Broward County Broadband Internet Ordinance.
Re: mandating open access.
Date enacted: July 13, 1999.
Source: Broward County.

ORDINANCE NO. 1999-41

AN ORDINANCE CREATING A SECTION IN THE CODE OF ORDINANCES OF BROWARD COUNTY, FLORIDA, RELATING TO ACCESS TO BROADBAND INTERNET ACCESS TRANSPORT SERVICES; REQUIRING CABLE TELEVISION FRANCHISEES TO PROVIDE SUCH ACCESS ON RATES, TERMS, AND CONDITIONS AT LEAST AS FAVORABLE AS THOSE ON WHICH IT PROVIDES SUCH ACCESS TO ITSELF; CREATING A PRIVATE CAUSE OF ACTION AND ENFORCEMENT BY COUNTY; PROVIDING A MOST FAVORED NATIONS CLAUSE; PROVIDING FOR SEVERABILITY, INCLUSION IN CODE, AND EFFECTIVE DATE.

(Sponsored by the Board of County Commissioners)

WHEREAS, it is in the public interest that CABLE system franchise holders that offer high-speed access to the Internet shall not discriminate in favor of themselves or their affiliates, but rather shall provide nondiscriminatory equal access to all requesting unaffiliated Internet Service Providers; and

WHEREAS, pursuant to Chapter 20, Article XVII, entitled " CABLE TV Regulations," Broward County Code of Ordinances, it is the public policy of Broward County and the Board of County Commissioners finds that as a matter of public health, safety and general welfare, in connection with the privilege of using the public rights-of-way and in order to promote widespread availability of CABLE service to Broward County residents, and to protect consumers and promote competition, that CABLE system franchisees that offer high-speed access to the Internet (via a CABLE modem platform or otherwise) shall not discriminate in favor of themselves or their affiliates, but rather shall provide nondiscriminatory equal access to all requesting unaffiliated Internet Service Providers; NOW, THEREFORE,

BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, FLORIDA:

Section 1. Section ____ of the Broward County Code of Ordinances is hereby created to read as follows:

[Underscoring omitted.]

Sec. 1.01 Intent and Purpose.

The requirements of this Ordinance shall apply to all County granted CABLE franchises and to any other entity to which a may hereafter be transferred, assigned, granted ("Franchisee") or which entity may otherwise subsequently exercise rights under the franchise. The purpose of this Ordinance is to provide access to Broadband Internet Access Transport Services.

Sec. 1.02 Access to Broadband Internet Access Transport Services.

Nondiscriminatory Access Required. Subject to technical feasibility, Franchisee shall provide any requesting Internet Service Provider access to its Broadband Internet Access Transport Services (unbundled from the provision of content) on rates, terms, and conditions that are at least as favorable as those on which it provides such access to itself, to its affiliate, or to any other person. Such access shall be provided at any technically feasible point selected by the requesting Internet Service Provider.

Sec. 1.03 Definitions.

For the purposes of this provision, the following definitions shall apply:

(a) "Affiliate" shall mean a person who directly or indirectly owns or controls, is owned or controlled by, or is under the common ownership or control of another person. For purposes of this definition, the term "own" means to own an equity to other financial interest (or the equivalent thereof) of more than ten (10) percent of any management interest.

(b) "Broadband" shall mean a capability in excess of 144 kilobits per second.

(c) "Broadband Internet Access Transport Services" shall mean the broadband transmission of data between a user and his or her Internet Service Provider's point of interconnection with the broadband Internet access transport provider's facilities.

(d) "Internet" shall mean collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected worldwide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol to communicate information of all kinds by wire or radio.

(e) "Internet Service Provider" shall mean a person who provides a service that enables users to access content, information, electronic mail, or other services offered over the Internet.

Sec. 1.04 Most Favored Nations Clause.

In the event that Franchisee is or shall become subject to more extensive or different nondiscriminatory equal access requirements with respect to the provision of Broadband Internet Access Transport Services imposed by or agreed upon with any other jurisdiction in the United States, any requesting Internet Service Provider may, at its option, require Franchisee to comply with such other requirements in lieu of Section 1.02 of this Ordinance. In such event, nothing shall alter the applicability of the remaining provisions of this Ordinance.

Sec. 1.05 Private Cause of Action.

Any Internet Service Provider who has been denied access to a Franchisee's Broadband Internet Access Transport Services in violation of this Ordinance has a private cause of action to enforce its rights to such access.

Sec. 1.06 County's Right of Enforcement.

In addition to any other penalties, remedies, or other enforcement measures provided by County Ordinance or state or federal law, this Ordinance may be enforced by Broward County including, without limitation, enforcement by injunctive relief.

Section 2. If any section, subsection, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this Ordinance.

Section 3. It is the intention of the Board of County Commissioners that the provisions of this Ordinance shall become and be made a part of the Broward County Code; and that the sections of this Ordinance may be renumbered or relettered and the word "Ordinance" may be changed to "section," "article," or such other appropriate word or phrase in order to accomplish such intentions.

Section 4. This Ordinance shall become effective as provided by law.

ENACTED July 13, 1999

FILED WITH DEPARTMENT OF STATE July 19, 1999

EFFECTIVE July 19, 1999

PURPOSE: To require access to broadband Internet access transport services on a nondiscriminatory basis by Franchisees.