City of Brentwood
Home PageContact Us!Back

City Administration

2010 Council Goals and Strategic Plan | City Council Members | Calendar of Events | Elections
eNotification | Sub-Committees| Pledge of Allegiance Sign Ups | Invocation Sign Up
Live Streaming Council Meeting | Streaming PC Help |
Streaming Mac Help |

Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 15

Meeting Date: February 10, 2004

Subject/Title: Approve a Resolution Adopting Findings of Fact for Material Breaches of Franchise and Issuance of Demand for Cure

Submitted By: Dennis Beougher, City Attorney
____________________________________________________________________________

RECOMMENDATION
Approve a resolution adopting Findings of Fact, declaring material breaches of the franchise agreements in Resolution 107X, as amended by Resolutions 83-33, 98-119, 98-160, 2408 and 2421 and violations of the related regulatory ordinances, Ordinance 181 and Chapter 5.24.300 of the Municipal Code. Demand cure of breaches within fifteen (15) days.

PREVIOUS ACTION
On December 9, 2003, the City adopted Resolution No. 3051 notifying Televents of East County, Inc. and Comcast of California IV, Inc. (“Comcast”) of the City’s intent to terminate the license agreement or cable television franchise and/or assess other penalties for material breach of the franchise agreement and related ordinances. On January 13, 2004, Comcast was allowed to present evidence that there was no material breach, which it did in the form of a written “Opposition” with exhibits and a “Statement on behalf of Comcast of California IV, Inc.”

BACKGROUND
On January 28, 1969, by Resolution No. 107X, the City issued to Triangle Cable Company, a California corporation, a franchise to construct, maintain and operate a community antenna television system. On January 11, 1972, by Resolution No. 195X, the City approved the transfer of the franchise to Televents of California, Inc., a California corporation. On July 10, 1973, the City approved the transfer of the franchise to Televents, Inc., a Nevada corporation. On October 12, 1982, at the request of the Franchisee, the City approved the transfer of the franchise to Televents of East County, Inc., a Nevada corporation. On June 28, 1983, by Resolution No. 83-33, the City amended the License Agreement issued to Televents of East County, Inc., a Nevada corporation. On June 23, 1998, by Resolution No. 98-119, the City extended the term of the Cable Television Franchise with Televents of East County, Inc., a Nevada corporation, until September 30, 1998. On September 8, 1998, by Resolution No. 98-160, the City granted a Cable Television Franchise to Televents of East County, Inc., a Nevada corporation, until September 30, 2001. On November 13, 2001, by Resolution No. 2408, the City granted a Cable Television Franchise to Televents of East County, Inc., a Nevada corporation, from October 1, 2001 through September 30, 2003. On December 6, 2002, the City was given written notification that “the cable operator in your community, Televents of East County, Inc. has changed its name to Comcast of California IV, Inc.” and that “there has been no transfer of the franchise serving your community.”

On November 19, 2003, the City learned for the first time, in documents submitted by Comcast, that the cable operator seeking franchise renewal, “Comcast of California IV, Inc.,” was in fact a different Wyoming corporation, not the same Nevada corporation which had been granted the franchise. The documents submitted by Comcast at the hearing of January 13, 2004, revealed that on April 29, 1983, contrary to the approval by the City, the franchise was in fact transferred to a Wyoming corporation other than the Nevada corporation approved by the City, in violation of the franchise agreement and City ordinances. The City had never received any information concerning, or commitments by, the Wyoming corporation. Until January 13, 2004, the City had no knowledge of this transfer and, in fact, was led to believe by two written assurances of Comcast that there had never been any change in the ownership of the franchise.

FISCAL IMPACT
None.

Attachment:
Resolution

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL MAKING FINDINGS OF FACT, DECLARING A MATERIAL BREACH OF THE FRANCHISE AND ISSUING A 15-DAY DEMAND FOR CURE

WHEREAS, on December 9, 2003 by Resolution No. 3051, the City of Brentwood issued to Televents of East County, Inc. and Comcast of California IV, Inc, a notice of intent to terminate the cable television franchise for material breach; and

WHEREAS, on January 13, 2004, Comcast of California IV, Inc. presented a written Response to Resolution No. 3051 with exhibits and a Statement on its behalf; and

WHEREAS, the City has considered all the evidence, documents and statements produced by Comcast of California IV, Inc. and the City staff.

NOW, THEREFORE, BE IT RESOLVED that the City Council hereby adopts the Findings of Fact and Conclusions of Law incorporated herein.

BE IT FURTHER RESOLVED that the City hereby finds that there have been material breaches of the franchise agreement and related City ordinances, Ordinance No. 181 and Chapter 5.24.300 of the Municipal Code, specifically:

Resolution No. 83-33, section 11 for failure to first obtain the City’s approval of the financial capacity and financial responsibility of any transferee or assignee prior to transferring or assigning its rights thereunder;

Municipal Code section 5.24.300 (a) for assigning and transferring the Franchise or Cable System without the prior written consent of the City Council;

Municipal Code section 5.24.300 (c) for failing to promptly notify the City of any actual or proposed transfer of, or acquisition by any other party of control of, or a change in a controlling interest in, the Franchise or the Cable System;

Municipal Code section 5.24.300 (d) for failure of the proposed assignee or transferee of the Franchise or the Cable System to show legal, technical, character and financial qualifications;

Municipal Code section 5.24.300 (g) for failure of the successor(s) in interest agreeing in writing to abide by all terms and conditions of the Franchise before approval of the transfer;

In the alternative or in addition, Municipal Code section 5.24.330 D (1968) for selling, transferring, leasing, assigning or disposing of the franchise without obtaining the prior consent of the City Council expressed in writing;

In the alternative or in addition, Municipal Code section 5.24.330 D (1968) for not filing with the City Council thirty (30) days prior to the sale, transfer, assignment or lease of the franchise, written evidence of the proposed transaction certified to by the grantee or its duly authorized officers;

In the alternative or in addition, Municipal Code section 5.24.330 D (1968) for failure of the proposed assignee, purchaser or lessee to show financial responsibility to the satisfaction of the City and agreeing to comply with all the provisions of this chapter of the Municipal Code.

BE IT FURTHER RESOLVED that pursuant to Municipal Code section 5.24.440, the City Council demands that these breaches be cured within fifteen (15) days of the date hereof.

BE IT FURTHER RESOLVED that if such breaches are not cured, the City Council will hold a further proceeding on Tuesday, March 9, 2004, in the City Council chambers to terminate the franchise and/or assess penalties as provided by Chapter 5.24.300 and 5.24.430 of the Municipal Code.

BE IT FURTHER RESOLVED that at such further proceeding, Televents of East County, Inc. and Comcast of California IV, Inc. shall be afforded the same fair opportunity for full participation as provided in Section 626 (c) (2) of the Cable Act.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 10th day of February 2004, by the following vote:
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov