A substitute ordinance granting the consent of The Metropolitan Government of Nashville and Davidson County to the change of control of the Cable Television Franchise and Cable Television System from Comcast Corporation to AT&T Comcast Corporation.

WHEREAS, Comcast Cablevision of Nashville I, LLC (“Franchisee”) holds a franchise (“the Franchise”) to operate a cable television system (“the System”) in Nashville and Davidson County, Tennessee, pursuant to Substitute Ordinance No. BL2001-591 (the “Franchise Ordinance”), and current Title 6, Chapter 6.08 of the Metropolitan Code (the “Cable Ordinance”); and

WHEREAS, Franchisee is an indirect wholly-owned subsidiary of Comcast Cable Communications, Inc. (“Comcast Cable”); and,

WHEREAS, Comcast Corporation, the ultimate parent corporation of Franchisee, and Comcast Cable and AT&T Corp., the ultimate parent corporation of AT&T Broadband Corp., have agreed to combine AT&T Broadband Corp.’s and Comcast Corporation’s respective cable television and broadband systems into a new company incorporated in Pennsylvania as AT&T Comcast Corporation; and

WHEREAS, under their agreement (the “Proposed Transaction”), Franchisee will continue to operate the System, but its ultimate parent company will be different and, consequently, the control of Franchisee will change as well; and

WHEREAS, Comcast Corporation has filed a copy of Federal Communications Form 394, together with certain attached materials with the Metropolitan Government on or about March 14, 2002, which materials more fully describe the proposed merger and which form, with its attachments, contain certain promises, representations and warranties by Comcast Corporation and AT&T Comcast Corporation (the “Application”); and

WHEREAS, Comcast Corporation and AT&T Comcast Corporation provided written responses to some of the data requests issued by the Metropolitan Government (the “Data Request Response”); and

WHEREAS, Section 6.08.140 of the Cable Ordinance requires the Metropolitan Government’s prior consent to a change of control affecting the franchise; and

WHEREAS, Franchisee has paid the processing fee of $5,000.00 required by
§ 6.08.140(F) of the Cable Ordinance; and

WHEREAS, the Metropolitan Government has reviewed the Transfer Application and considered all factors specified in the Cable Ordinance; and

WHEREAS, in reliance upon the representations made by and on behalf of Comcast Corporation and AT&T Comcast Corporation, the Metropolitan Government is willing to grant its consent to the Proposed Transaction; and

WHEREAS, the Metropolitan Government’s approval of the Proposed Transaction is therefore appropriate if Franchisee agrees that it will continue to be bound by all provisions and limitations prescribed in the Franchise Ordinance, which approved the transfer of the Franchise to Comcast Cable.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY THAT:

Section. 1. The Metropolitan Council’s consent to, and approval of the Application is hereby GRANTED in accordance with the Cable Ordinance, subject to the following conditions:
Neither the Franchise, nor the System, nor any geographic part of the System located in the Metropolitan Government’s public rights-of-way or on the Metropolitan Government’s property, shall be assigned or transferred, in whole or in part, without filing a written application with the Metropolitan Government and obtaining the Metropolitan Council’s prior written approval of such transfer or assignment, but only to the extent required by applicable law.
Within fifteen (15) days of the consummation of the Proposed Transaction, AT&T Franchisee shall file with the Metropolitan Government an executed copy of the Franchise Acceptance attached hereto as Exhibit A.
Prior to third reading of this Ordinance, Comcast Cable shall execute an acknowledgement and assurance, which is attached to this ordinance and hereby approved and which, among other things, acknowledges Franchisee’s acceptance of all obligations under the Franchise and the Franchise Ordinance reasonably acceptable to the Metropolitan Government in form and substance.
The Metropolitan Government’s approval of the Application is made without prejudice to, or waiver of, the Metropolitan Government’s right to fully investigate and consider during any future franchise renewal process: (i) Franchisee’s financial, technical, and legal qualifications; (ii) Franchisee’s compliance with the Franchise and the Franchise Ordinance; and (iii) any other lawful, relevant considerations.

1.5. The Metropolitan Government's approval of the Application is made without prejudice to, or waiver of, any right of the Metropolitan Government to consider or raise claims based on Franchisee’s defaults, its failure to provide reasonable service in light of the community’s needs, or its failure to comply with the terms and conditions of the Franchise, the Franchise Ordinance, or with applicable law.

1.6. The Metropolitan Government waives none of its rights with respect to the Franchisee’s compliance with the terms, conditions, requirements and obligations set forth in the Franchise, the Franchise Ordinance, and in applicable law. The Metropolitan Government’s approval of the Application shall in no way be deemed a representation by the Metropolitan Government that the Franchisee is in compliance with all of its obligations under the Franchise, the Franchise Ordinance, and applicable law.

1.7. Franchisee accepts, acknowledges, and agrees that, after the Proposed Transaction, it will be bound by all the commitments, duties, and obligations, present and continuing, embodied in the Franchise, the Franchise Ordinance, and applicable law, and that the Proposed Transaction will have no effect on these obligations.

1.8. Nothing in this Ordinance amends or alters the Franchise, or Franchise Ordinance, or any requirements therein in any way, and all provisions of the Franchise remain in full force and effect and are enforceable in accordance with their terms and with applicable law.

1.9. Franchisee and Comcast Cable agree that neither the Proposed Transaction nor approval of the Proposed Transaction shall in any respect relieve Franchisee or any of its successors in interest of responsibility for past acts or omissions, known or unknown (including those acts or omissions of Franchisee), and Franchisee hereby affirms that it shall be liable for and accepts the consequences of any such acts and omissions, known and unknown, including liability for any and all previously accrued but unfulfilled obligations to the Metropolitan Government under the Franchise, the Franchise Ordinance, and applicable law, for all purposes, including review of past performance to determine whether its Franchise should be renewed and any claims relating to any past noncompliance. Notwithstanding the above, Franchisee does not waive any right or defense under applicable law. The Proposed Transaction shall not permit Franchisee or Comcast Cable to take any position or exercise any right with respect to the Franchise and the relationship thereby established with the Metropolitan Government that could not have been exercised prior to the Proposed Transaction.

1.10. Franchisee agrees that it accepts and will abide by all terms of the Franchise, the Franchise Ordinance, and applicable law, and will assume the obligations, liabilities and responsibility for all acts and omissions under the Franchise, the Franchise Ordinance, and applicable law, known and unknown, of the Franchisee.

1.11. The Metropolitan Government and Franchisee reserve all of their respective rights with respect to Franchisee’s future compliance with the terms, conditions, requirements and obligations set forth in the Franchise, specifically Section 2(n) of the Franchise Agreement.

1.12. In the event the Proposed Transaction does not close in accordance with the Application, or closes on terms that are in any material respect different from the terms disclosed to the Metropolitan Government in writing in the Application, Data Request Response or otherwise, then any consent of the Metropolitan Government to the Proposed Transaction and Application shall be void and of no force or effect, and the Transfer Application deemed to have been timely denied.

1.13. Franchisee and Comcast Cable represent and warrant that the Proposed Transaction will not adversely affect the financial position of Franchisee in a manner that would affect Franchisee's ability to fulfill its obligations under the Franchise and the Franchise Ordinance.

1.14. Franchisee and Comcast Cable acknowledge and agree that: (i) the Metropolitan Government’s approval of the Transfer Application is made in reliance upon the representations, documents, and information provided by the aforementioned entities in connection with the Application; and (ii) each of the foregoing entities is liable for its respective representations and warranties in connection with the Application.

1.15. The Metropolitan Government is not waiving any rights it may have to require franchise fee payments on future services delivered by Franchisee via the cable system.

1.16. The Metropolitan Government is not waiving any right it may have related to any open access issue.

1.17. The Metropolitan Council’s approval of the Proposed Transaction and Application shall not constitute a waiver or release of any of the rights of the Metropolitan Government under the Franchise, the Franchise Ordinance, and applicable law, whether arising before or after the date of consummation of the Proposed Transaction.

Section 2. If any of the conditions specified in Section 1 are not satisfied, or if the Metropolitan Government is not fully reimbursed in accordance with Section 3, then the Metropolitan Government’s consent to, and approval of, the Transfer Application and Proposed Transaction is hereby DENIED and void as of the date hereof.

Section 3. Franchisee or Comcast Cable shall reimburse the Metropolitan Government for the reasonable out-of-pocket costs and expenses it actually incurred in connection with its consideration and review of the Application and the preparation of this Ordinance, less the applicable filing fee specified in § 6.08.140(F) of the Cable Ordinance. The Metropolitan Government will present a single invoice to Franchisee, itemizing the costs and expenses incurred. Franchisee or Comcast Cable shall remit payment for such costs and expenses within thirty days of its receipt of the invoice. Such payment shall be made directly to the Metropolitan Government and not through a payment to any other entity. Franchisee and Comcast Cable agree not to assert that any reimbursement made under this Ordinance shall be considered a franchise fee, and neither Franchisee nor Comcast Cable shall impose a separate surcharge on cable subscribers for transfer expenses incurred in connection with the Proposed Transaction, including (but not limited to) the Transfer Application and Data Request Response.

Section 4. If any of the representations made to the Metropolitan Government by the Franchisee or AT&T Comcast Corporation prove to be incomplete, untrue or inaccurate in any material respect, it shall be deemed a material breach of the Franchise and the Franchise Ordinance, and the Metropolitan Government shall have available to it all remedies provided under the Franchise and applicable law, including, without limitation, revocation or termination of the Franchise.

Section 5. Any violation of this Ordinance shall constitute a material violation of the Franchise and the Cable Ordinance, and shall be subject to all remedies available to the Metropolitan Government under the Cable Ordinance and the Franchise.

Section 6. This Ordinance shall not be construed to grant or imply the Metropolitan Council’s consent to any other change of control of the Franchise or any other transaction that may require the Metropolitan Council’s consent under the Franchise, the Cable Ordinance or applicable law. The Metropolitan Government reserves all its rights with regard to any such transactions.

Section 7. This Ordinance is a final decision on the Application within the meaning of 47 U.S.C. § 537.

Section 8. That the change of control of the Franchise from Comcast Corporation to AT&T Comcast Corporation, shall not take effect until the consummation of the Proposed Transaction.

Section 9. This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: David Briley

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LEGISLATIVE HISTORY
Substitute Introduced:	July 16, 2002
Referred to:	Budget & Finance Committee CATV Special Committee
Passed Second Reading:	July 16, 2002
Passed Third Reading:	August 6, 2002
Approved:	August 8, 2002
By: