ) the grantee has substantially complied with the
material terms of the existing franchise and with applicable law;
(2) the quality of the grantees service, including
signal quality, response to consumer complaints, and billing
practices , but without regard to the mix, quality, or level of
cable services provided over the system has been reasonable in
light of community needs;
(3 ) the grantee has the financial , legal , and
technical ability to provide the services, facilities , and
equipment set forth in the grantees proposal; and
-37-
(4) the grantees proposal is reasonable to meet the
future cable-related community needs and interest, taking into
account the cost of meeting such needs and interest. The City
may not declare grantees proposal unreasonable and deny renewal ,
nor may community needs be established , on the basis of
facilities , equipment, or services which another party has
indicated it is willing to provide.
(b) In any renewal proceeding , the grantee shall be
afforded adequate notice and the grantee and the City, or its
designee , shall be afforded fair opportunity for full
participation, including the right to introduce evidence, to
require the production of evidence, and to question witnesses. A
transcript shall be made of any such proceeding.
(c) A proceeding under this section shall be completed
within twelve (12) months of its commencement, within which time
the City shall issue a written decision granting or denying the
proposal for renewal based upon the record of such decision to
the grantee. Such decision shall state the reasons therefor .
(d) Any denial of a proposal for renewal shall be based on
one or more adverse findings made with respect to the factors
described in subsection (a) , pursuant to the record of the
proceeding under subsection (a) . City may not base a denial of
renewal on a failure to substantially comply with the material
terms of the franchise under subsection (a) or on events
considered under subsection (a) unless City has provided grantee
notice and the opportunity to cure, or in any case in which City
has waived its right to object, or has effectively acquiesced.
-38-
(e) The grantee is expressly reserved its right to appeal
under federal and state law. In addition to such rights, this
franchise shall remain in effect at all times during which a
renewal proceeding or appeal remains pending.
(f) Notwithstanding the provisions of subsections (a)
through (e) of this section, the grantee may submit a proposal
for the renewal of franchise, and City may, after affording the
public adequate notice and opportunity for commence, grant or
deny such proposal at any time (including after proceedings
pursuant to this section have commenced). The denial of a
renewal pursuant to this subsection shall not affect action on a
renewal proposal that is submitted in accordance with subsections
(a) through (e).
115 FORECLOSURE; RECEIVERSHIP
(a) Upon the foreclosure or judicial sale of all or a
substantial part of the system or upon notification of the
termination of any lease covering all or a substantial part of
the system, the grantee shall immediately notify the City of this
fact, and the notification shall be treated as a notification
that a change in control of the grantee has taken place. Section
112 (a) , governing the consent of the City to the change in
control of the grantee, shall apply upon the happening of either
event.
(b) The City shall have the right to revoke this franchise
one hundred twenty days after the appointment of a receiver or
trustee to take over and conduct the business of the grantee,
-39-
whether in receivership, reorganization, bankruptcy or other
action or proceeding, unless there receivership or trusteeship
shall have been vacated prior to the expiration of the one
hundred twenty days, or unless :
(1 ) within one hundred twenty days after his election
or appointment, the receiver or trustee shall have fully complied
with all the provisions of this chapter and remedied all defaults
hereunder.
(2) the receiver or trustee, within the one hundred
twenty days, shall have executed an agreement, duly approved by
the court having jurisdiction in the premises, whereby the
receiver or trustee assumes and agrees to be bound by each and
every provision of this chapter.
116 RIGHTS RESERVED TO CITY
Without limitation upon the rights which the City might
otherwise have, the City does hereby expressly reserve the
following rights, powers and authorities :
(a) To exercise its governmental powers now or hereafter to
the full extent that these powers may be vested in or granted to
the City.
(b) To exercise any other rights, powers or duties required
or authorized to the City under the State Constitution or the
Charter .
117 NOTICES
Every direction, notice or order to be served upon the
grantee shall be sent by certified mail to its office located in
the City. Every notice to be served upon the City shall be sent
-40-
by certified mail. The mailing of the notice, direction or order
shall be equivalent to direct personal notice, direction or order
and shall be deemed to have been given at the time of delivery.
118 SUCCESSORS AND ASSIGNS
All the provisions of this chapter shall apply to the
grantee, its successors and assigns , as they may be approved by
the City in accordance with this chapter.
119 GRANTEE TO HAVE NO RECOURSE
The grantee acknowledges by acceptance of the franchise
that it has carefully read the terms and conditions of this
chapter and is willing to and does accept all of the risks of the
meaning of the terms and conditions, and agrees that, in the
event of any ambiguity thereof, they shall be construed strictly
against the grantee and in favor of the City.
120 ARBITRATION
Matters which are expressly made arbitrable under provisions
of a franchise issued pursuant to this Ordinance and permitted
under law of Florida shall be determined by a panel of three
arbitrators, one to be appointed by the grantee, one to be
appointed by the City Commissioners and one to be selected by
the other two arbitrators within five days of their selection.
If, on the expiration of the period allowed therefor , the two
arbitrators are unable to agree upon the selection of a third
arbitrator, the arbitrator shall be chosen by the Chief Judge of
the Fourth Judicial Circuit. The third arbitrator shall serve as
chairman. The fees of the arbitrators shall be fixed by the
-41 -
Chief Judge. The expense of the arbitration, including the fees
of the arbitration, including the fees of the arbitrators, shall
be borne by the parties in such manner as the arbitrators provide
in their award , but in no event will the City be obligated for
more than half of the expenses. The determination of a majority
of the arbitrators shall be binding on the parties to the extent
permitted by laws of Florida.
121 MISCELLANEOUS PROVISIONS
(a) It shall be the grantees responsibility to obtain any
permits, licenses or any other authorizations required under the
Ordinance Code or any other law.
(b) All approvals , licenses or permits required to
construct the system shall e applied for the grantee within sixty
days of the grant of the franchise.
(c) It shall be the grantees responsibility to obtain
permission, which shall not be unreasonably denied, to us any
facilities belonging to public utilities or other entities.
(d) An agreement, undertaking or other instrument proposed
to be entered into between the grantee and a subscriber shall
contain full disclosure of the subscriber' s rights and
obligations , including :
(1 ) the number of channels offered and a listing of
the channel and table of rate structure, to be provided to the
subscriber upon execution of the agreement.
(2) the complaint procedure, simply described in clear
and legible type.
(3) the city official responsible for receiving and
-42-
acting on complaints if satisfaction is not received from the
grantee.
(4) the office at City Hall where the complaints may
be registered.
(5) billing procedures , including those for
delinquency procedures.
122 UNAUTHORIZED USE
(a) No person shall intercept, descramble, decode, or
receive or assist in intercepting, descrambling, decoding, or
receiving any signals from the system unless specifically
authorized to do so by grantee. "Assist in intercepting,
descrambling, decoding or receiving" includes the manufacture of
distributor (as the case may be ) for authorized reception of
signals over a system.
(b) No person shall tamper with, remove or injure any
cable, wires, or other devices used with the system unless
specifically authorized to do so by grantee.
(c) No person shall intentionally deprive grantee of a
lawful charge for cable service.
(d) No person shall resell grantees cable service without
grantees express, written consent.
(e) Grantee may bring an action to restrain or enjoin a
violation or threatened violation of this section and for damages
resulting from the violation. Grantee shall be entitled to
issuance of such an injunction upon a showing that a violation
has occurred or will occur , without the need for demonstrating
-43-
irreparable injury, inadequacy of legal remedies or probability
of recovery. The court shall award the greater of five hundred
dollars ($500) or treble damages and reasonable attorney's fees
to grantee if company prevails in an action hereunder.
(f) A knowing violation of this section shall be punishable
b a fine not to exceed five hundred dollars ($500) for each day
of infraction.
(g) If an unauthorized device designed to intercept,
descramble, or decode a cable television signal is present on the
premises or property occupied and used by a person, it is
presumed that the person knowingly used the device to intercept,
descramble or decode cable signals. If an unauthorized cable
connection to intercept cable signals. If equipment of grantee
which has been tempered with, changed, or modified is present on
the premises or property occupied by a person, it is presumed
that the person knowingly used the equipment to intercept,
descramble or decode cable signals.
(h) Grantee is expressly reserved its applicable rights and
remedies available in law or in equity.
-44-