Municipal Cable Franchising
Bradley Werner, LLC was founded for the primary purpose of representing local governments on cable franchising matters. The Firm has been a leader in negotiating competitive cable franchises and in informal and formal cable franchise renewal negotiations and proceedings. The firm has also represented local governments across the country in litigation to protect cable franchising rights . Our firm has also assisted local governments in establishing adequate PEG funding and Institutional Networks for their communities and in developing adequate local code provisions related to cable franchising and the public rights-of-way. Bradley Werner’s Telecommunications Law Group includes Mike Bradley, Nancy Werner and Michael Athay, together bringing decades of cable and telecommunications legal experience to the firm.
One of our core competencies is our deep knowledge of federal communications law and breadth of experience advocating on behalf of local governments in the courts, Congress and before the Federal Communications Commission (FCC) and other administrative agencies. We ensure our local government clients understand how federal communications law and policy impacts local franchising and public rights-of-way management. Given the FCC’s on-going assertion of regulatory authority over many elements of traditional local franchising authority, it is increasingly important for local government officials to follow and participate in the federal regulatory processes that are driving many of these changes. We can provide guidance and representation in the FCC proceedings and federal litigation that shape local authority to address the communications needs of our communities and to protect public property. Members of the firm’s Telecommunications Law Group participated extensively in the FCC’s proceeding aimed at reducing cable operators’ franchise fee payments and limiting local authority over their non-cable facilities, including filing comments, reply comments and numerous ex parte letters with the FCC. We also participated in the legal challenge to the FCC’s final order before the Sixth Circuit Court of Appeals and the Supreme Court.
Cable Franchise Renewals
The attorneys at the firm have participated in, managed and negotiated numerous cable franchise renewals throughout the United States. We recognize that each franchising authority can have a different experience with their cable operator. We work with each franchising authority to develop a scope of work that will result in the franchising authority meeting its goals at a reasonable cost. We are intimately familiar with the limitations placed on local franchising authorities by the federal Cable Act, the Telecommunications Act of 1996, the FCC’s Section 621 Orders, but seek to construe these limitations in the manner most favorable to local governments in an effort to maximize the financial and in-kind benefits that can be obtained through franchise renewal. We have conducted and overseen numerous needs assessments, compliance audits, technical audits, subscriber surveys and financial analyses, have drafted Requests for Renewal Proposals, and have prepared for administrative proceedings, although it has not yet proven necessary to hold such proceedings. We have also developed creative solutions for renewing franchises informally.
Competitive Cable Franchising
Bradley Werner has addressed the complicated issues arising out of the competitive franchising process on behalf of dozens of cities nationwide, including having negotiated some of the first competitive franchises in the country. The firm negotiated the Twin Cities Metro PEG Interconnect Network that will benefit cities throughout the region and allow live program sharing by all participating members. The firm advises cities on the process it must follow in acting on a competitive cable franchise application and how to address the many different legal issues affecting competitive cable franchising, such as reasonable build-out requirements, the prohibition of economic redlining, level playing field provisions, PEG commitments, and Indemnification.
Cable Franchise Transfer of Ownership
Bradley Werner has represented hundreds of cities throughout the country in complex transfer matters for more than 20 years. Our experience is that the Federal Communications Commission’s Form 394 typically does not supply sufficient information to assist cities in determining if a new owner will meet the technical, legal and financial qualifications required by our franchise authority clients. For this reason, we assist our clients in carefully analyzing their existing franchise and other commitments of the existing provider and requesting additional information from the proposed purchaser to determine if it is willing and able to comply with all existing requirements and expectations of the franchise. Because federal law requires that any approval or rejection occur within 120 days of the receipt of the completed FCC Form 394, we will work with clients to complete the review process in that time or to obtain an extension or tolling agreement.
Institutional Networks (I-Nets)
Our Firm has significant I-Net experience having negotiated and enforced I-Net requirements on behalf of numerous clients nationally. Many of these networks are now utilized for video, voice and data communications and are interconnected with other networks of surrounding areas for the seamless transmission and receipt of communications across networks, permitting local governments to share video programming and other applications. We have also negotiated for long-term exclusive use of cable operator-constructed I-Net assets and for long term exclusive use of dark fiber owned by the cable operator for municipal network purposes.
PEG Access Television
We have extensive experience counseling local governments and public access facility operators on a litany of issues, including (but not limited to):
- Protection and enforcement of copyrights and copyright compliance;
- Closed captioning requirements under the FCC and ADA rules;
- Drafting policies and procedures for the use of public access facilities and equipment;
- Resolving First Amendment issues arising out of programming cablecast (or not cablecast) on public access channels;
- Drafting channel loan agreements;
- Advising government access channel operators on risks and best practices associated with cablecasting political and election programming;
- Obtaining additional channel capacity under the terms of franchise documents and state law;
- Advising PEG access staff on enforcing employee rules and facility policies;
- Working with PEG channels operators to require cable operators to improve signal quality (both audio and video);
- Helping PEG channel operators transition to a new channel location;
- Drafting competitive bidding documents and counseling PEG facility staff on how to purchase equipment pursuant to competitive bidding requirements;
- Overseeing the issuance of bonds and the selection of contractors for the construction of new PEG facilities.
Franchise Fee Audits
We have worked with numerous local franchising authorities on franchise fee reviews, both in the context of franchise renewal and in the ordinary course regulatory and contractual due diligence. We are familiar with and able to quickly negotiate necessary confidentiality agreements to obtain financial data. In addition, we are aware of cable operator’s legal and lobbying tactics that are designed to make it difficult and expensive for financial consultants to obtain the information they need to conduct a franchise fee review and have developed appropriate responses. For example, we have been able to successfully require cable operators to provide requested data by invoking the franchise enforcement process, issuing notices and violation and beginning enforcement proceedings for drawing on the letter of credit. This strategy ultimately forced the operator to settle outstanding issues, and to protect and preserve millions in operating support received by the franchise authority, notwithstanding the FCC’s Section 621 franchising orders. We also know when it is not cost-effective or legally viable for a local franchising authority to pursue a particular issue, and we are honest about making those judgments and communicating them to our clients.