Ordinance 009-1989
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ORDINANCE NO. 009-1989
AN ORDINANCE CREATING PROCEDURAL AND SUBSTAN-
TIVE STANDARDS FOR THE GRANTING OF CABLE
TELEVISION SYSTEM FRANCHISES IN THE UNINCOR-
PORATED AREA OF MONROE COUNTY BY PROVIDING
DEFINITIONS; BY PROVIDING FOR THE SUBMISSION
OF FRANCHISE PROPOSALS TO THE COUNTY ADMINIS-
TRATOR AND THE INFORMATION REQUIRED FOR SUCH
PROPOSALS; BY PROVIDING FOR A PUBLIC HEARING
ON SUCH PROPOSALS BEFORE THE BOARD OF COUNTY
COMMISSIONERS AND THE CRITERIA BY WHICH THE
BOARD SHALL APPROVE OR DISAPPROVE SUCH
PROPOSALS; PROVIDING FOR THE NATURE AND
EXTENT OF ANY FRANCHISE GRANTED INCLUDING THE
REQUIREMENT OF CERTAIN STANDARDS OF SERVICE
AVAILABILITY, SERVICE STANDARDS, RESTRICTIONS
ON THE USE OF RIGHTS-OF-WAY IN ORDER TO
PREVENT DISRUPTION TO THE TRAVELING PUBLIC
AND PRIVATE PROPERTY OWNERS, THE USE OF
FRANCHISEE EQUIPMENT IN THE EVENT OF AN
EMERGENCY, THE PROVISION OF BASIC CABLE
SERVICES AT CERTAIN COUNTY FACILITIES, THE
PROVISION OF FRANCHISEE INSURANCE AND INDEM-
NIFICATION ON BEHALF OF THE COUNTY, THE
REQUIREMENT THAT RATES AND CHARGES BE FILED
WITH THE COUNTY ADMINISTRATOR, AND THE
REQUIREMENT OF THE PAYMENT OF A 5% OF GROSS
REVENUE FRANCHISE FEE TO MONROE COUNTY;
PROVIDING FOR CERTAIN RESTRICTIONS ON THE
TRANSFER OF ANY FRANCHISE GRANTED PURSUANT TO
THIS ORDINANCE; PROVIDING FOR THE TERMINATION
OF ANY FRANCHISE GRANTED UNDER THIS ORDINANCE
FOR CAUSE AND THE PROCEDURES THEREFOR;
PROVIDING FOR THE OPERATION, PURCHASE AND
SALE OF THE CABLE SYSTEM AFTER THE TERMINA-
TION OR EXPIRATION OF A FRANCHISE; PROVIDING
PROCEDURES AND SUBSTANTIVE REQUIREMENTS FOR
THE GRANT OF A NEW FRANCHISE TO THE HOLDERS
OF EXISTING FRANCHISES; PROVIDING FOR CERTAIN
RESTRICTIONS ON THE TERMS AND CONDITIONS ON
THE GRANTING OF OVERLAPPING FRANCHISES;
PROVIDING FOR FRANCHISEE PAYMENT OF COUNTY
LEGAL EXPENSES, INCLUDING ATTORNEYS' FEES, IN
CERTAIN INSTANCES; PROVIDING THAT THIS
ORDINANCE SHALL NOT AFFECT THE TERMS OF
EXISTING FRANCHISES EXCEPT TO THE EXTENT THAT
SUCH FRANCHISEES MUST SEEK A NEW FRANCHISE
PURSUANT TO THIS ORDINANCE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES INCONSISTENT HEREWITH; PROVIDING
FOR INCORPORATION INTO THE MONROE COUNTY
CODE; AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
Section 1.
Definitions
For the purposes of this franchise ordinance, the following
words and phrases have meanings set forth below.
a) Affiliate means an entity which owns or controls, or is
owned or controlled by, or is under common ownership with Fran-
chisee.
b) Basic Cable Service means any service tier which
includes the retransmission of broadcast signals of local tele-
vision stations which shall mean any of those stations serving
the Miami/Ft. Lauderdale area.
c) Cable Channel or Channel means a portion of the
electromagnetic frequency which is used in the cable system and
which is capable of delivering a television channel as that
phrase is defined by the regulations of the Federal Communica-
tions Commission.
d) Cable Operator means an entity who provides cable
service over a cable system or through one or more affiliates
owns a significant interest in such a cable system or who other-
wise controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
e) Cable Service means the one way transmission to sub-
scribers of video programming, or other programming service, and
subscriber interaction, if any, which is required for the se-
lection of such video programming or other programming service.
f) Cable System means a facility, consisting of a set of
closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide
cable service which includes video programming and which is
provided to multiple subscribers within the franchise area.
g) Commercial channel means a channel designated for
commercial use by persons unaffiliated with Franchisee.
h) Franchise means the authorization, granted under this
Ordinance unless otherwise noted, issued by the County, also in
the form of an ordinance, for the construction and operation of a
cable system for the purpose of making available cable service to
the public.
i) Franchise Area means that portion of the unincorporated
area of Monroe County, Florida, stated in the Ordinance granting
the franchise.
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j) County means Monroe County, a political subdivision of
the State of Florida.
k) Franchisee means the holder of any franchise granted
under this Ordinance or the County approved successor, transferee
or assignee thereof.
l) Entity means an individual, partnership, association,
joint stock company, trust corporation or governmental agency
other than the County.
m) Gross Revenues means the monthly cable service revenues
received by Franchisee from subscribers of the cable system;
provided, however, that such phrase shall not include revenues
received from any national advertising carried on the cable
system, that portion of a payment to a third party for the
carriage or reception thereof, or any taxes on cable service
which are imposed directly or indirectly on any subscriber
thereof by any governmental unit or agency, and which are col-
lected by the Franchisee on behalf of such governmental unit or
agency.
n) Street means the surface, the air space above the
surface and the area below the surface, of all public roads,
streets, highways, alleys, easements, boulevards, bridges,
tunnels, public utility easements, and all public grounds within
or belonging to the County or under its control or supervision
within the franchise area.
0) Service Tier means a category of cable service or other
services provided by the Franchisee and for which a separate rate
is charged by the Franchisee.
p) Subscriber means an authorized recipient legally
receiving basic service, additional service tiers, or both.
q) Institutional networks means a communication network
which is constructed or operated by the cable operator and which
is generally available only to subscribers who are not residen-
tial subscribers.
r) Commercially impracticable means, with respect to any
requirement of this Ordinance or any franchise granted thereun-
der, that it is commercially impracticable for the Franchisee to
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comply with such requirement as a result of a change in con-
ditions which is beyond the control of the Franchisee and the
nonoccurrence of which was a basic assumption on which the
requirement was based.
Section 2. Procedure For The Initial Grant Of A
Franchise.
a) Any entity desiring an initial franchise under this
Ordinance shall first make a proposal therefor to the County
Administrator. Such proposal shall, at a minimum, contain the
following:
1) Ownership information which shall include the
following:
(a) If a corporation, provide the state of
incorporation and identification and ownership
interests for all officers and directors, and
stockholders owning and voting five percent (5%)
or more of the applicant's stock;
(b) If a corporation, provide the following
stock information: classes of stock, par value,
votes per share, number of shares authorized,
number of shares issued, number of shares sub-
scribed, and total number of stockholders. If
there are any assignments of voting rights or
intended assignment of voting rights, furnish full
details and attach copies of documents evidencing
the same.
(c) If a partnership, provide identification
and ownership interest for all general and limited
partners;
(d) If a proprietorship, joint venture or
other entity, provide full identification and
ownership details;
(e) If an affiliate, subsidiary or parent
company, provide full identification and ownership
details, as in (b) above, for all affiliates,
subsidiaries and parent companies of applicant.
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If any of these are publicly owned the require-
ments of this paragraph may be satisfied by
furnishing a copy of the latest audited annual
report.
2) Character information which shall include the
following:
(a) The past or current involvement of the
applicant or any of its principals as a party in
criminal or civil proceedings;
(b) Whether applicant (including parent
corporation if applicable) or any principal has
ever been convicted in a criminal proceeding
(felonies or misdemeanors) in which any of the
following offenses have been charged: fraud,
embezzlement, tax evasion, bribery, extortion,
jury tampering, obstruction of justice (or other
misconduct affecting public or judicial officers
in the performance of their official duties),
false or misleading advertising, perjury, anti-
trust violations (state or federal), violations of
FCC regulations or conspiracy to commit any of the
foregoing. If yes in any instance(s), provide the
disposition thereof.
(c) Whether the applicant or any principal
has ever been a party to a civil proceeding, or is
now a party to such proceedings, which are of the
following nature: unfair or anticompetitive
business practice, antitrust violations (state and
federal) including instances in which consent
decrees were entered, violations of securities
laws (state and federal), false/misleading ad-
vertising, or violations of FCC regulations. If
yes, provide the case status thereof.
(d) w"hether the applicant or any principal
as ever been subject to any sanction or penalty,
criminal or civil, involving failure to comply
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with the
franchise.
thereof.
(e) Whether the applicant or any principal
has ever, as a Franchisee, instituted legal action
against it franchisor. If yes, provide the case
status thereof.
(f) Whether the applicant or any principal
ever had a FCC license revoked, suspended or
renewal denied, or is a party to a proceeding
which may result in same. If yes, provide the
disposition thereof.
3) Financial information which shall include the
following:
(a) Describe in detail the financing plan
for the construction and initial operation of the
proposed cable communications system and provide
proof of financial capability. Proof of financial
capability shall include:
(1) A showing of sources and amount of
equity capital; if equity contribution is
borrowed describe collateral and terms of the
loan.
requirements of a
If yes, provide
cable television
the case status
(2) A showing of sources and amount of
debt capital, both primary and secondary.
(3) Terms of any financing agreements.
(b) Supply documentation that demonstrates
and assures applicant's financial viability, such
as, but not limited to, letters of commitment from
financial institutions which demonstrate the
availability of sufficient funds to complete
construction of the proposed system;
(c) If applicant is a multiple system
operator, give evidence of the portion of the
company's line of credit which is uncommitted and
will be applied to the proposed construction.
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(d) If individual investors are involved,
state the amount of equity contribution of each
plus the method by which the contribution is paid
such as case, cash plus credit or services.
Include financial commitment documentation for
each investor.
(e) If applicant is a division or subsidiary
of a multiple system operator, provide an annual
report for the parent company.
(f) If capital is to be raised by a parent
company, provide the proposed debt instrument
describing terms of payment.
(g) Pro forma financial statements are
required for the years beginning with the date the
franchise agreement is accepted projected annually
through the year applicant anticipates that all
financing obligations and debt will have been
retired. Such pro formas shall include income
statements supported by realistic levels of
subscriber penetration including the source of the
information and basis for projections, sources and
uses of funds, loan amortization information,
anticipated capital expenditures, constructions
costs, depreciation schedules, and operating
expenses. Applicant shall provide and detail the
basic assumptions relied upon to support its
projections.
4) Technical qualifications which shall include
the following:
(a) Describe any specialized qualifications
and cable system experience applicant may have
had, including, but not limited to: the ownership,
construction, management and operation of other
cable communications systems, specifying the
manner in which applicant participated, available
personnel with technical qualifications and
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experience committed to the proposed system
design, construction and operation; construction
contractors to be used if any; technical consul-
tants including suppliers to be utilized in
design. Indicate the type of participation and
the qualifications of persons, such as consultants
and contractors, whose services will be utilized.
(b) A comprehensive, but concise, descrip-
tion of the proposed system design which clearly
reflects the applicant's design philosophy as well
as the features planned and not planned. The
design items should not, however, be construed as
mandatory features of the County.
(1) Briefly describe the type of layout
that will be used to provide coverage to the
franchised territory.
(2) Describe distribution system cable
equipment including manufacturer, type and
model numbers (aerial and underground includ-
ing drops), active electronic including power
supplies and standby systems, and passive
electronics.
(3) Describe the need for and proposed
use of converters including an explanation of
the conditions under which converters will be
Furnished.
(4) Describe plans for the use of
transmission services in the common carrier,
cable television relay (CARS), multipoint
distribution and other bands.
(5) Describe plans for the use of
satellite earth station(s) including speci-
fications.
(6) Describe design specifications for
the delivery of pay cable television includ-
ing methods of security. If more than one
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basic tier is to be provided indicate how
higher tier subscribers will be isolated form
the lower tier.
(7) Describe headend design and recep-
tion facilities. Indicate whether signal
studies or measurement programs have been
undertaken in selecting the headend site(s).
(8) Furnish a summary spectrum uti-
lization chart.
(9) Describe any other headend or
subscriber terminal equipment that will be or
may be installed for pay-per-view service,
other interactive services such as, but not
limited to, text display or home security.
Give full details of immediate and long term
plans including arrangements actually made.
(10) If an emergency alert system is
proposed, describe how the system will work,
how the system would be activated and from
where.
(11) Describe equipment to be used for
programming any automated channels including
make and model numbers.
5) Channel capacity which shall include the
following information:
(a) Indicate the frequency spectrum, de-
signed channel capacity, and channel capacity
initially to be activated for downstream service;
and the frequency spectrum, channel capacity and
extent to which upstream capacity will be activat-
ed from subscribers. If no upstream subscriber
activation is now planned, when and under what
circumstances would it be activated. Justify the
capacities proposed for both upstream and down-
stream use in terms of projected service demand.
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Indicate the channel capacity reserved for public,
educational and governmental use.
(b) If institutional services are proposed,
provide information for such channels or network
as in (a) above, and describe the plans in detail
including the institutional users to be served.
Provide a proposed set of rules and regulations
governing use of the institutional facilities.
(c) Discuss channel expansion capability in
respect to both the short term and long term,
including specific reference to the degree of
flexibility available for adapting the system to
increasing or changing capacity requirements.
b) Upon determining that the applicant's proposal is
complete, the County Administrator shall promptly agenda the
proposal before the Board of County Commissioners for
consideration at a public hearing affording adequate notice
and opportunity for both public comment and participation by
the applicant. Following such hearing the Board may grant
the proposal by ordinance, or deny the same, based on the
following factors:
1) The economic impact upon private property
within the franchise area;
2) The public need for such franchise, if any;
3) The capacity of public rights-of-way to
accommodate the cable system;
4) The present and future use of the public
rights-of-way to be used by the cable system;
5) The potential disruption to existing users of
the public rights-of-way to be used by the cable system
and the resultant inconvenience which may occur to the
public;
6) The character and financial ability of the
franchise applicant to perform;
7) Other societal interests as are generally
considered in cable television franchising.
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Section 3. Franchise Grant.
a) A franchise shall be a nonexclusive grant by ordinance
to operate a cable system within the franchise area. The grant
includes the right and privilege to construct, erect, operate and
main tain , in, upon, a long, acro s s , above, over and under all
streets such as poles, wires, cables, underground conduits,
manholes and other television conductors and fixtures necessary
or convenient for the maintenance and operation of a cable
system.
b) The right to use and occupy the streets for the pur-
poses set forth in this Ordinance shall not be exclusive, and the
County reserves the right to grant a similar use of the streets
to any entity during the period of this franchise. The rules,
regulations, and standards legally adopted by the Federal Commu-
nication Commission, as well as 47 USCA 521, et seq., and all
amendments thereto, as well as F.S. 166.046 and F.S. 125.42 and
all amendments thereto, shall apply to and shall govern the op-
erations of any franchise granted under this Ordinance and such
rules, regulations and statutes are hereby declared to be part of
any franchise granted, and such rules, regulations and statutes
shall control over any of the terms and conditions set forth in
this Ordinance or any franchise granted hereunder to the extent
of any conflict.
c) Except as limited by Section 3(b), any franchise shall
incorporate all the terms and procedures of this Ordinance as if
they were fully set out in such franchise.
Section 4. Duration of the Franchise.
Any franchise granted by the County shall be for a term of
ten (10) years unless the parties mutually agree to a lesser
term.
Section 5. Service Availability.
The Franchisee shall conduct and operate its cable system so
as to provide service to all areas within the franchise area
where economically feasible. This shall include service to all
franchise areas of the franchise area where there is an average
density of not less than twenty-five (25) households per line
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mile of cable extension necessary to serve those households. The
Franchisee shall, within one hundred twenty (120) days from the
grant of the franchise, furnish the County a schedule of con-
struction and expansion so that all such areas within the County
may be served within four (4) years from the date of the fran-
chise grant. That a portion of the franchise area is already
served by an existing cable operator shall not relieve any
Franchisee from the requirement of extending its lines into such
area.
Section 6. Minimum Services to be Provided.
a) Any franchise shall have as a requirement the following
services:
1) A service tier offering basic cable service;
2) A designation or use of channel capacity for
public, educational or governmental use by the County.
b) The Franchisee may also provide such other services as
it deems economically feasible.
c) Notwithstanding any implications in Section 6 (a) and
(b), the Franchisee shall be capable of offering to the subscrib-
ers a combination of service tiers whose total number of cable
service channels is at least fifty (50).
d) If the Franchisee elects to provide institutional
networks, channel capacity thereon shall be designated for
educational or governmental use.
e) Subscribers to the Franchisee's service shall not be
required to assure the Franchisee that they will subscribe to the
Franchisee's service for any length of time, and subscribers may
terminate service at any time.
f) The Franchisee may not deny cable service access to any
group of potential cable subscribers because of the income of the
local area in which such group resides.
Section 7. Service Standards.
a) The Franchisee shall maintain and operate the system
and render efficient service in accordance with the rules and
regulations as set forth by the FCC.
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b) The Franchisee shall furnish to its subscribers for all
services, with no discriminatory or unreasonable delay in the
Franchisee's installation of full service within the various
neighborhoods in the serviceable franchise area, the best signals
practicable under the circumstances existing at the time, and
shall provide quality reception of its cable service to each
subscriber so that both sound and picture are produced free from
visible and audible noise, distortion and ghost images on stan-
dard television receivers in good repair.
c) The Franchisee shall put, and keep and maintain, all
parts of the cable system in good condition and repair throughout
the term of the franchise.
d) The Franchisee shall not make or grant any preference
or advantage to any person, or subject any person to any unrea-
sonable difference in rates, charges, service of facilities
within the franchise area.
e) The Franchisee shall expeditiously investigate and
resolve all subscriber complaints concerning the operation of the
cable system, normally within twenty-four (24) hours but in no
event, except for emergencies, later than forty-eight (48) hours.
A record shall be made of all complaints received indicating the
name and address of the complaining party, the complaint and the
action taken to rectify the complaint. Copies of such records
shall be delivered on a monthly basis to the County Administra-
tor.
f) The Franchisee shall undertake, where economically
feasible, any construction and installation as may be necessary
to keep pace with the latest developments in the state of cable
systems, whether with respect to increasing the channel capacity
beyond the fifty (50) channel minimum described in Section 6(c),
utilizing any new technology, furnishing improved converters,
providing commercial channels, instituting two-way services,
providing institutional channels or otherwise.
Section 8. Rights-of-way Use Conditions.
a) Nothing contained in Section 3 of this Ordinance shall
be construed to relieve the Franchisee from procuring any and all
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easements, rights-of-way, covenants, grants, certificates of
approval, and permits which may be required from any entity
presently operating in the franchise area and which are necessary
for the installation, construction, and operation of the cable
system authorized by a franchise granted pursuant to this Ordi-
nance.
b) The Franchisee shall ensure that the safety, function-
ing and appearance of any streets or privately owned property,
safety and convenience of other persons, are not adversely
affected by the installation and construction of the cable
system.
c) All permanent cable system transmission and dis-
tribution structures, lines and equipment erected by the Fran-
chisee within the franchise area shall be so located as to cause
minimum interference with the proper use of the streets and to
cause minimum interference with the rights and reasonable conve-
nience of property owners who adjoin any of the streets.
d) In case of disturbance of any street(s), by the Fran-
chisee, the Franchisee shall, at its own cost and expense and in
a manner approved by the County acting through its authorized
officers or employees, replace and restore such street(s) in as
good a condition as existed prior to the commencement of the work
involving the disturbance.
e) If at any time during the period of a franchise granted
under this Ordinance the County shall lawfully elect to alter or
change the location or grade of any street (s), the Franchisee,
upon reasonable notice by the County, shall remove, relay, and
relocate its poles, wires, cables, underground conduits, man-
holes, and any other cable system equipment and fixtures, at its
own expense.
f) Any cable system equipment. poles, or other fixtures
placed in any street or streets by the Franchisee shall be placed
in such manner as not to interfere with the traveling public.
g) The Franchisee, during the installation, maintenance
and operation of its cable system, must guard and protect any
opening or obstruction in the streets by placing adequate
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barriers, fences or boardings, the bounds of which shall be
clearly designated by warning lights during periods of dusk and
darkness.
h) After having received not less than seventy-two (72)
hours prior notice, the Franchisee shall comply with all moving
permits issued by the County or by FOOT by temporarily raising or
lowering its wires to permit the moving of structures or high
loads. The cost to the Franchisee of complying with the moving
permit shall be borne by the person or entity that obtained the
moving permit, and the Franchisee shall have the right to request
payment in advance.
i) The Franchisee shall have the authority to trim trees
upon, or overhanging streets, so as to prevent the branches of
such trees from coming in contact with the wires and cables of
the Franchisee, in a manner approved by and acceptable to the
County. At the option of the County, such trimming may be done
by it or under its supervision and direction at the expense of
the Franchisee, if prior approval of Franchisee has been ob-
tained.
j) In all sections of the service area where the Franchis-
ee utilizes the facilities of City Electric System, the Electric
Coop or Southern Bell and those facilities are placed under-
ground, the Franchisee shall, at its own expense, place its cable
system, wires or other like facilities underground to the maximum
extent that existing technology reasonably permits the Franchisee
to do so.
k) Upon receipt of written notice from the County that any
wires, equipment, fixtures or attachments of the Franchisee's
cable system interfere with the primary use of the County's
streets, endanger its employees or the public, or interfere with
the use of other County property, the Franchisee shall promptly,
and at its own expense, remove, alter, rearrange, improve or
repair the cable system wires, equipment, fixtures or attachments
in such a manner as the County may direct.
l) The Franchisee shall grant to
charge, the joint use of any and all
the County,
poles owned
free
by
of
the
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Franchisee for any proper public purpose, so long as such use by
the County does not interfere with the operation and maintenance
of the cable system.
Section 9. Use Of Franchisee Equipment In The Event Of
An Emergency.
The Franchisee shall allow the County the use of its facil-
ities in the event of any emergency; such emergency to be de-
termined by the Mayor, the Board of County Commissioners, or the
Governor. Provided, however, the County shall indemnify and hold
harmless the Franchisee from any and all demands, claims judg-
ments of any kind or character arising out of, or resulting from,
the use of the cable system, or its equipment, by the County.
Section 10. Provision For Basic Cable Service To Certain
County Facilities.
Upon the written request of the County, the Franchisee shall
furnish free installation and free basic cable service for one
outlet each in the County offices at Plantation Key and Marathon,
and for each public school in the franchise area, provided that
the offices or schools are within two hundred fifty (250) feet of
existing cable service.
The Franchisee shall for mutually agreeable and appropriate
consideration provide Monroe County Government a Public Service
TV Channel for use in conducting electronic arraignments,
telecasting public meetings, and providing public service
administration and announcements,
Section 11. Insurance And Indemnification.
The Franchisee shall maintain and keep in full force and
effect at all times during the term of this franchise sufficient
liability insurance coverage to protect the County against any
claims, suits, judgments, executions or demands of any nature
whatsoever in a sum not less then One Million Dollars per person
in anyone claim; One Million Dollars as to anyone accident or
occurrence; and not less than One Million Dollars for property
damage as to anyone accident or occurrence. The County shall
notify the Franchisee in writing within thirty (30) days after
notice or presentation of any claim or demand, either by suit or
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otherwise, made against the County on account of or arising out
of any act or omission connected with the operations of the
Franchisee. The Franchisee shall indemnify and hold harmless the
County at all times during the term of this franchise agreement
from and against any and all losses resulting from injuries or
damage to persons or property, including injuries to the employ-
ees of the County or damage to the property of the County,
arising out of the negligence of the Franchisee or its agents
while engaged in the work of constructing, operating, or main-
taining the cable system. Further, the Franchisee agrees to
defend, fully indemnify and hold harmless the County from and
against any and all claims and demands whatsoever, including any
claims or demands from any source whatsoever, on account of
license or copyright infringements or violations of any transmit-
tal rules or regulations of the FCC or other governmental regu-
latory bodies; provided, however, that the County shall notify
the Franchisee in writing within thirty (30) days after notice or
presentation of any claim or demand, either by suit or otherwise,
made against the County on account of or arising out of any act
or omission connected with the operation of the cable system
authorized by this franchise.
Section 12. Rates And Charges To The Subscriber.
Franchisee shall keep and maintain on file with the County
Administrator's office, and prominently display in all the
Franchisee's offices within Monroe County, a schedule of current-
ly effective rates and charges for the cable services of the
Franchisee within the franchise area.
Section 13. Franchise Fee.
a) In consideration of the granting and exercise of a
franchise for the operation of a cable system, the Franchisee
shall pay annually to the County, from the gross revenues re-
ceived from the franchise area, 5% of such revenues.
b) For the purposes of this section, the twelve (12) month
period applicable under the Franchise shall be the fiscal year
commencing October 1 and ending on September 30. The franchise
fee payment shall be due and payable ninety (90) days after the
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close of the preceding fiscal year. Each payment shall be
accompanied by a report certified as correct from a certified
public accountant of the Franchisee showing the basis for the
computation and the amount of the payment. However, the County
shall have the right and authority to inspect the Franchisee's
revenue records under the franchise and the right of audit and
recomputation of any amount payable under this Section. The cost
of the audit shall be borne by the Franchisee when the same
results in increasing, by more than 5%, the Franchisee's annual
payment to the County.
c) No acceptance of any franchise payment shall be con-
strued as a release or an accord and satisfaction of any claim
the County may have arising from the installation, operation or
maintenance of the Franchisee's cable system or for the perfor-
mance of any other obligation required by the franchise.
d) All franchise fees which are not paid when due and
payable under this Section shall bear interest at the maximum
legal rate until paid. If not paid when due and payable, the
County may institute suit against the Franchisee in a Court of
competent jurisdiction or proceed according to Section 16.
Section 14. Assignment Of The Franchise.
The Franchisee shall not sell, lease, assign or otherwise
alienate its rights under the franchise without the prior written
approval of the County, which approval shall not be unreasonably
withheld, provided that, if no action is taken by the County on
any application for approval hereunder within thirty (30) days
after submission to the County of such written application, the
application shall be deemed granted and approved. Notwithstand-
ing the foregoing, the County hereby authorizes the Franchisee to
assign, alienate or transfer its right hereunder to any affili-
ate; provided, however, that, the Franchisee shall give thirty
(30) days written notice to the County of such a transfer. In
addition, no approval shall be required for a transfer in trust,
mortgage or other hypothecation as a whole of the Franchisee's
rights under the franchise to secure indebtedness incurred in
connection with any financing of the operations of the cable
18
system; provided, however, that, the Franchisee shall give
written notice to the County of such a transfer.
Section 15. Modification of the Franchise.
a) During the period a franchise is in effect, the Fran-
chisee may obtain, from the Board of County Commissioners,
modifications of the franchise terms if:
1.) In the case of any such requirement for
facilities or equipment, including public, educational,
or governmental access facilities or equipment, if the
cable operator demonstrates that (i) it is commercially
impracticable for the operator to comply with such
requirement, and (ii) the proposal by the cable opera-
tor for modification of such requirement is appropriate
because of commercial impracticability; or
2.) In the case of any such requirement for
services, if the cable operator demonstrates that the
mix, quality, and level of services required by the
franchise at the time it was granted will be maintained
after such modification.
b) The Franchisee shall make a proposal modification,
stating the reasons therefor, to the County Administrator who
shall, within 120 days of its receipt unless otherwise extended
by mutual agreement, schedule a public hearing thereon before the
Board of County Commissioners which shall afford adequate notice
and opportunity for comment. At the conclusion of the hearing,
the Board shall either grant the franchise modification by
ordinance or deny the same but, if denied, the reasons for such
denial shall be clearly stated in writing.
c) The Franchisee may not obtain a modification under this
section of any requirement for services relating to public,
educational or governmental access.
Section 16. Termination Of The Franchise For Cause.
a) The County may elect to terminate the franchise in the
event of a willful failure and refusal, or prolonged neglect, of
the Franchisee to do or comply with any material and substantial
requirements or limitations contained in this Ordinance or
19
franchise granted pursuant thereto, or any material rule or
regulation of the County validly adopted pursuant to the ordi-
nance or franchise; if the Franchisee practices fraud or decep-
tion upon the County, which actions may include any attempt to
purposefully evade or avoid any of the substantial or material
provisions of this franchise; if the Franchisee is adjudged a
bankrupt, makes an actual assignment of all or substantially all
of its property for the benefit of creditors, or has a substan-
tial amount of its system property sold under execution or other
legal process or seized by creditors and held thirty (30) days or
more by its creditors; or if the Franchisee is in more than
ninety (90) days of default in the making of any paYments
required under this franchise.
b) Before the County may elect to terminate the franchise
the County Administrator shall make a written demand on the
Franchisee to do or comply with any such requirement, limitation,
term, condition, rule or regulation. A notice to be effective
for the purpose of securing revocation of the franchise shall
state that such is the purpose of the notice. If the failure,
refusal, or neglect of the Franchisee continues for an unreason-
able period of time, which shall in no event be less than sixty
(60) days following delivery of such written demand, without
written evidence that corrective action has been taken or is
being actively and expeditiously pursued, the County Administra-
tor may place his request for termination of the franchise upon a
regular County Commission meeting agenda. The County Administra-
tor shall cause to be served upon such Franchisee, at least ten
(10) days prior to the date of such County Commission meeting, a
written notice of intent to request such termination, specifying
causes upon which the request is predicated, and the time and
place of the meeting, notice of which shall also be published at
least ten (10) days before such meeting in a newspaper of general
circulation published in the County.
c) The Commission shall consider the request of the County
Administrator and shall hear any person interested therein, and
shall determine in its discretion, whether or not any failure,
20
refusal, or neglect by the Franchisee as asserted by the Adminis-
trator is well founded or was without just cause. If the de-
clared or stated causes are not proven to be well-founded or with
just cause, the Commission shall so find. If the written charges
or causes of the County Administrator are proven to be wel1-
founded, the Commission shall then determine whether the charges
are excused by just cause. The basis and facts of the Com-
mission's determination shall be set forth in written findings by
the Commission and a copy thereof shall be promptly served on the
Franchisee.
d) If the asserted failure, refusal, or neglect alleged by
the Administrator is proven to be well-founded but also to have
been with just cause, the Commission shall direct the Franchisee
to comply therewith within such time and manner and upon such
terms and conditions as are just and reasonable. In the event
the County Administrator determines that the Franchisee has not
complied within the time set, he shall schedule a subsequent
franchise termination hearing before the Board of County Commis-
sioners providing the ten (10) day notice required in Section
16 (b) . The Board of County Commissioners shall conduct the
subsequent hearing and make findings pursuant to Section 16 (c)
and may make such determinations as are provided for in this
Section or Section 16(e).
e) If the Commission shall determine such failure, re-
fusal, or neglect by the Franchisee as asserted by the Adminis-
trator was well founded and was without just cause, then the
Commission may, by resolution, impose a reasonable penalty, or
declare that the franchise is terminated, or shall be terminated
unless there be compliance by the Franchisee within such time
period as the Commission may fix. In the event
the County Administrator determines that the Franchisee has not
complied within the time set, he shall schedule a subsequent
franchise termination hearing before the Board of County Commis-
sioners providing the ten (10) day notice required in Section
16(b). The Board of County Commissioners shall conduct the
subsequent hearing and make findings pursuant to Section 16(c)
21
and may make such determinations as are provided for in this
Section.
Section 17. Operation, Purchase, And Sale Of The Cable
System After Termination Or Expiration Of
The Franchise.
a) In the event a franchise is terminated, or upon its
expiration, the County may require the Franchisee to continue
operation for a period not exceeding twelve (12) months after the
date of the franchise termination or expiration. Unless pur-
chased or transferred, Franchisee shall have two (2) years from
the date it ceases operations to remove, at its own expense, all
portions of its cable system from all streets in a manner satis-
factory to the County. The Franchisee shall file and maintain a
surety bond with the County no later than three (3) months prior
to the cessation of its operations, in the amount of at least
$500,000.00, or such lesser amount as is agreeable to the County,
conditioned upon the faithful removal of its cable system equip-
ment and facilities as required by this Section.
b) In the event of the expiration of a franchise either
granted pursuant to this Ordinance or in existence on the effec-
tive date of this Ordinance, and after a determination that a
renewed franchise shall not be granted, or upon the termination
of a franchise granted under this Ordinance for cause, the County
shall have the right to purchase the cable system, or direct its
sale to another entity, but only at fair market value determined
on the basis of the cable system valued as a going concern but
with no value allocated to the franchise itself. Should a
dispute arise over the determination of the fair market value of
the cable system, the dispute shall be resolved by arbitration,
in accordance with the rules of the American Arbitration Asso-
ciation, as modified by the laws of the State of Florida, unless
the franchise provides another method or the parties mutually
agree otherwise.
22
Section 18. Grant Of A Renewed Franchise To Franchise
Holders.
a) At any time during the period between the 36th and 30th
months before the expiration of the franchise, regardless of
whether the franchise was granted under this Ordinance or was in
existence on the effective date of this Ordinance, the Franchis-
ee may, if desiring a renewed franchise, make a proposal to the
County Administrator. Such proposal shall be in the form and
contain the information as required in Section 2(a).
b) The County Administrator shall promptly agenda before
the Board of County Commissioners a hearing which affords the
public notice and participation for the purpose of:
1) Identifying the future cable-related communi-
ty needs and interests; and
2) Reviewing the performance of the Franchisee
under the franchise during the current term.
c) Within four (4) months of the hearing required by
Section 18 (b), the Board of County Commissioners shall hold a
public hearing, which shall include the opportunity to receive
comments from members of the public and a full and fair par-
ticipation by the Franchisee, including the right to introduce
evidence (including evidence related to issues raised in the
proceeding under Section 18 (b) ), to require the production of
evidence in possession of the County or any of its consultants or
contractors, and to question witnesses. A transcript by a
certified court reporter shall be provided at County expense. At
the conclusion of the hearing, the Board shall either grant the
proposal for a renewed franchise by ordinance, or deny the same,
but the reasons for denial shall be clearly stated on the record
and reduced to writing. In considering whether to grant or deny
a franchise renewal proposal, the Board shall consider the
following factors:
1) Whether the Franchisee has substantially
complied with the material terms of the existing
franchise and applicable law except to the extent that
23
the County has acquiesced in any departure from such
terms;
2) Whether the quality of the Franchisee's
service, including signal quality, response to consumer
complaints and billing practices, but without regard to
the mix, quality or level of cable services or other
services provided over the cable system, has been
reasonable in the light of the community's needs;
3) Whether the Franchisee has the financial,
legal and technical ability to provide the services,
facilities and equipment as set forth in the Franchis-
ee's proposal;
4) Whether the Franchisee's proposal is reason-
able to meet the future cable-related public needs and
interests, taking into account the cost of meeting such
needs and interests;
5) The economic impact upon private property
within the proposed franchise area;
6) The capacity of public rights-of-way to
accommodate the cable system;
7) The present and future use of the public
rights-of-way to be used by the cable system;
8) The potential disruption to existing users of
the public rights-of-way to be used by the cable system
and resultant inconvenience which may occur to the
public;
9) The character of the applicant; and
10) Other societal interests as are generally
considered in cable television franchising.
d) Notwithstanding Section l8(a)-(c), the Franchisee,
regardless of whether the holder of a franchise granted under
this Ordinance or in existence on the effective date of this
Ordinance, may at any time submit a proposal for a renewed
franchise, which shall be in the same form and contain the same
information as required in Section 2(a), to the County Adminis-
trator. The County Administrator shall promptly agenda the
24
proposal before the Board of County Commissioners for consid-
eration at a public hearing affording adequate notice and oppor-
tunity for comment. Following the hearing the Board may grant
the proposal for franchise renewal by ordinance, or deny the
same, based on the following factors:
1) The economic impact upon private property
within the franchise area;
2) The public need for such franchise, if any;
3) The capacity of public rights-of-way to
accommodate the cable system;
4) The present and future use of the public
rights-of-way to be used by the cable system;
5) The potential disruption to existing users of
the public rights-of-way to be used by the cable system
and the resultant inconvenience which may occur to the
public;
6) The character and financial ability of the
franchise applicant to perform;
7) Other societal interests as are generally
considered in cable television franchising.
Section 19. Overlapping Franchises.
The Board shall not grant any overlapping franchises for
cable service on terms or conditions more favorable or less
burdensome than those of any existing franchise except as au-
thorized by F.S. 166.046(4) and (5).
Section 20. Any and all legal expenses, including attor-
neys' fees, incurred by the County, including those incurred in
any proceedings before the Federal communications Commission, in
the enforcement of the terms of this Ordinance or any franchise
granted pursuant thereto shall be the responsibility and
obligation of the Franchisee, but only if a judgment, settlement,
stipulation or other determination or result is rendered or
reached which is favorable to the County.
Section 21. Nothing in this Ordinance shall be construed
as affecting the terms of any cable television franchise existing
on the effective date of this Ordinance except to the extent that
25
such Franchisees, if desiring a renewed franchise, must seek such
a renewal pursuant to this Ordinance.
Section 22.
If any section, subsection, sentence, clause
or provision of this Ordinance is held invalid, the remainder of
this Ordinance shall not be affected by such invalidity.
Section 23.
All ordinances or parts of ordinances in
conflict with this Ordinance are hereby repealed to the extent of
said conflict.
Section 24.
The provisions of this Ordinance shall be
included and incorporated in the Code of Ordinances of the County
of Monroe, Florida, as an addition or amendment thereto, and
shall be appropriately renumbered to conform to the uniform
numbering system of the Code.
Section 25.
This Ordinance shall take effect immediately
upon receipt of official notice from the Office of the Secretary
of State of the State of Florida that this Ordinance has been
filed with said Office.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the
'IlA
day of ~~;J
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
, A.D., 1989.
By
;?J/~ r1e1f1"
Mayor a~rman
(SEAL)
At tes t :DANNY ~ ~QLHAG:El ~k
BY
vt2L~,,~~
ADOPTED:
/- /- fff
EFFECTIVE DATE:
~p /;:
/- /2 - X"9
/9~?
FILED WITH SECRETARY OF STATE:
26
J)annp 1.. l&oll)age
BRANCH OFFICE
3117 OVERSEAS HIGHWAY
MARATHON. FLORIDA 33050
TEL. (3051 743-9036
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL, (305) 294.4641
April l2, 1989
BRANCH OFFICE
P.O. BOX 379
PLANTATION KEY, FLORIDA 33070
TEL. (3051 852.9253
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
~ 0'2'
\~"
" ~
Mrs. Liz Cloud, Chief
Bureau of Administrative Code and Laws
Department of State
The Capitol
Tallahassee, Florida 32301
o.
Dear Mrs. Cloud:
Enclosed please find a certified copy of Ordinance
No. 009-1989 creating procedural and substantive standards
for the granting of cable television system franchises in
the unincorporated Area of Monroe County by providing defi-
. , '
n~tlons; etc.
This Ordinance was adopted by the Monroe County
Board of County Commissioners at a Regular Meeting in formal
session on April 4, 1989.
Please file for record.
Very truly yours,
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
cc: Municipal Code Corp.
Mayor Michael Puto
Commissioner Wilhelmina Harvey
Commissioner Douglas Jones
Commissioner Eugene Lytton
Commissioner John Stormont
Sheriff Allison DeFoor
County Attorney Randy Ludacer
County Administrator Tom Brown
File
.'
"
--
P 027 136 11.6
RECEIPT FOR CERTIFIED
NO INSURANCE COVERAGE PROVIOED
NOT FOR INTERNATIONAL MAil
Certified Fee
SpeCial Delivery Fee
Restricted Delivery Fee
.
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Q.
"
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.SENDER: Complet. Item. 1 end 2 when eckIltlonel MrYIc.. .... dMlNd, 8fMl eomplete IMm. 3
end 4. "
Put your eddress In the "RETURN TO" Spece on the rever.e .Ide, Fellure to do thl. will prevent thl.
cerd frombe'ng returned to ,you. f
delivered to end the dete of dellv,rv. F,or eddltlonel f_ the OIlOwlng Ie, rv c.. er.ev.n.b'e. Con.ult
po.tme.ter for fee. end check bOx I..) for eddltlone' .ervlcel.) requ8lt8d.
,. 0 Show to whom dellvered,dete, erld .ddr....'. .ddr.... 2. 0 ReStricted Denvery
" t(Extracharge)t, ' t(Extracharge)t
3. Article Addressed to: , - - 4. Article Number
~~\'~' "'~N' ~b':l.-'\ \~Co \\~
~:~.~-~ ~.~~......, lr~~~.=:ce:
~, . ~ ,'"'\~ -~- JS.certifled
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o Insured
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5. Signature - Addressee
X
6.
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Alwavs obtain signature of addressee
or d DATE DELIVERED.
8. Ad ee's Address (ONL Y if
re({llelJted and fee paid)
Signature - Agent
.. 't.
7.
APR 17 1989
PS Form 3811, Mar. 1987
* U,S.G.P.O. 1987-178-268
DOMESTIC RETURN RECEIPT
-t-
~
...~
DIVISION OF ELECTIONS
Room 1802. The Capitol
T al1ahas~el?, Florida 32399-0250
(904) 488-8427
April 18, 1989
Honorable Danny L. Kolhage
Clerk of Circuit Court - Monroe County
500 Whitehead Street
Key West, Florida 33040
,
Attention: Rosalie L. Connolly, Deputy Clerk, Courthouse
Dear Mr. Ko1hage:
Pursuant to the provisions
this will ack~owledge:
1. Receipt of letter/s of
and certified copy/ies
County Ordinance(s)
of Section 125.66, Florida Statutes,
April 12. 1989
of Monroe
89-9 and 89-10
2.
Receipt of
relative to:
County Ordinance(s)
(a)
which we have numbered
( b )
which we have numbered
3. We have filed ~~/these ordinances in this office
on April 17, 1989. (2:44 pm)
4. The original/duplicate copy/ies showing the filing date
is/are being returned for your records.
Since:-ely it fl_ (\
L~~
Bureau of Administrative Code
LC / mb