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HomeMy WebLinkAboutCC-07-15-96-01 Time Warner CommunicationsRESOLU~ON NO. CC-07-15-96-01 A Resolution approving the transfer and assignment of a nonexclusive franchise from American Communications Corporation d/b/a Indiana Digital Access to Time Warner Communications of Indiana, L.P. WHEREAS, the City of Carmel, Indiana ("City") has granted to American Communications Corporation d\b\a Indiana Digital Access ("IDA") a license, franchise and permit to erect, construct, install, reconstruct, renew, operate, maintain, patrol, repair and replace, if necessary, telecommunications equipment and facilities in, under, upon, over and across all alleys, streets, roads, highways and other property of the City pursuant to Ordinance No. D-686 ("Ordinance"); and WHEREAS, IDA has agreed to transfer to Time Warner Communications of Indiana, L.P ("TWC, L.P") IDA's network, equipment and facilities, including the rights held under the Ordinance, and to transfer the Certificates of Territorial Authority held by IDA, subject to the approval of the Indiana Utility Regulatory Commission CIURC"); and WHEREAS, the nonexclusive franchise granted in the Ordinance requires the City's consent to any transfer or assignment of the nonexclusive franchise; NOW THEREFORE, 'it is hereby resolved by the Common Council of the City of Carmel, Indiana that: 1. Subject to the transfer of the network, equipment, facilities and Certificates of Territorial Authority from IDA to TWC, L.P and the approval by the IURC of said transfer, the City, by and through its Common Council, authorizes and consents to, in all respects, the assignment and transfer by IDA of a nonexclusive franchise held pursuant to the Ordinance to TWC, L.P, its successors and assigns. 2. The foregoing consent to the assignment and transfer of the nonexclusive franchise shall be effective upon the approval of the IURC and the closing of the transfer of the system by IDA to TWC, L.P. Notice of such closing date and IURC approval shall be given to the City Attorney, who in mm shall notify the Common Council. 3. The City, by and though its Common Council, confirms to the best of its actual knowledge that (a) the nonexclusive franchise was granted pursuant tO the Ordinance; (b) the nonexclusive franchise is currently in full force and effect and IDA is the current holder and owner of the franchise; (c) the conditions set out in the Ordinance remain in effect as to the nonexclusive franchise; (d) the nonexclusive franchise superceeds all other agreements between the City and IDA and represents the entire understanding between the City and IDA with respect to the rights granted therein; and (e) IDA is materially in ~mpliance with the provisions in the nonexclusive franchise. ADOPTED by the Common Council of the City of Carmel, Indiana on this 1996. Common Council of P~ of Carmel ATTEST: Diana Cordray, Clerk-T~T~ City of Carmel DEPARTMI~NT OF LAW M]EMORANDUM To~ From: Date: Members of tl~ Common Council Debra Grisham ~Q~ July 8, 1996 C) Re: City of Carmel license-franchise-permit to Indiana Digital Access ("IDA") for telecommunications serdce within the Carmel corporate city limits; request for consent to transfer the license-franchise-permit to Time Warner Communications of Indiana, L.P. ("Time-Warner"). Enclosed are copies of the following documents for your review: June 10, 1996 letter fi-om Bette Dodd, Time Wamer's attorney, explaining the existence of IDA's license-permit-franchise and the request for your consent to transfer it to Time Warner; A copy of the Resolution (original to be delivered to the Clerk-Treasurer prior to your July 15, 1996 meeting ) the form of which I have approved; Ordinance D-686 (1/22/91) granting a non-exclusive license-franchise-permit to IDS; 12/3/90 Common Council agenda and the minutes discussing the granting of the license- permit-franchise; 1/7/91 Common Council agenda and the minutes covering the first reading of Ordinance D-686 by which IDA requested the license-permit-franchise; 1/22/91 Conunon Council agenda and the minutes covering an amendment of Ordinance D-686; July 1, 1996 letter from Bette Dodd explaining that the Indiana Utility Regulatory Commission approved IDA's transfer of its Certificate of Territory Authority to Time Warner; and · A Copy of the Indiana Utility Regulatory Commission's final approval order. You will note that Paragraph 5 of Ordinance D-686 provides that IDA may assign its fights under the Ordinance only with the prior written consent of the Common Council. Please review this material and should you have any questions, please do not hesitate to call me at 571-2472. cc: Mayor Brainard, Clerk-Treasurer Cordray PHn.w S. TERENCE L. E~DS SmVF2~ L. Deb Gresham City Attorney City Hall One Civic Square Carmel, Indiana 46032 LEWIS & KAPPES (317) 639-1210 (317) 639-4882 (317) 639-4878 June 10, 1996 OF COUNSEL S,~'aU~L A. FULLE~. KEVL'q W. DOGAN RE: City of Carmel franchise for Indiana Digital Access Dear Deb: Enclosed please find a form of resolution for the Common Council approving the transfer and assignment of the franchise currently held by Indiana Digital Access' ("IDA") to Time Warner Communications of Indiana, L.P. ("Time Warner"). As reflected in the proposed resolution, the City of Carmel ("City") granted a license- franchise-permit to IDA authorizing it to install, operate, maintain, repair, replace and patrol telecommunications facilities in, under, over and across the alleys, streets, roads, highways and other property within the City. Under Ordinance D-686, the Common Council must give prior written consent to the transfer of the license-franchise-permit. I am enclosing a copy of Ordinance D-686 for your information. Our client, Time Warner, has filed a petition with the Indiana Utility Regulatory Commission ("IURC") to obtain permission for the transfer of IDA's network, equipment, facilities and the Certificates of Territorial Authority ("CTAs") held by [DA. We anticipate that the transfer will be approved by the IURC no later than the end of June. Consequently, we need to obtain the consent of the Common Council for the transfer of the franchise in order to finalize the transfer of the operations to Time Warner. The statutory authority for the City to issue a license-franchise-permit is Indiana Code 36-9-2-15. Deb Gresham June 10, 1996 Page 2 The CTAs being transferred provide for interLATA and interexchange private telecommunications services within the State of Indiana. The license-permit-franchise authorized by the City permits the use of the City's roadways, alleys, streets, etc. The transfer of the network facilities and CTAs from IDA to Time Warner will not result in any change in services or prices to the current customers or any change in operating personnel. It is our understanding that this resolution will be addressed at the July 1 Common Council meeting, ff you have any questions or need any additional information to present to the Council to aid you in addressing this matter, please do not hesitate to call me. Thank you for your cooperation. Very truly yours, LEWIS & KAPPES, P.C. Bette J. Dodd BJD\ksw Enclosures DAb jr\wa merkleb6-05dtr LEWIS & KAPPES City'of Carmel I C1VIC SQUARE CAIhMEL, INDIANA 46032 317/571.2414 Susan W. Jones CARMEL CITY COUNCIL MEETING AGENDA DECEMBER 3, 1990 CARMEL CITY HALL/ONE CIVIC SQUARE COUNCIL CHAMBERS 7:00 P.M. Invocation Pledge of Allegiance Minutes: November 19, 1990 Awards: CHS Marching Band Transfer: Carmel Police Department Department of Community Development - : An Ordinance amending Ordinance D-$54 to add the position and salary of a Deputy Bailiff Public He~rin~/Rezone Reauest Z-258: Brenwick Development Inc. and American Aggregates Corp. ~ Indiana Digital Access requesting franchise request for public hearing. 4. ~ Software Support/Solutions Group - Clerk 5. Annexation Reouest: Ordinance C-150, 704 W. Main, Lot 13 Thornhurst Addition Section I, Marshall Andich 6. Communication Center Claims: Alan Potasnik 7. ' - : Amendment to Salary Ordinance Water Plant Supervisor for OTHER BUSINESS ADJOURNMENT Executive Session: Litigation shaped but that the pits would remain the same. Mr. Sweet said the pit were not as deep as an average size lake. Councilor Lonzo stated he wanted to walk the area and come back at the next Council meeting with his comments. Jim Nelson addressed the concerns of drainage and stated this presentation was made as a part of the Technical Advisory Committee and was approved. Councilor Lonzo asked Mr. Sweet the price ranges of the homes. Mr. Sweet stated that in the S-1 section they would be $400,000 to $600,000. In section S-2 they would range from $250,000 to $450,000 and in the R-2 section would be $140,000 to $250,000. Councilor 0gle addressed the concerns of the wooded area and complimented the developer for retaining many of the trees.~m~i-m fact said the overall plan that was presented to the Plan Commission has an even greater tree coverage. Councilor Adams asked if American Aggregates has'reached its point for use as a gravel pit. Developer, George Sweet said there to still three to five years left to mine while the development was going on. Councilor Lonzo asked for input on schools for the December i7th meeting. Councilors Irvin and Adams both stated they would reserve their comments until after the public hearing is closed. INDIANA DIGITAL ACCESS/REQUEST FOR FRANCHISE: Mary Stanley, Attorney for the petitioner, explained the request for a franchise. Indiana Digital Access is a utility much like Indiana Bell or AT & T and requires a franchise within the City to install fiber optic telecommunication lines. Steve Andrews suggested the best way to handle this request is in ordinance form. The Council directed Andrews to work with Mary Stanley and return at a January 1991 Council meeting. The Council also asked the city Attorney to look into the possibility of charging a franchise fee. This direction was done through a motion made by Councilor Lonzo and seconded by Councilor Ogle. All members voted aye. Motion carried. SOLUTIONS GROUP CONTRACT/CLERK-TREASURER: Clerk-Treasurer Susan Jones presented her request for approval of a contract with Solutions Group for 1991 at a rate of $50 per hour. Ms. Jones stated this amount was approved by the Council at the budget hearings this summer and that she did not want to tie up a contract with a maximum amount. She stated she was having a communication problem with the BPW in getting this approved. City Carmel ONE CIVIC SQUARE CARMEL, iNDIANA 46032 317/571-2414 Susan W. Jones CARMEL CITY COUNCIL MEETING AGENDA JANUARY 7, 1991 CARMEL CITY HALL/ONE CIVIC SQUARE COUNCIL CHAMBERS 7:00 P.M. Invocation Pledge of Allegiance Minutes: December 17, 1990 Awards: CHS Girls Swim Team 1. Ordinance D-686/ Indiana Digital Access: franchise - Mary Stanley to send back-up. Request for 2. Election of Council President and A~Dointments Ordinance D-888/Proeedure for Public Hearing: Back-up to be provided by Steve Andrews· Ordinance D-687/Enforeement Aid Fund: Back-up to be provided by Steve Andrews. Discussion on Civic Square Centre/Civic Square Centre Buildin~ Corporation: Alan Potasnik - No Back-up 6. .Communication Center Claims: Alan Potasnik - No back-up 7. Ao~ointments bv Mayor: Chaplin/Parliamentarian OTHER BUSINESS ADJOURNMENT cARMEL CITY cOUNCIL MEETING MINUTES JANUARY 7, 1991 7:00 P.M. ONE CIVIC SQUARE/COUNCIL CHAMBERS The meeting was called to order by Mayor Dorothy J. Hancock. Council members in attendance were Minnie Doane, Lee Lonzo, Alan Potasnik, Annabelle Ogle, Frank Fleming, Tom Irvin and David Adams. city Attorney Steve Andrews and Clerk-Treasurer Susan W. Jones were also in attendance. The pledge of allegiance was recited followed by a plaque presentation. Councilor Lonzo presented a plaque to the Carmel High School Girl's swim Team Coach, Ray Lawrence and members of the team in honor of the swim team winning the state championship. MINUTES: Councilor Adams wanted the following correction made to the minutes of December 17, 1990. Councilor Adams stated that he wanted the two sentences on page 6 at the bottom of the page, ,,Councilor Adams stated he deeply resented comments by the public and felt he didn't have to take it. 'He did not appreciate "bully tactic" by the public." struck from the minutes and the following paragraph inserted: "Councilor Adams stated that he had reviewed the videotape of the remonstrator's comments at the December 3 meeting, and he heard a number of positive comments that expressed serious concerns about this project. He also heard negative comments, and unlike Councilor Potasnik did not feel that he had to sit there and take it. He stated that he deeply resented that there were those who felt that they could influence his decision through bully tactics or intimidation. He also heard a number of comments that were well-founded, but unrealistic." Councilor Potasnik asked for a change on page 2 under the Deputy Bailiff Salary topic. He said that he had asked for a motion to suspend the rules and move Ordinance D-685 up on the agenda for a hearing and combine it with Ordinance D-682. Councilor Fleming made a motion to approve the minutes with that change. The motion was seconded by Councilor Irvin. All members voted aye. Motion carried. ORDINANCE D-686/INDIANA DIGITAL ACCESS: Mary Stanley, Attorney for Indiana Digital Access presented Ordinance D-686 and a brief explanation for the need of the ordinance to the Council. Ms. Stanley stated this type of franchise was a formality and that through the approval of the Indiana Regulatory Commission, Indiana Digital Access, could put in their lines without the franchise. In reference to Ordinance D-686, Indiana Digital Access, a question was raised as to fees. Attorney Andrews pointed out there is no basis for fees due to the difference between a state regulated utility like IDA as contrasted to a Cable TV system. Steve Andrews stated it was more of a courtesy to seek this franchise rather than a requirement. Councilor Lonzo made a motion to change the approving body on page 2 of the ordinance to the City Engineer rather than the City Council. The motion was seconded by Councilor Fleming. All members voted aye. Motion carried. Councilor Potasnik asked how long this franchise would be in effect. Steve Andrews stated it was for 99 years. Councilor Lonzo made a motion to introduce Ordinance D-686 as amended and suspend the rules for reading of the same. The motion was seconded by Councilor Fleming. Councilor Irvin made a motion to reduce the length of the franchise from 99 years to 25 years. There were no second on the motion. Councilor Fleming made a motion to suspend the rules and act on D- 686 tonight. Councilor Adams seconded the motion. Councilor Irvin voted ~nay and all other Council members voted aye. ELECTION OF NEW COUNCIL PRESIDENT AND APPOINTMENTS: Councilor Fleming made a-motion to nominate Councilor Adams as the new President of the City Council. The motion was seconded by Councilor 0gle. All members voted aye. Motion carried. Councilor Irvin made a motion to close nominations. seconded by Councilor Doane. All members voted carried. The motion was aye. Motion Councilor Potasnik called for the vote. Ail members voted aye. COUNCIL APPOINTMENT TO BOARD OF ZONING AND APPEALS: Councilor Irvin made a motion to appoint James Guy Miller to the Board of Zoning and Appeals. The motion was seconded by Councilor Adams. All members voted aye. Motion carried. Councilor Lonzo made a motion to close the nominations. The motion was seconded by Councilor Adams. All members voted aye. Motion carried. Councilor Potasnik called for the vote. Ail members voted aye. City of Carmel ONE CIVIC SQUARE CARMEL, INDIANA 4603Z 317/571-2414 Susan W. Jones CI.EILK & TRF. ASURI~ CARMEL CITY COUNCIL MEETING AGENDA JANUARY 22, 1991 CARMEL CITY HALL/ONE CIVIC SQUARE COUNCIL CHAMBERS 7:00 P.M. ~Invocation ~Pledge of Allegiance /Minutes: January 7, 1990 VCertifioates of Appreciation: Gary Dufek ~Presentation of Letter of Recommendation: CFD Ordinance D-688/An Ordinance Amendin~ Ordinance D-362/ Establishi~ the r~ouirement of a public hearin~ before the Common Council on Petitions for rezonin~ of real mrom- ertv and annexations: Requested by S. Andrews Ordinance D-68S/Indiana Digital Access: Mary Stanley .a~'.// Communication Center Claims: Alan Potasnik /Reouest for Resolution: Resolution to form a committee to study and recommend building space use of the Carmel Square Centre Building. Alan Potasnik / Civic Sauare Centre Buildin~ Lease: Request by City Attorney for authority to negotiate a lease with the Civic Square Centre Building Corporation Board for use of the Civic Square Centre Building by the City.(no back-up) .~ .A~ditional Am~ro~riation Reouests: Susan W. Jones /Revision of D-362: Presented by Tom Irvin (no back-up) 8. ' : Nayor Hancock (no back-up) OTHER BUSINESS ADJOURNMENT demonstrate their support of those U.S. military forces by displaying the American flag in all appropriate places; wearing and exhibiting yellow ribbons and to remember servicemen and women in their prayers and thoughts. Collen DuLac whose husband is in the 82nd Airborne Division in Saudi Arabia addressed the Council and called for operation red, white and blue. Mrs. DuLac explained that the operation stood for "We miss you, we support you and we can't wait for you to come home." Mrs. DuLac asked for the City to display ribbons and decorate City Hall in support of the soldiers. Mayor Hancock assured Mrs. DuLac that City Hall will be decorated. ORDINkNCE D-688/~tNORDINANCE ~MENDING ORDINANCE D-362 ESTABLISHING THE REQUIREMENT OF A PUBLIC HEARING BEFORE THE COMMON COUNCIL ON PETITIONS FOR REZONING OF REAL PROPERTY ~ ANNEF~%TION: Steve Andrews reviewed the ordinance for the Council and for the public. Councilor Potasnik thanked City Attorney Andrews for getting the ordinance done in a timely fashion and said the intent to inform the public of these issues has been met through this ordinance. Councilor Potasnik called for the question. Ail members voted aye. Ordinance D-688 passed unanimously. ORDINANCE D-686/GRANTINGANERICANCOMMUNICATIONS CORPORATION .INDIANA DIGITAL ACCESS A NON-EXCLUSIVE F__RANCHISE: Councilor Irvin\ m--~e ~ ~o am---~-r~D-686 by removing paragraph 3 and~ 4 and inserting the following paragraph: "The term of this franchise shall be from ~ear-to-year, not to exceed 99 years. It shall renew automatically each year unless such renewal is cancelled by a majority vote of the Common Council." The motion was seconded by Councilor Lonzo. Councilor Lonzo asked Councilor Irvin if he remove paragraph 3 and leave in paragraph 4. yes. didn't mean to only Councilor Irvin said Councilor Irvin made a motion to amend his amendment to only strike paragraph 3 and leave in paragraph 4. The motion was seconded by Councilor Lonzo. Councilor Adams called for an amendement to the amended amendment to include the following paragraph. "Notice of any such action shall be provided to the franchisee and public at least 30 days prior to its inception." Councilor Lonzo seconded the motion. Ail members voted aye. Motion carried. Councilor Lonzo called for the question. Ail me~bers voted aye. Ordinance D-686 passed unanimously. COMMUNICATIONS CLAIMS: Councilor Potasnik made a motion to approve a claim from NA Technology in the amount of $4,763.00. The motion was seconded by Councilor Fleming. All members voted aye. Motion carried. Councilor Potasnik made a motion to approve a claim from Barrett Supplies in the amount of $1,536.48. The motion was seconded by Councilor Ogle. All members voted aye. Motion carried. Councilor Potasnik made a motion to approve a claim from AIS Sign System in the amount of $345.02. The motion was seconded by Councilor Adams. All members voted aye. Motion carried. RESOLUTION 1-22-91-2/A RESOLUTION TO FOP/~ A COMMITTEE TO STUDY AND RECOMMEND BUILDING SPACE USE OF THE CARMEL SQUARE CENTRE BUILDING: Councilor Potasnik made a motion to introduce resolution 1-22-91-2. The motion was seconded by Councilor Lonzo. Steve Andrews explained the reason for the committee and read paragraph 2 and 3 to members of the council-and the public. Andrews stated this committee would give input on a need for the building. Councilor Lonzo made a motion to amend the resolution in section (a) which would allow the Board of Public Works and Safety to appoint a member to the committee should a BPW member not want to serve on the committee. The motion was seconded by Councilor Potasnik. All members voted aye. Motion carried. Councilor Lonzo asked for a vote. Ail members voted aye. Resolution 1-22-91-2 passed unanimously. The Mayor asked what the time frame on these committee appointments would be. It was the concensus of opinion that the committee appointments would be made at the next Council meeting. Clerk-Treasurer Jones asked if the meetings would be open to the public and notices would be given, as any other committee or subcommittee of the Council is supposed to do. City Attorney Andrews stated the committee meetings are subject to public notice and the public could attend. CARMEL CIVIC SQUARE CENTRE/LEASE: Steve Andrews asked for authority to begin working on a lease for the Civic Centre Square. Councilor Adams asked for a time frame on this lease. Andrews stated he hoped he would have something within the month. P~n.m S. K,~P~S? DAVID WELK~R GRAY G~Y P. ~o~ R. RUOE C, DU~ O'NE~ TODD ~ RI~SON,,, LEWIS & KAPPES PROFESSIONAL CORPORATION ATroP~NEY$ AT [.AW 1700 O~ AI~ffiRICAN ~QUARE BOX 82053 I~ro~d~,,d'OUS, I~rO~dq^ 46282-0003 (317) 639-1210 (317) 639-4882 (317) 639-4878 July 1, 1996 OF COUNSEL SAMUEL A. FULLER. K~vnw w. DOOAN T~B. B. L~w.s (1919-199l) ~Ctnifitd Mediat~r~ Deb Grisham City Attorney City Hall One Civic Square Carmel, Indiana 46032 RE: Transfer of Franchise from Indiana Digital Access to Time Warner Dear Deb: Enclosed please find a copy of the approved Final Order from the Indiana Utility Regulatory Commission approving the transfer of Indiana Digital Access' equipment network, Certificate of Territory Authority, etc. to Time Warner. I thought that you might want a copy of this for your file. As always, if you have any questions, please do not hesitate to call me. Very truly yours, LEWIS & KAPPES, P.C. Bette J. Dodd BJD\ksw Enclosure D:~bjd\wa me r~leb07-01 Jtr 160301 96D004 STATE OF INDIA/~A l, ORIGINAL INDIANA UTILITY REGULATORY COMMISSION JOINT PETITION OF AMERICA~ COMi~UNICATIONS CORPOP. ATION D/B/A INDIANA DIGITAL ACCESS, ~ TIME WARNER COMMUNICATIONS OF INDIANA, L.P., FOR APPROVAL OF A TP.A-NSFER OF ASSETS; FOR APPROVAL OF A TPd%NSFER OF CERTIFICATE(S) OF TERRITORIAL AUTHORITY; FOR APPROVAL FOR AMERICAN COHMUNICATIONS CORPORATION D/B/A INDIANA DIGITAL ACCESS TO WITHDRAW FROM PROVIDING TELECOMMUNICATIONS SERVICES IN THE STATE OF INDIANA; AND JOINT PETITIONERS REQUEST, PURSUANT TO INDIANA CODE ~8-1-2.6 THAT THE INDIANA UTILITY REGULATORY COM/4ISSION DECLINE TO EXERCISE, IN PART, JURISDICTION OVER THE PROVISION OF AUTHORIZED INTERLATA AND INTP. ALATA TELECOMMUNICATION SERVICES WITHIN THE STATE OF INDIAMA JUN 2 7 1996 CAUSE NO. 40468 APPROVED .' BY THE COFCMISSION: G. Richard Klein, Commissioner Don R. Mueller, Administrative Law Judge On April 26, 1996, Joint Petitioners, American Communications Corporation d/b/a Indiana Digital Access ("ACC"), and Time Warner Communications of Indiana, L.P. ("TWC, L.P."), filed with the Indiana Utility Regulatory Commission ("Commission") a Joint Petition pursuant to Indiana Code §§ 8-1- 2-83 and 8-1-2-88, and the Orders of the Commission in Cause Nos. 38387, 38694 and 38931, and the regulatory procedure set out in I.C. 8-1-2.6, for authority to transfer the network, equipment and facilities of ACC ("Assets") to TWC, L.P.; for authority to transfer the certificate of territorial authority ("CTA") from ACC to TWC, L.P.; for permission that ACC may withdraw from providing telecommunication service in Indiana; and for the Commission to continue to decline to exercise, in part, jurisdiction over the provision of CTA services. Petitioner caused notice of the filing and pendency of the Joint Petition to be published in the manner prescribed in I.C. 8-1-1-8(b). Proofs of publication of said notices were received by the Commission and made a part of the record in this Cause. Further, according to the regulatory procedure established by the Commission in its Order in Cause No. 38387, Petitioner caused a copy of the Petition to be served upon the Commission and the public by serving the Office of Utility Consumer Counselor ("OUCC"), all in accordance with the regulatory procedure prescribed in the Commission's Order in Cause No. 38387. Based upon the Joint Petition publication and the applicable law, following findings: filed herein, the proofs of the Commission makes the 1. Commission Jurisdiction and Notice. In its January 6, 1988 Order in Cause No. 38387 granting the subject Certificate of Territorial Authority pursuant to Indiana Code ~8-1-2-88, the Commission found, based on the evidence presented and the provisions of Indiana Code §8-1-2.6, that public interest did not require the exercise of the full range of the Commission's regulatory powers over the certificate holder. In that Order, the Commission established the following regulatory procedure which it found consistent with the competitive environment within which the Petitioner intended to operate: "In prior proceedings where this Commission has granted relief pursuant to I.C. 8-1-2.6,· we found that we should exercise sufficient jurisdiction to be fully advised concerning the areas of the State within which a telephone company operates and to be informed prior to the completion of any transfer of a telephone company's CTA to any other entity. We also concluded, however, that we should not exercise our jurisdiction over such CTA activities in a traditional manner, but should prescribe a simplified procedure pursuant to which we could exercise our jurisdiction over the CTA activities of a competitive telephone company. . we find the same approach should be followed here. Accordingly, we find that Petitioner must obtain a CTA before it may offer the proposed telecommunications services to the public. We further find that Petitioner, prior to providing service beyond that permissible under a CTA or prior to a transfer of a CTA, should file with the Commission a request for approval of the expansion of its CTA or issuance of a new CTA or the transfer of its CTA, whichever is applicable. We find that Petitioner's request, unless it seeks authority to provide intraLATA telecommunication services, should be subject to a regulatory procedure whereby Petitioner (i) publishes notice of the filing of its request in all counties in which Petitioner has customers or will have customers affected by the request and, (ii) provides the Commission and the Utility Consumer Counselor with all relevant information requested by either concerning the request. We also find that absent a written request by the Utility Consumer Counselor or another person with a substantial interest in the subject matter of Petitioner's request, or absent the Commission, on its own motion, indicating the need for a hearing, that a hearing concerning Petitioner's request should not be required. If no hearing is requested, the Commission may approve Petitioner's request and upon ~ approval, the Secretary of the Commission should issue documents to Petitioner sufficient to establish that the relief requested by Petitioner has been granted. If no hearing is required, the Commission should rule upon 2 Petitioner's request within a period not (60) days from the date of the filing of request. to exceed sixty Petitioner's Joint Petitioners have also requested approval of the transfer of the network, equipment and facilities of ACC ("Assets") to TWC, L.P. pursuant to I.C. §8-1-2-83. Further, and for the same reasons which support the acquisition by TWC, L.P. of ACC's CTA, pursuant to a "simplified procedure" in accord with I.C. 8-1-2.6, Joint Petitioners request the Commission to consider and approve the transfer of assets pursuant to the same simplified procedure. Joint Petitioners caused notice of the filing of their Joint Petition to be published on May 14, 1996, in two (2) newspapers of general circulation published in Marion County, Indiana and two (2) newspapers of g~neral circulation published in Hamilton county, Indiana. Such publication in each county in which ACC has customers is in accord with the alternate regulatory procedures applicable to transfer of ACC's CTA prescribed in the Commission's Order in Cause No. 38387. Proofs of publication of such notices were provided the Commission by the Joint Petitioners in their submission of publisher's affidavit filed with the Commission on June 5, 1996. Further, according to the regulatory procedure established in said Order granting the subject CTA, Joint Petitioners have caused a copy of the Joint Petition to be served upon the Commission and the public by the Office of Utility Consumer Counselor. Accordingly, we find that due, legal and proper notice has been made of the filing of the Joint Petition and the Commission has jurisdiction over the Joint Petitioners and the subject matter of this Cause. 2. Relief ReQuested. ACC is an Indiana corporation and an indirect subsidiary of Time Warner, Inc. ACC holds and operates a CTA authorizing the provision of interLATA and intraLATA private line telecommunication services to the public within the State of Indiana pursuant to orders of the Commission in Cause Nos. 38387, 38694 and 38931. ACC currently owns, operates and maintains a fibre optic network and dedicated private line telecommunications facilities, franchises, permits, licenses and agreements used and useful for the provision of interLATA and intraLATA telecommunication services within the Indianapolis LATA pursuant to the terms of its. CTA. TWC, L.P., is a new Delaware Limited Partnership which has registered with the Indiana Secretary of State pursuant to I.C.§23-16-10-2. TWC, L.P. is ninety-nine percent (99%) owned by Time Warner Entertainment Company, L.P. ("TWE, L.P.") and one percent (1%) o~ned by Time Warner Communications ("TWC"). TWC is ninety-nine percent (99%) owned by TWE, L.P. and one percent (1%) owned by Time Warner Communications Holdings, Inc. ("TWCH"). TWCH is wholly owned by TWE, L.P. TWE, L.P. is owned by subsidiaries of Time Warner, Inc. and subsidiaries of U.S. West, Inc. This transfer of Assets, business and CTA will result in Time Warner's telephone operations being conducted in Indiana under the same formal business structure as virtually all Time Warner's other similar operations. It will also permit Time Warner to comply with certain duties and obligations associated with the partnership agreement of TWE, L.P. This transfer will not however result in any change in the operations, services or personnel in the State of Indiana. The Commission in its Orders in Cause Nos. 38387 and 38931 found ACC financially, technically and managerially qualified to receive, hold and operate a CTA based in whole or in part upon the collective strength and the vast resources of its ultimate owners and partners. TWC, L.P. is one hundred percent (100%) owned by and is a member of the Time Warner Entertainment L.P. family. All of the financial, technical and managerial resources of TWE, L.P. are an integral part of TWC, L.P. in addition to the assets which TWC, L.P. will receive from ACC upon completion of the proposed transactions. By virtue of Commission approval of this Joint Petition ACC, upon its merger into ATC will cease to exist as a separate entity and the assets of ACC will be contributed through TWE, L.P. to TWC, L.P. Thereafter TWC, L.P. will continue to provide telecommunication services to the former customer base of ACC. TWC, L.P. will prepare and file tariffs which incorporate the existing tariff provisigns of ACC and will provide the former ACC customers with the same high quality services that they currently receive at the same rates and under the same terms and conditions. According to the evidence submitted, Joint Petitioners plan a virtually, transparent transaction which will not adversely affect the provision of telecommunication services in Indiana. Petitioners submit that the regulatory procedure set out and described by the Commission's Order in Cause No. 38387 is particularly appropriate and remains consistent with competitive conditions within which the CTA will be operated by TWC, L.P. and will not place TWC, L.P. at a competitive disadvantage. Joint Petitioners petition the Commission for authority to transfer the Certificate of Territorial Authority from ACC to TWC, L.P.; for authority to transfer the network, equipment and facilities of ACC to TWC, L.P.; for permission that ACC may withdraw from providing telecommunication services in Indiana; for consent to Boards and Commissions of all involved Indiana counties to grant TWC, L.P. licenses, franchises and permits to use the roads, highways and other county property for utility purposes; and to continue to decline to exercise, in whole or in part, its jurisdiction over this transaction and TWC, L.P. in the same manner the Commission founds its jurisdiction should be exercised in Cause No. 38387; and to grant such other authority and consent as may be necessary to effectuate the transactions described herein. 3. Satisfaction Of Procedures Set Forth in Th~ Commission's Order Dated January 6, 1988 in Cause No. 38387. Ail of the regulatory procedures set out and required in the Commission's Order in Cause No. 38387 at pages 10 and 11 governing Commission disposition of applications for CTA transfer have been satisfied. The Joint Petitioners have caused notice of the filing of the Joint Petition to be published in the manner described by I.C. 8-1-1-8(b). Further, Joint Petitioners have caused a copy of the Joint Petition to be served upon the Commission and upon the public by service upon the Office of Utility Consumer Counselor. No hearing in this cause has been requested by the Utility Consumer Counselor or any other person with a substantial interest in the subject matter of the Joint Petition. Nor has the Commission, on its own motion, indicated the need for a hearing in this Cause. The Commission therefore finds that it should approve this Joint Petition. 4. Declination of Jurisdiction. Pursuant to Indiana Code §8-1-2.6, the Commission may decline to exercise jurisdiction, in whole or in part, if it finds tke public interest so requires. The Commission, in its Order of January 6, 1988 in Cause No. 38387, at pages 8, 9 and 10 discussed at some length those factors including but not limited to the state of technological and regulatory change and competitive forces which prevailed and were therefore pertinent to the Commission's determination of the extent to which it should continue to exercise jurisdiction over CTA activity. Based on the evidence presented, the Commission found that the public interest did not require the Commission to exercise the full range of regulatory powers with respect to the Petitioner. According to Joint. Petitioners' evidence in this case, the instant transfer will not result in any change in the operations, services, prices or operating personnel involved in the provision of services in Indiana under the subject CTA. Additionally, the Commission found, and continues to find that the collective strengths of tke owners and interests in TWC, L.P. render TWC, L.P. financially, technically and managerially qualified to receive, hold and operate the CTA. Finally, Joint Petitioners submit and the Commission agrees that since the Commission's Order in Cause No. 38931 dated'November 7, 1990 granting ACC an expansion of its CTA to provide intraLATA telecommunication services, the Commission has specifically found that sufficient competition exists in the provision of intraLATA telecommunication services within the Indianapolis LATA from local exchange carriers, certificated competitive access providers, interexchange carriers and unregulated equipment and services of end users to find that its exercise of total jurisdiction is unnecessary. See In Re: ADQlication of TCG Indiana, Inc., Cause No. 39853, Dated July 6, 1994, pages 5 and 6. Therefore, the Commission finds that CTA operation by TWC, L.P. in offering and furnishing interLATA private line telecommunication services to the public within the State of Indiana and intraLATA private line telecommunications services to the public in the Indianapolis LATA should be subject to the same regulatory procedure set out and described in the Commission's Order in Cause No. 38387. Further, we find, for the same reasons which support our decision to decline, in whole or in part to exercise the Commission's full jurisdiction over CTA activity, we find that the proposed asset transfer is in the public interest and that the acquisition by TWC, L.P. of ACC's assets to be subject to the same regulatory procedure and should be approved. Finally, licenses, permits or franchises may be granted by Boards of County Commissioners to public utilities only with consent of this Commission pursuant to Indiana Code §36-2-2-23. Because we have previously found that the public convenience and necessity require the services Petitioner proposes to provide, we find that such approval' is in order in this case. ~ 5. Tariff. TWC, L.P. will be subject to the rules, regulations and statutes governing preparation and filing of interLATA and intraLATA tariffs to the same manner and to the same extent that ACC was required to comply with such regulations upon approval of this application for CTA transfer. According to Petitioner's evidence, TWC, L.P. will prepare and file tariffs for TWC, L.P. which incorporate the existing tariff provisions filed by ACC. 6. Payment of Utility Fees and ComDliance with Remaininq Provisions of the Commission's Orders in Cause Nos. 38387, 38694 and 38931. The Commission further finds that upon and after the effective date of this Order, TWC, L.P. should comply with all remaining provisions and conditions imposed by the Commission upon a holder of the subject CTA in Cause Nos. 38387, 38694 and 38931 including but not limited to payment of annual public utility fees to the Commission as assessed in accordance with I.C. 8-1-6. IT IS T~EREPORE ORDERED BY THE INDIA/~A UTILITY REGULATORY COMMISSIOn, that: 1. American Communications Corporation d/b/a Indiana Digital Access is authorized, to transfer to Time Warner Communications of Indiana, L.P., the CTA previously authorized in Cause Nos. 38387, 38694 and 38931. Immediately upon completion of said transfer, said Certificate of Territorial Authority will be deemed reissued, without any further action by the Commission, in the name of Time Warner Communications of Indiana L.P. and Time Warner Communications of Indiana L.P. shall thereafter be authorized to provide interLATA private line telecommunication services to the public within the State of Indiana and intraLATA private line telecommunication services to the public within the Indianapolis LATA. This Order shall be the sole evidence of such 6 Certificate. 2. American Communications Corporation d/b/a Indiana _Digital Access is authorized to transfer its Assets, and Time Warner Communications of Indiana, L.P. is authorized to receive, hold and operate the Assets of American Communications Corporation d/b/a Indiana Digital Access. 3. Upon completion of the subject transfer, the CTA granted to American Communications Corporation d/b/a Indiana Digital Access shall be cancelled. 4. Pursuant to I.C. 8-1-2.6-1 et seq., the Commission declines to exercise its jurisdiction over TWC, L.P. and CTA activity except to the extent set out in the Commission's Order in Cause No. 38387 dated January 6, 1988. 5. The Commission grants approval to Boards of County Commissioners to grant TWC, L.P. such licenses, permits or franchises that may be required for Petitioner to install equipment and facilities necessary to provide the services authorized herein as hereby granted. 6. This Order shall be effective on and after the date of its approval. MORTELL, HUFFM/%N A1FD KLEIN CONCUI~: APPROVED: ? 19 8 ZIEGNER ABSENT: I hereby certify that the above is a true and correct copy of the Qrder~as approved. Executive Director 7