CR 05-129 Public Hearing Transfer of Control of Cable TV
September 6, 2005
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Council Report 2005-129
.
Public Hearing on Transfer of Control of
Cable Television System
Proposed Action
Staff recommends adoption of the following motion: Move to Approve Resolution 2005-085
Approving the Proposed Change of Control of Time Warner.
This motion approves of the transfer of the City's cable television franchise from Time Warner to
Comcast.
Overview
Time Warner Cable and Comcast Cable Communications have entered into an agreement to purchase
the assets of Adelphia Communications. In addition to acquiring Adelphia cable systems, this
agreement calls for Time Warner and Comcast to transfer cable systems throughout the United States
in order to have individual markets, such as the Minneapolis/St. Paul area, be served by only a single
company.
The Public Hearing is called pursuant to the City's Cable Television Regulatory Ordinance regarding
the proposed transfer of control of the cable television system and cable television franchise currently
held by Time Warner Cable. Both the City's regulatory ordinance and state law require advance written
approval by the City for any sale or transfer of the franchise. The City received information regarding
Comcast Cable Communications, LLC's legal, technical, and financial qualifications.
The Southwest Suburban Cable Commission (SWSCC) met on September I, 2005 to review the
proposed transfer. Based upon the review and recommendation of the Commission's Attorney, the
SWSCC voted unanimously to recommend that its member cities approve the transfer.
Primarv Issues to Consider
. Is there any reason to withhold approval of the transfer?
Supporting Information
. Report to the Southwest Suburban Cable Commission Regarding the Proposed Transfer of
Control of Time Warner Cable, Inc. to Comcast Corporation (Transfer Report)
. Resolution 2005-085, Approving the Transfer of Control
Council Report 2005-129
Page 2
Is there any reason to withhold approval of the transfer?
As indicated in the attached report from Brian Grogan (Transfer Report), the new entity, Cable Holdco
II, a wholly owned subsidiary of Comcast, meets the legal, technical, and financial standards necessary
to operate the cable system.
Legal standard: The proposed Franchisee, Cable Holdco II, is not yet registered and authorized to
conduct business in the State of Minnesota. Mr. Grogan believes that the necessary approval will be
forthcoming. The proposed resolution makes approval of the transfer contingent upon the provision of
certificates of authority from the State of Minnesota. (Transfer Report, Page 2 and Page 12)
Technical standard: As stated above, Cable Holdco II is a wholly owned subsidiary of Comcast.
Comcast is the nation's largest cable television operator. Comcast currently operates cable franchises in
Minnesota. There is no reason to believe that Comcast will not be able to operate the City's cable
franchise. (Transfer Report, Page 2 and Page 15)
Financial standard: Comcast appears to be in a strong financial position. Unlike some transfers or
acquisitions of cable systems, Comcast is not assuming large amounts of debt to acquire the Time
Warner franchises. (Transfer Report, Page 3 and Page 17)
Alternatives
1. Approve Resolution 2005-085. This will approve the Transfer of Control.
2. Do not approve Resolution 2005-085 because there are some additional issues that need to be
resolved.
3. Take no action, which would also result in consenting to the change of control
Staff recommends Alternative #1.
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Report to the
Southwest Suburban Cable Commission
Regarding The Proposed Transfer of Control of
Time Warner Cable, Inc.
to
Comcast Corporation
August 26, 2005
Prepared by:
Brian T. Grogan, Esq.
Yuri B. Berndt, Esq.
Moss & Barnett
A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
'Minneapolis, MN 55402-4129
(612) 347-0340 (phone)
(612) 339-6686 (facsimile)
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Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
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Table of Contents
Executive Summary ................................................................................... 1
Applicable Law.. ...... .......... .......... ................... ........... ...... ......... ..................6
Description of the Transaction.................................................................. 10
Legal Qualifications...................... ....... ......... .............. ...... .......... ...... ........ 12
Technical Qualifications ...........................................................................15
Financial Qualifications ............................................................................ 17
Recommendation ......... ........ ...... ........................ ......... ........ ........ .............27
City of Eden Prairie, Minnesota Resolution - Approving Transfer.......... A-1
City of Edina, Minnesota Resolution - Approving Transfer .................... B-1
City of Hopkins, Minnesota Resolution - Approving Transfer ................ C-1
City of Minnetonka, Minnesota Resolution - Approving Transfer........... D-1
City of Richfield. Minnesota Resolution - Approving Transfer................ E-1
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Section 1. Executive Summary
This report has been provided by Moss & Barnett, a Professional Association, for the
express purpose of evaluating a request from Time Warner Cable Inc. ("Time Warner")
the current holder of the cable television franchise ("Franchise") in the cities of Eden
Prairie, Edina, Hopkins, Minnetonka and Richfield, Minnesota, ("Member Cities") to
approve a proposed transfer of the Franchise and cable system to a wholly-owned
subsidiary (Cable Holdco II, Inc.) of Comeast Corporation ("Comcast").
The Southwest Suburban Cable Commission \,Commission") has been granted certain
powers by the Member Cities to enforce and administer provisions of the Franchises of
the Member Cities. Pursuant to those powers, the Commission will use this Report to
make a recommendation to each of the Member Cities with respect to the proposed
transfer. Pursuant to each Member Cities' Cable Television Regulatory Ordinance
("Cable Ordinance"), this proposed transfer to Comeast is prohibited without the written
consent of the Member Cities. Federal law provides the Member Cities with a period of
120 days to examine the legal, technical and financial qualifications of the proposed
transferee.
The below is only a summary of the Transaction, qualifications and
recommendations contained within this report. Readers are strongly encouraged
. to review the entire report for a more thorough analysis of these issues.
Description of the Transaction.
The proposed transaction whereby the Franchise and cable system will transfer from
Time Warner to Comeast is extraordinarily complex and is described in greater detail in
Section 6 herein ("Transaction"). In general terms the Transaction calls for Time
Warner and Comcast to acquire substantially all of the assets of Adelphia
Communications Corporation ("Adelphia") for a total of $12.7 billion in cash and 16% of
the common stock of Time Warner's eable subsidiary, Time Warner Cable, Inc. In
addition, Time Warner and Comeast will swap certain cable systems and Time Warner
will redeem Comcast's interest of 17.9% in Time Warner Cable and 4.7% in Time
Warner Entertainment Company, L.P.
As a result of the Transaction, Time Warner Cable will gain approximately 3.5 million
basic subscribers bringing its total subscriber count to approximately $14.4 million.
Time Warner will own 84% of Time Warner Cable's common stock at the time of
closing. Comcast will emerge from the proposed t~ansaction with approximately $1.8
million additional basic subscribers resulting from a net cash investment of
approximately $1.5 billion. Following close of the transaction Comeast will serve
approximately 23.3 million customers and Comcast will divest its interest in Time
Wamer Cable as well as Time Warner Entertainment Company, L.P. in transactions that
are designed to be tax-free to all parties.
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leaal Qualifications.
The legal qualification standard related primarily to analysis of whether Comcast 1) is
authorized to proceed with the proposed Transaction, and 2) is authorized to operate
and control the cable television system serving the Member Cities. The applicable
standard of review is that the Member Cities consent shall not be unreasonably
'withheld.
The proposed transaction calls for Cable Holdco II, Inc. to serve as the franchisee in
each of the Member Cities. As of the date this report was filed the Office of the
Secretary of State for the State of Minnesota had no record of Cable Holdco II,
Inc. In response to inquiries by the Commission, Comcast responded that Cable
Holdco II, Inc. .will be duly qualified to transact business in Minnesota as of the effective
time of closing, and documentation of its qualification will be provided at that time."
We recommend that any approval of the Transaction should be contingent upon the
provision of certificates of authority provided by the Office of the Secretary of State
verifying that Cable Holdco II, Inc. is duly qualified to transact business in the State of
Minnesota; So long as that condition is included in any proposed resolution we believe
It would be unreasonable for the Member Cities to find that upon closing of the
Transaction the proposed transferee, MOC Holdco II, Inc. and proposed franchisee,
Cable Holdco II, Inc. will not be legally qualified to own and operate the system.
Technical Qualifications.
The technical qualification standard relates to Comcast's technical expertise and
experience in operating and maintaining cable television systems. In such a review, the
standard is once again that the Member Cities consent shall not be unreasonably
withheld.
The proposed transferee, MOC Holdco II, Inc., is ultimately wholly-owned by Comcast
Corporation, a publicly traded Pennsylvania corporation. Comcast Corporation is the
nations largest cable television operator with over 21.5 million cable customers in 35
states.
Comeast is also the cable operator in a number of Minnesota jurisdictions, Including the
cities of Eagan, BumsvilJe, InverGrove Heights, South St. Paul, St. Paul, Woodbury,
RosevilJe, Maple Grove, Golden Valley, and others. In all, Comcast presently serves
over 75 separate jurisdictions in the State of Minnesota as a result of its acquisition of
the systems formally held by AT&T Broadband.
The Commission raised numerous questions of Com cast regarding its proposed
integration of the Time Warner systems, including any proposed changes in system
operation, programmilig line-up, billing system and customer service. Comcast
provided vague replies to these inquiries rendering it impossible for the Commission to
determine precisely how Comcast will attempt to integrate Time Warner's systems and
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operations. Comcast simply committed to comply with the existing franch ise
obligations, including local community programming obligations.
However, based on the standard of review we conclude it would be unreasonable for
the Member Cities to find that, upon closing of the proposed Transaction, MOC Holdco
II, Inc. (the proposed transferee) and Cable Holdco II, Inc. (the proposed franchisee) will
not be technically qualified to own and operate the system.
Financial Qualifications.
Neither federal law nor FCC regulations provide franchising authorities with any
guidance concerning the evaluation of the financial qualifications of a transfer applicant
for a cable franchise.1 In certain circumstances, it is appropriate to consider the
performance of an applicant based upon the applicant's historical performance. We
have provided general financial data relevant to the operation of a public company and
as used by financial analysts evaluating public companies. Due to the size and scope
of Com cast's operations, a comparison of its financial data with other competitors
provides only minimal insight into the financial capabilities of Com cast.
Based upon the selected financial information, which we reviewed, the following is a
summary of various financial factors from operations for the twelve-month period ended
December 31, 2004 and the three-month period ended March 31,2005 and balance
sheet dates of December 31,2004 and March 31, 2005.
1. 40.9% 35.4%(1)
2. 14.3% 16.1%(1)
3. .49:1 .47:1(1)
ui
4.
.41:1 .33:1(1)
(1) Ranos determined as of March 31,2005.
. Data based upon Flnanciallnfotmation in Comeast's 2004 Form 10-K and 2005 First Quarter
Fonn 10-Q. .
Assets. Comcast's current ratio (current assets divided by current liabilities) as of
December 31,2004 of .41:1 is significantly below a typical investor standard of 1.0:1,
which means that Comcast will be required to find other sources of funds (other than
current assets) to pay is current liabilities.
1 FCC Form 394 does reference whether the proposed transferee "has sufficient liquid assets on hand or
available from committed resources to consummate the transaction and operate the facilities for three
months." This reference, however, does not necessarily constitute.the definitive standard for financial
qualifications.
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Liabilities. Comcast's debt to equity ratio is favorable as the amount of Comcast's
equity is almost two times its debt. This favorable ratio is largely the result of
Comcast's previous acquisition of AT&T Corp:s broadband business in 2002.2
Income and Exoense. Comcast had an operating cash flow percentage for the twelve
months ended December 31, 2004 of 40.9%, and the author notes that this ratio has
improved significantly from the 2000 and 2001 combined AT&T Comcast Corporation
ratios which were approximately 23% - 24%.3 This is a positive indication of the
financial health of Comcast. Cash flow and the cash flow percentage provide a
measure of the ability of a business entity to generate cash.
Financino. Comcast will have significant debt obligations in excess of $24.672 billion as
of the date of the Transaction.4 Comcast also noted that it has $3.839 billion of funds
immediately available under its credit facilities as of March 31, 2005 which will allow
Com cast to continue 10 offset its negative current working capital in the short tenn. 5
Comcast also has cash, cash equivalents and short term investments of $636 million as
of March 31, 2005.6
Based upon the financial information supplied by the management of Comcast and
Comcast's'history of expanding services and revenues of newly acquired systems.7
Comcast should have sufficient liquid assets for short-tenn operations and capital
expenditures, from operations and available financing through the initial period after the
Transactions.
Based upon the foregoing and limited strictly to the Financial Statements reviewed by
Moss & Barnett in conducting this review, we believe it would be unreasonable for the
Member Cities to find that Comcast does not possess sufficient financial qualifications
subject to limitations set forth below.
In the event the Member Cities elect to proceed with approving the assignment of the
franchise, the assessment of Com cast's financial qualification should not be construed
in any way to constitute an opinion as to the financial capability or stability of Comcast
to (I) operate its existing franchise operation; (ii)to operate the Systems; or (ili)
successfully consummate the Transactions contemplated by the various agreements as
discussed in Section II hereof or future acquisitions upon which we express no opinion.
This efficiency of the procedures used in making an assessment of Comcasfs financial
qualifications and its capability to become the successor operator of the Systems is
solely the responsibility of each Member City. Consequently, we make no
representation regarding this efficiency of the procedures used either for the purpose for
2 Form 10-K at p. 48.
3 AT&T Comeast Corporation Form S-4 for the year ending December 31, 2001, filed February 11, 2002
with the Securities and Exchange Commission at pp. 1114-8. and AT&T Comeast Corporation, Form S-4
Amendment No.1 filed April 10, 2002 with the Securities and Exchange Commission at pp. III 4-7.
4 Willard Letter at p. 7.
5 Form 10-0 at p. 9.
6Idatp.2.
7 Comcast Investor Presentation dated April 21, 2005.
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which this analysis of financial capability and qualifications was requested or for any
other purpose.
Recommendation.
Based specifically on the foregoing information and analysis, we believe it would be
unreasonable for the Member Cities to find that upon closing of the Transaction the
proposed transferee, MOC Holdco II, Inc. as well as the Franchisee (Cable Holdco II,
Inc.) will not be legally and technically qualified to own and operate the cable system.
With respect to the financial qualifications review, the reader is referred to the financial
qualifications summary set forth on page 25 herein.
Based on the foregoing, we recommend that the Member Cities review this report, listen
to any additional public comment or information, as necessary or appropriate, and
undertake all necessary action to pass and adopt a resolution in form and content
similar to the document attached hereto as Exhibit A.
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Section 2. Applicable Law
The following provisions offederallaw, state law and the Cable Ordinance govern the
actions of the Memper Cities in acting on the request for approval of the proposed
transfer.
FEDERAL LAW
The Cable Communications Policy Act of 1984, as amended by the Cable Consumer
Protection and Competition Act of 1992 and the Telecommunications Act of 1996
("Cable Acf'), provides at Section 617 (47 U.S.C. ~ 537):
Sales of Cable SYstems. A franchising authority shall, if the franchise requires
franchising authority approval of a sale or transfer, have 120 days to act upon any
request for approval of such sale or transfer that contains or is accompanied by such
information as is required in accordance with Commission regulations and by the
franchising authority. If the franchising authority fails to render a final decision on the
request within 120 days, such request shall be deemed granted unless the requesting
party and the franchising authority agree to an extension of time.
The Cable Act also provides at Section 613(d) (47 U.S.C. ~ 533(d)) as follows:
(d) Reaulation of ownership bv States or franchlsina authorities. Any State or
franchising authority may not prohibit the ownership or control of a cable system by
any person because of such person's ownership or control of any other media of mass
communications or other media interests. Nothing in this section shaff be construed to
prevent any State or franchising authority from prohibiting the ownership or control of a
cable system in a jurisdiction by any person (1) because of such person's ownership
or control of any other cable system in such jurisdiction, or (2) in circumstances in
which the State or franchising authority determines that the acquisition of such a cable
system may eliminate or reduce competition in the delivery of cable seNice in such
jurisdiction.
Further, the Federal Communications Commission ("FCC") has promulgated
regulations governing the sale of cable systems. Section 76.502 of the FCC's
regulations (47 C.F.R. ~ 76.502) provides:
Time Limits Applicable to Franchise Authority Consideration of Transfer
Applications.
(a) A franchise authority shall have 120 days from the date of submission of a
completed FCC Form 394, together with all exhibits, and any additional
information required by the terms of the franchise agreement or applicable state
or local law to act upon an application to sell, assign, or otherwise transfer
controlling ownership of a cable system.
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(b) A franchise authority that questions the accuracy of the information
provided under paragraph (a) must notify the cable operator within 30 days of the
filing of such information, or such information shall be deemed accepted, unless
the cable operator has failed to provide any additional information reasonably
requested by the franchise authority within 10.days of such request.
(c) If the franchise authority fails to act upon such transfer request within 120
days, such request shall be deemed granted unless the franchise authority and
the requesting party otherwise agree to an extension of time.
STATE LAW
Minnesota Statutes Section 238.083 provides:
Sale or Transfer of Franchise.
Subd. 1.' Fundamental corporate change defined. For purposes of this section,
"fundamental corporate change" means the sale or transfer of a majority of a
corporation's assets; merger, including a parent and its subsidiary corporation;
consolidation; or creation of a subsIdiary corporation.
Subd. 2. Written approval of franchising authority. A sale or transfer of a franchise,
including a sale or transfer by means of a fundamental corporate change, requires the
written approval of the franchising authority. The parties to the sale or transfer of a
franchise shall make a written request to the franchising authority for its approval of the
sale or transfer.
Subd. 3. Repealed, 2004 c 261 art 7 s 29
Subd. 4. Approval or denial of transfer request. The franchising authority shall
approve or deny in writing the sale or transfer request. The approval must not be
unreasonably withheld.
Subd. 5. Repealed, 2004 c 261 art 7 s 29
Subd. 6. Transfer of stock; controlling interest defined. Sale or transfer of stock in
a corporation so as to create a new controlling interest in a cable communication
system is subject to the requirements of this section.
The term "controlling interest" as used herein is not limited to majority stock ownership,
but includes actual working control in whatever manner exercised.
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LOCAL LAW
Each of the Member Cities has an identical Cable Ordinance covering the
transfer of cable television franchises. The Cable Ordinance at Sectlon 25,
provides:
Sec. 25. Transfer of Ownership.
A. A Franchise shall not be assigned or transferred, either in whole or in part,
or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or
equitable or any right, interest or property therein, pass to or vest in any person other
than an Affiliate of Grantee without the prior written consent of City, which consent shall
not be unreasonably withheld. Further, Grantee shall not sell or transfer any stock or
ownership interest so as to create a new controlling interest except with the consent of
City, which consent shall not be unreasonably withheld.
B. Any sale or transfer of Franchise, including a sale or transfer by means of
a fundamental corporate change, requires the written approval of City. The parties to
the sale or transfer of Franchise shall make a written request to City for its consent.
City shall reply in writing within 30 days of actual receipt of the request and shall
indicate its approval of the request or its determination that a public hearing is
necessary. City shall conduct a public hearing on the request within 30 days of such
determination if it determines that a sale or transfer of Franchise may adversely affect
the Grantee's subscribers.
C. Unless otherwise already provided for by local law, notice of any such
hearing shall be given 14 days prior to the hearing by publishing notice thereof once in a
newspaper of general circulation in the City. The notice shall contain the date, time and
place of the hearing and shall briefly state the substance of the action to be considered
by City. Within 30 days after the public hearing, City shall approve or deny in writing the
sale or transfer request.
D. In a sale or transfer of only a Franchise, without the inclusion of the
System In which at least substantial initial construction has commenced, a Grantee shall
be required to establish to the sole satisfaction of City that the sale or transfer of a
Franchise is in the public interest.
E. For purposes of this section, fundamental corporate change means the
sale or transfer of a controlling interest in the stock of a corporation or the sale or
transfer of all or a majority of a corporation's assets, merger (including a parent and its
subsidiary corporation), consolidation or creation of a subsidiary corporation. For the
purposes of this Section, fundamental partnership change means the sale or transfer of
all or a majority of a partnership's assets, change of a general partner in a limited
partnership, change from a limited to a general partnership, incorporation of a
partnership, or change In the control of a partnership.
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F. The word "contro('~ as used herein, shall apply to the sale or transfer of all
or a majority of Grantee's assets or shares of stock, merger (including any parent and
its subsidiary corporation), consofidatlon, creation of a subsidiary corporation of the
parent company, or sale or transfer of stock in Grantee so as to create a new controlling
interest. The term "controlling interest" as used herein is not limited to majority stock
ownership, but includes actual working control in whatever manner exercised, including
the creation or transfer of decision-making authority to a new or different board of
directors. Every change, transfer or acquisition of control of a Grantee shall make the
Franchise subject to cancellation unless and until City shall have consented in writing
thereto, which consent shall not be unreasonably withheld. For the purpose of
determining whether it shall consent to such change, transfer or acquisition of control,
City may inquire into the qualifications of the prospective controfling party. The City
reselVes the right to seek reimbursement of its costs for conducting an inquiry to the
extent permitted by applicabfe state and federal law. The preceding statement does not
constitute an agreement by any party to reimburse the City.
G. In no event shall a transfer or assignment of ownership or control be
approved without transferee becoming a signatory to a Franchise.
H. Any transferee of a Franchise shall be subordinate to any right, title or
interest of City.
I, For information on the right of the City to purchase the cable system
during a transfer of ownership, see Section 26.
J. Notwithstanding anything to the contrary, no such consent or approval
shall be required for a transfer or assignment to any Person controlling, controlled by
or under the same common control as the Grantee.
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Section 3. Description of the Transaction
Overview Of Transadim
The proposed transadiulr whereby the Franchise and cable system will transfer from
Time Warner to Cornc:atis extraordinarily complex and is described in greater detail in
Section 6 herein ("II ction"). In general terms the Transaction calls for Time
Warner and ComcastlDacquire substantially all of the assets of Adelphia
Communications C~n ("Adelphia") for a total of $12.7 billion in cash and 16% of
the common stock ofT"ltIE Warner's cable subsidiary, Time Warner Cable, Inc. In
addition, Time WarneraDld Comcast will swap certain cable systems and Time Wamer
will redeem Comcasl'siiderest of 17.9% in Time Warner Cable and 4.7% in Time
Warner EntertainmeJJ;Qm1pany, LP.
As a result of the T".. <lion, Time Wamer Cable will gain approximately 3.5 million
basic subscribers briR its total subscriber count to approximately $14.4 million.
Time Warner wlll ownsw, of Time Wamer Cable's common stock at the time of
closing. Com cast wilemerge from the proposed transaction with approximately $1.8
million additional basic&bscribers resulting from a net cash investment of
approximately $1.5 tiIi'IR. Following close of the transaction Comcast will serve
approximately 23.3ni11im customers and Comcast will divest its interest in Time
Warner Cable as wel_Time Wamer Entertainment Company, L.P. in transactions that
are designed to be ta-tiee to aU parties.
Time Warner Cable _Corncast will each acquire a portion of Adelphia's assets
representing approx;' 'ruly 5 million basic cable customers. Time Warner Cable will
pay $9.2 billion in ca*and will Issue common shares representing 16% of Time
Warner Cable's out&l'ia.4i,y common equity (taking into account the redemption
transaction with Cornrasl) to Adelphia stakeholders in connection with its acquisition
agreement. Comcastwiifpay $3.5 billion In cash.
With respect to the f:l"lI.ll"'" system swaps between Time Warner Cable and Comeast,
Time Warner Cable willlll!deem Cori'lcast's 17.9% interest in Time Warner Cable in
exchange for a subsiliiBtfholding Time Warner cable systems serving nearly 600,000
subscribers as well asgFOximately $1.856 billion in cash. Time Warner
Entertainment Com~LP. wi!! redeem Comcast's 4.7% interest in that company,
now held In an FCC .....fcdt,d trust, in exchange for cable systems serving more than
150,000, as well as. ._ ...drnately $133 million in cash. Thus, Comcast's net cash
investment in all of t1Etbimsactions will be $1.5 billion.
The purchase of the~hia assets is not dependent upon the occurrence of the
system swaps nor theill!iffemptlon transactions between Time Warner and Comcast. If
successful the acquilllilmwill be accounted for as an asset purchase.
The proposed transadliJlliiS subject to numerous regulatory reviews and approvals.
These reviews and .-aIs include the Heart-Scott-Rodino review, FCC review,
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approval by the bankruptcy court having jurisdiction of Adelphia's Chapter 11 case,
approval by Adelphia's creditors, and approval by local franchising authorities including
the Member Cities.
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Section 4. Legal Qualifications
Standard of Review
The legal qualification standard related primarily to analysis of whether Comcast 1) is
authorized to proceed with the proposed Transaction, and 2) is authorized to operate
and control the cable television system serving the Member Cities. The applicable
standard of review is that the Member Cities consent shall not be unreasonably
withheld.
The Transaction is described in the charts immediately following this Section 4 of this
report. The Transaction calls for the franchise to be assigned to Cable Holdco II, Inc.
and thereafter MOC Holdco II, Inc., a subsidiary wholly-owned by Comcast Corporation
(through intermediate entities) will acquire the stock of Cable Holdco II, Inc. In the end,
Cable Holdco II, Inc. will be the franchisee for the system serving the Member Cities.
The proposed transaction calls for Cable Holdco II, Inc. to serve as the franchisee in
each of the Member Cities. As of the date this report was filed the Office of the
Secretary of State for the State of Minnesota had no record of Cable Holdco II,
Inc. In response to inquiries by the Commission, Com cast responded that Cable
Holdco II, Inc. "will be duly qualified to transact business in Minnesota as of the effective
time of closing, and documentation of its qualification will be provided at that time."
The Commission also raised questions regarding the acquisition of Adelphia by both
Time Warner and Comcast andlor their respective affiliates. In response, Comcast
replied noting that the transaction agreements contemplate that Time Warner and
Comeast might not go forward with the Redemption Agreement (i.e., transfer of the
system serving the Member Cities) if the Adelphia transaction does not take place.
While both Time Warner and Comcast can waive this condition precedent to the
Transaction it is also possible that if the Adelphia transaction does not occur the
proposed transfer of the system from Time Warner to Com cast may not result.
We recommend that any approval of the Transaction should be contingent upon the
provision of certificates of authority provided by the Office of the Secretary of State
verifying that Cable Holdco II, Inc. is duly qualified to transact business in the State of
Minnesota. So'long as that condition is included in any proposed resolution we believe
it would be unreasonable for the Member Cities to find that upon closing of the
Transaction the proposed transferee, MOC Holdco II, Inc. and proposed franchisee,
Cable HaldcQ II, Inc. will not be legally qualified to own and operate the system.
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THE TRANSACTION
Time Wamer
Cable Inc.
Assigns
Franchise to
SubsldiaJy
Cable Holdco II, Inc.
Comcast
Corporation
Intermediate
Entities*
I
MOC Holdco
1I,lnc.
I
Time Warner Cable assigns franchise to subsidiary. Comcast subsidiary MOC Holdco
II, Inc., acquires all of the stock of Time Warner Cable subsit;liary.
*MOC Holdco II, Inc. is a Delaware corporation, wholly-owned by Corn cast of Georgia,
Inc., a Colorado corporation, which in turn is wholly-owned by Comcast MO Group, Inc.,
a Delaware corporation, which in turn is wholly-owned by Comcast Cable
Communications Holdings, Inc., a Delaware corporation which in turn is wholly-owned
by Comcast Corporation, a publicly traded Pennsylvania corporation. .
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AFTER COMPLETING THE TRANSACTION
Corncast
Corporation
Intermediate
Entities"
MOC Holdco
II, Inc.
Cable Holdco II, Inc.
(Franchisee)
"Mot Holdco II, Inc. is a Delaware corporation, wholly-owned by Comcast of Georgia,
inc., a Colorado corporation, which in turn is wholly-owned by Comcast MO Group, Inc.,
a Delaware corporation, which in turn is wholly-owned by Comcast Cable .
Communications Holdings, Inc., a Delaware corporation which in turn is wholly-owned
by Comcast Corporation, a publicly traded Pennsylvania corporation.
798148v1
14
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Section 5. Technical Qualifications
The technical qualification standard relates to Comcasfs technical expertise and
experience In operating and maintaining cable television systems. In such a review, the
standard is once again that the Member Cities consent shall not be unreasonably
withheld.
The proposed transferee, MOC Holdco II, Inc., is ultimately wholly-owned by Comcast
Corporation, a publicly traded Pennsylvania corporation. Comcast Corporation Is the
nations largest cable television operator with over 21.5 million cable customers In 35
states. Comcast also controls a variety of eable networks with investments that include
E Entertainment Television, Style Network, The Golf Channel, Outdoor Life Network,
G4, AZN Television, TV 1 and several Comcast sport networks. Comeast also holds a
majority interest in Comcast-Spectacor, whose major holdings include the Philadelphia
Flyers NHL hockey team, Philadelphia 76ers NBA basketball team as well as two multi-
purpose arenas in Philadelphia.
Comcast is also the cable operator in a number of Minnesota jurisdictions, including the
cities of Eagan. Burnsville, Inver Grove Heights, South 8t. Paul, 81. Paul, Woodbury,
Roseville, Maple Grove, Golden Valley, and others. In all. Comcast presently serves
over 75 separate jurisdictions in'the State of Minnesota as a result of Its acquisition of
the systems formally held by AT&T Broadband.
The Commission asked numerous questions of Comcast regarding Its proposed
integration of the Time Warner systems. including any proposed changes in system
operation. programming line-up, billing system .and customer service. In response to
virtually all of these questions Comcast replied that "there are no current plans to make
any changes in the system and no such changes are required as a direct result of the
transaction. However, Comcast reserves the right to consider and make such changes
as customer and company needs dictate."
Comcast argues that due to limitations under federal law upon operations integration
prior to antitrust review and approval, Comeast cannot perform any local level analysis
required to answer the Commission's questions. Com east commits that it will evaluate
the operations of the cable system serving the Member Cities after the close of the
transaction and make decisions as appropriate to support the products and services
provided to Its customers.
Given the vague replies provided by Comeast it is impossible for the Commission to
determine precisely how Comcast will attempt to integrate Time Warner's systems and
operations. Com cast has simply committed that It will honor all existing franchise
obligations including those related to public, educational and governmental
programming, including maintenance of the loeal studio In Eden Prairie.
79B148vl
15
Despite the vague replies provided by Comcast there Is no evidence that Com cast does
not possess the requisite technical qualifications, experience and expertise to own and
operate the systems serving the Member Cities.
Based on the foregoing, we conclude it would be unreasonable for the Member Cities to
find that, upon closing of the proposed transaction, MOC Holdco, Inc. (the proposed
transferee) and Cable Holdco II, Inc., (the proposed franchisee) will not be technically
qualified to own and operate the system.
79B14Bvl
16
.' .
n_._._'",'"., .',__'____.
" .
Section 6. Financial Qualifications
I. SCOPE OF REVIEW
We have reviewed selected financial information provided by Comcast Corporation
("Com cast") in conjunction with Time Warner Cable's request to transfer the cable
television systems (the "Systems") serving the Member Cities as well as those that are
presently operated by Adelphia Communications Corporation, a Delaware corporation,
and its affiliates or Time Warner Inc., a Delaware corporation, and its affiliates
(collectively, the "Transferors").
The selected financial information, which was provided or obtained and to which our
review has been limited, consists solely of the following financial information (hereinafter
referred to collectively as the "Financial Statements"):
(a) Consolidated balance sheet of Comcast and subsidiaries as of December
31,2004,2003 and 2002, and the related consolidated statements of
operations, changes In stockholders' equity and cash flows for the years
ended December 31, 2004, 2003, and 2002, together with the footnotes
and additional information, as the same were published in Comcast's
Form 1 O-K for the year ended December 31, 2004, and filed with the
Securities and Exchange Commission on March 25, 2005.
(b) Consolidated balance sheet of Comcastand subsidiaries as of March 31,
2005 and 2004, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for the periods ended
March 31, 2005 and 2004, together with the footnotes and additional
information, as the same were published in Comcast's Form 10-Q for the
quarter ended March 31, 2005, and filed with the Securities and Exchange
Commission on May 5,2005,
(c) Comcast's Form 8-K "Report of Unscheduled Material Events or
Corporate Changes" filed with the Securities and Exchange Commission
on April 26, 2005.
(d) Financial information provide by Comcast with Form 394 and in response
to our questionnaire provided by letter dated July 25, 2005.
(e) Asset Purchase Agreement by and between Adelphia Communications
Corporation and Corncast dated April 20, 2005.
(f) Redemption Agreement dated as of April 20, 2005 by and among
Com cast Cable Communications Holdings, Inc.; MOC Holdco I, LLC; TWE
Holdings I Trust; Cable Holdco III LLC; Time \('lamer Entertainment
Company, L.P. and other related PlilrtieS.
.
798148v1
17
. ".,
_. .
(g) Redemption Agreement dated as of April 20, 2005 by and among
Comcast Cable Communications Holdings, Inc.; MOC Holdco II Inc.; TWE
Holdings I Trust; TWE Holdings II Trust; Cable Holdco II Inc.; Time Warner
Cable Inc. and other related parties.
(h) Exchange Agreement dated as of April 20, 2005 by and among Comcast
Corporation; Time Warner Cable Inc.; Time Wamer NY Cable LLC and
other related parties.
(i) Financial information as found on Comcast's website located at
www.cmcsk.com.
0) Comcast's Investor Presentation - "Announcement of the Adelphia and
Time Warner Transactions" - dated April 21, 2005.
Comcast, in response to the Commission's transfer questionnaire dated July 14, 2005,
stated that "Since Comcast will not have a full opportunity to review the operations,
financial results or other relevant parameters of the system to be acquired until well
after the Transaction has closed, it would be premature to produce meaningful pro
forma financial information relating to the future financial performance of the Transferee
at this time."12 Since Comcast claims to not have fully revieWed the financial aspects of
the Transactions as discussed in Section II below, Comcast has not provided us with
information regarding certain financial forecasts, financial projections, potential cost
savings, and synergies of the Transactions. As such, our review of the financial
information with respect to Comcast does not include any analysis with respect to
projected financial information, except as otherwise noted in this report.
Our procedure was limited to providing a summary of our analysis of the Financial
Statements and additional financial information to facilitate the Member Cities'
assessment of the financial capabilities of Comcast to become the successor operator
of the Systems serving the Member Cities currently operated by the Transferors.
II. OVERVIEW OF TRANSACTION
Comcast Corporation, a Pennsylvania corporation ("Comcast"), entered into a series of
transactions which provide for the following: (1) the purchase by. Comcast of certain
assets and the assumption of certain liabilities from Adelphia Communications
Corporation, a Delaware corporation, ("Ade/ph/a"); (2) the redemption of Comcast's and
its affiliates' interests in Time Warner Entertainment Company, L.P., a Delaware limited
partnership ("TWE"), and Time Warner Cable Inc.. a Delaware corporation ("TWC"); and
(3) the exchange by Comcast and its affiliates with TWC and its affiliates of certain of
its assets and liabilities.13 These transactions provide for an expansion and
r~structuring of the cable systems owned and operated by Comcast as well as
.. Letter from Sheila R. Willard, Senior Vice President of Government Affairs,. dated July 25, 2005 to Brian
T. Grogan, Esq. Moss & Barnett, P.A. (the "Willard Lelter') at p. 7.
13 Comcas! Corporation's Form 8-K, 'Report of Unscheduled Material Events and Corporate Changes"
filed with the Securities and Exchange Commission on April 26, 2005 ('Form 8-K") at Item 1.01.
798148v1
18
divestment of its TWE and TWC investments. The closings on these transactions are
subject to various regulatory approvals and the approval of the bankruptcy court having
jurisdiction over the Adelphia bankruptcy and are expected to occur in the first or
second calendar quarter of 2006.14
The Comcast acquisition of the Adelphla assets and liabilities under the Asset Purchase
Agreement by and between Comcast and Adelphia dated April 20, 2005 (the
"Adelphia/Comcast Purchase Agreement") will be effected under a plan under Chapter
11 of the Bankruptcy Code.1s The transaction provides for the purchase of Adelphia's
Interests in certain controlled entities, which include approximately 1,092,000
subscribers, and cable systems servicing approximately 138,000 subscribers for a
purchase price of $3.5 billion dollars.1s The Adelphia/Comcast Purchase Agreement
includes provisions and conditions customary for a transaction of this size including a
termination fee payable by Adelphia to Comeast of $87.5 million if the transaction is not
consummated.1~
The redemption of the TWE interests held by TWE Holdings I Trust, a Delaware
statutory trust and an affiliate of Comcast, will be effectuated by the transfer of all of the
membership interests of Cable Holdco III LLC, a newly formed Delaware limited liability
company and subsidiary ofTWE, to a Comeast affiliate. Cable Holdco III LLC will hold,
at the time of the redemption, cable systems with ap.raroximately 159,000 basic
subscribers and approximately $133 million in eash. 8 The redemption of the TWC
shares held by TWE Holdings II Trust, a Delaware statutory trust and an affiliate of
Comeast, will be effectuated by the transfer of all of the stock of Cable Holdco II Inc., a
newly formed Delaware corporation and subsidiary of mc, to a Comcast affiliate.
Cable Holdco II Inc. will hold, at the time of the redemption, cable systems with
approximately 550,000 basic subscribers and approximately $1.9 billion in eash.19
The exchange of assets between Comcast and its affiliates and TWC and its affiliates
will be effectuated by a like-kind exchange transaction governed by Section 1031 of the
Internal Revenue Code of 1986, as amended, and will provide for a tax-free exchange
of certain cable systems between Comcast and its affiliates and TWC and its affiliates.20
TWC and its affiliates will transfer approximately 2,031,000 basic subscribers loeated
primarily in the West Palm Beach, Florida, the suburbs of the District of Columbia and
Minneapolis, Minnesota to Comeast in exchange for approximately 2,203,000 basic
14 Comcast Corporation's Form 10-Q for the Quarter Ended March 31, 2005 filed with the Securities and
Exchange Commission on May 5, 2005 ("Form 10-Q") at p. 25.
15 Form 8-Kat Item 1.01.
161d.
17 Asset Purchase Agreement by and between Comcast Corporation and Adelphia Communications
Corporation dated April 20, 2005, specifically referencing Section 8.5(b).
16 Form 8-1< at Item 1.01.
1Sld.
20 Exchange Agreement dated as of April 20, 2005 by and among Com cast Corporation, Time Warner
Cable, Inc., Time Warner NY Cable LLC and other affiliated parties specifically referencing Recital H.
798148v1
.19
,
. ~ -.. ",
subscribers loeated primarily in Los Angeles, California; Dallas, Texas; Cleveland, Ohio;
and in the western section of New York.21
The net result of the above transactions are that Comcast and its affiliated entities will
acquire approximately 1.8 million basic subscribers for net cash of approximately $1.5
billion and the redemption of Comeast's 4.7% interest in TWE and 17.9% interest in
TWC.22 After all of the above transactions are completed, Comeast will continue to be
the largest cable provider in the United States and service approximately 23.3 million
basic subscribers.23
III. OVERVIEW OF COMCAST
(a) Summarv of the Comoanv. Corncast Corporation was organized in 2001
and'is in the business of development, management and ooeration of
broadband communication networks in the United States.24 Its
predecessors have developed, managed and operated broadband eable
networks since 1963.25 Corneast is the largest cable operator in the
United States and currently provides service to approximately 21.5 million
subscribers in the United States as of December 31,2004.26
Com cast also provides programming content, including E! Entertainment
Television, the Style Network, the Golf Channel, the Outdoor Life Network
and the Comeast sports networks.27 Comeast currently employs
approximately 74,000 individuals, with approximately eighty percent (80%)
of the individuals working within the cable communications area.28
Manaaement and Operations. Mr. Brian L. Roberts is the Chairman and
Chief Executive Officer of Comeast and controls the corporation.29 Mr.
Roberts has the sole voting power over approximately 33 1/3% of the
combined voting power of the two classes of voting stock of Comcas!. 30
(b)
(c)
Acauisitions. In November 2002, Comeast completed the acq\lisition of
AT&T Corp.'s broadband business which included approximately 13.6
million basic subscribers and was valued at approximately $50.66 biJlion.31
The result of this acquisition was to triple the s.ize of Comeas!. Prior to the
21 Form 8-K at Item 1.01.
22 Form 10-Q at p. 25.
"Id.
24Comcast Corporation's Form 10-K for the year ended December 31,2004, filed with the Securities and
Exchange Commission On March 25,2005 ("Form 10-1<.") at p. 2.
2' Id. at p. 40.
2' Id. at p. 3.
27 Id. at p. 40.
2' Id. at p. 13.
29 ld. at p. 14.
30 ld. at p. 17.
31 AT&T Corp.'s Form 10-K for the year ended December 31,2001, filed with the Securities and
Exchange Commission on April 1, 2002 ("AT&T Form 10-K"), at p. 1; AT&T Comcast Corporate Investor
presentation daled December 20, 2001, at p.8; and Form 10-K at p. 48.
798148v1
20
AT&T Corp. broadband acquisition, Corncast had madenurnerous
acquisitions, including from AT&T Corp. and Adelphia.32
(d) Comoetitive Environment. The financial performance of cable system
operations are subject to a variety of factors in an ever increasing
competitive environment with increasing diverse means of product delivery .
including competition from many different sources, including direct
broadcast satellite services (such as EchoStar and DirecTV), local
exchange carriers, other wireline communications, program distribution,
satellite master antenna systems, local television, online computer
services, newspapers, magazines, book stores, movie theatres, live
events and home video products.33 Additionally, regulatory agencies may
limit Comcast's ability to compete or allow other operators to compete in
Comcast's markets.3<l The competitive environment also extends to the
advertising market as old and new advertising outlets provide additional
sources of competition.3S
(e) Financina. As is the case for all cable providers, capital is vital for the
constant maintenance, system upgrades and operations of its cable
system. In January 2004, Com cast refinanced a $4.5 billion revolving
bank credit facility which expires in January of 2009.36 Comcast has
traditionally maintained substantial lines of credit to meet any short-term
borrowing Obligations and liquidity requirements. Comcast stated in its
response to our inquiry that Comcast has available bank lines of credit
and access to other capital markets for the $1.5 billion needed to complete
the Transactions as discussed in Section II hereof. 37 Comcast also stated
that it expects, according to a public comment by John Alchin, an
Executive Vice-President and Co-Chief Financial Officer of Comcast, to
invest approximatel~ $150 million of capital into the Adelphia systems in
the next two years. 8
IV. FINDINGS
(a) Analvsis of Comcast's Financial Statements. Neither federal law nor FCC
regulations provide franchising authorities with any guidance concerning
the evaluation of the financial qualifications of a transfer applicant for a
cable franchise.39 In certain circumstances, it is appropriate to consider
32 Form 10-K at p. 3.
33 Id. at pp. 5-6.
34 Id. at pp. 8-13.
35 Id. at p. 8.
35 Id. at p. 29.
37 Willard Letter at p. 7.
'"
Id. atp. 7.
.. FCC Form 394 does reference whether the proposed transferee 'has sufficient liquid assets on hand or
available from committed resources to consummate the transaction and operate the facilities for three
months.' This reference, however, does not necessarily constitute the defmitive standard for financial
qualifications.
798148v1 .
21
.~, -'-' . . , .:'...
,., . - .','-.
l..
the performance of an applicant based upon the applicant's historical
performance. Given the fact that Comeast and its subsidiaries have a
history of cable system operations and such acquisitions as detailed in
Section II hereof will accountfor a less than ten percent (10%) increase in
Comeast's cable subscriber base, such statistical information and analysis
is relevant with respect to the Transactions contemplated by the
agreements discussed in Section II hereof. We have provided general
financial data relevant to the operation of a public company and as used
by financial analysts evaluating public companies. Due to the size and
scope of Comcasfs operations, a comparison of its financial data with
other competitors provides only minimal insight into the financial
capabilities of Comcast.
Based upon the selected financial information, which we reviewed, the
following is a summary of various financial factors from operations for the
twelve-month period ended December 31, 2004 and the three-month
period ended March 31, 2005 and balance sheet dates of December 31,
2004 and March 31, 2005.
5. 40.9% 35.4%(1)
6. 14.3% 16.1%(1)
7.
.49:1 .47:1(1)
8.
.41:1 .33:1(1)
(1) Ratios detennined as of March 31, 2005.
. Data. based upon Financfallnformation in Comcasfs 2004 Fonn 1O-K and 2005 First Quarter
Fonn 10-Q. .
(b) Soecific Financial Statement Data and Analvsis.
Assets. According to Comcasfs financial information, Comcast had (i)
current assets of $3,535 million and $2,930 million; (Ii) working capital of a
negative $5,100 million and a negative $5,866 million; and (Iii) total assets
of $104,694 million and $104,238 million as of December 31,2004 and
March 31, 2005, respectively.40 Working capital, which is the excess of
current assets over current liabilities, is a short-term analytical tool used to
assess the ability of a particular entity to meet its current financial
obligations in the ordinary course of business. The negative working
capital balance of $5,866 million as of March 31,2005, suggests that
Com east may experience a short-term deficiency in available working
capital resources that will be needed to pay Transaction costs and debt
40 Form 1 D-K at p. 36 and Form 10-Q at p. 2.
798148v1
22
. ..
. ". ,." -. ..' ~'".''.''-'''
service in the next year. This will be overcome, according to Comeast, by
drawing on other capital resources including additional borrowings from its
revolving bank credit facility as described herein and operating cash
f1ows.41 Comcast's current ratio (current assets divided by current
liabilities) as of December 31,2004 of .41:1 Is signifieantly below a typieal
investor standard of 1.0:1, which means that Comeast will be required to
. find other sources of funds (other than current assets) to pay Is current
liabilities.
Liabilities. According to Comeast's financial information, Comcast had (i)
current liabilities of $8,635 million and $ 8,796 million; (ii) long-term debt
net of current maturities of $20,093 million and $19,317 million; and (iii)
equity of $41 ,422 million and $41,356 million as of December 31, 2004
and March 31, 2005, respectively.42 As of December 31, 2004, Comcast's
debt to equity ratio, which is a measure of the amount of debt in relation to
total equity, was approximately .49:1. Generally, a low debt to equity ratio
is considered favorable. Comcast's debt to equity ratio is favorable as the
amount of Comeast's equity is almost two times its debt This favorable
ratio is largely the result of Comeast's frevious acquisition of AT&T
Corp.'s broadband business in 2002.4
Income and Expense. According to Comcast's financial information,
Comcast had: (i) revenue of $20,307 million and $5,363 million; (ii)
operating expenses of $17,399 million and $4,497 million; and (iii) net
income of $970 million and $143 million for the year ended December 31,
2004 and the quarter ended March 31,2005, respeclively.44 Comeast had
an operating cash flow percentage for the twelve months ended
December 31,2004 of 40.9%, and the author notes that this ralio has
improved significantly from the 2000 and 2001 combined AT&T Comcast
Corporation ratios which were approximately 23% - 24%.45 This is a
positive indication of the financial health of Comeas!. Cash flow and the
cash flow percentage provide a measure of the ability of a business entity
to generate cash.
(c) Comcast Manaoement Discussion and Analvsis of Financial Results.
The following information is a summary of some of Cbmcast's pertinent
financial data and Comeast management's discussion regarding this data.
41 Wmard Letter at p. 7.
42 Form 10-K at p. 36 and Form 10-Q at p. 2.
43 Form 10-K at p. 48.
44 Form 10-K at p. 37 and Form 10-Q at p. 3.
.. AT&T Comcast Corporation Form 5-4 for the year ending December 31,2001, filed February 11, 2002
with the Securities and Exchange Commission at pp. III 4-8. and AT&T Comeast Corporation, Form S-4
Amendment NO.1 filed April 10, 2002 with the Securities and Exchange Commission at pp. 1114.7.
7S8148v1
23
.,
Revenue. The financial guidance issued by Com cast in 2005 projects a
10% increase in gross revenues in 2005 and a 14%-15% increase in
operating cash flow in 2005.46 The creation of a larger subscriber base
through the acquisition and redemption Transactions by Comcast should
allow for the deployment of a greater range of services and products
which could have a positive impact on Comcast's gross revenues.
Expenses. In 2004, programming expenses, which are fees paid to
receive programming from cable networks for distribution to video
subscribers and is Comcast largest single expense, increased by 6.1 %
from 2003.47 Comcast's management believes these expense increases
can be mitigated by additional volume discounts.48 The A T& T
Corp.lComcast transaction in 2002 resulted in the recording of $1.5 billion
of employee termination costs and exit activities which were accrued.49
As of December 31.2004, only $75 million of this liability remains unpaid.
50 These expenses resulted in a significant use of cash flow by Comcast
over the last 2 years.
Capital Exoenditures/Non-Ooeratina Cash Flow. In 2005, Comcast is
projectin~ to invest approximately $3.2 - $3.3 billion in improvements to its
systems', which is a decrease from the $3.66 billion spent on capital
improvements in 2004.52 Management expects Comcast will spend
approximately $150 million on capital improvements related to the
acquired Adelphia systems in 2006 and 2007.53
Comcast does not intend to pay dividends in the foreseeable future, but
has repurchased approximately $1.3 billion of its stock from its
stockholders in the last year.54 The stock repurchase plan has required
the use of a significant portion of Comcast's cash flow in the last year and
an additional approximately $600 million has been reserved for additional
stock repurchases in 2005. 55
Lona Term Contracts/Investments. Comcast is subject to long-term
contracts for video programming, audio programming, electronic program
.. As found on the Corneast website at www.cmcsk.eorn under Stock Information, Financial Highlights,
Financial Guidance. .
47 Form 1 ().oK at p. 24.
.. Form 1().oQ at p. 7.
"Id.
50 Id.
51 As found on the Comeast website at www.emesk.com under Stock Information, Financial Highlights,
Financial Guidance. .
52 Form 10-K at p. 68.
53 Willard Letter at p. 7.
54 Form 10-K at p. 18.
ss Id.
798146v1
24
...~m.:;~
guides and other services.56 The future guaranteed fixed costs of these
. contracts and agreements are approximately $7.2 billion.57
Comcast is liable for fifty percent (50%) of the liabilities associated with
AT&T Corp.'s interest in At Home Corporation.58 At Home Corporation
filed bankruptcy in September of 2001, which was followed by multiple
secondary lawsuits. 59 A settlement was reached with respect to a portion
of this liability and Comcast has accrued $170 million in the first quarter of
2005. 60 The financial impact of the complete disposition of these lawsuits
is not evaluated in this report.
Financina. Comcast will have significant debt obligations in excess of
$24.672 billion as of the date of the Transaction.61 Comcast also noted
that it has $3.839 billion of funds immediately available under its credit
facilities as of March 31, 2005 which will allow Comcast to continue to
offset its negative current working capital in the short term. 62 Comcast
also has cash, cash equivalents and short term investments of $636
million as of March 31, 2005.63
Thus, based upon the financial information supplied by the management
of Comcast and Comcast's history of expanding services and revenues of
newly acquired systems,54 Comcast should have sufficient liquid assets for
short-term operations and capital expenditures, from operations and
available financing through the initial period after the Transactions.
V. FINANCIAL QUALIFICATIONS SUMMARY
Based upon the foregoing and limited strictly to the Financial Statements reviewed by
Moss & Barnett in conducting this review, we believe it would be unreasonable for the
Member Cities to find that Com cast does not possess sufficient financial qualifications
subject to limitations set forth below.
In the event the Member Cities elect to proceed with approving the assignment of the
franchise, the assessment of Comcast's financial qualification should not be construed
in any w~y to constitute an opinion as to the financial capability or stability of Comcast
to (i) operate its existing franchi~ operation; (Ii) to operate the Systems; or (Iii)
successfully consummate the Transactions contemplated by the various agreements as
discussed in Section II hereof or future acquisitions upon which we express no opinion.
This efficiency of the procedures used in making an assessment of Com cast's financial
.'Id. at p. 31.
.'Id.
., Form 10-Q at p. 14.
..9 Id at pp. 13-15.
60ld.
61 Willard Letter at p. 7.
62 Form 10-Q at p. 9.
63 Id at p. 2.
54 Comeast Investor Presentation dated Aprn 21,2005.
7~8148v1
25
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..' >
qualifications and its capability to become the successor operator of the Systems is
solely the responsibility of each Member City. Consequently, we make no
representation regarding this efficiency of the procedures used either for the purpose for
which this analysis of financial capability and qualifications was requested or for any
other purpose.
798148v1
26
.
Section 7. Recommendation
Based specifically on the foregoing information and analysis, we believe it would be
unreasonable for the Member Cities to find that upon closing of the Transaction the
proposed transferee, MOC Holdco II, Inc. as well as the proposed Franchisee (Cable
Holdco II, Inc.) will not be legally and technically qualified to own and operate the cable
system. With respect to the financial qualifications review, the reader is referred to the
financial qualifications summary set forth on page 25 herein.
Based on the foregoing, we recommend that the Member Cities review this report, listen
to any additional pUblic comment or information, as necessary or appropriate, and
undertake all necessary action to pass and adopt a resolution in form and content
similar to the document attached hereto as Exhibit A.
798148v1
27
City of Hopkins, Minnesota
Resolution No. 2005-085
Approving the Proposed Change of
Control of Time Warner
RECITALS:
1. On or about January 1, 1997, the City of Hopkins, Minnesota ("City") passed and
adopted Ordinance No. 96-790, granting a Cable Television Franchise ("Franchise"),
currently held by Time Warner Cable Inc. ("Franchisee").
2. On or about June 14, 2005, Franchisee submitted to the City FCC Form 394,
Application for Franchise Authority Consent to Assignment or Transfer of Control of
Cable Television Franchise ("Form 394").
3. Form 394 constitutes Franchisee's application to transfer the system to MOC
Holdco II, Inc. which will wholly own Cable Holdco II Inc. ("Proposed Franchisee").
4. Pursuant to a Redemption Agreement, dated April 20, 2005, by and among
Comcast Cable Communications Holdings, Inc.; MOC Holdco II, Inc.; TWE Holdings I
Trust, TWE Holdings II Trust; Cable Holdco II Inc., Time Warner Cable Inc. and other
related parties: (a) the Franchisee cable system and Franchise will be assigned to a
wholly-owned subsidiary of Franchisee, Cable Holdco II Inc. and (b) immediately
thereafter, pursuant to the same Redemption Agreement, all of the stock of Cable
Holdco II Inc. will be acquired by MOC Holdco II, Inc., an indirect wholly-owned
subsidiary of Comcast Cable Communications Holdings, Inc. The assignment and
change of control described herein shall collectively be referred to as the "Transaction."
5. Under the City's Cable Television Regulatory Ordinance ("Cable Ordinance") and
applicable law, the Transaction requires consent from the City.
798148v3
1
6. The City is a member of the Southwest Suburban Cable Commission which has
conducted a review of the Transaction and issued a recommendation that the City
approve the Transaction subject to the conditions contained herein.
7. The City has reviewed the Transaction and the legal, technical, and financial
qualifications of MOC Holdco II, Inc. and its corporate parent entities.
8. Based on information obtained and on the reports and information received by
City, including the recommendation of the Southwest Suburban Cable Commission, the
City has elected to consent to the Transaction.
NOW, THEREFORE, the City of Hopkins, Minnesota hereby resolves as follows:
1. The Franchise is in full force and effect, and Franchisee is the lawful holder of the
Franchise.
2. Each of the foregoing recitals are hereby incorporated by reference.
3. The City hereby consents and approves of the Transaction as contemplated
under the Redemption Agreement, subject to:
a. Closing of the Transaction described in information provided to the City by
Franchisee and MOC Holdco II, Inc.
b. MOC Holdco II, Inc., within thirty (30) days of the date of closing, notifying
the City in writing of the completion of the Transaction.
c. Cable Holdco II Inc., within thirty (30) days of the date of closing, providing
the City with a signed acceptance of this Resolution in the form attached hereto
and incorporated by reference.
4. The City hereby waives any right of first refusal which the City may have to
purchase the Franchise, or the cable television system serving the City, but only as
798148v3
2
such right of first refusal applies to the request for approval of the Transaction now
before the City.
5. By this consent the City does not make any representation that Franchisee is in
compliance with its obligations under the Franchise.
6. By this consent the City does not waive any of Franchisee's commitments, duties
and obligations under the Franchise, including any accrued and unfulfilled obligation of
the Franchisee, whether known or unknown, relating to the Franchise.
7. In the event the Transaction contemplated under the Redemption Agreement is
not completed, for any reason, or is modified in any material manner, the City's consent
provided hereunder shall not be effective.
This Resolution shall take effect and continue and remain in effect from and after the
date of its passage, approval, and adoption.
A motion to approve the foregoing Resolution No. was made by City Council
Member and duly seconded by City Council
Member
The following City Council Members voted in the affirmative:
The following City Council Members voted in the negative:
Passed and adopted by the City Council for the City of Hopkins, Minnesota this _
day of , 2005.
ATTEST:
By:
CITY OF HOPKINS, MINNESOTA
By:
Its:
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ACCEPTANCE AND AGREEMENT
Cable Holdco II Inc., hereby accepts this Resolution No.
("Resolution") and
agrees to be bound by the terms and conditions of this Resolution and the lawful terms
and conditions of the Franchise referenced within the Resolution.
Dated this _ day of
,20_
CABLE HOLDCO II INC.
By:
Its:
COUNTY OF
)
) ss.
)
STATE OF
The foregoing instrument was subscribed and sworn to before me this _ day of
200_, by
, the
of Cable Holdco II Inc.
SEAL
Notary Public
798148v3
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