Ordinance No. 40-06-21vORDINANCE NO. 40-06-21
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA,
CREATING RULES FOR CABLE TELEVISION FRANCHISES,
ADOPTING CUSTOMER SERVICE STANDARDS, ESTABLISHING
OBJECTIVE REMEDIES AND STANDARD ENFORCEMENT
PROCEDURES, REQUIRING PERFORMANCE AND INSURANCE
GUARANTIES, REQUIRING OTHER PROVISIONS CONSISTANT WITH
MODERN TECHNOLOGY AND INDLSTkY DEVELOPMENTS, AND
FOR OTHER PURPOSES.
City of Atlantic Beach
Cable Television Ordinance
Section 1 Grant of authority ............................................................................................ 3
Section 2 Definitions ....................................................................................................... 3
Section 3 Construction system design standards ............................................................ 5
Section 4 Technical and operational standards ............................................................... 6
Section 5 Installation and modification of system .......................................................... 9
Section 6 Service area and extension of service........ .................................................... 11
Section 7 Regulation of system and customer service requirements ............................ 14
Section 8 Franchise fees ................................................................................................ 27
Section 9 Rights reserved to City .................................................................................. 28
Section 10 Application criteria, qualifications, procedure and costs .............................. 29
Section 11 Franchise required for operation ................................................................... 32
Section 12 Provision of supplemental services within the City ...................................... 33
Section 13 Parental control devices ................................................................................ 33
Section 14 Education and Government Channels ........................................................... 34
Section 15 Liquidated Damages ..................................................................................... 35
Section 16 Alternative to Revocation of the Franchise Agreement ................................ 40
Section 17 Citation .......................................................................................................... 40
Section 18 Amendments ................................................................................................. 40
Section 19 Effective Date ............................................................................................... 40
Ordinance No. 40-06-21 2
CHAPTER _
CABLE TELEVISION [Ordinance Number]
Section 1 Grant of authority.
(a) The City of Atlantic Beach herein sets forth the conditions for the grant of
a nonexclusive franchise to construct, operate and maintain a cable television system for
the city and its residents, the system to be located in, upon, along, across, over and under
the streets and roads of the City and all extensions and additions thereto for a period not
to exceed ten (10) years commencing with the effective date of the Franchise Agreement
issued pursuant to this chapter, subject to the rights, obligations, conditions and
restrictions as hereinafter provided and as provided in the written Franchise Agreement.
Should there be a conflict between the terms of this Chapter and the Franchise
Agreement, the Franchise Agreement shall prevail.
(b) The City retains authority to provide for the regulation and control of the
cable television system as prescribed herein in accordance with Federal and State law
subsequent to the award of the Franchise and the City Commission and the City retain the
authority to review the performance of the Franchisee periodically for compliance with
the Franchise Agreement.
(c) The City assumes jurisdiction, to the fullest extent allowed by law, to
enforce all laws and regulations relating to cable television service in the City.
Section 2 Defmitions. For purposes of this Chapter, unless the context
otherwise requires:
(a) "Access Channels" mean any channel designated for non-commercial use
as educational or local government channels.
(1) "Educational Access Channel" means any designated channel for
noncommercial use by local educational authorities;
(2) "Government Access Channel" means any designated,
noncommercial channel for local government use;
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(b) "Billing complaint" means a Subscriber complaint regarding errors in
billing.
(c) "Cablecasting" means programming carried on a cable television system
(d) "Cable System" or "Cable Television System" means as defined in 47
U.S.C. Sections 521 et seq., (the "Cable Act"), as maybe amended from time to time
(e) "Channel" means a portion of the electromagnetic frequency spectrum
which is used in a Cable System and which is capable of delivering a television channel,
as defined by the FCC, and:
(1) "Leased Access Channel" means a channel or a portion of a
channel which is available for lease in accordance with Section 612 of the Cable Act (47
U.S.C. §532);
(f) "Director" means the City Director of Public Works or his designee.
(g) "Manager" means the City Manager, or the City Manager's designee.
(h) "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
(i) "Franchisee" means the person or entity 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 enters into a Franchise Agreement.
(j) "Franchise Area" means the legal boundaries of the City of Atlantic
Beach, Florida.
(k) "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.
(1) "Service Complaint" means a complaint by a Subscriber or an applicant
for subscription on the availability of obtaining service or signal quality but does not
include complaints about programming selection.
(m) "Public Right-of--Way" shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, alley, court, boulevard, sidewalk,
Ordinance No. 40-06-21 4
lane, public way, drive, circle or other public right-of--way including, but not limited to,
public utility easements, dedicated utility strips, or rights-of--way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the City in the Franchise Area, which shall entitle the
City and the Franchisee to the use thereof for the purpose of installing, operating,
repairing, and maintaining the Cable System. "Public Right-of--Way" shall also mean any
easement now or hereafter held by the Franchising Authority within the Franchise Area
for the purpose of public travel, or for utility or public service use dedicated for
compatible uses, and shall include other easements or rights-of--way as shall, within their
proper use and meaning, entitle the City and the Franchisee to the use thereof for the
purposes of installing, operating, and maintaining the Franchisee's Cable System over
poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments, and other property as maybe ordinarily necessary and pertinent to the Cable
System. Notwithstanding the foregoing, "Public Right-of--Way" shall be limited to such
locations where Franchisee may use, install, operate, repair, and maintain the Cable
System without the violation of any law, ordinance of general applicability, easement, or
right-of--way.
(n) "Subscriber" means a person lawfully receiving any service delivered over
the Cable Television System in exchange for payment.
Any of the terms used herein, and the definitions thereof, that are defined in
Section 76.5 of the rules of the FCC as amended from time to time, or in the Cable Act,
and not mentioned in the above definitions, are incorporated herein by reference.
Section 3 Construction system design standards.
(a) The Cable System will be designed for a minimum of 78 video channels.
The system shall be two-way capable. An applicant for a franchise is free to propose a
Cable System plan that best accomplishes a modern broadband communications system
that meets the reasonable needs and interests of the community.
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(b) The Franchisee shall provide all local broadcasting television stations as
may be required by the FCC or federal law.
Section 4 Technical and operational standards.
The policy of the City with respect to technical and operational standards is to
require that the Cable Television System be safely constructed and operated and that the
system's components be durable and reliable. Signal reception standards and subscriber
reviewing standards shall be maintained at all times by the Franchisee at a level at least
equal to the minimum standards prescribed by the FCC now and hereafter. Overall
technical performance of the system shall be assessed in relation to these standards. The
Franchisee shall meet all FCC technical and operational standards. Subject to any pole
attachment agreement between Franchisee and the owner of the applicable utility pole(s),
Franchisee shall remove all cable lines, and any and all appurtenances and connections
thereto, from any and all poles subject to pole change outs within 45 days of notice to
Franchisee of such pole change out.
(a) Construction standards and specifications. Methods of construction,
installation and maintenance of the City's Cable Television System shall comply with all
applicable federal, state and generally applicable local laws and regulations, and shall
comply with the National Electrical Safety Code (NESC) and generally applicable local
laws regulating the construction, installation and maintenance of electric supply and
communication lines.
(1) Tower. The following standards may be modified only with the
written approval of the City Manager:
(i) A tower constructed in the City for use of the Cable
Television System shall comply with the standards contained in Structured Standards for
Steel Antenna Supporting Structures, EIA Standards RS-222-A, as published by the
Engineering Deparhnent of the Electronics Industries Association, 2001 I Street, N.W.,
Washington, D.C. and as amended from time to time. Any tower shall also comply with
all generally applicable City of Atlantic Beach zoning and land use regulations.
Ordinance No. 40-06-21 6
(ii) Installation and physical dimensions of a tower constructed
for use in the City's Cable Television System shall comply with all appropriate Federal
Aviation Agency regulations, as amended from time to time. The tower shall also
comply with all generally applicable City of Atlantic Beach zoning and land use
regulations.
(iii) An antenna structure constructed in the City and used for the
cable television system used in the City's cable television system shall comply with
Construction, Marketing and Lighting of Antenna Structure, 47 CFR 17.1 et seq.
(b) FCC standards. The system shall meet all applicable federal standards for
reception of broadcast signals, as currently prescribed in 47 CFR 76.601 et seq., 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 FCC tests upon written request
by the City Manager.
(c) The Franchisee shall comply with all appropriate technical standards of
the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those standards are
altered, modified, or amended during the term of this Franchise Agreement, the
Franchisee shall comply with such alterations, modifications or amendments within a
reasonable period after their adoption by the FCC. As provided in these rules, the
Franchising Authority shall have, upon written request, the right to obtain a copy of tests
and records required to be performed pursuant to the FCC's rules.
(d) On the effective date of this Ordinance, it is acknowledged that
Franchisee has above ground transmission and distribution facilities as referenced in the
attached Exhibit "A," a large scale copy of which will be provided to the City by
Franchisee upon entering into the Franchise Agreement. However, if all of the
transmission and distribution facilities of all of the respective public or municipal utilities
in said area of the Franchise Area are to be placed underground after the effective date of
Ordinance No. 40-06-21 7
this Ordinance, the Franchisee shall place its Cable Systems' transmission and
distribution facilities underground within a reasonable period; provided that such
underground locations are actually capable of accommodating the Franchisee's cable and
other equipment without technical degradation of the Cable System's signal quality. If
all of the transmission and distribution facilities of all of the respective public or
municipal utilities in any area of the Franchise Area are placed underground at a
subsequent date, then Franchisee shall use its best efforts to place its Cable Systems'
transmission and distribution facilities underground within forty-five (45) days of written
notice by the City, provided that all of the public or municipal electric utility's
transmission and distribution facilities are underground prior to Franchisee's placement
of its Cable Systems' transmission and distribution facilities underground. It is the policy
of the City to encourage underground installation wherever practicable. Franchisee may,
at any time, install its cable plant underground in areas where other utilities are aerial. If
aerial facilities are required to be moved underground by the City pursuant to a
beautification or other public improvement project, the City will use reasonable efforts to
assist Franchisee in recovering the costs of relocation from any private, local, state or
federal funds available for the project but is not itself required to pay for such cost unless
such funds are passed through the City or its department specifically for the relocation of
Franchisee's utilities, including the passage of funds through the City or its department
for the relocation of private utilities which would include, by implication, the relocation
of Franchisee's utilities. Nothing in this Section shall be construed to require the
Franchisee to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive devices, amplifiers,
power supplies, pedestals, or other related equipment. Underground installation shall be
done in accordance with the following requirements:
(1) Underground installation shall be done as follows:
Ordinance No. 40-06-21 8
(i) All cable television lines, cables and wires, except those
referenced above in the attached Exhibit "A" shall be installed underground. The cost of
all installations shall be born by the Franchisee.
(2) The Franchisee's cable television distribution system in the public
streets shall comply with all federal, state and generally applicable local laws and
regulations in the Franchise Area.
(e) In accordance with FCC requirements, the Cable System shall include an
emergency alert capability which will permit the City to override, by remote control, the
video and audio of all channels simultaneously except those involved in retransmission of
television broadcast programming. This provision shall be implemented in a manner
consistent with and to the extent permitted by federal and state emergency alert
requirements.
(f) The Franchisee shall maintain equipment capable of providing standby
power for headend, transportation and trunk amplifiers for a minimum of two (2) hours.
Section 5 Installation and modification of system.
(a) The Franchisee shall obtain a permit from the Director of Public Works
and give prior written notice of proposed construction within the time frame required by
City code and regulations of general applicability prior to the construction so as to
coordinate all work between the City and the Franchisee. The City Manager shall have
the right to inspect all construction by the Franchisee 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 of general applicability. Such
inspections shall be performed in a manner so as to avoid interference with a Franchisee's
construction activities and with the delivery of services to customers. Franchisee may
have a right to be present at time of inspection.
(b) A Franchisee shall, at its expense, protect, support, temporarily or
permanently disconnect or relocate in the same street or other public place any property
of the Franchisee or component of the Cable System by reason of traffic conditions,
Ordinance No. 40-06-21 9
public safety, street closing, street construction, change or establishment of street grade,
installation of sewers, drains, construction of buildings, water pipes, power or signal
lines, and further provided that if federal or state funds are available to any person
impacted by the change for the purpose of defraying costs related thereto, the City will
upon request assist Franchisee in applying for such funds.
(c) All wires, conduits, cables and other property and facilities of the
Franchisee shall be so located, constructed, installed and maintained as not to endanger or
interfere with the usual and customary traffic and travel upon the streets and public places
of the City and so as not to endanger or interfere with the quality of the street, its surface,
curbs, and any adjacent materials as the City Manager shall see fit. Upon request of the
City, the Franchisee will plainly and visibly mark the location all wires, conduits, cables
and other property and facilities of the Franchisee. The Franchisee shall keep and
maintain all of its property in good condition, order and repair. The Franchisee shall keep
accurate maps and records of all its facilities. Upon prior written notice, Franchisee shall
provide the City Manager with strand and trench maps showing the location of its strand,
trenches and vaults. The Franchisee shall not place equipment where they will interfere
with the rights of property owners, with gas, electric or telephone fixtures or with water
hydrants or mains or sewer or existing or planned construction by the City or its agencies
or officers. Franchisee shall adhere to City's permitting process of general applicability
and will restore land to original or similar condition.
(d) The City shall give the Franchisee reasonable prior written notice of plans
for street improvements where paving or resurfacing of a permanent nature is involved.
The notice shall describe 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 Franchisee thirty (30) days to make
any additions, alterations or repairs to its facilities, so as to permit the Franchisee to
maintain continuity of service. If the Franchisee shall fail, refuse or neglect to comply
within the thirty (30) day notice period, upon seven (7) days written notice, the City may
Ordinance No. 40-06-21 10
make the changes in the Franchisee's facilities at the Franchisee's cost and, absent gross
negligence, the City shall not be liable to the Franchisee for damages resulting from the
removal, alterations or relocation. All costs in connection therewith shall be paid by the
Franchisee within thirty (30) days from receipt of the invoice therefore, with interest
accruing at prime rate plus one percent (1 %) thereafter.
(e) 'The Franchisee shall, on the written request of any person holding lawful a
building moving permit, temporarily raise or lower its wires to permit the moving of the
building. The expense of temporary removal or raising or lowering of wires shall be paid
by the person requesting it, and the Franchisee may require payment in advance. The
Franchisee shall be given not less than ten (10) business days' notice of a contemplated
move to arrange for temporary wire changes.
(f) The Franchisee shall have the authority to trim trees and small limbs 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.
Franchisee shall obtain written approval of the City prior to removing any trees or cutting
limbs either of which is over four (4) inches in diameter. City may require Franchisee to
install its lines underground to accommodate and avoid the need to trim larger trees. In
the event of an emergency, such as storm damage to trees near the Cable System,
Franchisee may trim dead trees without advance notice to the minimum extent required to
alleviate the threat. Nothing herein waives or modifies the requirement for the
Franchisee to obtain any necessary permits or licenses.
Section 6 Service area and extension of service.
(a) Initial service area. For any initial franchise granted to an applicant not
already providing cable service to a majority of the residents of the City, a Franchise
Agreement shall provide for an initial service area comprised of all parts of the Franchise
Area with a minimum density of thirty (30) homes per mile to be fully constructed and
activated with services being offered to all residents in the area within a reasonable time
to be set forth in a Franchise Agreement. The initial service area shall be designated in
Ordinance No. 40-06-21 11
such a way as to ensure a Franchisee is not red-lining or excluding any neighborhoods
based on economic, racial, multiple dwelling unit densities or other criteria.
(b) Extension of service outside initial service area. The Franchisee shall
extend its plant and make service available to any new areas of the City having density of
seven (7) or more dwelling units per linear street mile within sixty (60) days after such
areas are built out. Franchisee shall offer Cable Service to all new homes or previously
un-served homes located within one hundred twenty-five (125) feet of the Franchisee's
distribution cable. The Franchisee may elect to provide Cable Service to areas not
meeting the above density standards. The Franchisee may impose an additional charge in
excess of its regular installation charge for any service installation requiring a drop or line
extension in excess of the above standards. Any such additional charge shall be
computed on a time plus materials basis (actual costs) to be calculated on that portion of
the installation that exceeds the one hundred twenty-five (125) foot standard set forth
above.
(c) Progress and status reports.
(1) A Franchise Agreement containing construction requirements as
set forth above shall include as an exhibit a construction plan, indicating the timetable for
construction of the various segments of the system. This plan may not be amended
without the approval of the City Manager, in a formal writing, with a revised schedule
attached. The schedule shall be in sufficient detail to provide the dates for each element
of work.
(2) From the date of commencement of construction through the
completion of the construction timetable, the Franchisee upon request shall furnish to the
City Manager progress reports at three-month intervals. The reports shall indicate, in
detail, the progress of construction.
(d) Construction Delay. Upon expiration of the construction schedule attached
to a Franchise Agreement without construction having been completed, the City shall
give a Franchisee written notice of non-compliance. Failure to cure the non-compliance
Ordinance No. 40-06-21 12
within thirty (30) days from receipt of the written notice shall result in the assessment of
liquidated damages in the amount of Two Thousand Dollars ($2,000) per day, starting the
31St day after receipt of notice of noncompliance.
(e) Indemnity and insurance.
(1) The Franchisee shall at all times indemnify, protect and save
harmless the City from any and all penalty, damage or charges (including attorneys' fees,
costs, and such fees and costs incurred by an appeal) arising out of 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 workers' 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 Franchise Area or by any act or
omission of the Franchisee, its agents or employees, and recognizes that the granting of
this Franchise is good and valuable consideration for giving this indemnity, and that a
portion of the value of the Franchise otherwise paid to the City was reduced for this
indemnity. This indemnification shall not apply to any direct City gross negligence or
willful misconduct.
(2) Concomitant with the execution of the Agreement, and at all times
during the term of the franchise, the Franchisee shall obtain, pay all premiums for, and
file with the City Manager certificates of insurance evidencing payment of the premium
of a comprehensive general liability policy issued by a company authorized to do
business in the State of Florida, of not less than (i) One Million Dollars ($1,000,000) for
property damages for any one accident; (ii) One Million Dollars ($1,000,000) for each
person; and (iii) Five Million Dollars ($5,000,000) 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, from or by reason of loss, injury or damages. In lieu of insurance, the
Franchisee may deposit in a manner approved in writing by City cash or securities
Ordinance No. 40-06-21 13
providing the security called for in this paragraph. All insurance required hereby shall
include the City as an insured party.
(f) Construction Bond. If required by the City Public Works Director, prior
to any Cable System construction, upgrade, rebuild in the streets, excluding work
connected with normal operation and maintenance of the System such as line extensions
and general repair, Franchisee shall furnish a construction bond in favor of the City in an
amount equal to the lesser of the projected cost or One Hundred Thousand Dollars
($100,000). If such construction bond is not furnished to the City ten (10) days prior to
the start of any such construction, construction shall be delayed until such time as the
construction bond is provided in a form approved by the City or its designee. The
construction bond shall be maintained until said construction work is completed and
activated for a period of six (6) months thereafter at which point it will be automatically
released.
(g) Fair employment practices. The Franchisee shall comply with all lawful
federal and state law regarding affirmative action in employment.
Section 7 Regulation of system and customer service requirements.
(a) To the extent permitted by federal and state law, 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 for the conduct
of the business contemplated hereunder so long as the modification does not diminish
benefits or increase obligations of Franchisee.
(b) The continuing day-to-day regulatory jurisdiction of the City shall be
exercised by the City Manager, who shall have the following responsibilities and duties
and such other responsibilities and duties as the City may assign in accordance with law:
(1) Establishing reasonable customer service standards as permitted
by federal and state law.
Ordinance No. 40-06-21 14
(2) Making proposals to the Franchisee and Subscriber in order to
facilitate the resolution of disputes or disagreements between the Franchisee and
Subscriber, which are brought before the City Manager by a Subscriber.
(3) Reviewing all reports and filings 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 Franchisee
under the provision herein.
(4) Assuring that all rates and rules pertinent to the provision of
service are communicated to the public at reasonable hours and upon reasonable request
in accordance with the FCC's requirements.
(5) Conferring and coordinating with the Franchisee on the efforts to
interconnect the City's Cable System with other communications systems with respect to
public, educational and governmental programming as set forth in this Ordinance.
(6) Reviewing annual FCC reports regarding the technical
performance of the system upon written request. in order to assess whether the system is
maintaining required technical standards.
(c) Customer Service Requirements.
The following requirements shall apply under "Normal Operating Conditions,"
which under this subsection means those service conditions that are within the control of
the cable operator and as prescribed in subsection (4) of this subsection. Those
conditions that are not within the control of the cable operator include, but are not limited
to, natural disasters, civil disturbances, power outages, and telephone network outages
and severe or unusual weather conditions 'Those conditions that are ordinarily within the
control of the cable operator include, but are not limited to, special promotions, pay-per-
view events, rate increases, regular peak or seasonal demand periods, and maintenance or
upgrade of the Cable System.
(1) Franchisee shall maintain all parts of its system in good condition
and in accordance with standards promulgated by the FCC and as may be set forth in the
Ordinance No. 40-06-21 15
City Code if mutually agreed upon with Franchisee and of general applicability and a
Franchise Agreement. Sufficient employees shall be retained to provide safe, adequate,
and prompt service for all customers and facilities. The customer service standards set
forth herein are applicable to all Cable Services and any Franchise Agreement.
(2) A Franchisee shall maintain at least one (1) conveniently located
bill payment location in the City of Atlantic Beach or the City of Jacksonville Beach or
the City of Neptune Beach with a staffed customer service counter for the distribution
and receipt of equipment, payments and customer service complaints. A Franchisee may
negotiate with other commercial establishments (e.g. supermarkets, shopping centers) to
establish payment centers at their locations to satisfy these requirements.
(3) Franchisee shall maintain a listed local, toll-free telephone number
and employ a sufficient number of telephone lines, personnel and answering equipment
or service to allow reasonable access by Subscribers and members of the public to contact
the Franchisee on a full-time basis, twenty-four (24) hours per day, seven (7) days per
week.
(4) Franchisee shall answer all customer service and repair telephone
calls made under Normal Operating Conditions within thirty (30) seconds, including wait
time and within an additional thirty (30) seconds to transfer the call to a live customer
service representative. For purposes of this Chapter, the term "Normal Operating
Conditions" shall have the definition contained in the Code of Federal Regulations, at 47
C.F.R. 76.309 (c) (4) (ii) as amended from time to time. These standards shall be met no
less than ninety percent (90%) of the time under Normal Operating Conditions, measured
on a quarterly basis. Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time. Upon request, Franchisee shall
submit reports showing its performance under this subsection on a monthly basis;
however, its performance shall be measured for purposes of compliance with the above
standard on a quarterly basis.
Ordinance No. 40-06-21 16
(5) Franchisee shall employ and maintain sufficient qualified
personnel and equipment to be available (i) to accept payments; (ii) to exchange or accept
converters or other equipment; (iii) to receive Subscriber complaints or requests for
service or repairs on a full-time basis, twenty-four (24) hours per day, seven (7) days per
week; (iv) to initiate and undertake normal repairs, and initiate action with respect to any
Subscriber service complaints within twenty-four (24) hours; (v) to enable a service
technician to respond to service calls twenty-four (24) hours per day, seven (7) days a
week, including holidays when multiple Subscribers serviced from the same, nearest
active electrical device such as an amplifier, call with the same complaint
(6). Franchisee must meet each of the following standards no less than
ninety-five percent (95%) of the time under normal operating conditions as measured on
a quarterly basis:
(i) Standard installation work shall be performed within seven
(7) business days after an order has been placed except in those instances where a
Subscriber specifically requests an installation date beyond the seven (7) business day
period. "Standard" installations are up to one hundred twenty-five (125) feet from the
existing distribution system. If scheduled installation is neither started nor completed as
scheduled, a representative of the Franchisee will contact the Subscriber.
(ii). Franchisee will begin working on Service Interruptions
promptly and in no event later than twenty-four (24) hours after the interruption becomes
known. "Service Interruptions" shall be defined as in 47 C.F.R. 76.309 (c) (4) (iii) as
amended from time to time. Franchisee will begin working on other service problems no
event later than forty-eight (48) hours after the problem becomes known. Franchisee
shall make best efforts to undertake normal repairs and initiate action within a reasonable
time period of such interruption and, to the extent they are within the Franchisee's
reasonable control, Service Interruptions, and service problems will be responded to,
addressed, and Normal Operating Conditions will be restored within seventy-two (72)
hours after receipt of a complaint.
Ordinance No. 40-06-21 17
(iii) The appointment window alternatives made available for
installations, service calls, repairs, and other installation activities will be either a specific
time, a three (3) hour time block during Normal Business Hours, or at the election and
discretion of the Subscriber, "all day". "Normal Business Hours" shall be defined as in 47
CFR Section 76.309 (c) (4)(i) as amended from time to time.
(iv) Franchisee may not cancel an appointment with a
Subscriber after the close of business on the business day prior to the scheduled
appointment without first attempting to contact the Subscriber; and
(v) If at any time an installer or technician is running late for a
scheduled appointment, the customer will be contacted and the appointment rescheduled,
if necessary, at a time that is convenient for the customer.
(vi) Franchisee shall submit reports, upon request, to the City
Manager showing its performance under this subsection on a monthly basis, however, its
performance shall be measured for purposes of compliance with the above standard on a
quarterly basis.
(vii) A Franchisee shall implement a policy of providing credits
for customers who complain to Franchisee about service outages in a pro-rated amount of
that customer's normal monthly bill representing the number of days the customer was
affected.
(7) Subscribers who, under Normal Operating Conditions, have
experienced one (1) missed installation or service appointment due to the fault of
Franchisee shall receive installation free of charge. If the installation was to have been
provided free of charge or if the appointment was for service or repair, the Subscriber
shall receive a credit on its bill of Twenty Dollars ($20.00). An appointment shall be
considered missed if the technician arrives more than fifteen (15) minutes later than the
designated time block.
(8) Disconnection.
(i) Voluntary Disconnection.
Ordinance No. 40-06-21 18
(A) A Subscriber may terminate service at any time.
(B) A Franchisee shall promptly disconnect any
Subscriber who so requests from the Cable System of the Franchisee. No period of
notice prior to voluntary termination of service may be required of Subscribers by any
Franchisee. So long as the Subscriber returns equipment within five (5) business days of
the disconnection, no charge may be imposed by any Franchisee for such voluntary
disconnection, or for any cable services delivered after the date of disconnect request.
(C) Any security deposit and/or other funds due the
Subscriber shall be refunded on disconnected accounts after any Franchisee equipment
on customer premises, including all converters but excluding wiring, have been
recovered by the Franchisee. Refund checks will be issued promptly, but no later than
either the customer's next billing cycle or thirty (30) days whichever is earlier.
(ii) Involuntary Disconnection. If a Subscriber fails to pay a
monthly Subscriber or other fee or charge, the Franchisee may disconnect the service
outlet of the Subscriber; however, such disconnection shall not be effected until both
thirty-five (35) days after the due date of the monthly Subscriber fee or other charge, and
ten (10) days advance written notice of intent to disconnect to the Subscriber in question.
If the Subscriber pays the balance due within thirty-five (35) days of the due date or
within ten (10) days after notice of disconnection has been given, the Franchisee shall not
disconnect. After disconnection, upon payment by the Subscriber in full of all proper
fees or charges, including the payment of the reconnection charge, if any, the Franchisee
shall reinstate service. Franchisee reserves the right to deny service to any customer who
has been repeatedly disconnected for non-payment of services to the extent such rights
are consistent with applicable state and federal law.
(iii) Nothing in this Ordinance shall be construed to prevent the
Franchisee from removing its property from a premises of a Subscriber upon the
termination of service consistent with FCC rules and regulations and any other applicable
law. At the request of a Subscriber, a Franchisee shall remove its Subscriber equipment
Ordinance No. 40-06-21 19
from the premises of the Subscriber within thirty (30) calendar days of the request.
Where removal is impractical, such as with buried cable or internal wiring, facilities and
equipment may be disconnected and abandoned rather than removed, unless there is a
written agreement stating otherwise, provided, however, that such agreement must be
consistent with applicable law and FCC rules.
(9) Franchisee shall intentionally interrupt service only for good cause
and for the shortest time possible. Franchisee shall use its best efforts to ensure that such
interruptions shall occur only during the hours of 1:00 a.m. to 6:00 a.m., except during a
rebuild or upgrading of the Cable System. Franchisee shall maintain a written or
electronic log for all intentional service interruptions.
(10) Franchisee shall cause all of its field employees or subcontractors
to wear a picture identification badge indicating employment or engagement by
Franchisee. This badge shall be clearly visible to the public. All service vehicles of such
persons shall be clearly marked with the name or logo of the Franchisee.
(11) A Franchisee shall develop written procedures for the investigation
and resolution of all Subscriber or City resident complaints, including, but not limited to,
those regarding the quality of service, equipment malfunction and security deposits,
which procedures shall be provided in advance of distribution to the City. A Subscriber
or City resident who has not been satisfied by following the procedures of the Franchisee
may submit a complaint with the City. The good faith or lack thereof of the Franchisee in
attempting to resolve Subscriber and resident complaints in a fair and equitable manner
will be considered in connection with the renewal application of the Franchisee. Upon
request, Franchisee shall maintain a complete list showing the number of billing
complaints received by category.
(12) The City, or its designated representatives, shall have the right to
review and audit the customer service call center numbers. If such audit concludes that
Franchisee has a five percent (5%) or greater margin of error in its reporting of customer
service numbers, Franchisee shall reimburse the City for its audit expenses.
Ordinance No. 40-06-21 20
(13) Franchisee shall abide by the following requirements governing
communications with customers, bills and refunds:
(i) Each Franchisee shall provide to Subscribers written
information in each of the following areas at the time of installation, at least once
annually, and at any future time upon request by the Subscriber:
(A) How to use the cable service;
(B) Installation and service maintenance policies;
(C) The products and services offered;
(D) Prices and service options;
(E) Channel positions of programming carried on the
system;
(F) The procedures of the Franchisee for the receipt and
resolution of customer complaints, the address of the Franchisee and telephone number to
which complaints may be reported, and the hours of operation;
(G) The telephone number and address of the City
office designated to handle cable television complaints and inquiries shall be printed on
the back of the bill;
(H) The availability of a parental control options;
(I) The Franchisee's information collection and
disclosure policies for the protection of the privacy of the Subscriber.
(ii) Franchisee bills will be clear, concise and understandable.
(iii) Refund checks will be issued promptly, and in no later than
thirty (30) days or the next billing cycle of the customer following the resolution of a
refund request, or the return of the equipment supplied by the Franchisee if service is
terminated.
(iv) Credits for service will be issued no later than the next
billing cycle of the customer following the determination that a credit is warranted.
Ordinance No. 40-06-21 21
(v) A Franchisee shall provide Subscribers, the City, and the
City Manager with at least thirty (30) days advance written notice of any changes in rates,
charges, or channel lineup, or changes of cable services offered over the Cable System in
the manner required by FCC rules.
(14) A Franchisee shall provide apro-rated twenty-four (24) hour credit
upon request by the Subscriber to the account for any period of four (4) hours or more
within atwenty-four (24) hour period during which a Subscriber experienced and
reported an outage of service or substantial impairment of service due to a system
malfunction.
(15) Billing.
(i) The first billing statement of the Franchisee after a new
installation or service change shall be pro-rated as appropriate and shall reflect any
security deposit.
(ii) The billing statement of the Franchisee must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Invoices will also clearly delineate all activity during the
billing period, including optional charges, rebates and credits.
(iii) The billing statement of the Franchisee must show a
specific due date not earlier than ten (10) days after the date of the beginning of the
service period. Any balance not received within ten (10) days after the due date may be
assessed an administrative charge or late fee not to exceed Five Dollars ($5.00). The
charge will appear on the billing statement of the following month.
(A) Subscribers shall not be charged an administrative
fee, a late fee or otherwise penalized for any failure by the Franchisee, its employees, or
contractors, including failure to timely or correctly bill the Subscriber, or failure to
properly credit the Subscriber for a payment timely made.
Ordinance No. 40-06-21 22
(iv) The Franchisee must notify the Subscriber that payment
can be remitted in person at the office of the Franchisee and inform the Subscriber of the
address of the nearest office where payment can be made.
(16) Alterations in Cable Service.
(i) If a Franchisee wishes to alter the service being provided to
a Subscriber (including by re-tiering, restructuring a tier or otherwise) in such a way that
the Subscriber will no longer be able to obtain the same package of services, then the
Franchisee must provide the Subscriber with thirty (30) days notice of such alteration,
explain the substance and the full effect of the alteration, and provide the Subscriber the
right within the thirty (30) day period following notice, to opt to receive any other
combination of services offered by the Franchisee.
(ii) Except as provided herein, or under applicable federal or
state law, no charge may be made for any service or product which the Subscriber has not
affirmatively indicated, in a manner separate and apart from payment of the regular
monthly bill that it wishes to receive.
(17) Where a Franchisee offers and/or advertises any product or service
in the City, such products and services must be made available to all customers in the
Franchise Area. Failure to provide any product or service to a customer consistent with
the material terms and conditions of the offers and advertisements, upon request and
agreement to pay, shall be considered a violation of this Ordinance. This section shall
not apply to new products and services being offered on a trial or experimental basis not
to exceed a twelve (12) month period in a limited area for purposes of testing, assessing
customer interest, or other legitimate business reason for such new products.
(18) Franchisee, through its local manager or other person responsible
for the operation of the Cable System, shall certify in writing to the City bi-annually that
based upon internal due diligence by the Franchisee that to the best of knowledge of the
Franchisee, it is in substantial compliance with the standards set forth in the customer
service requirements of this Ordinance. At the request of the City, the Franchisee shall
Ordinance No. 40-06-21 23
submit such documentation, as may be reasonably required, to demonstrate compliance
of the Franchisee with this Section. This documentation shall be submitted within forty-
five (45) days of the receipt of the written request of the City to the City Manager.
(19) Excessive customer complaints to the City. If in any single month
the number of Service Complaints and Billing Complaints from different individuals
received by the City exceeds eleven (11) under Normal Operating Conditions, the City
Manager may notify Franchisee in writing and request a meeting with Franchisee's
system manager within five (5) business days to determine the cause of the high call
volume and to establish a plan to cure or commence to cure within thirty (30) days the
cause of the high call volume. Complaints to the City, that Franchisee demonstrates are
unsubstantiated, by any third party, organization, group or the City shall not count toward
assessment of the damages set forth herein.
(20) Where the Franchisee has knowledge of any funds collected from
Subscribers by Franchisee in excess of that which is lawfully allowed under applicable
federal, state or local law, rules, regulations or by contract or agreement, Franchisee shall
issue to Subscriber cash refunds no later than the next billing cycle or forty-five (45)
days, which ever is greater.
(21) Responsibility for the administration of this Ordinance and the
Franchise agreement, and for the investigation and assistance in resolving complaints
against the Franchisee regarding the quality of service, equipment malfunctions, and
related matters, including the authority to order fines, is hereby delegated to the City
Manager, who is empowered, among other things, to settle, or compromise any
controversy arising from operations of the Franchisee, on behalf of the City in accordance
with the best interests of the public. The City Manager may require compliance with
specific obligations of this Ordinance and the Franchise Agreement, provided that the
Franchisee, may appeal the matter to the City Commission for determination. No
adjustment, settlement, or compromise, whether instituted by the City Manager or by the
City Commission, shall be contrary to the provisions of the Ordinance or any Franchise
Ordinance No. 40-06-21 24
Agreement issued pursuant to the Ordinance, and neither the City Manager nor the City
Commission, in the adjustment, settlement, or compromise of any controversy shall have
the right or authority to add to, modify or delete any provision of the Ordinance or of the
Franchise Agreement.
(22) In addition to complying with the customer service standards set
forth in this Ordinance or in any Franchise Agreement issued pursuant to this Ordinance,
a Franchisee shall comply with all FCC customer service standards applicable to Cable
Systems and any other applicable federal or state law concerning customer service
standards, consumer protection, and unfair or deceptive trade practices, as the same shall
be amended from time to time.
(23) The City expressly reserves the right to consider violations of the
customer service requirements in evaluating any renewal, modification or transfers of any
Franchise Agreement.
(24) Subscriber Privacy.
(i) A Franchisee shall at all times protect the privacy of all
Subscribers to the full extent required by Section 631 of the Cable Act, 47 U.S.C. 551,
and state law. A Franchisee shall not condition Subscriber or other service on the grant
of permission of the Subscriber to disclose information that, pursuant to federal or state
law, cannot be disclosed without the explicit consent of the Subscriber. No penalties or
extra charges may be invoked by the Franchisee for a failure of the Subscriber to grant
consent.
(ii) Unless otherwise permitted by federal or state law, neither
the Franchisee nor its agents or employees shall, without the prior and specific written
authorization of the Subscriber involved, sell, or otherwise make available for
commercial purposes the names, addresses or telephone numbers of any Subscriber or
Subscribers, or any information which identifies the individual viewing habits of any
Subscriber or Subscribers.
Ordinance No. 40-06-21 25
(25) All data and information required by this Ordinance to be provided
to the City by Franchisee shall reflect only the operations of the Cable System within the
City. The City shall maintain the confidentiality of any information provided by a
Franchisee that has been designated as Confidential or Trade Secret information, subject
to State or Federal law.
(26) Regarding customer service standards adopted by other
Franchising Authorities located within Duval County only, the Franchisee shall amend
the Franchise Agreement with the City to provide City with the same terms, upon the
City's written request.
(27) Franchisee may pass through to Subscribers any costs arising from
customer service standards greater than those set forth in federal law by the FCC. In the
event that Franchisee intends to pass through to Subscribers any such additional costs, the
Franchisee must provide at least thirty (30) days prior written notice to the City and shall
provide the City with such documentation as may be reasonably required by the City to
substantiate such additional cost. Upon request, the customer service requirements at
issue shall be suspended while the City evaluates any information provided by
Franchisee.
(28) No Third-Party Beneficiaries. Nothing in this Ordinance or any
Franchise Agreement is or was intended to confer third-party beneficiary status on any
member of the public to enforce the terms of such Ordinance or Franchise Agreement.
(29) The Franchisee shall designate channel capacity for Leased Access
in accordance with the requirements of Section 612 of the Cable Act, as amended.
(30) All system monitoring shall be in compliance with Federal and
State privacy and surveillance laws.
(31) Franchisee shall permit the City designee to inspect the technical
equipment and facilities of the system upon reasonable prior written notice, not to be,
unless required by exigent circumstances, less than seventy-two (72) hours.
Ordinance No. 40-06-21 26
Section 8 Franchise fees. The Florida Simplified Communications Services
Tax Act preempts Section 8 of this Ordinance. If, however, the Florida Communications
Services Tax Law is amended or repealed so that a local franchising authority is allowed
to impose and collect franchise fees, then forty-five (45) days after the effective date of
any such statutory amendment or repeal, this Section 8 of the Ordinance will become
effective with respect to all Franchise Agreements or at such time as stated in said
amendment or repeal of the Florida Communications Services Tax Law. Unless
otherwise provided by law, Franchisee shall collect and remit franchise fees for the entire
period following the effective date of the aforementioned change in law, even if some
collection and payment must be done in arrears to allow for changes to the billing
process. The intent of this section is to ensure the City is not deprived of any franchise
fees to which it would otherwise be entitled following a change in state law.
(a) The Franchisee shall pay, as fair compensation for a franchise granted
pursuant to this Ordinance, 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 franchise fee not to exceed the maximum fee
permitted by law based upon Franchisee's provision of cable television services within
the City. The exact amount of this franchise fee shall be set forth in the Franchise
Agreement between the City and Franchisee. Any increase in the franchise fee shall be
voted on at a public hearing of the Commission following the notice and opportunity for
public comment required by law. Franchise fee payments shall be made to the Finance
Officer.
(b) Payments due the City under this provision 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 forty-five (45) days after the relevant
computation date. Each payment shall be accompanied by a brief report to the City
Manager showing the basis for the computation and such other relevant facts as may be
required by the City.
Ordinance No. 40-06-21 27
(c) No acceptance of a payment shall be construed as an accord that the
amount paid is, in fact, the correct amount, nor shall the acceptance of payment be
construed as a release of any claim the City may have for further or additional sums
payable under the provisions of this chapter. All amounts paid shall be subject to audit
and re-computation by the City. In the event that re-computation results in additional
revenue to be paid to the City, the amount shall be subject to a surcharge, charged for
each day for which the payment was delayed, calculated in accordance with the prime
rate of interest as published in the Wall Street Journal as of the date of re-computation.
(d) Annual revenue statements, acceptable to the City Manager, shall be
submitted within forty-five (45) days after completion of the Franchisee's year-end close
verifying revenues generated under the Franchise Agreement.
(e) Nothing in this section shall limit a Franchisee's liability to pay other local
taxes of general applicability. Any tax, fee or assessment that is imposed by the City
upon any Franchisee or its Subscribers solely because of their status as such, shall be
treated as a franchise fee.
(fj Franchisee shall have the right to designate that portion of a Subscriber's
bill attributable to the franchise fee as a separate item on the bill and shall have the right
to pass through to Subscribers the full amount of the franchise fee.
Section 9 Rights reserved to City. Without limitation upon the rights that
the City might otherwise have, the City does hereby expressly reserve the following
rights, powers and authorities:
(a) To exercise its lawful governmental powers now or hereafter to the full
extent that these powers maybe vested in or granted to the City.
(b) To grant additional franchises within the City to other persons for the
conduct of cable television in accordance with federal and state law.
(c) To exercise any other rights, powers or duties required or authorized to
the City under the State Constitution or the Charter.
Ordinance No. 40-06-21 28
Section 10 Application criteria, qualifications, procedure and costs.
(a) The City shall award an initial franchise to an applicant only after a public
hearing on the application and information filed therewith, and the award shall be based
on the satisfaction of the criteria contained herein. No franchise shall be awarded except
upon a showing by the applicant of satisfaction of these criteria among others.
(b) In accordance with FCC rules, evidence must be presented assuring the
City that the applicant is a United States citizen or corporation.
(c) The applicant shall present character qualifications, as follows:
(1) Applicants shall present evidence as to whether or not the
applicant or any officer, director or principal has ever been convicted in a criminal
proceeding where felonies or misdemeanors were charged.
(2) Evidence shall be presented as to whether the applicant or any
officer, director or principal has ever been a party to a civil proceeding in which it was
held there were unfair or anticompetitive business practices; antitrust violations;
violations of securities laws; or false or misleading advertising.
(3) Evidence shall be presented as to whether applicant has ever had a
business license (including FCC licenses) revoked.
(d) The applicant shall file twelve (12) copies of the application for the cable
television franchise for the City with the City Manager during the time period designated
by the City, which notice shall be published affording notice to all prospective applicants.
The applications shall be reviewed by the City and the applicants afforded proper time
during a public proceeding before the City to explain their application. The City may
utilize consultants knowledgeable in the field of cable television for analysis of the
applicants' proposals. The City Commission shall endorse an applicant and authorize the
City's entrance into a contract for the cable television franchise if the applicant satisfies
the criteria established herein and the City determines that grant of application will serve
the public convenience, safety and general welfare.
Ordinance No. 40-06-21 29
(e) The applicant shall submit details of the applicant's financial background,
Subscriber rates, proposed system technical configuration and operational system
description, construction timetable proposed to complete service to the initial service
area, proposed administrative practices, and delineate the applicant's employment
practices and policies. Existing Franchisees operating in the City are not required to
provide the application or follow the application procedures described herein. The
applicant shall present additional evidence to assist the City in evaluating the effect of an
additional cable television operator. Such evidence shall include, but is not limited to:
(1) The extent of installation of facilities and equipment of existing
cable operator(s) detailing the per-strand-mile density of areas served, unserved areas and
the per-strand-mile density of such, and the location of the facilities of the existing
operator(s).
(2) The per-strand-mile densities of the areas the applicant proposes to
serve and the extent to which the applicant intends to utilize bulk rate contracts.
(3) The extent to which the applicant intends to overbuild existing
cable operator(s).
(4) The detailed economic and financial information and assumptions
of the applicant.
(5) The technical or physical limitations of rights-of--way, the
frequency and extent of disruption ofrights-of--way, and the potential conflicts with other
rights-of--way users (including vehicular traffic).
(6) The effects of competition in the cable industry, including the cost
of duplication of facilities and equipment, services, personnel, etc., and the extent to
which overbuilds have historically survived, and the potential for loss of or degradation
of cable service to existing or potential Subscribers.
(7) The extent to which existing cable operator(s) are meeting the
community needs and interests and the manner and extent to which the applicant
proposes to meet community needs and interests.
Ordinance No. 40-06-21 30
(8) The ability of the City to regulate multiple franchises, including
the permitting processes of the City, the ability to readily locate and determine the owner
of facilities and equipment, and the extent of conflicts of utility and cable installations.
(9) Any other evidence pertinent to the City's evaluation of the
application.
(f) If applicant proposes to serve an area then served or planned to be served
by another Franchisee, the application shall be submitted with proof of service of a copy
of its application upon the incumbent Franchisees.
(g) In evaluating an application, the City shall consider the applicant's legal,
financial, technical, and other qualifications, the adequacy of its proposed system, and
shall balance pro-competitive impact of additional franchisees, with the continued ability
of residents to obtain high quality cable services at the lowest economic price and the
possible increased diversity of information with the:
(1) Ability of the City to regulate multiple cable operators and
services,
(2) Disruption of public and private property by multiple cable
operators,
(3) Economic viability of cable operators so as to make available high-
quality cable services to the greatest number of City residents at the lowest economically
feasible price taking into consideration all existing competition, including OVS, SMATV
and direct broadcast satellite providers.
(i) Consideration will be given an installation plan that
provides flexibility needed to adjust to new developments, establishes quality
maintenance practices and provides marketable services that would be available to
Subscribers and the community immediately and in the future.
(h) Consideration will be given to applicants with the most reasonable
installation and Subscriber rate schedule that is, at the same time, justified in the financial
pro forma statements by use of realistic levels of penetration.
Ordinance No. 40-06-21 31
(i) Consideration will be given to applicants presenting evidence of financial
resources that assure initial service area within five (5) years of receiving required FCC
franchise approvals.
(j) Consideration will be given to applicants that can give evidence of
providing efficient, satisfactory and dependable services to other communities and a
management background that gives evidence of excellent construction practices, ability
to meet deadlines and good planning and marketing practices.
(k) Applicants proposing services and technical standards exceeding the
minimum required in this chapter will be given added weight in the evaluation if these
services and standards are guaranteed and are within the financial capability of the
system as shown by a pro forma statement, and are also within the guidelines of
acceptability as defined by FCC's description of extra service packages.
(1) Each application shall be accompanied by a filing fee in the amount of
five thousand dollars ($5,000). This fee shall be used to pay the cost of processing the
application, including consultation fees, and the time and materials of City departments
required for the processing. Any part of the filing fee that is not required to meet the cost
of processing shall be returned pro rata to the applicant following the selection process.
Each applicant shall be required, as a condition to the award of a franchise, to post with
the City a construction bond, acceptable to the City Attorney, or, in lieu thereof, cash in
the full amount of the cost of construction, and such additional corporate guarantees as
the City may require as surety for the faithful performance and discharge by it of all of its
construction obligations. The bond shall remain in force and in effect until construction is
completed and approved by the City.
Section 11 Franchise required for operation. No Cable Television System
may operate within the City without grant of a franchise pursuant to this chapter and in
accordance with applicable law.
Ordinance No. 40-06-21 32
Section 12 Provision of supplemental services within the City. A
Franchisee will provide, free of charge to the City, the following supplemental services
on an annual basis.
(a) "Expanded Basic" service to each public and private school, but no
"home" school, located in the Franchise Area located within one hundred twenty-five
(125) feet of Franchisee's distribution cable.
(b) "Expanded Basic" service to each municipal building and community
center located in the Franchise Area located within one hundred twenty-five (125) feet of
Franchisee's distribution cable.
Section 13 Parental control devices. It is the declared public policy of the
City that each person's home is a place of refuge and privacy subject to the unique control
of the homeowner and the occupants and that these values are especially important as
they pertain to the parenting of children and the supervision of children.
(a) Each Franchisee shall provide for sale or lease a parental control device,
defined below, to each and every Subscriber requesting such device for use as part of
their cable subscription and shall provide assistance on the use of all parental control
devices supplied by the Franchisee. A parental control device shall mean a converter or
other equipment or software or combination thereof, which enables the adult user to
electronically block either channels or programs or other services from being shown on
such receivers.
(b) A Franchisee shall, verbally and upon request in writing, inform potential
Subscribers and renewing Subscribers regarding the available option to obtain a parental
control device, the rates and terms for such devices and reasonable and clear information
with regard to use of such devices. If applicable, the Franchisee shall install a parental
control device within fifteen (15) days after receiving an order for such device from a
Subscriber. The parental control devices to be made available by the Franchisee shall be
reliable equipment, which is available at a reasonable and affordable price to the vast
majority of Subscribers to the Cable Television System in the City of Atlantic Beach.
Ordinance No. 40-06-21 33
(c) Upon written request by customer, Franchisee shall provide parental
control devices and the installation thereof at a nominal cost.
(d) As parental control devices are improved and new technology becomes
available, the Franchisee shall upgrade the parental control device it makes available to
its Subscribers so that such devices shall continue to be affordable and easy to own, rent,
use and operate by a parent for the protection of the family and especially children of the
family and children which are guests in the home.
(e) It is the intent of the City Commission that each Subscriber shall have the
option to control by mechanical or electronic means known only to the designee of the
Subscriber, the channels and programs received by the television receivers of such
Subscribers. Franchisee shall take reasonable steps to make parental control devices
available to Subscribers on an affordable and user friendly basis.
Section 14 Education and Government Channels.
In accordance with Section 611 of the Cable Act (47 U.S.C. Section 531) the
Franchisee agrees to provide to Atlantic Beach, Jacksonville Beach and Neptune Beach
throughout the term of this Franchise Agreement, for their non-exclusive use, one (1)
Access Channel to be shared among them, to be used for non-commercial, local
governmental access programming. Atlantic Beach, Jacksonville Beach, and Neptune
Beach, individually or collectively, shall give Franchisee ninety (90) days written notice
of the intent to initially start the use of the channel. Franchisee shall cover fifty percent
(50%) of the cost for the equipment and connectivity and all other associated costs, and
the requesting City or Cities will cover the balance. Franchisee and Franchise Authority
expressly agree that such capacity is not required to be placed on the most basic tier and
may be placed on other tiers, including digital tiers not subscribed to by every customer,
subject to Franchisee's discretion. If such capacity is placed on the most basic tier, than
Franchisee may broadcast such programming in a digital format so that Subscribers must
have the necessary digital box or terminal to view the channel. Because blank or under
utilized Government channels are not in the public interest, in the event that Atlantic
Ordinance No. 40-06-21 34
Beach, Jacksonville Beach and Neptune Beach elect not to fully program its channel
capacity, meaning eight (8) hours-a-day, non-repetitive, locally produced programming
Monday through Saturday for a minimum of six (6) consecutive weeks, Franchisee may
program unused time so long as Atlantic Beach, Jacksonville Beach and Neptune Beach's
programming is not preempted.
Section 15 Liquidated Damages.
(a) Calculation of Damages. Subject to the annual cap pursuant to Subsection
(d) of this Section, liquidated damages shall be calculated in the following manner:
(1) Excessive Customer Complaints to the City. If in any single
month the number of Service Complaints and Billing Complaints from different
individuals received by the City exceeds eleven (11) under Normal Operating Conditions,
the City Manager may notify Franchisee in writing and request a meeting with
Franchisee's system manager within five (5) business days to determine the cause of the
high call volume and to establish a plan to cure or commence to cure within thirty (30)
days the cause of the high call volume. If following such a meeting the call volume
nevertheless exceeds eleven (11) the following month, the City Manager may assess
liquidated damages of One Thousand Dollars ($1000). If following such a meeting the
call volume continues to exceed eleven (11) calls for any one month, the liquidated
damages amount shall reset to One Thousand Dollars ($1,000) for the next violation.
Complaints to the City that Franchisee demonstrates are unsubstantiated by any third
party, organization, group or the City shall not count toward assessment of the damages
set forth herein. No liquidated damages may be assessed if the City has not notified the
Franchisee and held the above-mentioned meeting. If it appears that call volume to the
City continues to exceed eleven (11) calls per month in consecutive months despite
Franchisee's best efforts to remedy any problem, or in the absence of an identifiable
cause, Franchisee may request the City for a new call volume threshold in the City's
reasonable discretion. The assessment of liquidated damages for excessive customer
Ordinance No. 40-06-21 35
complaints shall not preclude Franchisee's obligation to issue customer credits pursuant
to this Ordinance or the Franchise Agreement.
(2) Failure to comply with customer service requirements. For a
failure to comply with the requirements of Section 7 customer service requirements, the
City Manager may assess Franchisee liquidated damages in the amount of Five Hundred
Dollars ($500) per violation for each day the violation remains uncured unless liquidated
damages in another amount is specifically set forth herein.
(i) Prior to assessing any liquidated damages, the City
Manager shall mail to the Franchisee a written notice by certified or registered mail of the
alleged violation and the proposed liquidated damage, specifying the violation at issue
and any liquidated damages will commence as of the date of such notice.
Notwithstanding, unless a customer service violation cannot be cured, such as a violation
of Subscriber privacy, the Franchisee shall have thirty (30) days from the date of receipt
of the written notice to cure or commence to cure, as is appropriate depending on the
nature of the violation, the alleged violation or file a written response to the notice of
violation by the City Manager refuting the alleged violation or explaining why additional
time for cure is necessary. In the case of violations of requirements measured on a
quarterly or longer period, Franchisee shall have thirty (30) days from the date of receipt
of the written notice to commence to cure the alleged violation and Franchisee shall cure
the violation in no less than one such period.
(ii) Prior to assessing liquidated damages, the City Manager
shall consider any justification or mitigating factor advanced in the written response of
the Franchisee; including but not limited to rebates or credits to the Subscriber. The City
Manager may, after consideration of the response of the Franchisee, waive or reduce any
proposed liquidated damage in the event the violation has not been cured. The City
Manager may not assess any liquidated damage if the Franchisee has reasonably
responded to the complaint or cured or commenced to cure, as may be appropriate, the
violation within a reasonable time frame not to exceed thirty (30) days or for violations of
Ordinance No. 40-06-21 36
requirements measured on a quarterly or longer period, commenced to cure within thirty
(30) days and cured within one such period, following receipt of written notice from the
City, unless some other cure period is approved by the City Manager.
(3) Fraud. A practice of intentional misrepresentation, fraud or deceit
by a Franchisee in connection with the customer service standards set forth in Section 7
shall be grounds for franchisee revocation and a fine in an amount not to exceed Ten
Thousand Dollars ($10,000).
(4) Construction Delay. Upon expiration of the construction schedule
attached to a Franchise Agreement without construction having been completed, the City
shall give a Franchisee written notice of non-compliance. Failure to cure the non-
compliance within thirty (30) days from receipt of the written notice shall result in the
assessment of liquidated damages in the amount of Two Thousand Dollars ($2,000) per
day, starting the 31St day after receipt of notice of noncompliance. However, Franchisee
may apply for, and the City will not unreasonably deny, an extension of time to complete
construction where the failure to meet the established deadlines is caused by federal, state
or municipal action (including delays in permitting or make-ready steps), 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;
provided, however, that difficulties or delays caused by subcontractors do not warrant a
waiver of the damages hereunder.
(5) Construction and installation violations. For failure to complete
construction and installation of the cable system and to commence operations in
accordance with the terms of the Franchise Agreement, unless the City Commission,
upon the recommendation of the Manager, approves a construction delay because of
reasons beyond the control of the Franchisee, Franchisee shall pay liquidated damages in
the amount of Two Thousand Dollars ($2,000) per day for each day construction or
commencement of operations is late. The City shall give a Franchisee written notice by
certified mail of an alleged violation. A Franchisee shall have thirty (30) days to cure or
Ordinance No. 40-06-21 37
commence to cure as may be appropriate the alleged violation or to seek a reasonable
extension of time in which to complete construction or commence operations, which
extension shall not be unreasonably denied. No liquidated damages shall be assessed if
the alleged violation is cured or commencement to cure has begun, as may be appropriate
within the allotted time. Further, nothing in this paragraph limits the otherwise applicable
remedies available to the City for this or any other breach of the Franchise Agreement,
including but not limited to revocation and liquidated damages set forth in this
Ordinance.
(6) Breach not otherwise provided for. Unless otherwise provided in
this Ordinance or a Franchise Agreement, substantial breaches of material provisions of a
Franchise Agreement or this Chapter, other than the customer service Section or any
other Section already providing for fines or liquidated damages, shall subject a
Franchisee to liability for liquidated damages not to exceed Five Hundred Dollars ($500)
for each violation, calculated on a calendar day basis with each day of a continuing
violation constituting a separate violation. In the case of violations based on failure to
meet monthly or quarterly requirements, the violation shall be calculated as a continuing
violation for each month or quarter of such continuing violation. The City shall provide
written notice of any alleged violation describing in detail the basis of the violation. A
Franchisee shall have an opportunity to cure the alleged violation within thirty (30) days,
contest the existence of a violation, or to request such additional time as is reasonably
necessary to implement a cure, which request shall not be unreasonably denied. For
purposes of this Section, a "material provision" is one that sets forth requirements the
violation of which may substantially prevent or impair the delivery of cable services to
more than one percent (1%) of the Subscribers in the Franchise Area served or to be
served by a Franchisee in a manner or at a quality consistent with the terms of this
Ordinance as it existed on the effective date of the Franchise Agreement, and the
Franchise Agreement issued pursuant thereto.
Ordinance No. 40-06-21 38
(b) Payment and enforcement. Upon expiration of the cure period without a
cure or commencement of a cure, as may be appropriate, with consideration of the
response of the Franchisee, if any, the Manager may issue an assessment of the liquidated
damages in writing delivered by certified mail. The liquidated damage shall be paid
within thirty (30) days of written notice of assessment to the Franchisee. This fine shall
constitute liquidated damages to the City for the violation and the City may enforce
payment of the liquidated damage in any court having jurisdiction, including enforcement
against the letter of credit provided by a Franchisee. It is the intent of the City to
determine liquidated damages as a reasonable estimate of the damages suffered by the
City, whether actual or potential, that are difficult to measure.
(c) Appeals. Franchisee may appeal any decision of the Manager directly to
the City Commission within thirty (30) days of notice of the assessment to the
Franchisee. Within thirty (30) days of exhaustion of all administrative remedies, which
includes the appeal to the City Council, Franchisee may appeal to a court of competent
jurisdiction. Franchisee's obligation to pay the liquidated damages assessed shall not be
stayed pending resolution of the appeal.
(d) Annual cap on liquidated damages.
(1) Amount of Cap. The Manager is responsible for assessing and
collecting liquidated damages in an amount no greater than Fifteen Thousand Dollars
($15,000) annually. In no event shall the total annual liquidated damages imposed by the
City exceed Fifteen Thousand Dollars ($15,000).
(2) Availability of alternative remedies. To the extent that the City
elects to assess liquidated damages as provided in this Ordinance and such liquidated
damages have been paid, such damages shall be the City's sole and exclusive remedy.
Notwithstanding the foregoing, nothing in this Section is intended to preclude the City
from exercising any other right or remedy with respect to recover damages pursuant to
any provision of this Ordinance for a breach that exceeds the maximum amount
allowable pursuant to this Section.
Ordinance No. 40-06-21 39
Section 16 Alternative to Revocation of the Franchise Agreement. In the
event of violations of provisions of this Ordinance by the Franchisee that, pursuant to this
Ordinance or the Franchise Agreement, would give the City the option to revoke the
Franchise Agreement, the City Commission reserves the right as an alternative to
revocation of the Franchise Agreement to ask Franchisee to propose rebates to be paid to
Subscribers reflecting the seriousness of the violation.
Section 17 Citation. This Ordinance No. shall be known and may be
cited as the "Atlantic Beach Cable Television Ordinance."
Section 18 Amendments. The City Manager be, and hereby is, authorized to
execute anon-exclusive renewal franchise agreement between the City of Atlantic Beach
and Comcast of Greater Florida/Georgia, Inc., which shall be subject to the Atlantic
Beach Cable Television Ordinance.
Section 19 Effective Date. This Ordinance shall take effect immediately
upon its final passage and adoption.
PASSED by the City Commission on first reading this 8~ day of
2006.
____G'U~
(JPASSED by the City Commissioner on second and final reading this 2.2-~~day
of /%1~~, 2006.
ATTE
~n~
DONNA L. BUSSEY
City Clerk
Approved as to form and correctness:
City
SEN, ESQUIRE
~ . ~~~~
DONALD M. WOLFSON
Mayor, Presiding Officer
Ordinance No. 40-06-21 40