Resolution 2007-075
RESOLUTION NO. 2007 - ~
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
SENATE BILL 1772 (COMPANION TO PROPOSED FLORIDA HOUSE BILL 855)
RELATED TO CABLE TELEVISION AND COMPETITIVE VIDEO PROGRAMMING
SERVICES, AND DIRECTING THAT THIS RESOLUTION BE FORWARDED TO
COLLIER COUNTY'S LOCAL LEGISLATURE DELEGATION, TO FLORIDA'S
GOVERNOR, TO THE FLORIDA ASSOCIATION OF COUNTIES AND THE FLORIDA
LEAGUE OF CITIES
WHEREAS, although this proposed 42-page Florida Senate Bill 1772,
companion to proposed Florida House Bill 855, is titled the "Consumer Broadband
Choice Act of 2007 (herein collectively the "act"), it does not facilitate choices by
consumers of cable service or competitive video programming services; and
WHEREAS, the stated purposes for this act, alone or collectively, do not
necessitate termination of any existing local cable franchise, or effectively amending
any municipal or county cable franchise ordinance, or necessitate prohibiting
municipalities or counties from continuing to issueing cable franchises, or necessitate
prohibiting municipalities or counties from locally enforcing the customer service
obligations listed in 47 Code of Federal Regulations, Section 76.309 (c), or necessitate
prohibiting municipalities or counties from considering economic impacts of applied-for
franchises upon private property in the applied-for franchise area, or necessitate
preventing municipalities or counties from considering public need for the requested
franchise, or from considering the financial ability of the applicant to perform the
applied-for local franchise, from considering other societal interests generally
considered in cable television franchising, or from considering other matters that may be
deemed to be relevant by the respective municipality and by the respective county; and
WHEREAS, this proposed Bill will cause municipalities and counties to lose at
least $20 million annually of in-kind contributions from now existing providers; and
WHEREAS, notwithstanding the 47 Code of Federal Regulations, Section 76.309
(c), states that cable operators "shall be subject to those customer service standards"
without any exception, this act mandates a state-wide exception to those federal
standards, which exemption reads "Each cable service provider shall comply with the
customer service standards in 47 C.F.R. Section 76.309 (c) until there are two or more
providers offering cable service or competitive video programming in the relevant
service area"; and
WHEREAS, although clarity of the act's phrase "relevant service area" is
extremely important, that phrase is not defined in the act, whereby that phrase's
ambiguity will probably afford very meager service standards protection to customers
and prospective customers; and
WHEREAS, on or before January 1, 2009, this act automatically terminates all
local cable franchises throughout Florida, which apparently constitutes unconstitutional
impairment of contracts in violation of Florida's Constitution and the Constitution of the
United States because this act unreasonably intrudes into these franchise agreements
to a degree greater than is necessary to achieve the act's stated purposes; and
WHEREAS, although one stated purpose in this act is to "continue access to and
maintenance of public, education, and government (PEG) channels" this act provides
that in each instance where a local cable franchise or ordinance requires PEG
obligations that are greater than the act's assumption that 2 or 3 PEG channels are
always adequate - such locally agreed-upon greater PEG access is reduced; and
WHEREAS, this act prohibits local governments from requiring adequate
assurance that the cable operator will provide adequate public, educational, and
governmental ("PEG") access channel capacity, facilities, or financial support (that often
directly benefit School Boards), except by enacting an optional "standard cable
ordinance" that, if enacted, authorizes every such municipality's and every such
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county's "incumbent cable service providers" to thereby unilaterally terminate every
existing cable franchise issued by such municipality or by such county; and
WHEREAS, this act provides that cable service providers can locate any PEG
channel on any offered tier of service that is viewed by at least 40 percent of the
provider's subscribers, which in those instances authorizes the provider to remove its
PEG channels from its least expensive tiers; and
WHEREAS, as of July 1, 2007, this act effectively amends now existing
municipal and county cable franchises, and many now existing cable ordinances,
because as of July 1, 2007, no municipality or county shall enforce any term, condition,
or requirement of any franchise agreement that is more burdensome than the terms,
conditions, or requirements imposed on any other certificate holder whether by
franchise agreement or ordinance; and
WHEREAS, this act authorizes Florida's Department of State to issue its
certificates of franchise service without any hearing, without input from individuals or
any affected entity other than the applicant, and if the Department of State fails to act on
the application within 30 business days after receiving the application, the application is
deemed to be granted; and
WHEREAS, every Department of State certificate of franchise is fully transferable
to any successor in interest of the applicant to which the certificate is initially granted,
without any hearing and without input from any individual or any entity other than the
applicant, and without analysis or proof regarding the transferee's ability to properly
operate the system being transferred; and
WHEREAS, the act provides that every certificate of franchise issued by Florida's
Department of State can be automatically and summarily terminated simply by the
certificate holder submitting notice of the termination to Florida's Department of State;
and
WHEREAS, this act provides that "The Department of Agriculture and Consumer
services shall address customer service complaints expeditiously by assisting with the
resolution of such complaints ....", which, delegating only authority to "assisting," may
exclude mandating compliance or imposing penalties; and
WHEREAS, this act may require Florida's Department of State and Florida's
Department of Agriculture and Consumer Services to file cases in courts of law to
mandate any compliance or impose any penalties, because this act is silent regarding
either Department's authority to penalize or mandate compliance with the act's
provisions, or with either Department's rules, or with regard to rules incorporated by
reference into this act, because subsection 120.54(1)(e), Florida Statutes, provides that
no Florida agency has any authority to establish penalties unless the Legislature, when
establishing a penalty, provides that the penalty applies to the agency's rules, but this
act is silent regarding such penalties; and
WHEREAS, this act is silent regarding "standing" of individuals, or any entity
other than the applicant (which delegates no standing to municipalities and counties) to
participate regarding matters under the jurisdiction of Florida's Department of State or
under the jurisdiction of the Department of Agriculture and Consumer Services,
including enforcement actions; and
WHEREAS, this act contains many other problematic ambiguities and omissions
that can result in unnecessary disagreements and unnecessary litigation, including, for
example, the following confusing text in the act's subsection 610.115(5): "...in an area
with a density of less than 20 homes per mile from the provider's nearest distribution
facility" - because "per mile" is a measure of distance, not area; and
WHEREAS, In 1988, Collier County enacted its Cable Ordinance (No. 88-90) to
require Collier County issued cable television franchises prerequisite to installation,
construction and operation of cable television systems in unincorporated Collier County
that use public rights of way; and
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WHEREAS, pursuant to its Cable Ordinance, as amended, Collier County has
issued four (4) cable television franchises, which were freely and voluntary entered into,
and three (3) of which remain mutually binding on Collier County and on each
respective franchisee; and
WHEREAS, Collier County, through its Cable Ordinance, has negotiated and
obtained benefits that satisfy the cable service related needs of our community,
including broadcasts of the County Commission's 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 and
providers of competitive video programming in unincorporated Collier County, and
throughout Florida, that local governments retain all of their currently existing authority
to require these subject local franchises, and to continue to be able to grant franchise
agreement term extensions to the existing franchises that include a term extension
provision; and
WHEREAS, existing Florida general laws that requires prospective cable TV
providers to acquire a local cable franchise is not any unreasonable burden upon any
such applicant, and continuing to issue the subject local franchises is in the best
interests of the municipalities, the counties, School Boards, the franchisees and the
franchisee's customers.
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. For each of the above reasons, and many others too numerous to include in
this Resolution, the Board of County Commissioners of Collier County, Florida,
hereby expresses its strong opposition to proposed Florida House Bill 1772
(companion to proposed House Bill 855).
3. Collier County's Board of County Commissioners urges members of the
Florida legislature to oppose and defeat proposed Florida Senate Bill 1772
(companion to House Bill 855), and if Florida's Legislature forwards this act to
Governor Crist, Collier County's Board of County Commissioners urges that he
veto the act; and
4. County Manager, Jim Mudd, is hereby directed to immediately distribute a
copy of this Resolution to Governor Crist, to all members of Collier County's local
Legislative Delegation, 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 .;:; 7 H-
day of f1/I4rt!n , 2007.
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Approved as to form and legal sufficiency:
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By: \ ()VI^ ~
Thomas C. Palmer,
Assistant County Attorney
BOARD OF COUNTY COMMISSIONERS
OF COLLlE~RCOUNTY' FLORIDA
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BY:~ ~
JAMES COLETTA, Chairman
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