Many cities in the Twin Cities Metro area have been approached by CenturyLink about submitting an application for a cable franchise. While receiving an application to provide competitive cable service may be an exciting prospect, it is important to recognize that, in Minnesota, the cable franchising process is quasi-judicial and certain procedural safeguards must be followed. Council Members/Commissioners should take measures to provide adequate safeguards for the due process rights of cable franchise applicants that will appear before them.
The following is a list of aspirational “best practices” that Council Members/Commissioners should consider using in connection with cable franchising matters over which they may have decision-making authority.
- Maintain neutrality and impartiality at all times. An unbiased decision maker is required to meet the fundamental principles of due process.
- Limit ex parte (discussions outside of the public hearing) communications with the franchise applicant.
- In the event of ex parte communications with representatives of the applicant, document the communication and submit it into the official record of the public hearing.
- Keep a record of all verbal or written contacts relating to the franchise application.
- Refer questions, complaints, and information you receive on a cable franchise applicant to the department staff person responsible for the matter.
- Submit the record of contacts, along with any documents received regarding the cable franchise application, into the official record of the proceedings.
- Refrain from taking a position on the cable franchise application in community forums or elsewhere prior to the official City Council proceedings for such matters. This would include Twitter, Facebook and other social media outlets.
- Seek legal advice if you have concerns about impartiality (i.e. financial or other personal interest in the decision).
- Make quasi-judicial decisions based only on the formal record of the proceeding.
- State the factual findings and reasons that support your quasi-judicial decisions on the record at the time that you make your decision.
Mike Bradley is a partner at Bradley Hagen & Gullikson, LLC. He has been practicing law for over 20 years and is licensed in Minnesota, Wisconsin and Washington. Mike represents cities on cable television franchising issues.