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CONTRACT K-1213-176: A CONTRACT BY AND BETWEEN THE CITY OF NORMAN AND COXCOM, LLC TO PROVIDE CABLE SERVICES FOR THE CITY OF NORMAN FOR A PERIOD OF FIVE YEARS.
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BACKGROUND: In 2007, Cox Communications, Inc. ("Cox") contacted the City of Norman to discuss the City of Norman's cable television franchise. Cox initiated this contact based upon the City of Norman's five (5) year agreement with AT&T, and based upon the fact that Cox's television franchise was set to expire on December 4, 2008. The new contract was approved without approval of majority of qualified electors based on federal law.
The United States Congress has the authority to preempt State law under the Supremacy Clause of the United States Constitution, Article VI, cl. 2. Laws of the federal government are "the supreme law of the land, 'anything in the Constitution or laws of any state to the contrary notwithstanding.'" State ex rel. Miller v. Huser, 184 P. 113, 114 (Okla. 1919). A State law is invalid under the preemption doctrine to the extent that it conflicts with federal statute or when it "stands as an obstacle to the accomplishment and execution of the full purpose of Congress." Wilson v. Harlow, 860 P. 2d 793, 799 (Okla. 1993).
In a 2002 opinion of the Oklahoma Attorney General's Office the Attorney General held that, the Cable Communications Act expressly preempts State laws concerning cable television, to the extent they are inconsistent with federal law, 47 U. S. C. § 556(c). 02-21 Op. Okla. Att'y Gen. (May 13, 2002). Section 541(a)(1) of the Cable Communications Act prohibits a franchising authority from unreasonably refusing to grant a competitive franchise whereas Article XVIII, §5(a) of the Oklahoma Constitution requires a franchising authority to deny a franchise if the voters disapprove the franchise for any reason. Because there is a conflict between federal and state law, the opinion of the Oklahoma Attorney General is that the applicable Oklahoma Constitutional provision is preempted by federal law.
The City of Broken Arrow challenged the Opinion of the Oklahoma Attorney General and required voter approval for the renewal of a cable franchise agreement with Cox. Cox Communications Cent. II, Inc. v. City of Broken Arrow, Okla. 02-CV-741-PJ, (N.D. Okla. 2003). The United States District Court for the Northern District held the Oklahoma Constitutional provisions were in conflict with the provisions and stated purpose of the Cable Communications Act, and therefore the Oklahoma Constitution was preempted by federal law. Id. at ¶3. The Oklahoma Attorney General Opinion and the ruling from the United States District Court for the Northern District led the City to conclude in 2007 that the Oklahoma Constitutional provisions requiring voter approval of cable franchises were pre-empted by federal law, and voter approval could no longer be required to grant a cable franchise. That opinion remains unchanged. The 2007 contract (K-0708-136) was for a term of five (5) years and expires on May 1, 2013.
DESCRIPTION: The 2007 Contract provided that Cox would provide staff to air live City Council meetings, study sessions, and Planning Commission meetings until December 4, 2008. Since that time the City has paid for a freelance videographer to provide that service and will continue to do so under the new agreement. Contract K-1213-176 is essentially identical to the 2007 contract. The Contract before Council contains the same terms as the AT&T contract (K-1213-128) approved by Council in December 2012. Cox will continue to pay a fee equal to 5% of gross revenues to the City. Cox will also continue to provide channels for noncommercial educational and governmental programming. The term of the new contract is five (5) years beginning on May 1, 2013.
RECOMMENDATION: Staff recommends approval of Contract K-1213-176.