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HomeMy WebLinkAbout1982-074 14 INDIAN RIVER COUNTY ORDINANCE NO.82-7 State of Florida grants to County government the powers of self-government as provided by general or special law and authorizes the County Commission to enact County ordinances not inconsistent with general or special law, and WHEREAS, Florida Statute Section 125.01 grants to the various counties the power to carry on County government and perform any act not inconsistent with the law which is in the common interest of the people of the County including .but not limited to the power to establish, coordinate and enforce business regulations as are necessary for the protection of the public, to adopt technical codes and regulations and to regulate arterial and other roads and related facilities, and WHEREAS, the Board of County Commissioners has control and responsibility of county roads and rights of ways and declares it to be in the public interest to regulate their use by cable television companies; to provide control over the method and manner of said use in order to prevent damage to the roadbed and to the entire width of the rights of way, including drainage -1- AN ORDINANCE PROVIDING FOR THE LICENSING OF CABLE TELEVISION COMPANIES OPERATING IN THE UNINCORPORATED PORTION OF INDIAN RIVER COUNTY PROVIDING FOR; APPLICABILITY; DEFINITIONS; LICENSE REQUIRED; LICENSE APPLICATION PROCEDURE; CHANNEL REQUIREMENTS; MINIMUM RECEPTION STANDARDS AND SIGNAL QUALITY REQUIREMENTS; PERMIT AND EASEMENT REQUIREMENTS; FEDERAL COMMUNICATIONS COMMISSION PETITIONS AND LICENSES; CHANGE OF OWNERSHIP, CONTROL OR TRANSFER OF LICENSE; LIABILITY AND INDEMNIFICATION; PAYMENTS TO COUNTY; NON-EXCLUSIVE LICENSE; LICENSEES' BOOKS AND RECORDS; OTHER PERMITS AND LICENSES; RESERVATION OF COUNTY RIGHTS IN RESPECT TO LICENSES; SAFETY STATE OF FLORIDA COUNTY REQUIREMENTS; RATE AND INSTALLATION SCHEDULE; OPERATION INDIAN RIVER THAT THIS IS AND MAINTENANCE; PREFERENTIAL OR DISCRIMINATORY PRACTICES; THIS IS TO CERTIFY CORRECT COPY OF CONSUMER PROTECTION PROVISIONS; PERMIT A TRUE AND ON FILE IN THIS REQUIRED• RELOCATION OF FACILITIES; JOINT OR COMMON THE ORIGINAL OFFICE. USE OF POLES; GROUND FOR REVOCATION OR SUSPENSION OF WRIGHT, CLERK F� LICENSE; , PROCEDURE FOR REVOCATION OR SUSPENSION, D.C. REVIEW OF ADVERSE DECISION; TERMINATION AND BY �// CANCELLATION OF LICENSE BY RESOLUTION AND RIGHTS S/O�Y�y RESERVED BY COUNTY;'PROCEDURE FOR CORRECTION OF DATE ERRORS IN ISSUANCE OF LICENSES; PERMITS GRANTED PRIOR TO THIS ORDINANCE; ACCEPTANCE OF'BENEFITS; PENALTIES AND MISCELLANEOUS PROVISIONS; CONFLICTING LAWS, PRE-EMPTION BY FEDERAL COMMUNICATIONS COMMISSION RULES AND REGULATIONS OVER ORDINANCE PROVISIONS; INCORPORATION OF ORDINANCE IN COUNTY CODE; SEVERABILITY; AND EFFECTIVE DATE. WHEREAS, Article VIII of the 1968 Constitution of the State of Florida grants to County government the powers of self-government as provided by general or special law and authorizes the County Commission to enact County ordinances not inconsistent with general or special law, and WHEREAS, Florida Statute Section 125.01 grants to the various counties the power to carry on County government and perform any act not inconsistent with the law which is in the common interest of the people of the County including .but not limited to the power to establish, coordinate and enforce business regulations as are necessary for the protection of the public, to adopt technical codes and regulations and to regulate arterial and other roads and related facilities, and WHEREAS, the Board of County Commissioners has control and responsibility of county roads and rights of ways and declares it to be in the public interest to regulate their use by cable television companies; to provide control over the method and manner of said use in order to prevent damage to the roadbed and to the entire width of the rights of way, including drainage -1- an V V I., L facilities, driveways, sidewalks and other public facilities; to determine the location of the cable in order to minimize disruption of the public use of the rights of way; to require licenses and payment of fees for operation of cable television within Indian River County and for the non-governmental profit making use of public rights of ways; and to provide consumer pro- tection by setting minimum standards for quality of service; and WHEREAS, this Board finds and determines the following licensing requirements to be necessary to protect the public interest, and that this Board has a continuing duty to the public to protect the public interest by the enactment and enforcement of this ordinance; and WHEREAS, this Board has found and determined that it is in the public interest to permit and authorize use of the public rights of way for cable television transmission, and this Board also desires to promote use of said cable to improve the quality of television or radio reception, to allow local program origination, leasing of systems, channels, signals, wire, cable, and pipes all in the best interest of the citizens of Indian River County, and WHEREAS, this Board determines that it is reasonable, necessary and in the public interest to require all persons, firms and companies desiring to operate cable television within the un -- incorporated area of Indian River County an to use public rights of way subject to the control and jurisdiction of the County for the installation of cable television facilities to obtain licenses from the County to operate or to use the public rights of way and to pay for said operation and/or use by an annual fee of three per cent (3%) of the gross revenues, as defined in this ordinance, derived from income produced from such cable use within the unincorporated area of the County. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA: TITLE This ordinance shall be designated and may be cited as the Indian River County Cable Television (CATV) Ordinance. -2- ARTICLE I SECTION 1. LEGISLATIVE INTENT; APPLICABILITY The legislative intention of this Board is set out in the preceding paragraphs of this ordinance. It is intended to regulate the operation of Cable Television within the unincorpor- ated area of Indian River County and to govern use of County main- tained roads and rights of way by Cable Television franchisees. It is not intended to regulate the quality of service or the rates charged to customers within municipalities which issue cable tele- vision licenses or franchises. A license granted under this ordi- nance does not authorize cable television facilities where prohibited by municipal ordinance. ARTICLE II SECTION 2. DEFINITIONS A. "Cable Television System (or CATV System)" means any facility operating within Indian River County that, in whole or in part, receives directly, or indirectly over the air or by other means and amplifies or otherwise modifies the signals transmitting programa broadcast by one or more television or radio stations and distributes such signals by wire or cable or other means to sub- scribing members of the public who pay for such service. B. "County" shall mean Indian River County, Florida. C. "Commission" shall mean the Board of County Commissioners of Indian River County. D. "License" shall mean the license granted to the app- licant for permission to install, operate and maintain a CATV system pursuant to this ordinance. E. "Permit" shall mean that permit required by Indian River County for construction of CATV facilities within public rights of way. F. "Distribution System" shall mean the various trans- mission cables and associated and similar facilities, devices, or methods including those facilities placed in, over, under, through or along the public rights of way for the transmission of signals from principal antenna or antennas or "headend" to subscriber connections. G. "Lead-in" shall be the individual lead wire or cable -3- from the distribution system to each individual household or con- nection. H. "Licensee" shall be the corporation, partnership, individual, or other entity granted a license under this ordi- nance. I. "Signal" shall mean any impulse, fluctuating elec- tronic quantity or source of image, message, sound or other indi- cator that serves as a means of communication or makes known or imparts thoughts, ideas, or data of any kind whatsoever. J. "Gross Revenues" shall mean gross subscriber revenue per year derived from supplying regular subscription cable television service, including installation fees, disconnect and reconnect fees, fees for regular cable television benefits (basic service), in the license area. This definition does not include revenues derived from premium or additional pay channels. K. "Public Rights of Way" shall include any County street, road, alley, or highway or public easement acquired by the County or the public by purchase, gift, devise, dedication, pre- scription, or otherwise within the unincorporated areas of Indian River County, and those roads and easements under the jurisdiction of the County within municipalities located in Indian River County. L. "Standard Installation" shall -mean one which re- quires no more than two hundred (200) feet of standard lead-in cable to connect the subscriber terminal to the nearest distribu- tion system tap -off, where entry is made into the building through an outside wall adjacent to the location of the subscriber's tele- vision, where any internal wiring can be affixed to the surface of the wall or baseboard or placed in a readily accessible raceway and where the method of installation, either aerial or underground, is the same as is employed in the distribution system serving the sub- scriber. M. "Custom Installation" shall mean one which employs outside construction methods, either aerial or underground, dif- ferent from those employed in the distribution system serving the subscriber, where inside wiring involves installation of cable or -4- wire in any attic, crawl space, or within the dead space area of any wall or other area not readily accessible or involving ex- cessive time, care or expertise, or which requires the use of more than two hundred (200) feet of standard lead—in cable or of additional amplification equipment on the subscriber's property in order to provide proper service. N. "Fiscal Period" shall mean a period of one year, beginning and ending dates of which shall be set by the licensee and shall be stated on the license. Fiscal periods of licensee, established prior to the date of this Amendment shall remain un- changed until a different fiscal period is required by the licen- see and approved by the Board of County Commisssioners. The County shall not unreasonably withhold such approval. ARTICLE III SECTION 3. LICENSE REQUIRED Any individual, partnership, corporation or other entity desiring to install and operate any cable television system in the unincorporated area of Indian River County shall apply to the Board of County Commissioners for a license pursuant to this Ordinance. The license shall be for a period up to twenty (20) years and shall be non-exclusive and may contain provisions for renewal for additional periods. It shall grant the privilege to install, construct, maintain and operate a CATV system of origination, transmission and distribution of electronic signals by cable and associated and similar devices including installation along, under, over, through, across and upon the public rights of way in accordance with the additional requirements of this Ordinance throughout the area which is described in the license and for which approval has been received. Any individual, partnership, corporation or other entity desiring to install and operate any cable television system in the incorporated areas of Indian River County shall apply to the Board of County Commissioners for a permit, granting the privilege to install, construct, maintain and operate a CATV system or origina- tion, transmission and distribution of electronic signals by cable and associated and similar devices along, under, over, through, -5- across and upon the public rights of way under the jurisdiction of the County within municipalities located in the County in accor- dance with such rules and regulations as may be approved by the Board of County Commissioners. SECTION 4. LICENSE APPLICATION PROCEDURE; INFORMATION REQUIRED A. The Board of County Commissioners shall investigate and inquire into the legal, financial, technical, and character qualifications of the applicant for a license under the provisions of this Ordinance. B. The Board shall be apprised of the adequacy and feasibility of the construction and service plans of the appli- cant. C. Any person, corporation or other entity desiring to install or operate CATV facilities within the public rights of way of Indian River County shall make an application on forms provided by the County through the County Utility Division, which shall contain or be accompanied by the following information; 1. Name, address and telephone number of the applicant. 2. Names and addresses of all of the officers, directors and principals of any corporate applicant, all partners, joint ventures and all principals of non -corporate applicants. 3. Current and up-to-date financial statements. 4. The name and mailing address -of the operator of the proposed system, community and legal description of area to be served, television signal to be carried, proposed date on which cable operations will commence, proposed date upon which construction shall be commenced and if applicable, a statement that microwave radio facilities are to be used to relay one or more signals. 5. A verifiable credit reference report or in lieu thereof, letters of credit reference and recommendation from at least two lending agencies, be they a bank or savings and loan association. 6. True and exact copies, if filed, of the last and most current Federal Communications Commission Cable TV Information Report, F.C.C. Form 325, 326, and 326 (a) as submitted -6- to the Federal Communications Commission. 7. Copy of contract or service agreement to be utilized for individual customers which shall include all fees, charges, rentals, late payment charges, cancellation fees, maintenance charges and company rules pertaining to relations between the licensee applicant and subscribers. 8. Locations of antenna and transmitter headend facili- ties. 9. Certificates of Liability Insurance Coverage in the minimum amounts specified by this Ordinance, naming the County as a co-insured. 10. Performance bond as required by Section 10 (c) of this Ordinance, payable to the County. 11. City, County, and State Occupational Licenses. 12. A statement that details the technical qualifica- tions and experience of the applicant, its employees or agents. 13. Such other information the Utility Department may request in order to adequately assess the applicant's qualifica- tions. D. The application shall be accompanied by a non- refundable fee of $1,000.00 and shall be submitted with the completed application to the County Utility Department for review and presentation to the Commission. E. The application shall be reviewed by the County Utility Department and shall be submitted to the Board of County Commissioners upon certification by the Utility Department that the application is in compliance with the Ordinance. Considera- tion of the application by the County Commission shall be at public hearing; notice of such shall be published by the Clerk of the County Commission in a newspaper of general circulation in the County once weekly for two consecutive weeks immediately prior to the week of the date of public hearing; the cost of said Legal Advertisement being borne by the Licensee as an additional cost. F. In the event any application for a license is filed, the area of which overlaps the area of any existing licensee, the existing licensee shall be given notice thereof, together with a dM copy of the new application, and shall be provided with all notices related to such application during the pendency of such application. No application for a license, the area for which would overlap an existing licensee, shall be approved or become effective unless notice has been given the existing licensee. Any existing licensee shall be entitled to participate in all public hearings related to the new application, and no overlapping license shall be granted without hearing, and compliance with all other procedural requirements of this Ordinance. SECTION S. CHANNEL REQUIREMENTS A. Each cable television system operating in whole or part with the County shall carry those signals of television broadcast stations as are required by the Federal Communications Commission at the time of the application and as they may be changed or amended. B. The licensee shall provide an initial service of not less than eight (8) commercial television broadcast stations that are significantly viewed in Indian River County pursuant to and in accordance with F.C.C. Rules and Regulations. When channels are available in the system, the County may require the Company to provide one local origination channel to serve all governmental bodies within the County and provide free public access when and under such circumstances as may be reasonably required by the County. C. If any CATV subscribers are being served within a radius of one quarter mile of a school or library, the licensee shall provide basic CATV service to the school or library without charge; provided, however, the installation charges shall be borne by the school or library pursuant to and in compliance with the provisions of this Ordinance. D. The licensee shall provide channels pursuant to F.C.C. regulations in accordance with the Licensee's rating under F.C.C. regulations and subject to any subsequent revisions upward or downward by the F.C.C. SECTION 6. MINIMUM RECEPTION STANDARDS AND SIGNAL QUALITY REQUIREMENTS The licensee shall establish and quarantee minimum Z19 technical reception standards in accordance with Federal Communications Commission standards. The licensee shall at all times maintain the following minimum technical reception standards and signal quality requirements: A. Compliance with minimum standards of the Federal Communications Commission's Rules and Regulations pertaining and incidental thereto, including, but not limited to, Section 76.601, Section 76.605, Section 76.609, Section 76.613 and Section 76.617 of the F.C.C. Cable Television Operational Rules and Technical Standards, as amended, being part of Chapter I of Title 47 of the Code of Federal Regulations. B. The licensee shall have available within a reason- able period of time accurate calibrated test equipment in the County and shall provide test data to the County pursuant to F.C.C. Requirements for test data. C. Reasonable testing data shall be provided at no cost to the County or to subscribers when such tests are requested by the County in order to determine the level of performance of the CATV system. D. The licensee shall provide that the CATV system and all equipment incidental to the operation of said system be de- signed and rated for 24 -hours per day continuous operation. SECTION 7. OTHER AGREEMENTS, PERMIT AND EASEMENT REQUIREMENTS The County shall not be required to assume any respon- sibility for the securing of any rights of way, easements, or other rights which may be required by the licensee for the installation of the CATV system, nor shall the County be responsible for securing any permits or agreements with other persons or utilities. SECTION 8. FEDERAL COMMUNICATIONS COMMISSION PETITIONS AND LICENSES A. Any reprimands, notices of violation, or problems with the procedures or capabilities of a licensee, as a result of F.C.C. decision or otherwise, shall be reported to the County without request. B. The licensee shall, except for existing licenses, within sixty (60) days after the issuance of a license under this Ordinance, apply to the Federal Communications Commission for a -9- Certificate of Compliance or such other certifiaate or license as may be required. Failure_ of the licensee to obtain the necessary permits and licenses within one (1) year of the issuance of a license under this Ordinance shall cause the license to become nu Ll and void, unless the licensee petitions the Board of County Commissioners for an extension of time upon good cause shown. SECTION 9. CHANGE OF OWNERSHIP, CONTROL OR TRANSFER OF LICENSE The licensee shall at all times be the owner or leasee of all the facilities and property, both real and personal, of the CATV business operating under license issued by the Commission. A. The licensee shall furnish the Board of County Commissioners with an exact and true copy of all pertinent CATV reports filed with the F.C.C.-relating to its operation in the County. B. No assignment of any license granted hereunder shall be valid and effective to transfer any interest or to bind the County without prior approval of the Commission. Approval may not be unreasonably withheld by the Commission. In considering any request for transfer of license, the Commission may require a public hearing fee up to $500.00 together with such information, records, books or accounts, or other data as it may deem necessary and proper to evaluate the qualifications of the proposed assignee. The assignee must meet all the requirements of this Ordinance. C. The licensee shall advise the County at least thirty (30) days in advance of a proposed change of ownership, control, or transfer of a license. The notice shall contain the name of an independent Certified Public Accountant engaged to perform the audit required by this Section. The licensee shall provide the County with an audit of its operations and records as of the close of the last day of operations, conducted by an independent Certified Public Accountant and meeting the requirements set forth in Section 13 (b). The audit report shall be submitted to the County within ninety (90) days of the last day of operation. SECTION 10. LIABILITY AND INDEMNIFICATION A. The licensee shall save the County harmless from any and all liability arising out of the granting of a license or the -10- operation thereunder. The licensee shall defend in the name of the County and shall pay all expenses incurred by the County in defending itself with regard to all damages and penalties the County may legally be required to pay as a result of the license granted hereunder. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright in- fringement and all other damages arising out of the installation, operation or maintenance of the CATV system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this Ordinance. The expense shall include all incidental expenses including attorney fees and shall also include a reasonable value of any services rendered by the Office of the County Attorney. B. The licensee shall maintain and pay for liability insurance, insuring the County and the licensee against all claims for damages charged against the County or the license, resulting from the installation, development, maintenance, operation or expansion of the CATV system authorized by this Ordinance. The licensee shall maintain such insurance in the name of Indian River County throughout the duration of the license in the minimum amounts of: 1. $250,000 for bodily injury or death to any one Berson with an aggregate limit for any one occurrence of $500,000 for bodily injury or death. 2. $250,000 for prooerty damage resulting from any one accident. 3. Umbrella liability of $2,000,000 for all types liability. 4. $500,000 for all other types of liability. 5. Contractural liability insurance covering all liability arising out of the terms of the license agreement. 6. Worker's Compensation Insurance as required by Chapter 440, Florida Statutes. 7. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used in connection with the licensee's work in amounts as indicated in 1 and 2 above. -11- 7 C. The licensee shall maintain throughout the terms of its license a faithful performance bond in the form prescribed by the County, with a surety rated at not less than A+4B and accept- able to the County. The performance bond shall be in favor of the County in the penal sum of $25,000 upon the condition that the licensee shall truly observe, fulfill and perform each term and condition of this Ordinance and his license and that, in the case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and surety thereof by the County for all damages resulting from the failure of the licensee to well and faithfully observe and perform any provisions of this Ordinance of the license issued hereunder, including failure to pay gross receipts percentage to the County. The bond shall not be cancelled without one hundred twenty (120) days prior notice to the County. Alternate forms and/or amounts of surety such as a letter of credit or escrow account may be considered by the Board of County Commissioners. D. All insurance policies required by this Ordinance shall be issued in companies authorized to do business under the laws of the State of Florida and acceptable to the County Commission. The licensee shall furnish certificates of insurance to the County prior to commencing any operation under the license aareement; such certification shall clearly indicate expiration dates and policy numbers and that the licensee has paid the required premiums and obtained insurance in the types, amounts and classifications in strict compliance with this section. No material change or cancellation of insurance shall be permitted without thirty (30) days prior notice to the County. SECTION 11. PAYMENTS TO COUNTY: USE THEREOF The licensee shall pay to the County three (3%) percent of gross revenue, as defined in this Ordinance, per fiscal period as a License Fee for its CATV system. The payments shall be made within ninety (90) days of the close of the licensee's fiscal period and shall be submitted together with the audit report required by Section 13 of this Ordinance. -12- SECTION 12. NON-EXCLUSIVE LICENSE No license issued hereunder shall be construed or con- sidered an exclusive license, nor shall the same vest any exclu- sive rights in any licensee. SECTION 13. LICENSEES' BOOKS AND RECORDS A. The licensee shall maintain accounting and adminis- trative controls adequate to assure that accounts and records are maintained in accordance with generally accepted accounting principles. B. The licensee shall submit a report of its operations showing in detail gross revenue as defined in this Ordinance. The report shall be certified by a financial officer of the licensee or by an independent Certified Public Accountant and shall be sub- mitted within ninety (90) days of the close of each fiscal period. The report shall be prepared in accordance with generally accepted accounting principles and shall be sufficient in scope to allow a Certified Public Accountant to issue an opinion regarding licensee's compliance with the License Fee requirements of this Ordinance. C. The licensee shall provide such reasonable financial data as deemed necessary and proper by the Board of County Commissioners, when requested, relating to activities in the licensed areas. Upon the licensee's failure to provide reasonable financial data, the Board of County Commissioners may require an independent audit of licensee's books and records to determine whether licensee has complied with the License Fee requirements of this Ordinance, the cost of any such audit shall be the responsibility of licensee. SECTION 14. OTHER PERMITS AND LICENSES The granting of a license under this Ordinance does not take the place of any other franchise, license or permit which might be required by law. SECTION 15. RESERVATION OF COUNTY RIGHTS IN RESPECT TO LICENSES The County may adopt in addition to the provisions con- tained herein and in existing applicable ordinances or regula- tions, such additional reasonable regulations as it shall find necessary to exercise its obligations pursuant to the public -13- interest and legal authority, after public hearing and notice to licensees. ARTICLE IV SECTION 16. SAFETY REQUIREMENTS A. The licensee shall maintain a force of resident agents and employees in the County at all times of sufficient size and number to provide safe, adequate and prompt service for its facilities and to its subscribers. B. The licensee shall adopt safety rules and regula- tions and shall at all times employ due care and shall install and maintain in use commonly accepted methods and devices for pre- ventinv failure and accidents. which are likely to cause damage, injuries or nuisance to the public. SECTION 17. RATE AND INSTALLATION SCHEDULE A. Basic service rates and installation fees to be charged by the licensee shall be those stated in the license granted hereunder or as agreed to by the Board of County Commissioners pursuant to a public hearing. The rates set by the Board of County Commissioners shall allow for a fair and reasonable return on investment. B. A task force comprised of representatives from the County Attorney's Office, the Utility Department, the Administrator's Office and/or such additional appointees as the Board of County Commissioners shall designate, shall review all applications for rate increases and make recommendations to the Board of County Commissioners within sixty (60) days of receipt of a complete application request by the licensee. Applicant will be charged a $500.00 public hearing fee. Where desired by the Board of County Commissioners, review by the Cable TV task force may be waived. C. Custom installation charges shall be billed on a time and material basis, and no work shall commence until the licensee and the subscriber have agreed in writing to the cost thereof. Licensee and the customer may agree in advance to a rea- sonable charge for performing the work necessary for a preliminary cost estimate. The licensee shall furnish to the subscriber a -14- written itemization of the equipment to be installed which shall include a statement designating its Bost; labor costs and tal costs. After the customer accepts said itemized charges, he shall not be required to pay any sum in excess of the agreed amount. The company may, when requested permit the subscriber to install the equipment provided by the licensee or other equipment of equal quality, to be connected and activated by the licensee. D. All increases in established rates and installation charges must have prior approval of the Board of County Commissioners pursuant to a public hearing after due notice pub- lished once not less than fifteen (15) days prior to such hearing in a newspaper of general circulation in the County; costs for said legal advertisement shall be borne by the licensee. E. The County shall be advised of all decreases in rates and installation charges within thirty 430) days of their implementation. SECTION 18. OPERATION AND MAINTENANCE The licensee shall maintain and operate the system and render effective service in accordance with the rules and regulations established by the Federal Communications Commission. A. The licensee shall operate the system so that there will be no interference with television reception, radio reception, telephone communications or other installations which are now or may hereafter be installed or in use by the.County or any person in the County. B. The licensee shall maintain an office in the County which shall be open during all usual business hours, (at minimum from 9:00 A.M., to 5:00 P.M.), and shall have a publicly listed and advertised telephone available to receive subscriber service complaints and requests for repairs on a twenty-four (24) hour, seven (7) day a week, basis to respond to all service complaints. Upon receipt of a service complaint the licensee shall respond by correcting the service complaint within twenty-four (24) hours or by contacting the complainant and indicating why it cannot be corrected within this time period and when the situation will be remedied. -15- C. The licensee shall r?a:?er 3e1-11-'--2.- .-1ce repairs promptly and interrupt service only for good cause and for the shortest time feasible. Such interruptions insofar as practical, shall be preceded by notice and shall occur during periods of minimum use of the system. D. The licensee shall provide prompt responsible service and investigation in response to all customer complaints. Testing of the service at the customer's receiver shall be provided to indicate that the licensee is conforming with the operational_ standards set forth in this Ordinance. If the tests indicate that the licensee has failed to provide service to the customer in accordance with the operational standards outlined in this Ordinance the licensee shall promptly correct such deviations restoring the reception of the technical reception standards and signal quality requirements of this Ordinance. SECPION 19. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED The grantee shall not, as to rates, charges, service, service facilities rules, regulations or any other respect, make or grant any undue preference or advantage to any person, or subject any person to any prejudice or disadvantage. SECTION 20. CONSUMER PROTECTION PROVISIONS A. The licensee shall not, without good cause, fail to provide available service to individuals or prospective subscribers nor shall the licensee terminate service without good cause. Service shall be provided to all interested customers where econom- ically feasible. B. Unless a written contract exists between the licensee and a subscriber, service shall be on a month to month basis and the licensee shall not assess a penalty for cancellation of the service. C. All complaints to the County pursuant to the provi- sions of this Ordinance shall be made or referred to the County Utility Department for investigation and recommendation. D. In the event that the complaint cannot be resolved, conciliated or disposed of by the County Utility Department and the complaint appears to be meritorious, the matter shall be placed -16- before the Board of County Commissioners at their regular meeting under the County Utility Division's items on the agenda and brought to the attention of the Board. E. The Board of County Commissioners, after having been presented with the investigative report and recommendation of the County Utility Department, shall determine whether to set the matter for public hearing pursuant to the revocation or suspension provisions as hereinafter recited, refer the matter to the County Utility Department or to any other County Department for further study and recommendation or to decline to take any other further action. ARTICLE V SECTION 21. PERMIT REQUIRED Upon the granting of a license by the Commission, the licensee shall make application to the County Engineering Department for construction permits for all work to be performed in County rights of way or easements. A. In the event that the installation does not meet County standards or causes damages to the public right of way, including pavement, curbing, sidewalk, drainage facilities, swales, parkways, grassed areas, traffic signs or other public facilities within the public way, the County shall have the right to require the repairs to be made subject to revocation of license by the Board of County Commissioners and/or call in the performance bond required by Section 10 (c) if these repairs are not accomplished in accordance with County standards. SECTION 22. RELOCATION OF FACILITIES A. Any CATV facilities heretofore or hereafter placed upon, under or over any public way that is found by the Commission or by the County Utility Division to be unreasonably interfering in any way with the convenience, safety and continuous use and maintenance of such public way shall, upon thirty (30) days written notice to the licensee be removed or relocated by the licensee at his own expense. B. If at any time during the period of a license the County shall elect to alter, change, expand, improve, repair or -17- otherwise utilize the public way for any facility pursuant to the interest of the general public, any CATV facilities heretofore or hereafter placed upon, under or over any public way, that is inter- ferring or in conflict with the interest of the Commission to pursue the public interest, shall upon thirty (30) days written notice to the licensee by the Commission or the County Engineer be removed or relocated by the licensee at his own expense. C. The County shall, upon the failure of the licensee to comply with this section within thirty (30) days after receipt of written notice, have the right, privilege and authority to proceed to cause the required relocation; the expense thereby incurred by the County shall be charged against the licensee and levied and collected. D. The licensee shall install and maintain all struc- tures and all wires, equipment and connections in, over, under and upon all streets, easements and swales, sidewalks, alleys and public ways or places of the County wherever situated or located in accordance with the requirements of the National Electric Safety Code promulgated by the National Bureau of Standards and the National Electric Code of the American Insurance Association, and shall at all times keep and maintain in a safe, suitable, substan- tial condition and in good order and repair. Prior to any excava- tion, the licensee shall ascertain the location of all underground facilities such as; water, sewer, telephone, power, etc. E. The County shall have the right to inspect all con- struction or installation work performed by the licensee subject to the provisions of this Ordinance and make such inspections as it shall find necessary to assure compliance with the terms of the license and other pertinent provisions of law. SECTION 23. JOINT OR COMMON USE OF POLES A. To enhance the public convenience and to minimize the placement of poles and wires holding structures within public ways, the licensee shall, where possible, enter into agreements for the joint or common use of poles or other wire holding structures where poles or other wire holding structures already exist for the use in serving the County or serving the public convenience. However, no -18 location of any pole or wire holding structure of the licensee shall be a vested interest, and such pole or structure shall be removed or modified by the licensee at its own expense whenever the County determines it to be necessary. B. The County shall be permitted to make use of the poles or other wire holding structures of the licensee, without charge or remuneration to the licensee, if the Commission deter- mines that the use would enhance the public convenience and would not unduly damage, hamper or interfere with the licensee's opera- tions. SECTION 24. MASTER PLAN REQUIRED - CONSTRUCTION The licensee shall submit with their application and every two years thereafter a map showing the licensed area and the construction plans of licensee for the*area together with a con- struction timetable. The licensee shall notify the County of any changes in its construction plan or timetable. Licensee shall not be granted any license area in which the licensee does not have a reasonable expectation of providing service within three (3) years. The Board may upon notice to licensee, and in accordance with the procedures set forth in Section 26, constrict the license area of any licensee who fails to abide by its construction timetable or who fails to provide service to the licensed area within three (3) years. Licensee shall be required to extend service into all licensed areas where licensee has a possibility of thirty-five (35) installations for each strand mile of cable extension from the existing system. ARTICLE VI SECTION 25. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE A. Any license may be suspended or revoked after due notice at a public hearing if it is found that: 1. The license was fraudulently obtained or erroneously issued. 2. The licensee or any member of the firm, or any officer or director, if a corporation, has violated any of the material provisions of this Ordinance. 3. The licensee has been adjudicated bankrupt. If a -19- Petition for voluntary or involuntary bankruptcy has been filed against the licensee or there has been made a com- position of creditors or a receiver has been appointed for the licensee, the license may be suspended. 4. The licensee has failed to maintain the insurance or performance bond required by this Ordinance. The Board may reinstate any license revoked for failure to maintain a bond or insurance at such time as the licensee furn- ishes proof satisfactory that the requirements have been complied with. 5. The licensee attempts to dispose of any of the facil- ities or property of its CATV system to prevent the County from recovering any payments due or any losses or damages arising out of the license. 6. The licensee has transferred or has attempted to transfer ownership or control of the licensee company without approval of the Indian River County Board of County Commissioners as indicated in Section 9 of this Ordinance. 7. The licensee attempts to evade any of the provisions of a license granted hereunder or practices any fraud or deceit upon the County. 8. The licensee has refused to comply with demands for upgrading the quality of service, eliminating or remedy- ing equipment malfunctions or other similar matters, pur- suant to the provisions contained herein or F.C.C. stan- dards having resulted in complaint pursuant to and in accordance with the provisions as contained herein. 9. Any provision of this Ordinance, or any provision of any license issued hereunder, has become illegal or is held invalid -or unenforceable and the Board further finds that such provision constitutes a consideration material to the grant of said franchise. SECTION 26. PROCEDURE FOR REVOCATION OR SUSPENSION, REVIEW OF ADVERSE DECISION A. The Clerk of the County Commission shall send by -20- registered mail a letter to the licensee at the last address filed with the Board of County Commissioners, setting out the alleged offense and the approximate time of its commission, the section of this Ordinance alleged to be violated, and notifying them to appear before the Board at a time and place fixed, not sooner than twenty (20) days from the mailing of the registered letter, to show cause why their license should not be suspended or revoked, advising that they may be represented by attorney, and that they should bring all original documents and other data that may be pertinent to the case and that they will be given opportunity to present such witnesses and evidence they deem appropriate. B. The Clerk of the Commission shall publish in a newspaper of general circulation in the County, once a week for two weeks in the 30 days prior to the date 'of such hearing, notice of the public hearing. C. The administrative hearing provided for above shall be conducted during the public hearing agenda of the Board of County Commissioners. D. The proceedings at the hearing shall be recorded and may be transcribed at the expense of the party requesting the transcript. E. The hearing need not be conducted according to rules of court relating to evidence and witnesses. Any relevant evidence shall be admitted if the Board finds it competent and reliable, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible in civil actions. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant and unduly repetitious evidence shall be excluded. F. Each party shall have the following rights: To call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach -21- any witness regardless of which party first called him to testify; and to rebut the evidence against him. G. Any party aggrieved by the Board's decision suspending or revoking his license may have such decision reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the Nineteenth Judicial Circuit in and for Indian River County, Florida, in accordance with the procedure and within the time provided by the Florida Appellate Rules for the review of the rulings of any commission or board, which rules of practice and procedure are hereby adopted. SECTION 27. TERMINATION AND CANCELLATION OF LICENSE BY RESOLUTION AND RIGHTS RESERVED BY COUNTY A. Termination and cancellation of license shall be by resolution and shall not affect any of the County's rights under a license granted under this Ordinance or any provisions of law. B. At the expiration of the term for which a license is granted or upon its termination and cancellation as provided herein, the County shall have the right: (1) to require the licensee to remove at its own expense, all or any portion of the facilities within the public rights of way, or (2) renew the license pursuant to the laws then in effect. C. Upon the termination, cancellation, revocation or suspension of any license granted pursuant to the terms herein, notice of the same shall be transmitted to the Federal Communications Commission, forthwith. SECTION 28. PROCEDURE FOR CORRECTION OF ERRORS IN ISSUANCE OF LICENSES Notwithstanding the provisions of the foregoing sections, when any license shall have been issued or shall be outstanding because of error of law or fact, or because of administrative error, the Board may revoke or correct such license, upon notice and reasonable opportunity to be heard, but without charges, find- ings, or other formal requirements, and failure to return such license to the Board upon demand therefor shall be a violation of this Ordinance. SECTION 29. PERMITS GRANTED PRIOR TO THIS ORDINANCE All CATV operators in the unincorporated areas of Indian -22- River County who possess a valid, current permit, that is in good standing, to operate a CATV operation as of the effective date of this Ordinance shall be issued a license pursuant to this Ordinance the provisions of §4 notwithstanding, and shall thereafter comply with all the terms and conditions of this Ordinance. SECTION 30. ACCEPTANCE OF BENEFITS By acceptance of a license issued under this Ordinance, the licensee agrees to comply with all its provisions and require- ments. SECTION 31. PENALTIES AND MISCELLANEOUS PROVISIONS Any person, firm or corporation violating any of the pro- visions of this Ordinance, upon conviction thereof, shall be pun- ished by a fine not exceeding Five Hundred Dollars ($500.00), or by imprisonment for a term not to exceed sixty (60) days, -or by both such fine or imprisonment within the discretion of the Courts. A. It shall be unlawful for any person, firm or corpora- tion to make any unauthorized connection, whether physically, elec- trically, acoustically, inductively or otherwise, with any part of a CATV system within the unincorporated area of the County for the purpose of enabling himself or others to receive•any television signal, radio signal, pictures, programs or sound. B. It shall be unlawful for any person, without the con- sent of the owner, to willfully tamper with, remove or vandalize any cables, wire or equipment used for the distribution of television signals, radio signals, pictures, programs or sound. C. It shall be unlawful for any person, firm, or corpor- ation to operate or attempt to operate a community antenna tele- vision system in the unincorporated area of the County without securing a license to conduct such business as provided herein. SECTION 32. CONFLICTING LAWS All local laws and ordinances applying to Indian River County in conflict with the provisions of this Ordinance are hereby repealed to the extent of such conflict. SECTION 33. PRE-EMPTION BY FEDERAL COMMUNICATIONS COMMISSION RULES AND REGULATIONS OVER ORDINANCE PROVISIONS Any section or provision of this Ordinance or license or -23- permit issued therefrom and any local regulations or conditions in conflict with rules and regulations promulgated by the Federal Communictions Commission are hereby preempted and such Federal Communications Commission modifications shall be deemed incorpor- ated herein. SECTION 34. INCORPORATION OF ORDINANCE IN COUNTY CODE Provisions of this Ordinance shall be incorporated in the County Code and the word "ordinance" may be changed to "section", "article", or other appropriate word, and the sections of this Ordinance may be renumbered or relettered to accomplish such inten- tions. SECTION 35. SEVERABILITY If any section, part of a section, paragraph, sentence, clause, phrase or word of this Ordinance is for any reason held or declared to be unconstitutional, inoperative or void, such holdings or invalidity shall not affect the remaining portions of this Ordinance and it shall be construed to have been the legislative intent to pass this Ordinance without such unconstitutional, invalid or inoperative part therein, and the remainder of this Ordinance after the exclusion of such part or parts shall be deemed to be held valid as if such part or parts had not been included therein, or if this Ordinance or any of the provisions thereof shall be held inapplicable to any person, group of persons, pro- perty, kind of property, circumstances or set of circumstances, such holding shall not affect the applicability thereof to any other person, property or circumstances. SECTION 36. EFFECTIVE DATE The provisions of this Ordinance shall become effective upon receipt from the Florida Secretary of State of official acknowledgment that this Ordinance has been filed with the Department of State. Approved and adopted by the Board of County Commissioners of Indian River County, Florida on this 5th day of -24- May, 1982. INDIAN RIVER COUNTY BY ITS BOARD OF COUNTY COMMISSIONNEERS B y : DON C. SCURLOCK, JR. Chairman Acknowledgment by the Department of State of the State of Florida this /V oe4ie day of >X.&7 , 1982. Effective Date: Acknowledgment from the Department of State received on this aY'276 day of 0� , 1982, at A.M./-P-9,, and filed in the office of the Clerk of the Board of County Commissioners of Indian River County, Florida. Approved as to form and legal suf ency. By: G BRANDENBURG o n Attorney -25-