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-,-
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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 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
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CITY ATTORNEY
~V:i8('-I~
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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