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Coalition of Communities Agreement / Cable TV FCC Copyrighted September 16, 2019 City of Dubuque Consent Items # 20. ITEM TITLE: Coalition of Communities Agreement SUMMARY: City Manager recommending approval to join the Coalition of Communities to appeal the Federal Communications Commission's order that allows cable companies to treat in- kind benefits as franchise fees. SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Approve ATTACHMENTS: Description Type Cable In-Kind Coalition Agreement-MVM Memo City Manager Memo Staff Memo Staff Memo CoalitionAgreement Supporting Documentation Dubuque THE CITY OF � uI�AaMca cih DuB E � � I � � I Maste iece on the Mississi i Zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Coalition Agreement DATE: September 9, 2019 Cable TV Coordinator Craig Nowack recommends City Council approval to join the coalition of communities to appeal the Federal Communications Commission's order that allows cable companies to treat in-kind benefits as franchise fees. The law firm of Best Best & Krieger is putting together a coalition of communities to challenge this order. The City of Dubuque could join this coalition for a flat rate of $5,000. I concur with the recommendation and respectfully request Mayor and City Council approval. � Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Craig Nowack, Cable TV Coordinator Dubuque THE CITY OF � All Anerisa Ci� DuB E ;.�..I � � , Maste iece on the Mississi i 20°'.2012.2013 rP pP zoi�.zoi9 TO: Michael C. Van Milligen, City Manager FROM: Craig Nowack, Cable TV Coordinator DATE: September 5, 2019 RE: Coalition Agreement INTRODUCTION The purpose of this memorandum is to request your signature on the consent form to join the coalition of communities to appeal the Federal Communications Commission's (FCC) order that allows cable companies to treat in-kind benefits as franchise fees. BACKGROUND Later this month a new FCC order will allow cable companies to treat certain in-kind benefits as franchise fees, thereby potentially lowering by the value of those benefits the amount of franchise fee revenue municipalities receive. The law firm of Best Best & Krieger (BBK) is putting together a coalition of communities to challenge this order. Last week you approved the City of Dubuque joining this coalition for a flat rate of$5000. BBK has requested that we sign the attached consent form in order to participate in the coalition. RECOMMENDED ACTION I respectfully request that you sign the attached consent form and return it to me. I will forward the executed form to BBK. cc: Randy Gehl, Public Information Officer � � .& ; Indian Wells I,�•�i Ontario (760)568-2611 $EST BEST &KRIEGER� (909)989-8584 I Irvine Riverside � (949)263-2600 A T T O R N E Y S A T L A W (951)686-1450 i Los Angeles Sacramento (213)617-8100 (916)325-4000 Manhattan eeach 2000 Pennsylvania Avenue, N.W.,Suite 5300,Washington,DC 20006 San Diego � (310)643-8448 Phone:(202)785-0600 � Fax:(202)785-1234 � www.bbklaw.com (619)525-1300 Walnut Creek 'i Gerard Lavery Lederer (925)977-3300 � (202)370-5304 gerard.lederer@bbklaw.com i 51320.00001 � August 29, 2019 ' I � Mr. Michael C. Van Milligen I City Manager i City of Dubuque 50 West 13th Street, 2nd Floor i Dubuque IA 52001 ' Re: Retention of BBK In Appeal of Federal Communications Commission's Third Section 621 Order(on Treatment of In-Kind Benefits as Franchise Fees) ' Dear Mr. Van Milligen: '� ABOUT OUR REPRESENTATION i Best Best.& Krieger, LLP (`BBK") is pleased that the City of Dubuque, Iowa has , retained BBK and is participating as part of a coalition of communities ("Coalition") in the ', appeal of the Commission's recent order in Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as Amended by the Cable Television Consu�ner P�otection ! and Competition Act of 1992, Third Report and Order, MB Docket No. OS-311 (released ! August 2, 2019). The order was issued on remand after a BBK coalition won its appeal in '; Montgome�y County v. FCC, a case challenging Commission rulings quite similar to those ; adopted here. This letter outlines the terms of BBK representation of your community as part of i the Coalition. '; i FEES You have agreed that we may bill you a flat fee of Five Thousand Dollars ($5,000) for 'i work to be performed in connection with the appeal and related advocacy. You will not be billed for any amount above this commitment, unless you have authorized an increase in your I commitment level. The contribution is intended to cover a share of the fees and costs of filing an �i appeal; filing for a stay of the order; procedural worlc required in connection with the appeal; and � briefing and argument of the appeal. The contribution is not intended to cover fees or costs associated with any reconsideration or rehearing, or for a petition to the Supreme Court. Our � billing policies are described in the memorandum attached to this letter. You should consider this i memorandum part of this agreement as it binds both of us. For that reason, you should read it ; carefully. � a I i I���� � BEST BEST &KRIEGER� j ATTORNEYS AT LAW � Mr. Michael C, Van Milligen � City of Dubuque � August 29, 2019 � Page 2 I i COALITION RULES � As has been the case throughout these and other FCC proceedings, cable companies, ' including Comcast, Verizon and RCN, and their national trade association, the NCTA, have been �, and will continue to be adverse to the interests of inembers of the Coalition. Please inform us immediately if you become aware of any additional adverse parties. Under the Rules of Professional Conduct for most jurisdictions where we practice, without informed written consent from the affected clients, we have a conflict of interest if we represent one client adverse or potentially adverse to another client in the same or a separate ' matter. Without informed written conserit, we cannot represent a client if there is a significant ', risk our representation of the client will be materially limited by our responsibilities to or relationships with another client. In order for us to represent you in the Coalition while continuing to represent other , clients part of the Coalition and in other unrelated matters, we must obtain your written informed ' consent from you and the other members of the Coalition. Our representation of the Coalition is not prohibited, but requires your consent. We do not believe our representation of the other , members of the Coalition will impair our competency, diligence or loyalty to you nor will it ' otherwise materially limit our representation of you or impair our independent professional '' judgment in any way. We do not believe we will be tempted to favor the interests of one client over the other, nor do we think the relationship will create any appearance of impropriety. Furthermore, because the work will be for a coalition, there are some unique elements to our representation to which we ask that you agree and would represent that all the other members of ' the Coalition already have. , First, the filings we make must be acceptable to all the members of the Coalition, and this ; may affect what issues are addressed and what positions we talce. By signing this engagement ; letter you agree to this arrangement and agree that we may represent you and other participants �, as a part of the Coalition. We will consult with you and other members of the Coalition as the � filings are prepared. You waive any objections that you may have to this joint representation; i agree that we may represent each member of the Coalition individually and jointly; and agree ! that you have joint interests with the other Coalition members that will permit us to communicate information about this matter to you and other members of the Coalition without waiving privileges that may apply. I � Second,the Coalition is not a fixed group, but is instead an evolving group: communities i or organizations may join or leave the Coalition during the course of our representation. It may ; be that your community is adverse to one or more of the other members of the Coalition in , another, unrelated matter. By signing this engagement letter, you agree that we may represent j I � i i I � ��, r I I���1� � ; � BEST BEST&KRIEGER� � ATTORNEYS AT LAW � Mr. Michael C. Van Milligen ' City of Dubuque August 29, 2019 Page 3 these additional members as part of the Coalition. Lilcewise, except to the extent there is a � conflict that is not waivable, you agree that our representation of you as part of the Coalition will ' not disqualify the Firm or any of its members from representing another client in an unrelated ' proceeding where the client's interest is adverse to yours. We will keep you apprised of the ; Coalition members and we ask that you advise us immediately if you believe that there is a conflict that is not waivable. Third, we will not represent any entity in this matter that takes a position adverse to ', yours. We may be aslced by some clients to make individual filings in this proceeding in addition ' to the Coalition's. You and each entity of the Coalition may decide at any time to withdraw from participation in the matter or the Coalition. Should you do so, you also agree that we may continue to represent the other members of the Coalition in this matter. We will tailor our efforts based on the total commitments we receive from all coalition ' members and obviously will let you know if we believe that the budget will not allow us to ' address issues of importance to you. 1NSURANCE We are also pleased to let you know that Best Best&Krieger LLP carries errors and omissions insurance with Lloyd's of London. NEW MATTERS ' When we are engaged by a client on a particular matter, we are often later asked to work on additional matters. You should know that such new matters will be the subject of a new signed supplement to this retention letter. Similarly, this engagement letter does not cover and is , not a commitment by either of us that we will undertake any petitions for rehearing or rehearing ' en banc,petitions for a writ of certiorari, appeals other than the appeal described above, or any �I collection procedures. Any such future worlc would also have to be agreed upon in a signed supplement. ' CIVILITY IN LITIGATI I� ON In litigation, courtesy is customarily honored with opposing counsel, such as extensions ! to file pleadings or responses to other deadlines. In or experience, the reciprocal extension of such courtesies saves our clients' time and money. By signing this letter you will be confirming your approval of this practice in your case. ' HOW THIS AGREEMENT MAY BE TERMINATED You,of course, have the right to end our services at any time. If you do so, you will be ' i ' i , � I � ��' r � ' ����1� BEST SEST&KRIEGER� I ATTORNEYS AT LAW Mr. Michael C. Van Milligen City of Dubuque � August 29, 2019 Page 4 ' responsible for the payment of fees and costs accrued but not yet paid up to the capped amount. By the same tolcen,we reserve the right to terminate our services to you upon written notice, order of the court, or in accordance with our attached memorandum. This could happen if you fail to pay our fees and costs as agreed, fail to cooperate with us in this matter, or if we determine we cannot continue to represent you for ethical or practical concerns. CLIENT FILE ' If you do not request the return of your file, we will retain your file for five years. After �ve years,we may have your file destroyed. If you would like your file maintained for more than ; five years or returned, you must make separate arrangements with us. THANK YOU On a personal note, we are pleased that you have retained Best Best&Krieger LLP to represent you, and are participating as part of a Coalition in this appeal. If you have any questions at any time about our services or billings,please do not hesitate to call me. Please countersign this letter and return it to us. Sincer , erard Lavery derer BEST BEST 8z KRIEGER LLP ; cc: Craig Nowack 1 AGREED AND ACCEPTED: o�"'�� � By: Name: � r Title: �� (CN ���� i Dated: �-� { ; � I BEST BEST&KRIEGER LLP'S BILLING POLICIES Our century of experience has shown that the personnel. A copy of BBK's current rates and titles for attorney-client relationship works best when there is non-attorney personnel will be provided upon request. mutual understanding about fees, expenses, billing and Except for paralegals, BBK will not incur more than payment terms. Therefore,this statement is intended to $550 in fees for a non-attorney's work on a client matter explain our billing policies and procedures. Clients are without first coni'iniling by email or written encouraged to discuss with us any questions they have correspondence with the client the intended use of the about these policies and procedures. Clients may direct non-attorney and the hourly rate for that person. ; specific questions about a bill to the attorney with whom the client works or to our Accounts Receivable Fees For Other Services,Costs and Expenses Department. Any specific billing arrangements different from those set forth below will be confinl�ed in We attempt to serve all our clients with the most a separate written ageement between the client and the effective support systems available. Therefore, in '' � addition to fees for professional legal services, we also charge separately far some other services and e�enses Fees for Professional Services to the extent of their use by individual clients. These � charges include but are not limited to, mileage at the Unless a flat fee is set forth in our engagement letter current IlZS approved rate per mile, extraordinary . with a client, our fees for the legal work we will telephone and document delivery charges, copying ; undertake will be based in substantial part on time spent charges, computerized research, court filing fees and ' by personnel in our office on that client's behalf. In other court-related expenditures including court reporter special cir�ccwnstances which will be discussed with the and transcription fees. No separate charge is made for client and agreed upon in writing, fees will be based secretarial ar word processing services; those costs are upon the novelty or difficulty of the matter, or the time included within the above hourly rates. ' or other speciallimitations imposed by the client. , ESI: BBK provides Electronically Stored Hourly rates are set to reflect the skill and Information (ESP') services far matters requiring ESI experience of the attorney or other legal personnel support — typically litigation or threatened litigation rendering services on the client's behalf. Our attorneys matters. BBK shall receive payinent for ESI support,if are currently billed at rates from$210 to$450 per hour, needed, at BBK's then current rates. A copy of BBK's and our administrative assistants, law clerlcs, litigation current rates for such services will be provided upon ; analysts, research analysts, and paralegals are billed at request. BBK shall not incur costs for ESI support on a rates from $100 to $195 per hour. These hourly rates particular matter without first coir�nning by email or ; are reviewed annually to accommodate rising furn costs written correspondence with the client that the client � and to reflect changes in attorney status as lawyers attain agrees such services are necessary for the matter at I new levels of legal experience. Any increases resulting hand. from such reviews will be instituted automatically and ', will apply to each affected client,after advance notice. We may need to advance costs and incur expenses ' on your behalf on an ongoing basis. These items are ',, Non-Attorney Personnel: BBK may employ the separate and apart from attorneys'fees and, as they are services of non-attorney personnel under the supervision out-of-pocket charges, we need to have sufficient fiulds of a BBK attorney in order to perform services called for on hand from you to pay them when due. We will ' in the legal services agreement. The most common advise the client from 17me to time when we expect non-attorney personnel utilized are paralegals. Other items of significant cost to be incurred,and it is required ; types of non-attorney personnel include, but are not that the client send us advances to cover those costs limited to, case clerks, TT analysts, and specialty before they are due. consultants. The client agrees that BBK may use such non-attorney personnel to perform its services when it is Advance Deposit Toward Fees And Costs , reasonably necessary in the judgment of the responsible B�ause new client matters involve both a BBK attorney. Hourly fees for non-attorney personnel will be charged at the rate then in effect for such substantial undertalcing by our firm and the establishment of client credit with our accounting office, i � I i � � , � i i i we require an advance payment from clients. The It is our policy to ireat every question about a bill ; amount of this advance deposit is deteimined on a case- promptly and fairly. It is also our policy that if a client � by-case basis discussed first with the client, and is does not pay an invoice within 60 days of mailing, we '� specified in our engagement letter. assume the client is, for whatever reason, refusing to pay. We reserve the right to tertninate our engagement � Upon receipt,the advance deposit will be deposited and withdraw as attorney of record whenever oux ; into the firm's client trt�ust account. Our monthly billings �voices are not paid. If an invoice is 60 days late, will reflect such applications of the advance deposit to however, we may advise the client by letter that the '. costs and not to attorney s fees (unless otherwise noted client must pay the invoice within 14 days or the firm in our accompanying engagement letter). At the end of � take appropriate steps to withdraw as attorney of ± engagement, we will apply any remainulg balance first record. ff the delay is caused by a problem in the � to costs and then to fees. We also reserve the right to �voice, we must rely upon the client to raise that with ' require increases or renewals of these advanced �during the 14day period. This same policy applies to deposits. fee arrangements which require the client to replenish Sy signing the initial engagement letter, each client fee deposits or make deposits for anticipated costs. ' is agreeing that tnast account balances may be From time to time clients have questions about the ' withdrawn and applied to costs as they are incurred and format of the bill or description of work performed. If to our billings, when we issue our invoice to the client. you have any such questions,please ask them when you If we succeed 'm resolving your matter before the receive the bill so we may address them on a current amounts deposited are used, any balance will be basis. promptly refunded. ', Changes in Fee Arrangements and Budgets ' Monthlv Invoices and Pavment It may be necessaty under certain circumstances for Best Best&Krieger LLP provides our clients with a client to increase the size of required advances for fees monthly invoices for legal services performed and after the commencement of our engagement and expenses incurred. Invoices are due and payable upon depending upon the scope of the work. For example, ' receipt. prior to a proiracted trial or hearing, the fum may ' Each monthly invoice reflects both professional and require a further advance payment to the firm's irust other fees for services rendered through the end of the account sufficient to cover expected fees. Any such , prior montl�, as well as e�enses incurred on the client's changes in fee arrangements will be discussed with the behalf that have been processed by the end of the prior client and mutually agreed in writing. month. Processing of some expenses is delayed until Because of the uncertainties mvolved,any es�imates I the next month and billed thereafter. of anticipated fees that we provide at the request of a j Our fees are not contingent upon any aspect of the client for budgeting purposes, or otherwise, can only be � matter and are due upon receipt. All billings are due and an appro�mation of potential fees. ; payable within ten days of presentation unless the full amount is covered by the balance of an advance held in BEST BEST&KRIEGER LLP our irust account. If a bill is not paid within 30 days, a ; late charge of one percent per month on the unpaid o9900.00000�aso4iia.i ' invoice sha11 be added to the balance owed, commencing with the next statement and continuing ; until paid. . , 2 i