HomeMy WebLinkAbout2004-11-09; City Council; 17879; Miller & Van Eaton LLP retention7
AB# 17,879
MTG. 11/9/04
DEPT. CA
CITY OF CARLSBAD - AGENDA BILL
TITLE: DEPT. HD.
RETENTION OF THE LAW FIRM OF MILLER &VAN
EATON, L.L.P. TO SERVE AS SPECIAL COUNSEL CITY ATTY.
FOR CABLE TELEVISION FRANCHISE RENEWAL
CONSULTING SERVICES CITY MGR.
RECOMMENDED ACTION:
Approve Resolution No. - 2004-359 , authorizing retention of the law firm of Miller
& Van Eaton, L.L.P. to serve as special counsel for cable television franchise renewal
con su It i ng services.
ITEM EXPLANATION:
The Council has previously authorized the City Attorney to retain certain law firms as special
counsel. From time to time, these authorizations should be reaffirmed and amended to
include new law firms and current proposal letters. Currently, areas of specialization include
general liability, labor and employment, civil rights matters, workers’ compensation, eminent
domain and condemnation, redevelopment, real estate, telecommunications and land use.
Given the growing complexity of legal matters associated with cable television franchise
renewal issues, the City Attorney recommends that the City Council authorize retention of
the law firm of Miller & Van Eaton, L.L.P. to serve as special counsel for cable television
franchise renewal issues .
FISCAL IMPACT:
Funds for retention of special counsel have been set up in account number 001-1 01 2-8870.
EXHIBITS: _-
1. Resolution No. 2004-359
Department Contact: Ronald R. Ball, 434-2891
RESOLUTION NO. 2004-359
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE RETENTION
OF THE LAW FIRM OF MILLER & VAN EATON, L.L.P. AS
SPECIAL COUNSEL FOR CABLE TELEVISION FRANCHISE
RENEWAL CONSULTING SERVICES
WHEREAS, section 2.14.130 of the Carlsbad Municipal Code provides
that the City Council may employ special legal counsel under terms it considers proper;
and
WHEREAS, the City Council has determined, upon recommendation of
the City Attorney, that it is necessary to retain additional special counsel for cable
television franchise renewal consulting services; and
WHEREAS, the City Attorney has received a proposal for legal services
related to cable television franchise renewal consulting services,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the City Attorney is hereby authorized to employ the law firm of
Miller & Van Eaton, L.L.P. as he considers appropriate pursuant to the letter proposal
from Miller & Van Eaton, L.L.P. to provide legal services with regard to cable television
franchise renewal consulting services issues attached hereto as Exhibit “A.
3. That the City Council authorizes the expenditure of funds as may be
necessary to pay the fees of special counsel for cable television franchise renewal
consulting services provided, however, that sufficient funds have been previously
allocated by the City Council to Account No. 001-1012-8870, and provided further that
the City Attorney shall report, at least bi-monthly, to the City Council on the status of the
expenditure of such funds.
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4. That the City Council authorizes the expenditure of funds as may be
necessary to pay the fees of special counsel for cable television franchise renewal
consulting services under the terms and conditions of paragraph 3 above.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
Council of the City of Carlsbad held on the 9th day of Novenber ,2004 by the
following vote, to wit:
AYES: Council Members Lewis, Finnila, Hall and Packard.
n NOES: None
ABSENT: Council Me
ATTEST:
1 LORRAINE M. WOOD, City Clerk' *
(SEAL)
2 3
MILLER & VAN EATON
P. L. L. c.
MATTHEW C. AMES
KENNETH A. BRUNETTI*
FREDERICK E. ELLROD I11
MARC1 L. FRISCHKORN
WILLIAM L. LOWERY
NICHOLAS P. MILLER
JOSEPH VAN EATON
*Admitted to Practice in
California Only
1 155 CONNECTICUT AVENUE, N.W.
SUITE 1000
WASHINGTON, D.C. 20036-4320
TELEPHONE (202) 785-0600
FAX (202) 785-1234
MILLER & VAN EATON, L.L.P.
400 MONTGOMERY STREET
SUITE 501
SAN FRANCISCO, CALIFORNIA 94104-1215
TELEPHONE (4 15) 477-3650
FAX (415)477-3652
WWW.MILLERVANEATON.COM
OF COUNSEL:
JAMES R. HOBSON
NANNETTE M. WINTER?
GERARD L. LEDERER
WILLIAM R. MALONE
JOHN F. NOBLE
?Admitted to Practice in
New Mexico Only
October 27,2004
VIA FEDEX OVERNIGHT DELIVERY
Ronald R. Ball
City Attorney
City of Carlsbad, CA
1200 Carlsbad Village Drive
Carlsbad, CA 92008- 1989
RE: Engagement of Miller & Van Eaton, P.L.L.C.
Dear Mr. Ball:
We are pleased that you have engaged Miller & Van Eaton, P.L.L.c., to provide legal
services to the City of Carlsbad, California in connection with the City's CATV Franchise
Transfer and Renewal. Consistent with our normal practice, this letter and the enclosed Legal
Services Protocol of the City (which is incorporated by reference) set forth the terms of our
engagement.
Our fees for legal services in this matter will be based on the time we spend on the
engagement. We will bill the City of Carlsbad, California for the cable transfer and renewal,
non-litigation matters at our discounted rates, which currently range from $1 50 to $320 per hour
for attorneys and $85 for paralegal time. If matters should arise involving litigation or similar
proceedings, such as adversarial proceedings at the FCC, these additional matters will be billed
at our higher standard rates. A review of rates is conducted at least annually and an adjustment
upwards may be made. We will adjust rates only after providing you at least two months notice.
As mentioned above, in the event we believe the nature of the services requested justifies a
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Miller & Van Eaton, P.L.L.C.
Page 2
departure from that approach, we will discuss it with you. In addition, we separately charge for
various expenses and other charges incurred in connection with our rendering of services, all as
described in the enclosed Legal Service Protocol, the terms of which are incorporated in this
letter.
The client for this engagement is the City of Carlsbad, California. We understand that
the parties adverse to your interests are Highland Cable TV, the Rigas family and Adelphia and
any potential cable system purchaser. Please inform us immediately if you become aware of any
additional adverse parties.
Miller & Van Eaton attorneys have represented and continue to represent a number of
communications companies on matters unrelated to matters dealing with local communities'
public rights-of-way. In addition, the Firm does assist private firms, including
telecommunications companies, in a range of corporate business matters, including certain non-
federal taxation matters, including state taxation. Miller & Van Eaton normally does not
represent any local exchange telephone companies, cable television companies or other
telecommunications carriers on any matters directly adverse to the interests of local governments
in communications services, usage of public rights-of-way, or FCC proceedings of any sort. We
work with non-profit groups, including the National Association of School Boards and the
American Foundation for the Blind, at the Federal Communications Commission on
telecommunications issues related to access to telecommunications facilities, public access, and
universal service. Finally, we are working with trade associations for persons owning and
leasing commercial and apartment buildings on federal communications issues related to access
to those buildings. We do not perceive any actual conflict of interest, or potential for a direct
conflict, between these matters and our representation of the City of Carlsbad, California. By
signing this letter, you acknowledge our existing representation of the above-described entities
and waive objection to any potential conflict. Obviously, if an actual conflict should ever
emerge, we would notify you immediately and might be precluded from representing both
parties. There is, however, no such conflict at this time, as far as we are aware.
The attorney-client relationship is one of mutual trust and confidence. We do our best to
see that our clients are satisfied not only with our services but also with the reasonableness of the
fees charged for those services. Whenever you have any questions or comments regarding our
services, or the status of your files, or whenever any new facts or considerations come to your
attention, you should contact me or any other attorney with whom you are working. We also
encourage you to inquire about any matter relating to our fee arrangements or monthly
statements that are in any way unclear.
We appreciate your confidence in us and the opportunity to provide these additional legal
services to the City of Carlsbad, CA. We look forward to working with you. If you have any
questions regarding this letter or our representation in these new matters, please contact me.
Miller & Van Eaton, P.L.L.C.
Page 3
If this letter of engagement is satisfactory to the City of Carlsbad, California, please
indicate the City of Carlsbad, California's concurrence by having it signed below and returning a
copy of the letter to me.
Very truly yours,
MILLER & VAN EATON, P.L.L.C.
Nicholas P. Miller
The Standard Terms of Engagement
contain a binding alternative
dispute resolution provision which
may be enforced by the parties
APPROVED AND AGREED:
DATED: NOV. /O,&B~
City of Carlsbad, California
n
By:
CITY OF CARLSBAD
LEGAL SERVICES PROTOCOL
The City of Carlsbad has established the following legal services protocol. This
protocol shall apply to all special counsel providing legal services to the City of
Carls bad.
Questions concerning the protocol should be directed to the City Attorney.
changes to this protocol require prior, written approval from the City Attorney. Any
CASE EVALUATION GUIDELINES
1. Special Counsel shall submit an early legal services cost budget to the City
Attorney within 45 days following receipt of the approval of senn’ces. The legal
services cost budget may be revised from time to time with the prior approval of
the City Attorney. Expenditures should be consistent with the legal services cost
budget.
2. Special Counsel shall submit monthly progress reports to the City Attorney. Any changes to the early legal services cost budget should be noted in the case
evaluations progress reports. It is anticipated that each progress report should
take no more than one to two hours to prepare.
The City expects early and frequent evaluation and communication regarding
legal services matters. Special Counsel are expected to keep the City, through
the City Attorney fully informed.
3.
BILLING GUIDELINES
These billing guidelines have been established to ensure that your bills convey the
information that is necessary to manage litigation. The guidelines are also designed to
minimize any confusion or misunderstanding, assure consistency of billing practices
among the various Special Counsel retained by the City and assist the City in the
management of the public fisc.
1. All cases shall be billed monthly and submitted to the Clty Attorney. The City
Attorney or a designated assistant or deputy city attorney will review and
approve, conditionally approve or disapprove all bills prior to payment.
2. All billing shall be done in .lo-hour increments.
3. The bills should briefly describe each item of work performed and the identity of
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the person who performed the work.
4. Each month's bill should include a total to date for both attorneys' fees and other
professional fees and costs. This will facilitate our approach of cost-effective
legal services management. If the totals cannot be produced by your
computerized billing system, please provide the total-to-date information on the
transmittal letter or other document submitted with the bill. If the totals to date
are not provided, the bills will not be paid and they will be returned to you.
5. The City expects that the attorney designated in the proposal for legal services
as having principle responsibility for handling a case will in fact handle the case.
Other members of a firm may handle various aspects of a case with appropriate
adjustments to the billing rate. If you anticipate that more than one person will
be providing services on any particular matter, please inform the City Attorney
who that person will be and hidher qualifications. The City Attorney reserves the
right to insist upon performance of work by particular persons. If an urgent need
arises for work by persons other than as designated in the proposal for legal
services, please call the City Attorney in advance fo obtain approval.
6. The City recognizes that discussions between attorneys retained to handle a
case is an effective method of assuring that an issue is adequately evaluated.
The City will pay reasonable charges associated with such discussions. Billings for discussion time should clearly indicate the substance of the discussions.
Attorneys must not bill for provisions of instructions to subordinates, including
subordinate attorneys, or for time spent training. Discussions between a senior
attorney and a subordinate attorney are particularly suspect if both attorneys bill
for the discussion time. The City does not pay for new attorneys to "get up to
speed" on a file absent special circumstances and prior approval by the City
Attorney.
7. Paralegals may be used for any task that can be delegated. However, no more
than one paralegal should work on each case without the City Attorney's prior
approval.
8. Retention of expert witnesses must be approved in advance by the City Attorney.
The need for, identity and qualifications of experts should be reported to the City
Attorney as soon as possible. The City recognizes the need for well qualified
experts for the successfuI completion of the task. The City encourages the use
of experts not only for defense purposes, but to assist in early evaluation of
cases.
9. Special services such as special investigators, computer research time and other
similar services shall be approved in advance by the City Attorney if the cost of
such services is to be passed on to the City.
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10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Law clerks present a unique situation. We recognize that law clerk can provide
cost effective research and writing; however, as a public entity we cannot afford
to pay for training. Law clerks can be used, with prior approval by the City
Attorney, and only when it will be beneficial or cost-effective for the City.
In-house photocopying charges are billable on a per-copy basis. The maximum
charge is $.05 per page, inchding any time spent making the copies. We
encourage you to use outside copying services, if the cost of doing so is less
expensive to the City.
Facsimile transmissions may be used when necessary. The City will pay for
facsimile transmissions at the actual cost, excluding secretarial time. The firm's
incoming and outgoing fax charges, if any, shall be set forth in the proposal for
legal service.
Telephone, cellular phone, and postage charges are billable at actual cost.
Federal Express and similar delivery services should be avoided without the prior
approval of the City Attorney. Charges associated with delivery of materials,
may be billed at actual cost. However, work should be accomplished sufficiently
in advance to allow delivery by US. Mail when not otherwise prescribed by law.
Generally the City does not pay administrative charges. If there is a valid
explanation and other items are not charged, we will consider them. However,
this should be negotiated up front.
Travel costs will be paid as set forth in the proposal for legal service. Travel
should be approved in advance by the City Attorney. Special Counsel should be
willing to consider opportunities for rail transportation to Carlsbad.
Meals are generally not billable to the City.
Malpractice insurance is required to be in force at all times. Each firm shali
maintain at least $1,000,000 in professional liability insurance. .
.The City anticipates that legal services will be provided within the limits of the
legal services cost budget referenced above. Special Counsel will be asked to
justify to the City Council increases in the amount allocated to attorneys' fees in
the legal services cost budget.
The City attempts to process your bills as quickly,as possible. Generally, bills
will be processed and paid within 30 days from receipt.
The bills should list the names of each
matter. Each entry should delineate who
other method.
attorney or paralegal working on the
has done the work via initials or some
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21 a
22.
23.
24.
25.
26.
27.
28.
The City does not pay for secretarial time or secretarial overtime. We do not pay
attorneys or paralegals for secretarial tasks or tasks that should be subsumed
into. your overhead. For example, time spent faxing, mailing, arranging for
messengers, and calendaring are not acceptable charges.
The City does not pay for word processing charges.
We do not pay for billing or discussion of bills. If we have questions about billing or need additional information on bills, the information should be provided
without charge to the City.
Minimum billing charges are unacceptable. Please charge for actual time spent. For example, minimum of .2 for phone calls or .4 for letters is unreasonable
unless that is an accurate measure of time spent.
Do not charge for file opening or file closing.
adequate descriptions of legal activities.
These are not true tasks or
Provide complete, brief descriptions of tasks performed. This will help the City
Attorney follow progress and understand your goals.
Billing entries should be by date and task. For example, if four distinct tasks
were done on a file in one day, the tasks should be billed separately with an
individual time charge for each.
We appreciate when you have researched an issue previously and use that
research on the present case. The City has retained you because of your past
experience and expertise. However, please do not charge the City for work you
have done and billed for in the past. This would also apply to use of forms.
MISCELLANEOUS MATTERS
1. Copies of all written research prepared for a case should be sent to the City
Attorney or summarized in the monthly report.
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2. The City's auditors will send a request for an auditor response letter annually.
Please respond to these promptly. The response should not take longer than 2.5
hours per case, although usually not more than one hour is required. In
complicated cases where more than 2.5 hours is required, please contact the
City Attorney before drafting your response. The response is billable. The
response should be limited to providing only the specific information requested in
accordance with the protocol referenced in the letter. Please indicate in the
response that the information provided is confidential and shall not be disclosed
by the auditor to any person other than designated officials of the City or used by
the auditor for purposes other than preparation of the audit.
Compliance with these guidelines should enhance the Attorney-Client relationship.
These guidelines are not intended to sacrifice petformance or results for the sake of
cost. If the provisions of this protocol adversely. affect the City's interests in any
particular case, adjustments may be made, Special Counsel who have any comments
or suggestions that could improve this protocol should feel free to contact the City
Attorney.
RONALD R. BALL
City Attorney
rmh
H:VIERARY\ATTORNMW PDATAPROTOCOL
5
MATTHEW C. AMES
KENNETH A. BRUNETTI*
FREDERICK E. ELLROD I11
MARC1 L. FRISCHKORN
WILLIAM L. LOWERY
NICHOLAS P. MILLER
JOSEPH VAN EATON
*Admitted to Practice in
California Only
MILLER & VAN EATON
P. L. L. c.
1155 CONNECTICUT AVENUE, N.W.
SUITE 1000
WASHINGTON, D.C. 20036-4320
TELEPHONE (202) 785-0600
FAX (202) 785-1234
MILLER & VAN EATON, L.L.P.
400 MONTGOMERY STREET
SUITE 501
TELEPHONE (41 5) 477-3650
SAN FRANCISCO, CALIFORNIA 94104-1215
FAX (4 15) 477-3652
WWW. MILLERVANEATON. COM
OF COUNSEL:
JAMES R. HOBSON
NANNETTE M. WINTER?
GERARD L. LEDERER
WILLIAM R. MALONE
JOHN F. NOBLE
?Admitted to Practice in
New Mexico Only
October 26,2004
BY FED EX
Ronald R. Ball
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Cable TV Franchise Renewal Consulting Services
Dear Mr. Ball:
Miller & Van Eaton, P.L.L.C. (“MVE”) is pleased to submit this scope of services and
fee estimate to the City of Carlsbad (the “City”) consulting services regarding the City’s cable
television renewal. This proposal commits to the City our services and recommends an approach
that will entail the City retaining other experienced professionals necessary to properly document
the City’s needs and interests for a cable renewal. Miller & Van Eaton can also serve as the
primary contractor for other professionals to the extent the City prefers.
In addition to MVE, we anticipate the City will need to retain engineering, financial
advisory, and needs assessment advisors. MVE will provide the City, under the direction of the
City Attorney, legal advice related to cable television matters.
MVE has significant experience working with local governments on cable renewals and
other cable television matters. Our experience ranges from assisting municipal staff to managing
a successful renewal from start to finish. Our attorneys have represented municipalities at every
stage of the renewal process, from advising City and County staff on specific legal, policy or
strategy issues, to drafting franchise ordinances and agreements, to complete organization,
implementation and management of the entire cable franchise renewal process including
MILLER & VAN EATON, P.L.L.C.
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negotiations with cable operators. We believe that no other firm in the country can offer the City
the same level of experience and expertise in the field of cable television.
As a matter of philosophy, ratified by our experience in prior cable franchise renewals,
we will emphasize close coordination with the City and senior government officials. We will
work closely under the supervision of your office to advise local officials, so that they are fully
informed through each phase of the project. This will ensure that the City fully understands what
is being done, and why. We will assist the City’s staff and attorneys as needed, and will be
available to brief elected officials and others on the renewal process, what it means to them and
what benefits can be expected. We work with each government client in the way that is most
productive and cost-effective for that client.
Enclosed is a summary of our experience, along with the qualifications of our personnel
who will assist the City. Additional information about the firm and examples of our work
product is available on our web site (www.mil1ervaneaton.com). We look forward to working
with the City. If you have any questions or require additional information about our firm, please
contact me at (202) 785-0600. Thank you for your consideration.
Very truly yours,
BY Nicholas P. Miller
Enclosure
/3
MILLER & VAN EATON
P. L. L. c.
CITY OF CARLSBAD, CALIFORNIA
PROPOSAL FOR
CABLE n/ FRANCHISE RENEWAL LEGAL SERVICES
Contact :
Nicholas P. Miller
Miller & Van Eaton, P.L.L.C.
1155 Connecticut Avenue N.W., Suite 1000
Washington, D.C. 20036-4306
Phone: (202) 785-0600
Fax: (202) 785-1234
n m i I let-@ m i I le rva nea ton. corn
www. MI LLERVANEATON.COM
We Assist Local Governments in Achieving
The Full Benefits of the Communications Age for Their Communities
MILLER & VAN EATON
P. L. L. c.
TABLE OF CONTENTS
HISTORY AND EXPERIENCE ......................... ...... .......... .. ............. . .................................................. 1
TEAM PERSONNEL AND EXPERIENCE ............... .... . .... .. .... ....,.......... ..... ......... ......... ..... .......... ... 5
REFERENCES ................................................. ...... .... ...... ..... ...................... .... .................. .... ........ ....... ... 8
PROPOSED SCOPE OF WORK .................................... ,. ............... . .............. . ............... . ................ 10
COST PROPOSAL ............. ...... ....... ...... ...... .... . . .... .... . ..... ...... . .... . ...... ..... . .... . ..... ...... .... . ..... ..... .... . ..... ... 15
TIME LINE ............................................................. ... ............. ..... ............. .. .... . ........ ..... ............ .... .......... . 17
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MILLER & VAN EATON, P.L.L.C.
HISTORY AND EXPERIENCE
Miller & Van Eaton Experience
Miller & Van Eaton has a depth of expertise representing municipalities on
telecommunications issues that is unmatched by any law firm in the country. The firm’s
12 lawyers have advised over 250 local governments throughout the United States on a
wide range of telecommunications matters, including cable franchise renewals, Open
Video Systems (“OVS”), drafting generic telecommunications ordinances, installation of
institutional networks, negotiation of right-of-way leases, joint franchises, cable
television rate regulation, franchise transfers and modifications, cable system
overbuilds , ce Ilu la r tower siting issues, enforcement matters, federal regula tory
preemption, and First Amendment issues. We work with communities of every size.
The firm’s main office is located in Washington, D.C., and on January 1, 1999 the firm
opened an office in San Francisco, California, to better serve its many West Coast
clients. It is current in legislative, regulatory, and judicial activity. The firm traces its
roots back to 1985 and the formation of Miller & Holbrooke. It is a small, respected
firm. Miller & Van Eaton’s record of results for its clients makes it a dominant and
influential telecommunications law firm.
Miller & Van Eaton attorneys have extensive experience in the day-to-day operational,
policy, and funding needs of local governments, municipally-owned utilities, and local
public authorities. We provide a wide range of services for municipalities depending on
the level of assistance desired.
Miller & Van Eaton attorneys are experienced in addressing city councils, cable advisory
commissions, public utility boards, and other public bodies in both private briefings and
public hearings. Firm attorneys are frequent speakers at conferences and seminars on
telecommunications issues throughout the United States, including conferences of the
National Association of Telecommunications Officers and Advisors, the Alliance for
Communications Democracy, the National League of Cities, the National Association of
Counties, the National Conference of State Legislatures, the International Municipal
Lawyers Association, and the Practicing Law Institute’s annual seminars on cable
television law and regulation, as well as state municipal leagues. We provide a wide
range of services for municipalities depending on the level of assistance desired,
including the following areas:
Cable Franchising:
We have assisted dozens of communities on cable franchise renewals. For example,
our attorneys assisted a town in North Carolina in a successful effort to deny renewal of
a franchise agreement with a cable company that had failed to meet performance
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MILLER & VAN EATON, P.L.L.C.
standards. A city in the state of Washington retained us to gain access to an interactive
cable system and a stronger communications link with local government and nonprofit
groups. We represented two closely linked California cities in a cable franchise
renewal, obtaining a dedicated institutional network for use by the governments and
their schools. In the Washington Metropolitan area alone we have worked with the
following communities in cable franchising matters: City of Alexandria, Arlington
County, Fairfax County, City of Manassas Park, Montgomery County, Prince Georges
County, and others.
Across the country we have assisted such communities as St. Louis, Missouri, St. Paul,
Minnesota, and Oakland, California. These are only a few of the many examples we
could offer.
Overbuilder Franchising:
Miller & Van Eaton works with communities across the country in negotiating “overbuild”
franchises with the new wave of competitive broadband providers. These agreements
have taken the form of both cable and OVS agreements. For example, we have
represented several counties in the greater D.C. area in negotiating agreements with
Starpower. In addition, we have advised Charlotte, North Carolina, municipalities in the
San Francisco Bay Area, and other communities in negotiating franchises with Carolina
Broadband, RCN, Seren, WIN, and WOW. In the course of this work we have frequently
dealt with such issues as “level playing field” provisions, comparisons of PEG access
support provisions between incumbents and new entrants, staged build-out schedules,
and other issues raised by the presence of multiple providers.
Open Video Systems:
We have been actively involved in the establishment of regulations regarding OVS.
Specifically, Miller & Van Eaton participated in lobbying efforts regarding OVS during
deliberation of the 1996 Act, and also represented local government organizations
before the FCC in the rulemaking and appeal of the subsequent regulations. Our
representation of the City of Dallas and national associations led to the authority of local
governments to require a franchise of OVS providers. We have drafted OVS
ordinances or OVS sections of cable ordinances for various jurisdictions, including most
recently Loudoun County, Virginia. In addition, members of the firm have made
presentations on the subject of OVS at national conferences.
Cable Rate Regulation:
We have assisted numerous communities in reviewing operator rates under the FCC
rules and in defending the appeal of rate orders before the FCC.
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MILLER & VAN EATON, P.L.L.C.
Cellular and PCS Antennas:
Miller & Van Eaton attorneys assisted the American Planning Association in preparing a
national survey of local governments designed to gather information regarding cellular
and PCS antenna and tower zoning issues. We have also worked with the National
League of Cities, the National Association of Counties, the United States Conference of
Mayors, and the National Association of Telecommunications Officers and Advisors,
lobbying Congress and the FCC on municipal right-of-way and local zoning issues
arising out of the Telecommunications Act of 1996. As a result, we have unmatched
familiarity with these issues and how federal law affects the authority of local
governments. We have assisted several communities in Arizona, California, Florida,
Georgia, Missouri, and elsewhere with tower siting ordinances, wireless leases and
radio facility placements in rights-of-way.
General Telecommunications Ordinances:
We have substantial experience representing cities in connection with the preparation of
general telecommunications ordinances. Since the 1996 Act, we have drafted such
ordinances on behalf of local municipalities in New York, Arizona, California, California,
Florida, Maryland, and Texas, among others. We have also assisted many
communities in negotiating agreements with telecommunications carriers.
FCC Regulation:
We are currently representing a coalition of local governments and national associations
in the FCC’s cable modem proceeding. In the past, we represented the leading
coalitions of local government authorities before the FCC on open video system, cable
rate regulation and franchise fee rules, helping to protect local rights-of-way and ensure
that the new services will be responsive to local needs and serve in the public interest.
We successfully lobbied Congress to include a provision in the 1992 Cable Act
immunizing local governments from monetary damages claims for cable regulation
activities.
Institutional Networks:
In connection with many of the cable television franchises we have handled, we have
helped communities obtain institutional networks. An “I-Net” is a communications
network dedicated for the use of public entities, including local government agencies
and the public schools. Under these agreements, the cable operators have provided
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MILLER & VAN EATON, P.L.L.C.
fiber optic cabling or capacity, and other facilities and equipment that have enhanced
the ability of local entities to communicate with one another.
Public Rig hts-of-Way:
We have helped create coalitions to defend local interests against FCC, Congressional,
and state initiatives that could prevent localities from regulating those who would use
public rights-of-way to deliver telecommunications services.
Public Safety Wireless:
Miller & Van Eaton represents local governments and allied associations in public safety
radio matters. Recent assignments have included helping a Virginia county negotiate
an 800 MHz system contract with Motorola; assisting cities and counties in negotiating
800 MHz frequency reassignments with Nextel; working with a county Emergency
Telephone Systems Board to litigate or settle 9-1-1 complaints brought against three
commercial wireless carriers; and litigating for a Nevada Police Department a challenge
to the local telephone company’s 9-1-1 tariff, a matter that ended up settling favorably
for the client. For nine years, Jim Hobson of Miller & Van Eaton has represented the
National Emergency Number Association (NENA) in FCC and legislative issues
involving 9-1-1.
Telephony:
The firm has expertise in telephone regulation that is unmatched by most firms that
perform only municipal cable television work. Three attorneys with Miller & Van Eaton --
Messrs. Miller, Malone and Hobson - have been involved in all aspects of
telecommunication common carrier regulation since the mid-70s. Before forming Miller
& Van Eaton, they represented a range of different client interests, from large computer
manufacturers to small, rural telephone companies concerned about the internal
financial subsidies of telephone rates necessary to maintain service to rural areas.
Municipal Telecommunications Networks:
We have represented cities in Iowa, Ohio, Texas and other states that have built their
own municipal cable systems, and we have advised the American Public Power
Association and some of its members in investigating the feasibility of constructing
telecommunications networks. This work means we are familiar with the complex
issues facing municipalities that wish to enter the telecommunications business.
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MILLER & VAN EATON, P.L.L.C.
TEAM ATTORNEYS AND EXPERIENCE
We anticipate that the attorneys for the cable franchise renewal for the City will be the
following:
Nicholas Miller
William Lowery
Ken Brunetti
Marci Frischkorn
Biographies of Attorneys
Nicholas P. Miller
Mr. Miller is a well-known exp rt in the law and policy governing cable televisi n and
telephone regulation, and in the legislative aspects of communications law. He served
as the U. S. Senate Communications Counsel and as a special consultant to the White
House on telephone deregulation issues. He represents both local governments
regulating cable television and international multilateral agencies engaged in
telecommunications policy advice and is widely recognized for his expertise with the
First Amendment, his lobbying experience with the Cable Act of 1984 and 1992, the
AT&T divestiture, and the Telecommunications Act of 1996. Mr. Miller also represented
a coalition of national education groups in connection with the development of the
school and library universal service discount program established by the 1996 Act. He is
admitted to practice in Washington State and the District of Columbia Bar Associations.
He received his law degree in 1973, and his undergraduate degree in 1966, both from
the University of Washington where he was a member of the Washington Law Review.
He is a member of the American and Federal Communications Bar Associations and
the National Association of Telecommunications Officers and Advisors, where he was
their 1995 Member of the Year. He is also a member of the International Municipal
Lawyers Association. Mr. Miller was a founding partner with the Washington, D.C. law
firm of Miller & Holbrooke, and is the former head of the telecommunications practice
group of Miller, Canfield, Paddock & Stone.
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MILLER & VAN EATON, P.L.L.C.
William L. Lowery
Mr. Lowery specializes in the counseling and representation of local governments in
cable television and telecommunications issues. Since joining Miller & Van Eaton in
1997, he has assisted local governments in cable television franchise renewals and
transfers; competitive cable television and open video system entry; drafting and
adopting telecommunications ordinances; and litigation arising from the provisions of
the Telecommunications Act of 1996 preserving the rights of local governments in
rights-of-way managementkompensation and tower zoning issues. Prior to joining Miller
& Van Eaton, Mr. Lowery practiced in San Francisco, California, specializing in
commercial and intellectual property litigation. Mr. Lowery received his law degree from
the University of California Hastings College of the Law in 1993, and his Bachelor of
Science in Communications from Ohio University in 1977. Mr. Lowery also has an
extensive background in broadcast television, having worked as a production manager
and a producer/director in local stations in various markets, prior to law school. He is
admitted to practice in both the District of Columbia and the State of California, and is a
member of the American Bar Association Forum on Communications Law, the Federal
Communications Bar Association and is a member of the National Association of
Telecommunications Officers & Advisors and the International Municipal Lawyers
Association. Mr. Lowery is resident in the San Francisco office.
Kenneth A. Brunetti
Mr. Brunetti counsels and represents local governments in cable television and
telecommunications matters. He specializes in complex litigation and bankruptcy related
to cable television, telecommunications, and rights-of-way management issues. Since
joining the firm in 2000, Mr. Brunetti has represented municipalities in a variety of
forums throughout the country, including state and federal courts as well as state
regulatory commissions. He also assists communities in cable television and
telecommunications franchise and license renewals and transfers, and in drafting
telecommunications ordinances. He brings to the firm's clients a specialized expertise in
bankruptcy and secured transactions, which is critical in establishing both enforcement
and protective strategies in the new competitive telecommunications environment. In
this regard, Mr. Brunetti has represented communities in several major bankruptcy
proceedings involving telecommunications providers. Prior to joining the firm, Mr.
Brunetti specialized in complex commercial litigation and bankruptcy law. Mr. Brunetti
received his law degree magna cum laude, from the University of California, Hastings
College of the Law in 1991 and his Bachelor of Arts in Psychology from the University of
Pennsylvania in 1986. He is admitted to practice in California, and is resident in the
firm's San Francisco office. tie is the author of Telecom and Cable Bankruptcy - A
Primer for Municipalities, Municipal Lawyer (January / February 2003).
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MILLER & VAN EATON, P.L.L.C.
Marci L. Frischkorn
Ms. Frischkorn assists municipalities with a variety of telecommunications matters
ranging from the negotiation of right-of-way use agreements to the implementation of
right-of-way management policies. She also assists municipalities with cable television
matters, which include cable television franchise renewal and transfer negotiations, as
well as cable television over-builder franchise negotiations. In addition to the these
matters, Ms. Frischkorn has assisted in the filing of various comments at the Federal
Communications Commission regarding issues in both the cable television and
telecommunications areas that affect municipalities. Prior to joining the firm, Ms.
Frischkorn worked in the Competition Policy Section of MCI Telecommunications
Corporation’s Law and Public Policy Organization, where she worked on a wide range
of local competition issues, including interconnection and dialing parity issues. She
participated in various task forces and proceedings implementing local competition
provisions of the 1996 Telecommunications Act. Ms. Frischkorn is admitted to practice
in the Commonwealth of Virginia. She received her law degree from the Dickinson
School of Law in 1994, and her undergraduate degree, magna cum laude, from West
Virginia University in 1991.
The firm’s other qualified attorneys are available, as needed, to work with the City.
Qualifications for all firm attorneys can be found at our website at
www.millervaneaton.com
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MILLER & VAN EATON, P.L.L.C.
REFERENCES
City of Los Angeles, California
Mr. Joshua M. Perttula
Assistant City Attorney
City of Los Angelesl800 City Hall East
200 N. Main Street
Los Angeles, CA 90012
(21 3) 978-81 14
City of Oakland, California
Ceda Floyd
City Clerk and Clerk of Council
City of Oakland
One City Hall Plaza
Oakland, CA 94612
(51 0) 238-3605
City of Tucson, Arizona
Mr. Brad Detrick
Assistant City Attorney
City of Tucson
481 West Paseo Redondo
Tucson, AZ 85701
(520) 791-4221
City of Mountain View, California
Linda Forsberg
Deputy City Manager
City of Mountain View
500 Castro Street
P.O. Box 7540
Mountain View, CA 94039
(650) 903-6301
Page 8 47
King County, Washington
Marcine Anderson, Esquire
Attorney’s Off ice
King County, WA
700 !jth Avenue, Suite 2300
Seattle, WA 981 04-5002
(206) 296-3880
MILLER & VAN EATON, P.L.L.C.
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MILLER & VAN EATON, P.L.L.C.
PROPOSED SCOPE OF WORK
As a general rule, our experience suggests that cable renewal work should be divided
into four broad phases: (I) planning; (2) information gathering; (3) establishment of
renewal goals; and (4) implementation.
Planninq. We will help the City develop a franchising process that comports with
the requirements of the informal renewal process set forth in the Cable
Communications Policy Act of 1984, as amended, 47 U.S.C. $ 546 (“Cable Act”).
This work may serve as the basis for proceeding with the formal renewal
process, but additional work would be required if that proves necessary. Our
team can review the existing franchises; review any renewal work already
performed by the City; and define what further work is necessary to build upon
that base. Working together with staff and consultants the City may hire, we will
identify general franchising objectives, and define any policy objectives that
require special attention.
Information Gathering. Miller & Van Eaton will work with the City and its
subcontractors to conduct the investigations required to transform general
objectives into concrete negotiating positions. Thus, we will assist the City in
collecting the information required to identify the system, services, facilities and
equipment required to meet the future cable-related needs and interests of the
City (including community and public access programming interests).
Establishment of Renewal Goals. Based on the information gathered and the
results of the ascertainment process, we are available to work with the City to
establish specific franchising goals.
Implementation. In order to implement the renewal plan, we will advise the City
during negotiations, as requested.
The City may choose all or some of the tasks described below.
Task 1 : Community Needs Assessment
Based on our experience, we suggest the following steps be included in the City’s
needs assessment:
Conduct a review of the cable operator’s fiber and cable assets. The City will have a
better sense of what to ask for in terms of tangible service objectives as well as an
understanding of what to expect in terms of intangible returns.
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MILLER & VAN EATON, P.L.L.C.
Development of a PEG access utilization plan. A survey of community requirements
is undertaken and potential PEG usage is determined. Collaboration and justification
by the involved stakeholders is essential to the credibility of PEG requests.
0 Development of an institutional network integration plan. Many communities have
negotiated for the construction of Institutional Networks (“I-Nets”) to enhance local
government communications capabilities. The project team can assist with planning
an I-Net to meet the City’s telecommunications needs. The documentation prepared
during such a planning process is often used as a negotiation tool during franchise
renewal. This task entails conducting a through review of the City’s current
networking and telecommunications capabilities and includes the following:
Site surveys of the City’s facilities.
0 Understanding the geography of these facilities.
0 A review and analysis of network assets. This includes age, capacity,
function, software levels and manageability.
0 An examination of local area networking capabilities.
0 An examination of current wide area networking capabilities and a needs
assessment of what is missing.
With this understanding in hand, City departments and other public stakeholders can
ascertain their wants and needs and discuss inter-connectivity alternatives, their
associated costs, and the potential of using franchisee facilities for all or parts of the
institutional network.
Task 2: Past Performance Assessment
Service Review. We will assist City staff in documenting the cable operator’s past
performance and conformance with the terms of the existing franchise. This is an
important process that may become essential in negotiating a renewal that addresses
past non-compliance. Also, establishing this factual record will be useful to the City if
the company chooses to be uncooperative in renewal negotiations.
The City needs determine whether the franchisee has met its subscriber service
commitments, its system performance obligations, and its franchise commitments to the
City.
These include:
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MILLER & VAN EATON, P.L.L.C.
(a) Extension of Service
This entails sampling of service records to determine whether the operator is extending
service to all areas within the City on a non-discriminatory basis, and in accordance with
the franchise. This review may also help determine whether special line extension and
construction scheduling requirements must be established for any renewal franchise.
(b) Subscriber Surveys
Subscriber surveys are a tool to sense user satisfaction with cable-n/ services. They
are valuable in that they bring the community into the franchise renewal process and
are a source of customer perceptions. They can also be misleading. Subscribers
answer these surveys based upon expectations, and if their expectations are being met,
then the results can be skewed even when service is inadequate.
(c) Non-compliance Review
The operator's past and current performance should be inventoried against the current
franchise obligations. Any non-compliance must be noticed to the operator with an
opportunity to cure. At that point, the City may use the non-compliance as an element
in determining whether the cable operator has made a reasonable offer that warrants
renewa I.
(d) Franchise Fee Audit
The City may want to consider conducting a franchise fee audit.
Task 3. Assist Citv Staff in Planning Renewal
We have conducted a 1/2-day work session with City staff. We devoted approximately
60 minutes to a presentation by MVE on the renewal process and the requirements of
federal and state law. This presentation described the legal reasons for the various
renewal tasks, explained the opportunities and limitations created by federal law, and
provided examples from other jurisdictions. The remainder of the session addressed
questions on the process and the likely course of renewal with the cable operator, and a
discussion of particular concerns and issues in Carlsbad that the renewal might be able
to address.
Task 4: Review Existinq Franchise Agreement
We will review all the franchise documents, and determine the operator's specific
obligations. We will then identify (i) provisions that should be retained in any renewal
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MILLER & VAN EATON, P.L.L.C.
agreement; and (ii) provisions that are outdated, preempted, or superseded. We will
also identify general topics that are not addressed in the current document, but that we
believe should be addressed. If required, we can prepare new franchise documents as
well.
Task 5: Conduct or Assist with Negotiations
At the City’s discretion, we will serve on the negotiating team with members of the City’s
staff. The team would develop goals and a strategy for negotiation based on the tasks
listed herein. The City could choose to take the lead role in negotiating and call on us
for technical support and advice, or we could take the lead. In either case, the goal
would be to reach agreement with the operator through the informal renewal process in
three or four eight-hour negotiating sessions. If informal negotiations fail, the City would
have to consider formal renewal proceedings.
We normally approach negotiations in the following manner:
P First, we will work with the City to identify a negotiating team. MVE will
meet with the team, go over any proposal submitted by the cable operator,
and develop specific negotiating goals and priorities.
P Second, MVE will work with the negotiating team to develop a strategy for
achieving the goals identified.
> Third, we will conduct negotiations. After each session, we will debrief the
session, re-evaluate negotiating strategy, and reconsider negotiation goals
as required to achieve the best results.
P Fourth, throughout the negotiation, City staff and consultants will provide the
technical and analytical support required to evaluate and respond to
proposals made by the operator.
> Fifth, we will work with the operator to establish the principles which will
provide the basis for agreement. Based on this agreement, the draft
franchise agreement and ordinance will be revised to reflect the final deal.
It is difficult to estimate the exact amount of time that may be required for negotiation.
Negotiations with a cooperative operator can go quickly and smoothly. On the other
hand, if an operator chooses to drag its feet, negotiations can be delayed for long
periods. MVE’s proposed budget to the City is based on the assumption that the City
and an operator can reach an agreement in principle in three eight-hour negotiating
sessions. The cost estimate builds in significant time for preparation outside the
negotiating room - one key to efficient negotiation. We will also provide additional legal
advice on related cable issues as needed.
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MILLER & VAN EATON, P.L.L.C.
Task 6: System Technical and Operational Analysis
Our experience demonstrates that it is frequently useful to conduct testing and
inspection of the cable system to verify that the network is functioning in compliance
with FCC and industry transmission standards, and that the physical plant is in
compliance with national, state, and local codes. Documentation of non-compliance is
an important enforcement mechanism as well as a key part of preparing for franchise
negotiations.
To those ends, City staff or an engineering consultant should undertake a technical
compliance review to determine whether the cable operator has complied with its
technical obligations under the relevant technical codes, FCC technical standards, and
the cable franchise agreement.
Task 7:
Bankruptcy
Guidance Regarding Regulatory Requirements and Adelphia
MVE would provide the City with guidance regarding State and local regulatory
requirements. We are familiar with the Federal Communication Commission’s
regulations and the State of California’s applicable law.
A peculiar and important element of the Carlsbad renewal is researching and
understanding the precise relationship between the franchisee and Adelphia. Adelphia
is in bankruptcy and this creates unique issues about transfer of control and
performance of past and present franchise obligations. The City may have the
opportunity to reach a quick conclusion to its renewal if Adelphia seeks to control or
transfer the franchisee’s in teres t .
Task 8: Attend Meetings
All members of the project team are available to attend various meetings and events to
discuss aspects of the renewal process. This will include, but not be limited to,
meetings with the City’s Communications Technologies Commission, City Council work
sessions, and City Council hearings.
Task 9: Draft Franchise Agreement & Related Ordinances
MVE would prepare initial drafts of a cable regulatory ordinance and a Franchise
Agreement incorporating the City’s desires for its cable renewal. We would then
prepare successive revisions as needed to accommodate the results of the franchise
negotiations.
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MILLER & VAN EATON, P.L.L.C.
COST PROPOSAL
Hourlv Cost Proposal
Rates for Miller & Van Eaton Professionals
Nicholas P. Miller
William Lowery
Ken Brunetti
Marci Frischkorn
Paralegal
$320
$230
$230
$210
$ 85
COST ESTIMATE
Miller & Van Eaton has drafted this proposal recognizing that there are many different
ways to approach a renewal process, but that every process should be shaped to meet
the particular needs and the budget of a community. Because of the complexity of the
task, we do not believe submitting a fixed price is appropriate.
While we are confident that we can perform the defined work for the amounts estimated,
costs will vary depending on a number of factors beyond our control. For example, we
have assumed that the operator will reasonably cooperate with the City and with us, and
will produce any requested information on a timely basis. If the operator refuses to
cooperate, the cost to the City will be higher. In addition, we have assumed that the staff
and the legal department of the City will be working with us in the renewal process. In
particular:
0 We have assumed that the City’s legal staff will work with us to locate key
documents and that staff will be able to collect data in the City’s files for our
review in response to limited requests for information.
0 We have also assumed that the City’s legal staff will be available to work with
us to advise on questions of local and state law which may affect the
franchising process -- whether certain actions need to be taken by resolution
or ordinance, for example.
0 If the City cannot assist us, and desires to have us perform these functions,
costs will be higher.
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MILLER & VAN EATON, P.L.L.C.
Task 1 : Community Needs Assessment
Task 2: Past Performance Assessment
Task 3: Prepare Renewal Plan
Task 4: Review Existing Franchise Agreement
We can revise the scope of work and the proposed cost to meet the City’s budget. We
must emphasize, however, that the level of the City’s negotiating leverage is directly
related to the thoroughness of the needs assessment process. Consequently, if the
operator takes a strong negotiating position, additional work may be required.
Additional work will also be needed if parties proceed with the formal renewal process.
$7,500
$12, 500
$4,000
$2,500
Travel costs and other out-of-pocket expenses incurred by the firm on behalf of the City
will be advanced by the firm and then billed to the City in accordance with the City’s
Protocol for Legal Services. Expenses, including photocopying, computerized legal
research, travel, telephone and transcripts, will be separately itemized and reflected on
the billing. Travel costs and other expenses are not included in the estimates provided
below.
Task 6:
Task 7:
Task 8: Attend Meetings
Task 9:
System Technical and Operational Analysis
Guidance Regarding Regulatory Requirements and Adelphia Bankruptcy
Draft Franchise Documents & Ordinances
Our estimate of the fees for MVE’s role in the proposed tasks is below. These
estimates do not include any fees for consultants which the City may choose to retain.
Again, this covers a comprehensive approach. We will work with the City to tailor an
approach that meets its needs.
$2,500
Hourly rates
Hourly rates
$10,000
I Task 5: Conduct or Assist with Negotiations I Hourly rates
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MILLER & VAN EATON, P.L.L.C.
TIME LINE
Completion dates can vary due to a number of factors beyond our control. For
example, we have assumed that the operator will reasonably cooperate with the City
and with us, and will produce any requested information on a timely basis. If the
operator refuses to cooperate, the time estimates may change. For the City's planning
purposes, we believe the tasks can reasonably be completed as follows:
I Task 1 : Communitv Needs Assessment
Task 2: Past Performance Assessment
Task 3: Prepare Renewal Plan
Task 4:
Task 5:
Review Existing Franchise Agreement
Attend or Assist with Negotiations
I Task 6: Svstem Technical and ODerational Analvsis
Task 7: Guidance Regarding Regulatory Requirements
& Adelphia Bankruptcy I Task 8: Attend Meetings
I Task 9: Draft Franchise Documents & Ordinances
Mar2005 1
Dec 2004 I
completed I
Nov 2004 I
Mar 2005, as
requested
Dec 2004 I
As requested
Mar 2005 I