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The New York City Council is not empowered to oversee the selection of cable television providers in New York City, a unanimous panel of the Appellate Division, Third Department, has ruled. The ruling in Council of the City of New York v. Public Service Commission, 88981, rejected as “specious” the City Council’s claim that it has the right to approve Cablevision and Time Warner’s franchises to operate cable systems in New York City, renewed in 1998. Richard Emery of Emery, Cuti, Brinckerhoff & Abady, who represented the City Council, said he was “quite sure” the Council will attempt to take the case to the Court of Appeals. In claiming approval authority, the City Council relied upon a regulation issued by the State Public Service Commission that states that “the local legislative body of [a] municipality shall decide, in a public session, whether or not to renew [an] applicant’s franchise.” However, the Public Service Commission rule, 9 NYCRR �591.3(c)(1) appears to conflict with two provisions of the New York City Charter. One of those provisions, City Charter �363(d), specifies that the City Council shall not have “any involvement” in the selection of a franchisee. The other specifies that the selection of franchisees shall be subject to the “review and approval of Franchise and Concession Review Committee of the City of New York.” The Franchise and Concession Review Committee, a body created in the City Charter, has six members: the Mayor and three of his appointees, the City Comptroller and the borough president of whatever borough is affected by the proposed franchise. The City Council framed an argument, according to Emery, that sought to “reconcile” those conflicting provisions by conceding it did not have the “selection” power, but contending that it, nevertheless had the power to approve the “terms and conditions” of the franchise. Emery said the City Council had no interest in overriding the selection of either Cablevision or Time Warner, but instead wanted to ensure that educational programming and public access opportunities were adequate. Of particular concern, he added, had been the cablecasting during the prior 15-year franchise period of horse races on educational channels. But Lawrence D. Bernfeld of Graubard Miller, who represented Cablevision, said the City Council was merely seeking to create “a backdoor” in the law that would allow the City Council to impose conditions “so onerous that, in essence, the Council would be able to veto the selection of a franchisee.” Justice D. Bruce Crew III, writing for the panel, sided with the two cable system operators, finding “specious” the City Council’s argument that the City Charter prohibition on the Council’s selection of franchisees “in no way precludes [the Council] from approving the franchisees ultimately selected.” The other members of the panel were Presiding Justice Anthony V. Cardona, and Justices Edward O. Spain and Anthony J. Carpinello. Other lawyers involved in the case were Michelle L. Phillips of the Public Service Commission’s legal staff; Assistant Corporation Counsel Lewis Finkelman, who represented Mayor Giuliani; and Allan J. Arffa and Karen S. Kennedy of Paul, Weiss, Rifkind, Wharton & Garrison for Time Warner.

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