Time Warner-CS010507AT &T Broadband
2951 Kinwest Parkway
Irving, TX 75063
May 7, 2001
Attn: Right -of -Way Registration
Engineering Department
City of Coppell
255 Parkway Blvd.
Coppell, TX 75019
On behalf of TCI Cablevision of Texas, Inc., marketed as AT &T Broadband ( "AT &T "), I
would like to reassure you that our company will comply with all applicable requirements
of the Right -of -Way Ordinance, Chapter 6, Article 14. "Certain Use of Public Right -of
Way" ( "Ordinance "), enacted by the City of Coppell ( "City "). There are, however,
requirements of the Ordinance which are not properly applied to cable television
franchises, including charges associated with the franchisee's use of rights -of way.
In addition to any limitations arising from the franchise agreement, the 5% fee cap in the
federal Communications Act prevents a franchising authority from demanding that a cable
operator that already pays a 5% franchise fee be required to pay any additional fees for the
use of rights -of way which are also franchise fees under federal law. The Communications
Act definition of franchise fees is purposefully broad and all encompassing. Section 622
(g)(1) specifically provides that:
[T]he term 'franchise fee' includes any tax, fee or assessment
of any kind imposed by a franchising authority ... on a cable
operator... solely because of [its] status as such.
47 U.S.C. §542 (g)(1) (Emphasis added). Every "assessment of every kind" imposed on an
operator is designated a franchise fee.
Moreover, federal legislative history calls for the application of franchise fees paid by
cable operators to their use of rights -of -way, and subsequent court rulings have limited
such costs to no more that five (5) percent of a cable operator's revenue determining that
any costs in excess of such cap may be deducted from franchise fees.
Because the Ordinance imposes charges in excess of the 5% franchise fees already paid
to the City, including a registration fee of $250 for use of rights -of -way, we believe the
company is not required to pay such fees, or that it may deduct such charges from it's
payment of franchise fees. Accordingly, we will submit a completed registration form
under separate cover, but are not required to include a registration fee.
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While we we are not required to pay any additional fees for the use of rights -of -way, we
nevertheless intend to comply with all other lawful requirements of the City's Ordinance.
Please do not hesitate to call me with any questions or comments regarding this issue.
Si ely,
&4-L I ,
Dick Kirby
Executive Director
Franchising & Government Affairs
Cc: Rick Moore
Kevin Lipe
John Moses
Dottie Kelly
Clem Maddox