Chapter 19 CABLE TELEVISION

Sec. 19‑1. Title.

This chapter may be cited as the “Indialantic Cable Television Code.” (Ord. 94-8, 1, 5-17-94)

Sec. 19‑2. Authority; application.

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. (Ord. 94-8, 2, 5-17-94)

Sec. 19‑3. Definitions.

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. (Ord. 94-8, 3, 5-17-94; Ord. 95-3, 1, 11-30-94)

Sec. 19‑4. Reservations.

(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.

(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. (Ord. 94-8, 4, 5-17-94)

Sec. 19‑5. Rate Regulation.

(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 sub‑section (d), the town shall publish in a local newspaper of general circulation, a public notice of the intent of the town council to

conduct 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 sub‑section (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 sub‑section (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.

(h) In the course of the rate regulation proceeding, the town may request additional information from the cable operator that is, in its opinion, reasonably necessary to determine the reasonableness of the basic service tier rates and equipment charges. Any such additional information submitted to the town shall be verified by an appropriate official of the cable operator who supervised the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person’s knowledge, information and belief formed after reasonable inquiry. The town may request proprietary information; provided that the town shall consider a timely request from the cable operator that said proprietary information shall not be made available for public information, consistent with the procedures set forth in the FCC rules and regulations. Furthermore, said proprietary information may be used only for the purpose of determining the reasonableness of the rates and charges or the appropriate rate level based on a cost‑of‑service showing submitted by the cable operator. The town may exercise all powers under the laws of evidence applicable to administrative proceedings under the laws of the State of Florida to discover any information relevant to the rate regulation proceeding, including, but not limited to, subpoenas, interrogatories, production of documents, and deposition.

(i) Upon termination of the rate regulation proceeding, the town council shall adopt and release a written decision as to the application. The town council shall decide the matter by majority vote of its members present and voting and shall adopt a resolution:

(1) stating whether or not the rates or proposed rate increase(s) are reasonable or unreasonable, and, if unreasonable, its remedy, including prospective rate reduction, rate prescription, and refunds;

(2) Approving, disapproving or modifying the proposed rate changes as authorized by FCC rate regulation standards; and

(3) Setting forth findings of fact and conclusions regarding the town council’s determination.

(j) The town shall be authorized, at any time, whether or not in the course of a rate regulation proceeding, to gather information as necessary to exercise its jurisdiction as authorized by the Act and the FCC rules and regulations. Any information submitted to the town shall be verified by an appropriate official of the cable operator who supervised the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person’s knowledge, information and belief formed after reasonable inquiry.

(k) The cable operator shall have no vested, impairment‑of contract, or other right as against such rate regulation.

(l) Nonenforcement not a waiver. The cable operator shall not be excused from complying with any of the requirements of this chapter by any failure of the town on any one (1) or more occasions to insist upon or to seek compliance with any such terms or conditions.

(m) Should the town at some future date be allowed to regulate other than basic tier cable television service and equipment rates, all as provided in the Act, the town may, in its sole discretion, institute such rate regulation as it deems appropriate. Any franchise agreement issued after January 1, 1994 shall be issued subject to this regulation, whether it shall so state or not.

(Ord. No. 94-8, 5, 5-17-94)

Sec. 19-6. Application for franchise.

(a) All franchise applications to construct, operate, or maintain any cable system in the Town, whether a renewal, transfer, or otherwise, or to traverse any portion of those areas for the transmitting or conveying of such service elsewhere, shall be filed with the Town Manager, 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 and addresses of all general partners and corporate officers of the applicant;

(B) The names and addresses of all persons and entities having, controlling, or being entitled to have or control fifteen percent (15%) or more of the ownership of the applicant and the respective ownership share of each such person and 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 description of all previous experience of the applicant in providing cable system services or related to 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 town 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 Town. The Town Council shall have the right to reject an applicant’s financial statement based upon the Town Council finding the certified public accountant is not qualified to render the opinion; and

(F) A statement identifying, by place and date, any other cable system franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; and the total cost of completion of such system(s); 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 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;

(D) A program listing indicating the channels and networks to be offered to subscribers within the Town, together with a plan which the applicant is willing to commit to for the expansion of programming services.

(4) A copy of the form of any agreement, understanding, or other instrument proposed to be entered into between the applicant and the 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, firm or corporation 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 Cable TV Information Report, FCC Form 325 as submitted to the FCC; and

(8) Any other reasonable information which could materially affect the granting of a new franchise and requested by the Town.

(b) Franchise application fee. Each franchise application submitted for a franchise, whether a renewal, transfer, or new application, shall be accompanied by a franchise application processing fee in such amount as may be set from time to time by resolution of the Town Council.

(1) Upon receipt of a franchise application for a cable system franchise, whether renewal, transfer, or new application, the Town Council shall publish, within the required time frame, in a

newspaper of general circulation a notice of consideration of a cable system franchise. Said notice shall name the applicant, describe the proposed service area, invite comments regarding establishment of a cable system in the proposed franchise area from existing cable systems and the general public and set a time and date certain, at least thirty (30) days from the date of the first publication of the notice, for a public hearing on all applications filed for the establishment of a cable system and for all comments to the establishment of such cable system.

(2) The application shall be a matter of public record. An application may be amended in writing at any time prior to the time and date for the public hearing being set. 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 Town Council.

(d) Issuance of franchise.

(1) The town council 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 cable 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;

(D) The experience of the applicant in the erection, operation and maintenance of a cable television system;

(E) The potential of disruption of future service by destructive competition because of the presence of too many competing companies based upon the number of potential subscribers in the proposed service areas;

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

(G) The location and type of permanent facilities proposed to be constructed for such cable television system;

(H) 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; and

(I) Compliance with the provisions of this chapter.

(2) In no event shall the Town grant any overlapping franchise for cable service within its jurisdiction on terms or conditions more favorable or less burdensome than those in any existing franchise within the Town. (Ord. No. 95-3, 2, 11-20-94)

Sec. 19-7. Grant of a franchise.

(a) Grant. The town can grant revocable and non-exclusive franchises to construct and operate a cable system in, under, over, along, across or upon the public rights-of-way within the town for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of audio, video, data, or other signals.

In exercising rights pursuant hereto, the franchisee shall not endanger or interfere with the lives of persons, interfere with any installations, buildings, or facilities of the town, any public utility, or any other person permitted to use the public rights-of-way, nor unnecessarily hinder or obstruct the free use of the public rights-of-way. The grant of one franchise does not establish priority for use over the other present or future permit or franchise holders or the town’s own use of the public rights-of-way.

All rights granted for the construction and operation of the cable system shall be subject to the continuing right of the town to require such reconstruction or relocation of the cable system in the public rights-of-way as shall in the opinion of the town be in the public interest.

No grant of any franchise shall be exclusive or affect the right of the town to grant to itself or any other person the right to: build, operate, or own a cable system; occupy or use the public rights-of-way for the construction and operation of a cable system or for any purpose whatever. No privilege or power of eminent domain is bestowed on a franchisee by the grant of a franchise.

(b) Event of conflict. In the event of conflict between the terms and conditions of this code and the franchise, the franchise agreement shall control. In all events, the franchisee shall comply with all laws, ordinances and regulations enacted by the town pursuant to its lawful police and regulatory powers as authorized by law.

(c) General code provisions. Any franchise granted by the town is hereby made subject to the general code provisions now in effect and hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the various codes of the town regarding permits, taxes, fees to be paid, or manner of construction. (Ord. 95-3, 3, 11-30-94)

Sec. 19-8. Operation of a franchise.

(a) Use of public rights-of-way. For the purpose of operating and maintaining a cable system in the town, the franchisee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the town such wires, cables,

conductors, ducts, conduits, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the cable system; provided, however, that franchisee complies with all design, construction, safety, and performance provisions contained in this code, the franchise, and other applicable local ordinances.

(b) Term of franchise. The term of the franchise shall commence upon execution of the franchise by the town and the franchisee, unless otherwise provided in the franchise agreement, and shall continue for a period specified in the franchise, unless sooner terminated as provided herein.

(d) Right of condemnation reserved. Nothing in this code or the franchise shall limit any right the town may have to acquire by eminent domain or otherwise 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.

(e) Town’s right to perform public works. Nothing in this code shall be in hindrance to the right of the town or any governmental authority to perform or carry on, directly or indirectly, any public works or public improvements of any description. Should the cable system in any way interfere with the construction, maintenance or repair of such public works or public improvements, the franchisee shall, at its own cost and expense, protect or relocate its cable system, or part thereof, as reasonably directed by the town officials or any governmental authority.

(f) Emergency removal of plant. If at any time, in case of an emergency, fire or disaster in the town, it shall become necessary in the reasonable judgment of the town to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the cable system, the town shall have the right to do so at the sole cost and expense of franchisee. However, the Town shall make all reasonable efforts to contact the franchisee prior to any cutting or moving of wires, cables, amplifiers, appliances, or appurtenances of the cable system, and if possible, in the Town’s reasonable discretion, to allow the franchisee to perform any cutting or moving of the cable system wires, cables, amplifiers, appliances, or appurtenances. The franchisee 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, fire, or disaster did not exist then the cost of such removal and reinstallation shall be borne by the town.

(g) Removal or abandonment. Upon termination of the franchise, at the request of the Town the franchisee shall remove its cable system from the public rights-of-way and shall restore any property, public or private, to its original condition prior to the installation, erection, or construction of the cable system. Restoration of town property, including, but not limited to, the public rights-of-way, shall be in accordance with the directions and specifications of all affected departments and agencies of the town, and all applicable law. The franchisee shall accomplish such restoration at its expense. If such removal and restoration is not completed within twelve (12) months after notice

by the town delivered in writing to franchisee, all of the franchisee’s property remaining in the affected public rights-of-way shall, at the option of the town, be deemed abandoned and shall, at the option of the town, become the property of the town. In the event the franchisee fails or refuses to remove its system or to satisfactorily restore all areas to as reasonably as close of condition in which they existed prior to the original construction of the system, the town, at its option, may perform such work and collect the cost thereof from the franchisee.

(h) Time is of the essence to this code. Whenever the code 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 town to invoke any applicable provision of the code and franchise agreement.

(i) No waiver of rights. No course of dealing between the franchisee and the town nor any delay on the part of the town in exercising any rights hereunder shall operate as a waiver of any such rights of the town or acquiescence in the actions of the franchisee in contravention of the town’s rights, except to the extent expressly waived by the town or expressly provided for in the franchise. (Ord. No. 95-3, 4, 11-30-94)

Sec. 19-9. Transfer of ownership or control.

(a) 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 town, and then only under such reasonable conditions as the town may establish which may include but not be limited to financial guarantees to the cable system.

(b) Transfer threshold. The franchisee shall promptly notify the town of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the franchisee.

(c) Town approval. Every change, transfer, or acquisition of control of the franchisee shall make the franchise subject to cancellation unless and until the town shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the town 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 town in obtaining all required information. Failure to provide all reasonable information requested by the town as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control.

(d) Signatory requirement. Any approval by the town of transfer of ownership shall be contingent upon the prospective assignee becoming a signatory to the franchise. (Ord. No. 95-3, 5, 11-30-94)

Sec. 19-10. Franchise fees.

(a) All cable system franchisees shall pay to the town a franchise fee in an amount as designated in the franchise agreement, but in no event shall that fee be less than five percent (5%) of the gross annual revenues, which payments shall exclude bad debts, taxes and fees collected by the franchisee on behalf of any governmental entity. This franchise payment shall become effective on the next subscriber billing cycle after sixty (60) days from the effective date of the franchise. If applicable law, including but not limited to the Act or FCC regulations (all as amended from time to time), allows a greater franchise fee, the franchisee shall within thirty (30) Days of adoption of said law or regulation forward a copy of same to the Town to the attention of the Town Manager. The parties shall meet and confer to negotiate an increased fee within ninety (90) Days of notice to the franchisee by the Town, if the Town wishes to renegotiate said franchise fee. The town shall be furnished a fully certified statement of said payment by a certified public accountant, reflecting the total amounts of annual gross revenues from the town and the above charges and computations for the period covered by the payment within ninety (90) days after the end of each year.

(b) Franchise fees in addition to other taxes or payments. Payment of the franchise fee made by the franchisee to the town shall not be considered in the nature of a tax, but shall be in addition to any and all taxes of general applicability which are now or may be required hereafter to be paid by any Federal, State, or local law.

(c) Acceptance by the town. Subject to applicable law, no acceptance of any payment by the town shall be construed as a release or as an accord and satisfaction of any claim the town may have for further or additional sums payable as a franchise fee under this code or for the performance of any other obligation of the franchisee.

(d) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, the franchisee shall pay as additional compensation an interest charge, computed from such due date, at an annualized rate equal to the commercial prime interest rate of the town’s primary depository bank during the period that such unpaid amount is owed.

(e) Periodic payments to be made. The franchisee shall make fee payments of monies due hereunder within thirty (30) days of the end of each calendar quarter for franchise fees collected during the preceding quarter. Accompanying said payment, the franchisee shall also report its gross revenues for the preceding quarter’s period.

(f) Town right to inspection. The town shall have the right to inspect the franchisee’s gross revenue records and to audit and to recompute any fee amounts. No audit of the franchisee’s records relating to gross annual revenue shall take place later than thirty-six (36) months following the close of each of the franchisee’s fiscal years. Audits that result in payment of five percent (5%) or more of franchise fees during the audit period, shall be at the expense of the franchisee. Any additional amount due to the town as a result of the audit shall be paid within thirty (30) days of notice by the town, unless the franchisee disputes the results of the audit. The franchisee agrees to meet with the

Town and will attempt in good faith to resolve any differences. Thereafter, the additional amount due shall be subject to payment within thirty (30) days after said additional amount is determined to be due by the franchisee and the town, or the town declares an impasse in the negotiations with the franchisee.

(g) Payments due in event of termination or expiration. In the event the franchisee continues the operation of any part or all of the cable system beyond the termination, revocation, or expiration of the franchise granted herein, it shall pay to the town the franchise fee as set forth in this franchise, at the time of such termination or expiration, and in the manner set forth in this franchise.

(h) Alternative fee contingencies. In the event that the franchisee’s obligation to pay a franchise fee is held invalid by a decision of any court of competent jurisdiction or due to the actions of any legislative body, the franchisee shall negotiate with the town in good faith and shall agree, if permissible under then applicable law, to provide compensation to the town in lieu of the franchise fee. The amount of compensation shall, to the extent permitted by applicable law, as amended from time to time, shall be comparable to that which the franchisee would pay as the franchise fee under the terms of its franchise if such terms were still valid and shall be passed through to the subscriber in a manner similar to the franchise fee.

(i) Other fees and taxes. To the extent that any federal or state law or regulation may now forbid the town from assessing any type of fee or tax, upon repeal, modification, or judicial interpretation of said law or rule that would permit the town to assess said fee or tax, the town shall have the right to assess said fee or tax to the full extent authorized by law; provided, that the town shall first consult with the franchisee. If applicable law is modified to allow a fee or tax, the parties shall meet and confer within ninety (90) days of notice from the town to in good faith negotiate franchise provisions to implement the collection of said fee or tax. (Ord. No. 95-3, 6, 11-30-94)

Sec. 19-11. Forfeiture or revocation.

(a) Grounds for revocation. The town reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this code and the franchise grant:

(1) If the franchisee shall default in the performance of any of the material obligations under this code or the franchise agreement;

(2) If the franchisee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein;

(3) If the franchisee shall violate material provision of any orders or rulings of any regulatory body having jurisdiction over the franchisee relative to this code or the franchise and any regulatory ordinance of the town or FCC after notice and an opportunity to cure;

(4) If the franchisee practices any fraud upon the town or cable subscribers;

(5) If the franchisee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt;

(6) Failure to restore service town-wide after ninety-six (96) consecutive hours of interrupted service, except when approval of such interruption is obtained from the town, as provided in sub-section 19-11(b);

(7) Material misrepresentation of fact in the application for or negotiation of the franchise or any extension or renewal thereof; and

(8) If the franchisee shall fail to pay the franchise fee due after demand as provided in this code.

(b) Effect of circumstances beyond control of franchisee. The franchisee shall not be declared at fault or be subject to any sanction under any provision of this code or the franchise agreement in any case, in which performance of any such provision is prevented for reasons beyond the franchisee’s control. For the purposes of this code and any franchise agreement granted or renewed hereunder, causes or events beyond the franchisee’s control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. A fault shall not be deemed to be beyond the franchisee’s control if committed by a corporation or other business entity in which the franchisee holds a controlling interest whether held directly or indirectly, when such fault is due to franchisee’s financial inability to perform or comply, economic hardship, or misfeasance, malfeasance or nonfeasance by any of the franchisee’s directors, officers, employees or contractors or agents.

(c) Effect of pending litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the franchisee shall not excuse the franchisee from the performance of its obligations under this code or the franchise unless specifically provided for by court order or by the regulatory body having jurisdiction over such matters. Failure of the franchisee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section.

(d) Procedure prior to revocation. The Town shall notify the franchisee in writing of the exact nature of the alleged violation constituting a ground for termination and give the franchisee thirty (30) days, or such greater amount of time as the Town may specify, to correct such violations or to present facts and arguments to refute the alleged violation. If the Town then concludes that there is a basis for termination, it shall notify the franchisee thereof. If within the designated time the franchisee does not remedy and/or put an end to the alleged violation, the Town, 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. The franchisee shall not be held in default nor suffer any penalties where non-compliance or default is caused by an event beyond the franchisee’s control. The franchisee shall have the right to review by a court of competent jurisdiction upon the Town Council’s determination of non-compliance. (Ord. No. 95-3, 7, 11-30-94)

Sec. 19-12. Regulatory authority.

(a) Authority. The town reserves the right to exercise the maximum plenary authority, as may at any time be lawfully permissible, to regulate the cable system, the franchise and the franchisee. Should applicable legislative, judicial or regulatory authorities at any time permit regulation not presently permitted to the town, the town may without the approval of the franchisee engage in any such additional regulation as may then be permissible, whether or not contemplated by this code or the franchise, including without limitation, regulation regarding franchise fees, taxes, programming, rates charged to subscribers, consumer protection, or any other similar or dissimilar matter. The town agrees to meet and confer with the franchisee prior to enacting new regulatory ordinances.

(b) Right of inspection of cable facilities. The town shall have the right to inspect all cable facilities or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this code and other pertinent provisions of the law.

(c) Town regulation. To the extent that federal or state law or regulation may now, or as the same may hereafter be amended by legislation, administration regulation or decision, or judicial determination, to authorize the town to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by franchisee, the town shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the town. The Town shall provide advance notification to the franchisee of its intention to exercise any such regulation and written notification when such ordinance is adopted. However, failure to so provide advance notification to the franchisee or written notification when such ordinance is adopted shall not be a basis upon which to declare a franchise agreement in breach or to invalidate the adopted ordinance. (Ord. No. 95-3, 8, 11-30-94)

Sec. 19-13. Performance bonding; alternatives.

(a) Performance bond. Prior to the effective date of the franchise, a franchisee shall obtain and maintain during the entire term of any franchise and any extensions and renewals thereof, at its cost and expense, and file with the Town a corporate surety bond in the amount of $50,000 to guarantee the faithful performance by the franchisee of all of its obligations provided under this agreement and the Town Code. Such bond must be issued by a surety acceptable to the Town. Alternatively, the franchisee shall obtain and continuously maintain an unexpired irrevocable letter of credit, which shall at all times be in the possession of the Town. The form and contents of such performance bond or letter of credit shall be acceptable to the Town. The letter of credit shall be released only upon expiration of the franchise or upon the replacement of the letter of credit by a successor franchisee.

(b) Conditions. The performance bond or letter of credit shall be issued upon the following conditions:

(1) The performance bond shall be issued by a surety, located within this State, and licensed and authorized by the State of Florida to do business as a surety in Florida. The irrevocable letter of credit shall be issued by a bank or savings and loan association acceptable to the Town, located in this State, and authorized to do business in this State by either the State of Florida Comptroller or the United States government. The letter of credit shall name the town as the beneficiary.

(2) There shall be recoverable by the town jointly and severally from the principal and surety or the financial institution that has issued the letter of credit, any and all fines and liquidated damages due to the town and any and all damages, losses, costs, and expenses suffered or incurred by the town resulting from the failure of the franchisee to: faithfully comply with the provisions of this code and the franchise; comply with all orders, permits and directives of any town agency or body having jurisdiction over its acts or defaults; pay any claims, liens, fees, or taxes due the town which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include but not be limited to attorney’s fees and other associated expenses.

(3) The total amount of the bond or letter of credit shall be forfeited as a liquidated damage paid to the town in the event:

(A)The franchisee abandons the cable system or fails to initiate or complete construction of the cable system as specified in any franchise agreement or any extension thereto;

(B)The franchisee assigns the franchise without the express written consent of the town; or

(C)The franchise is terminated by reason of the default of the franchisee.

(c) Reduction of bond/letter of credit. Upon written application by the franchisee, the Town may, at its sole option, permit the amount of the bond or letter of credit to be reduced or waived for the term of the franchise or periods of time, when it is determined by the Town Council to be in the public interest. Upon written application by the franchisee, the Town may, at its sole option, permit the terms of the requirements of the performance bond/letter of credit to be altered or waived for the term of the franchise or periods of time, when it is determined by the Town Council to be in the public interest.

(d) Use of performance bond and letter of credit. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this section, the town shall notify the franchisee in writing that payment is due, and the franchisee shall have thirty (30) Days from the receipt of such written notice to make a full and complete payment. If the franchisee does not make the payment within thirty (30) Days or demonstrate reason acceptable to the Town why such action should not be taken, the town may withdraw the amount thereof, with interest and penalties, from the letter of credit or the performance bond. Within three (3) days of a withdrawal from the letter of credit or performance bond, the town shall send to the franchisee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.

(e) Replenishment of letter of credit and performance bond. No later than thirty (30) days, after mailing to the franchisee by certified mail notification of a withdrawal pursuant to paragraph (d) above, the franchisee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a failure of the franchisee to faithfully comply with the provisions of this code and the franchise.

(f) Non-renewal, alteration, or cancellation of letter of credit or performance bond. The performance bond and letter of credit required herein shall be in a form satisfactory to the town which approval shall not be unreasonably withheld and shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the town and the franchisee. The franchisee shall, in the event of any such cancellation, alteration, or non-renewal notice, obtain, pay all premiums for, and file with the town, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the town or the franchisee of any notice of cancellation, alteration, or non-renewal.

(g) Inflation. To offset the effects of inflation the amount of the bond or letter of credit provided for herein, are subject to a reasonable increase at the end of every three (3) year period of the franchise, applicable to the next three year period, at the sole discretion of the town.

(h) Default. The performance bond and letter of credit provided pursuant to this section shall become the property of the town in the event that the franchise is cancelled or terminated by reason of the default of the franchisee.

(i) Right to require replacement of bonds or letter of credit. If the town becomes aware of the financial condition of any bonding or financial institution issuing a performance bond or letter of credit as required herein and said financial condition is deemed by the town to jeopardize the collateral posted with the town, the town may, at any time, require that any such bond or letter of credit be replaced with such other bond or letter of credit consistent with the requirements set forth in this section.

(j) Insurance for contractor and subcontractors. The franchisee, or its subcontractors, shall provide coverage for any contractor or subcontractor involved in the construction, installation, maintenance, removal, or operation of the cable system by either obtaining the necessary endorsements to its insurance policies or requiring such contractor or subcontractor to obtain appropriate insurance coverage consistent with this code and appropriate to the extent of its involvement in the construction, installation, maintenance, removal, or operation of franchisee’s cable system. (Ord. No. 95-3, 9, 11-30-94)

Sec. 19-14. Liability and Insurance.

(a) Certificate of insurance. Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the franchisee shall furnish to the town, certificates of insurance, approved by the town, for all types of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a failure to faithfully comply with the franchise agreement. At the town’s request, the franchisee shall furnish copies of any or all policies or certificates of insurance which are in effect from time to time.

(b) No liability limit. Neither the provisions of this section or any damages recovered by the town hereunder, shall be construed to limit the liability of the franchisee for damages under any franchise issued hereunder.

(c) Endorsement. All insurance policies maintained pursuant to a franchise shall contain an endorsement in substantially the following form:

It is hereby understood and agreed that this insurance policy may not be modified or canceled by the insurance company nor the intention not to renew be stated by the insurance company until thirty (30) days after receipt by the Indialantic town manager by certified mail, of a written notice of such intention to cancel or not to renew.

(d) State institution. All insurance policies provided pursuant to a franchise agreement shall be written by companies authorized by the Florida Insurance Commissioner to do business in the State of Florida as an insurance company.

(e) Named Insured. The town shall be an additional named insured for all insurance policies written pursuant to a franchise.

(f) Changes in policy limits. To offset the effects of inflation and to reflect changing liability limits, all of the coverage, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three (3) year period of the franchise, applicable to the next three year period, at the town’s discretion.

(g) Commercial general liability insurance. The franchisee shall maintain throughout the term of the franchise, general liability insurance insuring the franchisee in the minimum of:

(1) $1,000,000 for property damage single limit; and

(2) $2,000,000 single limit liability for personal bodily injury or death to any one person.

Such general liability insurance must include coverage for all of the following: comprehensive form, premises operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury.

(h) Automobile liability insurance. The franchisee shall maintain throughout the term of the franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:

(1) $1,000,000 single limit liability for bodily injury and consequent death per occurrence; and

(2) $500,000 for property damage per occurrence.

(i) Worker’s compensation. The franchisee shall maintain throughout the term of the franchise, worker’s compensation in the minimum amount of the statutory limit for worker’s compensation, as amended from time to time. (Ord. No. 95-3, 10, 11-30-94)

Sec. 19-15. Indemnification.

(a) Indemnity. The franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the town and its officers, boards and commissions, contractors, and town employees against any and all claims, suits, actions, declaratory, injunctive, or equitable claims, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities claimed against the town in connection therewith):

(1) To persons or property, in any way arising out of or through the acts or omissions of the franchisee, its servants, agents or employees;

(2) Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation arising out of the award or operation of its cable system and franchise or any programming carried on franchisee’s cable system; and

(3) Arising out of the franchisee’s failure to comply with the provisions of any federal, state, or local laws, ordinances, or regulations applicable to franchisee in its business hereunder.

(b) Condition. The foregoing indemnity is conditioned upon the town giving the franchisee prompt notice of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the town from cooperating with the franchisee and participating in the defense of any litigation by its own counsel at its own costs and expense. (Ord. No. 95-3, 11, 11-30-94)

Sec. 19-16. Design and construction provisions.

(a) Authorization to commence construction and application procedures. Prior to the installation or erection of any towers, poles or conduits, other than minor or emergency excavation and maintenance, or the upgrade or rebuild of the cable system, the franchisee shall first submit to the

town for review a concise description of the facilities proposed to be maintained, erected, removed, or installed, including engineering drawings, if required by the town. No erection or installation of any tower, pole, underground conduit, or fixture, excavation of other than a minor or emergency nature shall be commenced by any person until proper permits have been received from the town.

(b) Town maps. The town does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures or utilities.

(c) Compliance with construction and technical standards. The franchisee, through the cable system, shall provide uniform, strong signals which are free from any significant distortion and interference as required by FCC. The cable system shall be designed, constructed, operated and maintained for 24-hours-a-day continuous operation. The system shall produce, for reception on subscribers’ receivers which are in good working order, either monochrome or color pictures (providing the receiver is color capable) which are free from any noticeable interference or distortion which would cause any material degradation of video or audio quality as required by F.C.C.

(d) Quality of construction. Construction, installation, operation, and maintenance of the cable system shall be performed in an orderly and workmanlike manner, in accordance with then current technological standards. The franchisee shall utilize its best efforts to have all cables and wires installed, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for aesthetic and engineering considerations. Nothing herein shall preclude underground installation.

(e) Underground Installation.

(1) All installations shall be underground in those areas of the town where public utilities providing telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, the franchisee may install its cable system above ground; provided, that at such time as those facilities are required to be placed underground by the town or are placed underground, the franchisee shall likewise place its cable system underground without additional cost to the town or to the individual subscribers so served within the town so long as the franchisee is provided with access to the open trenches at the time of excavation. Where not otherwise required to be placed underground by this code or the franchise, the franchisee’s system shall be located underground at the request of the adjacent property owner; provided that the excess cost over the aerial location shall be borne by the property owner making the request. 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 cable be constructed under a paved street, alley or other public way by digging or excavating from the surface of the paved street. All cable passing under the street shall be installed in conduit.

(2) Prior to performing any underground construction, the franchisee shall use its best efforts to locate, in advance, any water, sewage, gas, electric, drainage, or other utility (including other cable systems) lines, including compliance with Chapter 556, Florida Statutes, to the extent applicable. Where any damages or alterations occur to said utility lines in the public right-of-way as a result of construction, reconstruction, maintenance, or removal of the cable system by the franchisee, its agents or independent contractors, the cost of such repairs including all services and materials will be the responsibility of the franchisee.

(f) Construction notice. Except with regard to routine maintenance and emergency circumstances, the franchisee shall give appropriate notice to the town and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than (5) business days before such commencement.

(g) Interference with persons, public and private property, and utilities. The franchisee’s system and facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall:

(1) Not endanger or interfere with the health, safety or lives of persons;

(2) Not interfere with any improvements which the town, county or state may deem proper to make;

(3) Not interfere with the free and proper use of public rights-of-way, alleys, bridges, easements or other public property, except to the minimum extent possible during actual construction or repair;

(4) Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual construction or repairs; and

(5) Not obstruct, hinder or interfere with any gas, electric, water, wastewater, reclaimed water, stormwater drainage, telephone, or other utility facilities located within the town.

(h) Restoration to prior condition. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the franchisee shall, at its own cost and expense and in a manner approved by the town, replace and restore all paving, sidewalk, driveway, landscaping, or surface of any street or alley disturbed, in as good a condition as before said work was commenced and in a good workmanlike, timely manner in accordance with standards for such work set by the town or the governmental entity having operational and maintenance responsibility for the right-of-way. Unless otherwise approved by the town manager, such restoration shall be undertaken within no more than ten (10) business days after the damage is incurred and shall be completed as soon as possible thereafter.

(i) Private property. The franchisee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operating or maintenance of the cable system at its sole cost and expense.

(j) Tree trimming. The franchisee shall trim trees or other vegetation to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as follows:

(1) Except for emergencies, all tree/root trimming or pruning to be conducted on public property or public rights-of-way shall be done only with the town’s prior written approval;

(2) All trimming or pruning shall be at the expense of the franchisee;

(3) Any and all persons engaged by the franchisee to provide tree trimming or pruning services shall be deemed, for purposes of the franchise, an employee or agent of franchisee when engaged in such activity, and in no event shall such person be deemed to be an employee of the town; and

(4) The franchisee shall use its best efforts to obtain the prior permission of the owner of any privately owned trees or other vegetation before it prunes or trims same.

(k) Erection, removal, and common use of poles. No poles shall be erected by the franchisee without prior approval of the town with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the franchisee shall be a vested right, and such poles shall be removed, relocated or modified by the franchisee at its own expense whenever the town determines that the public safety, convenience, or aesthetics would be enhanced thereby. The Town may also require that such poles shall be removed, relocated or modified by the franchisee at the Town’s expense for other reasons. No poles shall be erected by the franchisee exceeding thirty (30) feet above grade in height and shall be of a concrete construction with a diameter of not greater than ten (10) inches at the base and four (4) inches at the top. 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. In the event that a pole owned by other than the franchisee is to be moved either at the request or direction of the town and franchisee is making use of said pole, the franchisee shall remove, relocate or modify its lines, wires, appurtenance, and equipment attached to said pole at franchisee’s expense at the request of the town. The town shall have the right, during the term 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 does not unreasonably interfere with the cable system operations of the franchisee.

(l) Progress reports. For work involving right-of-way excavation for other than in the event of an emergency, prior to commencing construction, the franchisee shall provide the town with a schedule for completion of said work. If the work, whether of an emergency nature or otherwise,

takes longer than five (5) days to complete, each calendar week, the franchisee shall submit to the town a written progress report detailing work completed to date construction, work remaining to be completed, and time remaining to complete said work. Such report shall include a description of the progress in applying for any necessary agreements, licenses, or certifications and any other information the town manager may deem reasonably necessary for the monitoring of the work schedule.

(m) Cumulative Leakage Index (“CLI”) monitoring. The franchisee shall comply with FCC requirements with regard to CLI monitoring on an on-going basis. The results of said monitoring shall be made available to the town upon written request. (Ord. No. 95-3, 12, 11-30-94)

Sec. 19-17. Service to subscribers.

(a) Programming. The franchisee shall provide all services to subscribers as described herein.

(1) Inform subscribers. The franchisee shall inform subscribers, via written notice of proposed programming changes at least thirty (30) days in advance of said change.

(2) Subscriber electronic equipment. To the extent economically feasible and technologically available, the franchisee shall ensure that its system shall be compatible with television sets that are equipped with premium function (picture in picture and cable tuning), VCR’s, etc. The franchisee shall notify subscribers that they may purchase commercially available remote control device from any source that sells such device rather than renting it from the franchisee. The franchisee shall periodically notify subscribers that a partial list of the types of remote control units that are compatible with the converter box supplied by the franchisee, is maintained at the franchisee’s business offices and available for subscriber inspection. The franchisee shall not take any action that prevents commercially available remote control units to be utilized with the franchisee converter box.

(3) Emergency Override. The Franchisee shall, without charge, provide, service and maintain emergency override equipment which shall be shared and coordinated with the other local governmental entities in the County.

(4) Televising Town Council meetings. As part of its basic tier of programming service, from time to time as requested by the Town and within the franchise area as much as possible, the franchisee shall televise a tape of all Town Council meetings. The tape shall be telecasted in its entirety without significant interruption during evening hours commencing between the hours of 6:00 p.m. and 8:30 p.m. within not more than seven (7) days after the Town supplies a videotape of the Council meeting. The Town shall be responsible for the cost and expense of taping of the Town Council meetings, and the tape shall meet the technical requirements of the franchisee. The franchisee shall be responsible for the cost

of telecasting said meetings. Upon request by the Town, the franchisee shall give technical expertise to the Town in taping its Town Council meeting, and the franchisee may, but shall not be obligated, to charge a reasonable fee for the purpose of defraying the cost of said expertise.

(b) Consumer services.

(1) Business office. The franchisee shall establish, operate and maintain an office/repair facility within twelve (12) miles of the town. The purpose of the facility will be to: provide maintenance and repair to the cable system; receive inquiries, requests and complaints concerning all aspects of the of the cable system; and to receive payment of subscribers’ service charges. Office hours will be at a minimum: Monday-Friday, 8:30 am – 5:30 pm.

The franchisee shall provide all subscribers with at least thirty (30) days prior written notice of a change in business office hours. Under normal operating conditions, the business office shall maintain a staff adequate to process complaints, requests for installation, service or repairs, and other business in a timely and efficient manner.

(2) Telephone service. The franchisee shall have a listed toll-free telephone number for service calls available twenty-four (24) hours a day, seven (7) days a week and for consumer information, complaints, and installation/disconnection of service available during regular business office hours. Said telephone number(s) shall be made available to the general public by the telephone information operator and published in the local telephone directory. The franchisee shall provide a telephone number to the town and utility companies to enable the town or utility companies to reach the franchisee in case of emergency on a 24-hour, 7-days-a-week basis. The number shall be a telephone number that Town or utility company officials will be able to reach an appropriate Franchisee official as quickly as possible. The number may be an unlisted number or a number that Town/utility officials will be able to reach an appropriate Franchisee official without delay. All subscriber related calls will be handled by a customer service representative (“CSR”). The CSR will attempt to resolve the subscriber’s concern over the phone. Telephones will be answered within thirty (30) seconds and transitioning of calls shall be made within thirty (30) seconds ninety percent (90%) of the time. The caller shall receive a busy signal less than five percent (5%) of the time. The Franchisee shall monitor compliance with this section, and at the request of the Town shall verify to the Town’s reasonable satisfaction such compliance. The franchisee shall add additional telephone lines and service representatives when existing lines are substantially utilized or when a pattern of subscriber complaints reflect a need for additional service employees.

In the event the CSR is unable to resolve the call, it will be assigned to a service technician. Under normal operating conditions, the call will then be scheduled for service before the end of the next business day. The following level of service is a minimum level of service: For single subscribers service technicians are available Monday-Friday, 8:00 am – 6:00 pm, and are “on-call” during the weekends. Efforts to schedule specific morning (8:00 am – 12:00 pm) or afternoon (1:00 pm – 5:00 pm) appointments are made when it is reasonably necessary to accommodate a subscriber’s schedule. In addition, service technicians are “on-call” 6:00 am – 7:00 pm weekdays for minor outage problems. A “minor outage” is defined as a disruption of service reasonably identifiable as unique to 3 to 10 subscribers, or to a specific geographic area. Appointments are scheduled to be date-specific.

A technician may cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment, but only if the Franchisee’s technician first contacts the subscriber to notify them of the cancelled appointment. The appointment will be re-scheduled at the convenience of the subscriber on a weekday between 8 am and 6 pm or on a weekend between 9:00 a.m. and 5:00 p.m. If the installer is running late and will not be able to keep the service appointment as scheduled, the subscriber will be contacted, and the appointment will be rescheduled at the subscriber’s convenience on a weekday between 8 am and 6 pm or on a weekend between 9:00 a.m. and 5:00 p.m.

(3) “Normal operating conditions,” as that term is used in this sub-section 19-17(b), includes all conditions except times of natural disasters, power outages, civil disturbances, telephone network outages, severe or unusual weather conditions, and includes but is not limited to other similar types of circumstances beyond the control of the franchisee.

(c) Service outage. The franchisee will begin working on a “major outage” promptly and complete repairs no later than twenty-four (24) hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem. System outages are handled from 8:00 am to 10:00 pm, seven days per week. These hours take into consideration the safety and security precautions for all cable system personnel. A “major outage” is defined as total disruption of service to a majority of subscribers within a specific geographic area.

(d) Complaint Records. The franchisee shall keep full records in connection with all inquiries, complaints and requests in connection with the system. Such records shall identify the person contacting the franchisee, and the person responding on behalf of the franchisee, the subject matter of the contact, the date and time it was received, the resolution of the matter in question or the action taken by the franchisee in connection with the contact, and the date and time thereof, and such other information as may be deemed pertinent by the franchisee. Written complaints shall be made available for periodic inspection by the Town.

(e) Subscriber solicitation. The franchisee shall provide the town with a list of names and addresses of all representatives who will be soliciting within the town and the area in and the dates within such solicitations shall take place. Each such representative and all other employees entering upon private property shall be required to wear an employee identification card issued by the franchisee and bearing a picture of said representative.

(f) Installation and connection.

(1) Service obligations. The franchisee shall make service available throughout the entire franchise area to any residential subscribers; provided any back debts due to the franchisee from the prospective subscriber have been made current. Within seven (7) days of a request for service by any person or entity, the franchisee shall furnish the requested service to such person or entity if a standard installation is within one hundred fifty (150) feet from the prospective subscriber’s residence. If not within one hundred fifty (150) feet, service shall be provided within thirty (30) days of a request for service, except where permitting takes a longer periods of time. Any non-standard installation is an installation over one-hundred fifty (150) feet from the prospective subscriber’s residence, and in such cases the provision of service will be handled under a share cost program.

(2) Standard installations. The standard installation shall consist of a service not exceeding one hundred fifty (150) feet from a single point or pedestal attachment to the subscriber’s residence. The desire of the subscriber as to the point of entry into the residence or commercial establishment and location of pedestal, if on the subscriber’s property, shall be observed whenever possible. Runs in building interiors shall be as unobtrusive as possible. The franchisee shall use due care in the process of installation and shall repair any damage to the subscriber’s property caused by said installation. Such restoration shall be undertaken within no more than ten (10) days after the damage is incurred and shall be completed as soon as possible thereafter.

(3) At the request of the Town Manager, the franchisee shall provide one basic service outlet to Town hall, the police department, the fire department, and the public works department and public schools within the Town’s franchise area at no cost to the Town or school involved; provided, however, that the structure to be served is within 150 feet of the franchisee’s distribution system. (Ord. No. 95-3, 13, 11-30-94)

Sec. 19-18. Books and records available to the town.

(a) Records. The town shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, revenue statements, service complaint logs, performance test results and other like materials of the franchisee which relate to the operation and enforcement of the franchise. Access to the aforementioned records shall not be denied by the franchisee on the basis that said records contain “proprietary” information, unless applicable law exempts said records. Said records shall be maintained in Brevard County.

(b) Review. The franchisee shall permit any duly authorized representative of the town to examine and copy or transcribe any and all maps and other records kept or maintained by the franchisee or under its control concerning the operations, affairs, transactions or property of franchisee.

(c) Reports to be filed. The following financial reports for the franchise area shall be submitted annually to the town ninety days (90) after the end of the franchisee’s fiscal year:

(A) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the franchise of five percent (5%) or more.

(B) An annual, fully-audited and certified financial report from the previous calendar year, including year-end balance sheets income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue.

(d) Mandatory records. The franchisee shall at all times maintain:

(1) A record of all complaints received and interruptions or degradation of service experience for the preceding period prior to a performance review.

(2) A full and complete set of plans, records and “as built” maps showing the exact location of all cable system equipment installed or in use in the town, exclusive of subscriber service drops. A “drop” is a connection from the feeder cable to the subscriber/user television set, radio or other terminal.

(e) Other records. The town may impose reasonable requests for additional information, records and documents from time to time, and the franchisee shall produce said records within ten (10) business days, so long as such request relates to the town’s enforcement abilities under this code or the franchise agreement. (Ord. No. 95-3, 14, 11-30-94)

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