Resolution 074-1999
RESOLUTION
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MONROE COUNTY
RESOLUTION NO. '074-1999
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY,
FLORIDA, CONDITIONALLY APPROVING
THE CHANGE OF CONTROL OF THE TCI
CABLEVISION OF FLORIDA, INC. CABLE
TELEVISION FRANCHISE FROM TCI TO
AT&T CORP.
WHEREAS, on September 8, 1998, Monroe County received notification of the proposed
change of control of the TCI Cablevision of Florida, Inc. ("TCI-FL") cable television franchise and
TCI to AT&T;
WHEREAS, pursuant to Ordinance No. 009-1989 of Monroe County, and the franchise
agreement, no such change of control may occur without prior approval of the Board of County
Commissioners;
WHEREAS, the County has required that the applicant fulfill the obligations of Section 14
of the County Cable Communications Code and Sections 16 of the cable television franchise and
provide information on the proposed transaction including details on the legal, financial, technical
and other qualifications of the transferee and on the potential impact of the transfer on subscriber
rates and service;
WHEREAS, under FCC Rules, 47 CFR Section 76.502, Monroe County has 120 days from
the date of submission of a completed FCC Form 394, together with all Exhibits, and any additional
information required by the franchise agreement or applicable state or local law, to act upon an
application to sell, assign, or otherwise transfer controlling ownership of a cable system;
WHEREAS, it is the County's position that the 120 days time period to act upon the
application of TCI has not commenced due to the fact that TCI has not submitted a completed FCC
Form 394 together with all exhibits and all information required by the franchise agreement;
WHEREAS, the County shall act upon TCl's application on February 10, 1999 pursuant to
TCl's express consent that the County waives no rights under Federal, state and local law and the
Ordinance and franchise by scheduling consideration of the transfer on February 10, 1999, and
pursuant to TCl's express consent that the date February 10, 1999 is not after expiration of the 120
day review period provided for in Federal law;
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WHEREAS, the County has required written acceptance from TCI - FL and AT&T Corp. of
the terms and conditions of this Resolution by affidavit as a condition precedent to the Adoption of
this Resolution (affidavit attached hereto as Exhibit A); and
WHEREAS, in the event the proposed transaction between TCI and AT&T Corp. is not
consummated or does not reach final closure for any reason, or in the event such closure is reached
on terms substantially or materially different to the terms described in the FCC Form 394 and
exhibits thereto, this Resolution, together with the affidavits of acceptance submitted by the proposed
transferor and transferee, shall be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, THAT:
1. To the extent required, Monroe County hereby conditionally consents to the change
of control of Monroe County Cable Television Franchise from TCI to AT&T Corp.
2. That the consent granted herein does not constitute and should not be construed to
constitute a waiver or release of any obligations of TCI under Ordinance No.009-1989 of Monroe
County and the cable television franchise.
3. That the consent granted herein does not and should not be construed to constitute
a waiver of any right of the County under Ordinance No.009-1989 of Monroe County and the cable
television franchise; and further, this consent shall not prejudice the County's rights with respect to
the enforcement, renewal or transfer of the current cable television franchise and any amendments
thereto.
4. That the consent herein granted applies exclusively to the following communities, as
identified in the Form 394 which TCI submitted to the County:
CUIN FL 0366 (Little Torch Key)
CUIN FL 0469 (Monroe-UC, KW)
CUIN FL 0617 (Key Largo)
CUIN FL 0991 (Ocean Reef)
CUIN FL 1182 (Monroe County, Marathon (KC))
CUIN FL 1191 (Monroe County (Martha SW))
5. That the consent herein granted specifically excludes CUIN FL 0973 (Islamorada).
6. That the consent herein granted is conditioned upon (a) TCl-FL's assurances set forth
in its affidavit submitted to the County and attached hereto as Exhibit A; (b) TCI-FL's Remedial
Plan to be submitted to the County as pursuant to paragraph 7 herein; and (c) TCI - FL' s submission
to the County of cost recovery for all costs incurred by the County related to the transfer process as
required by Section 20 of Ordinance No. 009-1989 no later than thirty (30) days after the effective
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date of this Resolution. The costs are estimated at Fifteen Thousand Dollars ($15,000.00).
7. That the consent granted herein is conditioned upon Franchisee providing to Monroe
County, within thirty (30) days of the effective date of this Resolution, a Remedial Plan acceptable
to the County, which shall include liquidated damages for failure to comply with Section 10.1 and
21.1 of the Franchise, to specifically address Franchisee's provision of same or better features as it
offers to any other county or municipality, pursuant to Section 10.1, and a state-of-the-art system
pursuant to Section 21.1 ofthe Franchise, to the subscribers of Monroe County. The Remedial Plan
shall include measures for increasing the number of channels available in Monroe County to that
level offered to subscribers in the Key West franchise within a reasonable time pursuant to
Franchisee's best efforts. The Plan shall also describe the measures to be undertaken to complete
the system upgrade of the entire franchise area to 750 MHZ, and to provide an additional educational
channel, equipment, connections and access services as further described in TCl-FL's Affidavit
attached hereto as Exhibit A.
8. That the County hereby reserves all of its rights to enforce the provisions of the
Franchise, with specific respect to the Franchisee's failure to comply with Section 10.1 of the
Franchise. The County hereby authorizes the County Administrator to issue a notice of violation,
effective as of the date of this Resolution, for failure to timely comply with Sections 10.1 and 21.1
of the Franchise. Penalties shall accrue at the rate of Two Thousand Dollars ($2,000.00) per day
until Franchisee's completion of the system upgrade referenced above in paragraph 7.
9. In the event the Franchisee meets its obligations of providing the Remedial Plan to
the County within the prescribed time period and is negotiating in good faith with the County to
adhere to Sections 10.1 and 21.1., the County agrees that any liquidated damages assessed or
accruing in relation to these obligations will be held in abeyance. Any failure by Franchisee to fulfill
the obligations to timely provide the Remedial Plan and to negotiate in good faith will result in the
re-institution of said liquidated damages effective as of the notice of violation set forth in this
Resolution.
10. That the consent herein granted is limited to the right to provide cable services, and
to the extent not otherwise prohibited by applicable law, TCl-FL shall be required to obtain any
lawful authorization from the County prior to its providing any other services within the County.
11. That this Resolution shall have the force and effect of continuing the agreement
between TCl-FL and Monroe County, Florida, the Franchise Authority.
12. That the County hereby reserves all of its rights pursuant to Federal, state and local
law including, but not limited to the rights in (a) the franchise renewal process including, but not
limited to, the right to consider violations of the franchise by TCl-FL; (b) the franchise transfer
process including, but not limited to, the right to act upon any application to sell, assign or otherwise
transfer controlling ownership of the cable system; and (c) the enforcement of the current cable
television ordinance No. 009-1989, as amended and the current cable television franchise as
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amended.
13. That the consent herein granted is an express non-waiver and reservation of Monroe
County's rights and authority with respect to enforcement of TCI-FL's compliance with applicable
law induding, but not limited to, Monroe County's Cable Television Ordinance No. 009-1989 and
franchise agreement. TCI-FL, and to the extent required by the franchise or allowed pursuant to
applicable law its parent, affiliates and subsidiaries, shall be liable for any and all violations of said
law and agreement notwithstanding whether any such violation arose prior to the effective date
hereof. The County's approval of the transaction shall in no way be deemed a representation by the
County that TCI-FL is in compliance with its obligations under Cable Television Ordinance No. 009-
1989 or the cable television franchise agreement.
14. That the consent granted herein is subject to TCI-FL's compliance with all other
applicable legal requirements and the County does not waive and expressly reserves the right to
enforce full compliance with applicable ordinance and franchise requirements, whether or not any
non-compliance that may be determined arose before or after the change of control of the TCI-FL
cable television franchise from TCI to AT&T Corp.
15. That this Resolution shall become effective upon the date of its adoption herein.
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~ASSED AND ADOPTED AFTER READING BY TITLE ONLY THIS II~DA Y OF
.I.t.l'OLA ;j , 1999.
MONROE COUNTY, FLORIDA
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MAYOR
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DRAFf DATE 02/10199
EXHIBIT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF RESOLUTION NO. 99- 074
BEFORE ME, appeared the undersigned authority who having been duly sworn upon his
oath deposes and states that:
1. The affiant is the Executive Vice President, Government Relations of TCI
Cablevision of Florida, Inc., and is the person authorized to execute this document on behalf of the
Tel Cablevision of Florida, Inc.
2. The affiant js submitting this affidavit as a condition precedent to the transfer of
control of Tel Cablevision of Florida, Inc. (''Tel-SF') cable television franchise from TCI to
AT&T.
3. Affiant attests that it is the CU1.lent franchisee in Monroe County, Florida and that the
Franchisee shall comply with the terms of this acceptance.
4. Franchisee and/or its successors in interest shall reimburse the County for all costs
incurred by the County related to the transfer process as required by Section 20 of Ordinance No.
074-
009-1989 no later than thirty (30) days after the effccti'le date of Resolution No. JJ 99_ or Resolution
074- Fj;f=1"'fE7'i
No. ~999 shall be deemed null and void. The costs are estimated at -=Pwt;nLY Inousand DlJl1....~
~6,600.uu). t f ~ m tif)
5. Affiant shall submit a written log listing the date and description of each and every
subscriber complaint. all service interruptions, requests for repair and the date and disposition thereof
pursuant to Section 36.5 of the franchise agreement no later than thirty (30) days from the Effective
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Date of Resolution No. 99-0~4
6. That Affiant shall provide to Monroe County, within thirty (30) days of the effective
99-074
date of Resolution No. ----J a Remedial Plan acceptable to the County, which shall include
liquidated damages for failure to comply with Sections 10.1 and 21.1 of the Franchise, to specifically
address Franchisee's provision of same or better features as it offers to any county or municipality,
pursuant to Section 10.1, and a state-of-the-art system, under Section 21.1 of the Franchise, to the
subscribers of Monroe County. The Remedial Plan shall include llJeasures by which Franchisee
shall increase the number of channels available in Monroe County to that level offered to subscribers
in the Key West franchise within a reasonable time pursuant to Franchisee's. The Plan shall also
describe the measures to be undertaken to complete the system upgrade of the entire Franchise Area
to 750 MHz including the provision of an additional educational channel at no expense to the
County, and on tenus and conditions similar to the teuns and conditions provided in Section 29.2
of the Franchise Agreement.
7. In the event the Franchisee meets its obligations of providing the Remedial Plan to
the County within the prescribed time period and is negotiating in good faith with the County to
adhere to Sections 10.1 and 21.1.) the County agrees that any liquidated damages assessed or
accruing in relation to these obligations will be held in abeyance. Any failure by Franchisee to fulfill
the obligations to timely provide the Remedial Plan and to negotiate in good faith will result in the
re-institution of said liquidated damages effective as ofthe notice of violation set forth in Resolution
No. 99-Q74
8. Affiant shall provide the County, in relation to Affianes provision of an educational
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channel as described in Paragraph 6 above, aU access services, connections, and programming
equipment in addition to, but consistent with., the provision of access services, connections and
programming equipment for a government channel pursWlIlt to Section 30 and 31 of th.e Franchise
Agreement.
9. Affiant shall, at all times, abide by and be in compliance with any and all enhanced
customer service standards, as such standards may be promulgated, amended. or otherwise modified
by the County pursuant to applicable law.
10. Upon request of the County~ Affiant shall provide all information required pursuant
to Section 16 of the Franchise Agreement.
11. At the request of the City, Franchisee shall demonstrate compliance with the technical
obligations set forth in the Franchise including, but not limited to, Sections 10, 20, 21 and Appendix
A or in the altemative, Franchisee shall provide the County with an acceptable Plan of Compliance.
12. Franchisee shall cooperate in any .franchise fee compliance inquiry in connection with
any possible franchise fee arrearages that may have arisen or that may arise through the exclusion
of certain revenue streams pursuant to Section 20.3 of the Franchise Agreement. All records
necessary for the County to perform a franchise fee compliance audit shall be made available for
inspection within Monroe County.
13. Affiant attests that Franchisee shall be bound and liable for any arrearages, known
or unknown, regardless of whether arrearages occurred before or after the effective date of the
transfer in franchise fees due the County resulting from a franchise fee compliance audit:, regardless
ofwhetber such audit is completed prior to the effective date hereo[ Franchisee's failure to timely
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cure any undexpayments within thirty (30) days of the County's notice of violation to the Franchisee
shall result in its liability for liquidated damages in the amolUlt of$50,000.00, plus all costs incurred
by County in seeking appropriate relief. Compliance herewith shall be a condition of the approval
granted in Resolution No. ~O 74.
14. In the event Franchisee offers cable Internet services over its cable system in Monroe
COWlty, it shall, taking into account technical feasibility, provide access to its cahlemodem platform
to providers of.futemet access and online senrices on comparable terms and conditions to those terms
and conditions on which access is provided by Fmnchisee in any other community. Franchisee shall
comply with all lawful requirements with respect to access to Franchisee's cable modem platfonn
for providers of Internet access and online services.
15. Franchisee shall comply with all other applicable legal requirements, including
carriage of broadcast digital and high definition television signals, and interconnectif of the cable
system with potential competitors for purposes, among other things, of sharing cable PEG channels
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upon request of the County as required by the Franchise Agreement or applicable law.
16. To the ~xtent not prohibited by applicable law, the Franchisee agrees that cable
Internet services, including, but not limited to @ Home, Roadrunner and Media Express or similar
ser:vices, provided by the Franchisee, its parent, affiliates or subsidiaries, over the cab~ system shall
be deemed "cable services" as provided under Title VI of the Communications Act of 1934, as
amended. Revenues received by Franchisee, and to the extent consistent with the FranchiBe
Agreement and not specifically prohibited by applicable Law, its parent, affiliates, Of subsidiaries,
from such services provided over the Franchisee's cabl~ system, including, but not limited to, cable
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modem equipment, advertising and sales revenues, shall be included within the definition of gross
revenues for the purposes of the franchise fee calculation to ~e maximum extent required by the
Franchise Agreement and consistent with applicable law. It is the intent of the parties that this
paragraph applies no more broadly than. the existing cable television franchise with respect to other
cable services.
17. Franchisee acknowledges that the Legislative Ffistory of the 1992 Cable Act
contemplates that the County may address any deficiencies in sice, including ~-oompliance,
at the time of any transfer or change of control of the franchise. The Franchisee agreef to ensure that
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it asSllIl1es responsibility for any and all non-compliance under the current franchise that may now
exist or may later be discovered. to have existed during the term oftb.e franchise eveJ if prior to the
closing of the transfer of control.
18. Franchisee unconditionally accepts all terms and conditions ofResolut;ion No. 99.07.4
19. This exhibit A may be signed in counterparts.
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FURTHER AFFIANT SAYETHNAUGHT.
By:
AT&T CORP. hereby accepts the terms and
conditions of this affidavit and Resolution No.
o 7 4-19 9 9 and agrees to do everything necessary to
ensure compliance therewith
STATE OF
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COUNlY OF
BEFORE ME, the undersigned authority, personally appeared . who
is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose therein
expressed.
WITNESS my hand and official seal in the County and Staty last aforesaid this _ day of
. 1999.
NOTARY PUBLIC, State of
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My Commission expir;s: