Coalition for Supreme Court AppealTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Coalition for Supreme Court Appeal
DATE: December 30, 2008
Cable TV Coordinator Craig Nowack is recommending the City join a coalition of
communities to file a certiorari petition in the United States Supreme Court asking the
Court to review and revise the decision of the United States Court of Appeals for the
Sixth Circuit which upheld that Federal Communications Commission order preempting
local authority over cable franchising for new entrants.
The City would commit up to $5,000.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Craig Nowack, Cable TV Coordinator
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
MEMORANDUM
TO: Michael C. Van Milligen, City Manager
FROM: Craig Nowack, Cable TV Coordinator
DATE: December 12, 2008
RE: Coalition for Supreme Court Appeal
INTRODUCTION
The purpose of this memorandum is to recommend joining a coalition of communities to file a
certiorari petition in the United States Supreme Court asking the Court to review and revise the
decision of the United States Court of Appeals for the Sixth Circuit which upheld that Federal
Communications Commission order preempting local authority over cable franchising for new
entrants.
BACKGROUND
Two years ago this month the FCC issued its first report and order on local franchising which
severely limits the options a local community has in negotiating a cable franchise. A coalition of
communities, of which Dubuque was a part, appealed that order to the Sixth Circuit. In June
2008, the Sixth Circuit upheld the FCC order on all points. We then participated in another
coalition which sought a rehearing en banc before the Sixth Circuit. In late October, the Sixth
Circuit denied the rehearing petitions.
Now, the law firm of Miller and Van Eaton is recommending that a coalition be formed to file a
certiorari petition in the Supreme Court; a memorandum from attorneys Joseph Van Eaton and
Rick Ellrod is attached. They identify four consequences of the FCC order, all of which would
threaten our ability negotiate and administer cable franchises for the betterment of our
community.
I am recommending that the City of Dubuque join this coalition and commit up to $5,000 for the
purpose of filing the certiorari petition. Should the Supreme Court agree to hear the case,
another coalition would be needed at additional cost. Rick Ellrod indicated that a Supreme
Court hearing would likely result in a significantly larger coalition and help to keep expenses
down for coalition members.
City Attorney Barry Lindahl also recommends we join the coalition to file the certiorari petition.
Budget Director Jenny Larson says the Cable TV fund cash balance can accommodate the
$5,000 expense.
RECOMMENDED ACTION
I respectfully request your approval to join the coalition of communities to file a certiorari petition
in the Supreme Court to review and revise the Court of Appeals decision affirming the FCC
order on local franchising.
cc: Randy Gehl, Public Information Officer
Barry Lindahl, City Attorney
Jenny Larson, Budget Director
Teri Goodmann, Assistant City Manager