Resolution 2007-076
RESOLUTION NO. 2007. 76
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS, COLLIER
COUNTY, FLORIDA, URGING MEMBERS OF THE FLORIDA LEGISLATURE AND
FLORIDA'S GOVERNOR TO OPPOSE AND DEFEAT PROPOSED FLORIDA HOUSE
BILL 529 (COMPANION TO PROPOSED FLORIDA SENATE BILL 0998) RELATED
TO CABLE TELEVISION AND VIDEO PROGRAMMING SERVICES) AND ANY
SIMILAR PROPOSED FLORIDA BILLS; AND DIRECTING THAT THIS RESOLUTION
BE FORWARDED TO COLLIER COUNTY'S LOCAL LEGISLATURE DELEGATION,
TO FLORIDA'S GOVERNOR, AND TO THE FLORIDA ASSOCIATION OF COUNTIES
AND THE FLORIDA LEAGUE OF CITIES
WHEREAS, proposed Florida House Bill 529, (companion to proposed Florida
Senate Bill 0998) incongruously entitled the "Consumer Choice Act of 2007" (which
proposed Bill neither protects nor facilitates any choices by consumers of cable
television services), among other things, provides that no municipality or county shall
grant any new franchise for provision of cable or video services within its jurisdiction,
and shall not renew any such existing local franchise although many existing local
franchises include franchise renewal provisions; also requires that as of July 1, 2009,
all such customer service complaints are to be "handled by" the Florida Department of
Agriculture and Consumer Services; also provides that only incumbent cable service
providers (meaning the service provider serving the largest number of cable subscribers
in the municipality or county as of July 1, 2007) shall comply with customer service
requirements reasonably comparable to the standards in Chapter 47, Code of Federal
Regulations, but only if no other service provider offering service (excluding direct-to-
home satellite service) anywhere in the incumbent service provider's service area, in
which case there are no applicable customer service standards; and
WHEREAS, this proposed Bill is a substantial threat to local governments'
authority over public rights of way and elimination of benefits being provided by cable
franchisees to local governments (which often directly benefit public schools) throughout
the state, including resulting negative financial impacts upon local governments and
School Boards; and
WHEREAS, this proposed Bill specifies that operation of PEG channels shall be
the responsibility of the municipality or county that receives the benefit of such channel
or equivalent capacity, and state certificate holders bear only responsibility for the
transmission of PEG channel content, and
WHEREAS, this proposed Bill authorizes Florida's Department of State to grant
statewide cable franchises; and
WHEREAS, this proposed Bill does not effectively prohibit "cherry picking"; and
WHEREAS, this proposed Bill prohibits counties and municipalities from
mandating that any holder of a Florida Department of State issued certificate of service
must have a business office within the county or municipality; also prohibits the state,
counties and municipalities from imposing or collecting any tax, charge, franchise,
license, any form of agreement, or any other consideration in connection with the use of
public right-of-way except generally applicable right of way permit fees authorized by
Section 337.401, Florida Statutes, except the provider must repair physical damage to
rights of way caused by the provider or by the providers contractor); also no municipality
or county shall require build out requirements, system construction requirements,
service deployment requirements, capacity requirements, and upgrades; nor documents
and reports except to the extent required by federal law or by other Florida laws; and no
municipality or county may even request information concerning the capacity or
technical configuration of a state certificate holder's facilities; and
WHEREAS, with regard to public, educational and government "("PEG")
channels, and notwithstanding mutually agreed provisions to the contrary, local
franchise agreements that exist as of July 1, 2007, holders of state issued certificates of
service are required only to designate a sufficient amount of capacity to allow provision
of a comparable number of channels or "capacity equivalent" to PEG channels that
were actually in use by the respective municipality or county for at least 10 hours per
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day under the incumbent service provider's local franchise as of July 1, 2007. If such
use is not in effect as of July 1, 2007, the local government must submit a request to the
service provider, to request up to three channels (or "equivalent capacity") within the
requesting municipality or requesting county that has a population of at least 50,000, or
submit a request to the provider to make available up to two channels if the municipality
or county has a population of less than 50,000 individuals; provided moreover, that the
PEG channels then being used by the municipality or county also meet specified hours
per day of actual non-repeat programming "in use" requirements; also allows provision
of "capacity" in lieu of PEG channels to be allocated, and that providers are not required
to place any channel capacity reclaimed by a provider and subsequently restored to the
local jurisdiction on the provider's basic tier or analog tier; also the proposed Bill is
ambiguous regarding whether initial channels or initial capacity must be located on the
provider's basic service tier; and
WHEREAS, other issues of concern include lack of mandatory interconnection
requirements, prohibitions against requirements for any grants or in kind support, and
that connectivity is required up to only the first 200 feet from the provider's cable or
video transmission system; and
WHEREAS, subject to specified conditions, including that any other provider has
been granted a state certificate of service in all or any part of the incumbent provider's
"relevant service area," this proposed Bill authorizes the incumbent provider to
unilaterally terminate its existing local cable franchise and/or local video franchise,
which Bill provisions appear to impair obligations of contracts in violation of Florida's
Constitution and the Constitution of the United States because this act unreasonably
intrudes into the franchise agreements to a degree greater than is necessary to achieve
the act's stated purposes, and, although the Bill requires the incumbent service provider
to notify the affected municipality or affected county of its intent to acquire a state
certificate of service, which certificate, when issued by the state, automatically
terminates the local franchise; also the proposed Bill is silent whether local governments
have any legal standing to contest such applications; and
WHEREAS, this proposed Bill authorizes each non-incumbent cable franchisee,
and/or non-incumbent video franchisee to unilaterally terminate its existing local cable
franchise and/or video franchise provided the non-incumbent provider provides cable
service or video service to less than specified percentages of the total cable and video
service subscribers in the particular franchise area, which provisions appear to impair
obligations of contracts in violation of Florida's Constitution and the Constitution of the
United States because this act unreasonably intrudes into the franchise agreements to
a degree greater than is necessary to achieve the act's stated purposes; and
WHEREAS, this proposed Bill will cause municipalities and counties to lose at
least $20 million in in-kind contributions from existing service providers; and
WHEREAS, service providers that have been issued a state certificate of service
may apply to the Florida Department of State for cable and/or video franchises that
have smaller geographic areas then the geographic area(s) specified in existing local
franchises, and the service provider may thereafter apply to enlarge the state
certificated service area without even notifying the municipality or county; and
WHEREAS, this proposed Bill authorizes all holders of state certificates of
service to transfer to any successor in interest regarding the entity to which the state
certificate of service was initially issued (without any required analysis by the Florida
Department of State regarding the assignee's apparent ability to properly operate the
system); also, although one subsection in this proposed Bill requires that the applicant
for a transfer must notify the municipality or county within 14 business days following
completion of the respective transfer, another subsection in the proposed Bill reads"...
a municipality or county may require a certificate holder to provide notice of a transfer
within a reasonable time" - which appears to require such notice only after the
completed, state authorized, transfer; and
WHEREAS, this proposed Bill contains several problematic ambiguities and
omissions that can result in disputes and potential litigation; and
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WHEREAS, other than Florida's Department of State filing cases in courts of law,
this proposed Bill is silent regarding that Department's authority to penalize or otherwise
mandate compliance with the Bill's provisions or with the Department's yet to be
adopted rules, or to penalize for violations of rules incorporated into this proposed Bill
by reference, and subsection 120.54(1 )(e), F.S., provides that the Department of State,
among all other agencies, has no authority to establish penalties unless the Legislature,
when establishing a penalty, provides that the penalty applies to the agency's rules, but
this proposed Bill is silent regarding penalties; and
WHEREAS, this proposed Bill is silent regarding "standing" of individuals, other
service providers and all other entities, to participate regarding applications to the
Department of State or its other proceedings, including enforcement proceedings; and
WHEREAS, in 1988, Collier County enacted Collier County Ordinance No. 88-
90, to require Collier County issued cable television franchises prerequisites for to
installation, construction and operation of cable television systems in unincorporated
Collier County that use public rights of way; and
WHEREAS, pursuant to Ordinance No. 88-90, as amended, Collier County has
granted four (4) cable television franchises, three (3) of which are currently active and
mutually binding on each of the respective contracting parties; and
WHEREAS, current Florida law requires cable television operators to acquire
local cable franchise agreements from local governments before providing cable service
within the respective local government's jurisdictional area if the service provider
requires any use of the local government's jurisdictional public right-of way; and
WHEREAS, Collier County, through its cable TV franchising Ordinance, has
negotiated and obtained benefits that satisfy the cable television related needs of our
community, including broadcast of County Commission public meetings, services to
Collier County public schools and other governmental facilities, and other services that
support important educational and public interests; and
WHEREAS, it is in the best interests of customers of cable service providers in
Collier County, and throughout Florida, that local governments retain all of their
currently existing authority to require local franchises, and to grant term extensions to
now existing franchises; and
WHEREAS, the currently existing Florida general law that requires prospective
cable TV providers to acquire a local cable TV franchise is not an unreasonable burden
upon any such entities, and such local franchises are in the best interests of the local
government, the franchisee, and all of the franchisee's customers; and
WHEREAS, pursuant to this proposed Bill, all future cable and video franchising
would be accomplished by summarily issued Florida Department of State service
certificates, thereby repealing now existing obligations required by general law of
Florida (which are to be repealed by this proposed Bill), and which obligations variously
apply to the local franchising authority governments and to franchisees, all of which
obligations now exist to protect the franchising local government, the franchisee, and all
of the franchisee's customers, and
WHEREAS, the proposed statewide certificate of service process does not
obligate provision of cable service for any duration of time (the certificate of franchise
authority issued by Florida's Department of State may be terminated simply by the
service provider submitting notice of the termination to the state) nor require compliance
with customer service standards if any portion of the respective state issued certificate
holder's service area is serviced by any another service provider; and
WHEREAS, for each of the above reasons, the Board of County Commissioners
of Collier County, Florida, hereby expresses its strong opposition to proposed Florida
House Bill 529, and
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WHEREAS, Collier County's Board of County Commissioners urges members of
the Florida legislature and Florida's Governor to oppose and defeat proposed Florida
House Bill 529; and
WHEREAS, the Board finds that is in the public interest, and is in the interests of
Florida consumers of cable services and/or video services, to forward a copy of this
Resolution to all members of Collier County's local Legislative Delegation, to Florida's
Governor, to the Florida Association of Counties and to the Florida League of Cities.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTYL FLORIDA, that:
1. The foregoing "WHEREAS" clauses are hereby incorporated herein as an
integral part of this Resolution.
2. The Board of County Commissioners of Collier County opposes proposed
Florida House Bill 529 (companion to Florida Senate Bill 0998) and any other
substantially similar Florida Legislation, and urges members of the Florida legislature to
oppose and defeat proposed House Bill 529/SB 0998 and any other substantially similar
Florida legislation.
3. Governor Crist veto the Bill if it is sent to him by the Legislature.
4. County Manager, Jim Mudd, is hereby directed to immediately distribute a
copy of this Resolution to all members of Collier County's local Legislative Delegation,
to Governor Charlie Crist, to the Florida Association of Counties and to the Florida
League of Cities.
5. This Resolution shall be effective upon adoption.
ADOPTED by the Board of County Commissioners of Collier County, Florida, this
-l-\-.
;21 day of rYlan:L,2007.
ATTEST:,'.""
DWIGH"J",~:BR()CK,' Clerk
.... .. ~
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Attest. as 'i?e~4'ltJ&rJ<i
$ 19nature on I-
Approved as to form and legal sufficiency:
By: ThO~~ P~!r~~ ~
Assistant County Attorney
By:
do.~N
JA S COLETTA, Chairman
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