§ 30-5. All franchising procedures.

(a)

Franchise required.

(1)

Provisions. Pursuant to the authority of the FCC, state constitution, Florida revised statutes, and local ordinances and codes, and subject to the terms and conditions set forth herein, the county can grant revocable and non-exclusive franchises, acting pursuant to the county's applicable charter provisions, ordinances, codes, rules and regulations to construct and operate a system in, under, over, along, across or upon the streets and public grounds within the unincorporated areas of the county for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of audio, video, data, or other signals, and for the development of broadband telecommunication services in accordance with the laws of the county, the state, and the United States of America. In exercising rights pursuant hereto, the franchisee shall not endanger or interfere with the lives of persons, interfere with any installations of the county, any public utility serving the county or any other person permitted to use the streets and public grounds. The granting of one franchise does not establish priority for use over any other present or future right-of-way or construction permit or franchisees, or the county's own use of the streets and public grounds. The county shall at all times control the distribution of space in, over, under or across all streets or public grounds occupied by the system. All rights granted for the construction and operation of the system shall be subject to the continuing right of the county to require such reconstruction, relocation, change or discontinuance of the appliances used by the system in the streets, alleys, avenues, and highways of the county, as shall in the opinion of the county be necessary in the public's interest. No system shall be allowed to occupy or use the streets of the county or be allowed to operate within the unincorporated areas of the county without a franchise. No granting of a franchise shall affect the right of the county to grant to any other person or entity a right to occupy or use the streets, or portions thereof for the construction and operation of a system within the county or the right of the county to permit the use of the streets or public rights-of-way of the county for any purpose whatsoever. By accepting a franchise, the franchisee thereby acknowledges the county's right to make such grants and permit such uses. No privilege or power of eminent domain is bestowed on the franchisee by the granting of a franchise.

(2)

Event of conflict. In the event of conflict between the terms and conditions of this chapter and the franchise, the franchise agreement shall control.

(3)

General county ordinances. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the county regarding permits, taxes, fees to be paid, or manner of construction.

(4)

"Level playing field." In the event any of the material terms and conditions of any overlapping cable franchise or overlapping right to use the rights-of-way for cable service granted to any other party is (are) more favorable (by inclusion, exclusion, or altering of such material provision(s)) to such other party than the corresponding terms and conditions of a franchise, then the franchise shall be amended to include such more favorable terms and conditions.

(b)

Franchise area. The franchise area shall be the area for which a franchise is granted.

(c)

Franchise nonexclusive. Any franchise granted pursuant to this chapter shall be nonexclusive. The county specifically reserves the right to grant at any time such additional franchises for a system as it deems appropriate.

(d)

Use of public streets and ways. For the purpose of operating and maintaining a cable system in the county, the franchisee may erect, install, construct, repair, replace, reconstruct and retain in, and over, under, upon, across and along the public streets and ways within the unincorporated areas of the county such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the system, provided however, that the franchisee complies with all design, construction, safety, and performance provisions contained in this chapter, the franchise, and other applicable local ordinances. The franchisee shall also obtain pole attachment agreements for use of any utility poles or other utility facilities required in connection with the provision of services provided they are available on reasonable terms and conditions.

(e)

Use of county facilities. At the county's option, the county may allow a franchisee to utilize county-owned conduit or other facilities for any portion of its system. The consideration for the use of county conduit or other facilities shall be mutually agreed to by the parties and may be adjusted at the periodic performance evaluations and will be consistent with the regulated rates for similar facilities. Nothing in this section shall require an existing franchisee's facilities to be removed from county facilities.

(f)

Use of franchisee facilities erection, removal and common use of poles. No poles shall be erected by the franchisee without prior approval of the county, which will not be unreasonably withheld, with regard to location, height, type and any other pertinent aspect. However, no location of any pole or wire-holding structure of the franchisee shall be a vested right and at its own expense whenever the county determines that the public safety would be enhanced thereby. The franchisee shall utilize existing poles and conduits where possible if available on reasonable terms and conditions. The county shall have the right, during the life of the franchise, to install and maintain on reasonable terms and conditions upon the poles owned by the franchisee, any wire and pole-fixtures that do not unreasonably interfere with the system operations of the franchisee.

(g)

Time of the essence. Whenever the chapter shall set forth any time for any act to be performed by or on behalf of the franchisee, such time shall be deemed to be of the essence, and any failure of the franchisee to perform within the time allotted shall be sufficient ground for the county to invoke any applicable provision of the chapter and franchise agreement.

(h)

Limitation on use of financial commitments. Any financial commitments obtained by the franchisee which have been confirmed to the county pursuant to the franchise shall be used solely in connection with the construction, operation or maintenance of the system or the franchisee's performance of the terms, obligations, and conditions of this chapter and the franchise.

(i)

Rules of franchisee. The franchisee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of his business as shall be reasonably necessary to enable the franchisee to exercise his rights to perform his obligations under this chapter and to ensure an uninterrupted service to each and all of his customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this chapter and shall be filed with the county.

(j)

Franchise application procedure information required (Exhibit A). All applications by interested parties not currently serving this county to construct, operate or maintain any 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 it shall designate by resolution, and each such application (application form to be provided by the county manager) shall set forth, contain, or be accompanied by but not limited to 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 and residence addresses of all general partners and corporate officers of the applicant.

b.

The names, residence addresses and business addresses 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 company 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 description of all previous experience of the applicant in providing cable services or related or similar services.

e.

A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year 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.

f.

A statement identifying, by place and date, any other cable system franchise awarded to the applicant, its parent or subsidiary; the status of the franchise with respect to completion thereof; and if requested by the county, the total cost of completion of such system; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof.

(3)

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, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served.

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 installation charges, service charges, special, extraordinary or other charges. The purchase price, terms and nature of any optional or required equipment, device or other thing to be offered for sale to any subscriber shall be described and explained in detail.

c.

A detailed statement describing the actual equipment and operational standards proposed by the applicant.

(4)

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

(5)

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 chapter, as amended, or franchise agreement.

(6)

A copy of any 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.

(7)

True and exact copies, if filed, of the last and most current FCC Reports, as submitted to the FCC.

(8)

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

(9)

Each original application submitted for a franchise under the provisions of this chapter shall be accompanied by an application fee in an amount determined by resolution of the board not to exceed $5,000.00 for original application to offset the reasonable cost of evaluating the application for conformity with the provisions and conditions of this chapter.

(10)

The franchisee shall be an equal opportunity employer adhering to all federal, state or local laws and regulations. Pursuant to 47 CFR section 76.311 and other applicable regulations of the FCC, the franchisee shall file an equal employment opportunity program with the FCC and otherwise comply with all FCC regulations with respect to equal employment opportunities.

The board shall have the sole discretion to determine if a consultant is needed to assist in the evaluation of the franchise application. Should the board determine to use a consultant, notice of the projected cost shall be provided to the applicant by the county manager or designee by certified mail prior to commencing the evaluation process. The applicant shall submit a certified check in the amount no later than ten days from receipt of the notice. If multiple applications are received from the same franchise area, or if an application is received for an existing franchise area served by another or other franchisees, the costs shall be prorated among the applicants, in the case of multiple applicants. These application processing fees are over and above any construction, inspection, permit or franchise fees and are to cover the costs of the consultant.

The provisions of this section shall apply to each franchisee filing an application for expansion of its designated franchise area.

(k)

Public hearings on applications.

(1)

Upon receipt of an application for a new franchise submitted under the provisions of this chapter, the board shall publish once in a paper of general circulation in the county a notice of consideration of a cable communications franchise. The notice shall name the applicant, describe the proposed service area, invite objections to the establishment of a system in the proposed service area from existing systems and the general public and set a time and date certain, at least 14 days from the date of the publication of the notice, for a public hearing on all applications filed for the establishment of a system in said proposed service area and for all objections to the establishment of such system.

(2)

The initial application and all subsequent applications received prior to the public hearing shall be a matter of public record. An application may be amended in writing at any time prior to the time and 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. The public hearing may be continued from time to time and from place to place as determined to be necessary by the board.

(l)

Issuance of franchise.

(1)

The board may issue one or more franchises from the applications filed and considered at a public hearing after taking into consideration the following factors:

a.

The financial stability of the applicant and the ability of the applicant to make the necessary investment to erect, operate and maintain the proposed system.

b.

The quality and technical reliability of the proposed system based upon the proposed plan of construction and the method of distribution of signals.

c.

The proposed rates, charges and services to subscribers to the system.

d.

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

e.

The desirability and feasibility of granting additional rights and privileges to use the streets, alleys, public ways and public places of the county and the method of placement of the necessary wires, poles, cables, underground conduits, conductors and fixtures to operate and maintain the proposed system.

f.

The location and type of permanent facilities proposed to be constructed for such system.

g.

The economic impact on private property, public need, present and future capacity of public rights-of-way, and potential disruption to existing users of rights-of-way.

h.

In no event shall the county issue nor grant an overlapping franchise on different terms than previous franchise agreements.

(2)

In considering the desirability of an additional or expanded franchisee, the board of county commissioners shall balance the desirability to promote competition in the cable industry so as to promote the provision of high-quality cable services at the lowest economic price; and a diversity of information against the unreasonable disruption of private and public property by multiple cable systems.

(3)

The board shall notify in writing all applicants of its decision within 30 days from the adjournment of the public hearing. The 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.

(m)

Term and termination of franchise. No franchise shall be issued for a term longer than ten years, and shall commence upon execution of the franchise by the county and the franchisee. All current franchise agreements shall remain in effect until their respective date of expiration. However, any franchisee holding a current franchise under any prior version of this chapter may file for a renewal of its franchise and may have its franchise renewed for a period not to exceed ten years pursuant to the terms of this chapter.

(n)

Effective date of franchise.

(1)

Any franchise granted pursuant to the provisions of this chapter shall become effective as provided in this chapter.

(2)

Within 30 days after the awarding of a franchise, 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 the insurance policies and bonding required by this chapter, and its agreement to be bound by and to comply with all requirements pursuant to the provisions of this section 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.

(o)

Changes to franchise terms and conditions. Without prior approval of the board, no changes in the terms of any franchise may be made.

(p)

Communications services tax.

(1)

Findings. The county finds that:

a.

The public rights-of-way to be used by the franchisee in the operation of its system within the boundaries of the franchise area are valuable public properties acquired and maintained by the county, state, [and] federal agencies at great expense to the taxpayers.

b.

The grant to the franchisee to the streets is a valuable property right without which the franchisee would be required to invest substantial capital in right-of-way costs and acquisitions.

c.

The administration of this chapter or the franchise imposes upon the county additional regulatory responsibility and expense.

d.

The communications services tax (CST) established in 2001 imposes a certain percentage on communications services calculated to allow counties to receive revenues in lieu of previous franchise fees so that counties remain in a revenue neutral position. The state department of revenue collects and disburses funds to counties on a monthly basis pursuant to those calculations.

(2)

Payments due in event of termination or expiration. In the event the franchisee continues the operation of any part or all of the system beyond the termination or expiration of the franchise granted herein, it shall pay to the state department of revenue the communications services tax as set forth in this chapter, at the time of such termination or expiration, and in the manner set forth in Chapter 2001-140, Laws of Florida.

(q)

Renewal of franchise.

(1)

During the six-month period which begins with the 36th month before the franchise expiration, the county may on its own initiative, and shall at the request of the franchisee, commence proceedings consistent with federal law designed to afford the franchisee the opportunity of being considered for a renewal of the franchise.

(2)

If the board elects not to grant a renewal of the franchise under the provisions of this section or if a franchise is terminated under the provisions of this chapter after the franchisee has exhausted all administrative and legal remedies of appeal denying renewal of the franchise, the franchisee shall have a period of one year to sell its 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 system from the public rights-of-way as described in this chapter. If such previous franchisee does not effectuate a sale of its system to a person approved by the board for a new franchise or does not remove all portions of its system from the public rights-of-way within the period of one year, the portions of the system that remain within the public rights-of-way shall be forfeited to and shall thereby become the property of the county.

(3)

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.

(4)

For a franchise renewal, the applicant needs to submit the information required on the franchise renewal form available from the county manager along with a statement that all other conditions of the franchise remain the same (see Exhibit C, on file with the county clerk). These requirements may be modified from time to time to reflect changing conditions and state-of-the-art in the cable industry.

(5)

The franchisee shall have the right to renew its franchise after meeting requirements set forth in this chapter and consistent with federal and state laws. The franchisee shall own the system, but shall have no right to use of public rights-of-way upon termination or expiration of a franchise except as may exist by law.

(6)

After a public hearing and upon denial of renewal of the franchise, or upon its revocation of expiration, as provided for herein, the county shall have the right to require the franchisee to remove, at its own expense, all portions of the system required by public necessity from all streets and public ways within the county.

(r)

Transfer of franchise ownership or control.

(1)

Transfer of franchise. No franchise granted hereunder shall be sold, transferred, leased, assigned, or disposed of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the county, which shall not be unreasonably withheld. The transferee agrees to abide by the terms of the franchise. County consent may include but not be limited to financial guarantees and upgrades to the system. No such consent shall be required, however, for a transfer to an entity controlling, controlled by, or under common control with the franchisee, provided that any franchisee's parent company's guarantee which was in effect will remain in effect and continues to guarantee performance and obligations of said franchise (see Exhibit D, on file with the county clerk).

(2)

Transfer threshold. The franchisee shall promptly notify the county of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the franchisee. The word transfer used herein shall mean as provided for in section 30-2 (including a change in control). The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the disposal by the franchisee directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise of 30 percent or more at one time of the ownership or controlling interest in the system 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.

(3)

County approval. Every change, transfer, or acquisition of control of the franchisee shall make the franchise subject to cancellation unless and until the county shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the county may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective transferee or controlling party, and the franchisee shall assist the county in obtaining all required information. Failure to provide all reasonable information requested by the county as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control.

(4)

Assumption of control. The county agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the county that it will take control and operate the system. If the financial institution takes possession of the system, the county shall take no action to effect a termination of the franchise without first giving to the lender written notice thereof and a period of six months thereafter (unless otherwise provided below) to: (1) allow the financial institution or its agent(s) to continue operating as the franchisee under the franchise and, (2) request the county, and for the county to determine whether, to consent to the assignment of the franchisee's rights, title, interest and obligations under the franchise to a qualified operator. The county acknowledges that in order for the financial institution to realize upon the collateral accorded to it by the loan documents, the financial institution must be entitled to a reasonable period of time after taking possession of the franchise under the loan document to obtain the county's consent to an assignment of the franchise to a qualified operator. The county agrees that such reasonable period of time is six months after the financial institution takes possession of the system, and further agrees that the county shall use its best efforts to decide upon the assignment of the franchise to the new operator proposed by the financial institution within such period of time. The financial institution shall be entitled to such possession and other rights granted under this subsection until such time that the county determines whether to consent to such assignment. If the county finds that such transfer, after considering the legal, financial, character, technical, and other public interest qualifications of the applicant are satisfactory, the county will consent to the transfer and assign the rights and obligations of such franchise as in the public interest. During the six-month period or extended time, the financial institution shall enjoy all the rights, benefits and privileges of the franchisee under the franchise and the county shall not disturb such possession by the financial institution, provided the financial institution complies in all respects with the terms and provisions of the franchise and this chapter. The various rights granted to the financial institution under this subsection are contingent upon the lender's continuous compliance with the terms and provisions of this chapter and the franchise during the entire aforementioned six-month period or extended time, if applicable. For example, should an agent of the financial institution take possession of the system pursuant to rights granted to the financial institution under this subsection, and such agent fails to comply with the level of service requirements set forth in this chapter or the franchise, the rights granted to the financial institution under this chapter and the franchise may be terminated as set forth herein after due process.

(5)

No waiver of county property rights. The consent or approval of the county to any transfer of the franchise shall not constitute a waiver or release of the rights of the county in and to the public property or public rights of way, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this chapter and the franchise.

(6)

Transfer time periods. In the absence of extraordinary circumstances, the county will not approve any transfer or assignment of the franchise prior to construction or the completion of any rebuild of the system except as authorized in the franchise agreement.

(7)

Signatory requirement. Any approval by the county of transfer of ownership or control shall be contingent upon the prospective assignee becoming a signatory to the franchise.

(Code 1979, § 7-103; Ord. No. 98-45, § 5, 8-18-98; Ord. No. 02-66, § 2, 12-17-02)