06-11-2014 Council Agenda - Laserfiche WebLink

Home Browse Search

May 23, 2014 Page 11 Formal franchise renewal process being unproductive—the NSCC, with one dissenting vote from the commissioner representing Shoreview, voted to recommended that the cities preliminarily deny Comcast's formal renewal proposal. II. Analysis of Cable Act requirements The NSCC cannot establish a basis for denial based on the four limited criteria under the Cable Act. All surveys agree that NSCC-area customers are satisfied with Comcast's service, and Comcast will continue offering those services in addition to several benefits to the NSCC and member cities including substantial PEG capital funding and four channels on its network for PEG usage. Comcast believes that, for these reasons, the NSCC's recommendation to deny Comcast's formal proposal is unreasonable. Each of the four criteria will be addressed in turn. A. Substantial compliance with material franchise terms The first criterion on which denial of renewal can be based is whether "the cable operator has substantially complied with the material terms of the existing franchise and with applicable law" The NSCC's May 15 resolution did not base a denial on this reason and this cannot be a ground for denial for many reasons—including because the Cable Act requires that the NSCC first provide formal notice and an opportunity to cure for any purported noncompliance. Here, over the entire twelve years of Comcast's operation of the franchise, the only outstanding notices of any alleged franchise violation on record is one issued January 10 and one on May 5, both of this year These notices were untimely and prextextual attempts to justify a renewal denial. Nothing that the NSCC has raised as a potential franchise violation represents an alleged substantial non-compliance with a material term of the franchise. A "material" breach must, at minimum, be a departure from the franchise that "pervaded the whole of the [franchise agreement] or have been so essential as substantially to defeat the object that the parties intended to accomplish.."6 B. Comcast's service quality The second criterion is the "quality of the operator's service." Any evaluation under this criterion must consider service under the entire life of Comcast's operation of the franchise. Again, the NSCC did not apparently Cab/evi.riortSys. Corp. v. Tom of L. 1iwuplon, 862 P. Supp. 875, 885 (13.D.N.Y. 1994)