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HomeMy WebLinkAbout20-City Attorney 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 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 20 21 22 23 24 25 26 27 28 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: IIi IIi IIi 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 15 16 17 18 , 2005, by the following vote, to wit: NAYS ABSTAIN ABSENT CITY CLERK 19 20 21 22 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: 24 25 26 27 28 MR:ar [P:\REITER\Municipal\Cable\Franchise Transfer\Time Warner Denia1.wpd] 3 Entered into Recorda' I() /3 /D5 C(lIlncillCmyDevCms Mtg: '~ hV._..~ ~~~o re Ayenda Item - ~('~ City Clerk/COe Se~y City of San Bernardmo 203 351 2254 JC LEGAL P 02 R-340 Job-766 203 351 2254 OCi-03-0~ 11:2G [lC ,-1213-;::'005 14: 29 2')() HurbOl {)rivl' <;rllmjiJrd" Ct ()rj902 let 203-j2S-069~ "'ax 20.'35/.2254 Idrh nU'cawilancl@m!('oh/t:'rmr, Patricia N. McCau,ilItuJ AI.~-IS'all' Ch/('!! Cuunrd, Rc.~uIUf(Jry u~a/ ~:rIME WARNER ~ CABLE 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, <?~)t~~ Time Warner cc: Kristy Hennessey ~ Time Warner Cable 194925 P.02 '--V .~