FAIRFIELD — The town is headed to court to try to get a federal district court judge to rule in its favor in a dispute over hundreds of thousands of dollars in back fees it says it is owed by Time Warner Cable Company.
Fairfield sued Time Warner in October 2014, saying the cable company owed the town for franchise fees — a bill the company pays to use a city or town’s infrastructure — going back almost a decade. The case is scheduled to be heard Wedneday in U.S. District Court in Portland.
Fairfield is arguing that town councilors voted in 2005 to increase the franchise fee from 3 percent of basic cable revenues to 5 percent of gross revenues, which include things like pay-per-view channels, but the company had never paid those extra fees, paying only 5 percent of the basic cable revenue it collected.
In a motion for summary judgment filed in August, Fairfield said the company had breached the terms of its contract with the town and asked it to make Time Warner pay it $353,000 in unpaid fees.
Time Warner filed its own summary judgment motion, saying that Fairfield misunderstood the contract language and the company had paid what it owed.
A court may grant summary judgment in cases where the facts are not disputed.
In a recommended decision in the case filed in December, magistrate judge John Nivison denied Fairfield’s motion and most of Time Warner’s motion.
Bill Lee, Fairfield’s attorney, said Friday that the recommended decision was partially in the town’s favor, because it denied Time Warner’s claim that the town’s complaint should be dismissed because it fell outside of the six-year statute of limitations.
Nivison also ruled against Time Warner’s argument that the Town Council was required to enact a new ordinance to change the fees, ruling that it was authorized to vote to increase them in the town’s existing ordinance.
The parties have an opportunity to dispute the recommended decision. While Time Warner has decided not to dispute the ruling, Lee said he is going to try to get several other points dismissed through summary judgment.
Contacted Friday, Time Warner spokeswoman Nathalie Burgos declined to comment on the case.
Lee said he intends to challenge Nivison’s ruling that it is not clear whether the franchise fee contract meant 5 percent of gross revenues for all services or 5 percent of gross revenues for basic cable services.
Lee plans to argue that the contract unambiguously states that the contract is for 5 percent of all revenue, but even if there was a question, the fault for that confusion would lie with Time Warner, because it wrote the contract.
Lee said his other argument will be against the ruling that the decision the Fairfield Town Council took in 2005 is in question.
Lee said an audio recording of the meeting clearly indicates the council voting to increase the fee to 5 percent on all gross revenues, but the minutes of the meeting only show that the council voted to increase the fees to 5 percent.
While the recommended decision sees that as unclear, Lee said that the recording clearly shows the council’s intention, and the minutes don’t contradict what the recording says, but are only a summary of the meeting.
“If you look at the minutes, you can’t tell for sure. What we are arguing is that the minutes are ambiguous, but you have to go to the recording itself and the recording is clear,” Lee said.
“I think there is a reasonable argument that there is no factual dispute in this issue,” he said.
Even if he is successful in getting a summary judgment on those points, Lee said he feels the case will still be headed to a trial because Time Warner will make an argument that the town should not have accepted the franchise fees at all if it believed the company was violating the contract.
Peter McGuire — 861-9239
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