§ 30-28. Franchising provisions.

(a)

Required. Any individual, partnership, corporation or other entity desiring to install and/or operate any cable television system in the unincorporated area of the county shall apply to the board for a franchise pursuant to this article.

(1)

The issuance of a franchise pursuant to this article shall allow the franchisee to install, construct, maintain and operate a CATV system in accordance with the additional requirements of this article throughout the area which is described in the franchise agreement and for which approval has been received.

(2)

Prior to any installation or construction, the franchisee shall apply to the county for a permit, granting the privilege to install, construct, maintain and operate a CATV system under the jurisdiction of the county in accordance with such rules and regulations as shall be recommended by the county engineer and approved by the board.

(3)

It shall be a violation of this article to commence or engage in the construction, operation or maintenance of a cable system in the county without first having obtained a cable franchise awarded by the board of county commissioners.

(b)

Award. Nonexclusive franchises may be awarded by the board of county commissioners for all or any portion of the county to applicants upon a finding that such award is consistent with the public interest, furthers the goal of providing efficient CATV service to all residents of the unincorporated areas of the county, and does not result in material abuse of county streets, or easements or rights-of-way, and after consideration of the factors referred to in subsection (f)(1) of this section. The county shall adopt by resolution such application forms and other administrative procedures are deemed necessary and desirable for efficient administration of this article.

(c)

Application procedure; information required. All applications to construct, operate or maintain any CATV system in the unincorporated areas or to traverse any portion of those areas for the transmitting or conveying of such service elsewhere shall be filed with the board or such office of the county as the board may designate by resolution; and each such application shall set forth, contain, or be accompanied by the following:

(1)

The name, address and telephone number of the applicant.

(2)

A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to the following:

a.

The names, business addresses, state of residence and country of citizenship of all general partners and corporate officers of the applicant.

b.

The names, business addresses, state of residence and country of citizenship of all persons and entities having, controlling, or being entitled to have or control 15 percent or more of the ownership of the applicant and the respective ownership share of each such person or entity.

c.

The names and addresses of any parent or subsidiary of the applicant and of any other business entity owning or controlling in whole or in part or owned or controlled in whole or in part by the applicant.

d.

A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the five fiscal years immediately preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a responsible lending institution or funding source, addressed to both the applicant and the county, setting forth a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the county; or if the corporate or business entity organization of the applicant has not been in existence for a full five years, the applicant shall submit an audited financial statement for the period of its existence or other documentation required by the county.

e.

A detailed description of all previous experience of the applicant in providing CATV services or related or similar services, which includes a statement identifying, by place and date, any other cable television franchise awarded to the applicant, its parent or subsidiary; the status of said franchise with respect to completion thereof; the total cost of completion of such systems; and the amount of the applicant's and its parent's or subsidiary's resources committed to the completion thereof.

(3)

A detailed financial plan (pro forma) describing, for each year of the franchise, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and statement of sources and uses of funds. If applicant submits a detailed financial plan for a period of less than the requested term of the franchise, the county may award a franchise to applicant but for a period of time equal to the number of years or portion thereof, reflected in the financial plan.

(4)

A detailed description of the proposed plan of operation of the applicant, which shall include but not be limited to the following:

a.

A detailed map indicating all areas proposed to be served, a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served, and the projected total cost for construction of the system.

b.

A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of any said classifications, including but not limited to installation charges, service charges, and special, extraordinary or other charges requested by the county. The purchase price, terms and nature of any optional or required equipment, device or other thing(s) to be offered for sale to any subscriber shall be described and explained in detail.

c.

A detailed statement describing the technical design proposed, the actual equipment, and the operational and technical standards proposed by the applicant. In addition, applicant shall submit to the county an affidavit or letter from a qualified engineer acceptable to both parties with experience in the cable industry which letter states that the proposed system will adequately provide CATV service to the proposed service area and that the applicant's construction projection costs are reasonable.

(5)

A copy of the form of any form of any agreement, understanding or other instrument proposed to be entered into between the applicant and any subscriber.

(6)

A detailed statement setting forth in its entirety any and all agreements and understandings, whether formal or informal, written, oral or implied, existing or proposed to exist between the applicant and any person which may affect control or operation of the system contrary to this article, as amended, or a franchise agreement.

(7)

A copy of any executed agreement covering the franchise area, if existing between the applicant and any public utility, providing for the use of any facilities of the public utility, including but not limited to poles, lines or conduits.

(8)

True and exact copies, if filed, of the last and most current FCC Cable TV Information Report and FCC Form 325 as submitted to the FCC.

(9)

Any other reasonable information which could materially affect the granting of the franchise and which is requested by the county.

(10)

For applicants in existence for less than three years, except for subsidiaries or affiliates of existing cable companies, the county in its discretion may agree to accept other information in lieu of the items reflected in this paragraph, provided it is acting reasonably and is satisfied that the applicant has materially complied with the requirements of this section.

(d)

Fee.

(1)

Each original or transfer application submitted for a franchise under the provisions of this article shall be accompanied by a nonrefundable application fee in the amount of $10,000.00, to offset the reasonable cost of processing and evaluating said application for conformity with the provisions and conditions of this article, including but not limited to the payment of consultants' fees; provided, however, that the board reserves the right to require reimbursement to the county of all costs of processing and evaluating any application, in excess of $10,000.00, if such costs are determined by the board by resolution to be necessary for the proper evaluation of such application. Each renewal application submitted for a franchise under the provisions of this article shall be accompanied by a non-refundable application fee in the amount of $5,000.00 to offset the reasonable costs of processing and evaluating said application, provided, however, if such costs exceed $5,000.00, then the franchise holder shall be responsible for any additional costs.

(2)

Each franchise holder filing an application for expansion of its designated franchise area shall pay the sum of $5,000.00 as is required by subsection (1) of this subsection (d). Upon board approval or denial of the expansion, the county shall refund to the franchisee any portion of the expansion application fee which is not used by the county for the review of the expansion application.

(3)

Any applicant who has had a franchise approved by the county and then declared null and void or revoked by a court may not be required to pay an application fee, unless the board determines that the county will incur actual expenses including but not limited to consulting fees to review a new application.

(e)

Public hearing on applications. Upon receipt of an application for a franchise submitted under the provisions of this article and within 90 days, or such extended period of time as the board may approve upon request by the administrator, the county administrator shall review the application for sufficiency and compliance with subsection (c) of this section. If the county administrator finds that the application is incomplete, he shall return it to the applicant with a letter describing any and all insufficiencies found in the application. The applicant may then reapply for a franchise upon correcting the deficiencies noted by the county manager. Upon receipt of the revised and amended application, the county administrator shall review the application within a 90-day period or such extended period of time as the board may approve upon request by the county manager. Upon review and after finding that the application is complete and in compliance with subsection (c), the county administrator shall make a recommendation to the board regarding the award of a franchise to the applicant and shall forward said application to the board for publication of a notice in accordance with subsection (1) of this subsection (e).

(1)

Upon receipt of an application for a franchise and after review by the county administrator, the board shall publish once a week for three consecutive weeks in a paper of general circulation in the county a notice of consideration of a CATV franchise. Said notice shall name the applicant, describe the proposed service area, invite the filing of an application under the provisions of this article by all persons interested in establishing a CATV system in the proposed service area, invite objections to the establishment of a CATV system in the proposed service area from existing CATV systems and the general public and set a time and date certain, within at least 25 business days from the date of the first publication of the notice, for a public hearing on all applications filed for the establishment of a CATV system in said proposed service area and for all objections to the establishment of such CATV system. Any written reports, studies or materials to be considered by the board of county commissioners at the public hearing must be submitted to the county administrator's office within 15 days from the date of the first publication of notice of the public hearing.

(2)

The initial application and all subsequent applications received prior to the public hearing shall be a matter of public record. Any application may be amended in writing at any time prior to the date of the public hearing. No amendments to filed applications, oral or written, and no new applications shall be received after the time and date set for the public hearing or a continued public hearing, unless amendments to the application are requested by the county. The public hearing may be continued from time to time and from place to place as determined to be necessary by the board.

(f)

Issuance of franchise.

(1)

The board may issue one or more non-exclusive franchises from the applications filed and considered at a public hearing. The board shall, prior to an issuance of a franchise, consider the information and criteria required by this article and any other information it deems appropriate in making a determination to issue a franchise. During the public hearing or a continued public hearing the board of county commissioners shall also consider, investigate and make findings regarding the following:

a.

The economic impact upon private property within the franchise area;

b.

The public need for such a franchise, if any;

c.

The capacity of public rights-of-way to accommodate the cable system;

d.

The present and future use of the public rights-of-way to be used by the cable system;

e.

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;

f.

The financial ability of the franchise applicant to perform and to make the necessary investment to erect, operate and maintain the cable system;

g.

The experience of the applicant in the erection, operation and maintenance of a CATV system;

h.

The location and type of permanent facilities proposed to be constructed for the cable system;

i.

The technical quality and completeness of the proposed plan for operation of the cable system;

j.

The requisite legal, character, financial, technical and other qualifications necessary to construct, own and operate a cable television system.

(2)

In considering the desirability of an additional or expanded cable operator, the board of county commissioners shall balance the desirability to promote competition in the cable television industry so as to promote a diversity of information and the provision of high-quality cable services at the lowest economic price against the unreasonable disruption of private and public property by multiple cable operations. Furthermore, if the county grants a franchise for an additional cable operator or expands a current operator's franchise, the county may impose such conditions as it deems necessary and proper.

(3)

The board of county commissioners has the authority to retain an expert or consultant to conduct a study at any time in order to determine whether the county is able to handle an overbuild or overlapping franchises, economically or practically, or for any other purpose which the board deems necessary in order to adequately evaluate a franchise application. Any resulting fees or expenses of experts or consultants are to be borne by the applicant.

(4)

The board shall vote and thereafter notify in writing all applicants of its decision within 30 days from the adjournment of said public hearing. Said notice shall specify the aforementioned factors that were determinative of its decision. All of the statements and declarations contained in the application shall be incorporated as conditions and material representations of any franchise that is issued by the board, and the breach of any of such conditions and representations shall constitute cause for termination of the franchise by the board. The approval of the written decision by the board shall be deemed an award of the franchise.

(g)

Term. No franchise shall be issued for a term longer than ten years. All current CATV franchise agreements shall remain in effect until their respective date of expiration, subject to any provisions of this article deemed applicable to existing franchisees. However, any franchisee holding a current franchise under any previous ordinance or franchise agreement may file for a renewal of its franchise pursuant to the terms of this article which require adequate notice to the public and opportunity to comment, and may have its franchise renewed for a period not to exceed ten years.

(h)

Effective date.

(1)

Any franchise granted pursuant to the provisions of this article shall become effective as provided herein.

(2)

Within 30 calendar days after the awarding of a franchise pursuant to subsection (f)(4) above, or within such extended period of time as the board in its discretion may authorize, the franchisee shall file with the board its written acceptance of the franchise, together with a commitment for insurance policies and bonding documents required by sections 30-36 and 30-37, and its agreement to be bound by and to comply with all requirements pursuant to the provisions of this article or the franchise. Such acceptance and agreement shall be acknowledged by the franchisee before a notary public, and shall in form and content be satisfactory to and approved by the board. The franchisee shall execute the franchise agreement and other documents required by the county within 90 days of the award of the franchise pursuant to subsection (f)(4) unless the county agrees to an extension of such date.

(i)

Business authorization. Any franchise granted by the county shall authorize and permit the franchisee to engage in the business of operating and providing a CATV system in all or a portion of the county, and for that purpose, subject to the approval of the public works administrator, to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public right-of-way or easement, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, subject to the approval of the public works administrator, so to use, operate and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other franchisee furnished or permitted to do business in the county.

(j)

Changes to terms and conditions. No changes in the terms of any franchise may be made without the prior written approval of the board.

(k)

Franchise fee.

(1)

The franchisee shall pay as a franchise fee to the county the maximum percentage allowable by federal law, up to a maximum of five percent of the franchisee's gross revenues or such greater percentage as may from time to time be approved by federal law and renegotiated with the franchisee.

(2)

An estimated franchise fee monthly payment shall be payable to the county within 20 days after the close of each month. These payments shall be accompanied by an estimated monthly gross revenues report in a form pre-approved by the county. Each monthly estimated franchise fee payment shall be adjusted, as a credit or debit, by the difference between the estimated gross revenues collected during the preceding month and the actual gross revenues collected by the preceding month. Within 60 days after the close of each calendar year, the franchisee shall deliver to the county an annual gross revenues audit report prepared by a certified public accountant in a form pre-approved by the county. All amounts which are not paid when due and payable hereunder shall bear interest at the legal rate, as defined in Florida Statutes, until paid and franchisee shall be fined $100.00 a day until payment is made.

(3)

Notwithstanding the requirement of subsection (2) of this section of delivery of a monthly gross revenues report and an annual audit report by the franchisee, 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 and all amounts payable under this section. All costs associated with any such audit shall be borne by the franchisee when said audit results in increasing, by more than ten percent, the franchisee's annual payment to the county.

(4)

No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the county may have for further operational sums payable under this article or for the performance of any other obligation hereunder until barred by the statute of limitations or the transpirance of three years, whichever may be shorter.

(l)

Franchise restrictions.

(1)

Any franchise granted under this article shall be nonexclusive.

(2)

No privilege or exemption shall be granted or conferred by any franchise granted under this article except those prescribed herein or as mandated by state or federal law.

(3)

Any privilege claimed under any such franchise by the franchisee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

(m)

Renewal of franchise.

(1)

During the six-month period which begins with the 36th month before the franchise expiration, the franchising authority may on its own initiative, and shall at the request of the cable operator, commence proceedings which afford the public in the franchise area appropriate notice and participation for the purpose of:

a.

Identifying the future cable-related community needs and interests; and

b.

Reviewing the performance of the cable operator under the franchise during the then current franchise term.

(2)

Upon completion of a proceeding under subsection (1) of this section, a cable operator seeking renewal of a franchise may, on its own initiative or at the request of the county, submit a proposal for renewal. Any such proposal shall contain such material as the county may require, including proposals for an upgrade of the cable system. The county may establish a date by which such proposal shall be submitted.

(3)

Upon submittal by a cable operator of a proposal to the county for the renewal of a franchise, the county administrator shall provide prompt public notice of such proposal and, during the six-month period which begins on the completion of any proceedings under subsection (1) of this section, renew the franchise or issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding to consider whether:

a.

The cable operator has substantially complied with the material terms of the existing franchise and with applicable law;

b.

The quality of the operator'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 system, has been reasonable in light of community needs;

c.

The operator has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator's proposal; and

d.

The operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

In any proceeding under this subsection, the cable operator shall be afforded adequate notice and the cable operator and the board or its designee shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection (1) of this section), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding.

At the completion of a proceeding under this subsection, the board shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor.

(4)

Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subsections a. through d. of subsection (3) of this section pursuant to the record of the proceeding under subsection (3). The board may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (3)a. or on events considered under subsection (3)b. in any case in which a violation of the franchise or the events considered under subsection (3)b. occur after the effective date of this article [November 23, 1988] unless the county has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the county has waived its right to object, or has effectively acquiesced.

(5)

Any cable operator whose proposal for renewal has been denied by a final decision of the board made pursuant to this section, or has been adversely affected by a failure of the board to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant to the provisions of 47 U.S.C. section 555 of the Cable Communications Policy Act of 1984.

The court shall grant appropriate relief if the court finds that:

a.

Any action of the board is not in compliance with the procedural requirements of this section; or

b.

In the event of a final decision of the board denying the renewal proposal, the operator has demonstrated that the adverse finding of the board with respect to each of the factors described in subsections a. through d. of subsection (3) of this section on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under subsection (3).

(6)

Any decision of the board on a proposal for renewal shall not be considered final unless all administrative review has occurred or the opportunity therefor has lapsed.

(7)

For purposes of this section, the term franchise expiration means the date of the expiration of the term of the franchise, as provided under the franchise, as it was in effect on the date of the enactment of this article [November 15, 1988].

(8)

Notwithstanding the provisions of subsections (1) through (7) of this section, a cable operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time; and the board may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (1) through (7) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (1) through (7).

(9)

In the event the board elects not to grant a renewal of the franchise under the provisions of subsection (1) of this section or in the event a franchise is terminated under the provisions of section 30-52 of this article after the franchise holder has exhausted all administrative and legal remedies of appeal denying renewal of the franchise, the franchise holder shall have a period of one year to sell its CATV system to a person approved by the board for a new franchise, which approval shall not be unreasonably withheld, or a period of one year after termination of service to remove, at its expense, all portions of the CATV system from the public rights-of-way as described in section 30-53 of this article. In the event such previous franchise holder does not effectuate a sale of its CATV system to a person approved by the board for a new franchise or does not remove all portions of its CATV system from said public rights-of-way within said period of one year, the portions of the CATV system that remain within said public rights-of-way shall be considered abandoned and shall be governed by the provisions of section 30-53 of this article.

(10)

In the period between termination of the franchise and the granting of another franchise, but not to exceed 12 months, the franchisee shall continue to provide service to the public as if its franchise were still in effect.

(Ord. No. 88-90, § 3; Ord. No. 94-12, § 2; Ord. No. 96-15, § 1, 3-26-96)