Loading...
HomeMy WebLinkAbout2002 11 11 Consent A Cable Franchise ... COMMISSION AGENDA ITEM A Consent X Informational Public Hearing Regular November 11, 2002 Meeting Af1'(~/p~ Mgr. / Att. / Dept. REQUEST: The City Attorney and City Manager request that the City Commission approve a Resolution granting the transfer and assignment of the City of Winter Springs cable franchise from Time Warner Entertainment-Advance /Newhouse Partnership ("TWE-A/N") to its wholly owned subsidiary, TWEAN Subsidiary, LLC ("Subsidiary"). PURPOSE: To consider Time Warner Entertainment, L.P. d/b/a Time Warner Cable's ("Time Warner") Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise (FCC 394) seeking to transfer and assign the City's cable franchise from TWE-A1N to the Subsidiary, which will allow the City of Winter Springs to maintain and promote the long-term viability of its cable franchise as well as preserve and address any outstanding issues or matters it may have concerning its cable franchise. APPLICABLE LAW AND PUBLIC POLICY: 1. Florida Municipal Home Rule Powers Act. 2. Cable Communications Act of 1994. 3. Telecommunications Act of 1996. Page 1 of 3 ./ ....,. 4. Federal Communications Commission Regulations. CONSIDERATIONS 1. On December 10,2001, the City of Winter Springs adopted and passed Emergency Ordinance No. 2001-60 to extend the original term of its cable franchise agreement with Time Warner from December 31,2001 to March 31, 2002 in anticipation of negotiating a new cable franchise agreement with Time Warner in the interim. 2. On March 31,2002, the extended term of the non-exclusive cable franchise in favor of Time Warner expired in the absence of entering into a renewal of the cable franchise agreement. 3. Due to the expiration, the City of Winter Springs cable franchise has been maintained since March 31, 2002 on a month-to-month basis consistent with the Cable Communications Policy Act of 1994. 4. Negotiations concerning the renewal of the City's cable franchise agreement are ongoing and concurrent with consideration of the current transfer sought by Time Warner in its FCC 394 application. 5. On or about July 22, 2002, the City of Winter Springs, together with other cities and counties within the Central Florida area, received an Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise (FCC 394) prepared and filed by Time Warner seeking to transfer and assign its interests in the City of Winter Springs cable franchise to a newly formed subsidiary, TWEAN subsidiary, LLC. ("Subsidiary"), of which Time Warner and Advance-Newhouse ("AN") will be its general partners. 6. The proposed transfer from Time Warner to Subsidiary as set forth in the FCC 394 will be limited to those rights and entitlements commensurate with the continuation of the cable franchise on a month-to-month basis until a new cable franchise agreement is executed. 7. Consistent with Federal Communication Commission regulations and the Cable Communications Policy Act of 1984 and Telecommunication Act of 1996, each jurisdiction receiving a FCC 394 Application has 120 days to consider the application for approval or denial. 8. Failure to take affirmative action within the 120 day period will result in an automatic approval of the transfer and assignment and will constitute a waiver of any outstanding issues or matters the City may have relating to its cable franchise prior to the transfer. Page 2 of 3 . .'" ~ .,. roT" ' '. 9. Taking affirmative action to approve the transfer and assignment and address any outstanding issues relating to the existing cable franchise will allow the City to preserve such issues, if any, upon approval. 10. Time Warner will continue to participate in the Subsidiary to the extent that all programming purchases will be the responsibility of Time Warner. 11. AN will be responsible for the management and day-to-day operations of the Subsidiary as it relates to the City's cable system and has represented that Time Warner personnel will not be replaced and will remain in order to continue to provide the highest level of customer service to its customers. 12. As of October 22,2002, AN and Subsidiary received a credit rating of A2 (stable) and A (stable) by Moody's Investor Service and Standard & Poor's Rating Service, respectively, upon review of their revolving credit facility, outstanding term loan(s) and private placement senior notes. Based upon prior representations by Time Warner, AN, and Subsidiary, AN boasts one of the highest debt ratings in the cable industry. 13. Numerous jurisdictions have recently approved the transfer and assignment of their respective cable franchises to Subsidiary including, the Cities of Belle Isle, Belleview, Casselberry, Center Hill, Deland, Edgewater, Edgewood, Oviedo, Palm Bay, Rockledge, Titusville, Wildwood, Windermere, and Winter Park. In addition, Brevard, Flagler, and Sumpter Counties have recently approved the transfer and assignment. In addition, the Cities of Lake Mary, Ocoee, and Orlando are currently scheduled to approve the transfer and assignment this month together with the Counties of Volusia, Seminole and Lake. STAFF RECOMMENDATION: The City Attorney and City Manager recommend that the City Commission approve Resolution No. 2002-38 consistent with Federal Communication Commission regulations and the provisions of the Cable Communications Policy Act of 1984 and Telecommunication Act of 1996. ATTACHMENT: Resolution No. 2002-38 COMMISSION ACTION: None. F: \Lawyerl VESICity of Winter Springs\agendaitem formtransfercablefranchise394. wpd Page 3 of 3 ~" .. RESOLUTION NO. 2002-38 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, AUTHORIZING THE TRANSFER AND ASSIGNMENT OF ITS CABLE TELEVISION FRANCHISE' FROM TIME WARNER ENTERTAINMENT-ADV ANCEINEWHOUSEPARTNERSBIP TO ITS WHOLLY OWNED SUBSIDIARY, TWEAN SUBSIDIARY, LLC; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS; PROVIDING FOR SEPARABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council received on or about July 22, 2002, from Time Warner Entertainment, L.P. d/b/a Time Warner Cable ("Time Warner") a Federal Communication Commission Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise (FCC 394) wherein it desires to transfer and assign its interest in the City's cable franchise from Time Warner Entertainment-Advance/Newhouse Partnership to its new wholly owned subsidiary, TWEAN Subsidiary LLC ("Subsidiary") in order to continue the provision of cable services to the citizens of Winter Springs; and WHEREAS, it is the intent of the transfer and assignment for Subsidiary to continue to provide cable services in accordance with the terms and obligations set forth under the cable franchise agreement entered into between the City of Winter Springs and Time Warner, which expired, pursuant to an extension of its original term by adoption of Emergency Ordinance 2001-60, on March 31, 2002, but has remained in effect on a month-to-month basis consistent with the Cable Communication Act of 1994 and the Telecommunications Act of 1996; and WHEREAS, it is the further intent of the City to transfer and assign its cable franchise to Subsidiary in accordance with the submitted FCC 394 and providing it with those limited rights and entitlements as Time Warner may have as it operates the City's cable franchise on a month-to-month basis until a new cable franchise agreement is executed; and WHEREA,.S, the City Commission deems it to be in the best interests of the health, safety, and welfare of the citizens of the City of Winter Springs to grant and approve Time Warner's application to transfer and assign its interest in the City's cable franchise to Subsidiary. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA, AS FOLLOWS: Resolution 2002-38 City of Winter Springs Page 1 of 3 r Section 1. resolution. Recitals. The foregoing recitals are affirmed and incorporated as part of this Section 2. Approval of Transfer and Assignment. Upon consideration of and reliance upon the material representations made by Time Warner Entertainment- AdvancelNewhouse Partnership and Time Warner in its FCC 394 Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise and upon further consideration of the information contained therein together with the supplemental information and documents provided by Time Warner and Advance Newhouse in support thereof, the City of Winter Springs approves and agrees to the transfer and assignment of its cable franchise from Time Warner to Subsidiary, including any such other name Subsidiary, intends to conduct business thereafter. In its approval of the transfer and assignment, the City of Winter Springs recognizes that AdvancelNewhouse Partnership will manage the day-to-day operations of Subsidiary and will assume and be wholly responsible for providing quality cable services to the City of Winter Springs consistent with the terms and obligations of the existing month-to-month cable franchise agreement between Time Warner and the City of Winter Springs and thereafter upon the execution of a new cable franchise agreement. Furthermore, the City of Winter Springs acknowledges that it will approve the subsequent transfer and full control and ownership of Subsidiary to AdvancelNewhouse Partnership providing that full and continued compliance with the terms and conditions of the City's cable franchise agreement are satisfactorily met. Section 3. Separability. If any section, paragraph, subdivision, clause, sentence, or provision of this Resolution shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or nullify the remainder of this Resolution, but the effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or provision immediately involved in the controversy in which such judgment or decree shall be rendered. Section 4. Repeal of Prior Inconsistent Resolutions. All prior inconsistent resolutions adopted by the City Council are hereby repealed. Section 6. Effective Date: This resolution shall become effective immediately upon passage by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. Resolution 2002-38 City of Winter Springs Page 2 of 3 (' DONE AND ADOPTED in regular session of the City Commission of the City of Winter Springs, Florida this _ day of 2002. PAUL P. PARTYKA, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ANTHONY A. GARGANESE, City Attorney F: \Lawyerl VESICity of Winter Springs\winterspringsresolapproveca bletransfer. wpd Resolution 2002-38 City of Winter Springs Page 3 of 3 ~. ;' RESOLUTION NO. 2002-38 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, AUTHORIZING THE TRANSFER AND ASSIGNMENT OF ITS CABLE TELEVISION FRANCHISE FROM TIME WARNER ENTERTAINMENT COMPANY, L.P. TO TWEAN SUBSIDIARY, LLC; PROVIDING FOR SEVERABILITY; PROVIDfflG FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Winter Springs, Florida, ("City") received on or about July 22,2002, from Time Warner Entertainment, L.P. d/b/a Time Warner Cable ("Time Warner") a Federal Communications Commission Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise (FCC 394), wherein it desires to transfer and assign its interest in the City's cable franchise from Time Warner to a new wholly-owned subsidiary, Time Warner Entertainment-AdvancelNewhouse Partnership, TWEAN Subsidiary LLC ("Subsidiary"), in order to continue the provision of cable services to the citizens of Winter Springs; and WHEREAS, it is the intent of the transfer and assignment for Subsidiary to continue to provide cable services in accordance with the terms and obligations set forth under the cable franchise agreement entered into between the City and Time Warner, which expired, pursuant to an extension of its original term by adoption of Emergency Ordinance 2001-60, on March 31, 2002, but has remained in effect on a month-to-month basis consistent with the Cable Communications Policy Act of 1984 and the Telecommunications Act of 1996; and WHEREAS, it is the further intent of the City to transfer and assign its cable franchise to Subsidiary in accordance with the submitted FCC 394, providing it with those limited rights and entitlements as Time Warner may have as it operates the City's cable franchise on a month-to-month basis until a new cable franchise agreement is executed; and WHEREAS, the City Commission deems it to be in the best interests of the health, safety, and welfare of the citizens ofthe City to grant and approve Time Warner's application to transfer and assign its interest in the City's cable franchise to Subsidiary. Resolution 2002-38 City of Winter Springs Page I of 3 I! NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA, AS FOLLOWS: Section 1. resolution. Recitals. The foregoing recitals are affirmed and incorporated as part of this Section 2. Approval of Transfer and Assignment. Upon consideration of and reliance upon the material representations made by Time Warner and Subsidiary in their FCC 394 Application For Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise and upon further consideration of the information contained therein together with the supplemental information and documents provided by Time Warner and Subsidiary in support thereof, the City approves and agrees to the transfer and assignment of its cable franchise from Time Warner to Subsidiary, including any such other name in which Subsidiary intends to conduct business thereafter. In its approval of the transfer and assignment, the City recognizes that Advance/Newhouse Partnership will manage the day-to-day operations of Subsidiary and will assume and be wholly responsible for providing quality cable services to the City consistent with the terms and obligations of the existing month-to-month cable franchise agreement between Time Warner and the City and thereafter upon the execution of a new cable franchise agreement. Furthermore, the City acknowledges that it will approve the subsequent transfer of full control and ownership of Subsidiary to Advance/Newhouse Partnership providing that full and continued compliance with the terms and conditions of the City's cable franchise agreement are satisfactorily met. Section 3. Severability. Ifany section, clause, phrase, word, or provision is for any reason held invalid or unconstitutional by a court of competent jurisdiction, whether for substantive or procedural reasons, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions of this resolution. Section 4. Repeal of Prior Inconsistent Resolutions. All prior inconsistent resolutions adopted by the City Commission are hereby repealed. Section 5. Effective Date. This resolution shall become effective immediately upon passage by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. Resolution 2002-38 City of Winter Springs Page 2 of 3 : DONE AND ADOPTED in regular session of the City Commission of the City of Winter Springs, Florida, this 11 th day of November 2002. O-LUACES, City Clerk S TO FORM AND CIENCY: A THO NY A. GARGANESE, City Attorney F:\Lawyer\ VES\City of Winter SpringsIResolution\CableFranchise. wpd Resolution 2002-38 City of Winter Springs Page 3 of 3