Ordinance 93-2876 ORDINANCE NO. 93-2876
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING
MIAMI BEACH ORDINANCE 86-2500 ENTITLED "AN
ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA,
GRANTING AS THEREINAFTER SET FORTH TO ALL-RITE
SATELLITE, INC. , ITS SUCCESSORS AND ASSIGNS,
A NONEXCLUSIVE FRANCHISE FOR THE INSTALLATION
AND OPERATION AND MAINTENANCE OF A CABLE
COMMUNICATION SYSTEM WITHIN THE CITY OF MIAMI
BEACH; ESTABLISHING CERTAIN CONDITIONS
THEREFOR; PROVIDING FOR ACCEPTANCE OF THE
FRANCHISE; PROVIDING FOR REPEAL OF ORDINANCES
OR PARTS THEREOF INCONSISTENT HEREWITH;
PROVIDING FOR SEVERABILITY; PROVIDING FOR AN
EFFECTIVE DATE; SPECIFICALLY AMENDING THE
SECTION REGARDING DEFINITION OF GROSS REVENUE,
CABLE RATE REGULATION, CUSTOMER SERVICE
STANDARDS, AND ESTABLISHING A NEW SECTION
GOVERNMENT PUBLIC ACCESS CHANNEL; PROVIDING
FOR REPEAL OF ORDINANCES OR PARTS THEREOF
INCONSISTENT HEREWITH; PROVIDING FOR
SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on February 5, 1986, the City adopted Ordinance No.
86-2500 awarding a non-exclusive cable television franchise to All-
Rite Satellite, Inc. for a period of 15 years ("the TV Ticket
Franchise") ; and
WHEREAS, the City authorized the assignment of the TV Ticket
Franchise to Rifkin-Narragansett South Florida CATV Limited
Partnership d/b/a Gold Coast Cable, (the "Franchisee") ; and
WHEREAS, the City Administration, with the assistance of
special counsel, has currently engaged the Franchisee in
negotiations with respect to modifications of the terms and
conditions of the TV Ticket Franchise to include terms and
conditions including customer service standards, rate regulation,
and other pertinent issues; and
WHEREAS, the Federal Communications Commission ("FCC") new
rules and regulations with respect to rate regulation are
incomplete and not final, and since these new rules and regulations
will provide authority to the City for rate regulation and will
restrict the Franchisee with respect to rates, the Administration
has determined that it is not reasonable to conclude cable renewal
negotiations pending detailed review of these rules and
regulations.
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City
Commission of the City of Miami Beach, Florida:
SECTION 1. Section 2 (1) entitled "Gross Revenues" is amended
as follows:
(1) "Croce Revenues" shall mean all revenue derived directly
or indirectly from subscribers and uccrc of the CATV system by the
Company, its affiliates, cubsi-diaries, parent and any person in
which the Company has a financial intereet, or its successors,
assigns or transferees, froma or in connection with the operation
of a cable communications system tau-rcuant to this ordinance and
within the City; provided, however, all revenues shall include, but
not be limited tom basic subscriber service monthly fees, pay cable
fees, installation and reconnection feec, lea_--
converter rentals, studio rental, production equipment and
personnel fees, security cervioos, advertising revenues and
including any subscriber revenues from subscribers within the City
even if cuch service is provided by lacer trancmiccion, or light
or optical transmission and even if cubscribers reside in one or
more multiple-unit dwellings under common ownership, control or
management; and that this shall not include any taxes on services
furniched by the Company herein imposed directly upon any
SECTION 2 .
(1) "Gross Revenue" shall mean all revenue including cash,
credits, property of any kind or nature or other consideration
(including barter) recognized directly or indirectly by franchisee
(including to the extent applicable, its Affiliates, as hereinafter
defined subsidiaries, or any person or entity in which the
franchisee has a financial interest) from any source whatsoever
arising from, attributable to, or in any way derived from the sale
or exchange of cable services or the operation of a cable system
by the franchisee within the City, in accordance with generally
accepted accounting principles. Gross revenues includes, but is
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not limited to, fees charged subscribers for any optional premium,
per-channel or per-program service; fees charged subscribers for
any tier of service other than basic service; installation,
disconnection, reconnection and change-in-service fees; leased
access fees; fees, payments or other consideration from programmers
for carriage of programming on the cable system; revenue from
equipment rental or sales; revenue from studio and studio equipment
rental ; advertising service; revenues derived from the sale of
products or services advertised or promoted on the cable system,
including home shopping channels; the sale, exchange or cablecast
by the franchisee of any programming developed on or for access
channels or institutional users; the sale of the signal or any
portion thereof to unlicensed operators; any revenue received
through any means which avoids payment of compensation that would
otherwise be paid to the City for the franchise; and all other
revenue. Gross revenue shall not include to the extent consistent
with generally accepted accounting principles, consistently
applied, bad debt write-offs; taxes and fees of a general nature
imposed by law on subscribers of any state, county, city or other
governmental unit and collected by the franchise on behalf of such
governmental unit and which the franchisee passes on in full to the
applicable tax authority or authorities (provided, however, that
the franchisee fee required to be paid by the franchisee in
accordance with its franchise shall not be considered to be such
a tax of a general nature, as referred to above) . For purposes of
this Section, the term "Affiliate" shall mean any person or entity
which, directly or indirectly, owns ten percent (10%) or more
interest in the franchisee; or any person or entity in which the
franchisee, directly or indirectly, owns ten percent (10%) or more
interest; or any person or entity with at least ten percent (10%)
common interest with the franchisee.
SECTION 2 . Section 9 (a) and (b) entitled "Rates" is amended
as follows:
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SECTION 9 . Rates.
(a) The City retains the right to at any time regulate the rates
that may be charged by the Company, which regulation shall be in
accordance with the Regulations adopted by the FCC pursuant to the
Cable Communications Policy Act of 1984 .
to regulation pursuant to Sec. 8A-13 of the Dade County Code, and
to the rules and regulations of any State or Federal authority
over this type of industry or enterprise.
SECTION 9 . Cable Rate Regulations.
(a) To the extent permitted by applicable law, the City shall
regulate rates of the Cable System.
(b) The City shall regulate the Cable System's rates and
charges in a manner consistent with all applicable FCC rules and
regulations. Before adopting any order with respect to the rates
of a cable system, the City shall provide a reasonable opportunity
for consideration of the views of all interested parties, including
but not limited to, the views of the franchisee.
SECTION 3 . Section 13 , entitled "Operations and Maintenance
System; Service Standards" is amended as follows:
SECTION 13 . Operation and Maintenance of System; Service
Standards.
(a) The Company chall render operation and maintenance pursuant
to the standards of the Federal Gammunicatione Commission and in
full compliance with the Cable Communications Policy Act of 1984 .
- -_ _ - -cc ' _- - - ard, Suite 22 , Kcy Biscayne, Florida
33149 , and which offices shall be open during all usual business
hours, and which local cuc-temerc chall at all time shave access to
by a local (Miami Beach) tel phone number, co that customers may
register complaints and requocts without charge to the customer.
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Company chall , at all times keep and maintain cufficient phone
lines co as to enable a subccribcr to reach Company and register
a complaint after a reaconable time and cffcrt, except in case of
thereof.
(c) Company chall dicpatch personnel to invectigate all service
_ _ ly as possible. Planned
interruption of cervice chali be only for good caucc. Incofar ac
pocsible, planned cervine interruptions shall be preceded by
personc who chall reside in Dade County.
(d) Company shall maintain a complete lict of all complaints not
rccolved within ceven day-s rc eived and the measures taken to
resolve them in form to be -approved day the City Manager. This list
shall be supplied to the City Manager on a monthly bacic.
(e) Company chall maintain a list of all complaints received,
which list will be available to the City Manager.
(f) Company chall permit the City Manager to incpect and tact the
-
to twenty-four hours) notice.
(g) The Company chall cctablich a grievance procedure which shall
be fair and equitable to all cubccribers and shall file copies of
all complaints and final decisions with the City Manager, montes.
SECTION 13 . Consumer protection provisions; office and
telephone availability.
(a) The franchisee shall maintain a local business
office within the existing cable system's service area, but not
more than five (5) miles from the City or within the City that is
adequately staffed and open to the public, Monday through Friday_
from 8 : 30 a.m. to 5: 00 p.m. This office may close for any holiday
observed by the U.S. Government.
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(b) Each franchisee shall maintain a telephone system
with a publicly listed local telephone number. Knowledgeable,
qualified franchisee representatives will be available to respond
to customer telephone inquiries, Monday through Friday from 8 : 30
a.m. to 7 : 00 p.m. ; one weekday night until 8: 00 p.m. ; and on
Saturday from 9 : 00 a.m. until 5: 00 p.m.
(c) Under Normal Operating Conditions, all customer
service and repair calls shall be answered within thirty (30)
seconds, including wait time and within an additional thirty (30)
seconds to transfer the call during the hours between 7 : 00 a.m. and
11: 00 p.m. each day of the year. The rate of lost calls, including
incoming calls abandoned, shall be less than ten (10) percent of
all incoming calls. Customers shall receive a busy signal no more
than three (3) percent of the time. These standards shall be met
no less than ninety (90) percent of the time measured on a
quarterly basis based upon the most recent quarter. With respect
to those calls received prior to 8: 30 a.m. or after 7 : 00 p.m. ,
Monday to Friday; prior to 9: 00 a.m. or after 5: 00 p.m. on
Saturday; all day Sunday and on all national holidays the
franchisee shall use reasonable efforts to assure that its outside
answering service comply with the standards set forth above.
(d) Franchisee shall maintain or contract for at least
one (1) billing payment and customer equipment location located in
the City which will be open for transactions Monday through Friday
from 8 : 30 a.m. to 5: 00 p.m. ; at least one night Monday through
Friday until 8 : 00 p.m. ; and on Saturday 9 : 00 a.m. until 12 : 00 p.m.
(e) When the franchisee's offices are closed, and at
times not included in subsection (a) above, franchisee may use
telephone answering services or automated answering and
distribution to meet the requirements of this section. The
franchisee shall meet the standards specified in subsection (c) .
SECTION 13 . 1 Consumer protection provisions; Consumer
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complaint procedures.
(a) Subscribers may lodge complaints concerning cable
service with a franchisee by (i) writing franchisee at its local
business office; (ii) by telephoning franchisee at its local
business office or (iii) visiting franchisee at its local business
office.
(b) Franchisee shall maintain a written record of each
customer complaint received. For purposes of this section, a
customer complaint shall not include normal service calls or
requests including billing or programming inquiries unless the
subscriber does not receive a satisfactory response or service from
the franchisee within a reasonable period of time, not to exceed
fifteen (15) days, after the service call or other request has been
made. The record shall include name of the customer, the date of
the complaint, the nature of the complaint and the date of the
response.
(c) Customers dissatisfied with a franchisee's response
to a complaint may appeal to the City Manager within seven (7) days
of the franchisee's response. The City Manager and the franchisee,
or their representatives shall meet to resolve the complaint to the
mutual satisfaction of the parties within thirty (30) days. The
franchisee shall use reasonable efforts to resolve these
complaints.
(d) The franchisee shall notify its subscribers in
writing at the time of initial installation and at least annually
thereafter that if a subscriber is not satisfied with the
franchisee's service the subscriber can contact the City and County
offices regulating cable television. The franchisee's written
notice shall include the telephone number and contact person for
the City and the County's cable offices.
(e) The franchisee shall, within seven (7) days after
receiving written request from the City, send a written report to
the City with respect to any particular consumer complaint. The
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report to the City shall provide a full explanation of the
investigation, findings and corrective steps taken or in process
by the franchisee.
SECTION 13 . 2 Installations outages and service calls.
(a) Under normal operating conditions, each of the
following four (4) standards will be met no less than ninety-five
(95) percent of the time measured on a quarterly basis.
(i) Standard installations will be performed within
seven (7) business days after an order has been placed; provided
the franchisee has been able to obtain any necessary easements or
other consents necessary to complete the installations. "Standard"
installations are up to one hundred fifty (150) feet from the
existing distribution system.
(ii) The franchisee will respond to service
interruptions promptly and in no event later than twenty-four (24)
hours after the interruption becomes known. Other service problems
will be responded to promptly and in no event later than forty-
eight (48) hours. Notwithstanding the above, the franchisee shall
not be required to respond to service interruptions or service
problems on Sunday. All service interruptions and service problems
within the control of franchisee will be corrected within 72 hours
after receipt of a complaint.
(iii) The appointment window alternatives made
available for installations, service calls, repairs, and other
installation activities will be (a) mornings, and (b) afternoons,
Monday through Saturday; or (c) at the election and discretion of
the subscriber, "all day" .
(iv) If at any time an installer or technician is
running late, an attempt to contact the customer will be made and
the appointment rescheduled as necessary at a time which is
convenient for the customer.
lb) The franchisee shall not miss a service or
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installation appointment scheduled with a particular subscriber
unless rescheduled one (1) day in advance.
.(c) Franchisee may intentionally interrupt service only
for good cause and for the shortest time possible. Franchisee
shall use its best efforts to insure that such interruptions shall
occur only during the hours of 1: 00 a.m. to 6: 00 a.m. A written
log shall be maintained for all intentional service interruptions.
(d) In the event that service to any subscriber is
interrupted on all channels on the basic tier which shall mean the
service tier which includes the retransmission of local television
broadcast signals or thirty percent (30%) of the channels on any
other programming tier or any single a la carte premium channel
(hereinafter for purposes of this Section referred to collectively
as the "Base Channels") for twenty-four-hour (24) or more hours due
to the fault of the franchisee and not due to acts of God or other
circumstances beyond franchisee's control , the franchisee shall
provide a credit or rebate to affected subscribers equal to twenty
(20) percent of the monthly fees for each twenty-four-hour period
during which the subscriber is without service not to exceed one
(1) month subscriber payment. In the event that service to any
subscriber is interrupted on the Base Channels including loss of
signal complying with the technical requirements specified in this
franchise or under applicable federal law for six (6) or more
hours, the franchisee shall provide a credit or rebate to affected
subscribers upon request by the subscriber, equal to one-thirtieth
of the monthly bill . However, in the event that service to any
subscriber is interrupted on the Base Channels, including the loss
of signal complying with the technical requirements specified in
the franchise or under applicable federal law for twenty-four (24)
or more hours the franchisee shall provide a credit or rebate to
affected subscribers equal to one-thirtieth of the monthly bill .
For purposes of computing the time of interrupted service, the time
shall begin when a complaint for interrupted service is received
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by the franchisee or when the franchisee has actual or constructive
notice of the interruption, whichever occurs first. For purposes
of this Section, service interruption shall mean the loss of
picture or sound. In addition, with respect to cable service
offered in multiple dwelling units, no rebate or credit shall be
required unless the franchisee has actual or constructive notice
that the Base Channels are not in compliance with the technical
requirements of this franchise or under applicable federal law, and
if the franchisee has commenced any and all necessary repairs
within thirty-six (36) hours using its best efforts to correct the
quality of the signal. In addition, no rebate or credit shall be
required for cable service offered in multiple dwelling units if
the failure to provide the required signal or the ability to cure
is beyond the control of the franchise, and within the control of
the management or owner(s) of the multiple dwelling unit. Nothing
in this subsection limits the franchisee from applying a rebate
policy more liberal than these requirements.
(e) In all situations where cable service is disrupted
to five hundred 5500) or more subscribers for a time period greater
than six (6) hours, the franchisee shall notify the City Manager
or his designee immediately.
(f) All field employees must carry identification
indicating their employment with the franchisee.
(q) Upon termination of service to any subscriber, the
franchisee shall remove all portions of its system, facilities and
equipment from the subscriber's premises within 14 days of
subscriber's request. Where removal is impractical, such as with
buried cable or internal wiring, facilities and equipment may be
disconnected or abandoned rather than removed.
SECTION 13 . 3 Communications, bills and refunds.
(a) The franchisee will provide written information in
each of the following areas at the time of installation and at any
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future time upon request by the Subscriber:
(i) The products and services offered;
(ii) Prices and service options;
(iii)How to use the cable service;
(iv) Installation and service policies;
(v) The franchisee's procedures for the receipt
and resolution of customer complaints, the franchisee's address and
telephone number to which complaints may be reported, and the hours
of operation;
(vi) The telephone number and address of the City's
office and the County's office designated to handle cable
television complaints and inquiries;
(vii) The availability of the "lock-out" device;
(viii) The availability of an input selector, or
A/B switch, and identification of those local broadcast stations
not carried on their system;
(ix) The franchisee's information collection and
disclosure policies for the protection of a subscriber's privacy.
The information in subsection (v) - (ix) above will be provided to
each subscriber at least annually.
(b) In addition, a franchisee shall provide written
notice in its monthly billing, at the request of the City Manager,
of any meeting regarding requests or applications by the franchisee
for renewal, transfer or modification of its franchise. The City
Manager shall make such a request in writing, no less than forty-
five (45) days prior to the mailing of any billing by franchisee.
Said notices shall be made at franchisee's expense and said expense
shall not be considered part of the franchise fee assessed pursuant
to Section 8 and shall not be regarded as the term as defined in
Section 622 of the Communications Act, 47 U.S.C. Section 42 .
(c) The franchisee's bills will be clear, concise and
understandable.
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(d) Refund checks will be issued promptly, but no later
than the earlier of thirty (30) days or the customer's next billing
cycle following the resolution of the request, or the return of the
equipment supplied by the franchisee if service is terminated.
(e) All customers and the City will receive written
notification a minimum of thirty (30) days in advance of any rate
or channel change.
SECTION 13 . 4 Customer Service Compliance Certificate.
The franchisee shall certify in writing to the City on January
1 and June 1 of each year based upon internal due diligence by the
franchisee that to the best of its knowledge it is in substantial
compliance with the customer service standards set forth in
Sections 13-13 . 3 within thirty (30) days of receipt of the
certification. At the request of the City, the franchisee shall
submit such documentation, as may be required, to demonstrate such
compliance within thirty (30) days of receipt of such request.
SECTION 13 . 5 Customer Service - Penalties.
(a) In addition to any other remedies provided herein, the
City may (in accordance with provisions of this Section) impose the
following penalties for any violation of Sections 13-13 . 3 , hereof:
Customer Service Description of Penalty
Section Violation
13 (a) Failure to Maintain $300
Local Business Office
13 (b) Failure to Maintain $300
Telephone System
13 (b) Failure to Make $300
Qualified Franchisee
Representatives
Available
13 (c) Failure, Under $300
Normal Operating
Conditions, to
Meet Phone
Answering Time
13 (d) Failure to Maintain $500
Billing Payment and
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Customer Equipment
Location Within
The City
13 (d) Failure to $500
Maintain Billing
Payment and
Customer Equipment
Office Hours
13 (e) Failure to Meet After- $300
Hour Telephone Standards
13 . 1 (b) Failure to Comply $500
With Record
Requirements of Customer
Complaints
13 . 1 (3) Delay in Sending $200
Written Report in
Consumer Complaint
13 . 3 (a) Failure to Notify $250
Customers at Time
of Installation or
Annually
13 . 2 (a) Failure, Under $300
Normal Operating
Conditions, to
Meet Installations,
Outages and Service
Calls within
Requisite Time
13 . 2 (b) Failure to Meet $100
Service or
Installation
Appointment
13 . 2 (c) Interruption of $500
Service Without
Good Cause
13 . 2 (d) Interruption of $500
Service Due to
Fault of Franchise
13 . 2 (e) Delay in Notify $200
City of Service
Disruption
13 . 2 (f) Failure to Properly $100
Identify Field Personnel
13 . 3 (a) (ix) Failure to Provide $100
Written Information
as to Products and
Services Offered,
Prices and Service
Options, Use
Cable Service,
Installations and
Service Policies;
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Procedures for
Customer Complaints,
Telephone Numbers for
County and City
Cable Offices;
the Availability
of Lock-out Devices,
Input Selectors
or A/B Switches
13 . 3 (b) Failure to Provide $500
Notice of
City Meetings •
13 . 3 (d) Delay in Refunds $250
For purposes of computing these penalties, each day of a continuing
violation shall constitute a separate violation.
(b) The City shall give the franchisee thirty (30) days prior
written notice of its intent to assess a penalty, identifying the
reasons for such proposed action. During the thirty (30) day
notice period the franchisee may file a written response to the
Notice of Intent to assess a penalty with the City.
(c) The City shall consider any justification, mitigating
factor, including but not limited to rebates or credits to the
subscriber, a cure of the violation, offered by the franchisee
prior to assessing such penalties, and the imposition of a penalty
by Dade County. The City may, after consideration of such a
response by the franchisee, waive or reduce the penalty. The City
and the franchisee agree that it is appropriate and necessary for
the City to enforce the customer service standards contained in
this franchise. The City will use reasonable efforts to coordinate
with Dade County to avoid the assessment of multiple penalties for
the same violation. However, nothing herein shall prevent the City
from assessing penalties as a result of Dade County's action(s) ,
if any.
(d) Subsequent to the notice and consideration of
franchisee's response, if any, as required in subsections (b) and
(c) above, the City may issue an assessment of penalty. The
penalty shall be paid within thirty (30) days of written notice to
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franchisee.
(e) Failure of the City to enforce any requirement of the
customer service standards or to assess any penalties for
violations shall not constitute a waiver of the City's rights.
(f) Any penalties assessed under this Section shall be
considered liquidated damages. It is the intent of the City to
determine penalties as a reasonable estimate of the damages
suffered by the City, whether actual or potential, and may include
without limitation, increased costs of administration and other
damages difficult to measure.
(q) Any penalty assessed under this Section shall not be
considered part of the franchisee fee assessed pursuant to Section
8 and shall not be regarded as a franchisee fee, as that term is
defined in Section 622 of the Communications Act, 47 U.S.C. Section
542 . Further, any penalty shall not be considered as an external
cost as defined by the FCC and shall not be treated as a pass-
through or in any calculation of cost of service for rate
regulation to the extent provided by applicable federal law.
(h) Further, any penalty assessed under this Section shall
not be considered in any rate regulation proceeding as a cost to
the franchisee, nor shall it be treated as a pass-through to the
subscribers.
SECTION 13 . 6 Violation of Customer Service Standards-
Renewal & Transfer.
Violations and penalties assessed as a result thereof of the
customer service standards set forth in Sections 13-13 . 3 may be
considered in connection with franchisee's franchise renewal
application or any franchisee's transfer application, to the extent
permitted under federal law. However, prior to such consideration,
the City shall provide franchisee with notice of its intent to
consider such matters in its evaluation and an opportunity to cure
any violations.
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SECTION 4 . A new Section 30, entitled "Government Access
Channel" is added as follows:
SECTION 30. Government Access Channel .
(a) The franchisee shall provide and maintain, without
charge, a cable channel on a full-time basis to the City of Miami
Beach for its use and programming. Said channel shall be included
on the franchisee's basic tier of service as defined by federal
law.
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SECTION 5. The existing Sections 30, 32 , and 33 are
renumbered consecutivelyas Sections 31, 32, and 33 , respectively.
SECTION 6. Severability.
If any section, sentence, clause or phrase of this Ordinance
is held to be invalid or unconstitutional by any court of competent
jurisdiction, then said holding shall in no way affect the validity
of the remaining portion of this Ordinance.
SECTION 7 . Repealer.
All ordinances or parts in conflict herewith be and the same
are hereby repealed.
16
SECTION 8 . Effective Date.
This Ordinance shall take effect ten (10) days after adoption
on the 2nd day of October , 1993 . Customer service standards
contained herein shall become effective January 1, 1994 . However,
the City shall comply with all notice requirements for the customer
service standards and rate regulation contained herein under
applicable federal law.
PASSED and ADOPTED this 22nd day of f o tember 199 '
f.,... A ,
„,„• MA�Tn
ATTEST:
t
---61(e‘o•AAA F. ,t1A,N,.__
CITY CLERK
1st reading 9/8/93
2nd reading 9/22/93
FORM APPROVED
LEGAL DEPT.
By
Date 4. 3-i3
A:\ordinanc.908
17
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f
EXHIBIT A
LEIBOWITZ & SPENCER
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
MATTHEW L. LEIBOWITZ. P . SUITE 1450 SUITE 500
JOHN M. SPENCER, P.0 * SUNBANK INTERNATIONAL CENTER 1000 CONNECTICUT AVENUE. N.W.
JOSEPH A BELISLE ONE SOUTHEAST THIRD AVENUE WASHINGTON, 0. 20036
OF COUNSEL MIAMI, FLORIDA 33131-1715
SANFORD L. BOHRER
TELEPHONE(305)530-1322
NOT ADMITTED TO TELECOPIER(305)530-9417
FLORIDA BAR
March 31, 1993
Laurence Feingold, Esq.
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Re: Special Counsel for Cable Television
Dear Mr, Feingold:
This letter is to set forth the Agreement of the City of Miami
Beach to retain the Law Firm of Leibowitz & Spencer as Special
Counsel for the purpose of representing the City in the area of
cable television, including specifically the following areas:
1 . Review the City' s present cable ordinance and cable
franchise agreements, and make recommendations for
appropriate modifications thereto.
2 . Advise the City with respect to its existing cable
franchise relationship and assist the City in negotiating
a renewal thereof, if appropriate.
3 . Advise the City regarding competitive cable franchises,
including but not limited to, municipal owned cable
systems.
4 . Advise the City regarding new federal cable statutes and
implementing FCC rules and regulations, including but not
limited to, rate regulation, customer service and cable
technical standards.
5 . Represent the City before the FCC in cable television
matters, including but not limited to, filing for rate
regulation authority.
6. Advise the City regarding enforcement of existing and
future cable services offered to the City and its
residents.
Laurence Feingold, Esq.
March 31, 1993
Page Two
Leibowitz & Spencer will also advise the City as to
procedures, notices, public hearings, required approvals and
filings, and other legal matters related to the provision of cable
television service to the City. In addition thereto, Mr. Leibowitz
will attend any City hearings related to cable television services
and as needed, Mr. Leibowitz will agree to provide verbal reports
to the City Commission. To avoid any non-productive time, the City
will schedule Time Certain for any such appearances.
It is understood and agreed that Leibowitz & Spencer currently
charges hourly rates for attorney time from $185 to $250 and $60
for paralegal times. These rates are subject to revision from time
to time. It is further understood that Matthew L. Leibowitz will
be the attorney primarily responsible for the City's work and that
his current hourly rate is $250. However, in recognition that the
City is a muncipality and is currently facing severe budgetary
restrictions, Leibowitz & Spencer agrees to bill the City only
seventy percent (70%) , on a current basis, for Mr. Leibowitz ' s
services rendered covered by the scope of the work above. The
balance of the fees will be due when the City authorizes either a
renewal franchise with its existing franchisee or a new franchise
with a new cable operator and the City receives payment of a
renewal fee or an initial franchise fee or other payment by the
cable operator, provided that the deferred payment shall be limited
to the amount by which the renewal fee, initial franchise fee or
other payment by the cable operator exceeds the expenses and non-
deferred fees previously paid or payable to Leibowitz & Spencer
under this agreement.
Unfortunately it is not possible to establish a fee cap at
this time. The FCC has not yet adopted its new cable rules and
regulations. In addition, it is not possible to ascertain, at this
time, a reasonable projection of time related to advising the City
with respect to its existing relationship with its cable franchisee
and negotiating a renewal thereof, if appropriate. Nor is it
possible, at this time, to reasonably ascertain the City's needs
to investigate competitive cable franchises and/or municipal owned
cable systems.
However, in order to assure financial responsibility in the
provision of services by Leibowitz & Spencer, Leibowitz & Spencer
recognizes that by this Agreement the City authorizes work not to
exceed $50 , 000 in non-deferred fees. In the event this authorized
amount is reached, the City and Leibowitz & Spencer will determine
whether it is appropriate and/or necessary for the City to continue
the services of Leibowitz & Spencer and if so, they will negotiate
a new maximum authorized limit and/or if appropriate, a specific
cap of fees for the remaining work to be completed so that
Leibowitz & Spencer will be fairly and reasonably compensated for
Laurence Feingold, Esq.
March 31, 1993
Page Three
their services remaining to be rendered on behalf of the City.
In addition to fees, Leibowitz & Spencer shall be entitled to
payment of out-of-pocket expenses and reimbursements, including
without limitation, long distance telephone calls, air express
charges, printing, photocopying, facsimiles, hand delivery, travel,
lodging, filing, and other out-of-pocket expenses.
All fees and expenses will be billed monthly and payable
within thirty days of billing.
This Agreement may be cancelled at any time by either the City
or Leibowitz & Spencer upon receipt of reasonable written notice.
However, if the City elects to terminate this agreement prior to
renewing its existing franchise or issuing a new franchise, the
City will remain responsible for the payment of the full fees
incurred to the date of termination, payable upon renewal of the
current franchise or issuance of a new franchise and receipt by the
City of a renewal fee or an initial franchise fee or other payment
by the cable operator, provided that the deferred payment shall be
limited to the amount by which the renewal fee, initial franchise
fee or other payment by the cable operator exceeds the expenses and
non-deferred fees previously paid or payable to Leibowitz & Spencer
under this agreement.
If the foregoing meets with your approval, please so indicate
by signing this letter where indicated and returning an executed
copy to our office for our records.
We look forward to working with you and the other City
officials on this very exciting project.
Sincerely yours,
Matthew L. Leibowitz
The undersigned, being duly authorized, hereby accepts this
engagement.
By:
Laurence Feingold, City Attorney
City of Miami Beach
Date:
Laurence Feingold, Esq.
August 31, 1993
Page Two
For services rendered in connection with the scope of work,
we will bill at a reduced blended rate for all attorney time which
is substantially less than our normal rates. The blended rate as
negotiated by you and us is $175 per hour for all services which
we perform under the scope of work outlined above. In addition,
we have agreed to a cap for legal fees of $50, 000 for all services
rendered covered by the scope of work outlined above.
In addition to fees, Leibowitz & Spencer shall be entitled to
payment of out-of-pocket expenses and reimbursements, including
without limitation, long distance telephone calls, air express
charges, printing, photocopying, facsimiles, hand delivery, travel,
lodging, filing, and other out-of-pocket expenses.
All fees and expenses will be billed monthly and payable
within thirty days of billing.
This Agreement may be cancelled at any time by either the City
or Leibowitz & Spencer upon receipt of reasonable written notice.
If the foregoing meets with your approval, please so indicate
by signing this letter where indicated and returning an executed
copy to our office for our records.
• We look forward ' to working with you and the other City
officials on this very exciting project.
Sincerely yours,
Matthew L. Leibowitz
The undersicfniad, being •uly authorized, hereby accepts this
engagement. '
By: \ ;4 ' . , Sd
Lauren = Feingold C y Attorney
City of Miami Beach
Date:
i
EXHIBIT B
[D R A F T]
August 31, 1993
Laurence Feingold, Esq.
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Re: Special Counsel for Cable Television
Dear Mr. Feingold:
This letter is to set forth the Agreement of the City of Miami
Beach to retain the Law Firm of Leibowitz & Spencer as Special
Counsel for a period of one year from the date this Agreement is
executed for the purpose of representing the City in the area of "
cable television, including specifically the following areas:
1 . New federal cable statutes and implementing FCC rules and
regulations, including but not limited to, rate
regulation, customer service and cable technical
standards.
2 . Represent the City before the FCC in cable television
matters, including but not limited to, filing for rate
regulation authority and filing complaints regarding
unreasonable cable rates on non-basic tiers.
3 . Advise the City regarding existing and future cable
services offered to the City and its residents.
4 . Advise the City regarding competitive alternate cable
technologies.
Mr. Leibowitz will attend any City hearings as requested by the
City Administration related to cable television services and as
needed, Mr. Leibowitz will agree to provide verbal reports to the
City Commission. To avoid any non-productive time, the City will
schedule Time Certain for any such appearances.
OFFICE OF THE CITY ATTORNEY
624 "Ic Amu. Mid
F L O R I D A
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+ticoerpanc;" P O BOX O
LAURENCE FEINGOLD �h
CITY ATTORNEY
1:412e MIAMI BEACH. FLORIDA 33119-2032
TELEPHONE(305)673-7470
G� TELECOPY (305)673-7002
COMMISSION MEMORANDUM NO. 5/4 - 3
DATE: September 22 , 1993
TO: Mayor Seymour Gelber and
Members of the City Commission
FROM: Roger M. Carl ••,
City Manager ,� i
Laurence Feingold, Es! . /
City Attorney 4,
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AMENDING CITY OF MIAMI BEACH
ORDINANCE NO. 86-2500 WHICH GRANTED RIFKIN-NARRAGANSETT
OF SOUTH FLORIDA CATV LIMITED PARTNERSHIP D/B/A GOLD
COAST CABLE, AS SUCCESSOR IN INTEREST TO ALL-RITE
SATELLITE, INC. , A NONEXCLUSIVE FRANCHISE TO OPERATE AND
MAINTAIN A CABLE COMMUNICATION SYSTEM WITHIN THE CITY OF
MIAMI BEACH CONCERNING GROSS REVENUE, CUSTOMER SERVICE,
RATE REGULATION AND GOVERNMENT ACCESS CHANNEL; AND TO
NEGOTIATE IN GOOD FAITH ADDITIONAL MUTUALLY AGREEABLE
MODIFICATIONS TO SAID ORDINANCE.
ADMINISTRATION RECOMMENDATION:
It is recommended that the Mayor and City Commission approve
the attached amendments to Ordinance 86-2500 which will establish
initial procedures for regulating cable television service within
the City of Miami Beach. A First Reading was held on September 8,
1993 ; we would recommend adoption upon Second Reading today,
September 22 , 1993 .
BACKGROUND
The City of Miami Beach previously had two CATV franchises.
The first franchise was awarded to Ultracom of Dade County, Inc.
(the "Ultracom Franchise") in 1979 . This franchise was for a
fifteen year period. A second fifteen year franchise was awarded
to All-Rite Satellite, Inc. (the "TV Ticket Franchise") , in 1986 . ss
In March, 1988 , both Miami Beach franchises were transferred to
AGENDA
ITEM � l
"700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BE DATE -�
Rifkin/Narrangansett South Florida CATV Limited Partnership d/b/a
Gold Coast Cable (the "Cable Franchise") . Since that date, Gold
Coast has been providing CATV service to Miami Beach under both
franchises.
At the May 5, 1993 Commission Meeting, the City of Miami Beach
adopted Resolution No. 93-20796 and Ordinance No. 93-2851 whereby
the City and Gold Coast Cable mutually agreed to voluntarily
terminate the Ultracom of Dade County, Inc. nonexclusive franchise
originally established by Ordinance No. 79-2172 , and to negotiate
in good faith to mutually agreeable modifications to the existing
All-Rite Satellite, Inc. nonexclusive franchise as originally
established by Ordinance No. 86-2500.
The Administration, with the assistance of the City Attorney
and special counsel, has negotiated modifications in the areas of
the definition of gross revenue, customer service monitoring, rate
regulatory procedures and government access channel requirements.
I. CROSS EVENTJv
The City of Miami Beach, with the assistance of special
counsel , completed an audit of Gold Coast Cable's revenues to
confirm that the City was receiving the full benefit of the
franchisee fees due under the Ultracom and All-Rite Franchises.
The audit concluded that Gold Coast, with the exception of minor
calculation errors causing small underpayments to the City
totalling $334 . 00, which the franchisee will remit to the City,
correctly calculated, paid, and timely reported in compliance with
the applicable provision of the City's Ordinance governing same.
In addition, the audit recommended that the definition of Gross
Revenues upon which the City receives its franchise fees be
modified to clearly spell out the elements of gross revenue, and
be all inclusive, eliminating all exemptions. Accordingly, the
Gross Revenue definition was modified, and it is estimated that the
City will collect over $33 , 600 more annually, based upon pre-rate
2 89
regulation revenues, as a result of this action.
II. CUSTOMER SERVICE
The Cable Television Consumer Protection and Competition Act
of 1992 ("The 1992 Cable Act") amended Section 632 of the
Communications Act of 1934 to provide for the establishment,
implementation and enforcement of customer service standards for
cable operators, nationwide. Section 632 required the Federal
Communications Commission ("FCC") to enact minimum standards with
respect to the following:
1 . Cable system office hours and telephone availability.
2 . Installations, outages, and service calls.
3 . Communications between the cable operator and the
subscriber (including standards governing bills and
refunds) .
As a result, the FCC adopted minimum national standards for
�b� i He 'e..' r, pursuant toSection 612 (c) of
cable, Luj:,vi:c...r services. ' v. e. ..ier.e
the Communications Act, local governments are free to adopt and
enforce standards exceeding those established by the FCC either
with the consent of the cable operator or by enactment of an
appropriate law or regulation.
DADE COUNTY
Prior to the adoption of the 1992 Cable Act, Dade County
amended its Cable Television Ordinance to include customer
protection provisions. Specifically Section 8AA-57 of the Dade
County Code addresses consumer protection provisions, office and
telephone availability; Section 8AA-58 addresses installation,
outage and service calls; and Section 8AA-59 addresses
communications, bills and refunds.
'The City of Miami Beach participated in this rule making
proceeding by filing comments on January 11, 1993 . A copy is
attached.
3
90
EXISTING MIAMI BEACH ORDINANCE AND FRANCHISE
Chapter 42 of the Miami Beach City Code (entitled "Cable TV") ,
Section A-9, addresses "Service standards---Business office---
Resolution of complaints" . Section 13 of the All-Rite Franchise
addresses "Operation and Maintenance of System Service Standards" .
Both sections provide incomplete service standards which fall well
below the new federal standards and Dade County's standards.
On April 20, 1993 , the City held its first public hearing with
respect to evaluating Gold Coast's past performance. The
predominant complaint was that customers experienced difficulties
in dealing with Gold Coast including, but not limited to, problems
with availability of telephone attendants, problems with repairs,
and poor service.
In response to public complaints, the Administration and
special counsel have reviewed the new federal requirements, Dade
County's Ordinance, and the existing Miami Beach Cable Ordinance
and All-Rite Franchise and proposes to amend the relevant sections
of the All-Rite Franchise: (a) to reflect the new federal standards
and Dade County standards, and, as a result of the input from
residents; (b) to establish higher standards to improve Gold
Coast's performance in the area of customer services. In addition,
the franchise would be amended to include specific enforcement
mechanisms in case of violations by Gold Coast. The mechanism
includes specific monetary penalties and consideration of
violations in the franchise renewal process.
III. RATE REGULATION
The 1992 Cable Act also reinstated cable rate regulation.
Pursuant thereto, the FCC initiated several rule makings to adopt
appropriate rules governing rate regulations for local franchise
authorities and the FCC. The initial rate regulation rules were
issued on May 3 , 1993 and were contained in a Report and Order of
4 91
over 500 pages. This Report and Order was subject to over 70
Petitions for Reconsideration, and the FCC on August 27 , 1993 ,
issued its first Order on Reconsideration, to be followed by at
least one additional Order. Further, the FCC has initiated two
additional collateral rate regulation rule makings. The final FCC
rate regulation rules are not expected for several months.
Pursuant to FCC rules, local franchise authorities can
regulate cable television rates for the basic tier of cable
television service and equipment related thereto, and the FCC
regulates the rates for all other tiers of cable television
programming. . Per channel or per program offerings are not
regulated.
In order to regulate basic service rates, the local franchise
authority must file a certificate with the FCC indicating that 1)
it has the legal authority to be a rate regulator; 2) that it has
or will adopt rules implementing rate regulations; and 3) that it
has the requisite staff to enforce and administer said policies.
This certification becomes effective 30 days after the date it is
filed unless the FCC acts to disapprove it.
Local franchise authorities are not required to regulate cable
television rates. Delaying a decision to regulate cable television
rates can have adverse consequences, however. First, cable
television rates are presently frozen until November 15, 1993 .
Absent municipal action to regulate rates, cable operators will be
free to raise rates on the basic service tier on November 16, 1993 .
Next, delaying rate regulation may limit the availability of
refunds as a remedy for cable overcharges. In the absence of an
accounting order from a rate regulating authority, refunds can only
be ordered for overcharges occurring within a year of the refund
order. A year's delay in instituting rate regulation guarantees
that refund orders will not fully remedy overcharges. This is
because refunds cannot be ordered for overcharges occurring before
the rate regulation rule's effective date, September 1, 1993 .
5 92
Local franchise authorities that want to protect their
citizens from excessive charges for cable television services not
offered on the basic tier can do so by filing a rate complaint with
the FCC. Complaints concerning the reasonableness of cable rates
in effect on September 1, 1993 (the date the FCC rate regulation
rules become effective) must be filed on or before February 28 ,
1994 . Complaints concern!ng upper tier cable rate changes
occurring after September 1, 1993 must be filed within 45 days from
the date subscribers receive bills reflecting the increased rates.
By Resolution No. 93-20796 adopted on April 8 , 1993 , the
Commission authorized the Administration to file for Certification
to regulate Gold Coast's rates.
The proposed amendment to the Franchise complies with FCC
rules and, subject to being Certified by the FCC, empowers the City
to engage in cable rate regulation.
GOVERNMENT ACCESS CHANNEL
Section 611 [47 U.S.C. Section 531] of Title VI Cable
Communications of the Communications Act of 1934 , as amended,
authorizes a local franchise authority to require in a cable
franchise channel, capacity for public, educational and
governmental use. Presently Gold Coast provides three (3) channels
to Dade County, on a full-time basis for educational and government
access . In contrast, although Gold Coast voluntarily cablecasts
the City's Commission Meetings, it does so on a shared channel .
Gold Coast has agreed to provide to the City a full-time
dedicated channel for government access. This will allow for
cablecast of substantially more information and events about the
City to cable subscribers.
However, due to the uncertainty of FCC rules, the
Administration and Gold Coast has deferred discussions regarding
the provision of additional equipment and funding for the channel .
6 93
EXTENSION OF GOOD FAITH NEGOTIATION
Due to the uncertainty of FCC rules and their effect on the
City and Gold Coast, the Administration, with special counsel,
respectfully request an additional 120 days to conclude
negotiations in the following matters including, but not limited
to:
State of the Art Technical Requirements;
Funding and Equipment for Government Access Channels ;
Institutional Network;
Extension of Franchise Term;
Provision of Telephone Service via the Cable System;
Late Charges and Retroactive Billing.
CONCLUSION:
The Administration recommends approval of the amendments
incorporated in this proposal to ensure that federally mandated
time schedules are met and the regulatory process moves forward.
The remaining issues will be negotiated in good faith over the next
120 days to bring this complex process to closure.
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