An Ordinance of the City of Palm Bay, Brevard County, Florida, Granting a Non-Exclusive Franchise to Time Warner Entertainment-Advance/Newhouse Partnership D/B/A Time Warner Cable, Its Successors and Assigns to Construct, Operate and Maintain a Cable Television System in the City of Palm Bay, Brevard County, Florida; Setting Forth Conditions Accompanying the Granting of This Franchise; Providing for Termination of the Franchise; Providing for Repeal; Providing an Effective Date.
WHEREAS, the City Council of the City of Palm Bay, Florida, on January 17, 1980, adopted Ordinance No. 80-2, as amended by Ordinance No. 85-5, which provided for the construction, operation, and regulation of a cable television franchise within the City of Palm Bay;
WHEREAS, pursuant to Resolution 92-17, the City Council of the City of Palm Bay, Florida consented to the assignment of the above-mentioned cable franchise agreement to Time Warner Entertainment Company, L.P.;
WHEREAS, pursuant to Resolution 95-08, the City Council of the City of Palm Bay, Florida consented to the transfer of the above-mentioned cable franchise agreement to Time Warner Entertainment - Advance/ Newhouse Partnership;
WHEREAS, the franchise agreement granted under Ordinance 80-2, as amended by Ordinance No. 85-5, Resolution No. 92-17, Ordinances No. 95-02, and Resolution 95-08, is scheduled to expire on May 16, 1995;
WHEREAS, due to the growth and development of cable systems and technologies, the City of Palm Bay has conducted a revision of its cable television regulations and renegotiated the franchise authorized under Ordinance No. 80-2, as amended by Ordinance No. 85-5, Resolution No. 92-17, Ordinances No. 95-02, and Resolution 95-08; and
WHEREAS, after conducting an advertised public hearing, the City Council of the City of Palm Bay has found that it will promote the public health, safety, and welfare of the citizens of Palm Bay to approve the franchise agreement with Time Warner Entertainment - Advance/Newhouse Partnership;
Now, Therefore, Be It Enacted by the City Council of Palm Bay, Florida:
Section 1. Short Title.
This Ordinance shall be known and may be cited as the “Cable Television Franchise Ordinance.”
Section 2. Definitions.
For the purpose of this Ordinance, the following terms, phrases and words shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and vice versa. The word “shall” is always mandatory:
(a) City is the City of Palm Bay, Florida.
(b) Company is the Time Warner Entertainment - Advance/Newhouse Partnership; or anyone who succeeds in accordance with the provisions of this franchise.
(c) Council is the City Council of Palm Bay, Florida.
(d) Person is any person, firm, partnership, association, corporation, company or organization of any kind.
Section 3. Franchise Granted.
There is hereby granted by the City to the Company a non-exclusive right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over or under the streets, alleys, easements, public ways, and public places now laid out in the City, poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the City of a cable television system for the transmitting of the television and other signals either separately or upon or in conjunction with any public utility maintaining the same in the City with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, easements and public ground places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a cable television system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections in compliance with Chapter 179 of the Palm Bay Code of Ordinances, entitled Streets and Other Rights-of-Way, and all amendments made thereto. Any and all cables to be constructed under any paved street or alley, or other right-of-way shall be accomplished by the jacking of an underground pipe or conduit and under no circumstances shall any cable be constructed under a paved street, alley or other public way by digging or excavating from the surface. The right herein granted for purposes herein set forth shall not be exclusive and the City reserves the right to grant a similar use of said streets, alleys, easements, public ways and places to any persons or entities at any time during the period of this franchise for the operation and maintenance of other cable television systems.
Section 4. Conditions for Franchise Grant.
For a new applicant, not one already operating a cable television system under a franchise with the City or a franchisee seeking a renewal, the City may grant a franchise to operate a cable television system only when the Company has furnished the City with the following:
A. A written application to the City;
B. The name, address and form of business of the applicant; addresses and names and occupations of its officers, directors and major stockholders, and the names and addresses of any parent or subsidiary companies.
In addition thereto the Company shall furnish the City with the following:
1. A list of all other cable television systems, if any, in which the Company (or any partner or major stockholder of applicant) has a substantial interest, stating the location, approximate number of homes served, and the name and address of the local franchising body.
2. A thorough description of the proposed cable television system to be installed and operated; the manner in which the Company proposes to construct, install, maintain and operate the same and the extent and manner in which existing or future poles or other facilities of public utility companies will be used in the proposed system, together with a construction schedule.
3. A schedule of all proposed rates and charges to all classes of subscribers and a copy of the proposed service agreement between the applicant and its proposed subscribers.
4. A copy of any contract that may exist between the Company and any public utility providing for the use of such utility's property, such as pole lines or conduits.
5. A statement setting forth all agreements and understandings, whether written, oral, or implied, between the Company and any other person with respect to the proposed franchise or the proposed cable television operation.
6. An estimate of the cost of constructing the Company's proposed system and a financial statement prepared in a form satisfactory to the City showing the Company's financial status and its financial ability to meet these proposed costs.
7. A sworn statement acknowledging the Company's familiarity with the eligibility under the provisions of this Ordinance and the Rules of the Federal Communications Commission and its intention to abide by the same.
8. Failure of the Company to provide such information and material may be deemed by the City as a refusal to accept the franchise granted under this Ordinance.
Section 5. Liability, Indemnification, Insurance.
(a) If, in case of fire, disaster, any natural or man-made disaster or emergency (hereafter “emergency”), it shall appear necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the cable system, the City shall make all reasonable efforts to contact the Company prior to any cutting or moving of wires, cables, amplifiers, appliances, or appurtenances of the Cable System, and, if possible, in the City's reasonable discretion, to allow the Company to perform any cutting or moving of the Cable System wires, cables, amplifiers, appliances, or appurtenances. The Company shall bear all costs of reinstallation, repair, and other costs resulting from or arising out of the emergency cutting or removal of the Cable System; provided, however that in the event it is determined that an emergency did not exist then the cost of such removal and reinstallation shall be borne by the City. The City shall be liable for personal injuries arising as a result of its acts or omissions when the City cuts any cable.
(b) The Company shall indemnify and hold harmless the City and shall pay any and all costs, fees or damages including, but not limited to, reasonable attorneys' fees and suit costs for trials and appeals, the City may be required to pay as a result of the grant of rights and authority contained in this ordinance, including, but not limited to all liability, reasonable attorneys' fees and suit costs for trials and appeals, reasonable expenses or damages arising out of copyright infringement, or arising out of the installation or operation of the Company's system, as well as for reasonable attorneys' fees and suit costs.
(c) Within thirty (30) days of the effective date of this Ordinance, and thereafter continuously throughout the duration of the franchise ordinance, the Company shall furnish the City a certificate of insurance for the amounts listed. All insurance shall be provided by companies authorized to do business in the State of Florida. The City and the Company by mutual agreement may increase the amount of insurance coverage to be obtained pursuant to this section.
The Company shall:
(i) maintain in effect a comprehensive general liability policy in the amounts of not less than two million dollars ($2,000,000.00) bodily injury coverage and one million dollars ($1,000,000.00) property damage resulting from any one (1) occurrence. The City shall be named as an additional insured;
(ii) maintain in effect automobile liability insurance policies covering all owned, non-owned hired vehicles, in the amounts of not less than one hundred thousand dollars/three hundred thousand dollars ($100,000.00/$300,000.00) for bodily injury; and one hundred thousand dollars ($100,000.00) property damages;
(iii) maintain in effect a general liability policy in the amount of not less than one million dollars ($1,000,000.00);
(iv) maintain minimum amount of statutory workers' compensation insurance.
Section 6. Maintenance and Operation of System.
(a) The Company shall maintain and operate its system and render efficient service during the time of this franchise according to regulations of the Federal Communications Commission.
(b) The Company shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of the National Electrical Code, and in such manner that they will not interfere with any installations of the City or of a public utility serving the City.
(c) The City shall not be required to assume any responsibility for the securing of any rights-of-ways or easements, nor shall the City be responsible for securing any permits or agreements with other persons.
(d) The Company agrees to abide by applicable FCC customer service standards as set forth in Section 76.309 of the Rules of the Federal Communication Commission. The Company shall adopt procedures for the investigation and resolution of complaints related to the operation of the Company's cable television system within the City, and the Company shall have the responsibility for the administration and implementation of such procedures. At the request of the City, the Company shall make available a summary of written complaints from customers in Palm Bay. At the request of the City, the Company will provide reports to the City regarding data on customer service complaints if such reports are technically possible. The Company shall maintain an office in Brevard County, Florida. The office shall be open during normal business hours and the Company will have a publicly listed, toll-free telephone number to receive subscriber inquiries and requests on a twenty-four (24) hour basis.
(e) The Company shall render efficient service, make prompt repairs and interrupt service only for good cause and for shortest possible time. Under normal operating conditions, the Company shall respond to requests for repair service within twenty-four (24) hours. Service interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system.
(f) The Company's system may be installed above ground in areas where existing power or telephone facilities are above ground, and shall be installed underground in areas where existing power and telephone facilities are installed underground.
(g) All installations in the public right-of-way shall be done by the Company in accordance with the specifications and requirements of the City. Any repair work which requires the disturbance of the surface of any street or which will interfere with traffic shall not be undertaken until the Company shall have secured City permits as required.
(h) Notwithstanding any other provision of this Ordinance, the Company shall comply with Chapter 179 of the Palm Bay Code of Ordinances, entitled Streets and other Rights-of-Way, and all amendments made thereto.
(i) It is understood that there may from time to time be within the City various streets which the City does not have the unqualified right to authorize the Company to use, because of reservations in favor of the dedicators or because of other legal impediments; therefore, in making this grant, the City does not warrant or represent as to any particular street or portion of a street that it has the right to authorize the Company to install or maintain portions of its cable system therein, and in each case the burden and responsibility for making such determination in advance of the installation shall be upon the Company.
(j) The Company shall have the authority to trim trees upon and overhanging streets of the City so as to prevent the branches of such trees from coming in contact with Company's wires and cables, all trimming to be done under the direction of the City and at the expense of the Company.
(k) The Company shall promptly and at its own expense relocate, remove or modify any part of this system which the City may request in connection with any public purpose including the abandonment of any right-of-way street. At the request of the City, the Company shall remove its above ground equipment and restore the right of way if the Company abandons, discontinues or ceases to operate the cable system in the City of Palm Bay.
(l) The Company's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices as are reasonably required to protect all members of the public having occasion to use the portion of the streets involved, or adjacent property.
(m) All poles, lines, structures and other facilities of the Company, in, on, over and under the streets, sidewalks, alleys, easements and public grounds or places of the City shall be kept by the Company at all times in a safe and substantial condition.
(n) The Company shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the buildings. The expense of such temporary removal shall be paid by the person requesting the same and the Company shall have the authority to require such payment in advance. The Company shall be given not less than ten (10) business days notice of a contemplated move to arrange for temporary wire changes.
(o) The City shall have the right to inspect the system with reasonable notice and during regular business hours, with a Company representative present, to insure compliance with the above provisions.
(p) At the request of the City, the Company will establish a Citizens' Advisory Group for the purpose of providing for Palm Bay Company customers' input. This group will function in an advisory capacity and will meet at a minimum semiannually.
Section 7. Performance Bond.
In case of any disturbance of pavement, roadway, easement, vegetation, sidewalk, driveway or any other surfacing (hereafter “improvements”), the Company shall at its own cost and expense and in a manner approved by the City Manager replace and restore any improvements so disturbed in as good condition as before said work was commenced. The Company will post a bond in the amount of fifty thousand dollars ($50,000.00) with the City for its faithful performance of the conditions of this paragraph, said bond to be approved by the City Manager.
Section 8. System Service.
(a) All structures, lines and equipment erected by the Company within the City shall be located so as to cause no interference with the proper use of streets, alleys, easements and other public ways and places and to minimize interference with the rights or reasonable convenience of property owners and the Company shall comply with all proper and lawful ordinances of the City now or hereafter in force. Existing poles, posts and other such structures of the City or utility which may be available to the Company for leasing or licensing at reasonable terms shall be used to the extent practicable in order to minimize interference with travel. No new poles shall be erected by the Company without the consent of the City Manager.
(b) In case of any disturbance of improvements, the Company shall at its own cost and expense and in a manner approved by the City replace and restore all improvements so disturbed in as good condition as before said work was commenced.
(c) In the event that at any time during the period of this franchise the City shall lawfully elect to alter or change any street, alley, easement or other public way requiring the relocation of the facilities of the Company, then in such event the Company upon reasonable notice by the City, shall remove and relocate the same at Company's own expense.
(d) The Company shall extend cable television service to any residence within the City which is located within two hundred (200) feet of any portion of the distribution facilities of the Company existing at the time of the application of service, except to the extent that density of homes, adverse terrain, or other factors render making service available impractical. Such extension shall be made within sixty (60) days after receipt of a reasonable request for such service except where permitting takes a longer period of time. There shall, however, be no obligation on the part of the Company to extend feeder cable service unless there is a density of at least thirty (30) subscribers per feeder cable mile in the area of the person making the request for service. The Company shall provide one (1) basic service outlet to all municipal facilities and public schools within the City's franchise area at no cost to the City or school involved provided, however, that the structure to be served is within two hundred (200) feet of the Company's distribution system except to the extent that adverse terrain or other factors render making service impractical or cost prohibitive. The Company shall serve any building beyond two hundred (200) feet if the owner of said building pays the cost of the extension to such building.
(e) The Company shall make available, to any residential subscriber so requesting, a parental “lock-out” device. The Company shall advise all residential subscribers regarding the availability of this device, and an additional reasonable charge for any such device may be imposed.
(f) In the case of an emergency or disaster, the Company shall provide emergency override capability on cable channels for transmission of emergency or disaster information. This service shall be shared and coordinated with Brevard County and the other governmental entities within Brevard County served by the same system.
(g) The Company at all times shall be solely responsible for complying fully with all applicable regulations from time to time established by the FCC, and any other state or federal agency which now or hereafter has jurisdiction over the cable television activities of the Company, and it is expressly agreed that the Company may be entitled to renegotiate or amend the provisions hereof because amended or newly enacted regulations of the Company's activities and business are more onerous or expensive for the Company to implement.
Section 9. Government Access Channel.
At the time of the contemplated system upgrade, the Company shall designate a channel for governmental use. This channel shall be shared by the various governmental entities served by the same company system. Any segment of the Government access channel established for the City shall be under sole control of the City. Any City programming must meet technical standards of Grantee.
Section 10. Discriminatory Practices Prohibited.
The Company shall not as to rates, charges, service facilities, rules, regulations, or in any other respect make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage; provided, however, this shall not be deemed to prohibit the establishment of a graduated scale of charges and classified rates schedules to which any customer coming within such classification shall be entitled. This provision shall not apply to discounts provided to owners or operators of multiple unit dwelling complexes when such discounts or contract rates are provided under contract or “bulk” agreements.
Section 11. City Police Power.
The right is hereby reserved to the City to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional ordinances as it shall find necessary in the exercise of the police power, provided that such regulations shall be reasonable and not in conflict with the rights herein granted and not in conflict with the laws of the State of Florida or the United States of America.
Section 12. Franchise Term.
This franchise shall be renewed for a period of fifteen (15) years from the current expiration date of May 16, 1995. The City herewith grants to the Company the option and privilege for renewal of this franchise for ten (10) years upon terms and conditions to be then agreed upon provided, however, that such renewal shall be granted by the City after a public hearing with due notice to the public, at which hearing, the City Council shall make a determination that it is in the best interest of the health, safety and welfare of the citizens of Palm Bay to renew this franchise. Such option and privilege to renew this franchise may be exercised by the Company by giving the City notice in writing of its election to exercise this option. Such renewal shall require acceptance by the Company within sixty (60) days.
Section 13. Surrender of Franchise.
The Company may surrender this franchise at any time upon filing with the City Clerk of the City a written notice of its intention to do so at least six (6) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of the Company shall terminate.
Section 14. Rate Regulation.
Pursuant to federal law, the City shall have the right to exercise its rate regulatory authority or to refrain from exercising such regulation for any period of time as its sole discretion. The City shall provide advance notification to the Company of its intention to exercise any such regulation. Any such regulation may be adopted by ordinance or resolution at the option of the City with notice to the Company.
Section 15. Compliance with Applicable Laws and Regulations.
The construction of new facilities shall be applied for and approved by the City prior to construction commencing. Company shall maintain and operate the Cable Television System according to all pertinent rules and regulations of the federal regulatory commission or agency having jurisdiction in respect to any matters affecting cable operations authorized pursuant to this franchise.
Section 16. Subscriber Privacy.
The Company shall comply with the Cable Communications Policy Act of 1984, 47 USC 511 and section 631 of the Cable Television Consumer Protection and Competition Act of 1992, regarding protection of subscriber privacy.
Section 17. Restrictions on Assignment, Transfer, Sale, and Subleasing.
(a) All of the rights and privileges of all obligations, duties and liabilities created by this franchise shall pass to and be binding upon the successors of the City and the successors and assigns of the Company and the same shall not be assigned or transferred without the written approval of the City Council, which will not be unreasonably withheld; provided, however, that this shall not prevent the assignment of the franchise by the Company as security for debt without such approval. No such prior consent or approval of the City shall be required for any transfer or assignment to a person controlling, or controlled by, or under the same common control as the Company.
(b) A change in, transfer of, or acquisition of control includes an acquisition of more than fifty percent (50%) of the capital interests of the Company by a person or a group of related persons who before the acquisition owned less than fifty percent (50%), or any change in actual working control in whatever manner exercised.
Section 18. Re-regulation.
Company agrees that in the event that the Congress of the United States, Federal Communications Commission, or any other appropriate governmental agency, by ruling of case law or otherwise allows additional regulatory authority regarding rates and fees, programming, basic channel carriage or any other regulatory authority to be exercised by the City, then and in that event this franchise shall allow such additional or other regulation to be undertaken by the City at such time that it is legally permissible to do so. The City shall be entitled to pass an ordinance supplementing this franchise ordinance implementing the rights then granted by law as above set forth. The City will notify the Company thirty (30) days prior by certified mail of a proposed ordinance and shall allow the Company opportunity for input and discussion.
Section 19. City Code.
It is the intention of the City Council of the City of Palm Bay that the provisions of this Ordinance shall become and be made a part of the City of Palm Bay Code and the sections of this Ordinance may and are to be renumbered to accomplish such intention.
Section 20. Compliance Procedure.
If at any time there is an issue of compliance between the City and the Company which cannot be resolved between the City and the Company, the following procedure shall be implemented:
A. The City Manager or designee shall notify the Company in writing of the exact nature of the alleged violation constituting a ground for termination and give the Company thirty (30) days, or such greater amount of time as the City Manager may specify, to correct such violation or to present facts and arguments to refute the alleged violation.
B. If the City Manager then concludes that there is a basis for termination, he or she shall notify the Company thereof by certified mail.
C. If within the designated time the Company does not remedy and/or put an end to the alleged violation, the City Council, after a public hearing where all interested parties may be heard, may suspend or revoke the franchise if it determines that such action is warranted.
D. The Company shall not be held in default nor suffer any penalties where non-compliance or default is caused by an event beyond the Company's control.
E. The Company shall have the right to review by a court of competent jurisdiction upon any determination by the City Council of noncompliance.
Section 21. Right of Condemnation Reserved.
Nothing herein shall limit any right the City may have to acquire by eminent domain any property of Franchisee; provided, however, that any such acquisition shall be for a price that values the Franchisee's property as allowed by law.
(Ord. 95-22, passed 5-4-95; Am. Ord. 95-31, passed 7-20-95; Am. Ord. 2002-19, passed 2-21-02; Am. Res. 2002-40, passed 9-5-02)
Editor's note:
Resolution 2002-40 approved the transfer of the cable television franchise or rights thereunder to TWEAN Subsidiary, L.L.C., to be managed by Advance/Newhouse Partnership, effective upon the consummation of the transfer. All terms and conditions of the franchise shall remain in full force and effect as to the franchise with Time Warner Entertainment-Advance/Newhouse Partnership. Name changed from Time Warner Cable to Brighthouse Networks, LLC on March 3, 2003.