OCTOBER 2, 2006


The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob Drake in the Forrest C. Soth Council Chamber, 4755 SW Griffith Drive, Beaverton, Oregon, on Monday, October 2, 2006, at 6:35 p.m.


Present were Mayor Drake, Couns. Catherine Arnold, Bruce S. Dalrymple, Dennis Doyle and Cathy Stanton. Coun. Betty Bode was excused. Also present were City Attorney Alan Rappleyea, Finance Director Patrick O'Claire, Public Works Director Gary Brentano, Human Resources Director Nancy Bates, Police Chief David Bishop and Deputy City Recorder Catherine Jansen.


Mayor Drake proclaimed October 2006 Breast Cancer Awareness Month and National Arts and Humanities Month.


06180 Presentation by Sarah Hackett, Metropolitan Area Communications Commission (MACC)

Mayor Drake introduced Sarah Hackett, Metropolitan Area Communications Commission (MACC). He said MACC regulates cable television franchise services in Washington County and Coun. Stanton is the City's delegate to MACC

Coun. Stanton said the U. S. Congress was considering possible changes to the Telecommunications Act of 1996 and she thought Council should be updated on the activities and potential consequences to future franchise fees and regulations.

Sarah Hackett, Policy and Regulatory Affairs Manager, MACC, said MACC represented 14 cities in Washington County and its primary responsibility was cable franchise and telecommunications. She said MACC's mission was broad because cable television and telecommunication industries were currently blending. She said in 1996 there was a massive overhaul of the telecommunications law by the federal government and now, in 2006, another dramatic potential change was being considered.

Hackett said this summer the House passed H.R. 5252, the Communications, Promotion and Enhancement Act of 2006 (COPE) sponsored by Representative Barton. She said it passed by a huge margin, as many believed that there would be no competition in the cable industry without this legislation. She said the results of COPE would be: 1) Cities/counties would lose the authority to franchise cable providers and instead the FCC would grant and renew franchises. 2) Local franchises would switch to a national franchise as soon a national franchisee came into the area. 3) Cities/counties would retain authority to manage right-of-ways (ROW) and easements, but FCC would mediate disputes. 4) Customer service would suffer as local and state consumer protection and customer service standards would be pre-empted by FCC regulations that are less stringent than local standards.

Coun. Arnold asked what type of disputes the FCC would mediate in relation to right of ways and easements.

Hackett explained there were many disputes over construction projects and relocation of lines that were resolved in court. She said with the FCC as mediator, it could take months or years to resolve a disagreement.

Hackett said the customer service s tandards would be set by the FCC and local authorities could not change the regulations. She said the MACC franchise has strict penalties and large fines for not meeting s tandards. She said under the FCC s tandards, the fines would be small. She said COPE does require that nationally franchised providers match existing cable PEG (Public Education and Government) channels. She said 1% of the gross revenues would be provided to support the Public Communications Network (PCN); currently MACC requires $1.00/per household which equates to approximately 1.6%. She said that would result in a substantial decrease in funds available for PEG and PCN.

Hackett said the Congressional Budget Office acknowledged that COPE contains unfunded mandates. She said the White House supports this legislation though the National Governor's Association opposes the bill because it does not respect local governments' sovereignty and it is a federal intrusion into state affairs.

Hackett said the U.S. Senate took up this cause and the Senate Commerce Committee passed Senate Bill 2686, Advanced Telecommunications and Opportunities Reform Act (ATOR) that is seen as a replacement for the COPE bill. She said the ATOR bill does not nationalize cable franchising but it regulates and requires an expedited local franchising process. She said the bill establishes a 90-day timeline to act on any application from a new service provider or a franchise is automatically granted for 15 years with no PEG/I-Net support.

Mayor Drake said the 90-day timeline sounded like a penalty for not acting fast enough. He noted acting quickly did not always produce the best product; 90 days would not provide adequate time for citizens to review the application and be part of the process.

Hackett agreed. She said there was a request to make it a 90-business-day deadline, but the Senate turned it down. She said there was discussion on what was more important: speed to market or local consideration. She said under the ATOR bill it is no longer a negotiation; the FCC sets the guidelines for the application form and everyone has to comply. She said both the ATOR and COPE bills have problems.

Coun. Stanton asked if the ATOR bill contained a base for the franchise fee percentage.

Hackett said the bill says it can be a maximum of five percent of gross revenues. She said a video provider could propose a lower percentage and that would have to be negotiated. She said that was where the 90-day timeline would apply.

Coun. Stanton asked if an applicant could agree to adding days to that clock. She questioned the quality of the negotiations that have to be conducted in 90-days.

Hackett said the Senate took pride in that it did not take away local franchising. She said there was nothing in the bill that allows negotiation on the timeline. She said a provider may be able to send a letter to the FCC requesting more time, but the goal of the bill was to make the process short, fast and uniform.

Hackett said the ATOR bill did not have a good definition of gross revenues and that could result in cities getting less revenue in compensation for their ROWs. She said the ROW authority in ATOR is close to what currently exists and the FCC would continue to have jurisdiction. She said the bill also allows one percent of gross revenues for PEG/I-Net purposes or the equivalent of what is currently required of your cable operator. She said that meant that MACC's 1.69% could be used instead of the one percent. She said both bills were similar in regard to customer service in that the FCC sets the standards and local modification is not allowed.

Hackett said the Congressional Budget Office evaluated the Senate bill. She said that the bill would add more to federal spending than it would generate in revenue; it would add $200 million to the federal deficit.

Coun. Arnold asked what costs were covered under federal spending.

Hackett said costs covered regulation of video providers and FCC costs. She said the bill was promoted as a money-maker for the federal government, which it is not. She said the costs are generated by telecommunications services as this bill is intended to rewrite telecommunications law as it applies to wireless, cable and telephone service.

Coun. Stanton questioned if the cities would still get the franchise fees.

Hackett said the cities would still get the 5% franchise fees, but other parts of the bill are weighing it down. She said there was discussion about breaking up the bill to pass the sections that are unopposed. She said the Congressional Budget Office reported that the direct cost to local and state governments would be $64 million in 2006. She said that is a problem since the federal government has an unfunded mandate law.

Hackett said Senator Smith broached this issue in the Senate and introduced the Video Choice Act of 2005 (S. 1349). He did not confer with Oregon cities and counties, but he was convinced that if a new company wanted to offer video services, if they have authority to be in the ROW (such as a telephone company) they did not need to get a cable franchise. She said that was unprecedented in Oregon as companies are franchised by service. She said Senator Smith also believes that one percent of gross revenues is adequate to fund PEG/I-Net services (compared to 1.69% currently required by MACC).

Hackett said Senator Wyden has become a supporter of Net Neutrality, which is the theory that if the telecommunications laws are not changed, there will be two big providers of telecommunications services and they will control access and speed to customers. She said other companies (Google, Microsoft) have all testified that they are concerned that Comcast, Verizon or AT&T will prioritize other traffic and/or make them pay more to get their traffic out to subscribers. She said they believe that unless the law is changed, future open access is not guaranteed. She said Senator Wyden has threatened a filibuster, which means that Senator Stevens would have to get 60 secure votes to bring this to the floor and limit discussion. She said MACC was able to make a lot of headway with Senator Smith's staff about the value of the communications network, particularly the public safety services.

Hackett said there would be a Lame Duck Session sometime between November 13 to December 22, 2006. She said Senator Stevens was working hard to get his bill to the Senate floor but if there is a change in the composition of the House and Senate as result of the election, his bill will be dead. She said if the bill does not make it through this Congressional session, the proposal would probably be resurrected in the January 2007 Congressional session.

Hackett said 13 states had moved franchising from the local level to the state level; nine other states discussed the change but did not pass it. She said in Oregon, Verizon and AT&T were the two companies that had spent the most time and money at Congress and in state legislatures changing these laws. She said if the federal legislation is delayed, the 2007 legislative session will include a proposal from Verizon. She said Verizon's current position is that it does not care if the federal legislation passes as they are getting the franchises they need. She said MACC has been negotiating a franchise with Verizon since January 2006. She said staff hopes to bring the franchise to the MACC Commission in December; if MACC approves the franchise, it would then go to the member jurisdictions for approval.

Coun. Stanton thanked Hackett for the presentation. She said these issues were difficult to explain and unders tand. She said home rule was very important to her and to the citizens, because if the FCC took over franchising authority service would get much worse.

Hackett said there is concern that there could be a cascade affect; if cable franchises are not negotiated at the local level, why should gas or electrical services be locally franchised.

Coun. Doyle said this mirrors what he senses is happening in Washington D.C. and it was interesting to see the interplay of the parties. He thanked Hackett for the update. He said this could have a devastating affect on local governments.

Mayor Drake thanked Hackett for the presentation.


Pavel Goberman, Beaverton, said last month he announced his candidacy as write-in candidate for State Representative. He said the Oregon Constitution does not prohibit his participation in candidate's forums. He said he was invited to participate in the candidate's forum put on by the League of Women Voters. He asked that the City invite him to participate in the candidate's forum for the County and State candidates. He said if the City did not invite him, it would be a violation of his constitutional rights and he may file a lawsuit against the City. He said if the forum was televised and he was not allowed to participate he would file a complaint with the FCC against MACC and Comcast.

City Attorney Alan Rappleyea said the Committee for Citizen Involvement (CCI) coordinates the candidate's forum and decides who to invite to participate. He said the Council does not control that event. He said the CCI invited actual registered candidates to participate and Goberman is not a registered candidate; he is a write-in candidate. He said the CCI's reasoning was that if they invited everyone who is a write-in or potential write-in candidate, there would not be sufficient time for the registered candidates to express their opinion. He said this was not a situation where anyone could speak; it is a structured candidates' debate, with rules and limits. He said the Constitution does not require that everyone be allowed to talk. He said there was no violation of Goberman's Constitutional rights. He said the CCI can set the parameters for its debate.

Dr. Hal Oien, Treasurer, Five Oaks/Triple Creek Neighborhood Association Committee (NAC), said he was representing the NAC Board with a request that the Beaverton School District's application for the bus barn, that is to be submitted this month, be considered a Type 3 application so that the Council and Mayor can consider this matter. He said it was their unders tanding that the application would be a Type 2 application which did not allow for Council consideration. He said they offered to help the School District generate funds to cleanup school bus emissions and they have had no response. He said they were trying to fix this problem and were not getting anywhere with the School District. He said the last time the bus barn application was considered the medical community and others weighed in heavily on the issue of air pollution from these buses; these groups would be excluded unless there is a public hearing before the Council. He said his concern was that the students and their parents from this school had little power and political clout to do what is necessary to protect the students. He said the children need a proxy and the NAC felt it was up to the Council and Mayor.

Mayor Drake said the District had not filed an application. He said NAC Chair Dave James appeared a few months ago before Council with a similar request. He said the Community Development Director Joe Grillo distributed a memorandum in response to that request that went to James, the Council and press. He said since Grillo was not present, the City Attorney would respond to this request.

Rappleyea said the Development Code was changed in the last few years to make the application process more efficient and quicker. He said many different land use applications were made Type 2. He said in Type 2 applications, the Community Development Director makes the first determination and that can be appealed to either the Planning Commission or the Board of Design Review. He said the City had not received an application, he said once the application is received, the Community Development Director would determine the application type.

Mayor Drake asked if Grillo believed this would be a Type 2 application based on a neighborhood meeting that is required in advance of submitting an application.

Rappleyea said Grillo was not sure what type of application it would be. He said the last application that was received was a Type 2 but it was later withdrawn.

Coun. Stanton asked if the Council still had the authority to pull up any decision made by a lower body of the City to hear the issue.

Rappleyea said the Council did not have that authority; and to do that, or to have the option to do that, would violate the 120-day rule. He said that provision was removed from all jurisdictions across the state of Oregon.

Coun. Arnold said that was discussed years ago when the Committee for Citizen Involvement considered the proposed Code changes. She explained how that provision made it impossible to meet the time frame for the 120-day rule.

Oien encouraged the Council and Mayor to retain as much authority as they could and not subjugate their authority to people who do not answer to the voters.

Mayor Drake said he and the Council feel strongly about that. He said that was why years ago the City reversed its procedures to remove the hearings officer and send applications to the Planning Commission.

Oien said the air pollution was the risk to the children and they tried to work with the District but received no response. He stressed that the children need a proxy.

Coun. Doyle asked Oien to send a copy of what was submitted to the School District regarding solutions to the air pollution. He said he would like to see it and could pass it on to the Council. He said he could also share information he had with Oien.

Mayor Drake asked that Oien send this information to the City Recorder so all the Council could get the information.


Coun. Stanton said October was Domestic Violence Awareness Month and on Thursday, October 5, 2006, at the Washington County Courthouse in Hillsboro, at 5:30 p.m. there would be a celebration of survivors and speeches would be given to raise awareness on this topic. She said also on Thursday, from 12:00 to 2:00 p.m. local legislative candidates will discuss affordable housing issues at a forum at City Hall. She said she would be there and she encouraged those who were interested to attend.


Finance Director Patrick O'Claire reminded the Council that the auditor's letter and questionnaire, that the auditors distributed to Councilors, is due back to the auditors on October 17, 2006.


Mayor Drake explained that Agenda Bills 06182 and 06183 were being pulled from the agenda because of questions from Couns. Arnold and Stanton, and would not be discussed at this meeting.

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that the Consent Agenda be approved as follows:

Minutes of the Regular Meeting of September 11, 2006

06181 Liquor License: New Outlet - Mexicali Express; Thai Flavor

Contract Review Board:

06182 PULLED - A Resolution Relating to Special Procurements and Amending Sections 50-0015 and 47-0700 of the Beaverton Purchasing Code (Resolution No. 3875) (This item was not discussed at the Council meeting.)

Coun. Dalrymple said he had a correction to the September 11, 2006 Minutes on page 12, the fifth paragraph should read "Coun. Dalrymple stressed he was objecting to the path for approval not the density." He said the word traffic should be omitted.

Question called on the motion. Couns. Arnold, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (4:0)


First Reading:

Rappleyea read the following ordinances for the first time by title only:

06183 PULLED - An Ordinance Amending Comprehensive Plan Chapters 1, 2 and the Glossary (Ordinance No. 4187) Related to CPA 2006-0001 (Ordinance No. 4395) (This item was not discussed at the Council meeting)


Coun. Stanton MOVED, SECONDED by Coun. Doyle, that Council move into executive session in accordance with ORS 192.660(2)(h) to discuss the legal rights and duties of the governing body with regard to litigation or litigation likely to be filed and that pursuant to ORS 192.660(3), it is Council's wish that the items discussed not be disclosed by media representatives or others. Couns. Arnold, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (4:0)


Mayor Drake called for a recess at 7:41 p.m. to setup for executive session.


Mayor Drake reconvened the meeting at 7:53 p.m.

The executive session convened at 7:53 p.m.

The executive session adjourned at 8:06 p.m.

The regular meeting reconvened at 8:06 p.m.

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that the Council authorize the expenditure in the next supplemental budget of $15,000.00, and incidentals up to another $1,000.00, to settle the lawsuit of Alliant Systems, Inc., vs. City of Beaverton. Couns. Arnold, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously (4:0)

Coun. Doyle MOVED, SECONDED by Coun. Dalrymple that Council authorize that $135,000 in additional funds for litigation expenses as discussed in executive session, to be included in the next supplemental budget. Couns. Arnold, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously (4:0)


There being no further business to come before the Council at this time, the meeting was adjourned at 8:07 p.m.

Catherine Jansen, Deputy City Recorder




Approved this 16th day of October, 2006.

Rob Drake, Mayor