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2005-089e RESOLUTION NO. 2005-089 RESOLUTION OPPOSING PROPOSED CHANGES TO FEDERAL TELECOMMUNICATIONS LAWS At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on the 27th day of June, 2005, at 7:30 P.M. The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Council Members ABSENT: Joseph Ruggiero Joseph P. Paoloni Robert L. Valdati Vincent F. Bettina Maureen McCarthy The following Resolution was introduced by Ms. McCarthy and seconded by Mr. Paoloni WHEREAS, it has come to the attention of the Town Board of the Town of Wappinger that the United States House of Representatives is considering legislation that may threaten local cable and telephone franchises; and WHEREAS, the proposed legislation being considered by the United States House Telecommunications Subcommittee may preempt local cable and telephone franchises and fees in order to aid telephone companies to rapidly provide nationwide cable service; and o:\Wappinger\Town Board/Resolutions\Opposing Changes to Federal Communications Laws FINAL WHEREAS, the proposed revision of the Federal Telecommunication Laws would appear to impact upon telephone companies which are seeking to provide cable service which _would include video, voice an data services over one wire; and WHEREAS, various cable providers have taken the position that in the event of a revision of the Federal Telecommunications Laws occurs, said revisions should also apply to them, which could presumably lead to the cable companies being relieved of existing franchise obligations; and WHEREAS, the current cable franchises and fees may be at risk in the event that Federal Telecommunications Laws are revised; and WHEREAS, the Town of Wappinger currently has a cable franchise agreement with Cablevision Inc. that includes cable franchise fees that may be at risk in the event that the Federal Telecommunications Laws are revised. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. The Town Board of the Town of Wappinger hereby determines that it is in the best interest of its citizens to oppose the proposed changes to the Federal Telecommunications Laws as proposed and currently being considered by the United States House of Representatives. 3. The Town Clerk is hereby authorized to send a copy of this Resolution to Senator Charles Shumer, Senator Hillary Clinton and Congresswoman Sue Kelly. The foregoing was to a vote which resulted as follows: put JOSEPH RUGGIERO, Supervisor Voting JOSEPH P. PAOLONI Councilman _..._ s - Voting ROBERT L. VALDATI, Councilman Voting VINCENT F. BETTINA, Councilman Voting MAUREEN MCCARTHY, Councilwoman Voting Aye .Aye_. __. _. Aye Aye Aye Dated: Wappingers Falls, New York The Resolution is hereby duly declared adopted. 27, June , 2005 PIN C. S SON , TOWN CLERK �,�� 'e'er,. �a..�' � •' 3 PR g OF VANN., DDE DTi ATTORNLYS AT LAW BRIDGEWATER PLACE • POST OFFICE BOX 352 GRAND RAPIDS, MICHIGAN 49501.0352 TELEPHONE 616 / 336.6000 • FAX 616 / 336.7000 • WWW .VARNUMLAW .COM/CABLE JAMES N. DEBOER, JR. TERESA S. DECKER DAVID E. PRESTON KENT J. VANA LAWRENCE P. BURNS JEFFREY W. BESWICK DONALD L. JOHNSON MATTHEW D. ZIMMERMAN ELIZABETH JOY FOSSEL DANIEL C. MOLHOEK WILLIAM E. ROHN JOAN SCHLEEF _ TIMOTHYJ.CURTIN JOHN PATRICK WHITE SCOTT A. HUIZENGA DIRK HOFFIUS CHARLES M. DENTON KATHLEEN P. MAINE THOMAS J. BARNES JEFFREY D. SMITH JEFFREY J. FRASER RICHARD A. KAY MARK L. COLLINS RICHARD D. FRIES LARRY J. TITLEY JONATHAN W. ANDERSON JAMES R. STADLER FREDRIC A. SYTSMA CARL OOSTERHOUSE, P.C. RICHARD R. SYMONS JOHN W. ALLEN WILLIAM J. LAWRENCE III RONALD G. DEWAARD JACK D. SAGE SUSAN M. WYNGAARDEN ANDREW J. KOK JEFFREY L. SCHAD KAPLIN S. JONES, P.C. PATRICK A. MILES, JR. JOHN W. PESTLE STEPHEN P. AFENDOULIS ERIC). GUERIN FRANK G. DUNTEN, P.C. DAVID E. KHOREY STEVEN J. MORREN NYAL D. DEEMS MICHAEL G. WOOLDRIDGE KEVIN ABRAHAM RYNBRANDT RICHARD A. HOOKER TIMOTHY J. TORNGA THOMAS G. KYROS, P.C. RANDALL W. KRAKER PERRIN RYNDERS ALFRED L. SCHUBKEGEL, JR. PETER A. SMIT MARK S. ALLARD PAMELA J. TYLER MARILYN A. LANKFER TIMOTHY E. EAGLE JON M. BYLSMA G. MARK MCALEENAN, JR. DAVIDA. RHEM JOSEPH B. LEVAN THOMAS L. LOCKHART DONALD P. LAWLESS DALE R. RIETBERG BRUCEGOODMAN MICHAEL S. MCELWEE HARVEYKONING JOSEPH) VOGAN JACQUELINE D. SCOTT ANTHONY R. COMDEN ERIC J. SCHNEIDEWIND N. STEVENSON IENNE17E III BEVERLY HOLADAY LAWRENCE J. MURPHY PETER J. Liv INGSTON ERIC C. FLEETHAM JOHN W. PESTLE WEB SITE www.vamumlaw.conVeable JUN' 0 G 200117) PAMELA EMENHEISER DAVID K. PORTER COUNSEL RICHARD A. SAMDAL KRISTEN M. BEUTLER TERRANCE R. BACON DEBORAH L ONDERSMA KEVIN R. SCHAAF DENNIS M. DEVANEY SCOTT D. ALF REE MELISSA B. PAPKE MICHAEL W. DONOVAN ANNETTE D. NICKEL TIMOTHY]. LUNDGREN RANDALL J. GROENDYK STEPHANIE R. SETTERINGTON AARON M. PHELPS BRUCE R. GRUBB BRYAN R. WALTERS BRETT A. RENDEIRO ELIZABETH A. JAMIESON DEAN F. REISNER JEFFREY J. CANFIELD KEVIN C. O'MALLEY PAUL M. MORGAN ALLISON C. REUTER RICHARD D. RATHBURN KIMBERLY A. CLARKE CHRISTOPHER J. CALDWELL JOLENE C. SHELLMAN CHRISTOPHER M. FOWLER ERIC W. BREDEMEIER ELIZABETH WELLS SKAGGS CHARLES N. ASH, JR. SCOTT J. HILL DONALD SNIDE MARK E. HILLS KRISTA A. HOEKSTRA JENNIFER J. STOCKER JOSHUA M. WALLISH BARBRA EVANS HOMIER JOHN A. WATERS CHRISTOPHER M. BROWN JOSHUA VOIGHT VAN HOVEN OF COUNSEL PETER G. ROTH BRION B. DOYLE EUGENEALKEMA MARY KAY SHAVER KATHRYN D. HUSKEY PETER ARMSTRONG JUDE W. PEREIRA PAUL J. GREENWALD BRUCE A. RT KIMBERLY BABER JASON L. BUDD JOHN ARLYLE ADAMJ.BRUUY THOMAA S GG. ,DE DEMLING KURT M. GRAHAM JON F. STEVE S. KLUTING ROBERTT DD. . KULULLCREN CYNTHIA WARREN J. TERRY MORAN CHRISTOPHER J. DURA H. EDWARD PAUL DARREN MALEK F. HILAELL MATTHEW B. EUGSTER CARL E ER BE CA RL E. VER BEEK DIRECT DIAL 616/336-6725 E-MAlLjwpestle@vamumlaw.com MEMORANDUM TO: Municipalities /4' ��� i� ` FROM: John Pestle, Pat Miles, Tim Lundgren RE: Federal Threat to Cable and Telephone Franchises, Fees, Cell Tower Zoning - Email Alert DATE: May 12, 2005 Representativet' ilsi considering legislatiottwhich threatens kcal .. mss, .._:m cable `Y :: .16 the, -its of way. ,. Local zoning of cellular; towers, hay be w s we have done in the past, we will be alerting municipalities about the legislation, actio they should take,`letteit io,vwn-te Congress to preserve franchising and their rights, and the like: l'ese sign up ori.line at,.vainumlaw.com/cable/newsletter or return the`attached form to receive our email alerts about this Federal legislation and our new cable and telecommunications newsletter by email. Mailing alerts by regular mail is simply too slow and expensive. The newsletter will also cover topics such as the proposed sale of all Adelphia and many Comcast, Time Warner, and Cox cable systems nationwide to other companies. Federal Legislation Preempting Franchises: The U.S. House Telecommunications Subcommittee J considering legislation which will likely preempt local cable and telephone franchises and fees in order to ai telephone companies to rapidly provide cable service nationwide. Although the Subcommittee will not have GRAND RAPIDS • LANSING • KALAMAZOO • GRAND HAVEN • NOVI • MILWAUKEE �HOWLETT RIDDERING SCHAII"r ATTR KYS AT LAW � bill before it until late May, its preferred solution is clear: A rewrite of Federal telecommunications laws to have one set of national rules for phone companies providing video (cable), voice, and broadband service, and in the process to largely preempt state cable and telephone franchising. For example, the Chair of the House Commerce Committee is saying there has to be one "Federal policy with Federal rules" and not "rules set by thousands of local franchising authorities" for companies providing these services, and several Representatives spoke in favor of a national cable franchise, presumably administered by the FCC. Congress is responding to the phone companies which are starting to provide cable service so they can offer a package of video, voice, and data services over one wire. The phone companies claim that having to get local cable franchises is one of the biggest roadblocks to their being able to quickly enter the cable business, hence the proposal for a national cable franchise administered by the FCC. Cable companies have said that if new legislation occurs, it should apply to them as well, and presumably they should be relieved of existing franchise obligations. Thus, current cable franchises and fees are at risk as well as new franchises for telephone companies providing cable service. This legislation will move very quickly — Congressional leaders want it through the relevant committees and on the House floor by August. Municipalities need to promptly contact their U.S. Representative about the legislation — see sample letter attached. Electronic copies are on our website www.vamumlaw.com/cable. Our email alert and newsletter will keep you up to date on new developments as this legislation progresses, so you can contact Lannels; ur Representative and Senator to preserve local franchising; fees; public, government, and education control of the rights of way; and the like. Cellular Tower Zoning: Cellular industry publications state that if there is telecommunications legislation this year, the cellular industry will push for restrictions or preemption of local zoning of cellular towers. Municipalities were largely successful in preserving local zoning over cell towers ten years ago, in the 1996 Federal Telecommunications Act. They will need to be active to preserve their rights this year. Cable Systems Systems BeingSold: Many cable systems nationwide are being sold. Typically, a municipality has the right to review a proposed sale and condition it if its cable franchise so provides. Municipalities do this to make sure they and their residents are no worse off after the sale than before, and to make sure outstanding violations and issues are addressed before the sale takes place. In a key decision, Federal Courts have rejected claims that municipalities cannot do this. However, generally a municipality has only 120 days to act on a proposed sale. Normally cable companies reimburse municipalities for the costs (including attorney's fees) and expenses associated with reviewing a proposed sale. Cable systems currently being sold include: • All Adelphia systems • Cox systems in Texas, Oklahoma, and Arkansas • Many Comcast systems nationwide • Many Time Warner systems nationwide. 2 VDDERNUDT HOMVLETT , . s ATTORNEYS AT LAW We have represented over 100 municipalities in connection with sales of their cable systems. Our email alerts and newsletter will provide information on the proposed cable system sales. A paper on municipal rights in such sales is available on our website at www.vamumlaw.com/cable. Email newsletter: Although our mailings will continue on selected items, they will be cut back. Emailed newsletters and alerts are the only effective means to communicate on issues where timing is important, such as on Federal legislation or cable transfers (where as noted above there is a very short window of opportunity for municipalities to act). Please return the attached form or sign up on our website at www.varnumlaw.com/cable/newsletter to receive our email newsletters and alerts. If you have any questions, please call John Pestle, Pat Miles, or Tim Lundgren at (616) 336-6000. 1119259_ 1.DOC t t FEDERAL CABLE LEGISLATION EMAIL ALERT, CABLE/TELECOM NEWSLETTER Please send me your email alerts and your newsletter on cable and telecommunications matters from a municipal perspective. They will cover items such as: • Federal legislation to preempt or limit cable and telephone franchises, fees, channels for local schools and governments, control of the rights of way and the like. • Proposed sales of cable systems to new companies, where municipalities can often benefit themselves and their citizens by carefully reviewing the proposed sale. • Any Federal legislative proposals to restrict local zoning of cellular towers. We are only providing our email alerts and newsletters to municipalities and their attorneys, nox to telephone or cable companies or their attorneys. To sign up and indicate you meet this requirement, please complete this form and fax or mail it to us. Alternatively, sign up for the alerts and newsletter online at www.vamumlaw.com/cable/newsletter. 0 I am a municipal official ❑ I am counsel for a municipality CONTACT INFORMATION Municipality/Firm: Name: Title: Address: Cable Company (optional) Phone: E-mail: Fax: (Comcast, Cox, Time Warner, etc) To receive email alerts and newsletter: • Sign up online at www.varnumlaw.com/cable/newsletter • Fax this form to Barbara Allen at 616-336-7000, or • Mail or email it to Barbara Allen Varnum, Riddering, Schmidt & Howlett LLP P.O. Box 352 Grand Rapids, MI 49501-0352 Phone: 616-336-6743; Fax: 616-336-7000 baallen()vamumlaw.com 1118998_2.DOC **Be sure and send copies as indicated—these are key legislators on this legislation** **Send copies to municipal groups as indicated so they can follow up** **Fax or email copies—Security screening delays mailed letters** "This letter, as well as TX, IL, OH and MI versions of letter are at** www.varnumlaw.com/cable The Honorable House Office Building Washington, DC 20515 Dear Representative [your U.S. Representative] via mail and facsimile Please preserve cable franchising, localism and fees paid by cable and telephone companies in any rewrite of our telecommunications laws to address Internet Protocol (IP) services. The fact that Internet Protocol technology can be used to provide a cable like video service does not change the fact that to the customer it is like conventional cable service and is provided over wires located in the public rights of way. We still need to protect our streets, and our residents need the benefits and protections provided by cable franchises. These provisions can only be enforced locally, not by some bureaucrat in Washington. Currently cable -type companies must obtain franchises from each municipality they serve. Both we and our residents need the protections cable franchises provide. For example franchises: • Prohibit redlining or similar discrimination, and require all areas with a certain number of homes per mile to be served, and served promptly (no long delays in serving minority areas) • Ensure that we can manage the streets so that all types of users (cars, pedestrians, utilities) can use them with the least amount of interference with other users, including compliance with safety codes. These provisions are tailored to our local situation. • Require providers to repair streets they harm, and relocate lines at their expense when streets are straightened or widened. • Require bonds, insurance and other security so our city and residents are protected if the provider causes damage or (in a competitive environment) goes out of business. • Require cable channels (miniature C-SPANs) for local units of government, schools, and public access and funding from the cable company to support such channels. • Provide compensation (franchise fees) to our municipality for the provider's use of public property, and audits to ensure the correct amount is paid • Set forth customer service protections and enforcement mechanisms, including having our municipality resolve customer disputes when problems arise. • Require the carriage of local emergency alerts which are not carried on the federal emergency alert system. Page 2 These types of provisions have been in cable franchises for 50 years, work well, are needed, and must be continued. For example,, we _still, .have to, managethe rights of way,_ no matter what technologies are used in wires placed there. Through the franchising process, we are able to prevent redlining and assure that all our residents get cable service (excluding only thinly populated areas). We determine how many channels and what funding are needed for government, education and public channels, and whether and when such channels should be shared or reallocated. Similarly, we set and enforce customer service provisions based on our situation and the problems our citizens tell us they are having—from not answering the phone on time to leaving the cable drop to the house lying on the ground where people can trip on it. We set these franchise terms so they meet our unique, local situation. There is no national "one size fits all". Similarly, enforcement of these provisions has to be local—the provisions are essentially meaningless if we or a customer has to go to the FCC in Washington to enforce them. The FCC cannot manage local rights of way, inspect a street the cable company dug up and poorly repaired, or help a customer who has been overcharged or denied service. Having two companies (cable company and now the phone company) providing cable service does not remove the need for these provisions because having two near monopoly suppliers is not real competition. For example, real competition in cell phone rates and service only occurred in the last few years when the number of providers expanded beyond the initial two providers. And competition does not remove the need for municipalities to manage the rights of way, prevent redlining, have government channels, provide for local emergency alerts, and receive franchise fees, etc. So IP technologies do not remove the need for the city, consumer and public protections that franchises provide. Overall, IP is simply the latest in a series of technologies that providers have used. In the 1950's and 60's they had 8 -channel systems using vacuum tubes and analog technologies to provide "I Love Lucy" and local TV stations. With IP you will still have local TV stations, and "I Love Lucy" as a rerun. IP providers still use the streets for their wires—in fact, the phone companies will have to replace many of their lines in the streets to provide IP services. So with IP the basic nature of cable TV and need for local franchises is the same, even though the technology is improved. Many of these cable type franchise protections are needed for IP broadband service, such as cable modem service, as well. For example, the only reason broadband services are broadly available in many communities is because the main provider is the cable operator, and that company's cable franchise typically requires it to provide service throughout the community. By contrast, some phone companies such as SBC are proposing to construct their broadband system so as to provide services to only a portion (50%-60% of residents) in the communities they serve. Such redlining is not acceptable. Just as with cable, municipalities must be able to prevent redlining and make sure that the information superhighway, just like regular highways, is available to all their residents. Page 3 Similarly, in many states telephone companies obtain local franchises and permits and pay fees and taxes at the state and local level on their services. These approvals and payments need to be continued, so that all telephone companies are treated alike, whether or_ not, they provide Internet Protocol services. For these reasons, we ask you to support the continuation of cable -type franchising for cable and broadband services and the fees currently paid by telephone companies. Sincerely, cc: The Honorable Joe Barton fax 202-225-3052 2109 Rayburn House Office Building Washington, DC 20515-4306 The Honorable Fred Upton fax 202-225-4968 2161 Rayburn House Office Building Washington, DC 20515-2206 The Honorable John Dingell fax 202-226-0317 2328 Rayburn House Office Building Washington, DC 20515-2215 The Honorable Edward Markey fax 202-226-0092 2108 Rayburn House Office Building Washington, D.C. 20515-2107 The Honorable Ted Stevens fax 202-224-2354 522 Senate Hart Office Building Washington, DC 20510-0201 The Honorable Daniel Inouye fax 202-224-6747 722 Senate Hart Office Building Washington, DC 20510-1102 The Honorable Conrad Burns fax 202-224-8594 187 Senate Dirksen Office Building Washington, DC 20510-2603 The Honorable Senate Office Building Washington, DC 20510 [your U.S. Senator] fax 202- 0 Page 4 The Honorable Senate Office Building _ Washington, DC 20510 bc: Ms. Cheryl Leanza Principal Legislative Counsel National League of Cities 1301 Pennsylvania Avenue NW Suite 550 Washington D.C. 20004 Ms. Elizabeth Beaty Executive Director NATOA 1800 Diagonal Road Suite 495 Alexandria, VA 22314 Mr. Jeffrey Arnold [your other U.S. Senator] fax 202 - Deputy Legislative Director National Association of Counties 440 First Street, N.W. 8th Floor Washington DC 20001 Mr. Ron Thaniel Assistant Executive Director U.S. Conference of Mayors 1620 I Street Fourth Floor Washington, DC 20006 Mr. John Pestle Vamum, Riddering, Schmidt, Howlett LLP Bridgewater Place Box 352 Grand Rapids, MI 49501-0352 Ms. Sona Pancholy Associate Counsel International Municipal Lawyers Assoc 1110 Vermont Ave, NW Washington, D.C. 20005 1113876_1.DOC VUMAn c v RNpT NV\VLETT 11 V. { DERING SCHaIi ATTORNEYS AT LAS BRIDGEWATER PLACE • POST OFFICE BOX 352 GRAND RAPIDS, MICHIGAN 49501.0352 TELEPHONE 616 1336-6000 • FAX 616 /336-7000 • W W W. VAMUMLAW.COM/CABLE MODEL DOCUMENTS AVAILABLE Varnum has represented over 200 municipalities in many states on a range of cable and telecommunications matters. We have the following model documents available. For detailed information on any of them, check the box and return the form to us in any of the following ways`. • Call Barb Alien at (616) 336-6743 • Fax this form back and we will fax detailed information, or • Visit our website at www.varnumlaw.com/cable The model documents are: 13 Short Form Model Cable franchise (generally for smaller municipalities) 11 Long Form Model Cable franchise (generally for larger municipalities) 11 Model Cellular Tower Lease with protections against bankruptcy of the cellular provider in three versions (new tower; antenna on existing building, water tower; antenna on communications tower) ❑ Model Cellular Zoning Ordinance to help regulate the zoning of the 125,000 new cellular towers that are planned nationwide. ❑ Model Cable Customer Service Ordinance to provide meaningful enforcement of the FCC's cable customer service rules and enhancements to better meet municipal needs, MUNICIPAL INFORMATION Municipality/Firm: Name: Title: Address: Phone: Fax: E-mail: Please mail or fax this form to the attention of Barb Allen at Varnum, Riddering, Schmidt HowlettLLP 333 Bridge Street, NW P.O. Box 352 Grand Rapids, MI 49501-0352 Phone: 616-336-6743; Fax: 616-336-7000 baallen(@vamumlaw.com 05/05 1120363 1.DOC