This chapter shall be known and may be cited as the "Cable Communications Franchise Ordinance."

(Ord. No. 925, § 1, 9-25-95)

No person, natural or corporate, or any other entity shall own or operate a cable system in the City of Madison Heights, except by franchise granted by the city, between the city and the franchisee, which shall comply with this chapter.

(Ord. No. 925, § 1, 9-25-95)

Any breach by the franchisee of the franchise, in addition to constituting a breach of contract, shall constitute a violation of this chapter. The cost of litigation, including, but not limited to, reasonable attorneys' fees, incurred by the parties to enforce this chapter or a franchise granted, shall be reimbursed to the prevailing party.

(Ord. No. 925, § 1, 9-25-95)

Franchise granted the franchisee shall terminate no later than 15 years from date of grant subject to renewal for periods of no longer than ten years.

(Ord. No. 925, § 1, 9-25-95)

Franchise renewals shall be in accordance with applicable law and regulation, as those laws and regulations may from time-to-time be amended, including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended, and the Cable Television Consumer Protection and Competition Act of 1992, as amended. City may after the termination of a franchise due to the expiration of a franchise and absent renewal, the denial of a request to renew a franchise or other lawful cause, acquire an ownership interest in the cable system, or require a sale of the cable system to any other person at not less than fair market value for the cable system as a going concern.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 5, 12-30-96)

(a)

In addition to all other rights and powers pertaining to the city by virtue of the franchise or this chapter the city may terminate and cancel the franchise and all rights and privileges of the franchisee in the event that the franchisee:

(1)

Substantially violates any provision of the franchise or this chapter, or any rule, orders or determination of the city council or city administration, where such violation shall remain uncured for a period of 30 days subsequent to receipt by the franchisee of written notice of said violation, subject to arbitration under section 7½-57. A forfeiture of the franchise will require a violation of any material provision of the franchise or this chapter.

(2)

Attempts to dispose of any of the facilities or property of its CATV business to prevent the city from purchasing same.

(3)

Attempts to evade any of the provisions of this franchise chapter or the franchise, or practices any fraud or deceit upon the city.

(b)

Any termination and cancellation shall be made by resolution of the city council duly adopted after 60 days' notice to the franchisee and shall in no way affect any of the city's rights under this franchise or any provisions of law. Before the franchise may be terminated and canceled under this section, the franchisee shall be provided with an opportunity to be heard before the city council, upon 30 days' written notice to the franchisee of the time and place of the hearing. The notice shall affirmatively recite the reasons alleged to constitute such cause shall be recited in the notice.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 6, 12-30-96)

As to continuity of service, and subject to grantee's federal and state constitutional and statutory rights which the parties are deemed not to have waived under this agreement, the parties agree as follows:

(1)

Service after revocation, termination, nonrenewal, abandonment or withdrawal. Subject to applicable federal and state law, grantee shall provide service for an interim period of up to 18 months beyond:

a.

Any then-existing term of this franchise agreement or any renewal of the term;

b.

Forty-five-days' notice from grantee to the city of grantee's proposed abandonment, withdrawal or cessation of service; or

c.

The effective date of any revocation, termination or nonrenewal/expiration of this agreement.

(2)

City assistance. During such interim period, the city will assist and otherwise use its best efforts to assist grantee in providing a satisfactory basis for grantee to continue providing service under this agreement.

(3)

Revenues. During any such interim period in which grantee continues to provide service, grantee is entitled to all revenues collected, less any franchise fees or other moneys owed to the city; provided, however, that grantee is not required during any such interim period to provide service if the revenues collected are less than the operating costs incurred.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 7, 12-30-96)

The following definitions shall apply to this chapter:

Cable operator: A person coming under the definition set forth in 47 USC § 522.

Cable television system: A system of coaxial cables or other electrical or optical conductors and equipment used or to be used to originate or receive television or radio signals directly or indirectly off the air and to transmit them via cable to subscribers for a fixed or variable fee, including the origination, receipt, transmission and distribution of voices, sound signals, pictures, visual images, digital signals, telemetry or any other type of closed circuit transmission by means of electrical impulses, whether or not directed to originating signals or receiving signals off the air.

City: The City of Madison Heights, Michigan, and all the territory within its territorial corporate limits.

Franchise: The separate agreement by which the franchise is granted to the franchisee, as required by this chapter.

Gross revenues derived from the cable system: Compensation, in whatever form, exchange or otherwise, received by grantee from subscribers for the provision of cable service over the cable system in the City of Madison Heights and shall include, without limitation, advertising revenues. This term does not include any sales, excise or other taxes collected by grantee on behalf of any state, city or other governmental unit, and shall be net of bad debt, refunds to subscribers and shopping revenues.

Normal business hours: 8:00 a.m. to 5:00 p.m. Monday to Friday, excluding holidays.

Normal operating conditions: Those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages exceeding two hours, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the cable system.

Pay TV: An arrangement under which a charge is made to a television receiver for receiving a particular television program.

Producer: A user providing input services to the cable system for receipt by subscribers.

Public channels: Channels which are dedicated to the public interest, according to the following categories:

(1)

Public access;

(2)

Educational use;

(3)

Local government purposes.

Service interruption: The loss of picture or sound on one or more cable channels.

Subscriber: A person or organization whose premises receive any transmission from the system.

Subscriber service drop: Each extension wiring from the franchisee's distribution lines to a subscriber's building.

User: A person or organization utilizing a system channel as a producer, for purposes of production and/or transmission of material, or as a subscriber, for purposes of receipt of material.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 8, 12-30-96)

In selecting a franchisee pursuant to this chapter, all proposals shall be submitted in writing and shall include, but not be limited to, the following information:

(1)

The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its officers, directors, main offices, major stockholders, and the names and addresses of parent, affiliated and subsidiary companies. For the purpose of this chapter and of any franchise, a major stockholder shall be defined as the owner of five percent or more of the stock of any corporation. The city shall be entitled, by requiring reports or by its own investigation, to determine the true ownership or control, indirect or direct, of any cable television system applying for franchise. The knowledge by the city of the true ownership or control of any cable television system regulated by this chapter, or any ordinance enacted granting a franchise, is declared to be in the public interest and a continuing knowledge of the ownership and control of any franchise shall, throughout the life of the franchise, continue to be of public interest and of substantial importance to the City of Madison Heights and disclosure of same is required by the franchise.

(2)

Biographical data of its proposed management. This data shall include a statement of the principal offices of all owners, executives and key personnel of the applicant.

(3)

A statement and general description of the cable television system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which the applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system. The application shall also specify the type and capacity of the equipment to be installed and a franchisee shall be required by the city engineer to update this section of its proposal in keeping with the advances in the state of the art of cable television systems design.

(4)

A map of the City of Madison Heights showing an overview of the proposed use of public streets on which applicant proposes to construct, install or maintain all cable television equipment, lines and facilities, including a detailed description of the equipment and facilities proposed to be utilized during the first three years from date of franchise grant.

(5)

The applicant shall finish information as to the programming services which it shall propose to provide, including but not limited to:

a.

The off-air signals to be provided initially.

b.

The number of channels offered and the potential for diversified services to local government, educational institutions, community groups, householders, and local commercial interests.

c.

Projected development of customer and community services, including but not limited to equipment, production facilities and support services provided by the franchisee for local origination programming; provisions for two-way communications and capability for interconnection with cable television systems in communities contiguous with the City of Madison Heights.

(6)

Sufficient evidence of financial ability and technical capability to construct, operate and maintain a cable system. Financial ability shall be demonstrated by inclusion of a current audited financial statement prepared by a certified public accountant showing applicant's financial status. The rendering of the financial statements shall be in such form as to clearly reveal the extent of the applicant's investment in existing cable television systems, revenues, and expenses of operations. Such statement, in addition, shall include a responsible estimate of the costs of construction and installation of the proposed Madison Heights system and a detailed statement of the financing of such costs, including the amount of borrowed funds, if any, which may be required.

(7)

A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed cable television operation. If a franchise is granted hereafter to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of not force and effect whatsoever. Upon the granting of any franchise, the franchisee shall, throughout the life of such franchise, keep the city fully informed with respect to the matters outlined in this paragraph, and the failure to disclose such information during the life of such franchise shall be considered a violation of the franchise, and subject such franchise, at the discretion of the city council, to suspension or termination.

(8)

A listing of all cable television systems owned by the applicant or in which the applicant has substantial interest, including joint ventures, and minority financial interests exceeding five percent. The list shall contain statements regarding each system, as to its location, number of homes presently in the territory being served or to be served, the number of homes passed and the current number of subscribers, gross revenues and expenses attributable to cable television operations for the most recent 12-months' period for which such data are available. Accompanying the list shall be the name and address of each local regulating authority. The listing of such systems shall be construed as authority for the city to make inquiry as to the ability and responsibility of the applicant and its officers.

(9)

An engineering plan, indicating a schedule for the commencement of operations and a completion timetable.

(10)

Revenue forecasts for the next five years of service.

(11)

A schedule of rates for installation charges, monthly service fees and relocation charges according to the schedules specified elsewhere in this chapter.

(12)

The council may at any time demand, and the applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether a requested franchise should be granted. The city council shall retain, throughout the life of any franchise given in pursuance of the City Charter, the right to demand such supplemental, additional or other information as above noted, and upon proof of the failure to supply such information upon reasonable demand, the franchise under which any applicant may be operating shall be suspended upon order of the city council until such information shall be forthcoming.

(13)

The applicant shall include a sworn declaration by an authorized officer of the applicant's company that all information provided is complete and true and that the applicant agrees to comply with all provisions of the cable communications franchise ordinance of the City of Madison Heights.

(Ord. No. 925, § 1, 9-25-95)

Based upon the information contained in a prospective franchisee's proposal, submitted pursuant to the previous section hereof, and such other pertinent knowledge or information as may be obtained by the city, the following criteria shall be used for the award of any franchise or transfer:

(1)

Service priorities:

a.

Consideration shall be given to system capability in terms of no-cost cablecasting production facilities available to municipal and educational institutions and community groups and individuals.

b.

Consideration shall be given to system provision for two-way telecommunications capability.

c.

Consideration shall be given to total number of channels provided by the system.

(2)

Rate schedule. Preference may be given to applicants with the most reasonable installation and rate schedule.

(3)

Financial capacity. The evidence of financial ability required in the applicant's proposal shall be such as to assure ability to complete the system within 18 months of the date of franchise and to ensure the maintenance of the highest level of system operation during the life of the franchise and subsequent renewals thereof.

(Ord. No. 925, § 1, 9-25-95)

The city 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 20 days prior to the date of the hearing. Any franchise that is granted shall be published in the same manner as are notices of passage of other city ordinances.

(Ord. No. 925, § 1, 9-25-95)

Every franchise granted pursuant to this chapter shall be subject to all provisions of the City Charter, and shall expressly indicate that it is subject to, the following provisions:

(1)

Any franchise shall be subject to all applicable provisions of city ordinances and the City Charter, and any amendments, whether made prior to or after the inception of the franchise. No material rights expressly granted by the ordinance or franchise shall be affected.

(2)

Any franchise granted hereunder shall be subject to the right of the city:

a.

To require proper and adequate extension of plant and service and maintenance at the highest practicable standard of efficiency, and specifically to require extension of subscriber service to all residents of the city within 18 months of the inception of the franchise.

b.

To establish reasonable standards of service and quality of products, and to prevent unjust discrimination in service or rates.

c.

To require continuous and uninterrupted service to the public in accordance with the terms of the franchise throughout the entire period.

d.

To impose such other regulations as may be determined by the council to be conducive to the safety, welfare and accommodation of the public.

e.

To use, control and regulate the use of its streets, alleys, bridges, and public places and the space above and beneath them.

f.

Through its appropriately designated representatives, to inspect all construction or installation work performed subject to the provisions of the franchise and this chapter, and make such inspections as it shall find necessary to ensure compliance with the terms of the franchise, this chapter and other pertinent provisions of law, including the Occupational Safety and Health Act, as amended.

g.

At the expiration of the term for which this franchise is granted or upon its termination or cancellation, to require the franchise to remove, at its own expense, any and all portions of the cable television system from the public ways within its city or it shall be deemed to be abandoned.

(3)

No franchise shall be exclusive.

(Ord. No. 925, § 1, 9-25-95)

(a)

In addition to those matters required elsewhere in this chapter to be included in the franchise, it must contain the following express representations by the franchisee that:

(1)

It accepts and agrees to all of the provisions of this chapter and any supplementary specifications, as to construction or operation of the system, which the city may include in the franchise.

(2)

It has examined all of the provisions of this chapter and waives any claims that any provisions are unreasonable, arbitrary, invalid or void.

(3)

It recognizes the right of the city to make reasonable amendments to the franchise ordinance during the term of the franchise upon 60 days' prior notice to the franchisee or without notice with respect to emergency amendments. No material rights expressly granted by the ordinance or franchise shall be affected.

(4)

It recognizes and agrees that it shall be considered a public utility for the purpose of this chapter.

(b)

The franchise shall contain such further conditions or provisions as may be negotiated between the city and the franchisee, except that no such conditions or provisions shall be such as to conflict with any provisions of this chapter or other law. In case of conflict, or ambiguity between any terms or provisions of the franchise agreement and this chapter, the words of this chapter shall control.

(Ord. No. 925, § 1, 9-25-95)

The franchisee's distribution system shall initially be capable of carrying at least 78 channels unless otherwise negotiated to by the parties and set forth in the franchise. The system shall also provide simultaneous reverse direction signal capability for digital, audio and video signal transmission on all elements of the system. The extent to which the reverse capability is available to subscriber use shall be specified in the franchise.

(Ord. No. 925, § 1, 9-25-95)

Each franchisee shall constantly upgrade its facilities, equipment, and service so that its system is as advanced as the current state of technology and sound business and economic practices will allow. Each franchisee shall install additional channel capacity as required to keep channel capacity in excess of the demand by public, educational and governmental producers. It is the intent of this section that whenever it is reasonably and economically feasible, the cable television system shall be no less advanced than any other system of comparable size, excepting only systems which are experimental, pilot or demonstrative.

(Ord. No. 925, § 1, 9-25-95)

All insurance policies and bonds as are required of the franchisee in this regulatory ordinance shall be written by an insurance company or companies authorized and qualified to do business in the State of Michigan. Certificates of all coverage required shall be promptly filed by the franchisee with the city.

(Ord. No. 925, § 1, 9-25-95)

At the request of any subscriber, the franchisee shall install and maintain an adequate switching device to allow the subscriber to choose between cable and noncable reception.

(Ord. No. 925, § 1, 9-25-95)

The franchisee shall, without charge for installation, maintenance or service, make installations of its standard facilities at public and private schools within the city, the city's public buildings, including but not limited to the City Hall, the main and branch Public Library, the Senior Citizens' Activity and Drop-In Center, fire and police stations, Department of Public Services and Nature Center. Such installations shall be made at such reasonable locations as shall be requested by the respective units of government or educational institutions. No monthly service charges shall be made for distribution of the franchisee's signals within such publicly owned buildings.

(Ord. No. 925, § 1, 9-25-95)

The franchisee's system shall be designed and constructed so as to be capable of interconnection with any systems existing in municipalities contiguous to Madison Heights (and insofar as is technically and economically feasible with any such systems anticipated for future construction). The franchisee shall make reasonable and diligent efforts to accomplish interconnections with such systems.

(Ord. No. 925, § 1, 9-25-95)

In the conduct of the business franchised hereunder, neither the franchisee, nor its officers, employees or agents shall sell, repair or install or recommend the sale, repair or installation of radio or television receivers; provided, however, that nothing herein shall be deemed to prohibit the franchisee, at a customer's request and without payment, from examining and adjusting a customer's receiver set to determine whether reception difficulties originate in said set or in franchisee's system. The franchise granted pursuant hereto authorizes only the operation of a system as provided for herein, and does not take the place of any other franchise, license or permit which might be required by law of the franchisee.

(Ord. No. 925, § 1, 9-25-95)

(a)

The franchisee shall make cable service available to all residents of the city within 18 months after all necessary permits and notifications are received and all necessary utility (telephone and power) pole rearrangements are completed. It shall be the obligation of the franchisee to serve all residents of the city who pay for services.

(b)

Those portions of the franchise area which do not have the density of 20 potential subscribers per linear mile shall be served by grantee if the potential subscribers agree to a grant-in-aid of construction on the following terms and conditions:

(1)

Grantee shall receive written requests from a minimum of ten potential subscribers per linear mile or an equivalent pro rata number based on the actual length of the extension.

(2)

Grantee shall calculate its then current cost per mile of extension. This shall be divided by 20 locations per linear mile to arrive at the required per location investment grantee must make.

(3)

The potential subscribers requesting service shall then be multiplied by grantee's investment per location and this total amount shall be subtracted from grantee's current cost per linear mile.

(4)

The remaining amount shall then be shared pro rata by the potential subscribers requesting service and paid to grantee before the time the extension is made.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 11, 12-30-96)

(a)

All of the franchisee's plant and equipment, including, but not limited to, the antenna site, head-end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial 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 construction crews and so as not to endanger or interfere with the safety of any persons or property, or to interfere with improvements the municipality may deem proper to make or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on municipal properties. Further, all such plant and equipment and all construction shall meet all relevant specifications of the Federal Communications Commission.

(b)

Any opening or obstructions in or disturbances of the streets, public ways or other municipal properties made by the franchisee in the exercise of its rights under the franchise agreement shall be guarded and protected at all times by the placement of adequate barriers, fences or boardings, the bounds of which during periods of dusk and darkness shall be clearly designated by adequate warning lights, all by the franchisee at its expense. In case of any physical disturbance or damage to any streets, public ways or other municipal properties occurring in the course of erection, installation, construction, reconstruction, replacement, removal, repair, maintenance or operation, the franchisee shall promptly repair such disturbance and damage at its own expense and in a manner reasonably approved by the city, and such repair shall be coordinated to the extent possible with any other work underway in the right-of-way.

(c)

The franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place or municipal property, or remove from the street or other public place or municipal property, any property of the franchisee when required by the city council or its designee by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other type of structures or improvements by public agencies. This subsection shall not be interpreted to prohibit reimbursement to the franchisee for relocation expenses where reimbursement is required or authorized by state or federal law.

(d)

The franchisee shall, on the request of any private party holding an appropriate permit issued by the city, temporarily raise or lower its lines to permit the moving of any building or other structure, and the actual expense of the same shall be prepaid by the party requesting the same.

(e)

Upon failure of the franchisee to commence, pursue or complete any work required by law or by the provisions of this franchise to be done in any street or other public place or municipal property, within the time prescribed, and to the satisfaction of the city council or its designee, the city council or its designee may, at its option, among other remedies including those set both in section 7½-6 and section 7½-40 cause such work to be done and the franchisee shall pay to the city the cost thereof in the itemized amounts reported by the city council or its designee to the franchisee within 30 days after receipt of such itemized report.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 12, 12-30-96)

To the extent permitted by law, each franchisee shall have the right and obligation to provide cable television service to any member of the public in any publicly or privately owned buildings which are in the franchisee's franchise area without paying a charge to the building owners. Any disputes between franchisee and any building owner shall be heard and resolved by the city. Each franchisee shall report to the city and building owner who requests a payment from the franchisee before allowing the franchisee to install cable system service in the building owner's building or who otherwise refuses it free access.

(Ord. No. 925, § 1, 9-25-95)

Any damage caused to the property of building owners or users or any other person by the franchisee shall be repaired fully by the franchisee. However, nothing in this section shall require that grantee pay damages or other costs to a subscriber or homeowner when that subscriber or homeowner requested that grantee remove, replace or relocate cable and grantee exercised due care in the performance of that service, or when the customer provided false information to grantee on which grantee relied.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 13, 12-30-96)

Upon termination of service to any subscriber, the franchisee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his written request, except drops.

(Ord. No. 925, § 1, 9-25-95)

(a)

Subject to applicable law, a franchisee shall not sell or transfer a majority interest in itself and/or the assets which comprise its cable system out of such franchisee's ordinary course of business without the advance consent of the city, which consent shall not be unreasonably withheld or delayed. A franchisee is not restricted by this section from obtaining or selling equipment or other property in the ordinary course of business. When deciding whether to grant consent, the city may only take into consideration the financial, legal and technical ability of the proposed transferee and/or such other and further factors which may be permitted under then existing law. Notwithstanding the foregoing, no approval is required from the city in the case where a franchisee offers its stock for public trading.

(b)

No franchise may be transferred unless such transaction is first approved by the city council by resolution, after public hearing, in accordance with the same procedures as are specified for grants of franchises.

(c)

By its acceptance of the franchise, the franchisee specifically concedes and agrees that any acquisitions or transfers, as set forth above, without prior approval of the city council shall constitute a violation of the franchise and this chapter by the franchisee.

(d)

This section shall not apply to any sale, assignment or transfer to one or more purchasers, assignees or transferees controlled by, controlling, or under common control with, grantee and grantee shall be permitted to effect any such sale, assignment or transfer without obtaining the prior approval of the city; provided, that the grantee shall in any event fully comply with all federal, state and county laws and regulations that are applicable to the completion of such sale, assignment or transfer; and provided further that such sale, assignment or transfer shall not relieve grantee of its liability or obligation under the agreement unless otherwise agreed to in writing by the city.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 14, 12-30-96)

(a)

A franchise shall at the option of the city council cease and terminate 120 days after the appointment of a receiver or receivers, or trustee or trustees to take over and conduct the business of the franchisee whether in a receivership, reorganization, bankruptcy or other action or proceedings unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

(1)

Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise, and the receivers or trustees within said 120 days shall have remedied all defaults under the franchise; and

(2)

Such receivers or trustees shall within said 120 days execute an agreement duly approved by the court having jurisdiction in the premises in which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise.

(b)

In the case of a foreclosure or other judicial sale of the plant, property and equipment of the franchisee, or any part, including or excluding this franchise, the city council or its designee may serve notice of termination upon the franchisee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the franchisee shall cease and terminate 30 days after service of such notice, unless:

(1)

The city council shall have approved the transfer of this franchise, as and in the manner in this chapter provided; and

(2)

The successful bidder shall have agreed with the city to assume and be bound by all terms and conditions of this franchise.

(Ord. No. 925, § 1, 9-25-95)

The franchisee shall not oppose intervention by the city in any suit or proceeding to which the franchisee is a party.

(Ord. No. 925, § 1, 9-25-95)

A franchisee shall not, in its rates or charges, or in making available the services or facilities of its system, or in its rules or regulations, or in any other respect, make or grant preference or advantages to any subscriber or potential subscriber to the system, or to any user or potential user of the system; and shall not subject any such persons to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system or other legitimate uses; nor shall it be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification shall be entitled.

(Ord. No. 925, § 1, 9-25-95)

The public, educational and access channels of the cable television system of a franchisee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens businesses, public agencies, or other entities having a legitimate use; and no one shall be arbitrarily excluded from its use; allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same, and where such rules or decision are not effective to resolve a dispute between conflicting users or potential users, the matter shall be submitted for resolution to the Madison Heights City Council or its designee.

(Ord. No. 925, § 1, 9-25-95)

The franchisee shall maintain a sufficient force of resident agents, and employees, at all times, to provide safe, adequate and prompt service for its facilities.

(Ord. No. 925, § 1, 9-25-95)

Copies of all petitions, communications and applications submitted by the 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 operations of the cable television system authorized pursuant to this franchise, shall also be submitted to the city upon request; provided, however, that, if any such petition, communication or application has any material adverse effect with respect to grantee's cable system in the city or the performance of grantee's duties under its franchise agreement with the city, grantee shall submit copies of such petition, communication or application without request; provided, further, that grantee shall not be required to submit state or federal tax returns, or any information exempted under federal privacy laws, including section 631 of the Federal Cable Act (codified at 47 USC § 551).

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 16, 12-30-96)

The franchisee shall diligently apply for all necessary permits and authorizations required in the conduct of its business and shall diligently pursue the acquisition, including necessary pole attachment contracts, and necessary authorizations from the Federal Aviation Administration to construct such receiving antenna towers as may be required, and any necessary authorizations or waivers from the Federal Communications Commission. When any such permit, authorization, contract or waiver is obtained, copies thereof shall be promptly filed by the franchisee with the city.

(Ord. No. 925, § 1, 9-25-95)

(a)

The right is reserved to the city to adopt, in addition to the provisions and existing applicable ordinances, such additional regulations of general applicability as it shall find necessary in the exercise of the police power; provided, that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with these rights and shall not be in conflict with the applicable laws of the State of Michigan or the United States.

(b)

The city shall have the right, during the life of this chapter, of maintaining upon the poles or in the underground conduits of the franchisee within the city limits wire and fixtures necessary for a traffic signal control system and/or a police and fire alarm system. Such wires and fixtures shall be installed and maintained at the sole expense of the city and shall at all times comply with all the reasonable rules and regulations of the franchisee so that there may be a minimum danger of contact or conflict between the wires and fixtures of the franchisee and wires and fixtures used by the city.

(c)

The franchisee shall install as part of its cable system, and shall operate through the term, an emergency alert system (EAS), or the successor to that system, in accordance with all requirements imposed from time to time by the Federal Communications Commission, including, without limitation, the requirements that cable television systems transmit a visual EAS message on at least one channel (47 C.F.R. § 11.51 (g)(3)) and that cable systems also provide video interruption and an audio EAS message on all channels, with the audio message further stating which channel is carrying the visual message (47 C.F.R. § 11.51 (g)(2)).

(d)

The system shall be engineered to provide an emergency alert system to allow authorized officials to automatically override the "video and audio signal" on all channels in the city and transmit and report emergency information in the city. In the event of any such use by the city, the city will hold harmless and indemnify the franchisee from any damages or penalties resulting from the use of this service.

(e)

The city shall not be liable for any damage occurring to the property of the franchisee caused by employees of the city in the performance of their duties, except for damage caused to the franchisee's facilities by the negligence of the city's employees. The city shall not be liable for their performance of their duties, nor shall the city be held liable for the failure of the franchisee to be able to perform normal service due to acts of God or other factors beyond the control of the city.

(f)

Nothing in this chapter shall grant to the franchisee any right of property in the city-owned property, nor shall the city be compelled to maintain any of its property any longer than, or in the fashion other than, in the city's judgment, its own business or needs may require.

(g)

Except for individual service drops, the franchisee shall not erect any pole, install any underground lines or conduits, run any lines, make any attachment nor shall any construction of any kind be commenced without the prior approval of the building department or appropriate department or the city, which approval shall not be unreasonably withheld. The city shall have and maintain the right to inspect the construction, operation and maintenance of the system by the franchisee to ensure the proper performance of the terms of this regulatory ordinance.

(Ord. No. 925, § 1, 9-25-95)

The franchisee shall, at all times, comply with the rules and regulations governing cable television system operations promulgated by the FCC. This shall include adherence by the franchisee to FCC rules regarding technical and engineering specifications involved in the construction of the cable television system and signal carriage.

(Ord. No. 925, § 1, 9-25-95)

(a)

Customer service cable standards. Grantee shall meet or exceed the FCC standards regarding customer service set forth in section 76.309 of the FCC Rules.

(b)

Customer service guarantees. Grantee guarantees that installations and service calls will be performed during the time-period agreed upon with the subscriber or subscriber remuneration will be provided. Remuneration will be determined by subscriber requirements, and may take the form of free installation, service credit or promotional items of comparable value.

(c)

Communications with subscribers:

(1)

Grantee shall provide written information concerning each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon reasonable request:

a.

Products and services offered;

b.

Prices and options for programming services and conditions of subscription to programming and other services;

c.

Installation and service maintenance policies;

d.

Channel positions of programming carried on the cable system; and

e.

Billing and complaint procedures, including the address and telephone number of the city's designated office.

(2)

Subscribers and the city will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice will be given to subscribers a minimum of 30 days in advance of such changes if the change is within the control of grantee. In addition, grantee shall notify subscribers 30 days in advance of any significant changes in the other information required pursuant to subsection (a) above.

(d)

Billing:

(1)

Bills will be clear, concise and understandable. Bills will have full itemization including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

(2)

In case of a billing dispute, grantee will respond to a written compliant from a subscriber within 30 days.

(e)

Refunds. Where applicable, refunds or credits will be issued within 60 days of:

(1)

Resolution of any billing inquiry;

(2)

Return of equipment supplied by grantee if service is terminated; or

(3)

Termination of service.

(f)

Credits. Credits for service will be issued no later than two billing cycles following a determination that a credit is warranted.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 19, 12-30-96)

A franchisee shall also allow the city to review all of its accounting and financial records upon reasonable notice; make available all of its plans, contracts, and engineering, statistical, customer and service records relating to its system and all other records required to be kept hereunder; and at all times maintain complete and accurate books of account, records of its business and operations, and all other records required by this chapter or the franchise. Disclosure of personally identifiable information is subject to requirements of law.

(Ord. No. 925, § 1, 9-25-95)

The city council may amend this chapter whenever necessary to enable the franchisee to take advantage of any developments in the field of transmission of communication signals which will afford it an opportunity to more effectively, efficiently or economically serve its customers. This section shall not be construed to require the city to make any such amendment. If, in the future, a franchisee adds additional services to its communications system, then required by the Federal Cable Service Act or other applicable law said service and the rate to be charged shall first be approved by the city council or other applicable governmental agency.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 21, 12-30-96)

(a)

Except with respect to the negligence or other wrongful acts or omissions of the city, its agents, employees or representatives, the franchisee shall indemnify the city for and hold it harmless from all liability, damage, cost or expense arising from claims of injury to persons or damage to property occasioned by reason of any conduct undertaken pursuant to this chapter, including libel and slanderous actions. The city shall notify the franchisee's representative within 15 days after the presentation of any claim or demand to the city, either by suit, or otherwise, made against the city on account of any negligence or contract as aforesaid on the part of the franchisee, except that failure of the city to give such notice shall not release franchisee unless such failure shall unreasonably prejudice franchisee's rights. The franchisee further agrees as follows:

(1)

The franchisee shall carry workers' compensation insurance, with statutory limits and employer's liability insurance with limits of no less than $100,000.00, which shall cover all operations to be performed by franchisee as a result of this chapter.

(2)

The franchisee shall carry comprehensive general liability and comprehensive automobile liability insurance with bodily injury limits of not less than $500,000.00 per person and $1,000,000.00 per occurrence.

(3)

The franchisee's workers' compensation, comprehensive general liability and comprehensive automobile liability insurance shall be written by an insurance company with a capital and/or surplus of not less than $3,000,000.00 and the franchisee agrees to furnish the city with certified copies of certificates of insurance of said policies, which shall provide that insurance shall not be canceled unless 30 days' prior written notice shall first be given to the city.

(4)

The franchisee shall within 30 days subsequent to the effective date of this chapter, post a performance bond with the city, written by an approved corporation surety in the amount of $100,000.00 and in a form satisfactory to the city guaranteeing the franchisee's continued operation of the cable television system within the city, and the franchisee shall well and truly observe, fulfill and perform each term and condition of the bond. All damages which may be directly occasioned by the failure of the franchisee to perform under this chapter, up to the principal amount of bond, shall be recoverable from the principals and sureties of said bond by the city. However, the bond required hereunder may be reduced by the parties to such face amount as they may agree upon.

(5)

If the franchisee should commit a breach of this chapter and not remedy such breach within 60 days after having received written notice from the city to do so, then the city, at its discretion, may declare a portion of the bond equivalent to the amount of damages sustained by the municipality which are directly attributable to such breach forfeited and the franchisee shall thereupon be required to remedy the breach with reasonable dispatch, and within 60 days of such forfeiture, replace the forfeited portion of the bond, subject to arbitration under section 7½-57. Notwithstanding the foregoing, nothing contained in this paragraph shall serve to absolve the franchisee of any of its obligations under this chapter of the rules and regulations of the Federal Communications Commission.

(6)

The franchisee shall pay all premiums chargeable for the bond and shall keep the same in full force and effect at all times throughout the term of this chapter and during the removal of all poles, wires, cables, underground conduits, manholes and other conductors, converters, equipment, and fixtures subsequent to the termination of this chapter. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to 60 days after written notice to that effect is given to the clerk or similar official of the city.

(b)

Franchisee further agrees as follows:

(1)

Franchisee agrees to defend, indemnify and save harmless the city and its employees, officers, officials and representatives acting in their official capacity (collectively, "indemnified party") against all damages, losses and expenses (including), without limitation, reasonable attorney fees and costs of suit or defense) arising from any claims, demands and suits for personal injury (fatal or nonfatal), property damages or claims of any other nature, to the extent such damages, losses or expense arise out of or are caused by the negligent or other wrongful acts or failures to act of franchisee or its employees, agents, servants, officers, directors, contractors, subcontractors or representatives. Notwithstanding the foregoing, this subsection shall not apply to any liability which may accrue to the city with regard to the city's use of any channel provided for the city's use or arising out of the use of the emergency override capability.

(2)

The city and franchisee acknowledge that section 635A of the Federal Cable Act limits the liability of the city to third parties in connection with the grant of the franchise. In particular, section 635A limits to injunctive and declaratory relief any relief in any court proceeding brought by a third party involving any claim arising from the regulation of cable service or from a decision to grant, renew, transfer or amend a franchise, to the extent that relief is required by any other provision of federal, state or local law.

(3)

Notwithstanding this provision, franchisee shall defend, indemnify and hold harmless the city against all damages, losses and expenses (including, without limitation, reasonable attorney fees and costs of suit or defense) arising from any third-party suit which (1) challenges the authority of the city to issue a franchise to franchisee or (2) alleges that, in issuing the franchise to franchisee to franchisee, the city acted in an illegally disparate or discriminatory manner.

(4)

The city and franchisee agree that franchisee's duty to defend and indemnify the city encompasses claims that the city (1) lacked authority under federal or state law, the City Charter, City Code or Ordinance No. 925 (as amended in connection with the grant of the franchise) in issuing the franchise to franchisee, (2) violated federal or state due process, equal protection or civil rights laws in awarding the franchise to franchisee, (3) acted in an illegally disparate or discriminatory manner against the city's incumbent cable operator in awarding the franchise to franchisee or (4) accepted terms or conditions in the franchise awarded to franchisee which violate federal or state laws, if any, regarding equal protection rights of competitors in providing cable television services in the city.

(5)

The city and franchisee agree that franchisee's duty to defend and indemnify under the immediately preceding subsections (3) and (4) shall not include any claims or defenses which do not arise, and become complete, upon the award of the franchise to franchisee, and so shall not include any duty to defend or indemnify against claims which arise after the grant of the franchise, including, without limitation, any claims that: (1) the city has engaged in disparate or discriminatory regulatory enforcement activities under Ordinance No. 925, as amended, after the grant of the franchise; or (2) the city cannot enforce section 7½-56(1) against the incumbent cable operator on equal protection or any other grounds. In addition, franchisee's duty to defend and indemnify does not include any claims by the city's incumbent cable operator, regardless of when the claims arise, that any action by the city in granting franchisee's franchise, including, without limitation, the repeal of section 7½-56(2), violates any of the incumbent cable operator's contractual rights.

(6)

The city and franchisee agree that, if any action is commenced against the city which raises both claims that are covered by franchisee's duty to defend under this section and claims that are not covered by franchisee's duty to defend, franchisee's duty to defend the city in that action shall extend only to the claims that are covered by franchisee's duty to defend under this section.

(7)

The indemnified party shall give franchisee reasonably prompt written notice of any claim, demand, action or proceeding for which indemnification will be sought under this provision of the ordinance and, if such claim, demand, action or proceeding is a third-party claim, demand, action or proceeding, franchisee shall, at its expense, assume the defense of such claim, demand, action or proceeding, using counsel reasonably acceptable to the indemnified party. The indemnified party shall have the right to provide counsel, at its own expense, with respect to any such third-party claim, demand, action or proceeding that franchisee so defends. In connection with any such third-party claim, demand, action or proceeding, franchisee and the indemnified party shall cooperate with each other and provide each other with access to relevant books and records in their possession. No such third-party claim, demand, action or proceeding shall be settled without the prior written consent of the indemnified party, which consent the indemnified party shall not unreasonably without or delay.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, §§ 22, 23, 12-30-96)

In addition to the above provisions requiring the franchisee's posting of a performance bond with the city and the rights of the city; the franchisee shall within 30 days after the effective date of the franchise deposit with the city treasurer, and maintain on deposit through the term of the franchise, the sum of $1,000.00 in monies or securities, as security for the faithful performance by it of all the provisions of this chapter and franchise agreement and compliance with all orders, permits and directions of any agency of the city having jurisdiction over its acts or defaults under this chapter.

(1)

For violation of material provisions of this chapter, the following sums shall be chargeable to the security fund as follows:

a.

For failure to submit plans indicating expected dates of installation of various parts of the system; per day .....$100.00

b.

For failure to commence operations in accordance with this chapter, per day .....100.00

c.

For failure to complete construction and installation of the system as provided in the franchise, per day .....100.00

d.

For failure to provide data and reports as requested by the city manager, city council or their designated, per day .....50.00

e.

For failure to restore the cash deposit as required by this section, within ten days of notice that any amount has been withdrawn from the security fund, the entire cash deposit remaining, if any, shall be forfeited.

(2)

The security fund deposited pursuant to this section shall become the property of the city in the event that the franchise is terminated by the city by reason of the default of the franchisee. The franchisee, however, shall be entitled to the return of such security fund, or such portion thereof, as remains on deposit with the city treasurer at the expiration of the term of the franchise provided that there is no outstanding default on the part of the franchisee.

(3)

The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this contract 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 city may have.

(Ord. No. 925, § 1, 9-25-95)

The technical standards for operation of the system shall, in addition to meeting the requirements specified in the franchise, comply with any other standards or codes of general applicability therefor as may be adopted by the city.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 24, 12-30-96)

The city shall comply with rules of the Federal Communications Commission set forth in Subpart N (Cable Rate Regulation) of Part 76 (Cable Television Service) of Chapter I of Title 47 of the Code of Federal Regulation regarding the regulation of cable television rates for basic service and associated equipment, as amended. After a cable operator has submitted for review its existing rates for the basic service tier and associated equipment costs or a proposed increase in these rates, the clerk shall post a public notice of the rates and costs giving interested parties, including the cable operator, a reasonable opportunity to file written comments which shall be available in the office of the city clerk for public inspection and copying during normal business hours. The city shall comply with procedures set forth in state and federal law regarding confidential business information submitted by the cable operator in a rate regulation proceeding. A cable operator which willfully or repeatedly fails to comply with a rate decision or refund order directed specifically at the cable operator shall be subject to a monetary forfeiture as determined by the city council following the procedures set forth in 47 USC § 503.

(Ord. No. 925, § 1, 9-25-95)

If, the city, the State of Michigan or the United States Government or any regulatory agency regulates the rates of the franchisee for the service provided for in the franchise under state or federal law, this article shall be of no effect during such regulation to the extent of any conflict therewith.

(Ord. No. 925, § 1, 9-25-95)

During the term of any franchise granted pursuant to this chapter, the franchisee shall pay to the city for the use of its streets, public places and other facilities, as well as the maintenance, improvement and supervision thereof, a quarterly franchise fee in an amount of five percent of the annual "local gross revenues" as defined in article III of this chapter.

(1)

This payment shall be in addition to any other tax or payment owed to the city by the franchisee.

(2)

At such time that the FCC may relinquish its regulation of franchise fees paid to the grantor of a cable television franchise by the franchisee, the city shall reserve the right to renegotiate the franchise fee with the franchisee.

(3)

The franchisee shall annually furnish the city with a certified statement prepared by a certified public accountant, reflecting the total amount of local gross revenues, including any charges, deductions and computations for the previous year or the period covered by the payment.

(Ord. No. 925, § 1, 9-25-95)

All payments as required by the franchisee to the city shall be made quarterly, beginning January 1 or upon other arrangements agreed upon by both parties.

(Ord. No. 925, § 1, 9-25-95)

No acceptance of any payment shall be construed as a release or as an accord or satisfaction of any claim the city may have for further or additional sums payable as a franchise under this chapter or for the performance of any obligation.

(Ord. No. 925, § 1, 9-25-95)

(a)

Major breach of franchise. When any event, act or omission on the part of grantee occurs which represents a substantial or repeated violation of a material provision of the agreement, then such event, act or omission may be considered a major breach of the agreement. Under such circumstances, the city shall notify grantee in writing by certified mail of the specific breach and direct grantee to comply with all the provisions of the agreement for which the grantee is in violation.

(b)

Events of default. The events, acts and omissions referred to in this section are the following: (1) bankruptcy; (2) insolvency; (3) failure to pay taxes or franchise fees; (4) failure to receive written city approval for assignment or transfer; or (5) a major breach of the franchise (as noted in subsection (a) above) that remains uncured for the 60-day cure period described in subsection (c) below. They do not include events in the nature of force majeure.

(c)

Public hearing:

(1)

Scheduling and procedures. No sooner than 45 days after such written notice if notice of the breach is sent by certified mail to grantee, the city may set a date for a public hearing on the matter. The hearing shall afford full due process to grantee and shall be held on the record. Both grantee and the city shall be permitted to compel the attendance of witnesses and the production of documents, to present evidence, and to cross-examine witnesses. The public hearing may be canceled at any time, if the city is satisfied that grantee has corrected and/or cured the violation.

(2)

Notice. The city shall provide written notice, by certified mail, to grantee of the time and place of said public hearing in a manner consistent with state law.

(3)

Evidence regarding status of alleged violation. At the time of the hearing, grantee may present information on the current status of the alleged breach of the franchise. If the situation has been resolved, or steps are being taken to resolve the situation, then grantee should present such information at the hearing.

(4)

Effect of failure to attend. If grantee fails to attend the hearing, or submit a written response, or request a continuance of the hearing, then grantee shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the franchise.

(d)

Alternatives if violation is found. The city may (once it has held the public hearing) direct the grantee to take corrective action within a specified period of time, or may declare the grantee in default of this agreement, and afterwards revoke, terminate or cancel the franchise.

(e)

Notice to grantee. If the city directs corrective action to take place within a specified time or declares the grantee in default of the agreement, then that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed, by certified mail, or in the alternative may be hand-delivered, to grantee within 15 days of the city's action.

(f)

Revocation for failure to correct violation. If, within 45 days after receipt of the notice of the city's direction of corrective action as provided in this section, grantee does not take significant action to rectify the breach or submit a plan detailing how the grantee will eliminate the breach, then the city may revoke grantee's franchise and shall notify grantee immediately; provided, however, that such revocation shall not be effective any earlier than 30 days following the date of such notification.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 25, 12-30-96)

The franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of the franchise by any failure of the city to enforce prompt compliance.

(Ord. No. 925, § 1, 9-25-95)

The captions to sections and articles are inserted solely for information and shall not affect the meaning or interpretation of the chapter.

(Ord. No. 925, § 1, 9-25-95)

The provisions of this chapter shall be construed to conform to all present and future requirements of the Federal Communications Commission, all acts of the Congress of the United States, and all acts and requirements of the State of Michigan.

(Ord. No. 925, § 1, 9-25-95)

The franchisee shall, at all times during the life of this chapter, be subject to all lawful exercise of the police power by the city and to such reasonable regulation as the city shall hereafter by resolution or ordinance of general applicability provide which does not materially affect rights expressly granted by the ordinance or the franchise. The construction, operation and maintenance of the system by the franchisee shall be in full compliance with such portions of the locally adopted building code, the National Electric Code and National Electric Safety Code (ANSI-C-2) as may be applicable and as the same may be amended and revised from time to time, and in full compliance with all other applicable roles, regulations, and ordinances now in effect or hereinafter adopted by the Federal Communications Commission, the city, or any other agency of the State of Michigan or the United States, which may hereafter acquire jurisdiction of the operations of the franchisee authorized herein.

(Ord. No. 925, § 1, 9-25-95; Ord. No. 932, § 27, 12-30-96)

The franchisee shall assume the costs of the publication of this chapter, and any other ordinance, resolution or document, pertaining to the establishment, or operation of a cable television system, as such publication by the city may be required by law.

(Ord. No. 925, § 1, 9-25-95)

(a)

The franchisee shall not allow its cable or other operations to interfere with television reception of persons not served by the franchisee, nor shall the system interfere with, obstruct, or hinder in any manner, the operation of the various utilities serving the residents of the city.

(b)

The franchisee shall not, as to rates, charges, service facilities, rules, regulations or any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, provided that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled.

(Ord. No. 925, § 1, 9-25-95)

(a)

A franchisee shall not permit the transmissions of any signal, aural, visual or digital, including "polling" the channel selection, from any subscriber's premises without first obtaining written permission of the subscriber. This provision is not intended to prohibit the use of a transmission of signals useful for the control of measurement of system performance.

(b)

A franchisee shall not permit the installation of any specific terminal equipment in any subscriber's premises that will permit transmission from subscriber's premises of two-way services utilizing aural, visual or digital signals without first obtaining written permission of the subscriber. This section is not intended to prohibit impulse pay-per-view or other interactive services.

(c)

It shall be unlawful for any person to attach or affix or to cause to be attached or affixed any equipment or device which allows access or use of the cable television service without payment to the franchisee for same.

(Ord. No. 925, § 1, 9-25-95)

In areas where telephone or electric utility facilities are aboveground at the time of installation, the franchisee shall install its cable aboveground. In those areas of the municipality where both public utility facilities are underground at the time of installation, the franchisee shall install its cable underground.

(Ord. No. 925, § 1, 9-25-95)

Editor's note— Ord. No. 990, § 1, adopted Jan. 24, 2000, repealed § 7½-56, which pertained to most favored nations, and which derived from Ord. No. 925, adopted Sept. 25, 1995; and Ord. No. 932, adopted Dec. 30, 1996.

(a)

Any arbitration held pursuant to this ordinance and/or a franchise shall be conducted in accordance with the Michigan Arbitration Act, MCL 600.5001, and shall be conducted by, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, subject, however, to the following procedures, conditions and requirements:

(1)

Franchisee and the city (or such substitute party to the arbitration) each shall, within 15 days of the decision to proceed to arbitration, appoint one arbitrator experienced and knowledgeable in the cable television business, generally, which arbitrators shall both select a third arbitrator to serve as the chairman and neutral member of the arbitration panel. Such jointly selected third neutral arbitrator shall be a duly licensed attorney at law with knowledge and experience involving matters of cable television law and the cable industry, but shall not be a person which, at the time of the appointment, represents either municipalities, franchising authorities, or cable operators within the State of Michigan.

(2)

Within 30 days after appointment of all arbitrators and upon 15 days' advance written notice to the parties to the arbitration, the arbitrators shall commence an arbitration proceeding relative to the dispute.

(3)

The proceeding may be recorded and/or transcribed at the request of either the city or the franchisee.

(4)

At the close of the arbitration proceeding and within 30 days after the date the arbitration proceedings are closed, the arbitrators shall prepare a written arbitration award with detailed specific findings of fact and conclusions of law and shall serve such written award upon city and franchisee.

(5)

The decision of a majority of the arbitrators shall be binding upon the parties to the arbitration.

(6)

Either party may seek judicial relief relative to the arbitrators' award and/or with respect to the underlying claims or disputes, only under the following circumstances:

a.

Either party fails to select an arbitrator;

b.

The arbitrators fail to mutually agree upon the appointment of the third neutral arbitrator;

c.

After selection of the third neutral arbitrator it is determined that such neutral arbitrator is biased for or against either the city or a franchisee and/or that such third neutral arbitrator is not qualified;

d.

Designated time limits have been exceeded without the consent of both the city and a franchisee;

e.

The arbitrators have not proceeded expeditiously; or

f.

Based upon the record or the arbitration award, the arbitrator's award is either arbitrary, capricious, unsupported by substantial evidence, the result of an abuse of discretion, or based upon a mistake of fact and/or law.

(7)

All costs of arbitration shall be borne equally by the parties to the arbitration unless otherwise ordered by the arbitrators.

(b)

Nothing herein shall apply to disputes involving the cancellation of the franchise, term of the franchise, or renewal or extension thereof, or disputes involving changes in rates or disputes involving more than $50,000.00.

(Ord. No. 925, § 1, 9-25-95)

In addition to providing basic cable television service consisting of broadcast, locally originated, access, and automated signals, the franchisee may offer subscribers optional services on a per-program or per-channel basis (pay cable) The franchisee may not, however, program or in any way display material not protected by the U.S. Constitution such as obscene X-rated motion pictures whether as part of its basic cable or pay cable services.

(Ord. No. 925, § 1, 9-25-95)

A franchisee shall not refuse to hire, nor discharge from employment, nor discriminate against any person regarding compensation, terms, conditions or privileges of employment because of sex, race, color, creed or national origin. The franchisee shall take affirmative action to ensure that employees are treated, during employment without regard to their sex, race, color, creed, or national origin.

(Ord. No. 925, § 1, 9-25-95)

In the event grantee's performance of any of the terms, provisions, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause, circumstance or event not within franchisee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, inclement weather, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.

(Ord. No. 925, § 1, 9-25-95)