ORDINANCE NO. 16-06
AN ORDINANCE OF THE TOWN OF INDIALANTIC, BREVARD COUNTY, FLORIDA RELATING TO CABLE TELEVISION; MAKING FINDINGS;REPEALING SECTIONS19-1 THROUGH 19-18, INCLUSIVE, CODE OF ORDINANCES OF INDIALANTIC, FLORIDA; REPEALING THE TITLE, AUTHORITY, AND APPLICATION OF THE INDIALANTIC CABLE TELEVISION CODE; REPEALING DEFINITIONS AND RESERVATIONS OF AUTHORITY; REPEALING RATE REGULATION AUTHORITY; REPEALING THE APPLICATION PROCEDURE FOR A FRANCHISE; REPEALING PROVISIONS RELATING TO FRANCHISE GRANT ANDFRANCHISE OPERATION; REPEALING PROVISIONS RELATING TO TRANSFER OF OWNERSHIP OR CONTROL AND FRANCHISE FEES;REPEALING PROVISIONS RELATING TO FOREFEITURE OR REVOCATION AND PERFORMANCE BONDING; REPEALING PROVISIONS RELATING TO THE REGULATORY AUTHORITY OF THE TOWN OVER CABLE TELEVISION; REPEALING PROVISIONS RELATING TO LIABILITY, INSURANCE, AND INDEMNIFICATION; REPEALING PROVISIONS RELATING TO DESIGN, CONSTRUCTION, AND STANDARDS RELATING TO SERVICE TO SUBSCRIBERS; REPEALING PROVISIONS RELATING TO CABLE TELEVISION FRANCHISEE MAINTENANCE OF BOOKS AND RECORDS; PROVIDING A SEVERABILITY/INTERPRETATION CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, exercising its home rule powers, the Town of Indialantic Town Council adopted a cable television regulation program in 1994. See Ord. No. 94-8, Code of Ordinances of Indialantic, Florida;
WHEREAS, the authority of the Town and other local governments to grant franchises for cable television service and to regulate cable television services has been specifically preempted to the State of Florida pursuant to Sections 610.102 and 610.104, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to levy franchise fees, taxes, charges, or other exactions is prohibited, except as permitted by statute. See §§202.24(2)(a)1. and 610.106, Florida Statutes;
WHEREAS, the Town is prohibited from negotiating terms and conditions related to franchise fees or the definition of gross revenues or other definitions or methodologies related to the payment or assessment of franchise fees on providers of video services. See §202.24(2)(a), Florida Statutes;
WHEREAS, the authority of the Town and other local governments to discriminate against cable television state-issued franchises with regard to the placement of a network in the right-of-way, access to a building or other property, and regulating utility pole attachments and conditions has been prohibited by the Florida Legislature pursuant to Section 610.113, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to impose customer service standards on cable television providers has been expressly preempted pursuant to Section 610.108, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to require that a cable television provider’s office be located in the municipality is preempted pursuant to Section 610.114, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to require reports and documents with the local government that are not related to the use of the public right-of-way is preempted pursuant to Section 610.114, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to require cable television providers to file information concerning their capacity or technical configuration of this facilities is prohibited pursuant to Section 610.114, Florida Statutes;
WHEREAS, the authority of the Town and other local governments to inspect a cable television state-issued certificate holder’s business records or to approve transfers of ownership or control of a cable television business is prohibited pursuant to Section 610.114, Florida Statutes; and
WHEREAS, the Town Council finds it in the public interest to revise its Code of Ordinances and to repeal certain obsolete provisions relating to the regulation of cable television services,
BE IT ENACTED BY THE TOWN OF INDIALANTIC, FLORIDA:
SECTION 1. That Section 19-1 of the Code of Ordinances of Indialantic, Florida, is hereby repealed:
Sec. 191. Title. (Repealed.)
This chapter may be cited as the “Indialantic Cable Television Code.”
SECTION 2. That Section 19-2 of the Code of Ordinances of Indialantic, Florida, is hereby repealed:
Sec. 192. Authority; application. (Repealed).
This chapter is enacted under the home rule powers of the town to promote the public health, safety, welfare, and economic order of the community, by providing regulations for the installation, rates, and minimum customer service standards of cable television systems within the town.
SECTION 3. That Section 19-3 of the Code of Ordinances of Indialantic, Florida, is hereby repealed:
Sec. 193. Definitions. (Repealed).
When used in this chapter, the following terms shall be defined as indicated below. Terms used in this chapter but not defined below which are defined in the Act shall have the meanings set forth in 47 U.S.C. 522.
“Act” shall mean the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, as further amended by the Cable Television Consumer Protection and Competition Act of 1992, codified in 47 U.S.C. 521 et seq.
“Applicant” shall mean all officers, agents, employees and representatives seeking an approval, grant, or permit under this chapter.
“Cable system” means a closed transmission path and associated signal generation, reception and control equipment and other communications equipment, including any head end, antenna, wire, cable, line, tower, pole, amplifier, converter, fiber optic line, that is designed to provide cable service which includes video programming and other services and which is provided to multiple subscribers within a community, but such term does not include: (I) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public rights-of-way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (iv) any facilities of any electric utility used solely for operating its electric utility systems.
“Channel” means a frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals.
“Complaint” means a complaint that results in a service call or written indication from a subscriber of a problem with any aspect of cable service.
“Converter” means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view signals delivered at designated converter dial locations at the set or by remote control.
“Days” means calendar days unless otherwise specified.
“FCC” shall mean the Federal Communication Commission and any legally appointed or elected successor.
“Franchise” shall mean an initial authorization or renewal thereof, voluntarily entered into by the franchisee and issued by the town, whether such authorization is referred to as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system in the town. All franchises shall be nonexclusive. Any such authorization, in whatever form granted, shall not mean or include any franchise or permit required for the privilege of transacting and carrying on a business within the town as required by other code provisions and ordinances of the town.
“Franchise application” shall mean an application for an initial award or renewal of a franchise.
“Franchise area” means the portion of the town for which a franchise is granted under the authority of this code. If not otherwise stated in the franchise, the franchise area shall be the corporate limits of the town, including all territory thereafter annexed to the town. The franchisee shall be notified in wiring of any annexations to the town.
“Franchisee” shall mean the person, whether natural, corporate, or otherwise, domestic or foreign, to whom a franchise is granted by the town under this chapter, and the lawful successor, transferee, or assignee of such person.
“Franchise fee” means the percentage, as specified by this code, of the franchisee’s gross annual revenues derived from the operation of the cable system in the Town and which is payable in exchange for the rights granted pursuant to this code and the franchise.
“Gross annual revenues” means all receipts derived directly or indirectly from the operation of the system in the franchise area, including but not necessarily limited to the supplying of regular subscriber service, that is, monthly service charges, installation charges, disconnect and reconnect fees, fees derived and collected from access and origination channels, all revenues received by the franchisee for Pay-Per-View, leased channels, premium channels, pay television, and other equipment and services provided over the cable system in the Town to subscribers. The phrase “gross annual revenues” shall not include any fees or taxes which are imposed directly on any subscriber thereof by any governmental unit or agency, and which are collected by the Franchisee on behalf of that entity. Nor shall the phrase include any debts for service or equipment owed but uncollected by the Franchisee.
“Installation” shall mean the connection of the system from feeder cable to the subscribers’ terminal(s).
“Monitoring” means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever.
“Newspaper of general circulation” shall mean a newspaper appropriate for the placement of legal notices as defined by chapter 50, Florida Statutes.
“Public right-of-way” means the surface, the air space above the surface, and the area below the surface of any public street, sidewalk, bridge, waterway, utility easement, or other public property, which shall entitle the town and the franchisee to the use thereof for the purpose of installing and maintaining the franchisee’s cable television system. No reference herein, or in any franchise, to the “public right-of-way” shall be deemed to be a representation or guarantee by the town that its title to any property is sufficient to permit its use for such purpose, and the franchisee shall, by its use of such terms, be deemed to gain only such rights to use property in the town as the town may have the undisputed right and power to give.
“Subscriber” shall mean a person lawfully using or receiving cable services on a particular cable system from a franchisee.
“Transfer” means the disposal by the franchisee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or more at one time of the ownership or controlling interest in the system, or thirty-five percent (35%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert or a change in control.
SECTION 4. That Section 19-4 of the Code of Ordinances of Indialantic, Florida, is hereby repealed:
Sec. 194. Reservations. (Repealed.)
(a) Generally. In addition to the specific reservations of the town set forth herein, the town council hereby reserves unto the town the matters set forth in this section.
(b) Police powers. In accepting a franchise, the cable operator acknowledges that its rights thereunder are subject to the police powers of the town to adopt and enforce ordinances, resolutions, policies, and practices necessary to the convenience, health, safety, welfare, and economic order of the public, and it agrees to comply with all applicable ordinances, resolutions, rules, regulations, policies, and practices by the town pursuant to such power. Any inconsistency between, or ambiguity created by the relationship between, the provisions of this chapter and any other contemporaneous or future lawful exercise of the town’s police powers shall be resolved in favor of the latter.
(c) The Act.
(1) The town shall have all powers not otherwise preempted by the act, the regulations of the FCC, Section 166.046, Florida Statutes, or other applicable Federal or State of Florida law or regulation, and shall have all powers conferred on a franchising authority or allowed by the act which are not addressed in this chapter.
(2) Should any amendment be made to the act or should any provision thereof be held to be invalid or unenforceable by a court of competent jurisdiction which materially affects the town’s authority with respect to the regulation of this chapter, the town council shall have the right to amend this chapter to the extent it deems appropriate, and the existing franchise and license shall be subject to such amendment.
SECTION 5. That Section 19-5 of the Code of Ordinances of Indialantic, Florida, is hereby repealed:
Sec. 195. Rate Regulation. (Repealed).
(a) The town may regulate rates charged by cable television operators for the basic tier of cable television service and related equipment in a manner that is consistent with the act and the rules and regulations prescribed by the FCC pursuant to the act, all as amended from time to time.
(b) Should a franchisee desire to change any rate or charge, it shall submit a written application setting forth the proposed change in charges and effective date of such change to the town manager who shall evaluate the proposal in a manner consistent with FCC cable television rate regulation standards and report this evaluation to the City Council. To the extent that Federal or State law does not prohibit the setting of reasonable fees for the review of any rate change applications, the town council is hereby authorized from time to time to set reasonable fees for the review of any rate change application. Application review fees, if any, shall be set by adoption of a resolution of the council.
(c) During rate regulation proceedings, the town shall ensure that any rate or charge established for cable television service, equipment, repair and installation shall be reasonable, just and fair. The town shall also ensure a reasonable opportunity for consideration of the views of interested parties, including but not limited to the town, the cable operator, subscribers, and the residents of the franchise area.
(d) The town council shall conduct a public hearing to determine whether or not the rate(s) or proposed rate increase(s) are reasonable and consistent with the act and regulations implementing the act. The town manager’s report shall be placed before the town council at the public hearing. At such hearing evidence shall be taken and received on whether the proposed rate or change is consistent with FCC standards.
(e) Notice of rate regulation proceeding.
(1) At least ten (10) days prior to the hearing referenced in subsection (d), the town shall publish in a local newspaper of general circulation, a public notice of the intent of the town council toconduct a public proceeding on basic service tier rate and/or charges for cable service related equipment. The notice shall identify the purpose of the hearing, the date, time, and place of the hearing, the place and times when interested parties may review the cable operator’s application and supporting documentation, and a notice that parties desiring to appeal any decision made as a result of the proceeding will need to ensure that a verbatim transcript is prepared which is the responsibility of the person seeking to appeal. At least ten (10) days before the town council’s hearing referenced in subsection (d), the town clerk shall post a copy of the foregoing notice in a conspicuous place in the town hall and deposit a copy of the notice in the U.S. mail first class, postage prepaid addressed to the cable operator. The address utilized shall be the address of the cable operator as depicted on the cable operator’s application for rate approval or rate increase. Failure of the cable operator to receive the notice shall not invalidate action taken by the town council with regard to the application.
(2) Consistent with FCC regulations, at least thirty (30) days prior to the franchisee’s proposed effective date for a rate increase, the franchisee shall notify each subscriber, in writing, of the proposed rate change, the proposed effective date of the rate change, and the name and address of the franchising local government.
(3) Said public notice specified above in subsection (e)(l) shall explain, among other things, the nature of the rate review in question; that any interested party has the right to participate in the proceeding; that public views may be submitted in the proceeding, describing how they are to be submitted; that a decision concerning the reasonableness of the cable television rates in question will be governed by applicable rules and regulations of the FCC; and that the decision of the town is subject to review by the FCC.
(f) If the town council or the town manager cannot determine the reasonableness of the proposed rate increase within the time period permitted by the FCC rules and regulations, either the town council or the town manager may toll the effective date for the proposed rates for an additional period of time as permitted by the FCC rules and regulations, and issue any other necessary or appropriate order and give public notice accordingly.
(g) In determining whether a rate or charge is reasonable, just and fair, the town council shall apply the cable television rate regulation criteria established by the Federal Communications Commission (FCC) by rule as amended from time to time.