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1996.01.23_TC_Minutes_Special ` r --- ' ~ ~~ TOWN OF HIGHLAND BEACH TLTTES OF TOWN COMMISSION MEETING SPECIAL WORKSHOP MEETING January 23, 1996 1:30 P.M. Mayor Arlin G. Voress called the Special Workshop Meeting to order in Commission Chambers,at 1:30 P.M., stating its purpose was to review the proposed Adelphia Cable Franchise Agreement. He noted that those present in the audience would be invited to comment after the Commission had concluded discussion. The Mayor also noted that being the expert in this field, Attorney Cormac C. Conahan would address the legal issues of the proposed franchise agreement, while Town Attorney Thomas E. Sliney would address the administrative procedures regarding same. Town Clerk Doris Trinley called the roll. The Mayor and Commissioners David Augenstein, Arthur Eypel and John F. Rand were present. Vice Mayor Bill Paul was absent. Town Manager Mary Ann Mariano, and Attorneys Sliney and Conahan were also present, as were members of the general public. Mayor Voress noted the documents contained in the agenda packet, which was prepared by the Town Manager and enumerated in her accompanying January 16th memorandum to the Commission: 1. Existing Cable Television Franchise. 2. Proposed Ordinance Granting a Franchise to Southeast Florida Cable, Inc., d/b/a Adelphia. 3. May 31, 1995 representing representing 4. January 15, representing representing letter from C.C. Conahan, Esq., the Town to John B. Glicksman, Esq., Adelphia. 1996 from John B. Glicksman, Esq. Adelphia, to C.C. Conahan, Esq., the Town. Attorney Conahan added to the materials for review by providing copies of his letter to the Commission, dated January 23rd, which was written pursuant to a phone conversation he and Town Attorney Sliney had with Attorney Glicksman regarding Mr. Glicksman's letter of January 15th. (Copies of all of the above are attached hereto and made part of these Minutes.) i c f ' t '~ Town Commission Special Workshop Meeting - Minutes January 23, 1996 Paae 2 of 5 Town Attorney Sliney then advised of the administrative procedures which would be followed should the Commission wish to renew the franchise agreement by the March 3, 1996 deadline, at which time the current agreement expires. He said first reading of the proposed ordinance relating to the proposed agreement would take place at the Regular Meeting on February 6th, followed by legal publication, with final reading and adoption at a Special Meeting to be held in conjunction with the February 27th Workshop Meeting. Commissioner John F. Rand had several questions, posed for the sake of perspective: .Must the existing ordinance be repealed in order to adopt the the proposed ordinance, or would its adoption be an amendment to the existing ordinance? Both attorneys advised that since the current franchise agreement ends on March 3rd, so would the existing ordinance; if adopted, the proposed franchise ordinance will replace the one now in effect. .The old agreement includes a performance bond; why doesn't the new agreement? Attorney Conahan replied that he felt this was an anachronism and had no problem with its • being eliminated from the proposed franchise agreement, The Town Manager added that actual construction of the system (laying of wires, etc.) was taking place when the existing agreement was entered into and this, most likely, was why a performance bond was included. .Is there a renewal provision included in the proposed ordinance? Attorney Conahan said there was none; when the 10-year period was up, the agreement would be reviewed again. He explained that the Federal Cable Act of 1984 had virtually "hamstrung" municipalities by requiring renewal unless an extraordinary set of lengthy procedures is undertaken, resulting in the finding that the present franchise was in non-compliance, a highly unlikely outcome. Attorney Conahan further noted that pending Cable legislation, when enacted, might eliminate this "forced" renewal. Responding to Mr. Conahan's remarks, Commissioner Rand then read a clause from the existing ordinance as follows: The franchise may be renewed for an additional term of years as may be mutually agreed upon by both parties to this franchise following a full public proceeding affording due process during which the company' s performance and the adequacy of this franchise ordinance will be reviewed. r ~ Town Commission Special Workshop Meeting - Minutes January 23, 1996 Paae 3 of 5 Stating he felt this was a very cogent condition to have, the Commissioner said the residents should be afforded an opportunity at a Public Hearing to comment on the service they getting, thus enabling the Commission to decide whether the agreement should be extended, modified or otherwise. Commissioner Rand further said although it may be legally academic, he still felt the Town should abide by the above referenced clause. Attorney Conahan said that such language was not incorporated into the new franchise for a couple of reasons; first, as pointed out by Attorney Sliney, the Town Charter (Section 5.02) addresses the requirements of granting a franchise and are set forth in that provision. Second, federal law, at least at this time, requires a public hearing, and this was held almost two years ago. Mr. Conahan noted that several people gave their comments at that hearing, some of which are incorporated in the new agreement. However, Attorney Conahan said that although it does not appear to be required, if so desired he would add the clause to the proposed agreement. He did agree with Commissioner Rand that this provision is included in the proposed federal • legislation. .Noting that the rate of the franchise fee in the proposed agreement is increased to 5% from 3%, Commissioner Rand pointed out that in the existing agreement it is stated that any increase must have FCC approval. Attorney Conahan replied that at this time the law allows up to 5%; however, the pending legislation, when enacted, would allow increases higher than this; but for the 10-year term of this proposed agreement, the 5% limit would remain in effect. He further advised that the language of the proposed agreement increases the base on which the franchise fee will be paid and will increase the rate, thus substantially increasing the Town's revenues through franchise fees. At the conslusion of Commissioner Rand's inquiries, brief discussion took .place between he and Attorney Conahan regarding Adelphia's initial reluctance to allow access to their books and records for audit purposes; however, it was noted that the issue has now been resolved, with Adelphia agreeing to the inclusion of this clause. Commissioner David Augenstein referred to probable changes to the proposed Cable Act legislation and questioned whether the Town would be able to grandfather these changes into the Town's then existing contract if these changes were indeed enacted. • - 1 . Town Commission Special Workshop Meeting - Minutes January 23, 1995 Page 4 of 5 Attorney Conahan replied that essentially adoption of the franchise agreement as it is now proposed would tie the Town to all provisions of same for the 10-year. period. He added that he had proposed to Adelphia that the Town be allowed to revisit the agreement when the new federal legislation is enacted; however, they had rejected this proposal, pointing out that they were expanding the base on which the fee would be paid and nearly doubling the rate. Mr. Conahan added that, in light of other negotiations with other franchises, the revenue base and proposed 5a rate would appear to be appropriate. Commissioner Augenstein referred to the possibility of Adelphia's expanding the number of channels available; however, Attorney Conahan advised that, under federal law, this is one of several areas that is left to the discretion of the cable operator. Mr. Conahan further advised that after adoption of the proposed agreement, it would be appropriate to request of Adelphia current information on what will be happening to the system in the near future, and assurances that the Town will have a quality of signal and programming that is available to similar systems served by Adelphia in Palm Beach County. • Asked by Commissioner Augenstein what the Town's options would be should it decide not to renew the agreement, Attorney Conahan again referred to the lengthy process required by federal law to find that Adelphia had not complied with the provisions of the franchise, a highly unlikely result. Referring to Mr. Conahan's January 23rd letter, which was distributed to the Commission at the start of the meeting and which the members had not had time to thoroughly review, Commissioner Augenstein questioned if there were any items which were not to Attorney Conahan's satisfaction. Mr. Conahan said nothing contained therein was a serious enough matter to warrant non- acceptance; however, he did repeat the need to contact Adelphia after renewal to determine what plans they have for the system. Commissioner Eypel had no questions; however, he did comment that it was unfortunate the two most important issues for residents, programming and service, are not open to debate because of federal law. Mayor Voress noted various complaints that have been received by Town Hall in recent years, including Adelphia's invoicing of uneven charges to various condominiums and other customers, which was strictly a business practice over which the Town had no control. He did comment that some improvement had been experienced in their response to troubles/shutdowns within the system. • ~. ~ ~ • Town Commission Special Workshop Meeting - Minutes Januarv 23, 1996 Page 5 of 5 The Mayor related that although Adelphia had previously installed cable to accommodate 80 channels, they never followed through with making these available, saying additional equipment would be needed in the "headstation," which is located behind Town Hall; another reason given was that large trees prevented proper amplification of the additional channels. In addition to being u channels, the Mayor also eliminate any channel of elimination of Channel residents, and replacing run the Miami station. nresponsive to providing an increase in referred to Adelphia's arbitrary right to their choosing, specifically noting their 4 out of Miami, a favorite of many it with C-SPAN because it cost too much to Mayor Voress also noted future competition for cable operators from telephone companies; Mr. Conahan said this was addressed in the proposed federal legislation. The Mayor then invited comments from those in the audience and the following residents addressed the Commission: Al Zwick - Braemar Isle (4740 S. Ocean Blvd.) . Lou Nocera - Clarendon (3407 S. Ocean Blvd.) Concluding discussion, it was agreed that Attorney Conahan would request the changes required of Adelphia and transmit a revised franchise draft to the Commission for their review, with further discussion and consideration to take place at the January 30th Workshop Meeting. Their being no further business to come before the Commission at this time, the meeting was adjourned upon MOTION by COMMISSIONER RAND/COMMISSIONER AUGENSTEIN at 3:00 P.M. dmt APPROVE: ~~ - ABSENT - Bill Paul, Vice Mayor David Augenste' Commissioner ~~ c"' o n F. Rand, Commissioner • APPROVE: DATE: A in G. Vores Mayor A thur ype Co issioner