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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 Page' of 3 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 Page 2 of 3 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. ,.~\ . tZl;'r,f', ATTEST; r,'" <.:;", '.. ". ,"1., DWIGlif E.~BflOC~,CItrk . ::', ~'<.' :'" ,';;~".:, .~:~~u--- s... '.c, "I . " "..; i.., If Approved as to form and legal sufficiency: -- ~ By: \ ()VI^ ~ Thomas C. Palmer, Assistant County Attorney BOARD OF COUNTY COMMISSIONERS OF COLLlE~RCOUNTY' FLORIDA ~?~T . ffd ,c BY:~ ~ JAMES COLETTA, Chairman Page 3 of 3