October 19, 1998

City County Building
Indianapolis, IN 46254

MEMBERS PRESENT:

Carlton Curry, Chairman
David Leonard, Member
Steve Nelson, Member
Stuart Rhodes, Member
Charlie Hiltunen, Member

OTHER PRESENT:

Chairman Curry brought the meeting to order at 2:30 P.M.

The first agenda item was the approval of minutes for the Cable Board’s September 19, 1998 meeting. Motion was made by Mr. Nelson, seconded by Mr. Leonard, to approve the minutes of the Board’s September 19, 1998 Board meeting. Motion carried unanimously.

The next item on the agenda was the status report on audit of cable operators. Ms Piety stated Mr. Karrison has completed site visits at Time Warner and Comcast and has requested some additional information from both cable operators. Ms. Piety stated Mr. Karrison has received information from Time Warner and he is in the process of reviewing it. He contacted Comcast and Comcast has promised Mr. Karrison additional information by the end of next week.

The next item on the agenda was the status report of review of operator rate filings. Ms. Piety stated the Cable Agency did receive Time Warner’s Form 1240 for basic tier rate for calendar year 1999 on September 30, 1998. Ms. Piety also stated Mr. Karrison has received copies of the forms for Time Warner and Comcast and he is in the process of preparing document requests for both operators for supplemental information.

Mr. Curry asked if we should have some feedback of those forms next board meeting?

Ms. Piety stated in order to give the cable operators an opportunity to respond it’s probably appropriate to give the report at the December board meeting.

The next item on the agenda was the Cable Agency Report. Mr. Maultra presented the Cable Agency report which highlighted the events that have taken place at the Cable Agency in the last month. The annual National Association of Telecommunications Officers and Advisors, also known as NATOA, conference was attended last month by Chairman Curry, Peggy Piety and Mr. Maultra. During the conference, Chairman Curry, Ms. Piety and Mr. Maultra had some positive discussions on competition with another potential provider to the Indianapolis/Marion County marketplace, that being Ameritech New Media, the cable television subsidiary of Ameritech. Last Tuesday the Cable Agency moderated a panel on cable television issues for the Indiana Association of Cities and Towns,also known as IACT, conference at the Westin.

The Agency continues to participate in NATOA’s Advocacy Committee developing a database of organizations and individuals who share municipal concerns about telecommunications issues and policies. Other NATOA activities the Agency has been involved with include discussion of a joint filing with NATOA and the National Cable Television Association or NCTA in hopes of overturning a FCC decision pertaining to the ECI case. That case allowed Entertainment Communications Inc. to forego the cable franchising process as the FCC found they are leasing lines from a common carrier to provide video services to multiple dwelling units. NATOA agreed to the joint filing with the NCTA. NATOA is also soliciting $2000-$5000 from municipalities to go toward this case and the Agency respectfully asks that the Cable Franchise Board give due consideration to this request given the importance of this case.

The Cable Agency has worked with both cable operators in mediating a number of customer cable problems with a summary and breakdown of the problems attached to the Agency report. Time Warner had a total of 57 complaints for the month, and Comcast had a total of 75 complaints .

The next item on the agenda was the Channel 16 Programming Report presented by Mr. Montgomery. Mr. Montgomery highlighted some of the activities of Channel 16 for the month of September. In September there were 36 hours and 20 minutes of live meeting coverage. Tape Delay meetings totaled 14 hours and 4 minutes. Special Events Production totaled 13 hours and 49 minutes.

In the area of In-Kind Production, Channel 16 had 5 hours and 19 minutes. Series Programs totaled 5 hours. Interactive Information Service Usage total was 568 requests for the month of September.

Chief Video Engineer John Rodenbarger has resigned his position and accepted a job at the Center for Instructional Service at Purdue University. Channel 16 will again be taping Election Inspector Training on the Saturday prior to the November 3^th election and replaying the program on Channel 16 prior to the election for those unable to attend the training held by the Marion County Clerk’s Office. Discover Indy Parks is on hiatus due to the recent departure of Jana Griffith.

Howard Caldwell and Reid Duffy have agreed to co-host the special being produced by Channel 16 for the Indianapolis City Market. Howard will handle historic areas, Reid visits the various food vendors.

In cooperation with Time/Warner Cable, Channel 16 carried Local Government and the Year 2000 Bug, a live nation-wide satellite broadcast on Wednesday, October 7^th at 12 noon. The show is was presented by the National Association of Counties. Time/Warner provided the satellite downlink and routed the program to Channel 16 via the B-trunk cable. The show was also taped for replays during the following two weeks. Program guides and related print materials will be posted on the Channel 16 website for access by local residents and businesses.

Mr. Leonard stated he thought it was good Channel 16 is putting on spots for voters. Mr. Leonard also stated he would like to know if the State pays for the City to air a State Department of Commerce International show?

Mr. Montgomery stated no, and that the Indiana International program has been a long term commitment which has been shared with Carlos Barbara who is with the State Department of Commerce. Mr. Montgomery stated that Channel 16 has been doing the series for about 6 years and it’s a simple show to produce. Mr. Barbara usually provides all the guests and it takes about 1 ½ hours of studio time and maybe 3 to 4 staff members to create the show. Mr. Montgomery stated that this type of programming falls within Channel 16 mission statement as well.

Mr. Leonard asked Mr. Montgomery if he felt as though doing this kind of programming takes time away from doing programming for the City?

Mr. Montgomery stated no, and it is a good fit for the City in providing a variety of programming.

The next agenda item was the Cable Operators’ Reports. Ms. Shary Hoffman-Meadows presented the Time Warner Report. Ms. Hoffman-Meadows stated that Time Warner had a slight gain in its full cable service; however, a loss in premium service subscribers. Time Warner completed 3,624 installs for the month of September with 4,712 scheduled. Incoming calls for the month were 50,970; answering 93.1% within 30 seconds or less. Service calls total for the month was 3,260 calls; 99.95% of those calls were completed within 36 hours. Time Warner planned 39 outages for the month and had 39 outages. Ms. Hoffman-Meadows stated Time Warner was able to construct cable at the IPD Mounted Patrol, State Fairgrounds, "B" Cable—3 Units 31 Aerial Miles and at LaRue Carter State Hospital, 1Unit --.09 underground mites.

Ms. Hoffman-Meadows stated that the upgrade is on schedule.

The Community Involvement report supports a lot of different community events and programming, including assisting the Indianapolis Government Channel 16 with the production of a video celebrating the cultural diversity of the city. (see Community Involvement report). Also the CSPAN bus visited IPS school #81 as a part of the Cable in the Classroom program.

Ms. Hoffman-Meadows stated that Time Warner sent to the City a check which was dated 12/12/97 for $60,000 to fund capital costs of PEG programming.. The check was returned from the City to Time Warner on September 18, 1998. Ms. Hoffman-Meadows stated evidently the check was not received correctly by the City, and seeing the check was more than 180 days old, Time Warner reissued another check for $60,000. Ms. Hoffman-Meadows stated in the future Time Warner payments will be delivered to the deputy controller, Richard Strauss.

Mr. Mark Apple presented the Cable Operator’s September Management Report for Comcast. Mr. Apple stated that all the customers in the Marion County franchise area are upgraded and receiving the upgraded channel lineup. Mr. Apple stated that customers in town of Speedway that does not fall under the City’s franchise area have been receiving the new channel lineup but have not been rebuilt to 750MhZ. The upgrade will be completed by the end of the week. Mr. Apple also stated Comcast is converting its billing system from CSG to Cable Data effective December 9^th. He also reported that are one-third of the eligible candidates had agreed to participate in a candidate forum airing on Comcast and WAV-53.

Mr. Apple stated that Comcast’s ending total subscribers are 11,830 customers. For incoming calls, Comcast had 104,746 calls; 85.75% of those calls were answered in 30 seconds or less. Comcast had 154 outages for the month, 3 of them were planned. Comcast received and scheduled 3,515 calls and completed 3,508 ; 20.4% were completed within 24 hours; 95.1% were completed in 36 hours or by customer request. Comcast scheduled 3,900 installations and 3,791 of those scheduled were completed.

Mr. Apple also stated that during the month of September, Comcast had 69.5 hours of community interest programming aired on Channel 50. WAV 53 had 148 hours of locally produced programming. Comcast aired and produced 19 public service announcements and 16 Newsmakers segments. For Comcast events and sponsorships; see report.

The next item on the agenda was the ETC Report. Mr. Donaldson presented the ETC report. Mr. Donaldson stated the Purchase Order for the Public Purpose Grant approved by the City County Council on April 20, 1998 to support ETC operations for 1998/99 was received by Indiana University on October 8, 1998. The ETC Proposal Review Committee has approved airing previously produced local programs under the title of "Heartbeat of Middle America". The locally produced programs present and discuss issues of interest in Indianapolis and Central Indiana, including medical care issues, education, and culture. The series is hosted by local business leader P.E. MacAllister. The ETC Board has agreed to consider airing the "Recovery Network" on the EPS Channel from 11:00 pm-7:00am. Currently, EPS programs Dueche Welle on Time-Warner and NASA on Comcast during these hours. Both cable providers will be consulted before final decision are made. The "Recovery Network" is dedicated to addressing substance abuse, behavior and mental health problems, and their side effects. IUPUI will consider the use of its downlink facilities to receive the programs, if ETC will underwrite the labor expenses associated with dish re-alignment. ETC is exploring the cost of automated equipment for this purpose

ETC successfully downlinked "Colonial Williamsburg" teleconference on October 8^th which was viewed by students at Lincoln Middle School. Additional installments of this free interactive educational series will be downlinked at IUPUI and routed to ETC on November 5^th.

Mr. Leonard asked if there was any update on the IPS board meetings.

Mr. Donaldson stated that the programs are carried on the ETC channel every other Tuesday live and played back on a tape basis.

Mr. Leonard ask if there was any feedback from the viewers.

Mr. Donaldson stated ETC has not received any feedback.

Mr. Rhodes apologized for the purchase order which was sitting in his mail awaiting his signature.

Mr. Hiltunen asked in regard to programs with Mr. MacAllister, whether ETC is airing programs that used to be on public access.

Mr. Donaldson stated that he should note that there are number of programs that Mr. MacAllister and his crew have produced over the years. Mr. Donaldson stated that ETC has agreed to review as potential programs, programs that were on public access. As long as the program is appropriate, fits with mission of Educational Television in Marion County and ETC bylaws, it would be considered for airing.

Mr. Curry asked with respect to the Recovery Network whether ETC would be able to work out technical versus manpower matters in the next month.

Mr. Donaldson stated yes.

Mr. Curry asked Mr. Valareo from the Recovery Network if he was pleased with the progress to date.

Mr. Valareo stated he is pleased with the progress to date.

Mr. Curry stated he thinks this is a good addition to the channel and the community at this time.

Under Old Business, Mr. Leonard addressed the competition resolution. Mr. Leonard stated he would like to discuss the resolution regarding competition in the local market. Mr. Leonard stated this resolution is identical to the previous resolution with the exception of revising it so there is not a committee. The Board would promote competition in the local market. Mr. Leonard stated the final resolution is revised so that rather than the committee reporting monthly, the Board will report on quarterly basis within regard to the progress of competition within the local market.

Mr. Curry asked the Board whether it would like to vote on the resolution now or during the next meeting. Mr. Curry also asked if the cable operators have had an opportunity to view the revised resolution.

Mr. Leonard stated he has not distributed this resolution to the cable operators.

Mr. Curry stated it would be best to hold the vote until the next board meeting, have copies available, and post it on the web page for discussion so those who are interested can see what it is about.

The next item on the agenda was the report on public records. Ms. Piety presented the report stating the Board requested advice as to the steps it and/or Cable Communications Agency might take to protect from disclosure document drafts prepared by the Agency for review by Board members. The definition of a "public record," which is subject to disclosure, is very broad and would include document drafts prepared by the Agency for the Board’s review. I.C.5-14-3-2. Ms. Piety stated, furthermore, such drafts do not clearly fall into any of the categories of public records excepted from disclosure. I..C. 5-14-3-4. The best argument for excepting the drafts from disclosure during the Board’s review period is that the drafts are not officially Board documents and are subject to substantial revisions or changes until approved by the Board for filing and distribution. The basis for this argument is Section 285-113 of the Revised Code of Indianapolis and Marion County (Revised Code) which lists the Board’s powers as advising local government in the formulation and implementation of policy on cable communications issues and promoting citizen participation in that process by the dissemination of information and encouragement of other governmental, educational, and public entities to participate. Revised Code Sec. 285-113(d). To the extent the drafts outline proposed policy formulations on cable communications issues, they should not become Board policy statements, and therefore a "public record," until the Board officially adopts them at an open meeting. To strengthen this position, the Agency should clearly mark any drafts that it prepares as "drafts for discussion purposes only" before circulating them to the Board. To the extent drafts might be circulated beyond the Board’s members, it becomes more difficult to argue that they are not "public records." The fewer copies that are circulated and the closer the circulation is tied to the Board’s review, the stronger the argument that the drafts should not be "public records."

Ms. Piety stated when the Board adopts the drafts and authorized their filing and distribution, the drafts then become "public records" as official statements of Board policies and positions. After the Board has authorized the filing and distribution of any draft, it then may be posted on the Agency’s website.

If the Board chooses not to adopt and distribute the drafts, they should not become "public records." There is no case law answering this question.

Mr. Curry stated he would propose accepting the report, and as a rule of thumb, follow this outline. Mr. Curry stated that as a practice the City can not post items on the Internet until after the Board has received them so there can be a Board action.

Mr. Leonard stated he felt that was a good way of approaching this matter, and he supports the proposal.

Mr. Curry stated this is what the City will do.

The next item on the agenda was the proposed FCC rate filings. Ms. Piety stated this is the proposed FCC rate filings that Mr. Maultra prepared; one was a Form 329 complaint in regards to a rate increase that Comcast implemented on August 1^st 1998 ;and also the proposed evasion complaint concerning whether programming costs should be adjusted for launch fees or cash for carriage fees. Mr. Maultra prepared those documents and circulated them and sent a copy to David Wilson of Comcast. Ms. Piety stated these documents asked the FCC to review Comcast rates. Ms. Piety stated she was directed to send a letter to Mr. Wilson requesting additional information based on Mr. Wilson’s correspondence concerning the proposed filings. Ms. Piety stated her letter asked for the FCC decision concerning the evasion complaint filed by Mt. Hood, Oregon, and for information verifying that Comcast may have already adjusted its programming rates to take into account its launch fees or cash for carriage amounts. Ms. Piety stated Peter Fineburg a Comcast attorney, responded to her letter. Ms. Piety stated in that letter Comcast reiterated that its position is Comcast does not have to offset any programming costs against launch fees or cash for carriage fees since the FCC regulations provide that those offsets will be on a channel by channel basis. Ms. Piety stated the Mt. Hood, Oregon, evasion complaint is still pending with the FCC.

Motion was made by Mr. Rhodes, seconded by Mr. Curry to table any motions concerning these proposed filings until next Board meeting. Motion carried unanimously.

Under New Business was a request for the City to participate in the ECI appeal. Mr. Maultra and Peggy Piety presented the report. Mr. Maultra stated in a recent NATOA Board meeting there has been some discussion of partnering with the National Cable Television Association to do a filing that will appeal the ECI case. The Entertainment Communications Incorporated (ECI) is a satellite master antenna television operator who is leasing lines from a common carrier in Chicago to run video services to multiple dwelling units. The FCC determined that ECI did not need a cable franchise in this circumstance. Mr. Maultra stated that NCTA and NATOA feel this decision has ramifications for future cable franchising, including franchising in the Indianapolis area. Mr. Maultra stated that NATOA and NCTA are asking for contributions from $2,000-$5,000 from municipalities.

Mr. Rhodes moved to contribute $5000.00 towards the defense fund. He stated these services are cable and should be viewed as such.

Mr. Nelson asked what was the total cost of the action.

Mr. Maultra stated the total cost of the action is estimated to be $68,000.

Mr. Hiltunen stated the basis of the ECI case was basically a satellite system that decided to cross the rights of way by using the telephone lines. The FCC ruled because ECI did not own that infrastructure they were not technically crossing the rights of way and did not need a cable franchise.

Mr. Hiltunen asked what is the City’s legal basis for challenge.

Ms. Piety stated that the appeal would be an attempt to get the court the reverse the FCC decision.

Mr. Maultra stated that the FCC Commissioner Gloria Tristani dissented from the FCC’s vote regarding the ECI case stating that this was a dangerous precedent for municipalities nationwide.

Mr. Hiltunen asked Ms. Piety from her experience in regard to Federal cable act language whether it would be fair to assume that if the facilities are not owned that there is no basis for a franchise.

Ms. Piety stated that she is not sure to what arguments may be made on appeal; Miller Van Eaton will do the briefing.

Motion was made by Mr. Rhodes, seconded by Chairman Curry, to donate $5,000 to the ECI appeal. The vote was 3 yes and 2 no, with Mr. Leonard and Mr. Nelson voting "no".

Mr. Curry stated at the last meeting he suggested commissioning a survey of the build out areas to determine what people’s general views are. Mr. Curry stated that there are monies in this year’s budget and recommends that the survey be done this year out of character 3 budget. Mr. Curry asked if the Board wanted to sponsor a survey of a modest amount today.

The Board consented to receiving a proposal for a survey.

Under Public Comment, Mr. James Smashey stated he supports a survey to address the issue of competition. Mr. Smashey also stated that on the ECI appeal he feels the need to address that issue as well. As to public records Mr. Smashey stated that the FCC

website states that documents posted there are unofficial announcements of Commission action. He does see the need for having a process as to what goes on the Agency’s website. Mr. Smashey also would like the issue of the public inspection file addressed.

Ms. Piety stated that Federal law requires that all documents having to do with the administration of cable franchises be available for public inspection.

Mr. Curry stated the local franchising authority documents are open for public inspection.

Ms. Andrea Price commented on having the Recovery Network shown on the EPS channel. Ms. Price stated that PAI is opposed to commercial use of the access channels. She feels that whenever a businessman approaches the Board wanting to make use of one of the access channels to promote cable television programming or a business opportunity that the Board agrees to do so. Ms. Price stated she feels the Board is assisting in the launching of a new cable network and bypassing the free market process of a cable operator making a determination of which programs are appropriate for carriage. Ms. Price asked the Board not to approve EPS carriage to allow the Recovery Network go through the normal process.

Mr. Curry stated that the Recovery Network takes care of all programming costs, charges nothing for its offering, and makes the signal available for the City in an educational format. The programming is not commercial so therefore fits the definition for educational programming.

Mr. Jody Valerio, Director of sales for the Recovery Network, stated that Recovery Network is commercial free. Mr. Valerio stated that the Recovery Network is sponsored by more than 50 organizations in the community.

There being no other business to come before the Board, Mr. Curry adjourned the meting at 4:15 P.M.

_______________________________
Mr. Carlton Curry, Chairman

_______________________________
Mr. Charlie Hiltunen, Member

_______________________________
Mr. David Leonard, Member

_______________________________
Mr. Steve Nelson, Member

_______________________________
Mr. Stuart Rhodes, Member

_______________________________
Janise Winston, Recording Secretary