Thursday, November 29, 2007

Justice Courts -- Cities Also Want Change but proceed with Caution

As many of you are aware, there has been some judicial and legislative scrutiny surrounding the independence, oversight and operational aspects of the municipal justice court system. After a recent Utah Supreme Court Case that took into account certain aspects of the justice court system, members of the Court convened a study group to determine if additional operational elements are needed in the justice court system to ensure appropriate levels of judicial independence at the local level. In addition to a widely held perception that the justice court system is merely in place to “raise revenue for cities and counties,” some specific examples have further exacerbated both the perception and real problem of at least localized judicial bias due to municipal financial scenarios.

In light of this issue, the Supreme Court study group has come up with some proposed changes to the justice court system. As those proposals were unveiled, they were immediately met with skepticism for most, if not all, cities as well as the practitioners at that justice court level. The proposal included a phase-out of all part-time justice court judges, establishing the State Administrative Office of the Courts as the body that will hire, fire and administer all justice court judges, institute retention elections for justice court judges, and have justice court judge’s salary set in statute.

After hearing of these findings and recommendations, the ULCT and Association of Counties commissioned a study group to evaluate both the perceived problem and potential solutions. In doing so, the ULCT/UAC committee came acknowledged many of the same problems that were highlighted by the Court Study committee, but our group came up with a different set of solutions to the problem. It is believed that the independence concerns that have been advanced by the Courts Study Committee can be accomplished without the fundamental shift that they have recommended.

Here is an outline of the proposal that is preferred by the cities and towns for addressing these concerns:

(1) Cities and towns continue to be allowed to select their own judge and the judge will remain a city employee. (This ensures that the duties and responsibilities of administering the local court are still realized at the local level)

(2) Potential municipal justice court judges will be reviewed by a local nominating committee; recommendations from the nominating committee will be submitted to the governing body of the municipality/county in which the judge will preside, and the governing body will grant final approval of the nominee. (This concept address the concern raised by the courts regarding judge selection, be creating a nominating committee. At the same time it provides for the local character of the area to be reflected in the selection of the judge)

(3) Justice court judges will continue to be part-time or full-time as the caseload dictates. (This also ensures that court needs are being met without requiring the hiring of full time court judges in areas where it is not necessary)

(4) After selection by the governing body, the judges would be subject to retention elections every four or six years within the jurisdiction where the judge presides; and retention elections will be held in conjunction with the election cycle for the jurisdiction in which the judge presides. (This addresses the concerns raised by the courts regarding continued judicial independence. The judge would no longer be subject to any real or perceived pressure from the city to arbitrarily prosecute all infractions)

(5) Justice court judge’s salary would be initially set by the municipality or county employing the judge to ensure that salary is commensurate with duties and responsibilities, but future raises would be based on an average of the annual pay increase for all city employees within the jurisdiction. The raise/pay increase concept would be dictated in statute to ensure “isolation” from “political pressure” regarding future pay increase. In addition, we would recommend that we maintain the current statutory pay limit of 85% of the salary of district court judges. (This concept would allow the salary to be commensurate with the duties of the judge in the local court, but would provide the necessary insulation from any undue pressure from the city administration that would be tied to future raises or merit based payments)

(6) Municipal justice court judges will be required to have at least a four-year college degree, and all currently sitting judges would be exempt from this provision. (This would address the court concerns with enhancing the “professionalism” by requiring some additional educational standards for justice court judges)

(7) Additional efforts will be made to harmonize the software and information sharing concerns that have been raised by the Supreme Court by pursuing a revenue tool and process by which all justice courts would be able to share information within a given period of time. (This address the concerns that have been raised by the courts relative to our ability to share information across all Utah Courts)

We believe that this approach addresses the judicial independence concerns of the AOC while still being cognizant of the needs of local justice courts relative to administration and judge selection. We hope to work closely with the Legislature, Courts and other interested parties to accomplish the collective goals that have been put forward.

Monday, November 26, 2007

UPDATE: The FCC’s Second Report and Order on Cable Franchising

On October 31, 2007, the Federal Communications Commission adopted a Second Report and Order in MB Docket No. 05-311, FCC 07-190, released November 6, 2007, that addressed whether findings and relief for new entrants, promulgated in the Docket’s First Report and Order, also known as the Section 621 Report and Order, should be extended to current cable service providers (“incumbents”). The FCC found the following:

1. Application Time Limits. The provisions regarding time limits for franchise negotiations are only applicable to new entrants. The time limits cannot apply to incumbent renewals, which are governed by the renewal procedures set forth in Section 626 of the Communications Act (the “Act”), 47 U.S.C. § 546. The underlying rationale, to prevent unreasonable delays and to allow new entrants to provide service, is inapplicable to incumbents who are able to provide service during renewal negotiations.

2. Build-Out Requirements. The findings of the FCC regarding build-out requirements are only applicable to new entrants. Specifically, the finding that a local franchising authority (“LFA”) cannot refuse to award a competitive franchise because the applicant would not agree to unreasonable build-out requirements, is based on Section 621(a)(1) of the Act, 47 U.S.C. § 541(a)(1), a provision which does not apply to incumbents. The underlying rationale, that build-out requirements may act as a barrier to new entrants, is inapplicable to incumbents.

3. Franchise Fees. The FCC’s findings in the First Report and Order that certain costs, fees, and other compensation required by LFAs must be counted toward the statutory 5% cap on franchise fees, should be extended to incumbents. The findings interpreting Section 622 of the Act, 47 U.S.C. § 542, apply equally to incumbents and new entrants and include the following: (a) that an operator is not required to pay franchise fees on revenues from non-cable services; (b) that certain fees are not “incidental” and must therefore be counted toward the 5% cap; (c) that funds requested by LFAs for municipal projects unrelated to cable services are subject to the 5% cap; and (d) that payments to support the operation of public, educational, and governmental (“PEG”) facilities are subject to the 5% cap unless the payments are for capital costs.

4. Public, Educational, and Governmental Access and Institutional Networks. Many of the FCC’s findings relating to PEG access facilities and institutional networks (“I-Nets”) should be extended to incumbents. The findings relating to PEG access and I-Nets include the following: (a) all non-capital costs to support the operation of PEG facilities are subject to the 5% franchise fee cap; (b) the FCC’s refusal to adopt standard terms for PEG channels for new entrants applies to incumbents; and (c) the FCC’s refusal to hold that it is per se unreasonable for LFAs to require ongoing PEG support by new entrants (so long as the costs are subject to the 5% cap) applies to incumbents. The FCC held that other findings relating to PEG access and I-Nets should not apply to incumbents.

5. Authority Over Mixed-Use Networks. The findings of the FCC regarding mixed-use networks are based upon interpretations of Section 602 of the Act, 47 U.S.C. § 522, which does not distinguish between incumbents and new entrants, and as such, the findings should be applicable to incumbents as well. Since the jurisdiction of an LFA applies to cable services that are provided over cable systems, an LFA may not use its franchising authority to regulate an entire mixed-use network. It would be unreasonable for an LFA to impose its authority over non-cable services or facilities that do not qualify as a cable system.

Existing Franchise Agreements

The FCC recognized that since franchise agreements involve contractual obligations, the Second Report and Order does not give incumbents any right to breach their existing contractual obligations contained in franchise agreements. Instead, the FCC believes that each situation must be assessed on a case-by-case basis under the applicable law to determine whether the FCC’s statutory interpretation should modify the incumbent’s existing franchise agreement. The FCC encourages LFAs to work cooperatively with an incumbent who asserts that terms of its franchise should be amended as a result of the Second Report and Order. The FCC stated that some incumbents may seek modifications to franchise agreements pursuant to a most favored nation clause in the franchise agreement, pursuant to a compliance with law provision in the franchise agreement, or pursuant to the modification provision, Section 625 of the Act, 47 U.S.C. § 545. The FCC also recognized that if these efforts fail, some disputes may eventually find their way to court.

Customer Service Requirements

In the Second Report and Order, the FCC addressed the application of different state and local cable customer service requirements. Based upon the statutory language of Section 632 of the Act, 47 U.S.C. § 552, the FCC declined to preempt state or local cable customer service requirements that exceed FCC customer service standards, and stated that LFAs and cable operators may agree to more stringent customer service requirements.

Effective Date

The Second Report and Order will be effective 30 days after publication in the Federal Register.