Explanation
BACKGROUND: This Ordinance authorizes the Director of the Department of Technology to accept a $100,000.00 community technology grant from WideOpen West Ohio, LCC ("WOW") as settlement of a disputed claim against WOW for allegedly recovering payment of an elective fee from WOW! subscribers from 2002 to April, 2006. WOW also has agreed as part of the settlement to discontinue the recovery of the elective fee from WOW subscribers after April 1, 2006. The grant will be paid in four (4) equal annual installments of $25,000.00, beginning the third quarter of 2006. This legislation authorizes the Director of Technology to execute a settlement agreement necessary to achieve resolution of this claim prior to the commencement of any litigation. It further authorizes the City Auditor to deposit the grant funds into a special fund and appropriates those funds for community-based technology projects as determined by the Director of DOT and approved by City Council.
FISCAL IMPACT: Funds recovered to be deposited with the City Auditor as authorized and appropriated herein.
EMERGENCY JUSTIFICATION: Emergency action is requested as not to unduly delay the benefit to the City and cable subscribers from the proposed settlement.
Title
To authorize the Director of the Department of Technology (DOT) to settle and compromise a claim against WideOpen West Ohio, LLC (WOW) for recovery of an elective fee from WOW subscribers and to accept from WOW a $100,000 community technology grant to be paid by WOW in four (4) equal annual installments of $25,000.00, beginning the third quarter of 2006; to authorize the Director of DOT to execute a settlement agreement to finalize the settlement; to authorize the City Auditor to deposit the grant funds into Fund No. 291-447, OCA Code 447-291, the Community Technology Grants Fund, upon receipt, to appropriate such funds for the purpose of community-based technology projects as determined by the Director of DOT and approved by City Council; and to declare an emergency.
Body
WHEREAS, WOW was granted a permit by the City pursuant to Columbus City Code Section 595.05 to operate a cable communication system in the City, which expires in December 2010, subject to the terms of Chapter 595 of the Columbus City Code; and
WHEREAS, beginning in Februay 2003, the City conducted a service permit review to determine if WOW is in material compliance with the service permit requirements in Chapter 595 relying on information provided by WOW and WOW subscribers; and
WHEREAS, pursuant to Columbus City Code Section 595.04(F)(5) and in lieu of fulfilling franchise obligations related to providing connections to public buildings as set forth in Section 595.04(F)(2)-(4), WOW for the duration of its permit has paid to the City a service permit fee equivalent to one-half of one percent of the gross revenues ("elective service permit fee"); and
WHEREAS, based on information obtained during the aforementioned service permit review, the City believes and WOW acknowledges that WOW separately itemized the elective service permit fee on subscriber billing statements, collected the elective
service permit fee from Columbus subscribers and paid the elective service permit fee to the City, beginning in 2002 to the present time; and
WHEREAS, WOW believes that 47 U.S.C. Section 542(c) and other applicable law supercedes Columbus City Code Section 595.04(F)(5) and therefore, permits the separate itemization of the elective service permit fee on subscriber billing statements; and
WHEREAS, the City believes that WOW expressly agreed to waive any rights to challenge payment of the elective service permit fee to the City under Columbus City Code Section 595.04(F)(5)(b) and expressly agreed that such additional fees would not be recovered from subscribers under Columbus City Code Section 595.04(F)(5)(c); and
WHEREAS, the City and WOW desire to settle the matter in good faith prior to the filing of litigation between them;and
WHEREAS, WOW has agreed to pay a $100,000 community technology grant to be paid by WOW in four (4) equal annual installments of $25,000.00, beginning the third quarter of 2006, and to cease for the duration of the existing service permit separately itemizing and recovering from subscribers the elective service permit fee as of April 1, 2006; and other terms and conditions as negotiated by the parties and set forth in a written settlement agreement and release; and
WHEREAS, the Director of DOT seeks authorization to execute the settlement agreement and release; and
WHEREAS, the City Auditor seeks authorization to deposit the settlement funds into Fund No. 291-447, OCA Code 447-291, upon receipt, and any further necessary accounting codes are to be determined by the City Auditor;
WHEREAS, the funds are hereby appropriated for the purpose of community-based technology projects as determined by the Director of DOT and approved by City Council;
WHEREAS, an emergency exists in the usual daily operation of the Department of Technology in it is immediately necessary to authorize settlement of the disputed claim so the City may promptly conclude this matter and the community receive the benefit of the settlement, thereby preserving the public health, peace, property, safety and welfare; now, therefore,
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
SECTION 1. That the Director of DOT be and is hereby authorized to compromise and directed to execute a settlement agreement and release with WOW for resolution of the elective service permit fee issue upon the terms and conditions as set forth in a written Settlement Agreement, including payment of a $100,000.00 community technology grant to be paid by WOW in four (4) equal annual installments of $25,000.00, beginning the third quarter of 2006, and to cease for the duration of the existing service permit separately itemizing and recovering from subscribers the elective service permit fee as of April 1, 2006;
SECTION 2. That the City Auditor be and hereby is authorized to deposit the settlement funds into Fund No. 291-447, OCA Code 447-291, the Community Technology Grants Fund, upon receipt, and to determine any further necessary accounting codes.
SECTION 3. That for the purpose of establishing and funding community technology projects as determined by the Director of DOT and approved by City Countil, the settlement funds, upon receipt, be and hereby are appropriated from Fund No. 291-447, OCA Code 447-291, the Community Technology Grant Fund.
SECTION 4. That for the reasons stated in the preamble hereto, which is hereby made 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.