Sec. 26-1. - Short title.

This chapter shall be known and may be cited as the "Pasco County Cable and Open Video Systems" Ordinance.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-2. - Intent and purpose.

(a)

It is the intent of the county and the purpose of this chapter:

(1)

To promote the public health, safety, and general welfare by providing for the grant of one or more franchises for the construction and operation of a cable system or cable systems and open video systems within the county;

(2)

To provide for the regulation, to the full extent provided for by law, of each cable system and open video system within the county in the public interest;

(3)

To provide for the payment of fees and other valuable consideration by a franchisee to the county for the use of county's rights-of-way consistent with state law;

(4)

To promote the widespread availability of quality cable services to the county's residents and businesses, the county, and other public institutions;

(5)

To encourage the development of cable and other communications technologies as a means of communication between and among members of the public, businesses, the county, and other public institutions;

(6)

To promote competition in cable rates and services;

(7)

To promote the safe and efficient use of the county's rights-of-way; and

(8)

To encourage the provision of a diversity of information sources to residents, businesses, the community, the county, and other public institutions by cable technology.

(b)

Recognizing the continuing development of communications technology and uses, it is the policy of the county to encourage experimentation and innovation in the development of cable system and open video system uses, services, programming, and techniques that will be of general benefit to the community to the extent all such experiments and innovations are consistent with applicable laws.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-3. - Definitions.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any franchise agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996, codified at 47 U.S.C., as amended and, if not defined therein, their common and ordinary meaning:

Access channel means any channel on a cable system set aside without charge by a franchisee for non-commercial, public, educational and/or local governmental use.

Activated channel means those channels engineered at the headend of a cable system for the provision of services generally available to subscribers of the cable system, regardless of whether such services actually are provided, including any access channels.

Affiliate means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

Applicant means any person submitting an application within the meaning of this chapter.

Application means any proposal, submission or request to:

(1)

Construct and operate a cable system or open video system within the county;

(2)

Transfer a franchise or control of the franchisee;

(3)

Assign a franchise;

(4)

Renew a franchise;

(5)

Modify a franchise; or

(6)

Seek any other relief from the county pursuant to this chapter, a franchise agreement, the cable act, or other applicable law.

Basic cable service or basic service means any service tier that includes local television broadcast signals, and access channels. "Basic cable service" as defined herein shall be consistent with 47 U.S.C. §543(b)(7), as may be amended from time to time.

Cable act means the Cable Communications Policy Act of 1984, 47 U.S.C. §151 et seq., as that act has been amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104, codified at 47 U.S.C., and as may be amended from time to time.

Cable service means the transmission of video or other programming services to subscribers together with any subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services including cable service provided by a cable operator, an open video system (OVS) operator, or another form of video service provider, which utilizes part or all of public rights-of-way.

Cable system, cable television system, or system, means any facility within county consisting of a set of closed transmission paths or other transmission lines or forms of terrestrial transmission and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the county. Such term does not include:

(1)

A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2)

A facility that serves subscribers without using any public rights-of-way;

(3)

A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility will be considered a cable system to the extent it is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4)

An open video system that complies with Section 653 of the Telecommunications Act of 1996, 47 U.S.C. § 573; or

(5)

any facilities of any electric utility used solely for operating its electric utility systems. The foregoing definition of "cable system" shall not be deemed to circumscribe the valid authority of the county to regulate the activities of any other communications system or provider of communications services, including but not limited to telephony and open video systems.

Channel means a portion of the electromagnetic spectrum that is capable of carrying one industry standard video signal, in either analog or digital form.

County means Pasco County, Florida.

Complaint means any oral, written or electronic inquiry, allegation or assertion made by a person regarding service, a franchisee or system operations.

Control of a franchisee or applicant means possessing the ability to direct or cause the direction of the management or policies of a franchisee or applicant, or the operation of a franchisee's cable system or open video system, whether through operational control in whatever manner exercised or ownership of voting securities, by contract or understanding, or in any other manner.

Drop means the cable or cables that connect the subscribers of the system to the distribution system.

Equitable price means the fair market value adjusted to account for harm to the county or subscribers, if any, resulting from a franchisee's breach of its franchise or violation of this chapter, and as further adjusted to account for other equitable factors that may be considered consistent with the cable act, 47 U.S.C. §547.

Fair market value means the price that a willing buyer would pay to a willing seller for a cable system or open video system valued as a going concern but with no value allocated to the franchise itself.

FCC means the Federal Communications Commission, or any successor governmental entity.

Franchise means the right granted by the county to a franchisee in a franchise agreement to construct, maintain and operate a cable system or open video system under, on, and over streets, roads and any other public ways, rights-of-ways, or easements within the county. The term does not include any license or permit that may be required by this chapter or other laws, ordinances or regulations of the county for the privilege of transacting and carrying on a business within the county or for construction or carrying out any work on any street.

Franchise agreement means a contract entered into in accordance with the provisions of this chapter between the county and a franchisee that sets forth the terms and conditions under which the franchise will be exercised.

Franchisee means any person granted a franchise pursuant to this chapter who has entered into a franchise agreement with the county.

Gross revenues means all revenues recognized in accordance with generally accepted accounting procedures (GAAP) received directly or indirectly by the franchisee and, any affiliates, subsidiaries or parent of the franchisee from any source whatsoever arising from, attributable to, or in any way derived from the operation of the cable system to provide cable services within the county. By way of illustration, gross revenues include, but are not limited to, fees charged for basic service; fees charged for any optional, premium, or any tier of service other than basic service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees; revenue from cable internet service (unless the FCC determines in a final binding order that such service is not a cable service), payments or other consideration from programmers for carriage of programming on the system including, but not limited to infomercials (excluding marketing support provided for services on the system to the extent such funds are not considered revenue under GAAP); revenue from converter, remote or any other equipment rentals or sales; revenues from studio and studio equipment rental; revenues from leases of cable or fiber optic lines and other transmission devices and equipment, transmission of data to the extent used to provide cable service; revenues from consumer products including but not limited to cable guides, and advertising revenues allocable to the county; nonsubscriber revenue (including advertising revenue) will be based on a percentage of subscriber base in the county divided by the subscriber base of the system. Such percentage will then be multiplied by the system's total nonsubscriber revenue which is subject to the franchise fee to determine the allocable gross revenue; revenues from home shopping channels or other sources allocable to the county, provided that where certain home shopping channel or other such revenue is allocable to more than one franchise authority due to common zip codes, the franchisee will allocate the percentage of revenue to the county which is equivalent to the percentage of the county's population divided by the total population for the allocable franchise areas in question. Gross revenues shall be the basis for computing the franchise fee imposed pursuant to this chapter. Gross revenues shall not include any taxes on services furnished by the franchisee which are imposed upon any subscriber or user by the state, county or other governmental unit and collected by the franchisee on behalf of said governmental unit and which the franchisee passes on in full to the applicable tax authority or authorities. However, it is hereby expressly provided that unless otherwise inconsistent with applicable law, franchise fees shall be included in the calculation of gross revenues. In no event shall "gross revenues" include bad debt and refunds to customers. The definition of "gross revenues" contained herein is subject to state and federal law, and shall only apply if the county is able to charge and collect franchise fees, pursuant to this chapter and a franchise agreement.

Initial franchise means an initial authorization issued by a franchising authority which authorizes the construction and/or operation of a cable system and which expressly states that such authorization is intended as a cable franchise.

Institutional network or I-net means a voice, data and/or video communications network constructed, operated and/or maintained by a franchisee for the county, the transmissions on which are generally available only to, and intended to be sent and received by, governmental and other users other than subscribers.

Interconnection means the electronic connection of two or more cable systems for the purpose of sharing programming on access channels.

Law means all federal, state, and county laws, ordinances, codes, rules, regulations and orders duly enacted by a government authority having applicable jurisdiction.

Leased access channel means a channel designated in accordance with Section 612 of the cable Act, 47 U.S.C. §532, for commercial use by persons unaffiliated with the franchisee.

License means the legal authorization, terminable at will, to use particular and limited portions of the public rights-of-way.

Open video system or OVS means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the FCC has certified as compliant with Part 76 of the Rules of the FCC, 47 C.F.R., Part 76, as amended from time-to-time.

Overbuild means a cable system or OVS constructed to serve subscribers already served by an existing cable system or OVS.

Person means any individual, corporation, partnership, association, joint venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the county.

Public rights-of-way means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the county holds any kind of property interest or over which the county exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system or OVS. "Public rights-of-way" do not include buildings, parks, or other property owned or leased by the county.

Renewal of a franchise means renewal of an authorization issued by the county, which authorizes continued operation of a cable system or OVS for an additional term.

Service interruption means the loss of picture or sound on one or more cable channels.

Service tier means a category of cable service provided by a franchisee and for which a separate charge is made by the franchisee.

State of the art means that level of technical performance, channel capacity, equipment, components and service (other than specific programming) equivalent to that which has been generally utilized in cable systems of equivalent size. In no event shall a system offering fewer services, including bandwidth, less then that offered generally in Pinellas, Hernando, and Hillsborough Counties be considered state of the art unless the county, in its sole discretion, determines that a cable system offering fewer services is:

(1)

State of the art; and

(2)

Offers a level of technical performance, channel capacity, and customer service equivalent to such systems.

Subscriber means any person who lawfully receives cable service delivered over a cable system or OVS. However, notwithstanding anything to the contrary, subscriber shall not mean any homeowner or condominium association or other bulk purchaser unless mandated by FCC rules.

Subscriber base means the total number of residential and commercial subscribers within the county. For purposes of calculating and identifying subscribers under bulk or multi-user contracts, for determining compliance with this chapter, for imposing capital contributions pursuant to this chapter and fines for violations of this chapter, a franchisee shall count each individual unit or home (e.g., in a multiple family dwelling, a unit will be defined as each subscriber unit within the structure) included within a contract as one subscriber. The franchisee shall not use any equivalency measures except as may be required by FCC rules.

Transfer means any transaction in which (1) an ownership or other controlling interest in a franchisee is transferred from one person or group of persons to another person or group of persons so that control of a franchisee is transferred; (2) assignment, sale or transfer of more than 20 percent of the ownership of any parent corporation, parent entity or holding company that owns or by ownership of other entities, controls a franchisee; (3) all or a significant portion of a cable system or its assets or OVS is sold or assigned so that control of the system is transferred; or (4) the rights and/or obligations held by a franchisee under a franchise agreement are transferred or assigned to another person or group of persons. A transfer shall be considered "pro forma" when it involves a transfer to a person or group of persons wholly owned by the franchisee or the same legal entity with controlling interest in the franchisee, and that will not result in a change in the control or ultimate ownership of the franchisee.

Two-way capability means the incorporation into a cable system or OVS of all appropriate design and engineering characteristics and features so that two-way transmission, including but not limited to addressability, can be implemented and activated.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-4. - Applicability of this chapter.

(a)

This chapter shall be applicable to all cable franchises granted, renewed, or transferred after the effective date hereof, and shall apply to all cable franchises in existence prior to the effective date of this chapter, to the full extent permitted by law. This chapter is not intended to impair an existing franchise agreement in violation of applicable law.

(b)

Any franchisee whose franchise agreement predates the effective date of this chapter shall continue to operate pursuant to the franchise agreement and may notify the county in writing within 45 calendar days of the passage of this chapter, or any subsequent amendment thereof, of:

(1)

Any provision which it believes should not be applicable to it by reason of the preexisting franchise agreement and,

(2)

The reason for each such claim of non-applicability.

(c)

Failure to notify the county as provided in (b) above shall constitute a waiver of any right to object.

(d)

The operator of any cable system or OVS that does not have a franchise or license as required under this chapter shall have three months from the effective date of this chapter to file an application for a franchise or license.

(e)

Applications pending as of the effective date of this chapter shall be subject to this chapter. A person with a pending application shall be provided 30 calendar days from the effective date of this chapter to amend the application if necessary to comply with the requirements of this chapter.

(f)

Nothing herein requires the county to apply the provisions of this chapter to a government entity if the county determines that it is not in the public interest to do so. Nothing in this chapter shall require a government entity to comply with this chapter to the extent that the county cannot enforce the provisions of this chapter with respect to such government entity under applicable law.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-5. - Reservation of rights.

(a)

The county reserves the right to amend this chapter as it shall find necessary in the lawful exercise of its police powers.

(b)

Any additional regulations adopted by the county shall be incorporated into this chapter and complied with by all franchisees within 30 days of the date of adoption of such additional regulations unless imposition of such regulations would materially impair the terms of a franchisee's franchise or is otherwise prohibited by applicable law, or the county extends the time for such compliance.

(c)

The county reserves any right to exercise the power of eminent domain to acquire the property of a franchisee's cable system or open video system, consistent with law. Notwithstanding anything to the contrary, this section shall not enlarge or restrict the county's exercise of eminent domain except to the extent provided by law.

(d)

To the full extent permitted by law, the county reserves the right to acquire, construct, own, and/or operate a cable system or open video system.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-6. - Franchise required.

(a)

The county may grant one or more non-exclusive franchises in accordance with this chapter. The county shall not grant an overbuild franchise on terms or conditions that are more favorable or less burdensome than those contained in an existing franchise.

(b)

Unless expressly permitted by applicable law, no person may construct or operate a cable system, OVS, or communications transmission facilities using the county's public rights-of-way without a franchise or applicable authorization granted by the county, and no person may be granted a franchise without having entered into a franchise agreement with the county pursuant to this chapter.

(c)

Unless otherwise authorized by law, any franchise granted pursuant to this chapter is solely for the provision of cable service and shall not be construed to authorize the provision of telephone, non-cable video, or other communications service unless otherwise provided by applicable law.

(d)

Any person who operates a cable system, Open Video System, or provides cable service in the county without a franchise or other appropriate authority may be subject to penalties as provided herein and other sanctions as provided by applicable law. Such violations may be punishable as provided in sections 1-6 and 1-1 of this Code, as well as other appropriate sanctions under applicable law.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-7. - Characteristics of a franchise.

(a)

A franchise authorizes use of the public rights-of-way for installing cables, wires, optical fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary and pertinent to operate a cable system or open video system to serve subscribers within the county. A franchise does not authorize, expressly or implicitly, a franchisee to provide service to, or install cables, wires, lines, underground conduit, or any other equipment or facilities upon other property of the county or upon private property without owner consent (except for use of compatible easements pursuant to section 621 of the cable act, 47 U.S.C. § 541(a)(2) or as otherwise provided by applicable law), or to use publicly or privately owned conduits without a separate agreement with the owners.

(b)

Any franchise granted pursuant to this chapter shall be nonexclusive, and will not preclude, expressly or implicitly, the issuance of other franchises within the county, or affect the county's right to authorize use of public rights-of-way to other persons to operate cable systems or open video systems or for other purposes as it determines appropriate. All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the county reserves the right to designate where a franchisee's facilities are to be placed within the public rights-of-way. A franchise does not convey any title, equitable or legal, in the public rights-of-way.

(c)

A franchise shall be a personal privilege that is in the public trust. Except in the case of a pro forma transfer for which notice to the county within ten days of closing the transaction but no consent of the county shall be required, no transfer of a franchise shall occur without the prior consent of the county, which shall not be unreasonably withheld, and unless application is made by the franchisee, and county's approval is obtained, pursuant to this chapter and a franchise agreement.

(d)

A franchise granted pursuant to this chapter to construct, operate, and maintain a cable system or OVS within the county shall be deemed to constitute both a right and an obligation on the part of the franchisee to provide the services and facilities of a cable system or OVS as required by the provisions of this chapter and the franchise. The franchise agreement shall incorporate by reference all of the provisions of the franchisee's application for the franchise that are finally negotiated and agreed upon by the county and franchisee.

(e)

In the event that a franchisee or its affiliate elects to offer to subscribers video programming services through any means or method not included within the definition of a cable system, including but not limited to an open video system, the franchisee shall remain subject to all terms and conditions of the franchise granted pursuant to this chapter with respect to its cable system or OVS.

(f)

Unless a franchise agreement specifically provides otherwise, all franchises granted pursuant to this chapter shall apply to the entire territorial area of the county. A franchise agreement may provide that a franchisee must provide a certain level of service to a particular area of the county, before a franchisee may extend service to other areas of the county.

(g)

The county may waive the requirement of a franchise for the construction of a cable system or OVS that is not constructed to provide service within the county and that does not provide such services within the county. For the construction of such facilities, the county may grant a license for a term no longer than five years and providing for reasonable compensation to the county for use of its public rights-of-way. A license shall be revocable at the will of the board of county commissioners. Except as to matters specifically addressed in the license, the terms of this chapter will apply to a licensee. If a person granted a license provides cable services within the county, the person shall obtain a franchise and otherwise comply with the requirements of this chapter.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-8. - Franchisee subject to other laws, police power.

(a)

A franchisee shall at all times be subject to and shall comply with all applicable law. A franchisee shall at all times be subject to all lawful exercise of the police power of the county.

(b)

Subject to applicable law, except as may be provided specifically in this chapter or under the terms of a franchise agreement and subject to the cable act, the failure of the county, upon one or more occasions, to exercise a right or to require compliance or performance under this chapter or a franchise agreement shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance.

(c)

The provisions of this chapter shall be applied to franchisees in addition to the terms of any franchise agreement and shall apply to a franchise agreement as if fully set forth in the franchise agreement to the extent not inconsistent with applicable law. The express terms of this chapter will prevail over conflicting or inconsistent provisions in a franchise agreement to the extent not inconsistent with applicable law unless such franchise agreement expresses an explicit intent to waive a requirement of this chapter.

(d)

Except as to matters that are governed by federal law or regulation, a franchise agreement will be governed by and construed in accordance with the laws of the state.

(e)

In the event of any change in law which would require the county to amend this chapter, the county and a franchisee may modify an existing franchise in a mutually agreed upon manner.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-9. - Applications for grant, modification, renewal, and transfer.

(a)

A written application shall be filed with the county for:

(1)

Grant of an initial franchise;

(2)

Renewal of a franchise under 47 U.S.C. § 546, or other applicable law;

(3)

Modification of a franchise agreement;

(4)

Transfer; and

(5)

Any other relief pursuant to this chapter or a franchise agreement.

(b)

To be acceptable for filing, a signed original of the application shall be submitted together with seven copies, be accompanied by the required non-refundable application filing fee as set forth herein, conform to any applicable request for proposals, and contain all reasonably required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant.

(c)

The county shall make all applications available for public inspection.

(d)

An application for the grant of an initial franchise may be filed pursuant to a request for proposals issued by the county or on an unsolicited basis. The county, upon receipt of an unsolicited application, may issue a request for proposals. If the county elects to issue a request for proposals upon receipt of an unsolicited application, the applicant may submit an amended application in response to the request for proposals, or may inform the county that its unsolicited application should be considered in response to the request for proposals, or may withdraw its unsolicited application. An application that does not conform to the reasonable requirements of a request for proposals may be considered nonresponsive and denied on that basis.

(e)

An application for the grant of an initial franchise shall contain, at minimum, the following information:

(1)

The name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of all persons with 50 percent or more ownership interest in the applicant, including the names and addresses of parents or subsidiaries holding such ownership interests directly or indirectly; the persons who control the applicant; all officers and directors of the applicant; and any other cable system ownership or other communication ownership interest of each named person.

(2)

A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including:

a.

Identification of key personnel for management of the system;

b.

A description of the applicant's prior experience in cable system ownership including identification of municipalities and counties within the state in which the applicant or any person controlling the applicant, or currently having more than a ten percent ownership interest in applicant has, or has had, a cable franchise or license or controlling interest therein. If an applicant has no other franchises in the state, the applicant shall provide this information for other states with respect to franchises or licenses that have expired or will expire within two years of the date of its application;

c.

A description and location of the physical facilities proposed and proposed channel capacity, performance characteristics, headend and access facilities, and institutional network facilities; and upon request, the applicant shall make information on technical design available for inspection;

d.

Where applicable, a description of the method of construction of the proposed system, including an estimate of plant mileage and location, the proposed construction schedule, a description, where appropriate, of how services will be converted from existing facilities to new facilities, and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.

(3)

A demonstration of the applicant's financial qualifications, including:

a.

A statement prepared by a certified public accountant or duly authorized financial officer regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;

b.

For informational purposes, the proposed rates for subscribers and proposed discounts for bulk subscribers, including projected charges for each service tier, installation, converters, and other equipment or services, and the applicant's ownership interest in any proposed programming to be delivered over the cable system.

c.

Pro forma financial projections for five years including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.

(4)

To the extent that the applicant is relying on the financial or technical resources of another person, including an affiliate, the proofs required pursuant to subsections (2) and (3) above should be provided for that person.

(5)

A demonstration that the applicant is legally qualified including:

a.

Whether the applicant or any person controlling the applicant, or any officer, or director or person with 50 percent or more ownership interest in the applicant, has been adjudged bankrupt, had a cable franchise or license revoked, has been fined by a franchise authority, or been found by any court or administrative agency to have violated any law; and, if so, identification of any such person and a full explanation of the circumstances;

b.

Whether the applicant has received, or is in a position to receive, necessary authorizations from state and federal authorities;

c.

Whether the applicant has engaged in conduct (fraud, racketeering, or violation of antitrust, consumer protection, or similar laws) that would lead the county to conclude the applicant cannot be relied upon to comply with requirements of a franchise or provisions of this chapter;

d.

Whether the applicant is a convicted vendor pursuant to F.S. ch. 287, or was removed from the convicted vendor list pursuant to F.S. § 287.133, 36 months or fewer prior to the date of the application;

e.

Whether the applicant is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its system, and has not entered into any agreement that would prevent it from doing so; and

f.

Whether the applicant had a request for an initial or renewal OVS franchise denied by any local franchise authority within 36 months of the application;

g.

Whether the applicant had a request for an initial or renewal cable franchise denied by any local franchise authority based upon past performance, or for failing to propose a franchise that reasonably met the cable-related needs and interests of the community in light of the costs thereof, within 36 months of the application; and

h.

Whether the applicant has a pending application for an OVS franchise applicable for the county.

(6)

An applicant may provide information that it would be inappropriate to deny it a franchise for any information submitted pursuant to subsection (5) above, by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing there from and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

(7)

A demonstration of how the applicant's proposal will reasonably meet the future cable-related needs and interests of the community, including a description of how the proposal will meet the needs described in any recent community needs assessment conducted by or for the county.

(8)

A summary of any services other than cable services offered by the applicant or an affiliate and applicant's plan with respect to the availability of such services in the county.

(9)

Identification of the area of the county to be served and the proposed franchise area boundaries. If an applicant proposes to provide cable service to an area already served by an existing franchisee, the identification of the area where the overbuild would occur, the potential number of subscribers in the area which would encompass the overbuild, and the ability of the public rights-of-way to accommodate the proposed system.

(10)

Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter and information that the county may request of the applicant that is relevant to the county's consideration of the application.

(11)

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the proposal meets all requirements of applicable law.

(f)

The county may, in its sole discretion, waive any or all of the above application requirements, unless such requirements are determined to be a requirement of applicable law.

(g)

An application for modification of a franchise agreement shall include, at a minimum, the following information:

(1)

The specific modification requested.

(2)

The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved.

(3)

A statement whether the modification is sought pursuant to § 625 of the cable act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545.

(4)

Any other reasonable information requested by the county to make an informed determination on the application for modification.

(5)

An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all requirements of applicable law.

(h)

An application for renewal of a franchise shall comply with the requirements of section 26-12 herein.

(i)

An application for approval of a transfer of a franchise shall comply with the requirements of section 26-13 herein.

(j)

Application fees.

(1)

A nonrefundable fee in an amount provided herein, which may be amended from time to time by the board of county commissioners, shall accompany every application including, but not limited to, subsections (a)(1) through (a)(5) herein.

(2)

The purpose of the filing fee is to defray a portion of the county's cost in processing an application. Such fee may be credited against amounts due under Section 26-10 herein. The filing fee is therefore intended to be a charge incidental to the awarding or enforcing of a franchise within the meaning of § 622(g)(2)(D) of the cable act, 47 U.S.C. §542(g)(2)(D), and may not be deducted from the franchise fee imposed in a franchise agreement, unless required by federal law. To the extent federal law authorizes the deduction of filing fees from franchise fees, the franchisee shall deduct the fees over the entire term of the franchise. Such application fees shall not be deducted from communications services taxes paid pursuant to state law unless such law authorizes such deduction.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-10. - Grant of a franchise.

(a)

The county may grant a franchise for a period not to exceed 15 years.

(b)

The county may make the grant of a franchise conditioned upon the completion of construction, upgrades, or rebuilds of a cable system or OVS within a reasonably prescribed time or upon the performance of other specific obligations which are to be set forth in the franchise agreement, specifying that failure to comply with the condition may cause the franchise to be terminated or may require the franchisee to pay liquidated damages to the county as specified in the franchise agreement.

(c)

In evaluating an application for an initial franchise, the county may consider, among other things, the following factors: the applicant's technical, financial, and legal qualifications to construct and operate the proposed system; the adequacy of the proposed construction methods, facilities, equipment, and Services based on the public convenience, safety, and welfare; the applicant's experience in constructing and operating cable systems and providing cable service in other communities, if any; the ability of public rights-of-way to accommodate the proposed system; the potential disruption to users of the public rights-of-way and any resultant inconvenience to the public; the applicant's Service under any existing franchise or prior experience with the county; whether approval may reduce competition in the delivery of cable Service in the county; and whether the proposal will meet reasonably anticipated needs, including adequate public, educational and government access channels and support, channel capacity, and will serve the public interest. Evaluation by the county shall not be based on the programming the applicant proposes to provide.

(d)

The board of county commissioners shall hold one or more public hearings to consider any application. The applicant shall be notified of the hearing and shall be given an opportunity to be heard. Based upon the application, the testimony presented at the public hearing, any recommendations of the county or staff, and any other information relevant to the application, the county shall decide by resolution whether to grant or deny a franchise application and decide the terms and conditions of any franchise granted. If the board of county commissioners denies a franchise, it shall issue a written decision setting forth its reasons.

(e)

After complying with the above requirements, the board of county commissioners shall approve or disapprove the proposed franchise agreement by resolution.

(f)

The franchisee shall reimburse the county for all reasonable expenses incurred by the county in considering and processing the application, including, but not limited to, consulting and legal costs, less only the amount of the application fee. The county shall bill the franchisee for the amount of the processing fee and describe its method of calculation, and the applicant shall pay such processing fee within 30 days of the date of the bill. If the fee is not received by the county within 30 days of the date of the bill, the county shall notify such franchisee and the franchisee shall pay a late fee at the rate of 18 percent per annum of the amount of the unpaid or underpaid fee provided, however, that such rate does not exceed the maximum amount allowed under applicable law. If the county does not receive said fee in total within 60 days of the date of the bill, the county shall notify such franchisee and the county may revoke the franchise or pursue other remedies as appropriate. This processing fee is intended to be a charge incidental to the awarding or enforcing of a franchise within the meaning of § 622(g)(2)(D) of the cable act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the franchise fee imposed in a franchise agreement and shall not be passed through to subscribers. To the extent federal law authorizes a franchisee to deduct the processing fee from franchise fees, a franchisee shall deduct such over the entire term of the franchise.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-11. - Franchise fees.

(a)

This section and any franchise fee provision in a franchise agreement, shall not apply during such time as state law prohibits the county from collecting franchise fees or similar compensation. During the period state law prohibits the county from collecting franchise fees, a franchisee shall pay the tax required by state law to the state. If the county is legally entitled to charge franchise fees or similar fees, a franchisee will pay the highest fee legally authorized or as provided in a franchise agreement.

(b)

Franchise fees for operators of cable systems. A franchisee, as compensation for the privilege granted under a franchise for use of the public rights-of-way to construct and operate a cable system, shall pay to the county a franchise fee:

(1)

In an amount up to a maximum of either five percent of the franchisee's gross revenues during the term of its franchise; or,

(2)

In the event the cable act or other applicable law is amended to permit the county to assess a fee of a greater amount or on a broader revenue basis than that specified in (1) above, the franchisee agrees to pay to the county the new amount after a public hearing in which the public and franchisee are given an opportunity to comment on the impact of the higher fee.

(c)

Franchise fees for operators of open video systems. To the extent that an OVS is used to provide cable service, an operator of an OVS shall pay the county a fee in lieu of a franchise fee. This fee will be based on the gross revenues derived from the operation of the open video system to provide cable services. To prevent evasion of franchise fees, any revenues from activities performed by an affiliate that could have been performed by the franchisee of the OVS, including but not limited to selling advertisements and selling services to subscribers, will be treated as revenues of the operator. The amount of the fee shall be equal to the percentage rate of the franchise fee imposed on franchisees of cable systems pursuant to this section.

(d)

General rules for payment of fees.

(1)

A franchisee shall pay fees due to the county on a calendar-year, quarterly basis. Payment for each quarter shall be made to the county not later than 45 calendar days after the end of each calendar quarter.

(2)

A franchisee shall file with the county, on a quarterly basis with the payment of the franchise fee, a financial statement setting forth the computation of gross revenues used to calculate the fee for the preceding quarter and a detailed explanation of the method of computation.

(3)

The statement shall be certified by a certified public accountant or the franchisee's chief financial or other duly authorized officer. The franchisee will bear the cost of the preparation of such financial statements.

(4)

Subject to applicable law, no acceptance by the county of any fee or payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the county may have for additional sums payable.

(5)

The franchise fee or other fee payment is not a payment in lieu of any other tax, fee, or assessment, except as provided in this section or applicable law. By way of example and not limitation and to the extent consistent with applicable law, the county does not waive and may still require permit fees and business license taxes that may be established from time to time by the county. Nothing in this section shall alter the effect of any election the county has made with respect to permit fees and taxes pursuant to state law.

(6)

Within 90 calendar days following the end of the calendar year in which a franchisee pays franchise fees directly to the county, a franchisee shall submit a statement, attested to by a certified public accountant or chief financial officer, or other duly authorized officer setting forth the gross revenues of the cable or OVS for the previous calendar year and describing what revenues were included and what revenues, if any, derived from the operation of the system, were excluded in the fee calculation, and any adjustments made to gross revenues.

(e)

Audit. Unless prohibited by applicable law, the county may, from time to time, but not more frequently than every year, upon reasonable notice, inspect and audit any and all books and records of a franchisee relevant to the determination of gross revenues and the computation of franchise fees due, and may recompute any amounts determined to be payable under the franchise, subject to the applicable statute of limitations. The cost of the audit will be borne by the franchisee if, as a result of the audit, the county determines that the franchisee has underpaid the franchise fees owed in an amount equal to or exceeding three percent of the franchise fees actually paid. A franchisee shall make all books and records necessary to perform the audit readily available to the auditors in Pinellas, Hernando, Pasco or Hillsborough Counties for inspection and copying or in the alternative, the franchisee shall pay all costs necessary for the county to perform the audit at a location outside of this area.

(f)

In the event that a franchise fee or other payment required by this section is not received by the county on or before the due date set forth herein, or is underpaid, the franchisee will pay interest at a rate of 18 percent per annum of the amount of the unpaid or underpaid fee payment, provided however that such rate does not exceed the maximum amount allowed under state law. Any interest charges paid by the franchisee is intended to be a charge incidental to the enforcing of a franchise within the meaning of §622(g)(2)(D) of the cable act, 47 U.S.C. §542(g)(2)(D), and may not be deducted from the fee imposed by this chapter or any franchise agreement. In addition to interest on unpaid amounts, if a regular payment is late 45 days or more, a franchisee shall pay a penalty equal to ten percent of the amount due to defray the county's costs of collecting the delinquent payment.

(g)

When a franchise terminates for any reason, if franchisee is paying franchise fees directly to the county, then the franchisee shall file with the county, within 90 calendar days of the date on which its operations in the county cease, a financial statement, certified by a certified public accountant or the franchisee's chief financial officer or other duly authorized officer, showing the gross revenues received by the franchisee since the end of the previous fiscal year. Adjustments will be made at that time for franchise fees due to the date that the franchisee's operations ceased.

(h)

The payment of a fee pursuant to this section on cable service provided over a cable or open video system does not excuse an operator from any requirements that may exist to pay fees or other payments on services other than cable services provided over the facilities. As an example and not as a limitation of the foregoing, a cable operator that pays a franchise fee on revenues derived from the provision of cable services shall, if required under applicable law, pay the fees imposed upon providers of communications services to the extent that it provides such services.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-12. - Renewal of franchise.

Renewal shall be conducted in a manner consistent with §626 of the cable act, 47 U.S.C. §546. To the extent such additional requirements are not prohibited by applicable law, the following requirements shall apply:

(1)

Upon completion of the review and evaluation process set forth in §626(a)(1)(2) of the cable act, 47 U.S.C. §546, should that process be invoked, the county shall notify the franchisee that it may file a renewal application including a renewal proposal. The notice shall specify the information to be included in the renewal application and the deadline for filing the application, which shall be no earlier than 30 calendar days following the date of the notice.

a.

The application shall comply with the requirements of section 26-9(a), (b), (c) and (j), herein and provide the specific information requested in the notice. If the franchisee does not submit a renewal application by the date specified in the county's notice to the franchisee pursuant to this subsection, the franchisee will be deemed not to be seeking renewal of its franchise.

b.

Upon receipt of the renewal application, the county shall publish notice of its receipt and make copies available to the public. The county, following prior public notice, may hold one or more public hearings on the renewal application.

(2)

The board shall consider the renewal application at a public hearing at which the board will either:

a.

Pass a resolution agreeing to renew the franchise, subject to the negotiation of a franchise agreement satisfactory to the county and the franchisee; or

b.

Pass a resolution that makes a preliminary assessment that the franchise should not be renewed.

(3)

If a preliminary assessment is made that a franchise should not be renewed, at the request of the franchisee or on its own initiative, the county will commence a proceeding in accordance with §626(c) of the cable act, 47 U.S.C. §546(c), to address the issues set forth in §626(c)(1)(A)-(D) of the cable act, 47 U.S.C. §546(c)(i)(A)-(D). Any denial of a proposal for renewal that has been submitted in compliance with subsection (b) of § 546 shall be based on one or more adverse findings made with respect to the factors described in § 546(c)(1)(A)-(D), pursuant to the record of proceedings under §546(c). The county shall not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under § 546(c)(1)(A) or on events considered under §546(c)(1)(B) unless the county has provided the franchisee with notice and opportunity to cure, or in any case in which it is documented that the county has waived its right to object, or the franchisee gives written notice of a failure or inability to cure and the county fails to object within a reasonable time after receipt of such notice.

(4)

Any request to initiate a renewal process or proposal for renewal not submitted within the time period set forth in §626(a) of the cable act, 47 U.S.C. §546(a), shall be deemed an informal proposal for renewal and shall be governed in accordance with §626(h) of the cable act, 47 U.S.C. §546(h). The board of county commissioners may hold one or more public hearings or implement other procedures under which comments from the public on an informal proposal for renewal may be received. Following such public hearings or other procedures, the board of county commissioners shall determine whether the franchise should be renewed and the terms and conditions of any renewal.

(5)

If the board of county commissioners grants a renewal application, the county and the franchisee shall agree on the terms of a franchise agreement, pursuant to the procedures specified in this chapter, before such renewal becomes effective.

(6)

If renewal of a franchise is lawfully denied, the county may acquire ownership of the cable system or require a transfer of the system upon approval of the board of county commissioners. The county may not acquire ownership of the system or approve a transfer while an appeal of a denial for renewal is pending in any court pursuant to 47 U.S.C. § 546(e).

(7)

If renewal of a franchise is lawfully denied and no appeal to a court is pending, and the county does not purchase the cable system or approve or require a transfer of the cable system to another person, the county may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the county may have the removal done at the former franchisee's and/or surety's expense.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-13. - Transfer of a franchise.

(a)

Except in the case of a pro forma transfer for which notice but no consent of the county shall be required, no transfer of a franchise shall occur without prior approval of the board of county commissioners which shall not be unreasonably withheld. Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable system or OVS to secure construction, operation or repair of the system and the sale of a portion of the assets of the system that will not substantially affect the system's operations may be made without application and without the county's prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the cable system or OVS operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the franchisee, or to own or control the cable system or OVS without the prior consent of the county. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the county under this chapter or other applicable law.

(b)

All applications for a transfer of a franchise shall be filed at least 120 calendar days prior to the effective date of the transfer, shall meet the requirements of this chapter, and shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and services. Except in the case of a pro forma transfer, the application shall contain, at a minimum, the information required in sections 26-9(e)(1)—(5), (8), (10), (11) with respect to the proposed transferee. If the information to be provided in response to these items will not change as a result of the transfer, the transferee may so indicate in its response. The information required in sections 26-9(e)(7), (9), (10) shall also be provided whenever the proposed transferee expects material changes to occur in those areas as provided in federal regulations. The following information must be included in the application, provided that a franchisee is not required to duplicate information that it submits to the county to comply with its obligations under federal or state law:

(1)

All information and forms required under federal law;

(2)

Upon request, any contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein to the extent that such documentation is required by the FCC or is to be provided to local franchising authorities by the FCC;

(3)

Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction;

(4)

Other information deemed necessary by the county to provide a complete and accurate understanding of the financial position of the transferee;

(5)

Complete information regarding any potential impact of the transfer on subscriber regulated rates and service;

(6)

If requested, a brief summary of the proposed transferee's plans for at least the next two years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of cable services, and any other changes affecting or enhancing the performance of the cable system or OVS. If the transferee deems information to be provided pursuant to this section to be proprietary, the transferee may make the information available for the county's review, but will not be required to provide copies of the information to the county unless the county can maintain such information as confidential.

(c)

In making a determination on whether to grant an application for a transfer, the board of county commissioners shall consider the legal, financial, and technical qualifications of the transferee to operate the system; whether the incumbent franchisee is in substantial compliance with the material terms of its franchise agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee has agreed to comply with the franchise; and, to the extent allowed in the cable act, whether the transfer may reduce competition in cable services within the county; and whether operation by the transferee would adversely affect subscribers or the county, or otherwise be contrary to the public interest.

(d)

No application for a transfer shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will assume the obligations and liabilities, known and unknown, of the previous franchisee under this chapter and the franchise agreement.

(e)

Approval by the county of a transfer of a franchise does not constitute a waiver or release of any of the rights of the county under this chapter or the franchise agreement, whether arising before or after the date of the transfer.

(f)

The transferee shall notify the county that the transfer is complete within five business days of the date the transfer is complete.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-14. - Revocation or termination of franchise.

(a)

The board of county commissioners may revoke a franchise for a franchisee's material failure to construct, operate, or maintain the cable system as required by this chapter or the franchise agreement, or for any other material violation of this chapter or material breach of the franchise agreement or material violation of applicable law. To invoke the provisions of this section, the county shall give the franchisee written notice by certified mail at the last known address that franchisee is in material violation of this chapter or in material breach of the franchise agreement. The notice shall describe the nature of the alleged violation or breach with specificity and demand correction within 30 calendar days or, within a reasonable time period stated in the notice, which shall not be less than 30 calendar days. If within 30 calendar days following receipt of such written notice from the county the franchisee has not cured such violation or breach, or has not commenced corrective action and such corrective action is not being actively and expeditiously pursued, the county may give written notice to the franchisee of its intent to revoke the franchise, stating its reasons.

(b)

Prior to revoking a franchise under subparagraph (a) hereof, the board of county commissioners shall hold a public hearing, upon ten calendar days notice, at which time the franchisee and the public shall be given an opportunity to be heard. Following the public hearing, the board of county commissioners may determine whether to revoke the franchise based on the evidence presented at the hearing, and other evidence of record. If the board of county commissioners makes a determination to revoke a franchise, it shall direct that a written decision setting forth the reasons for its decision shall be transmitted to the franchisee.

(c)

Notwithstanding paragraphs (a) and (b) hereof, any franchise may, at the option of the board of county commissioners following a public hearing before the board, be revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that 120 day period:

(1)

Such assignment, receivership, or trusteeship has been vacated; or

(2)

Such assignee, receiver, or trustee has fully complied with the terms and conditions of this chapter and the franchise agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise agreement.

(d)

In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a franchisee, the county may revoke the franchise, following a public hearing before the board, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate 30 calendar days after serving such notice, unless:

(1)

The county has approved the transfer of the franchise to the successful bidder; and

(2)

The successful bidder has covenanted and agreed with the county to assume and be bound by the terms and conditions of the franchise agreement and this chapter.

(e)

If the county revokes a franchise, or if for any other reason a franchisee abandons, terminates, or fails to operate or maintain service to its subscribers for a period of six months, the following procedures and rights are effective:

(1)

The county may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the county may have the removal done at the former franchisees and/or surety's expense.

(2)

The county, by resolution of the board, may acquire ownership pursuant to this chapter, or effect a transfer of the cable system.

(3)

If a cable system is abandoned by a franchisee, the county may sell, assign, or transfer all or part of the assets of the system.

(f)

The county may revoke the franchise if the franchisee commits or participates in an act of fraud or deceit upon the county.

(g)

Where the county has issued a franchise specifically conditioned in the franchise agreement upon the completion of construction, system upgrade, or other specific obligation by a specified date, the county may, after compliance with the procedures set forth herein, revoke a franchise by resolution for failure of the franchisee to complete such construction or upgrade, unless the county, at its discretion and for good cause demonstrated by the franchisee, grants an extension of time.

(h)

The foregoing provisions shall not be deemed to preclude the county from obtaining any other available remedies for repeated violations, of the same general type, whether remedied or not.

(i)

Except as provided in paragraph (g), the county shall not take action against a franchisee pursuant to this section except after a noticed public hearing at which the franchisee is given an opportunity to participate.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-15. - Effective date of a franchise.

A franchise agreement shall set forth its effective date.

(Ord. No. 02-18, § 2, 7-30-02)

Sec. 26-16. - Reserved.