§ 114.16. Miscellaneous provisions.

(a)

Submissions to the city and filing. Unless otherwise expressly provided herein, formal submissions required by this chapter and requiring action by the city council shall be submitted to and in the name of the city council and shall be filed with the office of the city clerk.

(b)

Re-openers.

(1)

In the event there are changes in federal and state laws that substantially impact the provisions of cable service, the city and licensee shall enter good faith negotiations for the amendment of any license issued hereunder to reflect said changes.

(2)

A license granted hereunder, unless otherwise specifically provided, does not authorize the licensee to provide telephony services. To the extent required by applicable law, upon mutual agreement of the city and licensee, a license may be amended to include those services upon such terms and conditions as may be mutually agreed by the city and licensee.

(3)

Any license granted hereunder may be modified upon such terms and conditions as the city and licensee may mutually agree.

(c)

Entering private property. Any license granted hereunder does not grant authorization to enter private property without consent of the owner or occupant thereof.

(d)

Procedure for correction of errors in issuance of licenses. Notwithstanding the provision of the foregoing sections, if any license shall be issued or shall be outstanding because of error of law or act, or because of administrative error, the city shall correct such license upon notice to licensee and reasonable opportunity for licensee to be heard, but without charges, findings, or other formal requirements.

(e)

Discrimination prohibited.

(1)

No licensee may in its rates or charges, or in the availability of the services or facilities of its system, or in any other respect, make or grant undue preferences or advantages to any subscriber, potential subscriber, or group of subscribers or potential subscribers, nor subject any such persons or group of persons to any undue prejudice or any disadvantage. A licensee shall not deny, delay, or otherwise burden service or discriminate against subscribers or users on the basis of age, race, creed, religion, color, sex, handicap, national origin, marital status, or political affiliation, except for discounts for senior citizens, the economically disadvantaged or handicapped that are applied in a uniform and consistent manner. A licensee may also offer bulk discounts to multiple dwelling buildings, planned unit developments, cooperatives, condominium associations, and homeowners and property owners associations consistent with applicable law.

(2)

A licensee shall not deny cable service to any potential subscriber because of the income of the residents of the area in which the subscriber resides.

(3)

A licensee shall not refuse to employ, nor discharge from employment, nor discriminate against any person in compensation or in terms, conditions or privileges of employment because of age, race, creed, religion, color, sex, disability, national origin, marital status, or political affiliation. The licensee shall comply with federal, state and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended.

(f)

Failure to exercise right or require compliance. Subject to applicable law, the failure of the city or a licensee, upon one or more occasions, to exercise a right or require compliance or performance under this chapter or a license granted pursuant to this chapter shall not be deemed a waiver of such right or a forfeiture of a right to compel compliance or performance.

(g)

Subscriber privacy.

(1)

Monitoring restricted. No signals of a Class IV cable communications channel shall be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. A licensee desiring such permission shall utilize a printed form, and only that form. The form shall contain a clearly printed legend concisely and explicitly informing subscriber that he or she is under no obligation to grant consent and that any consent granted may be withdrawn at any time without penalty of any kind whatsoever. Such written permission shall be for a limited period of time not to exceed one year, which shall be renewable at the option of the subscriber. Specific authorization is required for each type or classification of class IV cable television activity planned; provided, however, that the licensee shall be entitled without obtaining prior consent to conduct system-wide or individually addressed "sweeps" or "tap audits" for the purpose of verifying system integrity, detecting and preventing theft of service, controlling return-path transmission, or billing for services or for the collection of such other data as is permitted by law.

(h)

Theft of services and tampering.

(1)

It is unlawful to:

a.

Willfully obtain or attempt to obtain cable service from the licensee by any means or device without payment to the licensee for such cable television service of all lawful compensation due for each type of cable television service unlawfully obtained.

b.

Willfully assist or instruct any other person in obtaining or attempting to obtain any cable television service without payment to the licensee of such cable television service of all lawful compensation due for each type of service unlawfully obtained.

c.

Willfully tamper or otherwise interfere with or connect to by any means, whether mechanical, electrical, acoustical or other, any cable, wires or other devices used for the distribution of cable television service without the actual authority from the licensee of such cable television service.

d.

Willfully sell, rent or lend, or promote or advertise for sale, rental, or use, any device or any plan to any person with the knowledge that the person intends to use such device or plan to commit any of the acts set forth in subsections (1)a., b. or c., whether or not such device of plan actually has the ability to facilitate the commission or any acts set forth in subsections (1)a., b. or c.

e.

Willfully sell, rent or lend, or promote or advertise for sale, rental or use, without actual authority from the licensee of such cable television service, any device which is electronically capable of decoding cable television signals which have been encoded by the licensee or any person under contract with such licensee.

(2)

Any law enforcement department of the city having jurisdiction shall have the authority to confiscate any and all such instruments, apparatus, equipment, devises, instructions and plans described in this section, including any materials, tools, machinery, or equipment used to manufacture or produce such instruments, apparatus, equipment, devices, instructions and plans, and upon conviction for violation of the provisions of this section, such instruments, apparatus, equipment, devises, instructions and plans, together with all such materials, tools, machinery, and equipment used to manufacture or produce same shall be destroyed or otherwise disposed of by order of court.

(3)

Any person who willfully violates this section shall be guilty of a misdemeanor in the first degree, punishable as provided in F.S. §§ 775.082, 775.083 and 775.084.

(4)

Whoever is found in a civil action to have violated the provisions of this section shall be liable for actual and punitive damage to the licensee and may be subject to fines and injunction or both and upon judgment in favor of the licensee, such licensee shall also be able to recover all costs of such action, including all appellate proceedings, together with reasonable attorney's fees.

(i)

Development approval. The city may require all subdivisions, planned unit developments, or multi-family projects of ten or more units, which projects require an approval by the city pursuant to its police power, to provide adequate easements or dedications to ensure nonexclusive access to duly licensed cable television services to persons residing in said subdivisions, planned unit developments or multi-family projects. The plat, or the easement, if platting is not required, shall specifically provide for the uses of such easement by the licensed cable television system. Notwithstanding such express requirements, any development approval or building permit issued for such subdivision, planned unit development or multi-family projects of ten or more units shall be deemed to include as a condition of said approval pursuant to the city's police power an easement to the cable television licensee in the area to install, construct and maintain cable television facilities and equipment to insure nonexclusive access to duly licensed cable television services to persons residing in said subdivisions, planned unit developments or multi-family projects. No person, complex owner or agent required to provide easements under this section shall charge any fee or exact any compensation from the cable television licensee for the right to use such easements except as otherwise provided in this chapter.

(j)

Copies of official communications and reports. Upon request, the licensee shall make available to the city copies of all pleadings, applications, reports, communications and documents of any kind, submitted by the licensee to any federal, state and local courts, regulatory agencies and other government bodies relating to its cable television operations within the license territory as well as copies of all decisions, correspondence and actions by such courts, agencies and bodies. Documents and data determined to be confidential by law or by the practices of federal or state agencies and exempt from public disclosure shall be retained in confidence by the city and its authorized agents and shall not be made available for public inspection.

(k)

Severability—Nonmaterial provisions. If any provision of this chapter (or any related agreement) is held by any court or by any federal, state or local agency of competent jurisdiction to be invalid as conflicting with any federal, state or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is nonmaterial, it shall be considered to be an independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended, or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on the parties hereto, provided the city shall give the licensee 90 days' written notice of such change before requiring compliance with said provision.

(l)

Same—Material provisions. If any section of this chapter or license is held to be invalid by a court of competent jurisdiction or is preempted by federal, state or local regulations or laws, such decision shall not affect the validity of the remaining portions hereof.

(m)

Inspection of facilities. The licensee shall allow the city to make inspections of any of the licensee's facilities and equipment at any time upon five business days' advance written notice. Such inspections shall occur during the licensee's normal business hours.

(n)

Notices. Licensee shall maintain within the license territory throughout the term of the franchise, an officer or agent and address for service of notices by mail.

(o)

Captions. The captions of sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of any provision of this chapter.

(p)

Public inspection of reports. All reports subject to FCC public disclosure shall be available for public inspection at a designated licensee office during normal business hours.

(q)

Force majeure. In the event the performance of the license of or compliance with any of the provisions of this chapter or the license agreement is prevented by a cause or event not within the control of the licensee, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof, provided, however, that franchisee uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this ordinance and any license agreement granted or renewed hereunder, causes or events not within the control of the licensee shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within control of the licensee, and thus not falling within this section, shall include, without limitation, the financial inability of the franchisee to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of directors, officers, employees, contractors or agents of the franchisee.

(Ord. No. 00-24, § 16, 4-10-00; Ord. No. 05-76, § 2, 5-9-05)