International Municipal Lawyers Association - Local Government Blog

DIGITAL TELEVISION CONVERSION REDUX

May 15, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The Congress approved a delay in the Digital Television Conversion from February until June 12, 2009.  This additional time has allowed the Federal Communications Commission and the Department of Commerce’s National Telecommunications and Information Administration to enhance and restructure the federal government’s consumer outreach programs.

Among the good news items:

  1. The backlog for federal discount coupons for DTV converters is gone.
  2. The agencies have recruited fire departments and community organizations throughout the nation to assist homebound and vulnerable citizens.
  3. The agencies have improved call centers and help lines.
  4. The broadcasters are doing more to inform and to demonstrate to individual consumers whether the new over-the-air digital signals will be available without improved antenna arrays.
  5. Many broadcasters are converting ahead of June 12, providing real experience for the call centers and outreach agencies.

The story is not over—but the trends are finally positive. 

And please do your part by sharing this Consumers’ Union public education package with your electeds, agencies and local media: CLICK HERE for the PDF


Gold in the Trailings

May 14, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The economic news for local governments and their attorneys has not been good.  Big time cutbacks in local budgets have forced major changes in the law offices advising local governments.  In the midst of this economic detritus, some good news is emerging.

Much like the middle income families that can now afford to buy houses that are in foreclosure, City Attorney offices may now have the chance to attract and hold some of the very best new lawyers graduating this June.  We all know the big law firms have driven associate salaries far beyond government salare levels and the big firms have thereby discouraged many young attorneys from pursuing public service careers.  Now the economy is forcing the large firms to change their hiring patterns.  And the door may be opening for government law offices to compete on equal footing for this young talent.

Recent news headlines on law firms have focused on the tragedy of job losses and personal tragedies among recently fired attorneys.  This is grim, heart-rending news.  But underneath these headlines is a less reported trend.  The biggest firms are changing their offers to third year law students and first year attorneys.  They are deferring start dates for new attorneys, in many cases until January 2010 or even June 2010.  And they are rolling back associate starting salaries to levels comparable to the late 1990’s.

This change offers City Attorneys the chance to compete more equally for this talent pool.  Local government law has always had the attractive qualities of public service, challenging and wide ranging legal issues, and family-friendly working hours.  To this list can now be added competitive compensation, and a chance to try public service before stepping into 2400 hours/year work environs.

The salary picture is better for three reasons.  Associate salaries are being rolled back o levels comparable to the late 1990’s.  Also most of the large firms are offering to pay the deferred attorneys some portion (often 50%) of the normal first year salary in return for accepting the delayed start date.  And the over-enrollment of attorneys in the big firms means many firms will not object if a first year attorney decides to not pursue the big firm job, even after accepting the deferred compensation for several months.

So now is the time to reach out to your local law school placement offices.  And reach out to your colleagues in larger firms.  Tell them you are looking to help June graduates or 2008 deferred graduates find useful legal work.


Federal Stimulus – The Time is NOW for Broadband.

March 5, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton 

The federal stimulus bill contains $7.2B for broadband projects to “unserved” and “underserved” populations.

You should push your IT and City management to apply for this money.  This race will go to the swift.  All local governments are defined as eligible entities for grants, either directly in combination with others in a joint application.

The money is split $4.7B in grants by the Department of Commerce, National Telecommunications and Information Administration (NTIA), and $2.5 B in grants, loans and loan guarantees by Department of Agriculture, Rural Utility Service (RUS). 

The statutory mandates are different for the two agencies, with RUS money limited to projects that serve at least 75% “rural” areas, and NTIA grants intended to address “unserved” and “underserved” areas which don’t overlap with areas receiving RUS funds.

The NTIA money specifically is available to

1.      Provide broadband education, awareness, training, access, equipment, “support” to schools and libraries, healthcare providers or “other community support organizations”; or

2.      Facilitate greater use of broadband service by low-income. unemployed, aged, or “otherwise vulnerable populations; or

3.      Improve access to, and use of broadband service by public safety agencies; or

4.      Stimulate demand for broadband, economic growth and job creation

NTIA (not RUS) must award all of its money by September 30, 2010.  And the NTIA projects must be completed within 2 years of grant award.

NTIA and RUS both anticipate working with the States to identify priority of the competing proposals.

On March 10, at 10 AM EST; Obama Administration officials plan a public meeting to discuss details and plans for seeking grant and loan proposals from eligible entities.  The meeting will be streamed live over the internet.

More information is available at

http://www.pti.org/index.php/ptiee1/more/451/

If you download that presentation, you will see a full page of useful links for more information.

So get your folks going now, coordinate with your governor’s office, and be the first in line.


Another Cable TV Bankruptcy?

January 22, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton 

Change may be coming to your community. And it won’t be from Washington DC. Instead, it will be from your friendly local cable operator—if the operator is either Charter or Broadstripe.

In a reprise of the Adelphia bankruptcy filed in 2002, two major national cable operators may be headed toward Chapter 11 bankruptcy court protection from creditors. Broadstripe and its affiliates filed for bankruptcy protection on January 2, 2009 in the United States Bankruptcy Court for the District of Delaware, (Case No. 09-10006 (CSS)). Last week, Charter reported it missed an interest payment and had hired counsel to try to renegotiate its debt, signaling that a bankruptcy filing may follow before the end of this week January 23, 2009.

If your city has granted a franchise to either of these cable operators, pay attention. And share this warning with colleagues in neighboring communities that have either Charter or Broadstripe as their cable operator.

The treatment of cable franchises in bankruptcy is neither simple nor straightforward—particularly if your community benefits from a franchise that contains significant in-kind or financial benefits. Most attorneys think the only issue presented by a bankruptcy is whether amounts owed have been paid—classic creditors’ claims. This is an important issue. But there is another and more important issue created by the unique legal character of a cable franchise agreement.

A bankrupt debtor may assign executory contracts of a bankrupt estate even if the contract contains an anti-assignment clause and the counterparty objects to the assignment. See, 11 U.S.C. § 365(f). But this authority is not available when “applicable law” excuses the counterparty from accepting performance from the assignee. You should not assume a bankrupt debtor has a right to assign your cable franchise without your City’s prior, independent consent.

The Adelphia bankruptcy court recognized that a municipal ordinance could be “applicable law”. Further, it drew a distinction between an anti-assignment clause in a franchise agreement, and one found independently in an ordinance of general applicability and effectuated legitimate regulatory concerns for the benefit of the public. The court concluded that where the anti-assignment clause was contained in an ordinance of general applicability, it would not compel Adelphia communities to recognize the assignment of the Adelphia franchises to Comcast or Time Warner. In re Adelphia Communications Corp., 359 B.R. 65 (Bkrtcy.S.D.N.Y., 2007)

This important principle preserves your community’s right to take an independent look at the proposed restructuring or transfer of the franchise to a new operator.

A different problem may confront your community if your state has recently adopted one of the state-wide franchise laws pushed by at&t over the last few years. There may be no transfer of a franchise involved if the purchaser of the assets in bankruptcy already holds a state-wide franchise in its own right. In that case, your strategy for protecting your community may devolve to assert liens have attached to the existing facilities in the right-of-way, or other legal arguments tied to your right-of-way property interest.

Obviously your community’s specific rights will vary depending on the language of your franchise and local ordinances. But stay alert, and plan both to file a creditor’s claim to preserve your financial claims and to file an objection to preserve your authority to reject a franchise transfer if you are not satisfied by the promises of the new operator.


Obama’s Hurricane Katrina?

January 7, 2009
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Posted by: Nicholas P. Miller, Partner, Miller & Van Eaton, PLLC
 
Watch for February 17, 2009.  It will be a big day in your community, and for the entire nation.

You may have heard.  On February 17, 2009, ALL of the nation’s analog television broadcast stations go black simultaneously.[1] [DOC-280586A1.doc ]

Euphemistically called the “DTV Conversion”, 2/17/09 is D-Day for an estimated 15 to 20 million households which receive their TV “over the air”.  These tend to be the most vulnerable and isolated citizens in your community: those who are elderly, poor and foreign language dependent. 

Characteristic of so much else in the last 8 years, the Bush Administration has done it again—left a big pile of trouble for the Obama Administration to clean up.  But there will not be enough time for the Obama folks to have much impact.

In the words of FCC Commissioner Jonathan Adelstein,  “In your community, a lot of people are going to need help, but it’s not yet clear where that help is going to come from….  The DTV transition isn’t ready for prime time.” [Click Here]

Like a hurricane, this event was predictable for the last 20 years, as soon as the Federal Communications Commission and Congress determined that all television broadcasters should convert from analog to digital format signals.  [FCC-08-56A1.doc]  And the 85% of households “on high ground” should be OK, if still disrupted.  Their major televisions are hooked to a cable television system or to a satellite television network and will not be directly affected.  However, even in these households, multiple TVs may not be connected to the cable television system and they too will “go dark” if they can’t receive digital TV signals.

The remaining 15% of ALL households which do not subscribe to any cable television or satellite TV are going to have problems.  Only a small percentage of these over-the-air households own a digital television.  These households are least likely to be aware of the coming change, to have the technical savvy to equip their old analog TVs to receive the new digital signals[2], or to have the financial capability to buy the digital converter or to improve their antenna.

A prior “early roll-out” of the DTV conversion in Wilmington NC indicates the scope of the problem your community will experience.  You should expect your share of 2.2 million households nationwide to seek help in the first days after the national transition deadline.  And that’s the optimistic scenario.  Again, in Adelstein’s words, “[In Wilmington] the problems led viewers to need either phone or direct technical assistance, which could take upwards of 40 minutes on the phone for each household.” 

You need to alert your City leadership and to get local DTV assistance volunteers ready to go.  A reasonable set of steps for your community:

1.            Encourage tech savvy individuals to assist family members, friends, and neighbors with converter box installation. 

2.            Create a local phone bank with sufficient capacity to handle your share of the predicted 2 million phone calls in the days immediately following February 17. 

3.            Send speakers to Churches, community groups, and others serving the foreign-language and elderly communities.

4.            Ask your local telephone company, cable and satellite employees to get involved on a local level with local phone banks and help people to install converter boxes and new antennas in homes. 

Good luck to us all, and especially to President Obama on February 17. 

[1] Some temporary emergency exceptions are possible in the so-called “Analog Nightlight” legislation.  See Short-term Analog Flash and Emergency Readiness Act (“Analog Nightlight Act”), Pub. L. No. 110-459, 122 Stat. 5121 (2008).  The bill, S. 3663, was signed into law on December 23, 2008

[2] Three things are needed to receive the new digital TV signals:

1.        A NEW converter box that allows an analog TV to receive a digital signal;

2.        A strong digital signal from the local broadcast tower;

3.        Technical ability to self-install the converter box and make any needed antenna improvements.

 



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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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