RESOLUTION NO. R-3-2009

A RESOLUTION GRANTING A COMPETITIVE FRANCHISE FOR THE OPERATION OF A CABLE TELEVISION SYSTEM WITHIN THE CONFINES OF THE CITY OF FORT THOMAS TO CINCINNATI BELL EXTENDED TERRITORIES LLC (“CBET”).

WHEREAS, pursuant to its powers under Sections 163 and 164 of the Kentucky Constitution, the Fort Thomas City Council may create franchises for cable television systems; and

WHEREAS, pursuant to Section 621(a) of the Cable Act (47 U.S.C. § 541(a)) and Section 76.41 of the FCC’s regulations (47 C.F.R. § 76.41), entities may file a competitive franchise application with the City for franchise rights to provide cable service (hereinafter "CATV" or "Cable Television") throughout the City of Fort Thomas ("City"); and

WHEREAS, Section 621(a)(1) of the Communications Act of 1934 (the “Cable Act”) prohibits franchising authorities from unreasonably refusing to award competitive franchises for the provision of cable services (47 U.S.C. § 541(a)(1)); and

WHEREAS, the Federal Communications Commission (“FCC”) has found that new entrant providers of cable television service, such as Grantee, “face ‘steep economic challenges’ in an ‘industry characterized by large fixed and sunk costs,’ without the resulting benefits incumbent cable operators enjoyed for years as monopolist in the video services marketplace,” (FCC Order (as such term is hereinafter defined) at 63); and

WHEREAS, the FCC has determined that its construction of Section 621(a)(1) “best serves the [Communications] Act’s purposes of promoting competition and broadband deployment.” (FCC Order at 43); and

WHEREAS, the FCC has expressly recognized that it is unlawful for a franchising authority “to refuse to grant a competitive franchise on the basis of unreasonable build-out mandates,” (FCC Order at 43); and

WHEREAS, the FCC has found that “[b]uild-out requirements… impose significant financial risks on competitive applicants, who must incur substantial construction costs to deploy facilities within the franchise area in exchange for the opportunity to capture a relatively small percentage of the market,” (FCC Order at 43); and

WHEREAS, pursuant to Ordinance No. O-27-2008, passed by the Fort Thomas City Council on December 1, 2008, the Fort Thomas City Council created a non-exclusive competitive franchise for a cable television system to operate within the confines of the City of Fort Thomas; and

WHEREAS, the City of Fort Thomas advertised for bids for said competitive franchise on December 18, 2008; and

WHEREAS, on January 9, 2009, Cincinnati Bell Extended Territories LLC (“CBET”) submitted a bid pursuant to the advertisement on December 18, 2008; and

WHEREAS, the City of Fort Thomas, after such consideration, analysis, and deliberation has found that a franchise should be granted to CBET; and

WHEREAS, the City of Fort Thomas recommends that CBET be granted a cable franchise pursuant to 47 U.S.C. 541 for said cable television system within the City of Fort Thomas, Kentucky.

NOW, THEREFORE, BE IT RESOLVED BY THE FORT THOMAS CITY COUNCIL:

Section 1. That Cincinnati Bell Extended Territories LLC (“CBET”) is hereby accepted and approved for a non-exclusive franchise for the operation of cable television system within the confines of the City of Fort Thomas based upon and subject to the terms, specifications, restrictions and obligations set forth in Ordinance No. O-27-2008.

Section 2. That the statements set forth in the Preamble to this Resolution are hereby incorporated in this Resolution by reference, the same as if set forth at length herein.

Section 3. That if any section, sentence, clause or phrase of this Resolution is held to be unconstitutional or otherwise invalid, such infirmity shall not affect the validity of the remainder of the Resolution.

Section 4. That this Resolution shall be effective on and after the date of its passage.

PASSED FORT THOMAS CITY COUNCIL: January 20, 2009

SIGNED:_______________________

Mary H. Brown, Mayor

ATTEST: ________________________

Melissa K. Kelly, City Clerk