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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. dc 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 4 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 1 7 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. 2 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 3 9 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. 4 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. -2- 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 Page i 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 Page 1 /b 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. Page 2 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 Page 3 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. Page 4 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. Page 5 0222 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). Page 6 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 Page 7 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. Page 9 + 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. Page 10 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: Page 11 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 Page 12 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. Page 13 ds 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. Page 14 .... ________... . 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. Page 15 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 Page 16 3/ 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