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HomeMy WebLinkAboutO-94-01 ORDINANCE NO. 0-94-0L AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA RELATING TO CABLE TELEVISION REGULATION; CREATING CHAPTER 105 OF THE CODE OF ORDINANCES; PROVIDING FOR A TITLE, PROVIDING FOR AUTHORITY; PROVIDING FOR DEFINITIONS; RESERVING AUTHORITY TO THE CITY; PROVIDING FOR RATE REGULATION; PROVIDING FOR THE REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. S521 et seq., as implemented by regulations promulgated by the Federal Communications Commission ("FCC") provides for local governmental rate regulation of basic tier cable television services and cable television equipment; and WHEREAS, to be approved by the FCC to conduct basic tier rate regulation, a local government must adopt regulations to provide a "reasonable opportunity for consideration of the views of interested parties within 120 days of the effective date of certification," §76.910, FCC Regulations; and WHEREAS, the City has filed its application for certification to regulate basic tier rates with the FCC; and WHEREAS, the city Council finds that this Ordinance will promote the public interest, health, safety, welfare, and economic order of the community. NOW, THEREFORE, BE IT ENACTED by the city Council of the City of Sebastian, Indian River County, Florida, as follows: SECTION 1. The Code of Ordinances of the city of Sebastian, Florida, is hereby amended by adding a new chapter, article, and sections to be numbered chapter 105, article I, sections 105-1 through 105-4 and article II, section 105-5, which said chapter, articles, and sections read as follows: "Chapter 105 CABLE TELEVISION ARTICLE i. In General Sec. 105-1. Title. This chapter may be cited as the "Sebastian Cable Television Code." Sec. 105-2. Authority; application. This chapter is enacted pursuant to the powers of the city to promote the public health, safety, welfare, and economic order of the community, by providing regulations for the installation, use, rates, and merchandising of cable television systems within the City. Sec. 105-3. Definitions. When used in this chapter, the following terms shall be defined as indicated below. Terms used in this chapter, but not defined below, which are defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, as further amended by the Cable Television Consumer Protection and Competition Act of 1992, codified in 47 U.S.C. §521 et seq., shall have the meanings set forth in 47 U.S.C. §522. "Act" shall mean the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, as further amended by the Cable Television Consumer Protection and Competition Act of 1992. "Applicant" shall mean all officers, agents, employees and representatives seeking an approval,.grant, or permit under this chapter. "Application process" shall mean the method for acceptance, review, approval or denial of an application for a franchise award, transfer or renewal, or rate request, including staff action and action of the City Council. "City" shall mean the City of Sebastian, Indian River County, Florida. "FCC" shall mean the Federal Communication Commission. "Franchise" shall mean an initial authorization or renewal thereof, issued by the City, whether such authorization is referred to as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system in the City. All franchises shall be nonexclusive. "Franchisee" shall mean the person to whom a franchise is granted by the city under this chapter, and the lawful successor, transferee, or assignee of such person. "Newspaper of general circulation" shall mean a newspaper appropriate for the placement of legal notices as defined by chapter 50, Florida Statutes. "Subscriber" shall mean a person lawfully using or receiving cable services or other services from a cable operator. 3 Sec. 105-4. Reservations. (a) Generally. In addition to the specific reservations of the City set forth herein, the City Council hereby reserves unto the city the matters set forth in this section. (b) Police powers. In accepting a franchise, the cable operator acknowledges that its rights thereunder are subject to the police powers of the City to adopt and enforce ordinances, resolutions, policies, and practices necessary to the convenience, health, safety, welfare, and economic order of the public, and it agrees to comply with all applicable ordinances, resolutions, rules, regulations, policies, and practices by the city pursuant to such power. Any inconsistency between, or ambiguity created by the relationship between, the provisions of this chapter and any other contemporaneous or future lawful exercise of the City's police powers shall be resolved in favor of the City's police power. (c) The Act. (1) The City shall have all powers not otherwise preempted by the act, the regulations of the FCC, Section 166.046, Florida Statutes, or other applicable Federal or State of Florida laws or regulations, and shall have all powers conferred on a franchising authority or allowed by the act which are not addressed in this chapter. (2) Should any amendment be made to the act or should any provision thereof be held to be invalid or unenforceable by a court of competent jurisdiction which materially affects the City's authority with respect to the regulation of this chapter, the City Council shall have the right to amend this chapter to the extent it deems appropriate, and the existing franchise and license shall be subject to such amendment. ARTICLE II. RATE REGULATION Sec. 105-5. Rate Regulation. (a) The city may regulate rates charged by cable television operators for the basic tier of cable television services and related equipment in a manner that is consistent with the act and the rules and regulations prescribed by the FCC pursuant to the act, all as amended from time to time. (b) Should a franchisee desire to change any rate or charge, it shall submit a written application setting forth the proposed change in charges and effective date of such change to the City Manager who shall evaluate the proposal in a manner consistent with FCC cable television .rate regulation standards and report this evaluation to the City Council. The City Council is hereby authorized from time to time to set reasonable fees for the review of any rate change application. Application review fees shall be set by adoption of a resolution of the Council. (c) The City Council shall conduct a public hearing to determine whether or not the rates or proposed rate increase are reasonable and consistent with the act and regulations implementing the act. The city manager's report shall be placed before the city Council at the public hearing. At such hearing, evidence shall be taken and received on whether the proposed rate or change is consistent with FCC standards. 5 (d) Notice of rate regulation proceeding. (1) The City shall publish in a local newspaper of general circulation; post in a conspicuous place in the City hall; and mail by U.S. mail, first class, postage prepaid to the cable operator, a public notice of the intent to conduct a rate regulation public proceeding on basic service tier rates and/or charges for cable service related equipment. (2) The franchisee shall notify each subscriber, in writing, at least ten (10) days prior to the rate regulation public hearing, of the proposed rate change and the public hearing. The franchisee shall use a form of notice prepared by the City clerk. (3) Said public notice specified above in sub-section (d) (1) and (2) shall include the time, date, and place of the proceeding and shall explain, among other things, the nature of the rate review in question; that any subscriber or interested party has the right to participate in the proceeding; that public views may be submitted in the proceeding, describing how they are to be submitted and the deadline for submitting any such views; that a decision concerning the reasonableness of the cable television rates in question will be governed by applicable rules and regulations of the FCC; that the decision of the City is subject to review by the FCC; and that parties desiring to appeal any decision made as a result of the proceeding will need to ensure that a verbatim transcript is prepared which is the responsibility of the person seeking to appeal. (e) The City shall ensure that any rate or charge established 6 for cable television service, equipment, repair and installation shall be reasonable, just and fair. The City shall also ensure a reasonable opportunity for consideration of the views of interested parties, including but not limited to the City, the cable operator, subscribers, and the residents of the franchise area. (f) In determining whether a rate or charge is reasonable, just and fair, the City Council shall apply the cable television rate regulation criteria established by the Federal Communications Commission (FCC) by rule as amended from time to time. (g) In the course of the rate regulation proceeding, the city may request additional information from the cable operator that is, in the City's opinion, reasonably necessary to determine the reasonableness of the basic service tier rates and equipment charges. Any such additional information submitted to the City shall be verified by an appropriate official of the cable operator who supervised the preparation of the response on behalf of the cable operator, and submitted by way of affidavit, under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge and information formed after reasonable inquiry. The city may request proprietary information; provided that the City shall consider a timely request from the cable operator that said proprietary information shall not be made available for public information, consistent with the procedures set forth in the FCC rules and regulations. Furthermore, said proprietary information may be used only for the purpose of determining the reasonableness of the rates and charges or the 7 appropriate rate level based on a cost-of-service showing submitted by the cable operator. The City may exercise all powers under the laws of evidence applicable to administrative proceedings under the laws of the State of Florida to discover any information relevant to the rate regulation proceeding, including, but not limited to, subpoenas, interrogatories, production of documents, and deposition. (h) If the City Council or the City manager cannot determine the reasonableness of the proposed rate increase within the time period permitted by the FCC rules and regulations, it may toll the effective date for the proposed rate increase within the time period permitted by the FCC rules and regulations, it may toll the effective date for the proposed rates for an additional period of time as permitted by the FCC rules and regulations, and issue any other necessary or appropriate order and give public notice accordingly. (i) Upon termination of the rate regulation proceeding, the City council shall adopt and release a written decision as to the application. The City Council shall adopt a resolution: (1) stating whether or not the rates or proposed rate increase(s) are reasonable or unreasonable, and, if unreasonable, its remedy, including prospective rate reduction, rate prescription, and refunds; (2) approving, disapproving or modifying the proposed rate changes as authorized by FCC rate regulation standards; and (3) setting forth findings of fact and conclusions 8 regrading the City Council's determination. (j) Consistent with FCC rules and regulations, the City's decision may be reviewed only by the FCC. (k) The City shall be authorized, at any time, whether or not in the course of a rate regulation proceeding, to gather information as necessary to exercise its jurisdiction as authorized by the Act and the FCC rules and regulations. Any information submitted to the City shall be verified by an appropriate official of the cable operator who supervised the preparation of the response on behalf of the cable operator, and submitted by way of affidavit, under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge and information, formed after reasonable inquiry. (1) The cable operator shall have no vested, impairment-of- contract, or other right as against such rate regulation. (m) Nonenforcement not a waiver. The cable operator shall not be excused from complying with any of the requirements of this chapter by any failure of the city on any one (1) or more occasions to insist upon or to seek compliance with any such terms or conditions. (n) Should the city at some future date be allowed to regulate other than basic tier cable television service and equipment rates, all as provided in the act, the City may, in its sole discretion, institute such rate regulation as it deems appropriate. Any franchise agreement issued after February 15, 1994 shall be issued subject to this regulation, whether it shall 9 so state or not." Section 2. CONFLICTS. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 3. CODIFICATION. It is the intention of the City Council of the city of Sebastian, Indian River County, Florida, and it is hereby provided that the provisions of this ordinance shall become and be made a part of the Code of Ordinances of the City of Sebastian, Florida; that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and the word "Ordinance" may be changed to appropriate designations. Section 4. SEVERABILITY. "Section," "Article" or other In the event a court of competent jurisdiction shall hold or determine that any part of this ordinance is invalid or unconstitutional, the remaining provisions of this ordinance shall not be affected and it shall be presumed that the City Council of the city of Sebastian did not intend to enact such invalid or unconstitutional provision. It shall further be assumed that the City Council would have enacted the remainder of this ordinance unconstitutional provision, thereby remain in full force and effect. Section 5. EFFECTIVE DATE. without said invalid and causing said remainder to This ordinance shall become effective immediately upon its adoption. 10 The foregoing ordinance was moved for adoption by Council- member 0~ . The motion was seconded by Councilmember ~ and, upon being put to a vote, the vote was as follows: Mayor Lonnie R. Powell Vice-Mayor Frank Oberbeck Councilmember Carolyn Corum Councilmember Norma J. Damp Councilmember Robert Freeland The Mayor t~htgreupon declgre~ this ordinance duly passed and adopted this ~ day of ~q~] , 1994. ~ ?ie ~./%~ Pow~~l/, ~ayor ATTESt: Kathry~ M. O'Halloran, CMC/AAE City Clerk I HEREBY CERTIFY that notice of public hearing on this ordinance was published in the Vero Beach Press Journal as required by State Statute, that one public hearing was held on. this ordinance at 7:00 p.m. on the ~J~ day of ~/~ , 199i, and the following said public hearing ~his qrdinance w~ passed by the council. Kathrfn M. O'Halloran, CMC/AAE City Clerk Approved::m and content: Charles Ian Nash, C~%y Attorney 11