11-30-15-R - Laserfiche WebLink

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DISCUSSION The City Council held the required public hearing on October 26, 2015, at that meeting staff was directed to place this item on the November 30, 2015 Council meeting. The City Council is now asked to take action on whether to approve or deny the proposed franchise ordinance and finding consistent with its decision. A representative from NSCC will be at the meeting to answer any questions and to speak on this item. Supporting information On February 20, 2015, the NSCC received a cable franchise application covering each member city from CenturyLink. Comcast Cable currently has a non-exclusive franchise agreement with the City, which means the City Council may grant additional franchises to provide cable service in the City. A public hearing on the application was held on March 5, 2015, and additional written comments from the public were accepted through March 13, 2015. Following the public hearing, staff prepared a Staff Report (“Report”), which recommended that the NSCC receive and file the Report and direct staff to negotiate a cable franchise with CenturyLink, consistent with the Report. On April 10, 2015, the NSCC adopted the recommendation. This action did not approve a franchise. The NSCC’s outside attorney, Mike Bradley, Bradley Hagen & Gullikson, LLC, in consultation with NSCC Executive Director, Coralie Wilson, engaged in cable franchise negotiations with CenturyLink. The attached cable franchise is the product of those negotiations. In reviewing the CenturyLink cable franchise, there are two primary issues to consider. The first is whether federal law preempts Minnesota’s 5-Year Build Statute. Minnesota Statues Section 238.084, subdivision 1(m) requires all initial franchises to have a provision that requires a cable operator build out its cable system at a rate of 50 plant miles per year and that its cable system be substantially complete within 5 years. As the Report indicated, CenturyLink claims that this 5-Year Build Statute is an unlawful barrier to entry and is preempted by federal law and an FCC decision referred to as the 621 Order. The Report also indicated that there is no case law in Minnesota directly addressing preemption of the 5-Year Build Statute. The Report concluded that CenturyLink has a good faith basis on its preemption claim and is willing to indemnify the NSCC and its Member Cities related to any litigation surrounding the grant of a franchise to CenturyLink. CenturyLink refused to incorporate the language of the 5 -Year Build Statute in the proposed franchise, based on its preemption argument. As described below, the proposed CenturyLink franchise ordinance has provisions for a reasonable build-out of the City. The proposed franchise ordinance also has provision for defense and indemnification of the NSCC and the City regarding this issue.