Explanation
BACKGROUND:
This ordinance approves the transfer of control of WideOpen West Ohio, LLC ("WOW Ohio"), as holder of a Cable Service Permit ("Permit"), from WideOpen West Holdings, LLC, ("Transferor") to Racecar Acquisition, LLC ("Transferee"). The Permit was issued by Columbus City Council pursuant to Chapter 595 of the Columbus City Code to WOW Ohio in 2001. Currently, the Transferor has entered into an Agreement and Plan of Merger with Transferor to transfer control of the service permit to Transferee. Transferor and Transferee have jointly filed a Federal Communications Commission Form 394 with the City's Department of Technology requesting consent to the transfer of control of WOW Ohio from the Transferor to the Transferee.
FISCAL IMPACT:
No fiscal impact upon the City of Columbus is anticipated or foreseen.
EMERGENCY:
This legislation is being submitted as an emergency for the expedient approval of this transfer of control, which will coincide with Section 537 of Title 47, United States Code. This code states that a franchising authority shall, if the franchise requires franchise approval of a sale or transfer, have 120 days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Federal Communications Commission regulations and by the franchising authority.
Title
To approve the transfer of control of the Permit held by WOW Ohio from WideOpen West Holdings, LLC to Racecar Acquisition, LLC; and to declare an emergency.
Body
WHEREAS, the City of Columbus, Ohio ("City") has received FCC Form 394 (Application for Permit Authority Consent to Assignment or Transfer of Control of Cable Service Permit) requesting consent to the transfer of control of WOW Ohio from the Transferor to the Transferee; and
WHEREAS, the City has furnished representatives of WideOpenWest Holdings, LLC and Racecar Acquisition, LLC each with the documents that are made part of the Permit, and
WHEREAS, the representatives of the Transferor and Transferee have indicated that they agree to the Permit and have furnished requested additional information to the City, and
WHEREAS, on February 16, 2006, a public hearing was held on the proposed transfer of control in accordance with Section 595.10(B)(2) of the Columbus City Code and members of the public were given an opportunity to comment on the proposed transaction, and
WHEREAS, after review of the FCC 394 form and the representations made to the City by the Transferor and Transferee and evaluation of such information, the City Council of the City consents to transfer of control of WOW Ohio from the Transferor to the Transferee, subject to acceptance by the Transferee and filing of its acceptance in writing on the written Acknowledgment and Acceptance Agreement attached and made part of this Ordinance.
WHEREAS, Section 537 of Title 47, United States Code, states that a franchising authority shall, if the franchise requires franchising approval of a sale or transfer, have 120 days to act upon any request for approval of such transfer that contains or is accompanied by such information as is required in accordance with Federal Communications Commission regulations and by the franchising authority.
WHEREAS, an emergency exists in the usual daily operation of the Department of Technology in that it is immediately necessary to approve the tranfer of control of the Permit, thereby preserving public health, peace, property, safety and welfare.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLUMBUS, OHIO AS FOLLOWS:
SECTION 1. The City hereby consents to and approves the transfer of control of WOW Ohio from the Transferor to the Transferee subject to all of the terms and conditions of the Permit and subject to written acceptance by the Transferee within ten (10) days after closing of the transaction concluding the transfer of control on the attached Acknowledgment and Acceptance Agreement.
SECTION 2. The City confirms that: (a) the Permit was properly granted to WOW Ohio; (b) the Permit is currently in full force and effect; and (c) the Permit represents the entire agreement between the City and WOW Ohio at the time of adoption of this Ordinance.
SECTION 3. Findings: The City finds that Transferee possesses the requisite legal, technical, and financial capabilities to ensure that WOW Ohio will continue the operation of the cable system in compliance with the Permit. City further finds that the transfer of control of WOW Ohio is not likely to materially adversely affect subscribers nor citizens of the City to cable services provided by WOW Ohio pursuant to the Permit. City further finds that Transferee has agreed that it will not take any actions that will cause WOW Ohio to not comply with the obligations contained within the present Permit including the requirements in Chapter 595 of the Code of the City of Columbus.
SECTION 4. WOW Ohio may transfer or assign the Permit or control related thereto including the obligations of this Ordinance to any person or entity controlling, controlled by or under common control with Transferee.
SECTION 5. The City hereby consents to and approves the assignment, mortgage, pledge or other encumbrance of the Permit subject to the obligations of this Ordinance, the system, or assets relating thereto as collateral for a loan.
SECTION 6. Transferee must file with the City written proof of the transfer of control and acknowledge full performance of the terms of the Permit and Chapter 595 of the City Code, and other fillings as may be required by the Permit including, but not limited to insurance, bonds and deposits as may be required.
SECTION 7. This Ordinance shall be deemed effective upon the closing of the change of ownership transaction contemplated between Transferor and Transferee, provided, however, that Transferee must file with the City a written Acknowledgement and Acceptance Agreement.
SECTION 8. This Ordinance shall have the full force of a continuing agreement with WOW Ohio and the City shall not amend or otherwise alter this Ordinance without the consent of WOW Ohio.
SECTION 9. For the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the Mayor, or ten days after passage if the Mayor neither approves nor vetoes the same.