Asheville City Council members took one hard look at Goliath — and dropped their slings and stones.
In a 4-2 vote on July 28, they agreed to accept InterMedia’s $175,000 offer for settling a long-standing franchise-fee dispute. Just two weeks earlier, Council had voted not to accept the offer, arguing that it was too low. Some estimates had InterMedia and former franchise-holder TCI owing the city more than $1 million over the past 10 years.
But Vice Mayor Ed Hay and Council member Barbara Field, who had previously voted against accepting the $175,000 offer, had a change of heart.
Field said she had spent the entire Bele Chere weekend preparing a spreadsheet of estimated franchise fees. Her high-end estimate was $974,000 — “if we got everything,” she told her fellow Council members. But what bothered her was the low probability of the city’s winning its case in court, as well as the fact that InterMedia seemed unwilling to budge in its offer. Estimating that attorney fees for the lawsuit against InterMedia and TCI would be at least $100,000 and that the case could take years to settle, Field remarked, “We could end up with no money.”
In federal-level cases involving cable-franchise issues, Assistant City Attorney Patsy Meldrum reported, the Federal Communications Commission “tends to favor cable companies.” In a case in Maryland, a municipality lost a similar lawsuit against a cable company, she noted.
“This is going to make me change my vote,” Hay declared. He was also dismayed to hear from Meldrum that — even if the city won the case and was awarded more than $175,000 — InterMedia could probably pass on any additional fee settlement to subscribers.
In the July 14 meeting, InterMedia General Manager Joe Haight had suggested that the company would do just that.
On July 28, Council member Earl Cobb called that suggestion a “bully tactic.” Cobb admitted that, when he made a motion to accept the franchise on July 14, “I was frustrated [and] want[ed] to get [this issue] behind us.” But he became convinced, he explained, that approving the franchise before dealing with the fee-settlement issue would weaken the city’s negotiating position in its attempts to collect more money.
And Mayor Leni Sitnick added, “I, for one, am not going to be intimidated by the cable company telling us they won’t negotiate.” She stressed that — of the hundreds of phone calls, e-mails and letters she has received regarding all the cable issues — not one has been in support of either the settlement or the new franchise agreement. Sitnick declared, “I strongly urge my fellow Council members to remember David and Goliath. Nobody thought David could win.”
“David didn’t do his fighting with taxpayers’ money,” retorted Council member Chuck Cloninger, calling for approval of both the settlement and the proposed franchise agreement with InterMedia.
The city is losing money every month it delays action on the two issues, he argued: If Council had approved the franchise and the settlement at the beginning of the year, the city would have made approximately $15,000 more in franchise fees than it usually gets in a six-month period.
Soon after that remark, Field made a motion to accept the $175,000 fee settlement. Cloninger seconded. When it came to a vote, Hay and Council member Tommy Sellers supported the motion; Sitnick and Cobb voted against it. Council member O.T. Tomes, who had voted against accepting $175,000 — and the proposed franchise agreement — on July 14, was absent, having attended a conference in Virginia. He did participate, via phone, in a portion of the discussion, but was unavailable at the time of the vote.
That made it 4-2 in favor of Field’s motion.
“The franchise-fee settlement has been reversed,” said Sitnick, frowning.
Field also made a motion to adopt the proposed 12-year franchise agreement with InterMedia — which she had opposed on July 14. Only Sitnick and Cobb voted against her motion, which was seconded by Cloninger. This vote was also 4-2, enacting the new franchise agreement.
Trinity hearing postponed again
National events have a curious way of interfering with local life: In Asheville, the manhunt for bombing suspect Eric Rudolph led to the postponement of a city zoning issue.
Asking for the delay on July 28 was attorney David Payne, who represents Trinity Baptist Church in its bid to get its Shelbourne Road property rezoned for institutional use — despite the opposition of adjacent residents, who have filed a protest petition. Payne, it turns out, also represents Rudolph’s mother, and — he told Council and a full audience of residents and church members during the July 28 formal session — the out-of-town travel on the federal case has prevented him from properly preparing his Trinity clients.
He also noted the absence of Council member O.T. Tomes, who was attending a church conference in Virginia. City staff had unsuccessfully attempted to link Tomes to the July 28 session via speakerphone — an uncommon but legally permissible way to enable absent Council members to participate in official proceedings. “We would like to have all Council members present, so I can look at them and make my case,” said Payne.
With a valid protest petition on a zoning issue, a three-quarters vote — in other words, six out of seven Council members — is required for any action to be upheld, City Attorney Bob Oast has explained in the past. With one Council member absent, all six of those present at the meeting would have been required to approve a protested rezoning.
But whatever the technicalities, at least two Shelbourne Road residents were unhappy about the delay. “We have not been able to hire an attorney. … We can’t afford it. … But, as residents, we have paid a lot of [city property] taxes,” Ann Anderson complained, noting that residents had followed all the rules in getting their petition filed correctly and on time. “We would like some respect. … Do we have to wait? Do we have to hire a lawyer?”
“We were hoping for a decision today,” her neighbor, Jessie Corpening, added. The issue, she noted, has been pending for at least six months and has already been postponed several times.
But Mayor Leni Sitnick assured them that the previous delays had been necessary. “This is a valid request on behalf of [Trinity’s] attorney, because of something beyond his control,” she emphasized.
Council voted unanimously to delay the hearing until Aug. 25, on a motion by Council member Tommy Sellers, seconded by Earl Cobb.
Later in the meeting, city staff were able to patch Tomes into part of the cable-franchise discussion.