HomeMy WebLinkAbout01-171.docAPRIL 10, 2001
(CARRIED
PURPOSE:
INITIATED BY:
01-171 RESOLUTION
6-0-1P LOST LAID OVER WITHDRAWN )
ESTABLISH SCHEDULING ORDER/ADMINISTRATIVE HEARING TIME-
WARNER ENTERTAINMENT COMPANY, L.P. FRANCHISE RENEWAL
CITY ADMINISTRATION
WHEREAS, on January 22, 1987 the City of Oshkosh, Wisconsin ("City") passed and
adopted Ordinance No. 455 granting a cable television franchise ("Franchise") to Time Warner
Entertainment Company, L.P. ("Time Warner"); and
WHEREAS, the Franchise was set to expire on December 31, 2000; and
WHEREAS, the Common Council, by resolution 00-498 adopted December 12, 2000,
extended the franchise until February 28, 2001, and further extended the franchise to May 31,
2001, by resolution 01-114 adopted February 27, 2001; and
WHEREAS, pursuant to Section 47 U.S.C. § 546(a) Time Warner provided notification
to the City of Time Warner's intent to seek renewal of the Franchise under 47 U.S.C. § 546(a-
g); and
WHEREAS, pursuant to Section 47 U.S.C. § 546(a) the City properly commenced
franchise renewal proceedings; and
WHEREAS, the City and Time Warner initially engaged in informal renewal
negotiations, pursuant to 47 U.S.C. § 546(h), but were unable to arrive at a mutually
acceptable franchise agreement; and
WHEREAS, both the City and Time Warner desire to expressly reserve all of their
respective rights under state and federal law; and
WHEREAS, the City issued a Cable Television Franchise Renewal Formal Needs
Assessment ("Needs Assessment") on August 16, 2000; and
WHEREAS, the City established September 29, 2000 as a deadline for Time Warner's
response to the Needs Assessment; and
WHEREAS, on September 29, 2000 Time Warner submitted to the City its Formal
Proposal in response to the Needs Assessment ("Proposal"); and
WHEREAS, pursuant to 47 U.S.C. § 546(c) the City has four (4) months from September
29, 2000 within which to either renew Time Warner's Franchise or issue a preliminary
assessment that the Franchise should not be renewed; and
WHEREAS, on December 27, 2000 the City adopted Resolution No. 00-509 issuing a
Preliminary Assessment that Time Warner's Franchise should not be renewed; and
APRIL 10, 2001
01-171 RESOLUTION
CONT'D
WHEREAS, on January 3, 2001 Time Warner requested that the City commence an
administrative hearing pursuant to 47 U.S.C. § 546(c); and
WHEREAS, the City and Time Warner have simultaneously continued to pursue informal
negotiations pursuant to 47 U.S.C. § 546(h) and in that vein on February 9, 2001 the City
received comments from Time Warner regarding the City's draft Regulatory Ordinance and
Franchise Agreement; and
WHEREAS, on or about February 20, 2001 the City appointed the law firm of Boardman,
Suhr, Curry & Field, LLP ("Boardman Law Firm") of Madison, Wisconsin as legal counsel to
represent the City in the administrative hearing; and
WHEREAS, on March 9, 2001 the City requested of both Time Warner and the
Boardman Law Firm proposals regarding the procedures for the conduct of the administrative
hearing, including ore-hearing discovery; and
WHEREAS, on March 22 and 23, 2001 respectively, the Boardman Law Firm and Time
Warner submitted recommended procedures as requested;
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh
as follows:
1. Each of the above recitals is hereby incorporated within this resolution.
After reviewing the procedural requests of Time Warner and the Boardman Law Firm, the
City hereby establishes procedural guidelines for purpose of the administrative hearing
under the Cable Communications Policy Act of 1984 as follows:
A. Pre-hearing Discovery:
(1)
Each side is permitted unlimited requests for production of documents and
twenty-five (25) interrogatories. With respect to interrogatories, the
following rules apply:
(a)
Interrogatories are to be answered by any officer or agent of either
party, who shall furnish such information as is available to the party;
(b)
Each interrogatory is to be answered separately and fully in writing
under oath, unless it is objected to, in which event the objecting party
shall state the reasons for the objection and answer to the extent that
the interrogatory is not objectionable. All objections shall be stated
with specificity and any ground for objection which is not stated in a
timely manner is waived unless the party's failure is excused by the
City for good cause shown;
APRIL 10, 2001
01-171 RESOLUTION
CONT'D
(c)
Interrogatories will be answered within thirty (30) days after service
of the interrogatories or after notice of the rules governing discovery
are served on the parties, whichever is later;
(2)
Each side is permitted to take up to seven (7) depositions, with each
deposition lasting no longer than seven (7) hours.
(3) For good cause shown, either party may request leave from the City
Council from the above limitations on interrogatories and depositions.
(4) The City Council will rule on all discovery disputes, which may arise.
(5) Discovery shall close fifteen (15) days before the administrative hearing.
B. Pre-hearing Disclosures:
(1)
Each side shall disclose to the other the identity of any person who may be
used at the hearing to present expert testimony forty-five (45) days prior to
the hearing date. The disclosure must be accompanied by a written report
prepared and signed by the expert which shall contain a complete
statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the expert in forming
his or her opinions; and any exhibits to be used as a summary or in support
of the opinions so rendered; the qualifications of the witness, including a list
of all publications authored by the witness within the preceding ten (10)
years; the compensation to be paid for the study and testimony of the
expert; and a listing of other cases in which the expert has testified at trial
or in deposition within the preceding four (4) years.
(2)
Exhibits and witness lists will be mutually exchanged one (1) week prior to
hearing date. Witness lists will briefly state the subject of the expected
testimony of each witness.
(3) Pre-hearing briefs, not to exceed forty (40) pages, will be mutually
exchanged one (1) week prior to the hearing date.
C. Administrative Hearing:
(1)
The hearing will begin on September 18, 2001, at 5:30 p.m., Room 406,
City Hall, 215 Church Avenue, Oshkosh, Wisconsin, and will proceed for
three days, and may be recessed from day-to-day thereafter;
(2)
Each side may be represented by an attorney and shall be afforded the
opportunity to compel and present relevant evidence and call and examine
witnesses and cross-examine witnesses of the other party;
APRIL 10, 2001
01-171 RESOLUTION
CONT'D
(3) Witnesses will be sworn;
(4) The hearing shall be videotaped and transcribed by a court reporter;
(5)
Post-hearing briefs will be permitted in lieu of closing argument. Briefs will
be mutually exchanged twenty-one (21) days after a transcript of the
hearing is served on the parties;
(6)
The Oshkosh City Council will issue a written decision granting or denying
the proposal for renewal based upon the record of the proceeding and
stating the reasons therefore, pursuant to the Cable Communications Policy
Act of 1984.
Neither the City's August 16, 2000 Needs Assessment or Time Warner's September 27,
2000 Proposal have been amended nor modified in any way since the dates submitted.
The City finds that its actions are appropriate and reasonable in light of the mandates
contained in federal law including 47 U.S.C. § 546.
PASSED AND ADOPTED this 10th day of April 2001.
CITY OF OSHKOSH, WISCONSIN
By:
Attest:
Jon C. Dell'Antonia, Mayor Pamela R. Ubrig, City Clerk