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93-2876 Ordinance ORDINANCE NO.93-2876 AN ORDINANCE OF THE MAYOR AND CI'I'Y 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 SE'r 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 F()R 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 AII- 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 condi tions including customer service standards, rate regula.tion, 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: SEC'rrON 1. Section 2(1) entitled "Gross Revenues" is amended as follows: +J.-)---'lG'HlS6-RevenYeS.!LsJ:la-l-1-IRean-a-1-l-Fevel'lue-G~G-G-i-l'eGt-l-Jl' . er:~ind~-r:eGt-l-Y-f-l'em-sUbSGHbar:s-and-u~s-e.f-t-l'le-GAW-sy-&t;em_by-t.l'le Gempa~~~~t~s,-sUb~idiarios,-paEont and any porco~1'l wl'l-i-Gl'l~ha-Gempa~a~ a financial iI'l~eEe&&r-or it~ cUGGec~or~, ass-iqn6--Gr---t;.Ea-f}MeEees, frmil or ifl--.GGlll'leGt;~on \1i tA-t;.l'le-opeFaUeI'l e~a-Ga~l&-GemmunJcation~ cyctom-pYESUant to thic ordinanco aRG wi-t-h.J.-n-tl'le-Gi-tY-;-fH;ev-i4ed,-hO\.'o'lor, all roveFlue&-Sha-l-l----inGl-ude,--bu-t; net;-be-l-im-i-ted--tGllI-ba&i-G--&ubecribeE-SeP.<-i-ea-mel'ltlHy fooe:, pay ca~l-e .fee s,--i-I'l &ta-l-l-aU-en-a nd ro C onno at i 0 fl.-..--fee.&y--l-ea.sed---Gll.ann elf 0 0 c , GOl'lve~e~rontalc, ctudio nmtal, produ~n--equipment and per:sonnel---Eee&r--seGu~~ervicoc,--adveE~~9--Fevel'lue6--and ~Glud.J.~q any cubscriber rovonuee from cubscribor~~ho City eve~--suGh-se~e ie provided by lacor trans~~n, or 1iqh.t OF-ept iGa-l.-t;'l"anSlll.J.-ss-i-en-aI'ld-even-i-f--subsGH-ber~ ros-i-de-i-I'l--GI'le-GI' more-mu-l-t-ip-l-e-ufl-i-t-Qwe.1-l-inqs--uooet--Gemmen-owne_rsh-i-p~_Gent.!'el--eF maflaqemel'lt-T-afId---t;h~Hr-sha 11 not inGl-ude-any taxo6--Grl-SePl-i-Ges .f-UI'n-isl'led~he--GGmpany horo i-fl---.-impeseG--G-i-l'eGt-l y upen any subsG~er or user by the state, city oF-qGVeEnrnen.ta*-u~ SECTION 2. (1) "Gross Revenue" shall mean all revenue includinq cash. credits. propertv of anv kind or nature or other consideration (includinq barter) recoqnized directlv or indirectlv bv franchisee (includinq to the extent applicable. its Affiliates. as hereinafter defined subsidiaries. or anv person or entity in which the franchisee has a financial interest) from any source whatsoever arisinq fromJ attributable to. or in any way derived from the sale or exchanqe of cable services or the operation of a cable svstem ~he franchisee within the City. in accordance with qenerally acc~pted accountinq principles. Gross reveQues includes. but is 2 not limited to. fees charqed subscribers for any optional premium. per-channel or per-proqram service; fees charqed subscribers for any tier of service other than basic service; installation. disconnection. reconnect ion and chanqe-in-service fees; leased access fees; fees. payments or other consideration from proqrammers for carriaqe of proqramminq on the cable system; revenue from equipment rental or sales; revenue from studio and studio equipment rental; advertisinq service; revenues derived from the sale of products or services advertised or promoted on the cable system. including home shoppinq channels; the sale. exchanqe or cablecast by the franchisee of any proqramminq developed on or for access channels or institutional users; the sale of the siqnal or any portion thereof to unl icensed operators; any revenue received throuqh 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 qenerally accepted accountinq principles. consistently applied. bad debt write-offs; taxes and fees of a qeneral nature imposed by law on subscribers of any state. county. city or other governmental unit and collected by the franchise on behalf of such qovernmental 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 qeneral 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: 3 &EG-T-ION-9- . Ratos-.- +a}--'I'-I1e--GJ.-t;y.-Fe~-R&-tho right to at any..-..t;-ime-l=e~ate tho rat..es t;ha~t-may-be-Gha~d-by tho Company,-wIH-Gl1--lcegul-aYGfl-6h<H-l-be-----Hl aGGe~aHGe---w.i-th-t;ho Regu-l-a-t.-iens--a doptod--by----t;he-li~GG-fHH"6Ua.nt_te.___.t.He Gab-l~Gmmuffi.Ga.t...HmE: Policy Act of 1984. fb-t-'I'he-aet..eEmJ.-Ra-t..ieR-G-t-the CORlpany' E: ratos-shall alE::o ha-&u~ ~~u-l-at;ion purcuant to Soc. SA 13 of the-Dade County Code, and ~~~lec and regulationc of any state or Federal authority whJ.Gh-may-subsequentd~~oe~c of law,-a-Gq~~cdiotioH oveJ?---th-i-s-t-Yf}e-e-f--iRdus.try or enterpF-i-se-.- SECTION 9. Cable Rate Requlations. (a) To the extent permitted by applicable law. the city shall requlate rates of the Cable System. (b) The City shall requlate the Cable System's rates and charqes in a manner consistent with all applicable FCC rules and requlations. Before adoptinq 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. includinq but not limited to, the views of the franchisee. SECTION 3. Section 13, entitled "Operations and Maintenance System; Service Standards" is amended as follows: SE~~13. Gporation-aRd-MaJ.atenanGe of SycteRl; S~e S-t-andaFds-.- f~he-Gemf}any chall render operation and Rl~Hanoo purcuaat to the ctandardc of the Foderal Communicationc Commiccion and in full oem~oe \Tlth the Cable Communicationc Polioy hot of 1981. fB.1-'I'-he----Gempany hac and \.'ill continue to have during the--teFRl heFeof an office in Dade--Gounty, Florida \:hioh offioo ic ourrontly l~~ 915 CraRdGn Boulevard, Suite ~~, Koy Bicoayno, Florida 33119, 3Hd \Jhioh offioo~ chall be open during al1---\lsual bUE:inOE:E: I1GuFS,-aHd-wnJ.-Gh looal cuctomerc chall at all ti~e-shavo aooess-.te by-a-l-GGa-l---fM-iam-i--Bea-Gl11-te~Re---ffi1l1lber, E:O tha-t---GU&teRlorc Rla~ Fecri-st-er--GGmIH-aJ.-Rt&-aHd-Fequectc \J i~ha F~e-t;e-the-eus.teRleF-r 4 5 lhl Each franchisee shall maintain a telephone svstem with a publiclv listed local telephone number. Knowledqeable. qualified franchisee representatives will be available to respond to customer telephone inquiries. Monday throuqh Friday from 8:30 a.m. to 7:00 p.m.; one weekday niqht until 8:00 p.m.; and on Saturdav from 9:00 a.m. until 5:00 p.m. in Under Normal Operatinq Conditions. all customer service and repair calls shall be answered within thirty (30) seconds. includinq wait time and within an additional thirtv (30) seconds to transfer the call durinq the hours between 7:00 a.m. and 11:00 p.m. each day of the vear. The rate of lost calls, including incominq calls abandoned. shall be less than ten (10) percent of all incominq calls. Customers shall receive a busv siqnal no more than three-13) percent of the time. These standards shall be met no less than ninety (90) percent of the time measured on a quarterlv 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 Fridav; prior to 9:00 a.m. or after 5:00 p.m. on Saturdav; all dav Sundav and on all national holidavs the franchisee shall use reasonable efforts to assure that its outside answerinq service complv with the standards set forth above. i9l Franchisee shall maintain or contract for at least one (1) billinq payment and customer equipment location located in the Citv which will be open for transactions Mondav throuoh Fridav from 8:30 a.m. to 5:00 p.m.; at least one nioht Mondav throuoh Friday until 8:00 p.m.; and on Saturdav 9:00 a.m. until 12:00 p.m. l.tl When the franchisee's offices are closed. and at times not included in subsection (a) above, franchisee mav use telephone answerino services or automated answerinq and distribution to meet the requirements of this section. The franchisee shall meet the standards specified in subsection (cl. SECTION 13.1 Consumer protection provisions; Consumer 6 complaint procedures. Ji:tt Subscribers may lodqe complaints concerninq cable service with a franchisee by (i) writinq franchisee at its local business office; (ii) by telephoninq franchisee at its local business office or (iii) visitinq franchisee at its local business offic~ iQl 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 includinq billinq or proqramminq 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. 19l Customers dissatisfied with a franchisee's response to a complaint may appeal to the city Manaqer within seven (7) days of the franchisee's response. The City Manaqer 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. iQl The franchisee shall notify its subscribers in writinq 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 requlatinq cable television. The franchisee's written notice shall include the telephone number and contact person for the city and the County's cable offices. Jgl The franchisee shall. within seven (7) days after receivinq written request from the City. send a written report to the City with respect to any particular consumer complaint. The 7 report to the City shall provide a full explanation of the investigation. findinqs and corrective steps taken or in process by the franchisee. SECTION 13.2 Installations outaqes and service calls. 1.9.1 Under normal operatinq conditions, each of the fOllowinq four (4) standards will be met no less than ninetY-five (95) percent of the time measured on a quarterly basis. i.il. 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 existinq 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- eiqht (48) hours. Notwithstandinq the above. the franchisee shall not be required to respond to service interruptions or service problems on Sundav. 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) morninqs. and (b) afternoons. Monday throuqh 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. 1hl The franchisee shall not miss a service or 8 installation appointment scheduled with a particular subscriber unless rescheduled one (1) day in advance. l2l Franchisee may intentionally interrupt service only for aood cause and for the shortest time possible. Franchisee shall use its best efforts to insure that such interruptions shall occur only durinq the hours of 1:00 a.m. to 6:00 a.m. A written loq shall be maintained for all intentional service interruptions. l.Ql 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 siqnals or thirty percent (30%) of the channels on any other proqramminq tier or any sinqle 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 grovide a credit or rebate to affected subscribers equal to twenty (20) percent of the monthly fees for each twenty-four-hour period durinq which the subscriber is without service not to exceed one (I) month subscriber payment. In the event that service to any subscriber is interrupted on the Base Channels includinq loss of siqnal complyinq 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 month Iv bill. However. in the event that service to any subscriber is interrupted on the Base Channels. includinq the loss of signal complyinq 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 computinq the time of interrupted service. the time shall begin when a complaint for interrupted service is received 9 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 dwellinq 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 usinq its best efforts to correct the quality of the siqnal. In addition. no rebate or credit shall be required for cable service offered in multiple dwellinq units if the failure to provide the required siqnal or the ability to cure is beyond the control of the franchise. and within the control of the manaqement or owner(s) of the mUltiple dwellinq unit. Nothinq in this subsection limits the franchisee from applyinq a rebate policy more liberal than these requirements. 19l In all situations where cable service is disrupted to five hundred (500) or more subscribers for a time period greater than six (6) hours. the franchisee shall notify the city Manaqer or his desiqnee immediately. ifl All field employees must carry identification indicatinq their employment with the franchisee. 19l 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 wirinq, facilities and equipment may be disconnected or abandoned rather than removed. ..'I~CTION 13.3 Communications. bills and refunds. 1ill The franchisee will provide written information in eaclLQf the followinq areas at the time of installation and at any 10 future time upon request by the Subscriber: ill The products and services offered: liil Prices and service options: (iii)How to use the cable service; liYl Installation and service policies; iYl 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 desiqnated 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. 1Ql In addition. a franchisee shall provide written notice in its monthly billinq. at the request of the city Manaqer. of any meetinq reqardinq requests or applications by the franchisee for renewal. transfer or modification of its franchise. The city Manaqer shall make such a request in writinq. no less than forty- five (45) days prior to the mailinq of any billinq 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 reqarded as the term as defined in Section 622 of the Communications Act. 47 V.S.C. Section 42. LQl The franchisee's bills will be clear. concise and !.lJlggrslSlndable. 11 1Ql Refund checks will be issued promptly, but no later than the earlier of tbirty (30) days or the customer's next billinq cycle followinq the resolution of the request. or the return of the equipment supplied by the franchisee if service is terminated. l..gl [1.11 customers and the city will receive written notification a minimum of thirty (30) days in advance of any rate or channel chanqe. SECTION 13.4 Customer Service Compliance certificate. The franchisee shall certify in writinq to the city on January 1 and June 1 of each year based upon internal due diliqence by the franchisee that to the best of its knowledqe 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 proyisions of this Section) impose the followinq penalties for any violation of Sections 13-13.3. hereof: Customer Service Section Description of Violation Penalty 13 (a) Failure to Maintain Local Business Office $300 13 (b) Failure to Maintain Telephone System $300 13 (b) Failure to Make Qualified Franchisee Representatives Available $300 13 (c) Failure. Under Normal Operatinq Conditions. to Meet Phone Answerinq Time $300 13 (d) Failure to Maintain Billinq Payment and ~Q 12 13 (d) 13 (e) 13.1 (b) 13.1 (3) 13.3 (a) 13.2 (a) 13.2 (b) 13.2 (c) 13.2 (d) 13.2 (e) 13.2 (f) 13.3 (a) (ix) Customer Equipment Location within The City Failure to $500 Maintain Bi11inq Payment and Customer Equipment Office Hours Failure to Meet After- $300 Hour Telephone Standards Failure to Comply $500 with Record Requirements of Customer Complaints Delav in Sendinq $200 written Report in Consumer Complaint Failure to Notify $250 Customers at Time of Installation or Annually Failure. Under $300 Normal Operatinq Conditions. to Meet Installations. outaqes and Service Calls within Requisite Time Failure to Meet $100 Service or Installation Appointment Interruption of $500 Service Without Good Cause Interruption of $500 Service Due to Fault of Franchise Delay in Notify $200 city of Service Disruption Failure to Properly $100 Identify Field Personnel Failure to Provide $100 written Information as to Products and Services Offered, Prices and Service options. Use Cable Service. Installations and Service Policies; 13 Procedures for Customer Complaints, Telephone Numbers for County and city Cable Offices; the Availability of Lock-out Deyices, Input Selectors or A/a switches 13.3 (b) Failure to Provide Notice of City Meetinqs $500 13.3 (d) Delay ijl Refunds $250 For purposes of computinq these penalties. each day of a continuing violation shall constitute a separate violation. (b) The city shall qive the franchisee thirty (30) days prior written notice of its intent to assess a penalty. identifyinq the reasons for such proposed action. Durinq 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. iQ) 'rhe City shall consider any justification. mitiqatinq factor. includinq but not limited to rebates or credits to the subscriber. a cure of the 'violation. offered by the franchisee prior to assessinq such penalties. and the imposition of a penalty by Dade County. The City. may. after consideration of such a resQQDse by the franchisee. waive or reduce the penalty. The city and the franchisee aqree 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. nothinq herein shall prevent the City from assessinq 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 14 franchisee. LeI 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 riqhts. If) Any penalties assessed under this Section shall be considered liquidated damaqes. It is the intent of the city to determine penalties as a reasonable estimate of the damaqes suffered by the city. whether act~al or potential, and may include without limitation. increased costs of administration and other damaqes 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 reqarded as a franchisee fee, as that term is defined in section 622 of the Communications Act. 47 V.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- throuqh or in any calculation of cost of service for rate requlation to the extent provided by applicable federal law. ibJ Further. any penalty assessed under this Section shall not be copsidered in any rate requlation proceedinq as a cost to the franchisee. nor shall it be treated as a pass-throuqh 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 opportunitv to cure any violations. 15 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 charqe, a cable channel on a full-time basis to the City of Miami Beach for its use and proqramminq. Said channel shall be included on the franchisee's basic tier of service as defined by federal law-,- '.1..15..))'''.. .....Sala. ...(;~ym.ifiim.Ei.fi~mrf;ttiii~ts'iS)tilia.li'l1Ei~{.lSl1a]1 .....I5Ei....m.a.(l.Eif;tya.f.:tli.ti~E! t6tli~dgtiyrl()~a#4i!:rtt1j2in;iQ'~Hitia.iliyijj;il~9~Q C9rW5i~1l~.~~!!i.t.ltii$'bi.~m.~~t~I.M!'?!.t.!r~g~lmmJnijm~li}f~2*~1tnmfin!i .~i;jQe.~.~.........~.fi.a..!1.'I1~.~.......pfj......~~Q:w*;;%~lP.i......Ri~.;t~......t;ni......J;.~~ijR.ti.~fil~.~........~.tia..X.iQii.y.~. the i\f..9lif>.....tt(j.......p.i\(j9:~a.m.?tt11Jli@li~l1liEi:ll1.~ ..iH~ij.~'il:Eii\i.mttfi~..~#f;trr(j.fi~s.:~rt;.tia.:t~{ not pr6gi%iliiahyd(jmm.4i!ilii5ia.f!S6linr()liit5ftH!i5i1a.]a.lii16tii'i'etii~i1tt~()ilim.~tt4i!fi!a1! g\4t:J;tigithEi~~~lm~~1 .((i)...~crl.:.f.I;l.~..~Y@Q~..%Q.li...t:~<<D.9Q.ll.ti@~~p.#QY4ig~Q.g Rili?J9~~mmi!lj9.:.9Jj tih~c;Clyerl1httij'iitt1!l(ji5Iiil3J~@l1a.:l1lili:ti..til1~liifi\!i(j~~M~~~~litij~t:i);tl1i?i\~?i#liittfilii am6uht{()fitspfiagfif;tm.m.aifig*!b1j\iit!~tiYiih~1:tli6'6~13Yttfje.~ili~fil:iffi;~e.!nf.rl iti;i,~;tP9;9{~~~U~~ilRI~QQ~~m.B~\li.tir.9g1lti;tmijt~nijl!~m~~n9;li~ii~tD~ti ttiiiitv(~g)9.~y~.~t1g'~Y~lip~9~~ft~{i~F~~q~q;t9Y~tl;.~!t9~#~.~gp~i}~ it:spfi()gfi~ht#i:i!119r;.r.:ge(jl1fi#i(5~;tpti.()~stii?l!i;f!~~~ttliirr.'ii()tt:i!i5liif.the ~ri\trdn;fsesl1<aImtiili:m~n.alieirlwpii()giiimut~pCJh~diisg~i&.t:i5.~dc8lit9lifatitij f,b~>9;~t;y!~~*t!~P9Ei9P1i9gE~mmilin9i\1i~Qlti1W;}i~j:fy.(~~19i;tYiili 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 2201 ATTEST: ~vl.ovJ.l C - ~(j,^^,,- CITY CLERK 1st reading 9/8/93 2nd reading 9/22/93 FORM APPROVED LEGAL DEPT. :7L" By Y Dale q. 3.~~ A:\ordinanc.908 17 EXHIBIT A LEIBOWITZ & SPENCER ... PARTNERSHIP OF' PROF'ESSIONAL CORPOR....TIONS MATTHEW L. LEIBOWITZ. P A. JOHN M. SPENCER. p,C . .JOSEPH A. BFLISLE SUITE 14S0 0" COUN.C:L. SANFORD L. BOHRER ONE SOUTHEAST THIRD AVENUE SUITE saa 1000 CONNECTICUT AVENUE. NW WASHINGTON, D.C. Z003e SUNeANK INTERNATIONAL CENTER MIAMI, F'LQRIOA 33131-171:5 NOT ADMITTED TO FLORIDA BAR TELEPHONE (305) 530-1322 TELIECOPIEA (305) 530-9417 Marc.h 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: L Review the City's present cable franchise agreements, and make appropriate modifications thereto. ordinance and cable recommendations for 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 outl ined above. In addition I 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 authorized, hereby accepts this By: Laure City of Miami Be Date: '7 j3/tJ;3 y Attorney EXHIBIT B [D R AFT] 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 fora 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. J. 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 A HORNEY <e~ tf~.l1f1lCh F L o R D A CITY ATTORNEY ~V:i8('-I~ 9~~; ~(l~. ,m) * ,,~/~~ 1f,~1f'\ POBOX 0 MIAMI BEACli. FLORIDA 33119-2032 TELEPHONE 1305) 673-7470 TELECOPY 13051673-7002 LAURENCE FEINGOLD COMMISSION MEMORANDUM NO. 5/' -93 DATE: September 22, 1993 TO: ~a4/ FROM: Laurence Feingold, City Attorney 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 U1tracom 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. 88 In March, 1988, both Miami Beach franchises were transferred to '700 CONVEN~IO~ CENTER DRIVE -- FOURTH FLOOR __ MIAMI BE AG~~~~-R -'3'- r< 9-~~-13 JATE 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 . GROSS REVENUE 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 re funds) . As a result. the FCC adopted minimum national standards for cable customer services.' Hcwever, pursuant to Section 632(c) of 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 BAA-57 of the Dade County Code addresses consumer protection provisions, office and telephone availability; Section BAA-58 addresses installation, outage and service calls; and Section 8AA-59 addresses communications, bills and refunds. 'The City of Miami Beach participated in this proceeding by filing comments on January 11, 1993. attached. rule making A copy is 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". 80th 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 subj ect 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 telev ision 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 concerning 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. A:\commemo.922 7 94