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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: RESOLUTION OF THE MAYOR AND
COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DENYING THE ASSIGNMENT
OF A CABLE TELEVISION FRANCHISE BY
ADELPHIA CABLEVISION OF INLAND
EMPIRE, LLC TO TIME WARNER NY CABLE
LLC, AN INDIRECT SUBSIDIARY OF TIME
WARNER CABLE INC.
Dept: CITY ATTORNEY
Date: September 29,2005
Synopsis of Previous Council Action:
None.
Recommended motion:
Adopt Resolution.
Contact person: Michael Reiter
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No. J n
I [) / -3/ 0 S-
STAFF REPORT
Council Meeting Date: October 3. 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: September 29, 2005
AGENDA ITEM: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
THE CITY OF SAN BERNARDINO DENYING THE ASSIGNMENT
OF A CABLE TELEVISION FRANCHISE BY ADELPHIA
CABLEVISION OF INLAND EMPIRE, LLC TO TIME WARNER NY
CABLE LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER
CABLE INC.
On June 14,2005, Time Warner filed an FCC Form 394 Application with the City of San
Bernardino asking for approval of a transfer of a Cable Television Franchise controlled by Adelphia
Communications Corporation to Time Warner Cable Inc. A separate application was filed for
another Adelphia-controlled Cable Television Franchise within the City.
Ultimately, should both transactions meet all the necessary approvals, Time Warner
subsidiaries would control both of the Adelphia franchises.
Once a Form 394 is filed, the City has 120 days in which to approve or deny the franchise
transfer. Ifno action is taken, the franchise transfer is deemed approved by operation oflaw. The
120th day is October 7,2005.
Section 14.08.400 of the San Bernardino Municipal Code allows the City to review and
approve the financial, technical, and legal qualifications of Time Warner in connection with the
proposed assignment of the Franchise.
The City of San Bernardino commissioned an audit of Adelphia's franchise fees and utility
users' tax payments and the results are expected in late October. It is recommended that all of the
franchisee's obligations be met prior to the transfer of the Franchise.
The City of San Bernardino, through its outside counsel and consultants, have requested an
extension of the 120 day period from Time Warner. However, no such extension has been granted
in writing.
Since Adelphia has not met its obligations under the existing Franchise, and since Time
Warner has not given its written extension ofthe 120 day period, it is recommended that the transfer
be denied without prejudice.
It is requested that the following floor motion be adopted:
"That the Mayor and Common Council ofthe City of San Bernardino approve the Resolution
Denying The Assignment Of A Cable Television Franchise By Adelphia Cablevision of Inland
Empire, LLC to Time Warner NY Cable LLC, an Indirect Subsidiary of Time Warner Cable Inc."
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DENYING THE ASSIGNMENT OF A CABLE TELEVISION
3 FRANCHISE BY ADELPHIA CABLEVISION OF INLAND EMPIRE, LLC TO TIME
WARNER NY CABLE LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER CABLE
4 INC.
WHEREAS, Adelphia Cablevision ofInland Empire, LLC ("Franchisee") is the authorized
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holder of a franchise ("Franchise") that authorizes the construction, operation, and maintenance
of a cable television system within the City of San Bernardino ("Franchise Authority");
WHEREAS, on April 20, 2005, Comcast Corporation ("Comcast") and Time Warner NY
Cable LLC ("TWNY"), an indirect subsidiary of Time Warner Cable Inc., each entered into
separate definitive agreements to acquire, collectively, substantially all of the assets of Adelphia
Communications Corporation ("Adelphia");
WHEREAS, on June 14, 2005, the Franchise Authority received from the Franchisee and
from Time Warner NY Cable LLC ("Transferee"), an application for the assignment of the
existing Franchise. This application included FCC Form 394 titled "Application for Franchise
Authority Consent to Assignment or Transfer of Control of Cable Television Franchise."
Supplemental information was provided to the Franchise Authority by the Transferee on July 22,
2005;
WHEREAS, in accordance with Section 14.08.400 of the San Bernardino Municipal Code,
the Franchise Authority has the right to review and to approve the financial, technical, and legal
qualifications ofthe Transferee in connection with the proposed assignment ofthe Franchise; and
WHEREAS, The staff of the Franchise Authority has reviewed the documentation that
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accompanied the FCC Form 394 and additional information provided by the applicant, and has
concluded that the proposed Transferee does not have the requisite financial, technical, and legal
qualifications to adequately perform, or to ensure the performance of, all obligations required of
the Franchisee under the Franchise:
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MR:ar [P:\REITER\Municipal\Cable\Franchise Transfer\Time Warner Denial.wpd] 1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DENYING THE ASSIGNMENT OF A CABLE TELEVISION
2 FRANCHISE BY ADELPHIA CABLEVISION OF INLAND EMPIRE, LLC TO TIME
WARNER NY CABLE LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER CABLE
3 IN C.
4 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
5 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. In accordance with Section 14.08.400 of the San Bernardino Municipal
7 Code, the Franchise Authority denies consent to, and disapproves of, the proposed assignment of
8 the Franchise without prejudice.
9 I II
10 III
11 III
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20 III
21 III
22 III
23 III
24 III
25 III
26 III
27 III
28 III
MR:ar [P:\REITER\Municipal\Cable\Franchise Transfer\Time Warner DenialwpdJ 2
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DENYING THE ASSIGNMENT OF A CABLE TELEVISION
2 FRANCHISE BY ADELPHIA CABLE VISION OF INLAND EMPIRE, LLC TO TIME
WARNER NY CABLE LLC, AN INDIRECT SUBSIDIARY OF TIME WARNER CABLE
3 INC.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof,
6 held on the day of
7 COUNCIL MEMBERS: AYES
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
11 DERRY
12 KELLEY
13 JOHNSON
14 MCCAMMACK
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, 2005, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
CITY CLERK
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The foregoing Resolution is hereby approved this
day of
,2005.
JUDITH VALLES, Mayor
City of San Bernardino
23 Approved as to form and
legal content:
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MR:ar [P:\REITER\Municipal\Cable\Franchise Transfer\Time Warner Denia1.wpd] 3
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~:rIME WARNER
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VIA Facsimile
909-384-5238
October 3,2005
Douglas Calkins
City of San Bernardino
300 N. D Street
San Bernardino, CA 92418
Re: AdelphiafTime Warner Transaction: City of San Bernardino
Dear Mr, Calkins:
I am in receipt of Mr. Risk's letter of September 22,2005, proposing an extension of the
time regarding the 120-day transfer application approval time period for San Bernardino
to act on the FCC Fonn 394 dated June 10,2005.
Accordingly, without waiving any of their respective rights under federal law, please let
this letter serve as Time Warner's consent to an extension of time under FCC regulations
for San Bernardino to act on the FCC Form 394 for the franchise held by Adelphia
Cablevision of Inland Empire, LLC to the first Council meeting held in December 2005.
We look forward to receiving a draft of the proposed transfer documents. Should you
have any questions, please fee! free to contact me.
Very truly yours,
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Time Warner
cc: Kristy Hennessey ~ Time Warner Cable
194925
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