HomeMy WebLinkAbout#02 - Cable IssuesSTAFF REPORT
DATE: February 11, 2020
DISCUSSION
AGENDA ITEM: Ramsey Washington Suburban Cable Commission Updates
TO: Mayor and Council
SUBMITTED BY: Kristina Handt, City Administrator
ISSUE BEFORE COUNCIL:
What questions does the Council have regarding denial of the Comcast proposal, a franchise extension, etc
related to the Ramsey Washington Suburban Cable Commission?
PROPOSAL DETAILS/ANALYSIS:
As the Mayor had mentioned at the previous Council meeting, the Ramsey Washington Suburban Cable
Commission (RWSCC) is still at odds with Comcast over a franchise agreement renewal. Tim Finnerty,
the executive director of RWSCC provided the cover letter, resolution to deny comcast’s response to the
commission’s request for proposals, and a franchise extension until March 31, 2020 that are included in
your packet. City staff has been asking for a simple summary of where the two parties are at odds for the
last couple months but have not received such a summary so the details are still unclear to us about exactly
where the parties differ.
Council will not be asked to make a decision on this issue at the work session. The item that is most time
sensitive is the franchise extension. Without the extension to March 31, 2020, the current agreement expires
at the end of February.
Staff is seeking feedback from the council at this point so we can prepare the necessary actions for the
February 18th meeting.
For further background information on the commission itself, staff has included a copy of the joint powers
agreement from 1995. Since that time Maplewood and Vadnais Heights have withdrawn from the
commission.
ATTACHMENT:
• Ramsey Washington Suburban Cable Commission Joint Powers Agreement
• Cover Letter from Tim Finnerty, Ex Dir RWSCC
• Preliminary Assessment Resolution
• Franchise Extension
FINAL
RAMSEY/WASHINGTON COUNTIES SUBURBAN
CABLE COMMUNICATIONS COMMISSTON II
JOINT AND COOPERATIVE AGREEMENT
FOR THE ADMINISTRATION OF CABLE COMMUNICATIONS FRANCHISES
The parties to this Agreement are governmental unirs of the State of Minnesota. This
Agreement supersedes any prior agreement berween the parties covering the establishment of a
cable communications commission and is made pursuant to Minnesota Statutes $471.59, as
amended. The Commission established herein shall for all purposes be considered the successor
and assignee of the Ramsey/Washington Counties Suburban Cable Communications Commission.
I. PURPOSE
The general purpose of this Agreement is to establish an organization to monitor the
operation and activities of cable communications, and in panicular, the Cabie Communications
System ("System") of the Members; to provide coordination of administration, enforcement, and
renewal of the franchises of Members for their respective System; to promote, coordinate,
administer and develop community cable television programming; and to conduct such other
activities authorized herein as may be necessary to insure equitable and reasonabie rates and
service levels for the citizens of the Members.
II. NAME
The name of the organization is the Ramsey/Washington Counties Suburban Cable
Communications Commission II, d/b/a the Ramsey/Washington Counties Suburban Cable
Communications Commission.
III. DEFINITIONS
Section l. Definitions. For purposes of this Agreement, the terms defined in this Article
shall have the meanings given them.
Section 2. "Board of Directors" or "Board" means the governing body of the
Commission.
Section 3. "Commission" means the organization created pursuant to this Agreement.
Section 4. "City" or "Cities" or "lvlunicipalities" means any city or township.
Section 5. nDirector" means a person appointed by a Member to be one of its
represenBtives on the Commission.
Section 6. "Grantee" means the entiry providing teiecommunications services to a
Member pursuant to a valid franchise granted by a Member.
Section 7. "Member" or "Member Municipality" means a municipality which enters into
this Agreement and is, at the time involved, a Member in good standing.
IV. MEMBERSHIP
Section 1. The municipalities of Birchwood Village, Dellwood, Lake Elmo, Mahtomedi,
Maplewood, North St. Paul, Oakdale, Vadnais Heights, White Bear Lake, White Bear Township,
Willernie, and Grant Township are eligible to be initial Members of the Commission. Each
Member shall grant a cable communications franchise which shail at the inception of the
Commission be the cable communications franchise then held by the RamseyAVashinglon
Counties Suburban Cable Communications Commission and thereafter the same franchise as the
other Members.
Section 2. Any lvlunicipality geographically contiguous !o any of the lvtunicipalities
named above, and served by a cable communications system through the same Grantee, may
become a lvfember Dursuant to the tenns of this Asreement.
Section 3. Anv municipaliry desiring to become a lvlember shail execute a copy of this
Agreement and conform to all requiremenrs herein.
Section 4. The initial lvlembers shail be those Municipaiities listed in Section I of this
Article V who have executed a copy of this Agreement on or before October 15, 1995.
Section 5. Municipaiities desiring to become Members after the date qpecified in Article
IV, Section 4 may be admitted by an affirmative vote of r'wo-thirds (213) of the authorized vores
of the Members of the Commission. The Commission may, by resolution, impose conditions
upon the admission of additionai Members.
V. DIRECTORS
Section 1. Each Member shail be entitled to one (1) Director to represent it on the
Commission. Each Director is entitled to vote in direct proportion to the percent of annuai
revenues atrributable to the municipaliry represented by the Director to the total annual revenues
of the system for the pnor year rounded to the nearest whole number; provided, however, that
each Director shall have at least one vote. For the purposes of this section, the annual revenues
for each Member and the total annual system revenues as of December 31 of each year shall be
determined by the records of the cable operator fiied with the Commission with the franchise fee.
Prior to the first Commission meeting in lvlarch of each year, the Secretary of the Commission
shall determine the number of votes for each lvlember in accordance with this section and certify
the results to the Chair.
Section 2. A Director shall be appointed by resolution of the Council of each Member.
A Member shail notify the Commission office in writing of the appointment of any Director.
A Director shail serve until a successor is appointed and quaiifies. Directors shall serve without
compensation tiom the Commission, but this shall not prevent a Member from compensating a
Director if such compensation is authorized by law. Directors shall serve at the pleasure of the
Member.
Section 3. Each Member shall appoint at least one a.lternate Director which may exercise
all powers of a Director, in the absence of the Director. at any meeting of the Commission. A
Member shall notify the Commission office in writing of the appointment of any alternate
Director. The Commission, in its By-Laws, may prescribe the extent of an alternate's powers
and duties.
Section 4. A vacancy in the office of Director wiil exist for any of the reasons set forth
in Minnesora Statutes Section 351.02, or upon a revocation of a Director's appointment duly
filed by a Member with the Commission. Vacancies shall be filled by appointment by the
council of the Member whose position on the Board is vacant.
Section 5. There shall be no voting by proxy, but all votes must be cast by the Director
or the duly autliorized alternate at a Commission meeting.
Section 6. The presence of a majorir,v of the Directors representing a majoriry of the
total authorized votes of all Directors shall constitute a quorum, but a smaller number may
adjourn from time to time.
Section 7. All official actions of the Commission must receive two'thirds (2/3) of all
authorized votes cast on that issue at a duly constiruted meeting of the Commission and the
affirmative vote of a majoriry of the total appointed Directors or six (61 Directors, whichever
is less. Abstentions shall not be considered authorized votes cast.
VI. OFFICERS
Section i. Number/Election. The officers of the Commission shall consist of a Chair,
a Vice Chair, a Treasurer and a Secreury, ail of whom shall be elected at the first meeting of
the Commission, and thereafter, at the annual meeting of the Commission held in November of
each year. New officers shall take office at the adjournment of the annuai meeting of the
Commission at which they are selected.
Section 2. Chair/Vice Chair. The Chair sha.ll preside at all meetings of the Board and
Executive Committee and shall perform all duties incident to the office of Chair, and such other
duties as may be delegated by the Commission. The Vice Chair shall act as Chair in the absence
of the Chair.
Section 3. Secretary. The Secretary shall be responsibie for the keeping of records of
all of the proceedings of the Commission and Executive Committee. The Secretary shall send
written notice and material pertaining to agenda items to each Director at least five (5) days prior
to the meetinss.
Section 4. Treasurer. The Treasurer shall be responsible for custody of the
Commission's funds, shall pay its biils, shall keep its financial records and generaily conduct the
financial affairs of the Commission and for such other matters as shall be delegated by the
Commission- In conductins the Commission's financial affairs, the Treasurer shall, at ail times,
act in accordance with generaily accepted accounting principles. The Commission shall require
that the Treasurer post a fideiitv bond or other insurance against loss of Commission funds in
an amount approved by the Commission, at the expense of the Commission. Said fidelity bond
or other insurance may cover all persons authorized to handle funds of the Commission.
A vacancy in the office of Chair, Vice Chair, Secretary or Treasurer sha.li occur for any
of the reasons for which a vacancy in the office of a Director shall occur. Vacancies in rhese
offices shall be fiiled by the Commission for the unexpired porrion of the term.
Section 5. Executive Comminee. There shall be an Executive Committee which shail
consist of the four (4) officers of the Commission. To the extent specificatly delegared by the
By-Laws or resoiution of the Commission, the Executive Comminee shail have the authority to
manage the business of the Commission during intervals befween meetings of the Commission.
The Executive Committee shall meet at the cail of the Chair or upon the cail of any other two
(2) Members of the Executive Committee. The date and place of the meeting shall be fixed by
the person or persons calling it. At least fony-eight (48) hours advance written notice of a
meeting shail be given to all Members of the Executive Committee by the person or persons
calling the meeting, however, notice may be waived by any or ail lvlembers who acrually anend
the meeting or who have given a written waiver of such notice for a specified meeting. Three
(3) officers present at'any meeting shail constitute a quorum of the Executive Committee. All
official actions of the Executive Committee must receive the affirmative vote of a majoriry of
those officers present and voting at a duly constituted meeting of the Committee.
VII. MEETINGS
Section 1. By-Laws. At the first meeting of the Commission, the Commission shall
adopt By-laws governing its procedures. including the time, piace, notice for and frequency of
its regular meetings, the procedure of calling special meetings and such other matters as are
6
required by this Agreement.
VIII. POWERS. RIGHTS AND DUTIES OF THE COMMISSION
Section 1. The power and duties of the Commission shall inciude the powers set forth
in this Article.
Section 2. The Commission may make such contracts, grants. and rake such other action
as it deems necessary and appropriate to accompiish the general purposes of the organization.
The Commission may not contract for the purchase of reai estate without the prior authorization
of the Member lvlunicipalities. Any purchases or contracts made shall conform to the
requirements applicable to lvlinnesota starutory cities.
Section 3. The Commission shall assume all authoriry and undertake ail tasks necessary
to coordinate, administer, enforce, and renew the Franchise of each Member except for that
authority retained by a lvfember as the franchising authority.
Section 4. The Commission shall continuaily review the operation and performance of
the cable communications system of the Members and prepare annual reports to the Members.
Section 5. The Commission shall undertake all procedures necessary to maintain uniform
rates and to handle applications for changes in rates for the service provided by the Grantee.
Section 6. The Commission may provide for the prosecution, defense, or other
participation in actions or proceedings at law in which it may have an interest, and may employ
counsel for that purpose. it may employ such other persons as it deems necessary to accomplish
its powers and duties. Such employees may be on a full-time, part-time or consulting basis, as
the Commission determines, and the Commission may make any required employer contributions
which local governmental units are authorized or required to make by iaw.
Section 7. The Commission may conduct such research and invesdgation and take such
action as it deems necessary, inciuding participation and appearance in proceedings of State and
Federai reguiatory, legisiative or administrative bodies, on any matter reiated to or affecting
cabie communications or telecommunications as such technoiogies may deveiop over time.
Section 8. The Commission may obuin from Grantee and from any other source, such
information relating to rates, costs and service levels as any lvlember is entitled to obtain from
Grantee or others.
Section 9. The Commission may accept gifts, apply for and use grants, enter into
agreements required in connection therewith and hold, use and dispose of money or property
received as a eift or srant in accordance with the terms thereof.
Section 10. The Commission may delegate authority to its Executive Comminee. Such
delegation of authority shall be by resolution of the Commission and may be conditioned in such
a manner as the Commission may determine.
Section 11. The Commission shail adopt By-Laws which may be amended from time to
time.
Section 12. Th'e Commission is hereby delegated primary responsibiliry for community
cable televisioir programming within or for the geographic area of the Member of the
Commission, provided however that nothing herein shall prevent a Member from aiso providing
additionai government and communiry programming. Should any Member withdraw from the
Commission, the withdrawing Member shall assume all responsibility for communiry cable
television programming within or for the geographic boundaries of the withdrawing municipaliry,
as more specifically delineated in Article X, of this Agreement.
Section 13. The Commission may designate an entity or entities to perform any functions
rhe Commission deems necessary relative to the Commission's responsibiliry for communiry
programming. The Commission may provide funds, support services. and the use of equipment
and propeny to the designated entiw.
Section 14. Other Actions. The Commission may exercise any other power necessary
and incidental to the implementation of its powers and duties.
IX. FINANCIAL MATTERS
Section 1. Fiscal Year. The fiscal year of the Commission shall be the calendar year.
Section 2. Expendirure of Funds. Commission funds may be expended by the
Commission in accordance with the procedures established by law for the expenditure of funds
by lvlinnesota Statutory Cities. Orders, checks and drafts must be signed by any two of the
officers. Other legal instruments shall be executed with authoriry of the Commission, by the
Chair and any other officer . Contracts shall be let and purchases made in accordance with the
procedures estabiished by law for Minnesota Statutory Cities.
Section 3. Franchise Fees. This Agreement contemplates that franchise fees shall be paid
by Grantee to the Commission (subject to Arricle X, Section 3, Withdrawal, herein) and such
fees shall be sufficient to defray the operating expenses and any other necessary expenses of the
Commission. The franchise ordinances shail provide that the Commission shall collect all
franchise fees paid by the cable communications company. The franchise ordinances shall
provide that franchise fees collected in excess of the amount needed for the annual budget of the
Commission shall be redistributed to the then existing lvlembers according to a formuia using a
proportionate share of the total gross revenues derived from each of such Member.
Section 4. Budget Process. A proposed budget for the ensuing caiendar year including
a clear accounting of anticipated carry-over and projected reserves shall be formulated by the
Commission and submined to the lvlembers on or before August i. Such budget shail be deemed
approved by a lvtemberunless. prior to October 15, preceding the effective date of the proposed
budget, the lv{ember gives notice in writing ro the Commission that it is withdrawing from the
Commission. Finai action adopting a budget for the ensuing calendar year shall be tahen by the
Commission on or before December 1 of each year.
Section 5. Annuai Audit. The Commission's financial books and records shall be audited
on or before July 1, or at such other times as the Commission may direct, by an independent
auditor designated and approved by the Commission. The result of the audit shall be reported
to the lvlembers. The Commission's books and records shall be available for and open to
examination by the Members and the general public at any and all reasonable times.
Section 6 Annual Report. The Commission shall submit an annuai report to each
lv{ember. This report shall contain the results of the annual audit. a summary of the past year's
activity and a discussion of the Commission's plans for the coming year. The report shall be
submined to each Member on or before Auqust 1 of each vear.
X. DURATION/WITHDRAWAL
Section i. Duration. The Commission shall continue for an indefinite terrn unless the
number of Members shail become less than six. The Commission may also be terminated by
mutual aqreement of all of the lvlembers at any time.
Section 2. BudgC:t Approval. in order to prevent obligation for its financiai contribution
10
to the Commission for the ensuing year, a lvlember shail withdraw from the Commission by
filling a wrinen notice with the secretary by October 15 of any year giving notice of withdrawal
effective at the end of that calendar year; and membership sha.ll continue untii the effective date
of the withdrawai. Prior to the effective date of withdrawal a notice of withdrawal may be
rescinded at any time by a Member. If a lvlember withdraws before dissolution of the
Commission, the Member shall have no claim against the assets of the Commission. A lvlember
withdrawing after October 15 shall be obiigated to contribute its entire proportion of the
Commission's budget for the ensuing year as outlined in the budget of the Commission.
Section 3. Withdrawal. Should any lv{ember withdraw from the Commission, Grantee
shall pay directly to the Member the withdrawn Member's portion of the franchise fee.
During the term of the current franchise, the Commission will continue to receive the
community programming/operating grant and the equipment grant and continue to provide
community programming to ail Members. whether current or withdrawn. The Commission wiil
study and report as part of its recommendation to the Members, for a proposed franchise renewal
by each Member, how to ailocate (if at all) communiry programming resources to any Member
who may withdrawn from the Commission subsequent to renewal .
Section 4. Dissolution. In the event of dissolution, t}re Commission shall determine the
measures necessary to affect the dissolution and shall provide for the taking of such measures as
promptly as circumstances permit, subject to the provisions of this Agreement. Upon dissolution
of the Commission, all remaining assets of the Commission, after payment of obligations, shall
be distributed among the then existing Members in proportion to the most recent lvlember-by-
lv{ember breakdown of the t'ranchise fee as reooned bv the Grantee. The Commission shall
11
continue to exist after dissolution for such period, no longer than six months, as is necessary to
wind up its affairs but for no other purpose. After dissolution, ail initial lvlembers of the
Commission shail receive their pro rata share of any annual and lump sum payments made by
the cabie company pursuant to the franchise ordinances and any other Agreements associated
therewith.
XI. EFFECTIVE DATE/AMENDME}.TT
Section 1. Execurion of Agreemenr. A lvlunicipality may enter into this Agreement by
resolution of irs councii, and the duly authorized execution of a copy of this Agreement.
Thereupon, the clerk or other appropriate officer of that municipaliw shall fiie a duly executed
copy of this Agreement. together with a certified copy of the authorizing resolution with the
Commission. The resoluiion authorizing the execution of this Agreement shail also designate *te
Director and alternate for that Member. along with their addresses and teieohone numbers.
Section 2. Amendment. Any Member or the Commission may propose an amendment
to this Agreement by the submission of such an amendment, in writing, to all then current
Members. Any such amendment shall not be effective until the wrinen amendment is adopted
by the governing board of ail current lvlembers.
Section 3. Effective Date. This Agreement is effective upon approval of the trvelfth
(12tn) municipalitv currently a Member of the predecessor commission, provided such approvai
of all twelve (12) municipalities @curs on or before September, 1, 1995, in which case the
predecessor commission shail meet for the last time, dissolve itself and transfer all assets,
contracts, and other legal obiigations to the successor Commission created herein. If on
September 1, 1995, eight (8) or more municipalities have approved this Agreement. but not all
12
nrrelve (12) rnunicipalities, then the predecessor commission shall meet, dissolve itself and
transfer all assets, contracts, and other legai obligations to the successor Commission created
herein. Any municipaliry which has not adopted this Agreement upon the dissolution of tire
predecessor commission shail have forty-five (45) days from said dissolution to adopt this
Agreement and become an originai iVlember of the Commission created herein. Anv municipality
joining the Commission after this forty-five (45) day period may still become a Member, subject
to any terrns and conditions imposed upon said municipality by the Commission.
Section4. Previous Asreement Suoerseded. This Aqreement. wheneffective. supersedes
all previous Agreements befween the lvlembers hereto establishing a joint cable communications
commission.
IN WITNESS WHEREOF, the
be signed on its behalf this _ day
C:\CLIENTS\RwSCC\AGREE.0 I A
undersi gned municipalityhas
of
caused this Agreement to
1995.
Municipality of
By
Its:
By
Its:Menaseri Clerk
IJ
M E M O R A N D U M
February 4, 2020
TO : Kristina Handt, City Administrator, City of Lake Elmo
FROM : Tim Finnerty, Executive Director, Cable Commission
SUBJECT : Recommendation for Preliminary Assessment that the Comcast of
Minnesota, Inc., Cable Franchise Should Not Be Renewed
____________________________
Please find attached the recommendation of the Cable Commission that the City adopt a preliminary
assessment that the cable franchise with Comcast should not be renewed.
It's important that this recommended action represents a PRELIMINARY ASSESSMENT. It is not a
FINAL decision. This will simply trigger the next step, which is an administrative hearing that gives
Comcast a fair opportunity, right to introduce and produce evidence, and question witnesses. That's what
the federal law calls for. It's designed to provide due process to the parties, including Comcast. And it
will determine what is reasonable and what is not reasonable under the law.
The attached documents include:
Analysis of Comcast’s proposal, including the grounds for the preliminary assessment. The
statement is not intended to lay out all the problems with the Comcast proposal, but is instead
meant to provide enough information for the Member Municipalities to understand why the Cable
Commission has found that the proposal is not adequate to support renewal at this point.
A recommended Resolution to Member Municipalities for adoption that issues a preliminary
assessment that the franchise should not be renewed .
Recommended rules for conducting an administrative hearing for Comcast of Minnesota, Inc.,
franchise renewal. The rules are to be applied to ensure that Comcast is afforded a fair
opportunity for full participation, including the right to introduce evidence, to require the
production of evidence and to question witnesses.
The recommended hearing rules include a timeline for the schedule of proceedings, which
assumes that all the member communities act on the Cable Commission’s recommendation by
March 10. The Cable Commission may be able to move faster if the communities act more
quickly.
It is important to note that other documents are referenced, but not contained, within the attachments,
include the following:
The Commission’s Request for Renewal Proposal (RFRP) issued to Comcast in October, 2019;
and Comcast’s response in December, 2019, to that RFRP.
MEMORANDUM
PAGE TWO
These documents are available for public inspection at the Commission office, and can also be found at
the following link: https://drive.google.com/drive/folders/1gaFIAPBPFiTrjRW5WXGX8LwBrOmG4ji9
Also available at this link are the following:
A December 30, 2019, letter from Mr. Joe Van Eaton (representing the Cable Commission) to Mr.
Anthony Mendoza (representing Comcast) regarding Comcast’s response to the RFRP, as well
as Mr. Mendoza’s January 10, 2020 reply to that letter.
A January 30, 2020, letter from Mr. Anthony Mendoza (representing Comcast) to the Cable
Commission.
An alternative draft resolution in the event your community wishes to accept Comcast’s proposal.
The Cable Commission DOES NOT recommend, but makes it available for your convenience if
applicable.
Finally, the discussion of the grounds for the preliminary assessment refers to a financial analysis by
consultant to the Cable Commission, Garth Ashpaugh. That report is confidential, but can be made
available to authorized municipal officials – but the confidentiality of the specific information in that report
should be respected. To make arrangements to view this material, please contact me.
Please contact me with any questions. Thank you.
Executive Summary of Grounds for Preliminary Assessment that
Comcast Cable Franchise Should Not Be Renewed
Each community would be deciding whether to issue a preliminary assessment that the
franchise should not be renewed. The communities would then conduct a formal hearing
through the Cable Commission before making a final renewal decision.
1. Under the Cable Act, an operator’s request for renewal can be denied unless an
operator “has substantially complied with the material terms of the existing franchise and with
applicable law;” and “the quality of the operator ’s service, including signal quality, response to
consumer complaints, and billing practices, but without regard to the mix or quality of cable
services or other services provided over the system, has been reasonable in light of community
needs.” The needs review showed that Comcast:
Failed to satisfy customer billing requirements.
Failed to properly maintain the system, and failed to devise an effective system for
identifying and correcting maintenance problems.
(Separately, the company failed to provide information required by the renewal
application form, and failed to respond to questions about its proposal or to pay
application fee in connection with renewal application process).
2. Under the Cable Act, an operator’s request for renewal can be denied unless an
operator has the financial, legal, and technical ability to provide the services, facilities, and
equipment as set forth in the operator ’s proposal. In addition, to be legally qualified, the
company must accept legal conditions locality has a right to impose.
Cases suggest the refusal to correct maintenance problems (sloppy placement on poles,
open boxes, wires on ground) indicates a company may not satisfy the technical
standard.
Comcast refused to accept conditions that may be imposed as a condition of issuance of
a franchise, and requires communities to accept conditions which they are not required
to accept.
Comcast will not provide a local customer service office – its closest offices are a
significant distance from subscribers. It did not agree to customer service conditions the
communities may impose.
Comcast does not agree to pay full 5% franchise fee permitted by law; and it also does
not preserve right to assess fees on non-cable revenues, even if permitted by state and
federal law.
Executive Summary
Page 2 of 3
Company insists on one-way, level playing field clause that is likely to require you to
either give up franchise benefits, or deny franchises to others.
Company insists on incorporating an FCC Order, still under appeal, that would allow
reduction of franchise fees.
3. Lastly, a renewal may be denied unless “the operator ’s proposal is reasonable to meet
the future cable-related community needs and interests, taking into account the cost of meeting
such needs and interests.” Among other things:
Comcast argues build out requirements are subject to a “needs and interest test.” It
does not agree to build-out conditions that will ensure its system is available to residents
and businesses throughout the communities.
While elsewhere, Comcast agrees to share the cost of extending its service to remote
areas, if subscribers (or developers) are willing to pay share in extension costs, Comcast
refuses to agree to cost-sharing in the RWSCC communities.
Comcast does not propose to upgrade its cable system.
The Cable Act allows localities to require operators to build “institutional networks” – part
of the cable system designed to provide advanced communications services to small
businesses, community organizations and other non-residential customers. An
institutional network already exists. However, Comcast will not agree to provide or
continue to provide an institutional network throughout the communities to serve local
businesses.
The Cable act allows localities to require an operator to provide capacity on an
institutional network for educational and government use. Instead, the company offers
to maintain existing connections at a cost of over $554,000 for a ten year period.
Comcast elsewhere has agreed to maintain much larger “dark fiber networks” for under
$15,000 annually, and normal market prices for dark fiber maintenance could be
one-tenth of the price Comcast proposed.
With respect to PEG, Comcast does not propose to maintain PEG channels with an
appropriate option for adding a Century College channel, for example; it does not agree
to terms that will ensure the quality of PEG that keeps pace with television technology,
(company proposes only two High Definition channels, while other local channels to
remain in old, standard definition format); it does not agree to
Executive Summary
Page 3 of 3
provide a facility for PEG throughout the franchise term; and it does not propose
adequate, other capital support going forward.
The Cable Commission’s RFRP suggested a support level of about $244,000, a
reduction of PEG support as currently structured. However, Comcast proposed just half
that amount and less (as a percentage of gross) than it provides in many communities.
It would make it more difficult, and perhaps impossible to produce many live events,
such as local high school sporting events.
RWSCC RESOLUTION 1
RESOLUTION NO. 2020-01
PRELIMINARY ASSESSMENT THAT THE COMCAST OF MINNESOTA, INC.
CABLE FRANCHISE SHOULD NOT BE RENEWED
WHEREAS, The Ramsey/Washington Counties Suburban Cable Communications
Commission II (hereinafter “RWSCC”) is a Joint Powers Commission organized pursuant to
Minn. Stat. § 471.59, as amended, and includes the municipalities of Birchwood, Dellwood,
Grant, Lake Elmo, Mahtomedi, North St. Paul, Oakdale, White Bear Lake, White Bear Township
and Willernie, Minnesota (“Member Municipalities”);
WHEREAS, the Member Municipalities enacted separate ordinances and entered into
individual agreements authorizing MediaOne North Central Communications Corp. to provide
cable service (collectively, the “Franchises”);
WHEREAS, as a result of several transfers of the Franchises, Comcast of Minnesota,
Inc. (“Comcast”) currently holds the Franchises in the Member Municipalities;
WHEREAS, a Joint Powers Commission organized pursuant to Minn. Stat. § 471.59 has
the statutory authority to “jointly or cooperatively exercise any power common to the contracting
parties [i.e., the Member Municipalities]”;
WHEREAS, the RWSCC was established by the Ramsey/Washington Counties
Suburban Cable Communications Commission II Joint and Cooperative Agreement for the
Administration of a Cable Communications Franchises (the “Joint Powers Agreement”), to
monitor Comcast’s performance, activities, and operations under the Franchises and to
coordinate, administer, and enforce the Member Municipalities' Franchises, among other things;
WHEREAS, Section 626(a)(l) of the Cable Communications Policy Act of 1984, as
amended (the “Cable Act”), 47 U.S.C. § 546(a)(1), provides that if a written renewal request is
submitted by a cable operator during the 6-month period which begins with the 36th month
before franchise expiration and ends with the 30th month prior to franchise expiration, a
franchising authority shall, within six months of the request, commence formal proceedings to
identify the future cable-related community needs and interests and to review the performance of
the cable operator under its franchise during the then current franchise term;
WHEREAS, Comcast invoked the formal renewal procedures set forth in Section 626 of
the Cable Act, 47 U.S.C. § 546;
WHEREAS, the Joint Powers Agreement empowers the Commission and/or its
designee(s) to conduct the Section 626 formal franchise renewal process on the Member
Municipalities’ behalf and to take such other steps and actions as are needed or required to carry
out the formal franchise renewal process;
RWSCC RESOLUTION 2
WHEREAS, the Commission commenced formal franchise renewal proceedings under
Section 626(a) of the Cable Act, 47 U.S.C. § 546(a), and authorizing the Commission or its
designee(s) to take certain actions to conduct those Section 626(a) proceedings;
WHEREAS, RWSCC performed a needs assessment of the Member Municipalities’ and
their communities’ present and future cable-related needs and interests and has evaluated and
continues to evaluate Comcast’s past performance under the Franchises and applicable laws and
regulations, all as required by Section 626(a) of the Cable Act, 47 U.S.C. § 546(a);
WHEREAS, the Commission’s needs ascertainment and past performance review
included the Report on Cable-Related Needs and Interests and System Technical Review Within
the Ramsey Washington Suburban Cable Commission Franchise Area, dated August 30, 2017,
by CBG Communications, Inc.; Constance Ledoux Book, Ph. D., Telecommunications Research
Corporation; Carson Hamlin, Media Integration Specialist; and Issues and Answers Telephone
Research Firm (“CBG Report”); and in addition, the Commission reviewed its own files and
conducted certain investigations as to needs and interests and past performance, and drew upon
publicly available information regarding industry and area trends;
WHEREAS, based on its needs ascertainment and past performance review, RWSCC
staff prepared a “Request for Renewal Proposal for Cable Franchise” (“RFRP”) that summarizes
the Member Municipalities' and their communities’ present and future cable-related needs and
interests, establishes requirements for facilities, equipment and channel capacity on Comcast’s
cable system and includes model provisions for satisfying those requirements and cable-related
needs and interests; that identified past non-compliance issues, and provided Comcast a further
opportunity to correct them; and included a model franchise with terms and conditions;
WHEREAS, RWSCC and Comcast engaged in informal renewal negotiations pursuant
to 47 U.S.C. § 546(h) but are currently unable to arrive at mutually acceptable terms;
WHEREAS, RWSCC established November 11, 2019 as a deadline for Comcast’s
response to the RFRP;
WHEREAS, RWSCC and Comcast agreed to extend certain deadlines including the
deadline for Comcast to respond to the RFRP; and on or about December 13, 2019, Comcast
submitted to RWSCC its Response to Ramsey Washington Counties Suburban Cable
Communications Commission II’s Request for Renewal Proposal for Cable Franchise (“Comcast
Proposal”);
WHEREAS, RWSCC has carefully reviewed the Comcast Proposal and has
preliminarily considered whether:
(A) the cable operator has substantially complied with the material terms of the existing
franchise and with applicable law;
(B) the quality of the operator’s service, including signal quality, response to consumer
complaints, and billing practices, but without regard to the mix or quality of cable services or
other services provided over the system, has been reasonable in light of community needs;
RWSCC RESOLUTION 3
(C) the operator has the financial, legal, and technical ability to provide the services,
facilities, and equipment as set forth in the operator’s proposal; and
(D) the operator’s proposal is reasonable to meet the future cable-related community
needs and interests, taking into account the cost of meeting such needs and interests; and
WHEREAS, the RWSCC has preliminarily assessed the proposal and determined that
the proposal does not show that Comcast’s past performance justifies renewal; or show that
Comcast has the financial, legal and technical ability to provide the services, facilities and
equipment set forth in the proposal; and does not show that it is reasonable to meet future cable-
related needs and interests, in light of the costs of meeting those needs and interests; and
WHEREAS, RWSCC has proposed Rules for the Conduct of an Administrative Hearing,
attached hereto as Exhibit B, which rules are intended to comply with all procedural obligations
set forth in 47 U.S.C. § 546(c);
WHEREAS, the preliminary assessment and the rules will be referred to each of the
Member Municipalities for their adoption, and each of the Member Municipalities should take
action on the preliminary assessment and rules by April 13, 2020;
NOW, THEREFORE, BE IT RESOLVED BY THE RAMSEY WASHINGTON
CABLE COMMUNICATIONS COMMISSION II, THAT:
1.Each of the above recitals is hereby incorporated as a finding of fact by RWSCC.
2.RWSCC hereby issues a preliminary assessment that the franchise should not be
renewed. The basis for RWSCC’s preliminary assessment is set forth in Exhibit A. The
proposed rules for conduct of the proceeding are set forth in Exhibit B.
3.RWSCC recommends to the Member Municipalities that the Member Municipalities
issue a preliminary assessment that the Comcast Franchises should not be renewed, and
confirm that the hearing will be conducted for the community pursuant to the Rules set
forth in Exhibit B; and make it clear that the rules may be changed as necessary or
appropriate in the conduct of the proceeding.
4.RWSCC recommends that each of the Member Municipalities adopt a resolution in the
form of Exhibit C, Preliminary Assessment, but also provides an alternative resolution
that would approve the renewal proposal.
5.At any administrative hearing, the Rules for the Conduct of an Administrative Hearing
attached hereto as Exhibit B shall be applied to ensure that Comcast is afforded a fair
opportunity for full participation, including the right to introduce evidence, to require the
production of evidence and to question witnesses.
6.The administrative proceeding will commence immediately after any Member
Municipality adopts a resolution affirming this preliminary assessment and the procedural
Exhibit A 1
EXHIBIT A
ANALYSIS OF COMCAST’S CABLE PROPOSAL TO THE RAMSEY/WASHINGTON
COUNTIES SUBURBAN CABLE COMMUNICATIONS COMMISSION II
Exhibit A 2
PRELIMINARY ASSESSMENT OF THE COMCAST FORMAL PROPOSAL FOR
RENEWED FRANCHISES WITH THE RWSCC II MEMBER MUNICIPALITIES
A. Recommendation
The RWSCC should adopt, and recommend that its Member Municipalities issue a
preliminary assessment that the cable franchises (“Franchises”) issued to Comcast of Minnesota,
Inc. (“Comcast”) should not be renewed.
B. Federal Law Background
The Cable Communications Policy Act of 1984 (“Cable Act”) contemplates a three-stage
renewal process.1 In the first stage, a local franchising authority (“LFA”) identifies future, cable-
related community needs and interests and evaluates the cable franchisee’s performance during
the term of the franchise.2 Next, the LFA issues a Request for Renewal Proposal (“RFRP”) to the
incumbent cable operator. The operator has the opportunity to respond to this request by
submitting a proposal for renewal which must contain such material as the franchising authority
may require.3 Assuming it does so, and if the LFA issues “a preliminary assessment that the
franchise should not be renewed,” the operator is entitled to an administrative hearing on its
renewal proposal.4 The operator is afforded fair opportunity for full participation, including the
right to introduce evidence, to require the production of evidence, and to question witnesses. A
transcript shall be made of any such proceeding.5
Following the administrative proceeding, the LFA must “issue a written decision granting
or denying the proposal for renewal based upon the record of such proceeding, and … [s]uch
decision shall state the reasons therefor.”6
The renewal proceeding considers four statutory criteria. Specifically, the LFA considers
whether:
1.the cable operator has substantially complied with the material terms of the existing
franchise and with applicable law;
2.the quality of the operator’s service, including signal quality, response to consumer
complaints, and billing practices, but without regard to the mix or quality of cable
services or other services provided over the system, has been reasonable in light of
community needs;
3.the operator has the financial, legal, and technical ability to provide the services,
facilities, and equipment as set forth in the operator’s proposal; and
4.the operator’s proposal is reasonable to meet the future cable-related community needs
and interests, taking into account the cost of meeting such needs and interests.7
1 47 U.S.C. § 546.
2 See 47 U.S.C. § 546(a)(1).
3 47 U.S.C. § 546(b)(1).
4 47 U.S.C. § 546(c)(1), (2).
5 47 U.S.C. § 546(c)(2).
6 47 U.S.C. § 546(c)(3).
Exhibit A 3
The LFA must then issue a written decision either granting or denying the operator’s
renewal proposal. A final written decision by the LFA to deny renewal may be based on an
adverse finding on one or more of these four issues. The operator may appeal a final decision to
deny to state or federal court.
The focus of the renewal proceeding is the operator’s proposal. If inadequate, the
operator’s request may be denied, even if the operator expresses a willingness to offer something
different during the proceeding. It is bound by its proposal and its limits, and this memorandum
describes some of the issues with the Comcast Proposal, based on the preliminary assessment of
that proposal.
C. RWSCC/Local Actions/Comcast Submission
On October 4, 2019, the RWSCC issued its RFRP to Comcast. The RFRP, among other
things, identified specific needs and interests based in part upon the analysis prepared by CBG
Communications, Inc., and included specific instructions for Comcast to submit its renewal
proposal. The RFRP also contained a model for meeting certain of those needs and interests.
The RFRP was divided into several sections. Parts II A-C identified the communities’
future cable-related needs and interests. Part II.D identified past performance issues. The RFRP
states Comcast should satisfy the needs and interests identified, and address past performance
issues. We discuss Comcast’s response in detail below.
Part III provided Comcast a model for meeting needs and interests. Comcast was not
required to hew to the model, but the model provided the company a clear guide for meeting
needs and interests. The RFRP went on to state that if the company departed from the model, it
needed to justify the model and explain why its proposal satisfied local, cable-related needs and
interests. The company largely ignored this requirement, as well as requirements e.g., that it
provide detailed financial information if it claimed that its proposal was reasonable in light of
costs.
Part IV included a model franchise (“RWSCC Model”). The Cable Act requires the
company to enter into a franchise, and Part IV specified franchise terms, including customer
service and franchise fee provisions. The RFRP allowed a company to propose changes, but
noted that if it was unwilling to accept franchise terms, it would be legally unqualified to provide
the services, facilities, and equipment it proposed – even assuming those were adequate. The
RFRP made it clear that if the company was silent, it would be deemed a statement that the
company was not willing to accept the franchise. Comcast did not say it would accept the model
franchise, and submitted its own alternative (“Comcast Franchise”).
7 47 U.S.C. § 546 (c)(1)(A)-(D). A major legal issue in the renewal proceedings is likely to involve the proper
application of this statutory standard. Comcast argues that its proposal need only be “adequate” to meet future
cable-related needs and interests. RWSCC legal counsel believes that the proper standard for renewal is the express
statutory standard. While it is unclear whether Comcast believes its proposal satisfies a “reasonableness” test, the
analysis below would reach the same conclusion without regard to whether the relevant test is whether the proper
test is “adequacy” or “reasonableness.” The term “reasonable” or “reasonableness” is used throughout for
convenience, and because that is the term that appears in Section 626.
Exhibit A 4
The RFRP required Comcast to submit its response by November 11, 2019. This deadline
was subsequently extended, by agreement of RWSCC and Comcast, in order to allow more time
for negotiations aimed at reaching an informal settlement to continue. On December 13, 2019,
Comcast submitted its response to the RFRP.
D. Analysis
While required to provide such material as the franchising authority may require,
Comcast chose not to do so. Its failure to provide the information is in some cases based on legal
claims with which RWSCC disagrees, but in many cases the departure from the requirements are
unexplained, and creates burdens for the RWSCC and delays the renewal process. By letter
dated December 30, 2020, the RWSCC notified Comcast that its failure to submit the
information was both a violation of the franchise and a violation of the Cable Act, and Comcast
was given an opportunity to cure. Comcast did not cure, and in its submission on January 10,
2020 refused to provide most of the requested information.
While the information provided is incomplete, and that incompleteness could justify
termination of the renewal process or limitations on the information that may be presented by
Comcast in any renewal proceeding, the RWSCC has attempted to analyze the Comcast
Proposal, including the proposed Comcast Franchise.
As part of that review, the RWSCC retained the firm of Ashpaugh & Sculco (A&S) to
review the proposal by Comcast from a financial perspective, in light of the renewal standards
identified above. The report is confidential and cannot be made public. However, the main
findings may be summarized as:
•the failure to provide the financial information requests limited the ability of A&S
to analyze the proposal, BUT
•there is enough information to conclude that Comcast (at least as long as it
maintains its current assets and structure) is financially qualified within the
meaning of the Cable Act, and
•the company‘s operations generate significant revenues, enough so that the
company should be able to continue to provide at least the levels of support it is
providing for PEG now, as well as continuing to provide capacity on the
institutional network, and investing new capital into the RWSCC communities.
CBG reviewed the report, and likewise concluded that it does not reasonably satisfy the
needs and interests that it identified in its needs assessment report, and falls substantially short of
doing so. This is particularly true with respect to proposals for upgrade; for PEG capital support,
facilities and equipment; for PEG channels; for the institutional network, and for extension of the
system to portions of the RWSCC communities not now served by Comcast.
Based on these, and on its own review, staff concludes that the RWSCC should issue a
preliminary assessment that the franchise not be renewed, and recommend that each of the
Member Municipalities do the same. A proceeding should be commenced to consider whether
Exhibit A 5
the proposal satisfies each of the four requirements a proposal must satisfy in order to warrant
renewal, with one exception. Based on the A&S report, the financial qualifications of Comcast
to provide the services, facilities, and equipment as set forth in the operator’s proposal would not
be at issue, assuming the structure and assets of the company remain as set forth in the proposal.
Under the Cable Act, RWSCC is not required to detail the grounds for its preliminary
assessment. As a result, this report does not list in detail all of the apparent shortcomings of the
Comcast Proposal, nor all of the problems associated with Comcast’s past performance. Rather,
it identifies broadly the issues that will be in play during the renewal proceeding, provides
examples of why those are at issue, and identifies issues that are of particular moment. Issuing a
preliminary assessment that the Franchises should not be renewed will not prevent the parties
from reaching a renewal agreement by negotiation later.
Under the Cable Act, within four months of the submission of a renewal proposal an
LFA must either issue a preliminary assessment of non-renewal, or renew the franchise (unless
the parties agree to extend that time). In this case, the four months expires on roughly April 13,
2020. The RWSCC should take action by that date, and as a matter of caution, by that same date,
each Member Municipality should separately affirm the preliminary assessment and the grounds
therefore, and affirm the proposed procedures for the conduct of the proceeding. Alternatively,
the RWSCC could recommend, or a locality could choose to accept the Comcast proposal as
submitted.
Grounds for Preliminary Assessment that Franchises Should not be Renewed
A.Has Comcast Substantially Complied with the Material Terms of Its Franchise?
RWSCC preliminarily concludes that it has not. The violations include:
1.The needs assessment showed several problems with the cable system. RFRP at 10, Sec.
II(A); CBG Report, Ex. E1 and E2. Given the number of issues, and as part of the cure of
these problems, Comcast was required to conduct an orderly inspection and to improve
its existing system for identifying and correcting system problems; the RFRP indicated it
was not an acceptable cure to maintain the status quo. RFRP at 3, 10, Secs. I(B), II(A).
Comcast has not proposed an alternative method for compliance.
2.Comcast was being sued for fraudulent billing practices by the Minnesota Attorney
General. The company was notified that the billing practices alleged would violate the
franchise, as well as FCC rules, and put on notice that the practices should cease. The
Minnesota Attorney General has settled with Comcast, without resolving the issue of
whether Comcast in fact violated state law. The settlement will not result in correction
all of the billing practices to which the RWSCC objected. The settlement resolves certain
billing issues identified in the Attorney General’s lawsuit by requiring Comcast to obtain
affirmative informed consent from customers before customers are billed for any new
products. This requirement does not assure that bills will be clear, concise, and
understandable, as required under Section 5.2(b) of the Franchises. Comcast has not
corrected its practices, and failed to timely respond to a notice of violation. It did submit
Exhibit A 6
a letter in September, 2019, arguing that the litigation with the state provides no grounds
for finding a violation, but its letter did not contest the findings that its billing practices
violated federal law and the franchise – it made no effort to show that its practices
comply with those requirements.
3.The RWSCC noticed a violation of Comcast’s duty to provide information to the
RWSCC in response to the RFRP. Comcast responded, but its response does not justify
its failure to provide the required information.
4.Comcast has had notice of each of these violations, and neither the RWSCC or its
Member Municipalities has acquiesced in the violations, or agreed that Comcast’s actions
cure the defaults.
B.Has the quality of the operator’s service, including signal quality, response to consumer
complaints, and billing practices, but without regard to the mix or quality of cable
services or other services provided over the system, has been reasonable in light of
community needs?
RWSCC preliminarily concludes that it has not. The areas of default include the same
issues discussed in Section A above. Those are also relevant to this Section B,
particularly as to billing practices, and as to each, Comcast has been provided notice and
opportunity to cure, and has not done so.
Other problems identified in the needs assessment – such as the failure to maintain a local
office (RFRP at 20, Sec. II(C)) – might be properly considered under this section but
RWSCC intends to address them under item D.
C.Does Comcast have the financial, legal, and technical ability to provide the services,
facilities, and equipment as set forth in the operator’s proposal?
RWSCC preliminarily concludes Comcast does not have the legal or technical ability to
provide the services, facilities, and equipment as set forth in the operator’s proposal. The
issues include:
1.The failure to maintain the system properly (see discussion of system issues in
Section A.1.) is an indication that Comcast is either unwilling or unable to comply
with requirements for the placement of its system in the rights of way upon which
the RWSCC may insist. Similar past technical shortcomings have supported
denial in formal renewal proceedings. Rolla Cable System, Inc. v. City of Rolla,
761 F. Supp. 1398 (E.D. Mo. 1991).
2.As discussed above, and in the RFRP, Comcast is legally required to obtain a
franchise as a condition of placing its system in the rights of way and providing
services, and the Member Municipalities may insist on inclusion of certain
conditions in the franchise as a matter of right. RFRP at 6, Sec. I(C). These
conditions need not be based on any showing of need, although as the RFRP
Exhibit A 7
notes, there is a need for each provision. These include, for example, the right to
require the franchisee to pay a franchise fee equal to 5% of gross revenues derived
by a cable operator from the operation of the cable system to provide cable
service. 47 U.S.C. § 542. Rather than accepting the provision proposed in the
RFRP, the company proposes to pay less than the federal maximum 5%. Comcast
Franchise, Sec. 1. Not only are certain revenues excluded from the definition of
gross revenues, the Comcast Franchise inappropriately allocates revenues among
services. The failure to agree to pay a franchise fee equal to 5% of all gross
revenues, as permitted by the Cable Act alone would justify a preliminary
assessment that the Franchises should not be renewed.
3.There are many ways in which the Comcast Franchise departs from the model in
the RFRP that also justify the preliminary assessment. For example, the Cable
Act states that localities have the right to establish “customer service
requirements” of the cable operator and “requirements for customer service and
for constructions schedules and other construction-related requirements, 47
U.S.C. § 552. The RFRP required a customer service office in the RWSCC
service territories, RFRP at 20, Sec. II(C), and Comcast refuses to provide one.
Comcast Ex. 3, Item 2(B)(2)(b). Likewise, Comcast did not agree to customer
service conditions designed to protect consumers from billing fraud and
misleading billing practices (RWSCC Model, Sec. 9.3) – even though Comcast’s
own conduct suggests that there are good reasons to protect consumers.
As the RFRP describes, requirements for construction also are arguably
requirements that may be imposed unilaterally, and RWSCC preliminarily
concludes that Comcast’s proposal does not satisfy requirements in the RFRP for
build-out.8
Comcast also insisted on conditions that it does not have the right to require the
localities to accept as a condition of a franchise, and which are not in the interest
of the RWSCC to accept.
The Comcast Franchise, Sec. 18.16, includes a “competitive equity” provision of
the sort that the RFRP states was not acceptable. Minnesota state law contains a
clause that prevents a city from entering into “sweetheart deals” that favor one
franchise cable operator over another with respect to certain requirements. The
Member Municipalities will obviously comply with applicable state law. But
Comcast goes further, and states that if the City issues an “authorization” to be in
the rights of way to any company that provides “similar video programming
service,” Comcast can obtain relief from its obligations. Under federal law,
however, the City is expected to issue franchises to provide video programming to
open video systems (“OVS”), and by federal law, certain obligations cannot be
imposed on OVS that can be applied to cable systems. The FCC has
8 The RFRP did include these requirements within the needs and interest section of the RFRP as a matter of caution.
RFRP at 10-11, Sec. II(A). The RFRP also notes that each of the franchise requirements is justified by needs and
interests described in the RFRP, although a needs and interest analysis is not required. RFRP at 6, Sec. I(C).
Exhibit A 8
distinguished between obligations that can be imposed on new entrants and on
incumbents, and noted that treating the former like the latter can preclude
competition.9 Providers of wireless services may require an authorization to be in
the rights of way, and may provide video programming services wirelessly, but
FCC rules would prevent localities from charging a wireless provider a 5%
franchise fee, for example.10 Systems that provide video programming on a
common carrier basis are not subject to Cable Act requirements at all, even if a
local authorization is required to use the rights of way. See, e.g., 47 U.S.C. §§
571, 573. Comcast argues that the Commission has upheld the validity of
competitive equity clauses, but that does not mean that (a) such clauses are in the
interest of the community; or (b) a cable operator may require a locality to agree
to a competitive equity clause as a condition of issuing a franchise. Among other
things, because the clause goes far beyond what the State has considered
appropriate; and because of the potential anticompetitive effects, the insistence on
this clause may itself justify renewal preliminary assessment that the Franchises
should not be renewed.
The FCC recently issued an order declaring generally that all franchise
requirements are “in-kind” benefits and count against the franchise fee unless they
are (a) requirements that fall within exceptions to the franchise fee definition in
47 U.S.C. § 542, such as exceptions for capital requirements related to PEG
facilities, equipment and channels11 (PEG includes I-Net by definition); or
incidental requirements such as bonds; (b) customer service requirements; or (c)
build-out requirements (obligations to extend the system to provide service) or
customer service obligations. Comcast’s proposal appears to go beyond the FCC
order. It defines gross revenues to permit it to deduct the fair market value of all
“in kind” benefits (without defining that term, or including the exceptions in the
FCC order) (Comcast Franchise, Sec. 1). In addition, in several places the
Comcast Franchise “locks in” the FCC order, and and does not promise to satisfy
needs and interests in the event the FCC order is overturned. By contrast, the
model in the RFRP recognized the existence of the order, but addressed how the
order would apply while in force, and what Comcast’s obligations would be if the
order is overturned, or appealed. See, e.g., RWSCC Model, Secs. 3.3, 7.13, 7.14.
Similar problems appear in the scope of the Comcast franchise.
D.Is Comcast’s Proposal Reasonable to Meet the Future Cable-Related Community Needs
and Interests, Taking Into Account the Cost of Meeting Such Needs and Interests?
RWSCC preliminarily concludes Comcast’s proposal is not reasonable to meet future,
cable-related needs and interests, taking into account the cost of meeting such needs and
9 Implementation of Section 621(a)(1) of the Cable Commc'ns Policy Act of 1984 As Amended by the Cable
Television Consumer Prot. & Competition Act of 1992, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd. 5101, 5163, para. 138 (2007).
10 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., Declaratory Ruling
and Third Report and Order, 33 F.C.C. Rcd. 9088, 9112-13, para. 50 (2018).
11 Requirements for channel capacity do not count against the franchise fee.
Exhibit A 9
interests. A table submitted by the company, Comcast Proposal, Exh. 3 shows that
Comcast is not purporting to reasonably satisfy many needs and interest because it
contends it cannot legally be required to satisfy them. Outside counsel disagree with
those claims, and some of those disagreements are discussed below. Based on the
preliminary assessment, it appears, among other shortcomings that:
1.Comcast has failed to submit a proposal reasonable to meet the need and interest in a
cable system that includes equipment and facilities typical of a well-designed, state-of-
the-art cable system, and which will maximize consumer choices, and the need and
interest in a system upgrade. RFRP at 9-10, Sec. II(A). Comcast objects to the term
“state-of-the-art” as vague and without a specific and generally accepted meaning with
regard to cable systems. Ex. 3, Item 1. Comcast also claims that this requirement is
impermissible, based upon 47 U.S.C. § 544(e), in that it prohibits, conditions, or restricts
Comcast’s use of subscriber equipment or transmission technology in violation of federal
law. Id. Comcast’s complaint that “state-of-the-art” is vague appears unfounded given
that the RFRP provides objective measures, in addition to Model Franchise provisions,
that demonstrate how the “state-of-the-art” requirement may be satisfied. In addition,
Comcast’s application of 47 U.S.C. § 544(e) is erroneous, see Comcast Ex.. 3. Comcast
suggests that localities may not require upgrades or establish construction schedules. The
FCC has specifically stated that localities may require upgrade proposals in an RFRP, and
the statute specifically permits establishment of construction-related schedules. What
localities may not do is prescribe how the upgrade is to be performed. The RFRP does
not prescribe how or what equipment may be used in connection with the upgrade.
Rather, it gives Comcast the flexibility to use whatever technology it desires – including
technologies it is actually using in the Twin Cities area.
2.Comcast has failed to submit a proposal reasonable to meet the need and interest in
Comcast having an effective procedure in place and reporting process for identifying and
correcting system problems. RFRP at 10, Sec. II(A). The Comcast Model does not
contain a maintenance monitoring program, despite the specific finding by CBG
Communications, Inc. that RWSCC should require such a program. CBG Report at 139.
3.Comcast has failed to submit a proposal reasonable to meet the need and interest in a
cable system that passes all residences and businesses, except in cases where Comcast
can show that requiring build-out would not provide it a reasonable opportunity to earn
an adequate rate of return on the system as a whole. RFRP at 9, Sec. II(A). Comcast
mischaracterizes this need and interest as a universal service obligation, Ex. 3, Item 2, but
in any case, the law does not appear to prohibit universal service requirements. Comcast
conflates the rules that apply to new entrants (and are designed to prevent imposition of
unreasonable service area requirements as someone is entering the market) with
requirements that may be imposed on existing long-term incumbents. The FCC has
stated that limitation on build-out requirements for new entrants do not apply to
incumbent cable operators. While Comcast has proposed a build-out requirement that is
in some respects superior to that in the existing franchise, the proposal differs in at least
four significant respects from the RFRP model franchise. Each of these differences alone
would justify the preliminary conclusion that Comcast has not reasonably met the
Exhibit A 10
identified needs and interests, and that preliminary conclusion is only bolstered by the
absence of, for example, time limits for providing service to areas.
a.With respect to potential residential subscribers, the model required the system to
pass all dwelling units where density was 15 units per street mile. RWSCC
Model, Sec. 3.2.2. That is far below the density level proposed by Comcast.
Comcast Franchise, Sec. 6.7(a).
b.With respect to potential residential subscribers, the model proposed a build-out
with no line extension charge unless Comcast showed build-out was not feasible.
RWSCC Model, Sec. 3.2.2.
c.Perhaps as importantly, where build-out is too expensive for Comcast, the model
proposed to require Comcast to build-out and share the costs of the build-out with
potential subscribers. RWSCC Model, Sec. 3.2.2. For example, if there were 14,
instead of 15 residential dwelling units per mile, Comcast would pay 14/15 of the
extension costs, if subscribers were willing to bear the remainder. Under the
Comcast proposal, even if a customer was willing to share in build-out costs,
Comcast could refuse to serve subscribers in lower density areas, or charge a
potential subscriber the entire cost of the build-out. Comcast Franchise, Sec.
6.7(b).
d.The model included similar provisions with respect to service to non-residential
customers. RWSCC Model, Sec. 3.3. The proposed franchise does not require
Comcast to pass any non-residential units, and no commitments are made with
respect to build-out for service. Comcast Franchise, Sec. 6.7.
4.Comcast has failed to submit a proposal reasonable to satisfy the needs and interest in an
institutional network. RFRP at 11, Sec. II(A). The authority to require an institutional
network – a network designed to serve primarily non-residential customers is clear, and
Comcast has not even responded to that need and interest. The existence of an I-Net,
could, for example, ensure that small and large businesses have access to secure
connections that are capable of supporting a wide range of advanced services, including
high-speed Internet. RFRP at 19, Sec. II(B). No proposal is submitted in this regard.
5.Comcast has failed to submit a proposal reasonable to meet the needs and interests in
public, educational, and government (“PEG”) use of the cable system both as to needs
and interests related to capacity on an institutional network, or to related to capacity used
to distribute video programming to cable service subscribers (Channel 16 being an
example of PEG channel capacity). For convenience, the former are summarized in
subsection (a) while the latter are summarized in subsection (b).
a.The RFRP required Comcast to provide capacity and certain capital support for
educational and government use of an institutional network, at no charge to the
community, as permitted by 47 U.S.C. § 531. Comcast currently provides
capacity for an institutional network and it is actively used by the Member
Municipalities for critical applications. In this case, Comcast demands that
localities pay for access to existing capacity, at rates that are more like rates
charged for the provision of services (even though in this case, the only service
Exhibit A 11
that would be arguably provided is “maintenance).” Ex. 3, Item 14. Charging for
that capacity is not justified by cost to Comcast, and Comcast does not claim any
benefit to the community from charging for the capacity. Moreover, the proposal,
among other things, fails to reasonably address requirements for capacity as the
institutional network expands.
b.the Comcast Proposal fails to satisfy needs and interests identified for PEG. That
includes the needs and interests in channel capacity now or for the future; for PEG
channel quality (only two channels would be available in high definition, and
nothing ensures PEG channel quality would keep pace with the quality of other
channels); the need and interest in ongoing capital support for PEG and ongoing
PEG facilities; the need and interest in connections necessary to permit PEG
channels to be monitored to ensure that the signal is being properly transmitted;
the need and interest in having adequate capital connections for program
origination (for high school sports for example). RFRP at 12-16, Sec. II(B).
RWSCC preliminarily concludes that Comcast does not provide the number of
channels required to satisfy current and future needs; proposes no improvements
in quality despite changes in video technology, and proposes lower levels of
support than are provided now, and no guarantee that adequate facilities will
continue to be available. Comcast Proposal at 7; Comcast Franchise, Sec. 7.1. The
ability to produce remote programming would be limited, as existing capital
infrastructure deteriorates. Comcast appears to primarily justify its proposals on
three grounds. The first is that there is limited interest in PEG (Ex. 3, Item 5) –
but the CBG ascertainment shows otherwise, and CBG does not believe that the
contentions by Comcast to the contrary accurately reflect the need and interest in
PEG. Second, the proposal is based on the amount of original programming
carried on the channel, but this has little relation to the value of the programming,
or the quality of the signal required, as the CBG reports suggest. Lastly, Comcast
points to the RWSCC reserves and financial practices. Comcast Proposal at 19-
20. Those claims are disputed. For example, as the RFRP shows, the RFRP
identified significant additional capital as well as operational costs for the future
that are not addressed by the level of support in the RFRP model franchise. RFRP
at 14-16, Sec. II(B). The Member Municipalities will need to reserve those funds
for such purposes, and Comcast’s future obligations cannot be reduced based on
those reserves, or other concerns about RWSCC operations.
Each of the failures identified above, considered individually, or collectively: the failure
to reasonably meet needs and interest in a system upgrade; the need and interest in expanded
service to residences and businesses, the institution of a program to ensure that the system is
maintained in good order; the proposals with respect to institutional networks; and the proposals
with respect to public, educational, and government uses of the system would justify a
preliminary assessment not to renew the Comcast franchise.
Likewise, if measured under a “needs and interests” test, whether considered
individually, or collectively, Comcast’s refusal to pay the a 5% franchise fee on all revenues; as
permitted under the Cable Act; and its refusal to agree to the customer service standards in the
Exhibit A 12
RFRP model franchise would justify a preliminary assessment that the Franchises should not be
renewed, as would other proposed changes to the RFRP model franchise agreement.
CONCLUSION
The RWCC should determine, and recommend that its Member Municipalities make a
preliminary assessment not to renew the Comcast franchises and authorize the RWSCC to
commence an administrative proceeding to determine whether the Franchises should be renewed,
consistent with the Section 626 of the Cable Act, 47 U.S.C. § 546.
The RWSCC should also approve an alternative resolution for consideration by the
Member Municipalities, should any of them choose not to accept the recommendation. That
Resolution should provide for approval of renewal.
Exhibit B 1
EXHIBIT B
RULES FOR CONDUCTING ADMINISTRATIVE HEARING FOR COMCAST OF
MINNESOTA, INC., FRANCHISE RENEWAL
Exhibit B 2
Explanatory Note:
The attached rules hew closely to procedures that were adopted for formal proceedings that have
been noticed for other Minnesota communities, including the Northern Dakota County Cable
Communications Commission. The rules contain some additional detail as to the procedures that
will be followed, but substantively provide Comcast and the RWSCC communities the same
procedural rights. Because these procedures have largely been litigated, the RWSCC has good
reason to believe that these processes would be upheld if challenged by Comcast.
There is one significant departure from practices in other communities. Other communities have
asked the Minnesota Office of Administrative Hearings to appoint a hearing officer. Under the
attached model, RWSCC would appoint the hearing officer. Use of the OAH is not required by
law, and the concern is that the OAH would not be able to conduct or complete the proceeding in
accordance with the timetable set out in the proposed rules. In at least one recent case, it has
been more than a year since the preliminary denial, and a hearing will not occur until next Fall.
This would be of less concern if Comcast were willing to agree to a true “standstill” agreement
with the RWSCC communities with a date certain for extension, but so far it has been willing to
extend certain part of the agreements with the RWSCC communities, but not others.
The RWSCC therefore believes it is important to set out a process that allows for a rapid hearing
and a conclusion of the renewal proceeding. This can be done by appointing an independent
hearing officer. Case law suggests that the “hearing officer” could be, among others, the
RWSCC itself, a subcommittee of the RWSCC, or its counsel, Michael Bradley. However, it
appears important to have someone familiar with cable law conduct the case, and Mr. Bradley,
while qualified believes it better if he not serve as the sole hearing officer.
James N. Horwood, a partner with Spiegel & McDiarmid, has agreed to act as hearing officer,
His resume appears here: http://www.spiegelmcd.com/professionals/james-horwood/
Mr. Horwood has significant experience with cable renewals, having litigated one of the few
cases to have gone through the hearing process. He represents municipal governments and
access centers on cable issues, but none in Minnesota. Because this proceeding must comply
first and foremost with federal rules for renewal, he will be in a position to ensure that the
proceedings are conducted rapidly, and in an appropriate manner.
You should be aware that your outside counsel, Joseph Van Eaton, was a member of Mr.
Horwood’s firm, but left that firm more than 25 years ago. While occasionally Mr. Bradley, Mr.
Van Eaton and Mr. Horwood’s firm will file joint appeals of FCC orders or comments with the
FCC, neither Mr. Horwood or his firm have participated in this renewal proceeding in any way.
While we are not asking that the RWSCC approve the appointment of Mr. Horwood now, and
we may propose additional alternatives, it is important for the Commission to understand that, if
the rules are approved, we do have a person who can conduct the proceeding. Under the
attached process, a hearing would occur in early June. A final decision would be made by the
local communities and the RWSCC in the fall. Of course, as part of the consideration of the
rules, the proposed schedule could be adjusted by the RWSCC.
Exhibit B 3
RULES FOR CONDUCTING ADMINISTRATIVE HEARING FOR COMCAST OF
MINNESOTA, INC., FRANCHISE RENEWAL
The RWSCC hereby establishes procedural guidelines for purpose of the administrative
hearing under the Cable Communications Policy Act of 1984 as follows:
I.Hearing Officer Appointment; Duties:
a.The RWSCC shall appoint a Hearing Officer to conduct the administrative
hearing and issue recommended findings of fact for consideration by the RWSCC.
The Hearing Officer will conduct the hearing consistent with the requirements of
the Cable Communications Policy Act of 1984, and with the rules adopted below,
and to the extent practicable, and consistent with the above, in a manner
consistent with the provisions for administrative hearings before the Minnesota
Public Utilities Commission for rate cases. The rules and procedures for
contested case hearings under the Minnesota Administrative Procedures Act shall
not apply.
b.Minn. R. 1400.7300, subp. 1-4 (2013) sets out the rules of evidence applicable to
this proceeding.
c.The Hearing Officer will conduct the hearing in accordance with the scheduled
prescribed but may shorten or extend any date for good cause shown, or where the
Hearing Officer’s schedule requires a variance in the schedule. The schedule is
based on the assumption that the RWSCC communities will act on the petition for
preliminary denial no later than March 10, 2020.
d. The Hearing Officer will have authority to issue any rulings, and establish any
other procedures necessary to the conduct of the hearing, including page limits
and formats for briefs. That authority includes, but is not limited to, the authority
to require production of witnesses and evidence, to recommend or impose
sanctions, to rule on the admissibility of evidence and to limit evidence that may
be presented, and to adopt appropriate orders governing treatment of trade secrets
and confidential information.
e.Sanctions for failure to comply with discovery, to submit pre-filed testimony or to
provide the information required to be produced with the pre-filed testimony may
include, but are not limited to, the following: :
i.directing that the matters embraced by the failure to provide information
be taken as established for purposes of the action, as the prevailing party
claims;
ii.prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
iii.striking pleadings or testimony in whole or in part;
Exhibit B 4
f.The RWSCC may remove a Hearing Officer if it appears the officer is unable or
unwilling to perform his or her duties in a timely manner in a manner consistent
with these rules.
g.The rules may be altered by agreement of Comcast and RWSCC, and with the
consent of the Hearing Officer, provided the rules comport with the requirements
of the Cable Communications Policy Act of 1984.
II.Overview of Process:
a.The proceeding will involve a review of Comcast’s renewal proposal, and the
submissions made in response to questions regarding that proposal in January,
2020. It will also involve a review of Comcast’s past performance, and its
qualifications. Amendments to the proposal are not permitted.
b.Except for the record of the ascertainment, the RFRP and the Comcast response to
the RFRP, which shall be introduced into the record, evidence, including exhibits
will be submitted by pre-filed testimony. Any Witness submitting pre-filed
testimony must appear at hearing, and shall be subject to cross-examination
except where Hearing Officer determines, or parties agree, that the absence of a
witness is not required (to authenticate documents, for example). The Hearing
Officer may permit redirect and re-cross, but re-direct may not be used as a means
of presenting evidence that should have been presented in pre-filed testimony.
c.At the hearing, the Hearing Officer will consider whether :
(A) the cable operator has substantially complied with the material terms of the
existing franchise and with applicable law;
(B) the quality of the operator’s service, including signal quality, response to
consumer complaints, and billing practices, but without regard to the mix or
quality of cable services or other services provided over the system, has been
reasonable in light of community needs;
(C) the operator has the financial, legal, and technical ability to provide the
services, facilities, and equipment as set forth in the operator’s proposal; and
(D) the operator’s proposal for renewal is reasonable to meet the future cable-
related community needs and interests, taking into account the cost of meeting
such needs and interests.
d.At the end of the hearing, the parties will submit briefs and recommended
findings to the Hearing Officer, and the Hearing Officer will prepare a written
recommendation as to whether Comcast’s request for renewal should be granted,
or denied, and the reasons therefore. Each party may submit objections to those
recommendations.
e.The RWSCC may accept the recommendations, reject them and adopt its own, or
amend the recommendations. The adopted, alternative, or amended
Exhibit B 5
recommendations will be sent to each community for final decision as to whether
to grant or deny the renewal, based on the record of the proceedings.
III.Tentative Schedule of Proceedings:
Milestone12 Timing
Delivery of Record of Ascertainment February 14, 2020
All Parties' Pre-Filed Direct Testimony Monday, March 30, 2020
All Parties' Rebuttal Testimony Thursday, April 30, 2020
All Parties' Surrebuttal Testimony Thursday, May 21, 2020
Deadline for Minor Revisions to Pre-filed
Testimony and Errata Sheets
Wednesday, May 27, 2020
Objection to the Admissibility of
Testimony
See below
Prehearing Conference Monday, June 1, 2020 at 1:30 p.m.
Evidentiary Hearing June 8-12 2020
All Parties' Initial Briefs, Proposed Findings of Fact
and Conclusions of Law
Friday, July 10, 2020
All Parties' Reply Briefs Friday, July 31, 2020
Tentative Recommendation of Hearing Officer Monday, August 31, 2020
Objections of Parties to Recommendations Monday, September 14, 2020
RWSCC ISSUES RECOMMENDED DECISION
12 Dates assume that the RWSCC communities will either accept or preliminarily deny the
proposal submitted by Comcast by March 10, 2020. If communities have not acted on the
proposal, the RWSCC may establish different hearing dates, but as federal law requires action on
a proposal within four months of submission, the date will not be extended more than one month.
Exhibit B 6
IV.Discovery of Additional Information
a.Information requests and responses shall not be served on the Hearing Officer.
b.A party may serve requests for information on any other party in the form of
interrogatories, or requests for production of documents. All requests for
information shall be made in writing by email, and the requesting party shall
follow the email with a copy of the request sent by regular U.S. mail or other
delivery service to all parties. To the extent that a request includes material
designated as Trade Secret or Not Public under the Minnesota Government Data
Practices Act, Minn. Stat. Chap. 13, an e-mail request is required only between
the requesting and responding party. Requests shall be sent to the person(s)
designated to receive data requests by the party from whom the information is
sought. Any request received by e-mail after 4:30 p.m. on a business day, on a
weekend day, or on a Minnesota state holiday is considered received on the next
business day.
c.The party responding to the request shall respond to information request within
eight business days of receipt of the information request, which will be deemed to
be the date and time of the email, or if not sent on a business day, the following
business day. A business day does not include a weekend day or a Minnesota
state holiday. In accordance with Minn. R. 1400.6100. subp. 1, the day that the
information request is received is not counted in the eight-day period. If the
request is received after 4:30 p.m. on a business day, the following business day is
also not counted in the calculation of the eight-day response period.
d.Responses to information requests shall be submitted by email, and the
responding party shall follow the email with .a copy of the response sent by
regular U.S. mail or other delivery service, if requested. To the extent that a
response includes material designated as Trade Secret or Not Public, an e-mail
response is required only between the requesting party and the responding party.
Any response received before 4:30 p.m. on a business day is considered to be
received on the same day. Any response that is received after 4:30 p.m. on a
business day is considered to be received the following business day.
e.In the event that the responding party is unable to send the response by email due
to the volume or nature of information included in a response, the responding
party shall send the response by facsimile, regular U.S. mail, or other delivery
service so that the requesting party receives the entire response by the date due,
including any material designated as Trade Secret or Not Public. Responding
parties may utilize other electronic media to convey large volumes of data. If the
response is sent by facsimile, the responding party shall follow the facsimile with
a copy of the response sent by regular U.S. mail or other delivery service. There
shall be a continuing obligation to update and supplement information responses
with any responsive material that may subsequently be discovered or acquired by
Exhibit B 7
the responding party. The responsive information need not be supplied to other
parties unless specifically requested by a party.
f.A party that wishes to receive e-mail copies of requests or responses shall notify
the requesting/responding party, who shall provide the information in that format.
If the request or response contains material designated as Trade Secret or Not
Public information, the providing party may require that the requesting party
comply with the terms of any Protective Order in this matter before providing the
information.
g.A party’s response must include any objections to the request, but shall include
any information requested to the extent the request is not objectionable. All
objections shall be stated with specificity and any ground for objection which is
not stated in a timely manner is waived unless the party’s failure is excused In the
event the information cannot be supplied within eight business days, the
responding party shall notify the requesting party as soon as reasonably possible
in advance of the deadline of the reasons for not being able to supply the
information and shall attempt to work out a schedule of compliance with the
requesting party.
h.The following persons shall be served with an e-mail copy of any information
requests or responses. In addition, subject to any Protective Order in this matter,
a discovery request may specify that copies be served on any person who has been
retained to submit expert testimony in this matter.
i.For Comcast: [to be provided by Comcast]
ii.For RWSCC: [to be provided by RWSCC]
i.Except for good cause shown to the Hearing Officer, each side is permitted
twenty (25) requests for production of documents and twenty (20) interrogatories.
j.Interrogatories or document requests do not count against the limit if the
interrogatory or document request seeks information that was required to be
produced as part of these procedures (for example, a request for workpapers that
should have been included with pre-filed testimony).
k.No depositions shall be permitted.
l.All disputes concerning the reasonableness of information requests and the timing
and sufficiency of responses; and all requests for waiver of any rules for good
cause shall be heard by the Hearing Officer upon motion of a party. Hearings on
such motions may be conducted by telephone conference call.
m.Subject to the foregoing, discovery is limited to nonprivileged matter relevant to
any party's claim or defense and proportional to the needs of the case, considering
Exhibit B 8
the importance of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to be
discoverable. Discovery may be limited or conditioned if the information sought
is unreasonably cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive.
V.Prefiled Testimony:
a.In prefiled direct testimony, Comcast shall, at a minimum, detail the grounds on
which it claims it satisfies the renewal standards under the federal Cable Act,
including by supporting any claim it intends to make that its proposal is
reasonable to meet the future cable-related needs and interests “in light of the cost
thereof.”
b.In prefiled direct testimony, RWSCC shall, at a minimum, detail the grounds
supporting the preliminary conclusion that the proposal did not satisfy renewal
standards under the federal Cable Act based on the information submitted by
Comcast.
c.A person submitting pre-filed testimony shall attach all exhibits that witness
intends to use in support of testimony, workpapers and calculations made in the
preparation of testimony; and provide copies or a working link to all documents
relied upon in the preparation of the testimony, except that if a document is part of
the record of the ascertainment, a reference to the document in the ascertainment
is sufficient.
d.Prefiled testimony shall be marked as an exhibit and offered for admission into
the record at the hearing. A hard copy shall be provided for that purpose and the
offering party. The Hearing Officer will assign a hearing exhibit number to the
document at the time that it is offered for admission at the hearing.
e.Prefiled testimony that is amended or not offered into the record shall be
considered withdrawn and no witness shall be cross-examined concerning the
withdrawn testimony. Except for good cause shown, all revisions or corrections to
any prefiled testimony shall be in writing and served upon the Hearing Officer
and the parties no later than three days prior to the commencement of the
evidentiary hearing.
f.Information shall not be included in testimony that reasonably should have been
included in an earlier round of testimony, absent affirmative approval of the
Hearing Officer for good cause shown by the offering party and based on the
offering party's motion to the Hearing Officer, which shall be appended to the
new testimony.
Exhibit B 9
VI.Objections to Prefiled Testimony:
a.Objections by any party to prefiled testimony (including exhibits attached
thereto), must be filed along with rebuttal testimony with respect to pre-filed
direct testimony; one week before the scheduled date for submission of
surrebuttal testimony with respect to rebuttal testimony, and on June 1, 2020, or
by such time as the Hearing Officer may prescribe for surrebuttal testimony.
Objections regarding introduction of wholly new matter, that is not properly
responsive to earlier testimony, in prefiled rebuttal or surrebuttal testimony shall
be considered waived unless the objecting party states its objection in writing by
those dates. In such an objection the objecting party shall identify the information
by witness and location in testimony and serve a copy of the objection on the
Hearing Officer.
VII.Filing of Prefiled Testimony:
a.Prefiled testimony and exhibits may be in any reasonable format that is
understandable, logically organized, and capable of being cited by page and line
number, paragraph number, or similar identifier.
b.All prefiled testimony shall be submitted by email to the Hearing Officer with a
courtesy copy delivered simultaneously to the other party. Original copies of said
documents shall be filed with the Hearing Officer at the commencement of the
hearing.
c.If Trade Secret or Not Public Data is filed with the Hearing Officer, it shall be
prepared and marked in accordance with the Minnesota Data Practices Act.
VIII.Pre-Hearing Disclosures:
a.Each side shall disclose to the other any visual aids or demonstrative exhibits it
intends to use at the administrative hearing at least seven (7) days before the
hearing. Objections shall be raised to such materials in writing at least one
business day before the hearing is to commence.
IX.Witness Testimony at Hearing:
a.Comcast will present its witnesses for cross-examination first; RWSCC will
present its witnesses second.
b.Parties shall examine and cross-examine witnesses through their attorneys. If a
party determines that the party has no questions for a particular witness, that party
shall inform the Hearing Officer and other parties as soon as practicable.
Exhibit B 10
c.Witnesses will be allowed ten minutes in which to summarize their prefiled
testimony. For good cause shown, witnesses will be permitted to respond to any
new matters not addressed in prefiled testimony through direct examination by
counsel.
X.Administrative Hearing, Generally:
a.Each side may be represented by an attorney and through the procedures
described above, shall be afforded the opportunity to present relevant evidence
and to call and examine witnesses and cross-examine witnesses of the other party;
b.Commission members and City Council Members may not be called as witnesses
nor may the Commission’s or Comcast’s legal counsel be called as witnesses.
c.Witnesses will be sworn;
d.A court reporter will be present at the hearings. The parties must make
arrangements with the Court Reporter to obtain a copy of the transcript.
e.Request for Accommodation. The Hearing Officer shall be notified promptly if
either an accommodation or interpreter is needed.
f.Except as the Hearing Officer otherwise directs, post-hearing briefs will be
submitted in lieu of closing argument.
g.The Hearing Office will close the record of the proceedings;
h.The Hearing Officer will issue recommended findings of fact in writing based
upon the record of the proceeding and stating the reasons therefore, pursuant to
the Cable Communications Policy Act of 1984, as amended.
XI.Post Hearing:
a.The Commission will review the recommended findings of fact from the Hearing
Officer and will, upon request of the parties, permit oral argument before the
Commission not to exceed thirty (30) minutes per party. Thereafter the
Commission will issue a written decision recommending to the Member Cities to
grant or deny the proposal for renewal pursuant to the Cable Communications
Policy Act of 1984, as amended. Each Member City shall issue a written decision
granting or denying the proposal for renewal based upon the record of such
proceeding, and transmit a copy of such decision to the cable operator. If the
recommendation of the Commission is accepted, the Commission’s decision may
be adopted by reference.
Dated: ___________________________
Exhibit C 1
EXHIBIT C – RECOMMENDED DRAFT RESOLUTION (PRELIMINARY
ASSESSMENT FRANCHISE SHOULD NOT BE RENEWED)
WHEREAS, _____________________is a member of the Ramsey/Washington Counties
Suburban Cable Communications Commission II (hereinafter “RWSCC”) a Joint Powers
Commission organized pursuant to Minn. Stat. § 471.59, as amended, and includes the
municipalities of Birchwood, Dellwood, Grant, Lake Elmo, Mahtomedi, North St. Paul, Oakdale,
White Bear Lake, White Bear Township and Willernie, Minnesota (“Member Municipalities”);
WHEREAS, the Member Municipalities enacted separate ordinances and entered into
individual agreements authorizing MediaOne North Central Communications Corp. to provide
cable service (collectively, the “Franchises”);
WHEREAS, as a result of several transfers of the Franchises, Comcast of Minnesota,
Inc., (“Comcast”) currently holds the Franchises in the Member Municipalities;
WHEREAS, Section 626(a)(l) of the Cable Communications Policy Act of 1984, as
amended (the “Cable Act”), 47 U.S.C. § 546(a)(1), provides that if a written renewal request is
submitted by a cable operator during the 6-month period which begins with the 36th month
before franchise expiration and ends with the 30th month prior to franchise expiration, a
franchising authority shall, within six months of the request, commence formal proceedings to
identify the future cable-related community needs and interests and to review the performance of
the cable operator under its franchise during the then current franchise term;
WHEREAS, Comcast invoked the formal renewal procedures set forth in Section 626 of
the Cable Act, 47 U.S.C. § 546;
WHEREAS, the Joint Powers Agreement empowers the Commission and/or its
designee(s) to conduct the Section 626 formal franchise renewal process on the Member Cities’
behalf and to take such other steps and actions as are needed or required to carry out the formal
franchise renewal process;
WHEREAS, the Commission commenced formal franchise renewal proceedings under
Section 626(a) of the Cable Act, 47 U.S.C. § 546(a), and authorizing the Commission or its
designee(s) to take certain actions to conduct those Section 626(a) proceedings;
WHEREAS, RWSCC performed a needs assessment of the Member Municipalities’ and
their communities’ present and future cable-related needs and interests and has evaluated and
continues to evaluate Comcast’s past performance under the Franchises and applicable laws and
regulations, all as required by Section 626(a) of the Cable Act, 47 U.S.C. § 546(a);
WHEREAS, the Commission’s needs ascertainment and past performance review
included the Report on Cable-Related Needs and Interests and System Technical Review Within
the Ramsey Washington Suburban Cable Commission Franchise Area, dated August 30, 2017,
Exhibit C 2
by CBG Communications, Inc.; Constance Ledoux Book, Ph. D., Telecommunications Research
Corporation; Carson Hamlin, Media Integration Specialist; and Issues and Answers Telephone
Research Firm (“CBG Report”); and in addition, the Commission reviewed its own files and
conducted certain investigations as to needs and interests and past performance, and drew upon
publicly available information regarding industry and area trends;
WHEREAS, based on its needs ascertainment and past performance review, RWSCC
staff prepared a “Request for Renewal Proposal for Cable Franchise” (“RFRP”) that summarizes
the Member Municipalities' and their communities’ present and future cable-related needs and
interests, establishes requirements for facilities, equipment and channel capacity on Comcast’s
cable system and includes model provisions for satisfying those requirements and cable-related
needs and interests; that identified past non-compliance issues, and provided Comcast a further
opportunity to correct them; and included a model franchise with terms and conditions;
WHEREAS, RWSCC and Comcast engaged in informal renewal negotiations pursuant
to 47 U.S.C. § 546(h) but are currently unable to arrive at mutually acceptable terms;
WHEREAS, RWSCC established November 11, 2019 as a deadline for Comcast’s
response to the RFRP;
WHEREAS, RWSCC and Comcast agreed to extend certain deadlines including the
deadline for Comcast to respond to the RFRP; and on or about December 13, 2019, Comcast
submitted to RWSCC its Response to Ramsey Washington Counties Suburban Cable
Communications Commission II’s Request for Renewal Proposal for Cable Franchise (“Comcast
Proposal”);
WHEREAS, RWSCC reviewed the Comcast Proposal and based on that review made a
preliminary assessment that the Franchises should not be renewed, as set forth in Resolution
202001, (“RWSCC Resolution”) and recommended that each Member Municipality confirm
and issue a preliminary assessment that the franchise not be renewed;
WHEREAS, RWSCC has proposed Rules for the Conduct of an Administrative Hearing,
attached to the RWSCC Resolution as Exhibit B and asked each Member Municipality to
confirm those rules.
NOW THEREFORE BE IT RESOLVED BY __________________.
Section 1. ____________ hereby issues a preliminary assessment that the franchise
should not be renewed, and the actions of the RWSCC affirmed.
Section 2. Exhibit A to the RWSCC Resolution is adopted and incorporated herein,
and sets out grounds for the preliminary denial, and the which of the categories of issues set out
in 47 U.S.C. § 546(c)(1) may be raised in any formal administrative proceeding.
Section 3. Exhibit B, the Rules for Conduct of an Administrative Hearing are
confirmed and may be used for conduct of the proceeding. To remove any doubt, the RWSCC is
Exhibit C 3
authorized to make such changes to the Rules as may be necessary or appropriate for the conduct
of the proceeding without seeking further authorization from ________________.
Section 4. RWSCC shall provide such notices as may be required and promptly
commence the administrative proceeding required by law.
Section 5. The proceeding maybe delayed by agreement, subject to ratification by the
Member Municipalities. The proceeding may be terminated if an agreement is reached as to
renewal, or if Comcast determines it does not wish an administrative hearing on its application.