SUBSTITUTE ORDINANCE NO. BL2001-591

A substitute ordinance granting the consent of The Metropolitan Government Of Nashville and Davidson County to the assignment and transfer of control of the Cable Television Franchise and Cable Television System from Intermedia Partners Southeast, d/b/a AT&T Broadband, to Comcast Cable Communications, Inc.

WHEREAS, InterMedia Partners Southeast ("Franchisee") holds a franchise ("the Franchise") to operate a cable television system ("the System") in Nashville and Davidson County, Tennessee, pursuant to Ordinance Nos. 095-1379, 099-1810 (collectively, the "Franchise Ordinance"), and current Title 6, Chapter 6.08 of the Metropolitan Code (the "Cable Ordinance"); and

WHEREAS, after a series of transfers, Franchisee was approved by The Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro Government") as the Franchise holder, pursuant to prior transfer ordinances (the "Prior Transfer Ordinances"). The Prior Transfer Ordinances, the Franchise Ordinance, and the Cable Ordinance, together with any applicable resolutions, acceptances, memoranda of understanding, social contracts and agreements, are collectively referred to as the "Franchise Documents"; and

WHEREAS, AT&T Corp., the ultimate parent company of Franchisee, and Comcast Corporation ("Comcast"), the ultimate parent corporation of Comcast Cable Communications, Inc. ("Comcast Cable"), have entered into an agreement whereby: (i) AT&T Corp., through a series of internal transactions, will transfer the Franchise to Broadband Nashville I, LLC ("Broadband"), an affiliate of AT&T Corp., and Franchisee; (ii) Comcast Cable will acquire all of the ownership interests in Broadband; and (iii) such ownership interests will be immediately transferred to Comcast Cable, such that Comcast Cable will hold ultimate control of the Franchise (the "Proposed Transaction"); and

WHEREAS, Franchisee and Comcast Cable jointly filed a copy of Federal Communications Commission Form 394, together with certain attached materials, with Metro Government on November 14, 2000, which materials more fully describe the Proposed Transaction, and which form contains certain promises, representations and warranties by Franchisee and Comcast ("Transfer Application"); and

WHEREAS, Franchisee and Comcast Cable provided written responses to the data request issued by Metro Government (the "Data Request Response"); and

WHEREAS, Section 6.08.140 of the Cable Ordinance requires the Metro Government's prior consent to a change of control affecting the Franchise; and

WHEREAS, Metro Government has reviewed the Transfer Application and considered all factors specified in the Cable Ordinance; and

WHEREAS, relying on Franchisee's and Comcast Cable's representations, Metro Government is willing to grant its consent to the Proposed Transaction, as long as Franchisee's and Comcast Cable's representations are complete and accurate; and

WHEREAS, Metro Government's approval of the Proposed Transaction is therefore appropriate if Broadband agrees that that it will: (i) be bound by all of the provisions, terms, conditions and limitations prescribed in the Franchise Documents and all applicable federal and state laws, regulations and resolutions, and such local laws, regulations and resolutions as are currently in effect, including this Substitute Ordinance No. BL2001-591; and (ii) assume the obligations, liabilities and responsibility for all acts and omissions, known and unknown, of Franchisee under the Franchise Documents and applicable law for all purposes.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY THAT:

Section. 1. The Metropolitan Council's consent to, and approval of the Transfer Application is hereby GRANTED in accordance with the Cable Ordinance, subject to the following conditions:
The processing fee of $5,000 required by 6.08.140(F) of the Cable Ordinance shall be paid;
Neither the Franchise, nor the System, nor any part of the System located in Metro Government's public rights-of-way or on Metro Government property, shall be assigned or transferred, in whole or in part, without filing a written application with Metro Government and obtaining the Metropolitan Council's prior written approval of such transfer or assignment, but only to the extent required by applicable law.
Within fifteen (15) days of the consummation of the Proposed Transaction, Broadband shall file with Metro Government an executed copy of the Franchise Acceptance attached hereto as Exhibit A.
Prior to third reading of this Substitute Ordinance, Comcast Cable shall execute an acknowledgement of Broadband's acceptance of all obligations under the Franchise Documents reasonably acceptable to Metro Government in form and substance.
Metro Government's approval of the Transfer Application is made without prejudice to, or waiver of, Metro Government's right to fully investigate and consider during any future franchise renewal process: (i) Broadband's financial, technical, and legal qualifications; (ii) Franchisee's and Broadband's compliance with the Franchise Documents; and (iii) any other lawful, relevant considerations.
Metro Government is not aware of any default or breach under the Franchise Documents. Notwithstanding the above, Metro Government's approval of the Transfer Application is made without prejudice to, or waiver of, any right of Metro Government to consider or raise claims based on Franchisee's defaults, its failure to provide reasonable service in light of the community's needs, or its failure to comply with the terms and conditions of the Franchise Documents or with applicable law.
Metro Government waives none of its rights with respect to the Franchisee's compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents and in applicable law. Metro Government's approval of the Transfer Application shall in no way be deemed a representation by Metro Government that the Franchisee is in compliance with all of its obligations under the Franchise Documents and applicable law.
Broadband accepts, acknowledges, and agrees that, after the Proposed Transaction, it will be bound by all the commitments, duties, and obligations, present and continuing, embodied in the Franchise Documents and applicable law, and that the Proposed Transaction will have no effect on these obligations.
Nothing in this Resolution amends or alters the Franchise Documents or any requirements therein in any way, and all provisions of the Franchise Documents remain in full force and effect and are enforceable in accordance with their terms and with applicable law.
Franchisee, Broadband, and Comcast Cable agree that neither the Proposed Transaction nor approval of the Proposed Transaction shall in any respect relieve Broadband or any of its successors in interest of responsibility for past acts or omissions, known or unknown (including those acts or omissions of Franchisee), and Broadband hereby affirms that it shall be liable for and accepts the consequences of any such acts and omissions, known and unknown, including liability for any and all previously accrued but unfulfilled obligations to Metro Government under the Franchise Documents and applicable law, for all purposes, including review of past performance to determine whether its Franchise should be renewed and any claims relating to any past noncompliance. Notwithstanding the above, Broadband does not waive any right or defense of its predecessors under applicable law. Except with respect to the representations and warranties referenced in Section 1.15 hereof, upon consummation of the Proposed Transaction, Franchisee, AT&T Corp., and any predecessors in interest, shall be deemed released by Metro Government of any and all obligations to Metro Government under or resulting from performance under the Franchise Documents or other applicable law or agreements. The Proposed Transaction shall not permit Broadband or Comcast Cable to take any position or exercise any right with respect to the Franchise Documents and the relationship thereby established with the Metro Government that could not have been exercised prior to the Proposed Transaction.
Broadband and agrees that it accepts and will abide by all terms of the Franchise Documents and applicable law, and will assume the obligations, liabilities and responsibility for all acts and omissions under the Franchise Documents and applicable law, known and unknown, of the Franchisee and its predecessors in interest.
Metro Government reserves all of its rights with respect to Broadband's future compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents, specifically Section 2(n) of the Franchise Agreement.
In the event the Proposed Transaction does not close in accordance with the Transfer Application, or closes on terms that are in any material respect different from the terms disclosed to Metro Government in writing in the Transfer Application, Data Request Response or otherwise, then any Metro Government consent to the Proposed Transaction and Transfer Application shall be void and of no force or effect, and the Transfer Application deemed to have been timely denied.
Broadband and Comcast Cable represent and warrant that the Proposed Transaction will not adversely affect the financial position of Broadband or Comcast Cable in a manner that would affect Broadband's ability to fulfill its obligations under the Franchise Documents.
Franchisee, Broadband and Comcast Cable acknowledge and agree that: (i) the Metro Government's approval of the Transfer Application is made in reliance upon the representations, documents, and information provided by the aforementioned entities in connection with the Transfer Application; and (ii) each of the foregoing entities is liable for its respective representations and warranties in connection with the Transfer Application.
Metro Government is not waiving any rights it may have to require franchise fee payments on future services delivered by Broadband via the cable system.
Metro Government is not waiving any right it may have related to the open access issue.
The Metropolitan Council's approval of the Proposed Transaction and Transfer Application shall not constitute a waiver or release of any of the rights of Metro Government under the Franchise Documents and applicable law, whether arising before or after the date of consummation of the Proposed Transaction.

Section 2. If any of the conditions specified in Section 1 are not satisfied, or if Metro Government is not fully reimbursed in accordance with Section 3, then Metro Government's consent to, and approval of, the Transfer Application and Proposed Transaction is hereby DENIED and void as of the date hereof.

Section 3. Broadband or Comcast Cable shall reimburse the Metro Government for the reasonable out-of-pocket costs and expenses it actually incurred in connection with its consideration and review of the Transfer Application and the preparation of this Resolution, less the applicable filing fee specified in 6.08.140(F) of the Cable Ordinance. Metro Government will present a single invoice to Comcast Cable, itemizing the costs and expenses incurred. Comcast Cable or Broadband shall remit payment for such costs and expenses within thirty days of its receipt of the invoice Such payment shall be made directly to Metro Government and not through a payment to any other entity. Broadband and Comcast Cable agree not to assert that reimbursement made under this Ordinance shall be considered a franchise fee, and neither Broadband nor Comcast Cable shall impose a separate surcharge on cable subscribers for transfer expenses incurred in connection with the Proposed Transaction, including (but not limited to) the Transfer Application and Data Request Response.

Section 4. If any of the representations made to Metro Government by the Companies prove to be incomplete, untrue or inaccurate in any material respect, it shall be deemed a material breach of the Franchise Documents, and Metro Government shall have available to it all remedies provided under the Franchise Documents and applicable law, including, without limitation, revocation or termination of the Franchise.

Section 5. Any violation of this Ordinance shall constitute a material violation of the Franchise and the Cable Ordinance, and shall be subject to all remedies available to Metro Government under the Cable Ordinance and the Franchise.

Section 6. This Ordinance shall not be construed to grant or imply the Metropolitan Council's consent to any other transfer or assignment of the Franchise or any other transaction that may require the Metropolitan Council's consent under the Franchise, the Cable Ordinance or applicable law. Metro Government reserves all its rights with regard to any such transactions.

Section 7. This Ordinance is a final decision on the Transfer Application within the meaning of 47 U.S.C. 537.

Section 8. That the transfer of the Franchise from Franchisee to Broadband, and the subsequent transfers of control of Franchisee ultimately to Comcast Cable, shall not take effect until the consummation of the Proposed Transaction.

Section 9. This Ordinance shall take effect from and after its enactment, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.,

Sponsored by: Phil Ponder

LEGISLATIVE HISTORY

Substitute Introduced: February 6, 2001
Referred to: Budget & Finance Committee
CATV Special Committee - Approved (2/1/01)
Passed Second Reading: February 6, 2001
Passed Third Reading: February 20, 2001
Approved: February 22, 2001
By: Mayor Bill Purcell