2002-05-22 CC Packet - Laserfiche WebLink

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Because no body of competent jurisdiction has made any determination that AT&T Broadband has violated any constitutional right or state or federal law, there is simply no basis for concluding that AT&T Broadband has violated any Franchise obligation to comply with federal and state law. b. The absence of an applicable Franchise Provision precludes a findina that the Arbitration Provisions constitute a Franchise violation. The LFAs are prohibited from applying the Franchises so as to unilaterally impose Franchise restrictions or regulations on A T& T Broadband's authority. to implement the Arbitration Provisions. As is firmly established under applicable law, the Franchise is a contract binding upon the Company and the LFAs. See McQuillin; Municipal Corporations, 934.69 (a franchise is "a contract between the municipality and the grantee, and is protected from impairment by the contract clause of the federal constitutions, so that... the grant cannot be revoked, nor additional burdens imposed, as against the objection of the company."); Northwestern Tel. Exch. Co. v. City of Minneapolis, 83 NW. 527, 528 (Minn. 1900) aff"d 86 NW. 69 (1901) (rights granted by a franchise may not be later impaired by an unreasonable exercise of police power); 36 Am. Jur. 2d, Franchises 9 38 (municipal regulation of franchises is subject to constitu1ional guarantees against impairment of contracts); Russell v. Sebastian, 233 U.S. 195 (1914) (municipal ordinance limiting the franchise right to construct along streets deemed unQonstitutional as an impairment of essential contract rights); Minn. Const. Art. 1, 911 (no law impairing the obligation of contract shall be enacted); U.S. Const. Art. 1, 910 (same); Accordingly, any attempt by the LFAs to impose additional obligations on AT&T Broadband contrary to the provisions of the Franchise would be an unconstitutional violation of AT&T Broadband's rights under the Franchise. The above analysis is further reflected by Franchise Section 2.6(a), which specifies that, other than as necessary to the lawful exercise of police powers, substantive changes to the terms of the Franchise may be imposed only with the mutual consent AT&T Broadband. Case law confirms that an attempt to regulate the company's implementation of customer contracts would be purely regulatory, and not a valid exercise of police powers. See. e.a.. Northwestern Tel. Exch. Co. v. Citv of Minneapolis, 83 N.W. 527 at 528 (a regulatory requirement that. unreasonably impaired vested franchise rights was not a valid exercise of police power and thus void); City of Garland v. Texas Power & Liaht Companv, 342 S.W.2d 816,821 (Tex. App. 1961) (governmental authority to adopt regulatory requirements may not "be used by the city to deprive the franchise holder of any essential rights and privileges acquired thereunder") (citina Northwestern Tel. Exch. Co. v. Citv of Minneapolis, 83 N.W. 527). Thus, the Franchise terms prohibit the LFA's from prohibiting or regulating the Arbitration Provisions. c. AT&T Broadband provided the reauisite notices. Section 5.6 of the Franchise requires AT&T Broadband to file with. the LFA the standard form subscriber contract. In compliance with this provision, AT&T Broadband filed the revised CSAs with the LFAs in October, 2001, in advance of their implementation. The oniy other applicable requirements imposed on the Company by the LFAs are the FCC's customer service standards, which require that the Company notify subscribers thirty (30) days in advance of any significant changes in the terms and conditions of cable service. See 47 CFR 9 76.1603(b). Again, the Company fully complied with these provisions by providing its subscribers the requisite notice at least 9 P.44