Agenda - 08-01-1983 - Laserfiche WebLink

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Much has been said about the legalities of the County's actions in the past and in the future regarding the request for cable television service by residents of the communities listed above. Lawsuits have been threatened and sabers have been rattling. Some time has past since the intial franchise process- The rationale behind some of the decisions may need recounting- as to those members of the Bard present then and may need to be detailed for new Board members. Three important legal issues were taken into consideration during the County's franchising process. First, Article I, Sec. 32 of the North Carolina Constitution provides that "no person or set of personis is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.' Article I, Sec 34 provides that "perpetuties and monopolies are contrary to the genius of a free state and shall not be allowed." These two constitutional provisions have been interpreted by the North Carolina courts to generally prohibit a county from awarding an exclusive franchise. This prohibition, however, does not mean that more than one cable television franchise must be granted. The case of Cable Vision Of Winston Salem vs. City of Winston Salem, 3 N.C. App. 252, 164 S.E4d 737, (1968), makes that clear. Cable Vision of Winston Salem sued the City of Winston Salem contending it was entitled to a cable television franchise. The City had previously sought applications for cable television operators and, as a result of that application process; had awarded franchises to cable television companies other than Diable Vision of Winston Salem. The Court of Appeals made clear that the franchise award process was legislative and that nothing in the 11aw requires the City of Winston Salem to issue or not issue franchises to anyone. The process was described as being "entirely discretionary." Second, a case arising out of the cable television award process in the City of Boulder, Colorado was making its way through the federal court system at the time Orange County was involved in the franchise award process. Subsequent to the County's award of a nonexclusive franchise to Village, the Supreme Court held, in the Boulder, Colorado case, that counties are not immune from attack under the federal antitrust laws. Communications Co. vs. City_of Boulder, . US. , 70 L.Ed.2d 810 (1982). in a more recent case involving a claim of a violation of the- antitrust laws in a cable television franchise award process, the United States Court of Appeals for the 1Fifth Circuit held that territorial market division of the City of Houston by the applicants for cable television franchises constituted a violation of the antitrust laws. Affiliated Capita) Corporation vs. City of iflouston, 700 F.2d 226 (5th Cir. 1983). Orange County did not encourage cooperation between the cable companies competing for its