ORDINANCE NO. BL2013-395

An ordinance approving a settlement agreement and accepting a settlement payment resolving a dispute as to the liability of Comcast of Nashville I, LLC (“Comcast”) arising out of an audit of Comcast’s franchise fee payments under its prior, existing franchise agreement with the Metropolitan Government and approving a renewed franchise agreement with Comcast for it to construct, maintain and operate a cable television system within Metropolitan Nashville and Davidson County under the provisions of Chapter 6.08 of the Metropolitan Code (Proposal No. 2013M-001FR-001).

WHEREAS, Ordinance No. O95-1379 granted a franchise to Televue-Systems, Inc. d/b/a Viacom Cable (“Viacom”); and,

WHEREAS, said franchise was transferred by Viacom to Intermedia Partners Southeast (“Intermedia”), who accepted and acknowledged the terms of the Cable Communications Franchise Agreement accompanying it (the “1995 Franchise Agreement”), and this transfer and acceptance and acknowledgment was approved by Metropolitan Council Ordinance O99-1810; and,

WHEREAS, said franchise was transferred by Intermedia to Broadband Nashville I, LLC, whose parent company became Comcast Cable Communications, Inc., who accepted and acknowledged the terms of the 1995 Franchise Agreement and which transfer and acceptance and acknowledgment was approved by Metropolitan Council Ordinance BL 2001-591; and,

WHEREAS, said franchise and the 1995 Franchise Agreement were accepted, acknowledged and reaffirmed by Comcast Cablevision of Nashville I, LLC, now Comcast of Nashville I, LLC (“Comcast”), formerly known as Broadband Nashville I, LLC, and this acceptance, acknowledgment and reaffirmation was approved by Metropolitan Council Ordinance BL2002-1066, such that Comcast formally became and is now the franchisee of the Metropolitan Government of Nashville and Davidson County (the “Metropolitan Government”) subject to the 1995 Franchise Agreement; and,

WHEREAS, the 1995 Franchise Agreement approved by Ordinance No. O95-1379 commenced on or about May 5, 1995, and under the terms of the 1995 Franchise Agreement, the franchise of Comcast would have expired on or about May 5, 2010; and,

WHEREAS, Second Substitute Ordinance No. BL2010-645 was approved on April 22, 2010, and amended Ordinance No. 095-1379 by extending the initial term of the cable television franchise of Comcast for a period of one year, to and including May 5, 2011; and,

WHEREAS, Ordinance No. BL2011-865 was approved on April 21, 2011, and amended Ordinance No. 095-1379 and Second Substitute Ordinance No. BL2010-645 by extending the initial term of the cable television franchise of Comcast for a second additional year to and including May 5, 2012; and,

WHEREAS, Substitute Ordinance No. BL2012-122 was approved on April 19, 2012, and amended Ordinance No. 095-1379 and Ordinance No. BL2011-865 by extending the initial term of the cable television franchise of Comcast for a second additional year to and including May 5, 2013; and,

WHEREAS, the current extension of the term of the 1995 Franchise Agreement approved by Substitute Ordinance No. BL 2012-122 expires on May 5, 2013; and,

WHEREAS, pursuant to authority granted by Section 6.08.030 and 6.08.080 of the Metropolitan Code and under procedures established by Title VI of the Communications Act of 1934, as amended, 47 U.S.C. §§ 521 et seq., the CATV Special Committee has been engaged in the franchise renewal process with Comcast regarding whether to renew Comcast’s franchise and, if so, the content and term of a new franchise agreement for construction, maintenance, and operation of a cable television system; and,

WHEREAS, the CATV Special Committee has conducted a thorough review of the performance of Comcast under the 1995 Franchise Agreement, including the quality of service provided by Comcast, and an assessment of the community’s cable-related needs and interests, as called for in 47 U.S.C. § 546; and,

WHEREAS, in the course of the above-referenced performance review an audit was conducted which led to the discovery of a dispute between the parties as to the inclusion of certain types of revenues in the calculation of the franchise fee, but a Settlement Agreement and General Release (the “Settlement and Release”), a copy of which is attached hereto as Exhibit A, has been reached between the parties fully resolving this dispute; and,

WHEREAS, the CATV Special Committee has concluded, based upon available information, that Comcast has satisfied the requirements of the 1995 franchise agreement and that, contingent upon the execution and performance of the Settlement and Release, has paid all franchise fees owing to the Metropolitan Government; and,

WHEREAS, pursuant to the requirements of the Federal Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, the CATV Special Committee has completed a lengthy process, including public hearings, to identify the future cable-related needs and interests of Metropolitan Nashville and Davidson County; and,

WHEREAS, the CATV Special Committee has preliminarily determined that Comcast possesses the necessary financial, technical and legal qualifications and has plans for constructing, operating and maintaining its cable television system adequate to meet local needs; and,

WHEREAS, through extensive negotiations, the CATV Special Committee and Comcast have reached agreement with Comcast as to the terms of an informal franchise renewal under 47 U.S.C. § 546(h), whereby if a new franchise agreement is reached, it must be submitted to the Metropolitan Council for approval by ordinance; and,

WHEREAS, at its meeting on February, 26, 2013 the CATV Special Committee met and reviewed and recommended the terms of the Settlement and Release, a copy of which is attached hereto as Exhibit A, and the Cable Television Franchise Agreement Between The Metropolitan Government of Nashville and Davidson County and Comcast of Nashville I, LLC (the Franchise Agreement), a copy of which is attached hereto as Exhibit B; and,

WHEREAS, this Ordinance has been mandatorily referred to the Planning Commission pursuant to Section 11.505 of the Metropolitan Charter and has been assigned Proposal No. 2013M-001FR-001, which has been administratively reviewed and recommended for approval; and,

WHEREAS, it is in the public’s interest that the Settlement and Release and Franchise Agreement be approved and executed.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN COVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.

Section 1. That the Settlement and Release which is attached hereto as Exhibit A and which resolves any dispute between the parties regarding franchise fees owed under the 1995 Franchise Agreement, be and the same is hereby approved and the Metropolitan Mayor is authorized to execute said Settlement and Release.

Section 2. That the Cable Television Franchise Agreement Between The Metropolitan Government of Nashville and Davidson County and Comcast of Nashville I, LLC (the Franchise Agreement), which grants a franchise for an initial term of ten (10) years, and which Franchise Agreement is attached hereto as Exhibit B and made a part of this Ordinance, be and the same is hereby approved and the Metropolitan Mayor is hereby authorized to execute said Franchise Agreement.

Section 3. That the Metropolitan Clerk is hereby authorized to notice this Ordinance for public hearing, to be held on April 2, 2013.

Section 4. That the application provisions and other requirements of Section 6.08.040 of the Metropolitan Code Franchise Agreement are hereby waived and shall not apply to Comcast for purposes of this Franchise Agreement.

Section 5. That any provision of any ordinance of the Metropolitan Council and any provision of the Metropolitan Code of Laws which is in conflict with any provision of this Ordinance, is hereby repealed to the extent, but only to the extent, necessary to be consistent with this Ordinance.

Section 6. That this Ordinance shall take affect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Lonnell Matthews, Brady Banks

LEGISLATIVE HISTORY
Introduced:	March 19, 2013
Passed First Reading:	March 19, 2013
Referred to:	Budget & Finance Committee Personnel - Public Information Committee
Passed Second Reading:	April 2, 2013
Passed Third Reading:	April 16, 2013
Approved:	April 17, 2013
By: