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Home My WebLink AboutM-84-0977J CITY OF MIAMI. Ft001110A INygM.Or'RIGt MEMORANDUM TO. Howard V. Gary D^T[: September 6, 1984 Met City Manager fuf.1ECT:Cable Television: Miami Cable - vision Penalties FROM: Merry Sue Smoller Assistant to the City Manager for Cable Communications ENCLOSURES: Status Miami Cablevision Penalties As per your request, attached the status a of September 7, of all penalties currently imposed Pon Mia or - I" r` r V mow_ {- It I STATUS REPORT: MIAMI CABLEVISION PENALTIES On January 11, 1984, the City Manager directed the exaetment from the security fund of a penalty of $2,500 per day, for violation of 'Section 605(b), Parallel Installation of Cables and Wires to existing Te e one ana Electrical Wires, or iach day thit noncompliance continues. cross -connections) This penalty was frozen as of July 31, 1984, by Resolution No. 84-934 of the City Commission at the accumulated amount of ........................$ 507,500.00 On February 10, 1984, the City Manager directed the exactment from the security fund of $2,500 per day, plus interest, for violation of Section 1001(d), Failure to Replenish the Security Fund for each aay that noncompliance continues. re: cross -connections penalty) This penalty was frozen as of July 31, 1984, by Resolution No. 84-934 of the City Commission at the accumulated amount of.......................•462,744.79 Sub -Total �777 On July 26, 1984, the City Manager directed the exaetment from the security fund of a penalty of $2,500 per day, for violation of Sections 301(s) and 302(b), Failure to comply with the Operational or Maintenance Standards and a penalty of $2,500per day, For v o a ion of Sections 302 and 303, Failure to provide in a continuen manner the types OF ery ces an 'Programs, both, as required y Ord1nance 9132, or each day that noncompliance continues. The period of noncompliance from July 26, 1984, through August 1, 1984, accumulated seven days at $5,000, or.......35,000.00 On August 29, 1984, the City Manager directed the exaetment from the security fund of a penalty of $2,500 per day, together with the additional daily increasing interest for viola- tion of Section 1001(d), Failure to Re lenish the SecuritZ Fund for each ay fit noneomp i- ane-' ` on nues. ihe penalty shall run from August 24, 1984, until such time that Miami Cablevision has come into compliance. The accumulated amount as of September 7, 1984 ..= 37,867.00 Prepared by Manuel Rodrigues 9/6/84 swuCt J. sto�lAN OtsIM t. 0011tN sA"WT "ANIL A A. NAOTMI S. V"WoosA" • CAoOLt Otto/" OANOUttA Rom" N. OINst+AS" WILLIAN ". oft"b lee ROstoT It "OWARO *AVID t Itt"IN. A A. tsWAos C. Ltr/NSo" NAT"LttN NA1MltT AAM N. MARNIS" Kt""C?" N. NT!"s, A A. STA"U" C. NT%*& PAo,OIt MTolsst 6490AOS 0. SIC"Aoss. A A. A. ". C. Rots • GAAOY s, 404WANT2 VML1AN t. ou"OST"ON • Mt"t TtMC"t" STONRT S. TRAU" JtrrotT wam"ORN . TALLA"ANtt Orr1Ct r LAW Orrlcts MYERS, KENIN, LEVINlSON, FRANK AI PlICHAROS A AARTNt RSHIP INCLUDING 0001PRSOMMAL AssOCIATtONt ewICK[LL IMCCUTWC TOW[R Isss ORICNtLL AVt NUt LION ItA1PlAN MIAM1, rLORIDA 33131 (I000-1l7A) TtLtAHQNt (305) 371 - 904l TALLA"Atttt O/rme Mr . Howard V . Gary City Manager City of Mimi 3500 Pan American Drive Mimi, FL 33133 Re: Miami Cablevision Dear Mr. Gary: August 24, 1984 1020 LAST LAPATtTTt STottT TALLANAsstt. rLOWMA I430I TtL[I•MONt (o" M • stsl This is in reference to your letter of August 23, 1984 to Mr. Charles C. Heramanowski, alleging a violation of Section 1002 0) of the License Ordinance for failure to make the July 1, 1984 quarterly license fee payment, as required by Sections 901 and 902 of the.License Ordinance. You recall that we advised you by letter on July 23, 1984 that the posi- tion of the Company is that during the currently pending FCC proceedings, in which the minimum quarterly payments are an issue, the Company considers that the monies previously prepaid to the City (in excess of $6,000,000.00) to have been sufficient to cover the July 1, 1984 payment, and any future quarterly payments until such time as all such prepayments have been pro- parly credited to a 5% license fee on gross revenues actually earned, per FCC Staff ruling adopted June 28, 1984. Since the City has construed the Staff ruling differently, there is a jus- ticiable issue now under consideration by the FCC. The Company has been advised by FCC counsel that, in view of the outstanding effect of the F= Staff Ruling, any further minimum quarterly payments to the City, while the appeal is pending, would be improper, and may be in violation of FCC rules. We are attaching the letter opinion of the Company's FCC Washington counsel dated August 24, 1984, from Janes Meyers, Esq. of Naraff, Koerner, Olender G Hochberg. We call to your attention that Section 208 of Ordinance No. 9332 requires the Company to "comply fully with all applicable federal, state and local laws." Lt-/e - 0 - Mr. Howard V. Gary August 24, 1984 Page Two The opinion of Washington counsel is that any further quarterly prepayments at this time may well be in violation of federal law, and that any such payments may put the Company's federal FCC license in jeopardy. You have cited Section 1504 of the License Ordinance, which states that (even though the Company may be in violation of federal law in doing so) the Company is required to continue to violate federal law until the License Ordinance has been finally adjudicated by the courts. We believe that this section is inconsistent with Section 208 of the Ordinance, and for other reasons we believe that Section 1504 is unconstitutional as applied to this circumstance. A municipal government cannot mandate that a regulated company violate federal law. In any event, in view of the ambiguity in the License Ordinance in the construction of Section 208 and Section 1304, %ore are con- strained to follow the FCC limitations set forth in 47 C.F.R., Section 76.31 and the FCC's Order of June 28, 1984. Since the City currently has in excess of $6,000,000.00 in previously prepaid monies of the Company, we cannot see how the City is harmed during the pendency of the current a?peal. Since the Company disagrees with the City Manager's interpretation of the FCC Staff Order dated June 28, 1984, and since this matter has not yet been re- viewed by the City Ccesrission, we ask that this matter be placed on the City Commission agenda for review at its meeting on September 15, 1984. The relief we are seeking by this request is to remove the assessment of the penalty for failure to make the subject quarterly prepayment. S cer y, M . MYdRS KM s ryc 2 i "Yens, KtNiN, LtViNSON, FRANK i RICMARos eRIC96L.. 996CUTIV9 TOW90, 648e BRICK«t AV9NU6, N/Aldi, •L.ORIQA 33131 A BAR"r, KoisRxz jt, 0maxDnit & 110c n IsItU0, F. C. ATTORNEYS At LAW !O» W &TRUST ft.M. f.UfTZ volt Rasnixorux. n.C- a0o30-33a0 negm elm -Oman SpeItM L 4940Mww A669 M buxuntl L98ft 4"10 4. s NUM100 Muth'eLneemAugust 24, 1984 ^&RAN no we a e m"34ws JAMUS U. ft=VVW M40! *.a. MARTINI William J . NuC,arthy 0ennors l Manager Mfani Cablavinion 1306 N.N. nth Avenue Mamie Florida 33136 Re.- city of Miami NotiCeA of Penalty rorefeiLure dear mr. McCarthy: I understand that. upon the close of tst Al ner.; Av3yue;t 23. 1984, representatives of thy: City of Miami served on your office a notice of penalty for late payment of the minimum iiewmee tease of $22S, 000 set forth in 2 tian 901 (b) of City of Kfami Ordi►nanou No. 9332. I under nd furthnr that per the notice the City will impose a penalty in the amount of 62,500 daily- from the Comt►any's security fund posh with the City if tbo license fee payments are not made by 4 e 00 p.m. � `• i• On June 29, 1994, tho Fcdcral Chmeunications.Commission (OFMO) released a memorandum Opinion and Order porrai ni nq to this NdAi,ms paymunt provinion undg:r which the City notice MA been 3 svot.W . With rcupoct to tisusite payments, the rCC' a Order said: To the extent that the mini muses franchise tee payments exceeded the limit M) , thoslo paymosits whi+Ch arty in the nature of lump sun payments to clot the regulatory Program off dick groond a should be cr*"tad a+2ainst future too payments. Addi- tionally, in view of tho Beet that wee; are approving herbs: the Se waiver request, any payments to- ward that end are porml anible, commencing from the :start of the system' s operations. •, k t, \1 SAtJCt J. StWMAN DtSWA t. MR 914 SANWY IMANK. P A. 14AWTIN S. •WIR*"AN • CAK+{Kt KRNIN GANSUttA ROw a M. G/NSSUWS WK.LlAIM M. s"Go"Iclt 00"0" t 0400A00 DA" S• KtNiN, PA. t*NAK?O t. LtYtNSON WATNLttN N1AWKtY PAVL M. MAIR"19M KSNNC" M. MTSWS, P A. STANLtY C. "Taos PA"ICK PATWISSI 090WO9 W. NICMAROS, A A. w. M. C. KOSt • GAWKY S. SCMWAWTt WILLIAM It. SUNDSTWOM • ,LRNt TtMCMIN STONtY S. TWAUM JtAFIKY Wtf9140WN • VALLA"AS1111tt *VrtCt LAW Or Acts MYCRs, KCHIN, LCVINSCN, FRANK & RICHAROB A PAIRN909141411 INCLUOINO P"I"29S10NAL ASSOCIATIONS INNICKIELL tX[CUTIVt TOWRIN 14814 GRICKCLL AV[NUC LION KAPLAN MIAMI• 11PLORIOA 33031 (10*0 •1574) TRLCPMONt (309) 371•pO.tl August 30, 1984 Manny Alvarez, Assistant to the City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 TALLAMASStt Orli t" 10RO CAST LArATRTTt STWt%T TALLAMASStt. rL*W#OA 2C301 ?VLtPMONt (004) no • SISI Re: Miami Cablevision: Request for Consideration of Amendment to Ordinance No. 9332 - First Reading: City Commission Agenda for September 13, 1984 Dear Manny: Pursuant to Miami Cablevision's previous request, by their letter dated August 16, 1984, to have two items placed on the City Commission agenda for September 13, 1984, I am enclosing herein the proposed Ordinance Amendment to Ordinance No. 9332 which the Company will ask the Commission to consider on First Reading at said meeting. The other matter relating to cable, which Miami Cablevision requests as an agenda item, is consideration of the cancellation of the $35,000 penalty assessment, for failing to provide four subscribers with a B cable for a period of approximately 7 days. We ask that the City Manager's office confirm that these two items are on the agenda. /'V yours , enneth M. Myers I MM/mr 8nclosure cc: Mayor Maurice A. Ferre Commissioner Joe Carollo Commissioner Miller Dawkins Comissioner Demetrio Perez, Jr. Commissioner J. L. Plummer Howard V. Gary, City Manager Lucia Allen Dougherty, City Attorney AEI► A. Quinn Jones, III, Deputy City Attorney (� Bob Clark, Deputy City Attorney CHRONOLOGY May 21. City staff inspectors first spot City residences being served cable via the single cable County system in an affected area of 100 homes, primarily along N.W. 17th Avenue, between 58th Street and 71st Street, and on 41st, 42nd, and 58th Streets. Shortly after, Matt Rowzee, Miami Cablevision Construction Manager, verbally informed by Dale Kelchner, City Cable Engineer. No action resulted. June 13. Miami Cablevision given formal notice of alleged viola- tions of Section 1002(4) for failure to comply with operational or maintenance standards and Section 1002(6) for failure to provide in a continuing manner the types of services and programs required by the ordinance. Specifically, Sections 301(a), 302(b), 303, and 304 require the use of a dual cable system, the provisioning of the range of basic services and the offering of all auxiliary services to all subscribers. June 15. Miami Cablevision responds that it is now installing B- cable on 71st Street, and no single cable serves residents on 41st, 42nd, and 58th Streets. June 28. After site inspections of the areas to verify Miami Cablevision`s response, the City accepted Miami Cablevision`s response with regard to N.W. 41st Street and 42nd Street. However, staff determined that City residences in the area primarily along N.W. 17th Avenue between 58th Street and 71st Street, were being, served with single cable. There was no evidence of preliminary or actual installation of B-cable in these sections. Miami Cablevision was given until July 21, 1984 to put an end to the violation by installing dual cable and offering "B" cable programming or face penalties. July 18. Miami Cablevision began construction on the "B" cable. July 21. Violations still neither remedied nor ended. July 26. Violations still neither remedied nor ended. City Manager notifies Miami Cablevision that penalties will run from July 26 until noncompliance has been remedied. Miami Cablevision responds that strand maps reported the City boundary in error, and that upon notification it began immediately to serve the area with both "A" and "B" cable. It said it had completed the "B" cable on July 26, and was in the process of connecting 26 sub- scribers to the "B" cable, but was unable to connect them all because of inclement weather in the two previous weeks. Chronology Page 2 July 10. Miami Cablevision advises that all subscribers are con- nected with the "B" cable. On -site inspections by City staff reveal that the "B" cable is still not complete, nor have all subscribers been connected to the "B" cable. August 1. At noon, City staff meets with Miami Cablevision staff in affected area to indicate remaining single cable and observe correction of some single cable feeds. At 4:00 p.m., one house at 1888 N.W. 58th Street remains a single cable service. A*a�� August 2. At 8:30 a.m., City staff inspects the area of N.W. 19th Avenue from 40th Street to 58th Street, and N.W.17th Avenue from 58th Street to 71st Street and N.W. 17th Street from 17th Avenue to N.W. 7th Avenue. All City of Miami cable subscribers in the area are receiving dual cable service and all residences are passed by dual cable. Augu3t2. City Manager notifies Miami Cablevision of exaction of $35,000 in penalties representing its period of non- compliance from July 26 through August 1. August 6. City Finance Director notifies Miami Cablevision of withdrawal of $35,000 in penalties from the security fund and gives it ten days (August 16) to replenish the fund in that amount. August 16. Letter from Miami Cablevision to Mayor and Commission requesting consideration of the cancellation of the $35,000 penalty and assessment of penalties for failure to replenish the security fund on the ground that the assessment of such penalty was not appropriate. Also, it requests ordinance amendments with respect to penalties and the procedure for assessment of penalties. August 24. Letter from Miami Cablevision advising the City Manager that it has no intention of replenishing the $35,000 withdrawn from the security fund. August 29. City Manager notifies of a penalty of $2,500 with the requirement to exists. Miami Cablevision of assessment for each day its non-compliance replenishs the security fund September 7. City Finance Director notifies Miami Cablevision of exactment of $2,500 from the security fund for each day the company fails to replenish the security fund. i