Municipal Code
CHAPTER 820 Cable Communications
820.01 Title.
820.02 Franchise required.
820.03 Definitions.
820.04 Selection of franchisee.
820.05 Franchise territory.
820.06 Length, renewal and transfer of franchise.
820.07 System design and specifications.
820.08 Franchise fee and rates.
820.09 Administration and regulation.
820.10 Cablecasting Board.
820.11 Consumer protection.
CROSS REFERENCES
Construction and maintenance of facilities - see
M.C.L.A. 247.183 et seq.
Television and radio generally - see M.C.L.A. 484.301 et
seq., 750.507
et seq.
Cables improperly located; insurance - see M.C.L.A.
500.3123
General Municipal authority re licensing - see CHTR. Ch.
II, §2(8), (9)
Franchises generally - see CHTR. Ch. XII
Wireless telecommunication facilities - see P. & Z. Ch.
1265
820.01 TITLE.
This chapter shall be known and may be cited as "The
Cable Communications Ordinance for the Village of
Franklin."
(Ord. 2000-59. Passed 7-10-00.)
820.02 FRANCHISE REQUIRED.
No person shall occupy or use the streets, sidewalks or
other public right-of-way of the Village for the purpose
of operating a cable communications system, nor operate
such a system, without a cable communications franchise.
(Ord. 2000-59. Passed 7-10-00.)
820.03 DEFINITIONS.
The following words, terms and phrases, when used in
this chapter, shall have the meanings ascribed to them
in this section, except where the context clearly
indicates a different meaning:
Access channel means any channel dedicated for use by a
governmental institution, educational institution or the
public.
Access channel, educational, means any channel or
portion of a channel in which educational institutions
are the only designated programmers.
Access channel, government, means any channel or portion
of a channel to which governmental agencies are the only
designated programmers.
Access channel, leased, means any channel or portion of
a channel made available for a fee by an operator for
programming by persons other than the franchisee.
Access channel, public, means any channel or portion of
a channel utilized for programming on a nonprofit basis
with no commercial purpose that is available to the
general public.
Activated or ability to activate means a function,
service, channel or piece of equipment that is in
working order and may be operated or received by a
franchisee, subscriber, programmer, operator or user.
Basic service means any service tier which includes the
retransmission of local television broadcast signals.
Broadcast means the over the air transmission of an
electromagnetic audio or video signal.
Cable means either coaxial cable or fiber optic cable.
Cable, A trunk means a downstream distribution system
which supplies cable communications signals to the
feeder line.
Cable channel or channel means a portion of the
electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a
television channel (as television channel is defined by
the FCC by regulation).
Cable communications service or cable service means the
one-way transmission to subscribers of video programming
or other programming service, and subscriber
interaction, if any, which is required for the selection
or use of such video programming or other programming
service.
Cable communications system or cable system means a
facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and
control equipment that is designed to provide cable
service which includes video programming and which is
provided to multiple subscribers within a community, but
such term does not include a facility that serves only
to retransmit the television signals of one or more
television broadcast stations; a facility that serves
subscribers without using any public right-of-way; a
facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the
Communications Act of 1934, as amended, except that such
facility shall be considered a cable system (other than
for purposes of Section 621(c)) to the extent such
facility is used in the transmission of video
programming directly to subscribers, unless the extent
of such use is solely to provide interactive on demand
services; an open video system that complies with
Section 653 of the Communications Act of 1934, as
amended; or any facilities of any electric utility used
solely for operating its electric utility systems.
Cablecast means transmission of programming and signals
over a cable communications system.
Cablecasting Board means the agency of the City of
Birmingham, Village of Beverly Hills, Village of
Franklin and Village of Bingham Farms whose duties may
include the monitoring and reporting of and on the cable
communications system.
Capability means a function, service, channel or piece
of equipment that has the potential to be operated or
received at some time in the future by a subscriber,
programmer, franchisee, user or operator.
Coaxial cable means copper or aluminum wire used to
transmit cable communications signals through the cable
system.
Community service agencies means the Birmingham
Bloomfield Art Association, Common Ground, the
Birmingham Community House and the Birmingham Center for
Continuing Education.
Complete wiring means the time when cable and related
equipment, facilities, and appurtenances are installed
throughout the Village so that service may be provided
to any person that may choose to become a subscriber.
Completion of construction means the time when all
services offered in the application and franchise
agreement shall be accomplished, including, but not
limited to, stringing of cable throughout the community
so that any subscriber may immediately receive cable
communications signal upon installation, construction of
all access facilities and required networks and are
fully operational.
Converter or set top convertor means an electronic
device which converts signals to a frequency for use by
the television receiver of the subscriber, and by an
appropriate channel selector which also permits a
subscriber to view all signals including the cable
service delivered at designated cable channel locations.
Downstream means cable communications signals that
travel on a cable from the headend equipment or other
location to the individual subscribers.
Drop means a line or cable linking the feeder line to an
individual subscriber.
Effective date of the franchise means the date on which
the parties have signed the franchise agreement or as
otherwise specified in the franchise agreement.
FCC means the Federal Communications Commission.
Feeder line means the line or cable linking a main cable
trunk line to a drop serving an individual subscriber.
Fiber optic cable means high capacity cable made of
glass or plastic threads through which information is
transmitted as pulsating light.
Franchise means the authorization granted by the Village
to construct, operate, maintain, rebuild, and/or
retrofit a cable communications system in the Village.
Gross revenues means all revenue derived directly or
indirectly by the franchisee, its affiliates,
subsidiaries, parent companies and/or any person in
which the franchisee has a financial interest, from or
in connection with the operation of a cable
communications franchise authorized by the Village.
Gross revenues shall include, but not be limited to,
basic subscriber monthly fees, pay cable fees,
installation and reconnection fees, converter fees and
leased access fees. Gross revenues shall not include
advertising revenues, home shopping revenue and any
taxes on services furnished by the franchisee and
imposed directly upon any subscriber or user, by the
State, Village or other governmental unit and collected
by the franchisee on behalf of such governmental unit.
Headend means the electronic control center of the cable
communications system where, among other things,
incoming cable communications signals are amplified,
filtered and converted before being delivered to the
subscriber home.
Initial groundbreaking means the first step in
construction: either stringing of cable or installation
of a pole.
Institutional subscriber means any public agency or
institution, educational institution, community service
agency or school receiving institutional services on the
institutional subscriber network.
Institutional subscriber network means a cable
communications network designed principally for the
provision of nonentertainment interactive services to
schools or public agencies for use in connection with
the ongoing operations of such institutions.
Interactive services means services provided to
subscribers by which the subscriber either receives
information consisting of television or other signals
and transmits signals generated by the subscriber or
equipment under its control for the purpose of selecting
what information shall be transmitted to the subscriber
or for any other purpose; or transmits signals to any
other location for any purpose.
Interconnection means the linking of separate cable
communications systems by microwave, cable or other
means.
Local origination channel means any channel or portion
of a channel on which the franchisee is either the only
designated programmer or has received programming from a
third party, and which is utilized to provide television
programs to subscribers.
Microwave means a high frequency transmission facility
used to relay messages, including cable communications
signals from point to point, by common carrier.
Monitoring means observing a communications signal or
the absence of a signal, where the observer is neither
the subscriber nor the programmer, whether the signal is
observed by visual or electronic means. Monitoring shall
not include a systematic, nonindividually addressed
sweep of the system for the purpose of verifying system
integrity, controlling return pass transmissions, or
billing for cable services.
Operator means the franchisee.
Parent corporation or parent company means any
corporation of which the franchisee is a subsidiary.
Pay channel or premium channel means a channel in which
television channels are delivered to subscribers for a
special fee or charge to subscribers over and above the
regular charges for basic subscriber services, on a per
program, per channel, or other subscription basis.
Pay television means the delivery over the cable
communications system of video and audio signals in
intelligible form to subscribers for a fee or charge
over and above the charge for basic or full services, on
a per program, per channel, or other subscription basis.
Person means an individual, firm, organization,
partnership, association, corporation, legal
representative, or other entity.
Pole agreements means the authorization from utility
companies to the franchisee for use of or space in their
easements, equipment, poles or other facilities for
installation of equipment related to the cable
communications system.
Programmer means any person who produces or otherwise
lawfully provides program material or information for
transmission by means of the cable communications
system.
Proposal means an application filed with the Village
Administrator either in response to the Village's
request for proposal, or any additions or amendments
thereto, or submitted without such request.
Records means any writing or other memorialization
containing information relating to the system,
regardless of form or characteristics.
Related persons means any agent or employee of an
applicant or its parent corporation; any person to whom
an applicant or its parent corporation has paid or has
promised to pay any money or compensation of any kind
whatsoever for that person's services in promoting the
applicant's proposal for the cable communications
franchise before the Village, its employees, agents,
servants and/or elected or appointed officials or any
community service agencies or newspaper reporters in the
Detroit Dominant Market Area; officers and directors of
any applicant or its parent corporation; persons owning
one percent or more of any class of outstanding stock or
securities convertible into stock of an applicant or its
parent corporation; partners of an applicant; and the
spouse, parent, child or sibling of any such person
described in the foregoing definitions.
Residential services means services delivered on the
residential subscriber network.
School district means the school district of the
Village.
Service means all services delivered on the
institutional or residential subscriber network.
Standard service drop means the installation of the
feeder cable to individual subscribers.
Strand mapping means the designation on maps of where
cables will be placed.
Street means the surface of and the space above and
below a public street, road, highway, freeway, path,
public place, sidewalk, alley, boulevard, parkway, drive
or other easement held by the Village and shall include
other easements or right-of-way which shall be held by
the Village and which shall, within their proper use,
allow the Village and a franchisee to the use thereof
for the purposes of installing or transmitting cable
communications system transmissions over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments and other property
as may be ordinarily pertinent to a cable communications
system.
Subscriber means a recipient of services which are
delivered over the cable communications system.
Tamper or tapping means observing a communication signal
exchange when the observer is neither of the
communicating parties, whether the exchange is observed
by visual or electronic means, but shall not include
monitoring.
Television broadcast signals means signals receivable in
the Detroit Dominant Market Area, including, but not
limited to, those on channels 2, 4, 7, 9, 20, 38, 50,
56, 62.
Upstream means cable communications signals traveling
from subscribers to the headend.
User means a person utilizing a cable communications
system channel for purposes of production and
transmission of materials to subscribers.
Village means the Village of Franklin.
(Ord. 2000-59. Passed 7-10-00.)
820.04 SELECTION OF FRANCHISEE.
(a) Request for Proposal. In selecting a franchisee
pursuant to this chapter, the Village Council may
prepare a request for proposal to seek bids for a cable
communication system to be established under franchise
by the Village Council. This request for proposal may
contain detailed information and instructions relating
to the preparation and filing of proposals, construction
and technical standards regarding the installation,
operation and maintenance of a cable communications
system under the Village's franchise, and the criteria
to be used in evaluating applicant proposals.
(b) Application Process.
(1) The Village shall only consider those applications
for a franchise that have been submitted on an
application form approved by the Village Council.
Applications shall only be considered if submitted to
the Village Administrator's office prior to any deadline
authorized by the Village Council and if accompanied by
the application fees set forth in subsection (c) hereof.
(2) Any requests for proposal shall be sent to all
operators that have indicated, in writing, an interest
in obtaining a franchise.
(3) Any notice soliciting the submission of applications
shall be sent to all persons who have previously
indicated, in writing, an interest in obtaining a
franchise and shall be advertised in a local newspaper
of general circulation and at least two national trade
magazines. Applications shall be opened no earlier than
ninety days after the initial publication date of the
newspaper notice.
(4) Distortion, falsehoods or misinformation by an
applicant may be grounds for elimination of the proposal
if the Village should choose.
(5) Any request for proposal shall clearly state that
the Village Council reserves the right to reject any and
all bids. The Village shall have the right to negotiate
with any person that has submitted a qualified
application.
(c) Application Fees.
(1) Applications shall only be considered if accompanied
by a cashier's or certified check in the amount of ten
thousand dollars ($10,000) of which fifty percent of the
application fee shall not be refundable in any case.
(2) If any applicant shall withdraw its application or
cease to be considered after initial screening, fifty
percent of the application fee shall be returned to the
applicant without interest. The entire application fee
of any applicant which remains under consideration after
initial screening shall be nonrefundable.
(3) Revenues from application fees shall be used to
offset the cost of consulting services, if any, and
administration of the franchise selection process. If
the costs of consulting services, if any, and other
administrative expenses shall exceed the amount of the
application fee, then an applicant to whom a cable
communications franchise is awarded shall pay the excess
costs and expenses up to a maximum of thirty thousand
dollars ($30,000).
(d) Criteria for Selection of Franchisee. Applicants for
a cable franchise will be required to furnish
information to be evaluated according to the following
criteria:
(1) Service priorities. System capability in terms of no
cost or low cost telecasting production facilities and
service available to municipal and educational
institutions, community groups and individuals; system
provisions for two way communications; and the maximum
total channels provided by the system.
(2) Installation plan. An installation plan that
addresses the flexibility needed to adjust to new
developments, maintenance practices and services that
would be available to the subscriber and the community
upon initial activation and throughout the duration of
the franchise.
(3) Rate schedule. Applicant's installation and
subscriber rate schedule.
(4) Financial soundness. Evidence of the applicant
regarding the following:
A. Its financial ability to assure completion of
construction as called for in the application and
franchise agreement within eighteen months of the
effective date of the franchise.
B. Its ability to obtain all necessary and required
permits and authorizations from the Federal, State and
local governments.
C. Its ability to sustain and enhance a fiscally sound
system throughout the duration of the franchise.
D. Its ability to obtain the performance bond or letter
of credit specified in Section 820.09(c) should it be
awarded a franchise. Evidence of current financial
capability shall include, but not be limited to, the
most recent three years' audited or reviewed financial
statements of the applicant and of any parent entities,
and a copy of the most recent published annual report
and 10 K report if the applicant is, or is a subsidiary
of, a publicly held company.
(5) Demonstrated experience in operating a cable
communications system under local government franchise.
The extent to which an applicant has experience in
operating a cable communications system under Village or
County franchise.
(6) Educational programming. The extent to which the
system presents and supports a program whereby the
school district and other educational institutions such
as Oakland Community College, Oakland University and
Birmingham Center for Continuing Education may benefit,
utilize and develop educational programs for students
and subscribers; the extent to which the system provides
an activated two-way system and a plan to interconnect
public schools within the school district through a
cable communications network
(7) Technical standards. The extent to which the system
will meet or exceed all of the technical standards and
specifications set forth in the most current FCC
Technical Standards Order.
(8) Pay cable services. The extent to which the system
offers at least alternate levels of pay cable services,
for the purpose of providing a pay cable channel that
would offer full service pay cable programming and a
distinct pay cable channel that would offer a minipay
package designed and marketed for general audience and
family viewing.
(9) Interconnection plan. The extent to which the system
includes a firm timetable for active interconnection
with other political subdivisions in the Detroit
Dominant Market Area.
(10) Innovative technology. The extent to which the
system offers system technology sufficiently flexible
and progressive to adapt to new services, including:
home security, energy management, meter reading, home
computer for entertainment, educational, business or
personal purposes, two way computer data transmission,
internet access, and traffic signalization.
(e) Disclosure Requirements.
(1) Any applicant for a franchise shall file with its
application a sworn statement setting forth in such
detail as shall be satisfactory to the Village the
identification and description of all relationships
which such applicants (or any related parties) may then
have, or may have had during the year prior to the date
of filing of such application, directly or indirectly,
with the Village, its employees, agents, servants and/or
elected or appointed officials, including, but not
limited to, the following:
A. Written or oral arrangements or undertakings of any
nature whatsoever, including as vendor, vendee, or the
provider of services, credit, or counsel or otherwise;
B. All lending relationships, whether as borrower or
lender;
C. All investing relationships, as stockholder, partner,
joint venturer, coadventurer or otherwise, or as the
entity, vehicle or recipient of such investment;
D. All relationships entailing the granting or holding
of security in any property, tangible or intangible,
real or personal;
E. All relationships in which any valuable consideration
shall have been required, offered, received, paid or
extended, whether in cash, in kind or in services, and
whether contemporaneous or deferred in whole or in part;
and
F. All relationships involving the assertion of any
claim of any nature whatsoever, including administrative
proceedings or litigation.
(2) Each applicant shall affirmatively undertake to
advise the Village during the pendency of the
application, and prior to its rejection or acceptance,
of any additional such relationships which shall come
into being, and of the termination or other material
change in any such relationships as shall have been
required to be disclosed prior thereto. Each franchisee
shall also affirmatively undertake to so advise the
Village on a continuing basis, and shall recertify the
existence or nonexistence of all such relationships
(other than as a franchisee pursuant to this chapter) on
each annual anniversary of the franchise agreement under
which such franchisee shall derive rights pursuant to
this chapter.
(f) Award of Franchise. The Village Council shall award
a franchise to an applicant only after a public hearing
on the application and proposal, notice of which hearing
shall be published in a local newspaper of general
circulation at least twenty days before the date of the
hearing. Except as otherwise provided in Section
820.06(b), all contracts granting or giving any original
franchise, or extending or amending any existing
franchise, shall be made by ordinance, which ordinance
shall be thereafter published in the manner prescribed
by law.
(g) Franchise Agreement.
(1) An applicant awarded a franchise by ordinance shall
execute a franchise agreement, agreeing to the terms and
provisions of this chapter. Failure of a selected
applicant to execute such an agreement, within thirty
days from the Village Council's demand therefor, or to
meet any deadlines outlined in the franchise agreement
and this chapter for completion of strand mapping, pole
agreements, initial ground breaking and all wiring
phases, shall be grounds for immediate rescission of the
authorizing ordinance, revocation of any rights the
applicant may have in the franchise and forfeiture of
the applicant's security fund. The franchisee shall,
within thirty days after the execution of the franchise
agreement, apply for all necessary permits and
authorizations for the construction of the cable
communications system.
(2) In addition to those matters required elsewhere in
this chapter to be included in the franchise agreement,
the franchise agreement shall contain the following
express representations of the franchisee that:
A. It accepts and agrees to all the enforceable
provisions of this chapter and any enforceable
supplementary specifications, as to construction,
technical standards, operation, maintenance and rate
structures, which the Village Council may include in the
franchise agreement.
B. It recognizes the right of the Village Council to
make lawful amendments to the franchise ordinance during
the term of the franchise upon thirty days' notice to
the franchisee. If an emergency amendment becomes
necessary, the Village Council shall not be required to
direct the amendment to the cablecasting board for
review, but the franchisee shall be given at least two
hours' notice, orally or in writing, of the Village
Council meeting at which the emergency amendment is to
be considered. It further recognizes and agrees that the
Village Council shall not be bound to renew the
franchise at the end of any franchise term, except as
otherwise provided by law.
C. It recognizes and agrees that it may be considered as
a franchisee for the purposes of this chapter.
D. It recognizes and agrees that no franchise shall be
exclusive.
(3) The franchise agreement may set forth the specific
standards which the franchisee must maintain in respect
to signal quality requirements and technical standards
of construction, operation and maintenance of the
system.
(4) The franchise agreement shall contain such further
conditions or provisions as may be negotiated between
the Village and the franchisee, except that no such
conditions or provisions shall be such as to conflict
with any provisions of this chapter or any other law. In
the case of such conflict or ambiguity between any terms
or provisions of the franchise agreement and this
chapter, the words of this chapter shall be deemed to
control.
(Ord. 2000-59. Passed 7-10-00.)
820.05 FRANCHISE TERRITORY.
(a) Service Area. The franchise territory shall include
the entire territorial limits of the Village, and shall
include any future area that shall become part of the
Village, during the term of the franchise, by
annexation, consolidation, merger, realignment,
subdivision development or other means. Any portion of
the Village which, during the term of the franchise, is
annexed from the Village or which by consolidation,
merger, realignment, subdivision development, or other
means, shall cease to be within the territorial limits
of the Village shall cease to be included in the
franchise territory.
(b) Initial Geographic Coverage. Cable communications
service must be available for installation to all
residents within the Village within fifteen months of
the effective date of the franchise. Service in newly
acquired territory, as defined in subsection (a) hereof,
must be available to residents within twelve months of
annexation of the territory to the Village. (Ord.
2000-59. Passed 7-10-00.)
820.06 LENGTH, RENEWAL AND TRANSFER OF FRANCHISE.
(a) Nonexclusively of Franchise. The Village Council may
award a nonexclusive franchise to construct, erect,
operate and maintain in, upon, along, above, over and
under the streets, alleys, public ways and public
places, now laid out or dedicated and all extensions
thereof, and additions thereto, in the franchise
territory, poles, wires, cables, conductors, ducts,
underground conduits, vaults, manholes, amplifiers,
appliances, attachments and other property and fixtures
necessary for the operation and maintenance of a cable
communications system, and to furnish and to sell
service from such system to the inhabitants of the
entire franchise territory pursuant to the terms of this
chapter. The Village Council specifically reserves the
right to grant a similar franchise to any person at any
time.
(b) Length of Franchise. The term of a franchise and all
rights, privileges, obligations and restrictions
pertaining thereto shall not be more than fifteen years
from the effective date of the franchise, as
specifically set forth in the franchise agreement. The
franchise may be terminated sooner pursuant to the
provisions of this chapter, or the franchise agreement.
The Village shall have the option to extend the
franchise for an additional five-year period. The
decision to extend the franchise under this section
shall be made by resolution of the Village Council at
least six months prior to the expiration of the initial
franchise term, and after a public hearing. Notice of
the public hearing shall be given in accordance with the
provisions of Section 820.09(o). A copy of the Village
Council resolution setting forth its decision shall be
mailed to the franchisee no more than five days after
its passage.
(c) Conditions for Initial Franchise Validation.
(1) Within thirty days after the effective date of the
franchise, the franchisee shall apply for all necessary
permits and authorizations which are required in the
conduct of its business, including, but not limited to,
any utility joint use attachment agreements, microwave
carrier licenses, and any other permits, licenses and
authorizations to be granted by duly constituted
regulatory agencies having jurisdiction over the
operation of cable communications systems or their
associated microwave transmission facilities. The
franchisee shall apply for all necessary and required
permits and file all necessary and required statements
with the FCC within thirty days after the effective date
of the franchise.
(2) The franchisee shall complete strand mapping and
shall commence initial ground breaking within sixty days
after the effective date of the franchise.
(3) The franchisee shall complete pole agreements and
shall begin preparing the poles within ninety days after
the effective date of the franchise subject to the
cooperation of the utility companies involved. All poles
shall be ready within 180 days after the effective date
of the franchise subject to the cooperation of the
utility companies involved. The franchisee shall notify
the Village of any failure on the part of the utility
company to so cooperate under this subsection.
(4) Within 120 days after the commencement of
construction, activation and installation of the system,
the franchisee shall proceed to render cablecast service
to subscribers, and the completion of the construction,
activation and installation shall be pursued with
reasonable diligence thereafter. Service shall be
provided to not less than one third of the franchise
territory, and the subscribers located therein, within
six months from the effective date of the franchise, and
service shall be provided to not less than two thirds of
the franchise territory, and the subscribers located
therein, within twelve months from the effective date of
the franchise. Additional time for completing the
installation of service may be granted by the Village
Council during the twelve months upon a proper showing
of need, but in no event shall the elapsed time for
completing such installation exceed fifteen months.
(5) Within twelve months from the effective date of the
franchise or within the times otherwise set forth in the
franchise agreement, the franchisee shall provide all
equipment and all personnel required by this chapter and
the franchise agreement.
(6) Any required institutional network shall be
activated and fully operational in all local government
buildings, libraries and community service agencies
specified in the franchise agreement within twelve
months of the effective date of the franchise. The
institutional network shall be activated and fully
operational in all public schools in the school district
located within the franchise territory within eighteen
months of the effective date of the franchise unless a
shorter time period is specified in the franchise
agreement.
(7) Failure on the part of the franchisee to commence
and diligently pursue each of the foregoing requirements
and to complete each of the matters set forth in this
chapter shall be grounds for immediate rescission of the
authorizing ordinance, revocation of any rights the
franchisee may have in the franchise and forfeiture of
the franchisee's security fund, performance bonds,
and/or letter of credit; provided, however, that the
Village Council, upon formal application of the
franchisee, in its discretion may extend the time for
the commencement and completion of construction,
activation and installation for additional periods if
the franchisee, acting in good faith, experiences delays
by reason of circumstances beyond its control.
(d) Transfer of Ownership or Control.
(1) A franchise shall not be assigned or transferred,
either in whole or in part, or leased, or sublet 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 without the prior written
consent of the Village. The proposed assignee must show
its qualifications and its financial responsibility as
determined by the Village Council and must agree to
comply with all provisions of the franchise. A franchise
shall not be mortgaged, either in whole or in part,
without an agreement by the mortgagee to be subordinate
to the franchisor's right to receive franchise fees from
the franchisee, and without the prior written consent of
the Village. The Village shall be deemed to have
consented to a proposed transfer, assignment, or
mortgage if its refusal to consent is not communicated
in writing to the franchisee within 120 days following
receipt of written notice of a proposed transfer,
assignment, or mortgage, accompanied by all information
required by law, including this chapter and the
franchise agreement. Consent by the Village Council
shall not be unreasonably withheld.
(2) A franchisee shall promptly notify the Village of
any proposed change in, or transfer of, or disposition
of or acquisition by any other party of, control of the
franchisee. The word "control" as used in this
subsection is not limited to major stockholders but
includes actual working control in whatever manner
exercised. Every change in, transfer of, or acquisition
of control of the franchisee shall make the franchise
subject to revocation unless and until the Village shall
have consented thereto, which consent shall not be
unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer,
disposition, or acquisition of control, the Village
Council may inquire into the qualifications of the
prospective controlling party, and the franchisee shall
assist the Village Council in such inquiry.
(3) The consent or approval of the Village Council to
any transfer of a franchise shall not constitute a
waiver or release of the right of the Village in and to
the streets, and any transfer shall by its terms, be
expressly subordinate to the terms and conditions of the
franchise.
(4) In the absence of extraordinary circumstances, the
Village Council shall not approve any transfer or
assignment of a franchise prior to completion of
construction of the proposed system or any required
upgrade thereof.
(5) The Village Council reserves the right to review the
purchase price of any transfer or assignment of the
cable communication system.
(6) In no event shall a transfer of ownership be
approved without the transferee becoming a signatory to
the franchise agreement.
(e) Franchise Renewal.
(1) The franchise may be renewed by the Village Council
upon application by the franchisee pursuant to the
procedures established in this section upon the advice
of the cablecasting board.
(2) At least twelve months prior to the expiration of
the franchise, the franchisee shall inform the Village
Council in writing if it intends to seek renewal of the
franchise.
(3) After giving public notice, the Village Council
shall proceed, upon the advice of the cablecasting
board, to determine whether the franchisee has
satisfactorily performed all obligations under the
franchise. To determine satisfactory performance, the
Village Council shall consider technical developments
and performance of the system, programming, other
services offered, costs of services, and any other
particular requirements set out in this chapter and the
franchise agreement. The Village Council shall also
consider the records of the performance evaluation
sessions required hereinafter as well as the
franchisee's annual reports made to the Village as
required by this chapter. The Village Council shall also
be entitled to consider or compare the franchisee's
performance with the performance of other systems of
comparable configuration nationally in arriving at its
decision. The Village Council shall also consider
comments of subscribers to, and users of, the system.
(4) Within four months of receiving notice from the
franchisee of its desire to renew the franchise, the
Village Council shall hold a public hearing.
Subsequently, the Village shall arrive at a decision on
the eligibility of the franchisee for renewal. Notice of
the public hearing shall be given in accordance with the
provisions of Section 820.09(o). Upon the finding by the
Village Council that the franchisee's performance is
satisfactory, and that superior service for subscribers
may not be obtained from other companies or operators, a
renewal with any amendments shall be granted for a
period of not more than fifteen years and not less than
five years, as specifically set forth in the franchise
agreement. All contracts granting any franchise, or
renewing or amending any existing franchise, shall be
made by ordinance, which ordinance shall be thereafter
published in the manner prescribed by law.
(5) Upon a finding that the franchisee's performance is
not satisfactory or that superior service for
subscribers may be obtained from other companies or
operators, the Village Council may deny renewal. A new
franchise may be awarded at any time utilizing the
procedures set forth in this chapter.
(6) If a franchise is denied renewal, the Village
Council may require, at its option, the non renewed
franchisee to temporarily continue service until the
execution of a new franchise agreement.
(7) The provisions of this subsection (e) shall be
applicable only to the extent permitted by the renewal
provisions of higher law.
(f) Franchise Termination. Any franchise granted by the
Village, pursuant to this chapter, shall be revocable at
the will of the Village or for any material violation by
the franchisee of the provisions of this chapter or of
the terms of the franchise agreement. The procedure set
forth in this chapter regarding franchise termination
shall be followed in revoking a franchise.
(g) Termination Procedure.
(1) Upon receipt by the Village Council of a petition
seeking termination of the franchise and signed by five
percent of cable communications system subscriber
households in the Village, or upon receipt by the
Village Council of a written report of the Cablecasting
Board recommending investigation into the possibility of
franchise termination, the Village Council shall, by
resolution, direct the Cablecasting Board to:
A. Investigate all areas of concern in the operation of
the franchise;
B. Hold public hearings to receive the viewpoint of the
franchisee and the general public;
C. Report to the Village Council within a specified
period of time regarding the condition of the franchise;
and
D. Set forth the recommendations of the Cablecasting
Board on termination of the franchise. A copy of the
Village Council resolution, together with a copy of the
petition and/or written reports of the Cablecasting
Board, shall be sent to the franchisee.
(2) At the direction of the Village Council, the
Cablecasting Board shall investigate and collect all
relevant data regarding the operation of the franchise.
The Cablecasting Board shall hold at least one public
hearing to hear the comments and concerns of the general
public and to hear the position of the franchisee.
Written notice of the first such hearing shall be mailed
to the franchisee at least thirty days prior to the
scheduled hearing date. Written notice of any subsequent
public hearings shall be mailed to the franchisee at
least fifteen days in advance. Public notice of each
hearing shall be given in accordance with the provisions
of Section 820.09(o).
(3) Upon completion of its investigation, the
Cablecasting Board shall prepare a written report
outlining the scope of its investigation and the
information received, and setting forth its
recommendations regarding termination of the franchise.
A copy of the report shall be mailed to the franchisee.
The report shall be forwarded to the Village Council
which shall schedule a public hearing to hear and
determine the issue of franchise termination. Written
notice of the public hearing shall be mailed to the
franchisee at least thirty days prior to the scheduled
hearing date. Public notice of the hearing shall be
given in accordance with the provisions of Section
820.09(o).
(4) The Village Council shall hear any interested
person, shall consider the issue, and shall determine in
its discretion whether to continue the franchise, to
continue the franchise for a specified period subject to
conditions, or to terminate the franchise. If the
Village Council decides to terminate the franchise, it
shall issue a written report within fifteen days setting
forth its position and the date upon which the franchise
shall be terminated. If the Village Council decides to
continue the franchise with conditions, it shall issue a
written report within fifteen days setting forth the
specific conditions, establishing an appropriate
timetable for accomplishment and review of the
objectives and establishing any necessary supervisory
board. A copy of the Village Council report shall be
mailed to the franchisee.
(h) Removal of System. At the expiration of the term, or
any extension thereof, for which this franchise is
granted, or upon its termination as provided in this
chapter, a franchisee shall forthwith, at the option of
the Village and upon notice by the Village Council,
remove at its own expense such portions of the cable
communications system owned by the franchisee as
specified by the Village from all streets and public
property within the Village. If a franchisee fails to do
so, the Village may have the work performed at a
franchisee's expense after thirty days' written notice
to a franchisee. A letter of credit or bond, at the
Village's discretion, in the amount of fifty thousand
dollars ($50,000) or in any greater amount specified in
the franchise agreement shall be furnished by a
franchisee for the specific performance of this section,
not less than thirty days after the above notice. Such
letter of credit or bond, in the Village's discretion,
shall be furnished in addition to and concurrently with
the letter of credit or bond required in Section
820.09(c).
(i) Resolution of Disputes.
(1) Any disputes arising under this chapter or the
franchise agreement shall be settled either by
commencement of a suit in County Circuit Court or by
compulsory arbitration, at the option of the Village. If
a franchisee feels aggrieved, it shall advise the
Village of any dispute it has arising out of this
chapter or a franchise agreement and shall demand that
the Village elect whether the dispute is to be resolved
by submitting it to compulsory arbitration or by
commencement of a suit in the County Circuit Court. The
Village shall make its election in writing within 30
days from the receipt of such notice.
(2) If the Village elects to have the dispute resolved
by compulsory arbitration, it shall be settled pursuant
to M.C.L. 600.5001 et seq., M.S.A. 27A.5001 et seq.,
with each of the parties appointing one arbitrator and
the two thus appointed appointing a third.
(3) If the Village fails to make such an election, any
dispute between the parties may be resolved by filing of
a suit in Oakland County Circuit Court. (Ord. 2000-59.
Passed 7-10-00.)
820.07 SYSTEM DESIGN AND SPECIFICATIONS.
(a) Channel Capacity.
(1) A franchisee shall construct, and thereafter operate
and maintain, a cable communications system that shall
initially be capable of delivering the minimum number of
channels specified in the franchise agreement.
Applicants may provide greater channel capacity. A set
top converter shall be provided by a franchisee when
required to enable subscribers to receive programming
services. Any fee charged by a franchisee for a set top
converter shall be in accordance with applicable law. A
franchisee may also require a refundable deposit not to
exceed the franchisee's actual cost of the converter,
but only if the franchisee has required such deposit in
adjacent cable systems. A franchisee shall not be
required to pay interest on the refundable deposit. The
refundable deposit may be required by a franchisee for
each set top converter provided and the responsibility
for normal maintenance of the converter shall be that of
the franchisee and no charges for the repair of the
converter shall be made except in cases of subscriber
misuse. There shall be no charge for removal of the
converter.
(2) When required by Federal law, a franchisee shall
provide, as part of its cable communications system, all
television broadcast signals, as presently available or
as may become available off the air in the Village, and
the maximum number of additional television signals
consistent with the rules and regulations of the FCC and
all other applicable laws, rules or regulations. A
franchisee's system shall be designed, engineered and
maintained so as not to interfere with the television
and radio reception of residents of the Village who are
not subscribers to the system.
(3) A franchisee shall offer all channels and
programming specified in its application and the
franchise agreement. Changes in service may be made only
if authorized by the Village Council and incorporated
into an amended franchise agreement except as otherwise
provided by law.
(b) Lock out Device. A franchisee shall provide, at no
charge to subscribers, a lock out mechanism that
prevents viewing of any pay channel. This mechanism
shall be provided upon request of the subscriber. A
franchisee shall make all subscribers, prior to
installation, aware of the availability of this device.
(c) Services to Educational Institutions. A franchisee
shall provide, at no charge throughout the term of the
franchise, such services, equipment and facilities
devoted to educational use as specified in the franchise
agreement.
(d) Timetable for Establishment of Educational Services.
The educational services, equipment and facilities shall
be furnished by a franchisee within the time periods
specified in the franchise agreement.
(e) Future Educational Facilities. In addition to the
currently existing educational facilities and buildings
benefiting from the provisions of subsection (c) hereof,
the same services shall be provided to all future such
facilities and buildings. Such services may be suspended
to buildings no longer used for public purposes.
(f) Government Access Channels. A franchisee shall
provide, at no charge throughout the term of the
franchise, such services, equipment, and facilities
devoted to Village governmental use as specified in the
franchise agreement. Such services, equipment and
facilities shall be furnished within the time periods
specified in the franchise agreement.
(g) Cost and Maintenance of Equipment.
(1) When required by a franchise agreement, all
maintenance, repair and periodic update/replacement of
the original equipment shall be provided by a franchisee
at no charge to the educational institutions or any
other governmental agency. The level of service provided
shall be sufficient to assure that each unit of
equipment operates satisfactorily at least ninety-five
percent of the elapsed time desired for use during any
ninety day period. Responsibility for maintaining
appropriate operating and failure statistics shall be
that of the institution or agency. A franchisee shall be
notified promptly by the institution or agency whenever
a failure occurs and maintenance or repair service is
required.
(2) When required by a franchise agreement, any major
additional equipment which may be acquired, and which is
clearly not a replacement for originally installed
equipment, may be provided through a franchisee at the
lowest possible cost for comparable equipment with
acceptable quality. Lowest cost shall be evidenced by
competitive bids from at least three suppliers of such
equipment, each of whom have records of previous sales
with acceptable performance. Such equipment shall be
warranted by a franchisee to the educational institution
for a period of not less than one year after
installation of each unit of equipment. During this
warranty period, all maintenance, repair and
replacement, if necessary, shall be provided by a
franchisee at no charge to the institution in order to
provide a minimum ninety-five percent level of service
as described above for the original equipment
requirements.
(h) Public Access Channels.
(1) Throughout the duration of a franchise, a franchisee
shall make available, at no cost, such public access
channels exclusively dedicated for use by the public as
specified in the franchise agreement. Priority in use of
the channel and public access playback facilities shall
be given to residents, taxpayers, and persons affiliated
with tax-exempt organizations as set forth in Section
501(c)(3) of the United States Internal Revenue Code,
within the Village, and to residents, taxpayers and
persons affiliated with the aforementioned organizations
in municipalities that enter into an agreement with the
Village for cooperative use of the public access channel
and its related studio and facilities. Use of the public
access studio and production equipment shall be
restricted to residents, taxpayers and persons
affiliated with such organizations.
(2) A franchisee shall provide such public access
studios, facilities, and equipment as specified in the
franchise agreement.
(3) In order that there is maximum opportunity for
freedom of expression by members of the public, public
access programming shall be free from any control by a
franchisee as to program content except as required by
the FCC or to protect a franchisee from liability under
appropriate law to the extent such exceptions are
permitted by law.
(4) Reasonable rules and procedures governing use of and
charges for use of any public access channel shall be
established by the cablecasting board upon the approval
of the Village Council.
(i) Leased Access Channels. A franchisee shall make any
unused channels available for lease to any organization,
group, or individual on a first-come, first-served
basis. At least one channel must be available for
leasing on a part-time basis. A franchisee shall not
exercise program controls over leased channels, but it
shall adopt rules governing the leasing of channel space
which:
(1) Provide for access on a first-come,
nondiscriminatory basis;
(2) Prohibit the presentation of lottery information and
obscene or indecent matter;
(3) Require sponsorship identification;
(4) Specify an appropriate rate schedule; and
(5) Permit public inspection of the record of the names
and addresses of all persons or groups requesting time,
which record shall be retained for a period of two
years.
(j) Additional Channel Capacity. If any public,
governmental or educational access channel is
cablecasting locally produced, non duplicative
programming, Monday through Friday for eight consecutive
hours for ten consecutive weeks, a franchisee shall
report that fact to the Cablecasting Board. For purposes
of this threshold, character generator programming shall
not qualify. The Cablecasting Board shall investigate
the need for the addition of a new channel or channels
and file its recommendations with the Village Council.
After review of the Cablecasting Board report, the
Village Council may, in its discretion, require a
franchisee to make a new channel available within six
months for any or all of the uses and under the
conditions specified in subsections (c), (f), (h) or (i)
hereof. Nothing in this section shall interfere with a
franchisee's right to add additional channels of the
type described in such sections, provided that such
channels are operated in a manner consistent with those
sections. Should a franchisee choose to add such
additional channels, it shall notify the Village
Council, in writing, of its intention, its plan and its
timetable for doing so.
(k) FM Radio Service. A franchisee shall make available
to all subscribers any FM stereo radio service indicated
in its proposal and the stereo audio portion of all
channels as available. A franchisee shall advise all
subscribers of the availability of this service, but
shall not require that it be purchased.
(l) Automated Channel. A franchisee shall provide a
channel cablecasting automated time, weather, stock,
sports and news information. Such information may be
displayed by means of a character generator during
normal cablecast hours.
(m) Program Index. During all cablecast hours, a
franchisee shall provide a channel continuously
informing subscribers of the programs being cablecast on
all other operational channels. A franchisee shall
actively seek and cablecast such indexing information
from access channel managers.
(n) Additional Services. If such services are generally
available in the Detroit Metropolitan Area, a franchisee
shall make available such additional video, audio,
radio, digital, internet and other services as are
requested by subscribers and/or programmers who are
willing to pay for such services, provided that such
services are technologically and economically
appropriate. The Village specifically reserves the
right, if authorized by law, to require a franchisee to
furnish non discriminatory access to its cable system
for providers of internet access service, subject to
applicable law. This provision does not waive the
Village or franchisee's rights, obligations, claims,
defenses or remedies regarding the authority of such
requirement. The franchisee shall be provided with
reasonable notice and an opportunity to be heard,
including the right to present evidence on the findings,
if any, to be made by the Village with respect to such
requirement.
(o) Interconnection.
(1) A franchisee shall provide one-way and two-way
interconnection facilities to interconnect the system
with other cable systems, the school district, and other
political subdivisions as may be required by the Village
Council. Interconnection facilities may be effected by
direct cable connection, microwave length, satellite or
any other appropriate method. Interconnection facilities
may be required for one, several, or all channels of the
system. Upon receiving a directive to interconnect, a
franchisee shall reasonably cooperate in the
interconnection if other systems express a willingness
to share the cost of such interconnection.
(2) Before the Village Council issues a directive
requiring interconnection, it shall notify a franchisee
in writing of its consideration of the issue and
schedule a public hearing, not less than fifteen days
from the notification date, at which a franchisee shall
be provided an opportunity to state its position on the
issue. Notice of the hearing shall be given in
accordance with the provisions of Section 820.09(o).
(3) Upon receiving a directive from the Village Council
to interconnect, a franchisee shall immediately initiate
negotiations with the other affected system or systems
in order that the cost may be shared by the franchisees
of the affected systems for both construction and
operation of the interconnection link. A franchisee
shall report to the Village Council monthly in writing
regarding the status of all negotiations and
construction progress. The monthly reports shall
continue until the interconnection line is operational.
(4) A franchisee shall cooperate with any
interconnection corporation, regional interconnection
authority, council of governments, County, Federal or
State regulatory agency which may be established for the
purpose of regulating, facilitating, encouraging,
financing or otherwise providing for the interconnection
of cable communication systems beyond the boundaries of
the individual political jurisdictions.
(5) Should a dispute arise over any matter regarding
interconnection, it shall be resolved in accordance with
the provisions of this chapter on methods of resolving
disputes.
(6) The Village Council may grant reasonable extensions
of time to interconnect or rescind its request to
interconnect upon petition by a franchisee to the
Village Council. The Village Council shall grant such
request if it finds that a franchisee has negotiated in
good faith and has failed to obtain an approval from the
system of the proposed interconnection, or that the cost
of the interconnection would cause an unreasonable or
unacceptable increase in subscriber rates.
(7) In order to assure future interconnection
capability, a franchisee shall meet the following
initial technical requirements: use of standard
frequency allocations for cable communications signals,
use of signal processors at the headend for each cable
communications signal, use of adequate amplifiers spaced
appropriately to enable two-way activation of the total
system, and use of local origination equipment
compatible with videocassettes, videotapes, videodisks,
video film chains and other various video formats.
(p) Standby Power. A franchisee shall install and
maintain equipment capable of providing standby power
for headend, transportation and trunk amplifiers for a
minimum of four hours. The standby power equipment for
the headend shall be constructed so as to automatically
notify the cable office when it is in operation and to
automatically revert to the standby mode when the AC
power returns. All utility safety regulations must be
followed to prevent a standby generator from powering
the dead utility line.
(q) Underground and Aboveground Installations.
(1) A franchisee may lease, rent or in any other manner
by mutual agreement obtain the use of towers, poles,
lines, cables and other equipment and facilities from
utility companies operating within the Village, and use
towers, poles, lines, cables and other equipment and
facilities for the system, subject to all existing and
future laws, ordinances and regulations of the Village,
the State and the United States of America. When and
where practicable, the poles used by a franchisee's
distribution system shall be those erected and
maintained by utility companies operating within the
Village provided mutually satisfactory rental agreements
can be reached. All utility companies in the Village
shall cooperate with a franchisee and allow a franchisee
the use of their poles and pole line facilities whenever
possible so that the number of new or additional poles
installed in the Village may be minimized.
(2) A franchisee shall have the right to erect, install
and maintain its own towers, poles, guys, anchors,
underground conduits, amplifiers, transformers, manholes
and other equipment as may be necessary for the proper
construction and maintenance of the antenna site,
headend and distribution system, provided that the
location and construction of towers, poles, guys,
anchors, underground conduits, amplifiers, transformers
and other equipment, manholes placed on Village property
and public right-of-way shall be approved in advance, in
writing, by the Village Engineer. In cases of conflict,
preference shall be given to more essential utilities
and services such as water, power, steam, telephone,
sanitary sewer, storm sewer, traffic signals, street
lighting and gas. If a franchisee violates the
provisions in this paragraph, the Village Engineer may
require a franchisee to remove any and all equipment at
its own cost.
(3) A franchisee shall have the right to establish
terms, conditions and specifications governing the form,
type, size, quantity and location of equipment belonging
to other persons on its poles, and shall have the
further right to charge a fair rental for attachment,
space or spaces occupied by the equipment and plant of
such other persons, except that no rent shall be paid by
the Village for its attachment to a franchisee's poles.
The Village shall pay any reasonable additional costs
incurred by a franchisee in providing space for the
Village's attachments, including the reasonable cost of
any necessary rearrangements of a franchisee's equipment
and plant to provide room for Village attachments. Upon
expiration, termination or revocation of a franchise, or
should a franchisee wish to dispose of any of its poles
being used by the Village, the Village shall have the
first option to purchase them in place for a value equal
to depreciated book value.
(4) In those areas of the Village where transmission or
distribution facilities of all utility companies are, or
are scheduled to be placed underground, a franchisee
shall likewise construct, operate and maintain all of
its transmission and distribution facilities underground
to the maximum extent the then existing technology
permits, in accordance with the then management edition
of the National Electrical Safety Code, and the
Telephone System Practices Governing Joint Attachment
Practices, and their successor documents, as well as in
conformance with all applicable laws, statutes,
ordinances, regulations and/or codes of the Federal,
State or municipal governments. If and when necessary,
amplifiers and/or transformers in a franchisee's
transmission and distribution lines may be in
appropriate housings on the surface of the ground.
(5) All transmission and distribution structures, lines,
poles, conduits, fixtures and equipment erected by a
franchisee in the Village shall be located so as not to
endanger life or property or interfere with the normal
use of streets, alleys or other public ways and places,
so as to cause minimum interference with the rights or
reasonable convenience of the general public and
adjoining property owners and so as not to interfere
with existing traffic control, street lighting, gas,
electric, telephone, water hydrant or other public
utility installations and so as to comply with the then
current edition of the National Electrical Safety Code,
and the Telephone System Practices Governing Joint
Attachment Practices and their successor documents, as
well as in conformance with all applicable laws,
statutes, ordinances, regulations and/or codes of the
Federal, State and municipal governments. If the Village
Engineer determines any of such equipment erected by a
franchisee violates the provisions outlined in this
subsection, he may require a franchisee to alter or
remove any or all of the offending equipment.
(6) Prior to the commencement of construction, a
franchisee shall file with the Village maps, plats, and
records of the locations and character of all facilities
to be constructed, including underground facilities and
shall have received prior approval from the Village
Engineer for such construction. A franchisee is required
to maintain current and accurate maps, plats and
permanent records for public inspection and to file such
documents with the Village annually.
(7) In the case of any disturbance of pavement,
sidewalks, driveway, lawn or other surfacing, a
franchisee shall, at its expense, promptly replace and
restore all such surfacing to its original condition.
(8) The Village may, upon reasonable notice, require a
franchisee, at its expense, to protect, support,
temporarily disconnect, relocate or remove a
franchisee's equipment from a particular area of the
Village's streets if reasonably necessary by reason of
traffic conditions, public safety, street construction
or vacation, change or establishment of communication
lines, tracks, traffic signals, street lighting or by
reason of other conditions. Reasonable notice for this
provision shall be construed to mean at least ten days,
except in the case of emergencies.
(9) A franchisee shall have the authority, upon prior
approval of the Village Administrator or his or her
designated representative, to trim any trees upon and
overhanging the streets, alleys, sidewalks and public
places of the Village so as to prevent the branches of
such trees from coming in contact with wires and cables
of a franchisee, except that at the option of the
Village, trimming may be done by it, or under its
supervision and direction, at the expense and liability
of a franchisee. In trimming any trees, a franchisee
shall not go upon private property without the consent
of the owner. Any damage caused to the property of
building owners or users, or of any other person, by the
franchisee's negligence shall be repaired fully and
promptly at a franchisee's sole expense.
(10) Prior to the installation of any portion of the
cable system in or onto a building, a franchisee shall
obtain from the building department a cable
communications installation permit at the request of and
on behalf of the owner of the building or premises. The
permit shall be required to defray the costs of an
electrical inspection to insure compliance with
applicable requirements of the Village. A franchisee
shall be responsible for payment of applicable permit
fees to the Village.
(r) Construction Standards and Technical Requirements.
(1) All of a franchisee's plant and equipment,
including, but not limited to, the antenna site, headend,
and distribution system, towers, house connections,
structures, poles, wire, cable, fixtures and
appurtenances shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired,
maintained and operated in accordance with good
engineering practices, performed by experienced pole
line construction crews and so as not to:
A. Endanger or interfere with the safety of any persons
or property,
B. Interfere with improvements the Village may deem
proper,
C. Interfere in any manner with the rights of any
property owner, or
D. Unnecessarily hinder or obstruct pedestrian or
vehicular traffic on Village property.
(2) All of a franchisee's system, including all plant
and equipment and all construction, shall meet, at a
minimum, all relevant and applicable specifications as
set forth in a request by the Village for a proposal, a
franchisee's application, this chapter, and these
Codified Ordinances, when not pre-empted by higher law.
Such specifications, construction standards and
performance characteristics shall include, but not be
limited to, the following listed construction and
technical standards:
A. Construction standards. Methods of construction,
installation and maintenance of the cable communications
system shall comply with all applicable laws and
regulations.
B. Technical standards. A franchisee shall comply with
all the rules and standards for cable communications
operations as adopted by the FCC.
C. Performance testing:
1. Performance requirements and standards specified in
this chapter, and in all FCC requirements and standards,
shall be measured at the time of initial testing as
provided in paragraph (r)(2)C.2 hereof, to ensure
compliance with all specified requirements and standards
for construction. Measurements shall be taken and
recorded as specified in the Cable Television
Information Center specifications. All costs of such
tests shall be borne by a franchisee, including all
costs associated with the hiring of an independent
supervising engineer pursuant to paragraph (r)(2)C.10
hereof.
2. Initial proof of performance testing shall occur
within sixty days of the commencement of cable service
to each section of the system franchise area as
delineated in a construction timetable which shall be
submitted with a franchisee's application and bid
proposal and also included in the final franchise
agreement. Initial proof of performance shall also be
tested within thirty days of the commencement of cable
service to new subscribers on any extension of the
system not specified in the construction timetable, and
within 30 days after service has been extended to new
subscribers upon any reconstruction of the cable system.
3. All measurements shall be made using instruments
which are appropriate for making each performance test.
Such instruments shall be sufficiently sensitive to
measure each parameter accurately. The accuracy of the
instruments must meet those standards developed by the
National Bureau of Standards for Test Equipment. Such
test equipment and instruments shall know a correction
factor for bandwidth and scale position where
applicable. All measurements shall be taken at test
points to be designated in a franchisee's application,
which shall also be included in the franchise agreement.
4. Tests and measurements to ensure compliance with the
technical standards shall be performed in a manner that
is consistent with the provisions of Federal law and
regulations.
5. Performance requirements and standards specified in
this document, including all FCC requirements and
standards, and all local performance guidelines, shall
be measured annually to ensure compliance with all
specified requirements and standards. Measurements shall
be taken and recorded as specified in this paragraph
(r)(2)C. All costs of such tests shall be borne by the
franchisee.
6. Routine proof of performance tests shall be made on a
periodic basis to ensure compliance with applicable
performance standards. Measurements shall be taken and
recorded as specified in this paragraph (r)(2)C. All
costs of such tests shall be borne by the franchisee.
7. When complaints have been made or when other evidence
exists which, in the judgment of the Village Council,
casts doubt on the reliability or quality of cable
service, the Village shall have the right and authority
to compel a franchisee to test, analyze and report on
the performance of the system. Such test or tests shall
be made and the reports of such tests shall be delivered
to the Village no later than fourteen days after the
Village Council formally notifies a franchisee.
8. The Village's rights under paragraph (r)(2)C.7 hereof
shall be limited to requiring tests, analysis, and
reports covering specific subjects and characteristics
based on such complaints or other evidence when and
under such circumstances as the Village has reasonable
grounds to believe that the complaints or other evidence
require that tests be performed to protect the public
substandard cable service. All costs for such tests
shall be borne by the franchisee.
9. Reports required pursuant to paragraph (r)(2)C.7
hereof shall include information setting forth the
nature of the complaint or other evidence which
precipitated the special tests; what system component
was tested, the equipment used and procedures employed
in such testing, the results of the testing and the
resolution of the complaint or problem. Any additional
information pertinent to the special test or
specifically requested by the Village shall be reported.
10. All performance testing shall be done under the
supervision and direction of a qualified engineer, not
on the permanent staff of the franchisee. The Engineer
shall be selected by a franchisee and approved by the
Village Administrator or his or her designated
representative, after reviewing the individual's
professional qualifications and a statement, provided by
the Engineer, indicating all associations or
relationships of any nature which that individual may
currently have or may formerly have had with the
franchisee. All records of performance tests and their
results shall be signed and certified by the Engineer
who shall include in the records a copy of his or her
qualifications and of the statement.
(3) If, at any time, the cable communications system or
any portion thereof fails to comply with any of the
standards set forth in this section, the Village
Engineer shall send written notice to a franchisee
listing any deficiencies and requiring a franchisee to
repair, alter or correct the deficiencies so as to meet
all such standards. A franchisee shall have thirty days
after the date of the notice within which to correct the
deficiencies. A franchisee's failure to correct the
deficiencies within thirty days shall subject it to the
penalties provided in Section 820.09(p), unless the
penalty is waived by the Village Council upon a showing
by a franchisee that it has made all reasonable efforts
to correct the deficiency, but has been unable to do so
due to the occurrence of conditions beyond its control.
If deficiencies in the cable communications system
remain after the thirty day period, the Village Council
may direct the Engineering Department to correct such
deficiencies and a franchisee shall pay all reasonable
costs associated therewith.
(4) Where the provisions of any codes or regulations
referred to in this section are in conflict, the more
stringent provisions, as determined by the Village
Engineer, shall be deemed to apply.
(s) Changes Prohibited. A franchisee shall provide its
cable system and all services as set forth in the
franchise agreement, including all exhibits thereto and
all documents and written material incorporated by
reference therein.
(t) Maintenance of Facilities and Equipment. A
franchisee shall upgrade its facilities, equipment and
service so that its system is as advanced as the current
state of technology will allow, provided that any
necessary upgrade to its facilities, equipment, or
service is economically appropriate. A franchisee shall
install additional channel capacity as required to keep
channel capacity in excess of the demand therefor by
users. At all times, the cable system shall be no less
advanced than any cable system in the Detroit Dominant
Market Area or than any other cable system of comparable
size excepting only those cable systems which are
experimental, pilot, or demonstration. Such matters
shall be a topic of discussion at all review sessions. A
franchisee shall submit a five-year plan for upgrading
facilities and equipment at each performance review
session.
(u) Subscriber Privacy.
(1) No signals of a cable communications channel shall
be transmitted from a subscriber terminal for purposes
of monitoring individual viewing patterns or practices
without the express written permission of the
subscriber. The request for such permission shall be
contained in a separate document with a prominent
statement to be signed by the subscriber acknowledging
his full understanding of the provisions of the request
and permitting the activity to occur. No penalty shall
be invoked for a subscriber's failure to provide such an
authorization. The authorization shall be revocable at
any time by the subscriber without penalty. Such
authorization is required for each type or
classification of subscriber terminal signal planned;
provided, however, that a franchisee may keep such
records of viewing or purchasing of services by
individual subscribers as are necessary for the billing
of the individual subscriber for such services.
(2) A franchisee shall not monitor or tabulate any
records or test results in any manner that would reveal
the economic status, commercial product preferences or
opinions of individual subscribers or their families. A
franchisee shall not maintain or tabulate any data on
the political, religious, moral or social preferences or
opinions of individual subscribers or their families.
(3) A franchisee, or any of its agents or employees,
shall not, without the specific written authorization of
the subscriber involved, sell, or otherwise make
available to any party:
A. Lists of the names and addresses of such subscribers,
or
B. Any list which identifies the viewing habits of
subscribers.
(4) A franchisee shall be constantly alert to possible
abuses of any legal right of privacy or other legal
rights of any subscriber, programmer or general citizen
resulting from any device or signal associated with the
cable communications system. The possibility of such
abuse shall be discussed at every scheduled review
session.
(5) Devices such as electronic locks, scramblers,
warning lights, and others designed to inhibit signals
originating from a subscriber terminal shall be provided
by a franchisee for all two-way system subscribers. Such
devices shall additionally be provided as other privacy
problems are identified, the technology becomes
available and reasonable financial arrangements can be
made.
(v) Continuity of Service.
(1) It shall be the right of all consumers and
programmers to receive all available services insofar as
their financial and other obligations to a franchisee
are honored. If a franchisee elects to overbuild,
rebuild, renovate, modify or sell the system, or the
Village gives notice of intent to terminate or fails to
extend or renew this franchise, a franchisee shall act
so as to ensure that all consumers and programmers
receive continuous, uninterrupted service regardless of
the circumstances, for a period not to exceed six months
unless a longer period is agreed to by the parties.
(2) Upon a change of franchisee, or if a new operator
acquires the system, a franchisee shall cooperate with
the Village, new franchisee or operator in maintaining
continuity of service to all consumers and programmers.
During such period, a franchisee shall be entitled to
the revenues for any period during which it operates the
system, and shall be compensated for reasonable costs
incurred in providing any services when it no longer
operates the system.
(3) If a franchisee fails to operate the system for
three consecutive days without prior approval of the
Village or without just cause, the Village may, at its
option, operate the system or designate an operator
until such time as a franchisee restores service under
conditions acceptable to the Village or a permanent
operator is selected. If the Village fulfills this
obligation for a franchisee, the franchisee shall
reimburse the Village for all reasonable costs or
damages, in excess of revenues from the system received
by the Village, that are the result of the franchisee's
failure to perform.
(w) All Channels Emergency Alert. A franchisee shall, in
the case of any emergency or disaster, make its entire
system available without charge to the Village
Administrator or his or her representative, or to any
other governmental or civil defense agency that the
Village shall designate. The system shall be engineered
to provide an emergency alert system as set forth in the
franchise agreement to allow authorized officials to
automatically override the audio signal on all channels,
and transmit and report emergency information. The
system shall provide for visual transmission of
emergency messages.
(x) Home Security. No home security program shall be
promoted, nor shall a home security device be installed,
without the prior approval from the Police Chief and
Fire Chief of the overall home security system design.
This provision shall include alarm systems the purpose
of which is to detect and warn monitoring agencies of
medical emergencies, fires or illegal entry. This
section shall be interpreted to cover the general plan
and scope of activities, not individual service hookups.
(Ord. 2000-59. Passed 7-10-00.)
820.08 FRANCHISE FEE AND RATES.
(a) Establishment of Franchise Fee.
(1) As compensation for the use of the Village's
streets, public ways and places, and other facilities,
and for the right to construct, operate, maintain,
modify, and reconstruct a cable communications system,
and for the Village's costs of maintenance, and
supervision of the franchise, and for the Village's
costs of establishing and conducting the regulatory
activities required by virtue of the franchise, a
franchisee shall pay to the Village an amount equal to
five percent of a franchisee's gross revenues from all
sources attributable to the operations of the franchisee
within the Village. The franchise fee payment shall be
in addition to any tax, permit fee, or other payment
owed or service to be provided to the Village by a
franchisee.
(2) For purposes of this chapter, gross revenues shall
be calculated on an accrual basis.
(b) Payment of Franchise Fee.
(1) Payment of the franchise fee shall be made quarterly
at the Village Treasurer's office. Each payment shall be
accompanied by a financial statement in a standard form,
approved by the Village Treasurer, setting forth the
basis for the computation and specifically showing the
gross revenues attributable to the franchise during the
preceding quarter, as well as such other relevant facts
as may be required by the Village.
(2) Each quarterly payment and accompanying financial
statement shall be filed in the Village Treasurer's
office within twenty days after the last day of the
quarter for which the payment is due.
(3) A franchisee shall file, within 120 days of the
close of the franchisee's fiscal year, an annual report
audited by a certified public accountant, of the annual
gross revenues attributable to a franchisee's cable
communications operation in the Village as well as such
other items of information as may be required of a
franchisee. This requirement may be modified by the
Village Council in appropriate circumstances. Extension
of such period up to thirty additional days may be
granted by the Village Council upon request by a
franchisee.
(4) The Village shall have the right to inspect a
franchisee's financial records, such records to be kept
or made available within the Village, and the rights of
audit and recomputation of any amounts that may be
determined to be payable under this chapter. Any
additional amount due the Village as a result of the
audit shall be paid within thirty days following written
notice to a franchisee by the Village, which notice
shall include a copy of the audit report. The cost of
the Village's audit shall be borne by a franchisee if it
is properly determined that a franchisee's annual
payments to the Village for the preceding year are
increased thereby by more than three percent.
(5) If any franchise fee payment or recomputed amount is
not made on or before the applicable due date a late
payment fee of two hundred fifty dollars ($250.00) and a
monthly service charge of 1.8 percent of the total
unpaid amount shall be paid to the Village by the
franchisee.
(6) No acceptance of any payment by the Village shall be
construed as a release or as an accord and satisfaction
of any claim the Village may have for further or
additional sums payable as a franchise fee under this
chapter or for the performance of any other obligation
of a franchisee.
(c) Renegotiation of Franchise Fees. If the law permits
a specified franchise fee greater than the franchise fee
set forth in this chapter, the Village shall have the
right to impose such greater fee upon thirty days
written notice to a franchisee. If the law removes all
limitations on the amount of such fee, the Village shall
have the right to increase such fee to eight percent, or
more if negotiated, upon thirty days written notice to a
franchisee.
(d) Rates and Charges for Service.
(1) The Village Council shall be empowered to determine,
fix, and regulate the charges or rates of the franchisee
and from time to time to alter or change such rates.
(2) The Village shall fix and regulate rates for
services which shall include, but not be limited to, the
following:
A. Rates for the provision of basic service to
subscribers, residential or nonresidential.
B. Rates for the provision of pay television service to
subscribers.
C. Rates for the connection and installation of
services, and for the downgrade or disconnection and/or
reconnection of such services.
D. Rates for nonentertainment services, such as home
security, utility meter reading, data transmission, use
of access channels, energy management, traffic
signalization and other services that may be introduced
during the term of the franchise.
(3) Initial maximum rates for services of the cable
communications system shall be those delineated in a
franchise agreement. Initial maximum rates shall not be
increased during the period specified in a franchise
agreement except as otherwise permitted by law. If
construction of the cable communications system is not
timely completed and activated as set forth in a
franchise agreement, and an extension is not granted by
the Village Council, the rate guarantee shall be
extended one day for each day that construction remains
incomplete and inactivated beyond the specified
construction and activation period.
(4) A franchisee shall have the right to conduct
promotional campaigns which permit new subscriptions to
the system at lesser rates than those applicable to
earlier subscribers provided those promotional rates
shall be equally available to all such new subscribers
in the Village.
(e) Revision of Rates for Services.
(1) The Village Council, upon request of a franchisee or
upon its own initiative, may establish revised rates for
services. The following procedures are hereby adopted to
provide for a method for the revising of rates:
A. A franchisee shall file a petition with the Village
Council, which petition shall contain full and detailed
information concerning the rate revisions being
requested and supporting financial documentation for
such rate revision.
B. The Village Council shall establish the date and time
for public hearing on such rate revision request no less
than thirty days from the date a written request is
formally received by the Village Council in a regularly
scheduled public meeting and shall render a decision on
the request within thirty days following the public
hearing.
C. Notice of the public hearing shall be given in
accordance with the provisions of Section 820.09(o).
D. The Village Council may, at its option, employ a
consultant or consultants mutually acceptable to a
franchisee to aid in the analysis of the requested rate
revision. Costs of such consultants shall be borne by a
franchisee.
E. The Village may renegotiate other provisions of the
franchise at such times as rate revisions are requested
by a franchisee.
F. Nothing in this section shall be deemed to prevent
the Village on its own initiative from instituting
proceedings to revise rates at the Village's expense.
(2) In making its determination with regard to the
setting or revision of rates, the Village Council may
direct the Cablecasting Board to review and report on
the following items:
A. The rate request and its supporting financial
documentation;
B. Comparative rates in metropolitan Detroit and the
United States;
C. Performance ratings and subscriber complaints;
D. System expansion and franchise fee payments;
E. Comparable services in metropolitan Detroit and the
United States; and
F. Other items as it deems fit.
(f) Establishment of Rates and Charges Subject to Law.
The provisions of subsections (d) and (e) hereof shall
be applicable only if, when, and to the extent,
permitted by law.
(g) Refunds to Subscribers and Programmers. If a
franchisee fails to provide any material service
requested by a subscriber or programmer in accordance
with the standards set forth in this chapter, a
franchisee shall promptly refund all deposits or advance
charges paid for the service in question by the
subscriber or programmer. This section shall include
discontinuance of service for each twenty-four hour
period, as well as lack of service after payment for
initial hookup.
(Ord. 2000-59. Passed 7-10-00.)
820.09 ADMINISTRATION AND REGULATION.
(a) Performance Review.
(1) In order to monitor a franchisee's performance and
adherence to this chapter and the franchise agreement,
the Village, through the Cablecasting Board, and a
franchisee may hold scheduled review sessions within
thirty days after the first, fourth, seventh and tenth
anniversary dates of the effective date of the franchise
and each three years thereafter during the remaining
initial term of the franchise and any extension or
renewal thereof. All such review sessions shall be open
to the public and notice thereof shall be published not
less than ten days nor more than thirty days before each
review session in a local newspaper of general
circulation. The published notice shall specify the
topics to be discussed. Notice shall be given in
accordance with the provisions of subsection (o) hereof.
(2) Unless waived by resolution of the Cablecasting
Board in writing four months prior to each scheduled
review session, a franchisee shall submit to the
Cablecasting Board the results of an independent opinion
survey which shall elicit constructive criticisms and
identify unmet needs among subscribers and
nonsubscribers in the franchise area. The Cablecasting
Board shall establish standards and controls with
respect to the opinion survey, the preparation and
implementation of which shall be without expense to the
Village or the Cablecasting Board, and shall approve in
advance the survey form and the person conducting the
survey.
(3) Special review sessions may be held at any time
during the term of the franchise by the Village or by
the Cablecasting Board upon not less than thirty days'
notice to a franchisee of the time and place of the
review sessions and the topics to be covered. All such
review sessions shall be open to the public and public
notice of the review sessions shall be given in
accordance with the provisions of subsection (o) hereof.
(4) All or any of the following topics may be designated
for discussion and review at any review session:
A. Judicial and Federal communications rulings.
B. Rate structures.
C. Application of new technology or new developments.
D. System performance.
E. System extension policy.
F. Service provided.
G. Programming offered.
H. Customer complaints.
I. Privacy.
J. Amendments to the ordinance authorizing the
franchise.
K. Interconnection.
L. Underground progress.
M. Public, governmental and educational access programs
and performance.
N. Studio facilities and service.
O. Insurance.
P. New services.
Other topics may be added by either party. Members of
the general public may also request discussion of
additional topics.
(5) The Cablecasting Board at its discretion may utilize
the services of a consultant to gain additional
information for use during the review sessions. A
franchisee shall cooperate with such consultant and the
Cablecasting Board in all aspects of the performance
review. In the event the consultant's review reveals or
leads to the discovery of a significant default or
violation of the franchise, the reasonable fees of such
consultant relating to such default or violation shall
be borne by a franchisee.
(6) The Cablecasting Board shall, at the conclusion of
all review sessions, issue a public report to the
Village Council announcing its findings and
recommendations for enforcement of or modifications to
this chapter or the franchise agreement.
(b) Security Fund.
(1) Within thirty days after the effective date of
franchises between a franchisee and each of the
Cablecasting Board's member communities, a franchisee
shall deposit with the Cablecasting Board, and maintain
on deposit through the term of the franchise, the sum of
ten thousand dollars ($10,000). Such sum shall stand as
security for the obligations of a franchisee to the
member communities of the Cablecasting Board and be
administered by the Cablecasting Board as set forth
below.
A. The faithful performance by it of all the provisions
of this chapter and the franchise;
B. Compliance with all orders, permits and directions of
any agency, commission, board or department of the
member communities having jurisdiction over its acts or
defaults under the franchise agreements; and
C. The payment by the franchisee of any claims, liens
and taxes due the member communities which arise by
reason of the construction, operation or maintenance of
the system.
(2) Within ten days after notice to it that any amount
has been withdrawn from the security fund, the
franchisee shall pay to or deposit with the Cablecasting
Board a sum of money in the full amount withdrawn.
(3) If the franchisee fails to pay to the member
communities any fees within the time fixed in this
chapter; or fails, after ten days' written notice, to
pay to the member communities any taxes due and unpaid;
or fails to repay the member communities within such ten
days, any damages, costs, or expenses which the member
communities shall be compelled to pay by reason of any
act or default of the franchisee in connection with the
franchise, or fails, after three days' notice of such
failure, to comply with any provisions of the franchise
which the member communities reasonably determines can
be remedied by a withdrawal from the security, the
member communities may immediately withdraw the amount
thereof, with interest and any penalties, or liquidated
damages from the security fund. Upon such withdrawal,
the member communities shall notify the franchisee of
the amount and date thereof.
(4) The security fund deposited pursuant to this
section, including all interest thereon, shall become
the property of the member communities if the franchise
is rescinded or revoked by reason of the default of the
franchisee. The franchisee, however, shall be entitled
to the return of such security fund, or portion thereof,
as remains on deposit at the expiration of the term of
the franchise, provided that there is then no
outstanding default on the part of the franchisee.
Interest earned by the investment of the security fund
shall become part of the security fund and unless
consumed by the payment of penalties, fees or other
charges under this chapter, shall be returned to the
franchisee at the expiration of the franchise term,
provided that there is then no outstanding default on
the part of the franchisee.
(5) The payment of a penalty from the security shall not
constitute a cure of any violation or any act of
noncompliance. The rights reserved to the member
communities with respect to the security fund are in
addition to all other rights of the member communities
whether reserved by this chapter or authorized by law,
and no action, proceeding or exercise of a right with
respect to such security fund shall affect any other
right the member communities may have.
(c) Performance Bond/Letter of Credit.
(1) Upon the effective date of the franchise agreement,
at the Village's discretion, a franchisee shall file
with the Village a performance bond, in favor of the
Village, in the sum of two hundred fifty thousand
dollars ($250,000), or in any greater amount specified
in the franchise agreement, conditioned that the
franchisee shall well and truly observe, fulfill and
perform each term and condition of this chapter and the
franchise agreement. This bond shall be maintained by
the franchisee throughout the construction period and
until such time as determined by the Village Council. At
the request of the Village Council, additional
municipalities may be named as additional secured
parties in such bond. In lieu of all or part of the
amount of such performance bond, at the Village's
discretion, a franchisee shall file with the Village an
unconditional and irrevocable letter of credit, in form
and content satisfactory to the Village, in the sum
specified in this section or in any greater amount
specified in the franchise agreement. Failure to furnish
such bond or letter of credit and to maintain the same
in effect in the full amount required hereby during the
entire term of the franchise agreement, and any
extension or renewal thereof, shall constitute a
violation of this section and a material breach of the
franchise agreement.
‘
(2) If a franchisee fails to comply with any law,
ordinance or regulation governing the franchise, or
fails to well and truly observe, fulfill and perform
each term and condition of the franchise, including the
franchisee's proposal, there shall be recoverable,
jointly and severally, from the principal and surety of
the bond, and/or from the letter of credit, any damages
or loss suffered by the Village as a result thereof,
including the full amount of any compensation,
indemnification, or cost of removal or abandonment of
any property of a franchisee, plus a reasonable
allowance for attorney's fees and costs, up to the full
amount of the bond or letter of credit.
(3) The Village may, upon completion of initial or
subsequent construction, waive or reduce the requirement
of the franchisee to maintain such bond or letter of
credit. However, the Village may require a performance
bond or letter of credit to be posted by a franchisee
for any construction subsequent to the completion of the
initial service areas, in a reasonable amount and upon
such terms as determined by the Village Council.
(4) The bond or letter of credit shall contain the
following or substantially similar endorsement: It is
hereby understood and agreed that the bond or letter of
credit may not be canceled nor the intention not to
renew be stated until thirty days after receipt by the
Village, by registered mail, of a written notice of such
intent to cancel or not to renew.
(d) Insurance.
(1) A franchisee shall maintain throughout the term of
the franchise, insurance insuring the Village and
franchisee in the minimum amount of:
A. Workers' compensation. As required by all applicable
Federal, State, maritime or other laws, including
franchisee's liability, with a limit of at least one
hundred thousand dollars ($100,000) for each occurrence.
B. Comprehensive general liability and extended coverage
endorsement. Including nonownership and hired car
coverage as well as owned vehicles, with minimum limits
as follows: Bodily injury for each person, one million
dollars ($1,000,000), and each occurrence, one million
dollars ($1,000,000); property damage for each
occurrence, five hundred thousand dollars ($500,000).
C. Excess liability. Bodily injury and property damage,
five million dollars ($5,000,000) for each occurrence.
(2) The insurance policies obtained by a franchisee in
compliance with this section must be approved by the
Village Attorney as being in compliance with this
chapter and the franchise agreement within thirty days
of the execution of the franchise agreement. Certified
copies of such insurance policies, or certificates of
insurance in lieu of the policies, along with written
evidence of payment of required premiums, shall be filed
and maintained with the Village Clerk during the term of
the franchise. Such certified copies may be changed from
time to time to reflect any increase in liability
limits. A franchisee shall immediately advise the
Village of any litigation covered by the insurance.
(3) Neither the provisions of this section nor any
damages recovered by the Village there under shall be
construed to limit the liability of a franchisee under
any franchise issued under this chapter or for damages.
(4) All insurance policies maintained pursuant to a
franchise shall name the Village, its employees, agents,
boards and officers as additional named insured parties
with respect to all actions, inactions, errors and
omissions of the franchisee, its agents or
subcontractors, and shall contain the following or
substantially similar endorsement: It is hereby
understood and agreed that this insurance policy may not
be canceled by the insurer nor the intention not to
renew be stated by the insurer until at least thirty
days after receipt by the Village, by registered mail,
of a written notice of such intention to cancel or not
to renew.
(5) Each policy of insurance shall be noncancellable
except upon giving such notice to the Village. If deemed
appropriate by the Village attorney, the franchisee
shall also provide an owners and contractors protective
liability policy.
(e) Indemnification.
(1) A franchisee shall, at its sole cost and expense,
fully indemnify, defend and hold harmless the Village,
its officers, boards, commissions and employees against
any and all claims, suits, actions, liability and
judgments for damages, including, but not limited to,
expenses for reasonable legal fees and disbursements and
liabilities assumed by the Village in connection
therewith:
A. In any way arising out of or through the acts or
omissions of a franchisee, its servants, agents, or
employees, or to which the franchisee's negligence shall
in any way contribute with respect to any claim
attributable to the operation or existence of any part
of the cable communications system.
B. Arising out of any claim for invasion of the right of
privacy, for defamation of any person, or the violation
or infringement of any copyright, trademark, trade name,
service mark or patent, or of any other right of any
person, excluding claims arising out of or relating to
Village programming.
C. Arising out of a franchisee's failure to comply with
the provisions of any Federal, State or local statute,
ordinance or regulation applicable to the franchisee in
its business hereunder.
(2) The foregoing indemnity is conditioned upon the
following:
A. The Village shall give a franchisee prompt notice of
the making of any claim or the commencement of any
action, suit or other proceeding covered by the
provisions of this section.
B. Nothing in this section shall be deemed to prevent
the Village from cooperating with a franchisee and
participating in the defense of any litigation by its
own counsel at its sole cost and expense.
C. No recovery by the Village of any sum by reason of
the security fund shall be any limitation upon the
liability of a franchisee to the Village under the terms
of this section, except that any sum so received by the
Village shall be deducted from any recovery which the
Village might have against a franchisee under the terms
of this section.
(f) Foreclosure. Upon foreclosure or other judicial sale
of all or a substantial part of the cable communications
system, or upon the termination of any lease covering
all or a substantial part of the cable communications
system, a franchisee shall notify the Village of such
fact. Such notification shall be treated as notification
that a change in control of the franchisee has taken
place, and the provisions of this chapter governing
transfer shall apply.
(g) Receivership. A franchise granted under this chapter
shall, at the option of the Village, cease and terminate
ninety days after the appointment of a receiver, or
trustee, to take over and conduct the business of a
franchisee, whether in receivership, reorganization,
bankruptcy or other action or proceedings, unless such
receivership or trusteeship shall have been vacated
prior to the expiration of such ninety days.
(h) Reports.
(1) On not less than thirty days' advance notice, the
franchisee shall submit reports on such matters as the
Village or Cablecasting Board may request from time to
time. All reports and records of the franchise required
under this chapter or the franchise agreement shall be
furnished at the sole expense of the franchisee. Any
materially false or misleading statement or report made
by a franchisee under this chapter or the franchise
agreement shall be deemed a violation of this chapter
and a material breach of the franchise agreement.
(2) A franchisee shall fully cooperate in making
available at reasonable times, and representatives of
the Cablecasting Board and the Village Administrator or
designated representatives shall have the right to
inspect, the books, records, maps, plans and other like
materials of a franchisee applicable to the cablecasting
system, at any time during normal business hours within
the Village. Where volume and convenience necessitate, a
franchisee may require inspection to take place on its
premises within the Village.
(3) The Village and the Cablecasting Board, whenever
consistent with its public records ordinance and the
State's Freedom of Information Act (M.C.L. 15.231 et
seq., M.S.A. 4.1801(1) et seq.), shall attempt to
protect, within reasonable limits, the privacy of a
franchisee's financial records, unless such records are
otherwise available to the public.
(i) Other Petitions and Applications. Upon request by
the Village or the Cablecasting Board, copies of all
petitions, applications, communications and reports
submitted by a franchisee to the Federal Communications
Commission, Securities and Exchange Commission, or any
other Federal or State regulatory commission or agency
having jurisdiction in respect to any matters affecting
cable communications operations authorized pursuant to
the franchise, shall be provided no later than the
filing date for such petitions, applications,
communications and reports.
(j) Other Business Activities. In the conduct of a
business franchised under this chapter, neither a
franchisee nor its officers, employees, or agents shall
directly or indirectly:
(1) Sell, lease, repair, install or maintain; or
(2) Recommend for sale, lease, repair or maintenance
television sets or receivers.
Nothing under this section shall be construed to
prohibit a franchisee, at a customer's request and
without payment, from examining and adjusting the
customer's receiver set to determine whether reception
difficulties originate in the set or in the franchisee's
system.
(k) Nondiscrimination Requirements.
(1) A franchisee shall not deny service, deny access, or
otherwise discriminate against subscribers, channel
users, or general citizens on the basis of race, color,
religion, age, handicap, national origin or sex. A
franchisee shall comply at all times with all applicable
Federal, State, and local laws and regulations, and all
executive and administrative orders relating to
nondiscrimination.
(2) A franchisee shall strictly adhere to the equal
employment opportunity requirements of the FCC and
Federal, State, and local regulations, as amended from
time to time.
(l) Compliance With Laws. Notwithstanding any other
provisions of this chapter to the contrary, a franchisee
shall at all times comply with all laws and regulations
of the Federal, State, County and Village governments or
any administrative agencies thereof. If any such
Federal, State or County law or regulation shall require
a franchisee to perform any service or shall permit a
franchisee to perform any service or shall prohibit a
franchisee from performing any service in conflict with
the terms of the franchise or of any law or regulation
of the Village, then as soon as possible following its
knowledge thereof, a franchisee shall notify the Village
Council of the point
of conflict believed to exist between such regulation or
law and the laws or regulations of the Village or the
terms of the agreement. The Village Council shall review
the possible conflict and determine what action, if any,
it shall take regarding the point of possible conflict.
(m) Theft of Services and Tampering.
(1) No person shall intentionally or knowingly:
A. Damage or cause to be damaged any wire, cable,
conduit, equipment, apparatus or appurtenance of a
franchisee or commit any act with intent to cause such
damage.
B. Tap, tamper with or otherwise, connect any wires or
device to a wire, cable, conduit, equipment, apparatus
or appurtenances of a franchisee with the intent to
obtain or send a signal or impulse from the cable system
without authorization from or compensation to the
franchisee, or to obtain or send cable television or
other communication service with intent to obtain or
send cable television or other communication service
with intent to defraud a franchisee of any lawful
compensation to which it is otherwise entitled.
(2) Each day's violation of this section shall be
considered a separate offense.
(n) Approval by Village Engineer. Where provisions of
this chapter require approval of the Village Engineer,
the Engineer shall grant approval only upon the
Engineer's determination that the proposed construction,
installation or other activity for which approval is
required will not endanger or adversely affect the
public health, safety or welfare.
(o) Public Notice. Unless otherwise specifically set
forth in this chapter, minimum public notice of any
public hearing relating to a franchise shall be by
publication, at least once per week, in a local
newspaper of general circulation beginning fifteen days
prior to the meeting, and by announcement, in a format
approved by the Village Council, on at least two
channels of the cable communications system between the
hours of 7:00 p.m. and 9:00 p.m. for five consecutive
days prior to the hearing.
(p) Charge to Security Fund. The Village shall be
entitled to be paid liquidated damages, and may draw
upon the security fund, performance bond, or letter of
credit, for the same as follows:
(1) For failure to complete initial system construction
and for all other construction or activation obligations
of a franchisee including, without limitation, upgrades
of the system, or provide services, equipment or
personnel in accordance with Sections 820.06(c),
820.07(c), 820.07(f), or 820.07(i), unless the Village
Council specifically approves the delay by motion or
resolution, due to the occurrence of conditions beyond
the franchisee's control, two thousand, five hundred
dollars ($2,500) per day for each day, or part thereof,
the deficiency continues.
(2) For failure to provide dates, documents, reports,
information as required by Section 820.08(b), and
subsections (a) and (h) hereof, fifty dollars ($50.00)
per day each violation occurs or continues.
(3) For failure to test, analyze and report on the
performance of the system following a request pursuant
to Section 820.07(r), fifty dollars ($50.00) per day for
each day, or part thereof, that such noncompliance
continues.
(4) For failure to restore the cash deposit as required
in Section 820.09(b) within the specified ten days,
fifty dollars ($50.00) per day for each day, or part
thereof, that such violation continues.
(5) For failure to comply, after thirty days' notice by
the Village Engineer with the standards set forth in
Section 820.07(r), one hundred dollars ($100.00) per day
for each day, or part thereof, that such violation
continues, unless the penalty is waived by the Village
Council upon a showing by a franchisee that it has made
a reasonable effort to correct the deficiency, but has
been unable to do so due to the occurrence of conditions
beyond its control.
(6) Except as otherwise provided in Section 820.11(k),
for any other violation or default under the franchise
agreement or this chapter, one hundred dollars ($100.00)
per day for each day that such violation or default
continues.
(q) Penalties and Charges to Tenants for Services
Prohibited. Neither the owner of any multiple unit
residential dwelling nor his or her agent or
representative shall penalize, charge or surcharge a
tenant or resident or forfeit or threaten to forfeit any
right of such tenant or resident, or discriminate in any
way against such tenant or resident who requests or
receives cable communications service from a franchisee
operating under a valid and existing cable
communications franchise issued by the Village.
(r) Solicitation of Subscribers. Neither a franchisee
nor its agents or employees shall solicit subscribers to
the cable communications system by any threatening or
harassing means. Harassment shall include the following
actions when undertaken with the purpose of soliciting a
cable communications subscription:
(1) Entry into a dwelling unit without an oral
invitation to do so;
(2) A telephone call to a dwelling unit between the
hours of 10:00 p.m. and 7:00 a.m.;
(3) A telephone call to a dwelling unit within three
months of a prior rejection of a cable communications
subscription by any person residing at that dwelling
unit, unless some person residing therein has expressly
indicated an interest in subscribing to the cable
communications system; and
(4) Visiting a dwelling unit within three months of a
prior rejection of a cable communications subscription
by any person residing at that dwelling unit, unless
some person residing therein has expressly indicated an
interest in subscribing to the cable communications
system.
(Ord. 2000-59. Passed 7-10-00.)
820.10 CABLECASTING BOARD.
(a) Creation and Membership of Board.
(1) The Birmingham City Commission and the Village
Councils of Beverly Hills, Bingham Farms, and Franklin
have established a Cablecasting Board. The Board shall
continue to consist of twelve members, seven who are
residents of the City of Birmingham who shall be
appointed by the City of Birmingham, three who shall be
residents of Beverly Hills who shall be appointed by
that Village, one who shall be a resident of Bingham
Farms who shall be appointed by that Village, and one
who shall be a resident or appointed official of the
Village of Franklin who shall be appointed by the
Village. Members of the Board shall serve without
compensation and for such terms as their respective
appointing authorities shall determine. The City of
Birmingham and the Villages shall also have sole power
to remove and/or replace their respective appointees.
(2) Each of the Board's member communities is encouraged
to appoint an elected or appointed official of that
community to act as a liaison to the Board, to attend
Board meetings, and to participate in Board discussions.
(3) The Birmingham School District and the Baldwin
Library are each also encouraged to appoint a
representative to act as a liaison to the Board and to
participate in Board discussions regarding matters
relevant to their respective interests and
constituencies.
(4) Seven members of the Board shall constitute a quorum
and the affirmative vote of a majority of the full Board
shall be required for Board action.
(b) Meetings. Meetings of the Cablecasting Board shall
be held at the call of the Chairperson and at such other
times as the Board may determine, but not less
frequently than once a month. The Board shall adopt
rules of procedures and shall keep minutes of its
meetings, which shall be a public record. A
representative of the franchisee may attend all open
sessions of the Board and shall be given a place on the
agenda for all regular Board meetings and special
meetings when deemed appropriate by the Board in order
to enable the franchisee to make such reports as it may
desire and to respond to questions from Board members
and the public.
(c) Duties and Powers. The Cablecasting Board shall
perform the following roles and functions:
(1) Advise the Birmingham City Commission, Beverly Hills
Village Council, Bingham Farms Village Council and
Franklin Village Council on matters relating to cable
communications.
(2) Monitor the franchisee's compliance with the
franchise agreement and the cable communications
ordinance.
(3) Conduct performance reviews as outlined in this
chapter.
(4) Act as liaison between the franchisee and the
public; hear complaints from the public and seek their
resolution from the franchisee.
(5) Advise the Birmingham City Commission, Beverly Hills
Village Council, Bingham Farms Village Council and
Franklin Village Council on adjustments of rates and
services according to the procedure outlined in this
chapter and regulate rates as authorized by the City of
Birmingham and the Villages and permitted by law.
(6) Advise the Birmingham City Commission, Beverly Hills
Village Council, Bingham Farms Village Council and the
Franklin Village Council on transfer, renewal, extension
or termination of a franchise and change of control of a
franchisee.
(7) Appropriate those moneys deposited in an account in
the name of the Cablecasting Board by the City of
Birmingham, Village of Beverly Hills, Village of
Franklin, and the Village of Bingham Farms for:
A. The costs of any consulting and administrative
expenses related to the franchise selection process;
B. The costs of any consulting and administrative
expense related to performance reviews;
C. Enhancement of the cable access channels; and
D. The costs of any consulting or administrative
services under contracts entered into by the Board and
other expenses relating to the continuing duties and
operation of the Cablecasting Board;and submit an annual
budget to the Birmingham City Commission, Beverly Hills
Village Council, Franklin Village Council and Bingham
Farms Village Council.
(8) Oversee the operation of the educational,
governmental and public access channels by:
A. Establishing reasonable user fees.
B. Developing policy guidelines for programming,
scheduling and utilization of equipment and facilities.
C. Directing that programming related primarily to the
promotion of a business, trade or profession be
discontinued or not delivered.
D. Hearing and deciding conflicts between access channel
users regarding utilization of equipment, cablecasting
time or facilities.
(9) Apprise the Birmingham City Commission, Beverly
Hills Village Council, Franklin Village Council, and
Bingham Farms Village Council of new developments in
cable communications technology.
(10) Hear and make recommendations to the Birmingham
City Commission, Beverly Hills Village Council, Franklin
Village Council, and Bingham Farms Village Council on
any request of a franchisee for modification of its
franchise obligations.
(11) Enter into contracts within the Board's budget and
such other contracts as may be authorized by the City of
Birmingham and the Villages.
(12) Administer contracts entered into by the Board and
terminate such contracts.
(13) Except as otherwise provided in this chapter, hear
and decide all matters and disputes relating to or
arising under the customer service standards and
consumer protection provisions of this chapter,
including the assessment of liquidated damages for any
violation of such standards or provisions.
(14) Perform such other functions and duties as may
lawfully be delegated to it by the Birmingham City
Commission, Beverly Hills Village Council, Franklin
Village Council and Bingham Farms Village Council, and
exercise such additional powers and functions as may be
necessary or proper to carry out the duties expressly
mandated in paragraphs (c)(1) through (13) hereof or as
may be delegated under this paragraph (c)(14).
(d) Appeals. Any person jointly or severally aggrieved
by a decision of the Cablecasting Board shall have the
right to appeal to the County Circuit Court on any
matter on which the Cablecasting Board has the power to
render a final decision and exercises such power.
(e) Authority of Municipalities. The Birmingham City
Commission, Beverly Hills Village Council, Franklin
Village Council, and Bingham Farms Village Council shall
retain full authority over all decisions pertaining to
the issuance, extension, or renewal of a franchise,
franchise transfer or change of control of a franchisee,
franchise termination or franchise purchase,
appointments to the Cablecasting Board, public access
guidelines, and bond or letter of credit reduction.
(Ord. 2000-59. Passed 7-10-00.)
820.11 CONSUMER PROTECTION.
(a) Customer Service.
(1) A franchisee shall maintain an office which provides
the necessary facilities, equipment, and personnel to
comply with the following customer service standards
under normal conditions of operation:
A. Sufficient customer service representatives and toll
free telephone line capacity during normal business
hours to assure that a minimum of ninety percent of all
calls will be answered within thirty seconds and ninety
percent of all calls for service will not be required to
wait more than thirty seconds after such call has been
answered before being connected to a service
representative. All incoming customer service lines
shall not be simultaneously busy more than three percent
of the total time the cable office is open on any
business day.
B. Emergency toll free telephone line capacity on a
twenty-four hour basis, including weekends and holidays.
C. A franchisee shall maintain a presence within the
franchise area with adequate hours to meet public
demand. The Cablecasting Board may require a franchisee
to alter or extend these hours if there is significant
evidence through subscriber complaints that the posted
hours are not adequate. For purposes of this provision
only, "franchise area" may include neighboring
municipalities acting jointly under an intergovernmental
agreement to which the Village is a party.
D. An emergency system maintenance and repair staff,
capable of responding to and repairing malfunctions on a
twenty-four hour basis.
E. An installation staff, normally capable of installing
service to any subscriber within seven days after
receipt of a request, in all areas where trunk and
feeder cables have been activated.
(2) A franchisee shall furnish each subscriber at the
time service is installed or reinstalled, and at least
annually thereafter, written instructions and
information regarding the franchisee's general policies
and practices applicable to subscribers including,
without limitation, information regarding products and
services, prices and options, installation and service
maintenance policies, instructions for using the system,
billing and complaint procedures, and such additional
matters as may be required by law or as may reasonably
be required by the Village or the Cablecasting Board.
Such instructions and information shall include the
franchisee's business address, applicable phone number,
and the name of the appropriate official or department
of the franchisee to whose attention the subscriber
should direct a request for service, request for billing
adjustment or complaint. Such instructions or
information shall also include the name, business
address, and telephone number of the Cablecasting
Board's administrator and the name, business address and
telephone number of the Village Administrator or other
designated Village employee to whom the subscriber can
call or write for information regarding the terms,
conditions and provisions governing a franchisee's
franchise if a franchisee fails to respond within a
reasonable period of time to the subscriber's complaint
or request for installation, service or billing
adjustment.
A. A franchisee shall furnish revised written
instructions to each subscriber whenever the
instructions previously provided have been changed, and
at least annually.
B. The written instructions and information provided for
in this section shall be subject to the review and
approval of the Cablecasting Board which shall not
withhold its approval unreasonably. The Board shall have
the power to compel changes in such materials if the
Board deems the same to be incorrect or inadequate in
any material respect, and a franchisee shall promptly
institute any changes so required by the Board.
(b) Cable Service.
(1) A franchisee shall interrupt programming service
only with good cause and for the shortest time possible
and, except in emergency situations, only after periodic
cablecasting notice of service interruption for two days
prior to and on the same channel and at the same time as
the anticipated interruption. Programming services may
be interrupted between 1:00 a.m. and 5:00 a.m. for
routine testing, maintenance and repair, without
notification, any night except Friday, Saturday, or
Sunday, or the night preceding a holiday.
(2) A franchisee shall maintain a written log, or an
equivalent stored in computer memory and capable of
access and reproduction in printed form, of all
subscriber complaints. Such log shall list the date and
time of such complaints, identifying the subscribers and
describing the nature of the complaints and when and
what actions were taken by the franchisee in response
thereto. Such log shall be made available at a location
convenient to the Village, reflecting the operations to
date for a period of at least three years, and shall be
available for public inspection during regular business
hours. The franchisee shall submit a copy of such log
quarterly to the Cablecasting Board for its review. For
purposes of this section, "complaint" means any
expression of dissatisfaction or report of a failure or
defect, by a subscriber or other user of the cable
system to the franchisee relating to any product,
service, price, facility of the franchisee, or action or
omission of the franchisee relating to the franchisee's
status as a cable franchisee of the Village.
(3) For purposes of this section, "subscriber problem"
means any malfunction affecting a single subscriber;
"outage" means a complete loss of picture and sound
affecting more than one subscriber; "system problem"
means any problem other than an outage which affects
more than one subscriber. With respect to matters within
a franchisee's control, a franchisee shall maintain a
repair force of technicians so as to resolve any
subscriber request for service or to repair any
malfunction within the following time frames:
A. For an outage. Within two hours, including weekends
and holidays, after receiving knowledge of such
malfunction.
B. For a subscriber problem. Next business day service
and repair, seven days a week, for all complaints and
requests for repairs or adjustments. In no event shall
the response and repair time for calls received
subsequent to 2:00 p.m. exceed twenty-four hours,
including weekends and holidays, from the time of
receiving a subscriber's request for service.
C. For a system problem. Within twenty-four hours,
including weekends and holidays, of receiving a request
for service identifying a problem concerning picture or
sound quality affecting any two or more subscribers.
(4) Upon receipt of a request for service, a franchisee
shall establish a four-hour appointment window with the
subscriber or adult representative of the subscriber. A
franchisee shall respond to the request for service
within such established appointment window.
A. If access to the subscriber's home is not made
available to a franchisee's technician when the
technician arrives during the established appointment
window, the technician shall leave written notification
stating the time of arrival and requesting that the
franchisee be contacted again to establish a new
appointment window. In such case, the required response
time for the request for service shall remain the next
business day from the time the franchisee is contacted
to establish the new appointment window.
B. Notwithstanding the foregoing, if a franchisee's
technician telephones the subscriber's home during the
appointment window and is advised that the technician
will not be given access to the subscriber's home during
the appointment window, then the technician shall not be
obliged to travel to the subscriber's home or to leave
the written notification referred to above, and the
burden shall again be upon the subscriber, or adult
representative of the subscriber, to contact the
franchisee to arrange for a new appointment window, in
which case the required response time for the request
for service shall again be the next business day from
the time the franchisee is contacted to establish the
new appointment window.
(5) Except as otherwise provided in subsection (d)
hereof, a franchisee shall be deemed to have responded
to a request for service under the provisions of this
section only when a technician arrives at the service
location, begins work on the problem, and proceeds
diligently to complete such work.
(6) No charge shall be made to the subscriber for any
service call unless the problem giving rise to the
service request can be demonstrated by a franchisee to
have been:
A. Caused by subscriber negligence,
B. Caused by malicious destruction of cable equipment,
or
C. A problem previously established as having been
noncable in origin.
(7) All service personnel of a franchisee or its
contractors or subcontractors who have as part of their
normal duties contact with the general public shall wear
on their clothing a clearly visible identification card
bearing their name and photograph. A franchisee shall
account for all identification cards at all times. Every
service vehicle of a franchisee shall be clearly
identifiable by the public.
(c) Franchisee's Billings.
(1) A franchisee's bills to its subscribers shall be
clear, concise and understandable and shall be itemized
as to each charge reflected thereon. The billing content
in use by a franchisee as of the date of adoption of the
ordinance from which this chapter is derived shall be
subject to the approval of the Cablecasting Board. Any
modification of the content of a franchisee's bills to
subscribers shall also be subject to the Board's
approval.
(2) The Board shall not withhold its approval of the
content of a franchisee's bills unreasonably. If the
Board disapproves of any of a franchisee's bills to
subscribers, it shall so notify the franchisee and shall
specify the basis for such disapproval. A franchisee
shall then modify the bills so as to remedy the defects
specified by the Board. The modification shall be
implemented by a franchisee effective with the first
billing after the expiration of forty-five days after
receipt by the franchisee of the Board's notice of
disapproval, unless the Board extends such time.
(d) Disconnect and Downgrade Charges.
(1) A franchisee shall make no charge to any subscriber
on account of complete discontinuance of service. Except
as may otherwise be provided by a law which preempts
this section, a franchisee shall make no charge to any
subscriber on account of a net downgrade of service
whereby the subscriber requests a lower tier of basic
service and/or a reduction in premium service.
(2) A franchisee may only disconnect a subscriber if at
least forty-five days have elapsed after the due date
for payment of the subscriber's bill and a franchisee
has provided at least ten days' written notice to the
subscriber prior to disconnection, specifying the
effective date after which cable services are subject to
disconnection; provided, however, notwithstanding the
foregoing, a franchisee may disconnect a subscriber at
any time if the franchisee in good faith and on
reasonable grounds determines that the subscriber has
tampered with or abused the franchisee's equipment, or
is or may be engaged in the theft of cable services.
(3) A franchisee shall promptly disconnect any
subscriber who so requests disconnection. No period of
notice prior to requested termination of service may be
required of subscribers by a franchisee. No charge may
be imposed upon the subscriber for any cable service
delivered after the effective date of the disconnect
request. If the subscriber fails to specify an effective
date for disconnection, the effective date shall be
deemed to be the day following the date the disconnect
request is received by a franchisee.
(e) Late Payment Charges. Late payment charges imposed
by a franchisee upon subscribers shall be fair and shall
be reasonably related to a franchisee's cost of
administrating delinquent accounts. No late payment
charge shall be imposed upon a subscriber, and a
subscriber shall not be deemed to be in arrears on a
bill, until at least forty-five days have elapsed after
the due date specified on the bill; and, for purposes of
this section and the prior section, the due date
specified on the bill shall not be earlier than the
first day of the monthly period to which the bill is
attributable.
(f) Notice of Programming or Channel Change. Except as
may otherwise be provided by Federal law, a franchisee
shall provide at least forty-five days' written notice
to subscribers prior to discontinuing any channel or
programming service or to realigning any channel and
shall provide written notice of the same to the
Cablecasting Board no later than the franchisee's notice
to subscribers. This provision shall not preclude the
right of the Village to contest or prohibit any such
action by a franchisee if, and to the extent, such
rights exist. The foregoing notice requirement shall not
apply in cases in which a programming service is
discontinued because a nonaffiliated provider thereof
discontinues furnishing the same to a franchisee on less
than forty-five days' notice to a franchisee. In any
such case a franchisee shall nevertheless furnish notice
to its subscribers and the Cablecasting Board promptly
upon a franchisee receiving notice of the discontinuance
of the programming service from such unaffiliated
provider.
(g) Notice of Price Increase or Reduction of Service.
Except as may otherwise be provided by Federal law, a
franchisee shall provide at least forty-five days'
written notice to subscribers prior to implementing any
increase in subscriber rates or reduction in subscriber
services and shall provide written notice of the same to
the Cablecasting Board no later than a franchisee's
notice to the subscribers. The provisions of this
section shall not preclude the right of the Village to
contest or prohibit any such action by a franchisee if,
and to the extent, such right exists.
(h) Franchisee's Communications. Prior to or
simultaneously with any communication made by a
franchisee to the general public or to a franchisee's
subscribers announcing or explaining any increase in
subscriber rates or reduction in programming services, a
franchisee shall furnish a copy of such communication to
the Cablecasting Board. The copy of the communication
required to be furnished to the Board under this section
shall be deemed to be a report under Section 820.09(h)
and hence subject to the provisions of Section
820.09(h).
(i) Disclosure of Information on Franchisee's Costs. If
a franchisee, in any communication to the general
public, to the Village, to subscribers, or to the
Cablecasting Board, justifies a price increase or
reduction in service on the basis of increased costs to
which the franchisee has been subjected, a franchisee,
on written request of the Board, shall promptly furnish
the Board with the underlying information on which such
claim of increased costs is based in such form as the
Board may request. The information furnished to the
Board pursuant to this section shall be deemed to be a
report under Section 820.09(h) and hence subject to the
provisions of Section 820.09(h).
(j) Subscriber Rebates.
(1) Upon a violation of the provisions of this chapter
by a franchisee which results in a subscriber not
receiving cable programming service or receiving only
significantly impaired service, the Board may order and
direct a franchisee to issue a rebate to such subscriber
in any amount determined by the Board to provide
monetary relief to the subscriber substantially equal to
the subscriber's unliquidated detriment or loss
resulting from such violation.
(2) Except for planned outages where subscribers are
provided reasonable notification in advance, upon a
subscriber's request a franchisee shall provide not less
than a one day credit for each day in which there is a
period of four hours or more during which the subscriber
experienced an outage or significant impairment of cable
service not attributable to any action or omission of
the subscriber or to any defect in the subscriber's
equipment. The credit specified in this section shall be
equal to one thirtieth of the subscriber's total monthly
bill for all services and equipment multiplied by the
applicable number of days, but excluding any pay per
view charges; provided, however, if such monthly bill
includes any charge for a pay per view program subject
to such outage or significant impairment, then the
credit shall be increased by the amount of such charge.
(3) Nothing in this section shall be deemed to preclude
a subscriber from requesting and receiving from a
franchisee a rebate greater than that provided in
subsections (a) and (b) hereof.
(k) Liquidated Damages.
(1) The Cablecasting Board may assess liquidated damages
of up to one hundred dollars ($100.00) per day against a
franchisee for each day a franchisee is in violation of
this chapter. Such assessment may be levied against the
security fund specified in Section 820.09(b).
(2) Assessment of liquidated damages shall not
constitute a waiver by the Village of any other right or
remedy it may have under the franchise agreement or
applicable law, including the right to recover from a
franchisee any costs and expenses, including reasonable
attorney's fees, which are incurred by the Village on
account of a franchisee's violation of this chapter.
(l) Remedies Available. If the Cablecasting Board
determines that a franchisee has violated this chapter,
the Board may order appropriate rebates to subscribers
as provided in subsection (j) hereof and/or assess
liquidated damages against a franchisee as provided in
subsection (k) hereof. In addition, the Village may
pursue any additional or other legal or equitable
remedies available to it under the franchise agreement
or any applicable law.
(m) Appeal Process. A franchisee may appeal any action
of the Cablecasting Board to the Village by submitting a
written appeal within twenty-one days from the date of
the Board's action to which a franchisee objects. Upon
such appeal, the Village Council shall conduct a de novo
review of the action of the Board being appealed and
shall set a hearing date within forty-five days of the
date of receipt of the appeal. A franchisee may present
any information, data or other evidence to the Council
either prior to or at the time of the hearing. Hearings
shall be open to the public and members of the public
and members of the Board may also present any evidence
or information pertinent to the matter appealed. The
Council shall then determine whether to uphold, reverse
or modify the action of the Board. The appeal shall stay
any further action on the matter appealed until the
appeal has been decided by the Council.
(Ord. 2000-59. Passed 7-10-00.)
