In pursuit of power it is obvious that the RMA board is using its legal shield to ignore the member wishes yet again.  Is this the same legal dream team that gave them the advice on exclusive use?  If this board continues this route into the future then the cable proxy effort will be the least of their worries.  The time is rapidly approaching for the directors responsible for the autocratic rule to be recalled.

The Board, or some of them, don't want to do something, so they go to counsel and request an opinion saying black is white.

The members can read the MBA for themselves at http://www.ranchomurieta.com/localnews/mba2story051503.html

Nowhere does it state that RMA member participation in the cable TV offering cannot be voluntary, and the price set at the price paid by the voluntary participants.

It says RMA will provide basic cable to the New North at the costof delivering it to RMA members. Period. Read section 5.02 of the MBA for yourselves at the above link. It says

"In accordance with Sections 7 and 8 of the Cable Television Agreement, Rancho Murieta Association agrees to provide Basic Cable Service throughout the boundaries of Rancho North Property at the same rate charged to subscribers within Rancho Murieta Property."

The assertion that the Cable Agreement or MBA requires RMA to force its own members to subscribe is another mythological bluff. You and I are no more required by those agreements to subscribe than are the residents of the Village, who opted out years ago.

I call upon the Board to release counsel's opinion so that the reasoning therein may be examined rather than paraphrased for Chicken Little political purposes. Now that they have publicly disclosed what they say is the guts of it there is no plausible confidentiality to protect.

The opinion is being prepared for posting here ASAP. It will be mailed to all members as well.

It is time to stop hiding behind legal opinions that are sought for the express purpose of supporting the opinions of the BOD.  Why not listen to the will of the people who pay the dues?  The people have spoken clearly that they do not want to be forced to pay for a cable business that does not meet their needs.

What I don't understand is why a majority of the Board is so determined to force this system on us.  Is it because of the obscene amount of money they have already spent on this antiquated system?  If so, it is time to cut our losses before we pour any more money into a business that is certainly going to fail.

If the cable system is as good as the GM says it is, then make it optional and people will support it.  I can hardly wait to pay $108 a month for Rancho Murieta cable.

Dick Cox The RMA  Board is in the process of releasing the legal opinion in its complete form to the Committee for Free Choice.  I personally was surprised at this opinion and believe we should immediatgely open talks with the PTF and North Properties.  I also think there are four votes on the current board that would like to get out of the TV business and this board is looking for ways to do so.  Those of you who think there is some great plot to evade this issue are totally out in left field and not living in the real world.

Renegotiation of the MBA provision re: cable has always been the answer. Many times it has been said that the developers would be delighted to agree to substitute RMA's "Plan B" successor, whoever that ends up being, as the provider. You're absolutely correct, Dick, that it's time somebody actually picked up the phone and verified that. As you know, the proponents of Freedom of Choice have always been supportive of the Board's effort to find a "Plan B" and have urged contacting the New North folks as part of that process.

But the effort to amend the Bylaws will continue full speed ahead, because it is not good for anybody to delay the outcome of that election any closer to the budget preparation cycle than necessary.

Once the Bylaws are amended, if the Board has by then persuaded the membership that there really is a solid legal reason why RMA cannot obey its own Bylaws that bridge can be crossed at that time. We have until the end of the year to come to a consensus on that, because the amendment won't be effective until January.

But we do not have months to waste on the question of what the members want, which needs to be resolved this summer to afford the Board and staff planning time for the adaptation by year's end. We will move forward on that, while listening with open ears to any and all explanations of why the will of the membership supposedly cannot be implemented.

RMA's 12-page legal opinion has been scanned and posted.

There is a lot of smoke there, so it will need to be wafted away a little bit at a time.

Let's start with the section titled "Basic Cable Charge is Mandatory," since that is ALL that the Freedom of Choice amendment will change. It does not mandate getting out of the business, does not mandate Plan B, just mandates migration to a voluntary subscription revenue model.

Counsel asserts that under the CC&Rs the "cable system" - that is, the physical asset - is "a Common Area Facility, and as such, the costs of management, maintenance and administration must be included in the Regular Assessment that is imposed on all RMA Members."

Hmm. So, they then apparently leap to suggest, all costs of maintaining and operating that system and stuffing it full of expensive services must be included in the Regular Assessment and that is why none of those costs can be recouped instead by voluntary user fees.

Let's skip for a moment the legalese reasons why that assertion is itself baloney under what the CC&Rs actually say. Let's go straight to what we all already see and know which demonstrates it's not true.

How is it, then, that it is legal for RMA to charge user fees for broadband and HBO.? What makes the Golf Channel or Comcast Sports different from Cinemax? The CC&Rs certainly draw no such distinction.  As counsel notes, the CC&Rs don't themselves mandate the provision of any TV services whatsoever.

Guess what. The CC&Rs do not say that ALL costs of using any asset are necessarily universal and must be recouped exclusively via Regular Assessment. They just say that we're all on the hook (if need be) for the maintenance costs of all those assets via Regular Assessment. RMA is not precluded from offering services a la carte. They are not precluded from charging user fees to supplement Regular Assessment revenue.  And they do it all the time.

That's why RMA can and does charge to reserve the Amphitheatre for a private event, why they can and do charge for firewood

Why they can and do charge for HBO.

And why they can charge a user fee for basic cable.

One myth down, several to go, but I've got work to do. Back tomorrow.

P.S. I think we're all on pretty much the same page re: getting the developers into the loop on what can be done with Plan B.

HOW MUCH OF OUR DUES DOES THE BOD SPEND A YEAR ON LEGAL OPINION'S TO STOP THE WISHES OF THE MEMBERS ?

After reading through the comments and the legal opinion, as a non-lawyer, i find myself asking "what constitutes basic cable service?"   Taking it on face value that the CC&R's have no requirement for a TV service, but the MBA does impose such a requirement.  Presumable, RMA could maintain the cable infrastucture and broadcast channel 5 (and maybe rebroadcast the OTA channels), and we would meet the minimum definition of providing a basic cable service,   The remaining channels that are currently on offer, could then be a offered as a premium service - operated as a non-profit.  While the regular members are still on the hook for the basic cable infrastucture, we wouldn't be liable for the costs involved in purchasing the various channels.

Of course, part of the infrastucture costs should be carried as a premium charge for the users of RMA internet services, but that's a whole other discussion 

 We need to reject this Legal Opinion and fire the law firm that wrote it.  RMA is a Mutual Benefit Corporation.  RMA can’t own common area assets outside of its boundaries or own and operate a business outside of its boundaries.  The Cable Television is a “System” and you can’t subdivide the assets to call some of it RMA Common Facilities and the rest of the assets something else. RMA operates the Cable Television Service in accordance with the signed agreement filed with the County.  Any association within the RMCSD Serving Area is entitled to service and can request that a new non-profit corporation be established to run the Cable Television Service independent of RMA.  RMA should NEVER have been allowed to take this business on in the 1st place and needs to get out of it now. Here is what the 2nd Restated CCR’s say about Common Areas and Facilities.  Please pay attention to the italicized sections, which do not support the Legal Opinion.   

Recitals E 

Finally, the subdividers of Rancho Murieta intended that the "Common Areas" and"Common Facilities" included within the development be owned and maintained by the Rancho Murieta Association, but reserved exclusively for the use and enjoyment of the development's property Owners, their tenants, lessees, guests and invitees, all subject to the terms and conditions of the Governing Documents.
 
 
Article 1 DefinitionsSection 6. "Association Common Area" means all real property owned by the Association forthe common use and enjoyment of all resident Members, their guests and invitees, and the lessees of nonresident Members.Section 7. "Association Common Facilities" means the streets, street lighting, recreationplayground, lakes and park areas, plantings, lawns, shrubs, landscaping, fences, utilities, berms, pipes, lines, lighting fixtures, buildings, structures and other facilities constructed or installed, or to be constructed or installed, or currently located on the Association Common Areas and owned by the Association. Without limiting the foregoing, the Common Areas include the following:(a) A water supply reservoir known as Calero Reservoir which contains 150 surface acres ofwater and is located within Parcel 1 as shown on the Subdivision Maps for Rancho Murieta.(b) Chesbro Lake and Reservoir located within Parcel 4, as shown on the Subdivision Maps,which parcel contains approximately 69 acres. The surface of this lake is approximately 46 acres and is intended primarily for storage of domestic water, but is also available for small boating and similar water recreational uses. {0186/0235/TLT/656962.DOC;}(c) Clementia Lake and Reservoir located within Parcel 5, as shown on the SubdivisionMaps, is designed to contain approximately 900 acre feet of water in an area of approximately 70 acres.  This lake is available for small boating and other similar water recreation usages.(d) Laguna Joaquin located within Unit No. 1, as shown on the Subdivision Maps, andcontaining approximately 22 surface acres. This lake is usable for aesthetic and recreational purposes.(e) Bass Lake, located within approximately 15 acres of Parcel 5, as shown on theSubdivision Maps, is used primarily for water storage.(f) Appropriate roads, streets and access ways to and from the Common Areas and Lots within Rancho Murieta. 

The lawyers are generally right as to their conclusion.   However, some of the criticism of their opinion is also correct.  Even if FOC were to prevail and RMA Cable were to be made more voluntary than it already is, there could be only a token reduction in dues (and that may properly go to all members).   This is because the CC&Rs provide for RMA Cable, and it is a "common facility", and per the CC&Rs  dues of all members are properly used to maintain common facilities.   Furthermore, I am fairly sure the CC&Rs can't be changed by amending the by-laws. 

Where the lawyers are wrong and their critics correct is in their heavy reliance on the MBA.   The MBA might be a ground upon which to perpetuate the system, though I suspect the third parties might consent to a substitution.  However, I saw nothing in a quick read of the MBA (kidding) to require that RMA Cable be mandatory or not. 

The obligation to "maintain," if there is one, is not an obligation to operate, to buy expensive programming, to even put electricity into those wires. It is at most an obligation to not let the hard assets - some wires and some fancy electronic boxes - deteriorate. It refers not to businesses, but to just maintaining the hard assets, and the BOD has absolute discretion to determine how low a level of maintenance is required by the CC&Rs. Just look around at some of the unlandscaped common area, which is covered by that very same sentence requiring them to "maintain" it.

That "maintenance" obligation, when you take out the costs of operating a cable venture to which that CC&R provision does not refer, is some fraction of a percentage point of the cable budget. FOC deliberately does not interfere with their use of reserves to replace aged and failing components, as a nod to that obligation.

The other twenty nine bucks and change coming out of your pocket is an entirely discretionary expenditure which is not "maintenance" mandated by the CC&Rs The entirety of that twenty nine bucks and change is up for grabs as a dues reduction or some portion of it repurposed to some other community goal if that's what the members want

All the CC&Rs "provide for cable" is an exemption from the general prohibition on TV antennas applicable (until fed regulations overrode it) to the rest of us: "Nothing herein shall prohibit the Association from owning, operating and/or aintaining a community television antenna or cable system within Rancho Murieta, either directly or hrough the ownership of stock or other equity interest in an entity formed to own and operate the system."

That's it. RMA's counsel admit that the CC&Rs do not require RMA to be in the cable TV business.  Nor, obviously,  does that sentence mandate that RMA members pay RMA for cable.

You're right, the Bylaws can't amend the CC&Rs, but there's nothing in the C&Rs which prohibits what FOC would do. Neither can the MBA amend away the members' power under the Bylaws and the statutes to amend the Bylaws and thus limit the discretion of the Board to take specified actions without member approval.

Nor does the MBA purport to dictate how RMA will charge its own members, notwithstanding counsel's voodoo claim that it does. You're right, there is nothing in the MBA which contractually commits RMA to continue to make cable mandatory. It merely has a pricing mechanism for the service to the New North which makes that assumption in the math. Not an agreement that we will continue for eternity to make it mandatory upon our own members. Just a formula for calculating their payment obligation which uses that as a benchmark.

The MBA also includes the explicit provision I have quoted which says the price shall be the price charged to other subscribers within the service area. Since RMA will no longer be including cable charges in the regular dues, that portion of the pricing formula which tinkers with additions and subtractions to the RMA dues in figuring New North's "in lieu of dues" contribution simply needs to be rewritten around that concept to match the way RMA will be doing cable subscription long before those folks are pouring concrete.

Since RMA no longer provides the 2001 basic cable package which is by definition the product they are to buy under the MBA, the whole thing needed to be, and inevitably would be, rejiggered within the next six years anyway.

Al,

How can RMA maintain common facilities in the FAA Building, the Businesses in the Plaza, RMCSD property and the PTF property? You have got to be blind on this issue not to understand that the Cable Television System was NEVER meant to be RMA's property!!!!!!!!!

Wake up and smell the napalm.  I have never lived anywhere where so many people ignore reality and make stuff up.  I don't think we have a drug problem with the kids in RMA, I think it is with the adults.