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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 Page 1 of 4 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 Page 2 of 4 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 Page 3 of 4 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 Page 4 of 4