[HISTORY: Adopted by the City Commission of the City of Fennville as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-23-1993 by Ord. No. 170 (Ch. 18, Art. III, Div. 2, of the 1992 Code of Ordinances)]
A. 
Title. This article shall be known as the "City of Fennville Cable Communications Ordinance."
B. 
Purpose. The purposes of this article are to:
(1) 
Provide for the franchising and regulation of cable television within the City of Fennville;
(2) 
Provide for a cable communications system that will meet the current needs of the City and that can be improved and upgraded to meet future needs;
(3) 
Provide for the payment of fees and other valuable consideration to the City for the use of the public ways and for the privilege to construct and operate cable communications systems;
(4) 
Provide for the regulation by the City of certain rates to be charged to subscribers for certain cable communications services to the extent such regulation is not lawfully preempted by applicable state or federal statutes, rules or regulations;
(5) 
Provide for the development of cable communications as a means to improve communication between and among the members of the public and public institutions of the City; and to
(6) 
Provide remedies and prescribe penalties for violation of this article and any franchise granted hereunder.
C. 
Applicability. This article is applicable to any application for a cable franchise filed on or after June 19, 1993, and to any such franchise granted thereafter.
D. 
Definitions. For the purpose of this article, the following terms, phrases, words, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory, and the word "may" is permissive. Words not defined shall be given their common and ordinary meanings.
ACCESS CHANNEL
Any channel set aside for public use, educational use, or governmental use without a channel usage charge.
ACCESS USER
Any person or entity entitled to make use of an access channel consistent with the intended purpose of the channel.
APPLICATION
A proposal seeking authority to construct and operate a cable television system within the City pursuant to this article. It shall include the initial proposal plus all related subsequent amendments and correspondence with the City.
BASIC SERVICE
Subscriber cable television services which includes the delivery of local television broadcast signals as required by the FCC, access channels, leased channels and local origination channels, as covered by the regular monthly charge paid by all subscribers to any service tier, excluding premium services, two-way services and FM radio services.
CABLE COMMUNICATIONS SYSTEM or SYSTEM
A non-broadcast facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment, under common ownership and control, that distributes or is designed to distribute to public subscribers cable television services, institutional services or other communications services, but such term shall not include:
(1) 
A facility or combination of facilities that serves only to retransmit the television signals of one or more television broadcast stations;
(2) 
A facility or combination of facilities that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way;
(3) 
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 to the extent such facility is used in the transmission of video programming directly to subscribers; or
(4) 
Any facilities of any electric utility used solely for operating its electric utility system.
CABLE TELEVISION SERVICES
The one-way transmission of video programming and associated non-video signals to subscribers together with subscriber interaction, if any, which is provided in connection with the video programming.
CITY
The City of Fennville, Allegan County, Michigan.
CITY COMMISSION
The City Commission of the City of Fennville.
COMMISSION
The City of Fennville Cable Communications Commission provided for in this article.
CONNECTION
The attachment of the drop to the radio or television set or other communications device of the subscriber.
CONVERTER
An electronic tuning device which converts transmitted signals to a frequency which permits their reception on an ordinary television receiver.
DEDICATION
Those dedications and easements for public roadways and public utilities and other rights-of-way maintained for the benefit of the public and controlled by the City, the terms, conditions, or limitations of which are not inconsistent with the erection, construction, or maintenance of a cable television system, its structures, or equipment.
DROP
The cable that connects a subscriber's premises to the nearest feeder line of the cable communications system.
EASEMENT
A right to use all public rights-of-way, including public utility easements.
FCC
The Federal Communications Commission or any legally appointed or designated agent or successor.
FEEDER LINE
The coaxial or fiber optic cable running from the trunk line to line-extenders and taps for the purpose of interconnection to individual subscribers.
FILE
The delivery, by mail or otherwise, to the appropriate office, officer or agent of the City of any document or other thing which this article or the franchise requires the franchisee to file with the City. The date of receipt by the City shall be considered the filing date. Unless specified to the contrary, the filing shall be with the City Clerk.
FRANCHISE
The nonexclusive right and authority to construct, maintain, and operate a cable communications system through use of the public streets, dedications, public utility easements, other public rights-of-way, or public places in the City pursuant to a contractual agreement executed by the City and a franchisee.
FRANCHISEE or GRANTEE
An entity authorized to construct and/or operate a cable communications system within the City pursuant to this article, including any lawful successor, transferee or assignee of the original grantee.
GROSS REVENUES
All operating revenue actually received from the cable television system derived directly or indirectly by a franchisee, its affiliates, subsidiaries, parent, and any person in which the franchisee has a financial interest in association with the provision of cable television services within the City, including, but not limited to, basic service monthly fees, premium service fees, institutional service fees, installation and reconnection fees, leased channel fees, converter rentals, studio rental, production equipment and personnel fees, advertising revenues, copyright fees; provided, however, that this shall not include any taxes on services furnished by the franchisee payable to the State of Michigan or any other governmental unit and collected by the franchisee on behalf of said governmental unit, or any revenues from the provision of cable television services outside the City, or any revenues from sale of capital assets or lease of property for purposes unrelated to cable television.
INSTALLATION
The connection of the system at the subscriber's premises.
LEASED CHANNEL or LEASED ACCESS CHANNEL
Any channel, or part of a channel, available for commercial use on a fee basis by persons or entities other than a franchisee.
PERSON
An individual or legal entity, such as a corporation or partnership.
PREMIUM SERVICE
Pay television offered on a per-channel or per-program basis.
SERVICE TIER
A specific set of cable subscriber services which are made available as, and only as, a group for purchase by subscribers at a separate rate for the group.
STREET or PUBLIC WAY
The surface of and the space above and below any public street, road, highway, path, sidewalk, alley, court, or easement now or hereafter held by the City for the purpose of public travel or public utilities and shall include public easements or rights-of-way.
SUBSCRIBER
A recipient of cable television service or other services provided over a cable television system.
TWO-WAY CAPABILITY
A system designed and constructed to have technical capacity for non-voice return communications.
USER
A party utilizing a cable television system's facilities for purposes of production or transmission of material or information to subscribers.
A. 
Requirement of a franchise. It shall be unlawful to construct, install, maintain or operate a cable communications system or part of a cable communications system within the City without a valid franchise obtained pursuant to the provisions of this article.
B. 
General franchise characteristics. Any franchise issued pursuant to the provisions of this article shall be deemed to:
(1) 
Authorize use of the public ways for installing cables, wires, lines, and other facilities in order to operate a cable communications system, but shall neither expressly nor impliedly be deemed to authorize the grantee to provide service to, or install cables, wires, lines, or any other equipment or facilities upon private property without owner consent, or to utilize publicly or privately owned utility poles or conduits without a separate agreement with the owners therefor;
(2) 
Be nonexclusive, and shall neither expressly nor impliedly be deemed to preclude the issuance of subsequent franchises to operate one or more other cable communications systems within the City or the ownership or operation of a cable communications system by the City; and
(3) 
Convey no property right to the franchisee or right to renewal, except as may be otherwise provided by applicable law.
C. 
Franchise as a contract. A franchise issued pursuant to the provisions of this article shall be deemed to constitute a contract between the franchisee and the City. The franchisee shall be deemed to have contractually committed itself to comply with the terms, conditions and provisions of the franchise documents, and with all rules, orders, regulations, and determinations applicable to the franchise which are issued, promulgated or made pursuant to the provisions of this article.
D. 
Conflicts.
(1) 
All terms, conditions and provisions of this article and the application for a franchise shall be deemed to be embodied in a franchise, and conflicts in terms, conditions or provisions between these documents shall be resolved as follows:
(a) 
The express terms of this article shall prevail over conflicting or inconsistent provisions of the franchise;
(b) 
The express terms of the franchise shall prevail over conflicting or inconsistent provisions in the application, except the express terms of this article; and
(c) 
The express terms of any request for proposals shall prevail over conflicting or inconsistent provisions in the application for the franchise.
(2) 
That provisions of the franchise shall be liberally construed in order to effectuate its purposes and objectives consistent with this article and the public interest. In the event one or more substantive provisions of the franchise or this article are subsequently found to be unlawful, null and void or unenforceable, the City Commission shall, at its sole option, have the right to consider said provision(s) severed from the franchise so as to continue the franchise's effectiveness, or, in the event the franchisee fails to continue its performance of the obligations imposed by such unlawful, null and void or unenforceable provision(s), and such failure is not the result of the legal impermissibility of such performance, the City Commission may declare the franchise a nullity and terminate it forthwith; provided, however, that such termination shall take place only (i) after a public hearing of which the franchisee has been given at least 15 days' prior written notice and at which the franchisee has been given an opportunity to appear and make arguments before the City Commission; and (ii) if, after the public hearing, the City Commission determines that severance of the unlawful, null and void or unenforceable provisions constitutes a substantial failure of consideration for the franchise agreement. A franchise agreement will be construed under the laws of the State of Michigan, except to the extent such laws are lawfully preempted by applicable federal statutes, rules or regulations.
E. 
Subject authority. A franchisee shall, at all times during the life of a franchise, be subject to all lawful exercise of the police power by the City and to such lawful regulations as the City shall hereafter enact; provided, however, that such regulations by ordinance or otherwise shall be reasonable and not in conflict with any rights herein granted, nor in conflict with the applicable laws or regulations of the State of Michigan or of the United States or their respective regulatory bodies having jurisdiction. The construction, operation and maintenance of the system shall also be in full compliance with all other applicable rules and regulations now in effect or hereafter adopted by the United States, the State of Michigan, or any agency of said governments.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
A. 
Filing of applications. Applications for a cable television franchise will be considered pursuant to the following procedures:
(1) 
An application may be filed at any time or pursuant to a request for proposals (RFP) issued by the City.
(2) 
The City may request additional information from an applicant for a franchise at any time.
(3) 
All applications to be acceptable for filing must be accompanied by a filing fee of $500. The City shall apply all filing fees received against all costs associated with its evaluation of any pending application(s) pursuant to § 140-3D of this article. In the event that total costs are less than total filing fees, the City shall refund a portion of the filing fee on a pro rata basis to each applicant.
B. 
Content of applications. To be acceptable for filing, an application must conform to any applicable RFP and all the information specified therein. Where an application is not filed pursuant to an RFP, it shall contain, at minimum, the following information:
(1) 
Identification of the ownership of the applicant, if not a natural person, including the names and addresses of all persons with 1% or more ownership interest and the ultimate controlling natural persons and identification of all officers and directors and any other primary business affiliation of each; provided, however, that when any parent corporation has in excess of 1,000 shareholders and its shares are publicly traded on a national stock exchange, then a list of all holders of 5% or more of the voting stock of such corporation shall be disclosed.
(2) 
An indication of whether the applicant, or any entity controlling the applicant, including any officer of a corporation or major stockholder thereof, has been adjudged bankrupt, has had a cable franchise revoked, or has been found guilty by any court or administrative agency in the United States of: (1) a violation of a security or antitrust law; or (2) a felony or any other crime involving moral turpitude. The application shall further identify any such person or entity and fully explain the circumstances.
(3) 
A demonstration of the applicant's technical, legal and financial ability to construct and operate the proposed cable facility.
(4) 
A description of the physical facility proposed, including channel capacity (one-way and two-way if any), the area to be served, a summary of technical characteristics, and head end and access facilities.
(5) 
A description of how any construction will be implemented, identification of areas having above ground or below ground cable facilities, the proposed construction schedule, and a description (where appropriate) of how service will be converted from any existing facility to a new facility.
(6) 
A description of the services to be provided over the system, including identification of television signals (both broadcast and non-broadcast) to be carried and all non-television services to be provided initially. Where service will be offered by tiers, identify the signals and/or services to be included on each tier.
(7) 
The proposed rates to be charged, including rates for each service tier, as appropriate, and charges for installation, converters, and other services.
(8) 
Information as necessary to demonstrate compliance with all relevant requirements contained in this article.
(9) 
A demonstration of how the proposal is reasonable to meet the future cable-related community needs and interests. In particular, the application should describe how the proposal will satisfy the needs as analyzed in any recent community needs assessment commissioned by the City.
(10) 
A demonstration that the proposal is designed to be consistent with all federal and state requirements.
(11) 
If requested by the City, pro forma financial projections for each year of the franchise term. The projections shall include a statement of income, balance sheet, statement of sources and uses of funds, and schedule of capital additions. All significant assumptions shall be explained in notes or supporting schedules that accompany the projections.
(12) 
A complete list of all cable communications systems in which the applicant, or a principal or affiliate thereof, holds an equity interest.
(13) 
An affidavit of the applicant or duly authorized officer thereof, certifying, in a form acceptable to the City, the truth and accuracy of the information contained in the application and acknowledging the enforceability of application commitments.
(14) 
In the case of an application by an existing franchisee for a renewed franchise, a demonstration that said franchisee has substantially complied with the material terms of the existing franchise and with the applicable law.
(15) 
Other information that the City, or its agents, may request of the applicant.
C. 
Applicant representatives. Any person who files an application with the City for a cable television franchise shall forthwith, at all times, disclose to the City, in writing, the names, addresses and occupations of all persons who are authorized to represent or act on behalf of the applicant in those matters pertaining to the application. The requirement to make such disclosure shall continue until the City shall have rejected an applicant's application or until an applicant withdraws its application.
D. 
Consideration of applications.
(1) 
The City will consider each application for a franchise where the application is found to be acceptable for filing and in substantial compliance with the requirements of this article and any applicable RFP. In evaluating an application the City will consider, among other things, the applicant's past service record in other communities, the nature of the proposed facilities and services, proposed rates, and whether the proposal would adequately serve the public needs and the overall interests of the citizens of the City. Where the application is for a renewed franchise, the City shall consider whether:
(a) 
The cable operator has substantially complied with the material terms of the existing franchise and with applicable law;
(b) 
The quality of the operator's service, including signal quality, response to consumer complaints, and billing practices (but without regard to the mix, quality, or level of cable services or other services provided over the system) has been reasonable in light of community needs;
(c) 
The operator has the financial, legal and technical ability to provide the services, facilities, and equipment as set forth in the operator's proposal; and
(d) 
The operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.
(2) 
Where the City determines that an applicant's proposal, including the proposed service area, would serve the public interest, it may grant, by ordinance, a franchise to the applicant. The franchise agreement will constitute a contract, freely entered into, between the City and the grantee. Said franchise agreement shall incorporate by reference the relevant provisions of this article. Any such franchise must be approved by ordinance of the City Commission.
(3) 
In the course of considering an application for a renewed franchise, the City Commission shall hold a public hearing, in which the public and the franchisee seeking renewal shall be offered an opportunity to speak, offer evidence and question witnesses. Notice of any such public hearing shall, at least 10 days before the date of the hearing, be published in a local newspaper of general circulation in the City and be sent by certified mail to each applicant to be considered. A transcript or recording shall be made of such hearing. Based on the record of such hearing and the application (including any negotiations relative thereto), the City Commission shall determine whether to grant a renewed franchise and shall issue a written opinion stating the reasons for its decision.
(4) 
A franchise granted pursuant to this article shall not take effect until the applicant pays a grant fee to the City. The grant fee shall be equal to the City's direct costs in the franchising process less the application filing fees received. The City shall provide to the grantee a statement summarizing such costs prior to the execution of the franchise.
E. 
Acceptance. A franchise and its terms and conditions shall be accepted by a grantee by written instrument, in a form acceptable to the City Attorney, and filed with the City within 30 days after the granting of the franchise by the City. In its acceptance, the grantee shall declare that it has carefully read the terms and conditions of this article and the franchise and accepts all of the terms and conditions of this article and the franchise and agrees to abide by same. In accepting a franchise a grantee shall indicate that it has relied upon its own investigation of all relevant facts, that it was not induced to accept the franchise, and that it accepts all reasonable risks related to the interpretation of the franchise.
A. 
Franchise term. The term of a franchise shall be as specified in the franchise agreement, but it shall not exceed 15 years. If a franchisee seeks authority to operate a cable system in the City beyond the term of its franchise, it shall file an application for a new franchise not later than 30 months prior to the expiration of its franchise. Notwithstanding the foregoing, subject to any rights a franchisee may have under federal law, the City shall have the right to terminate at will any franchise until such time as the same has been approved by a majority of the electors of the City voting thereon. A franchisee whose franchise has not been so terminated may, at any time before such termination, request (in writing to the City Clerk) that the question of the issuance of the franchise to the franchisee be submitted to the electors of the City at the next regular election or at a special election; and a franchisee whose franchise is so terminated at will by the City may, within 30 days after written notice of such termination, request (in writing to the City Clerk) that the question of the issuance of the franchise to the franchisee be submitted to the electors of the City at the next regular election or at a special election; provided, however, that nothing contained in the franchise election provisions of this section shall prevent or reverse any termination of a franchise for cause, as otherwise permitted pursuant to this article. In the event of any franchise election held pursuant to the provisions of this section, the franchisee shall pay all of the election costs and expenses if the franchise is the only matter submitted to the electors at the regular or special election or, if there are other propositions or matters considered in the same election, then it shall pay its proportionate share of said election costs and expenses. The City may, in its discretion, require that the franchisee deposit with the City a reasonable sum to defray the election costs and expenses prior to commencement of the procedures necessary to conduct the election at which the franchise question is to be submitted to the electors of the City. In the event a franchise is terminated pursuant to this section, within a reasonable time thereafter the City shall, directly or through an intermediary, purchase the franchisee's system at the price and upon the terms specified in§ 140-4I(2) of this article.
B. 
Franchise fee.
(1) 
A franchisee, in consideration of the privilege granted under a franchise for the use of public ways and the privilege to construct and operate a cable television system, shall, as specified by the City Commission, pay to the City a sum of money up to or equal to 5% of its annual gross revenues during the period of its operation under the franchise.
(2) 
A franchisee shall file with the City, on an annual basis, a financial statement certified by the chief financial officer and/or treasurer of the franchisee, showing the gross revenues received by franchisee during the preceding year. Such financial statements shall be prepared at the close of each fiscal year and shall be filed on or before the 30th calendar day from and including the end of the applicable period. A franchisee shall pay the franchise fee to the City on or before the time such financial statement is due to be filed. Subsequent to receiving such financial statements, the City in its sole discretion may require the franchisee to submit financial statements for such year, audited by an independent public accountant, certified in the State of Michigan. The franchisee shall bear the cost of such audit. Any franchise fee payment in adjustment for any shortfall of the total monthly payments for the year shall be made at that time. Adjustments for any overpayment shall be by credit to subsequent monthly payments.
(3) 
The City shall have the right, consistent with the provisions of § 140-5B of this article, to inspect a franchisee's income records, to audit any and all relevant records, and to recompute any amounts determined to be payable under the franchise and this article.
(4) 
In the event that any franchise payment is not received by the City on or before the applicable dates, interest shall be charged from such due date at an annual interest rate then chargeable for unpaid federal income taxes (26 U.S.C. § 6621) or the maximum rate allowable under Michigan law, whichever is less. In addition to the foregoing, the franchisee shall pay a late charge not to exceed 5% of the amount of such payment as determined by the City Commission. Interest and late charges will not be chargeable to the franchisee for additional payment required under the yearly adjustment, provided that such payment does not exceed 10% of the total monthly payments made during the year. In the event such payment exceeds 10%, the franchisee shall be liable for interest and late charges for the entire amount.
(5) 
In the event a franchise is revoked or otherwise terminated prior to its expiration date, the franchisee shall file with the City, within 90 days of the date of revocation or termination, an audited financial statement showing the gross revenues received by the franchisee since the end of the previous year and shall make adjustments at that time for the franchise fees due up to the date of revocation or termination.
(6) 
Nothing in this article shall limit the City's authority to tax a franchisee as permitted by law.
C. 
Insurance, bonds, indemnity.
(1) 
Upon the granting of a franchise and following simultaneously with the filing of the acceptance of the franchise and at all times during the term of the franchise, including the time for removal of facilities or management as a trustee as provided for herein, the franchisee shall obtain, pay all premiums for, and deliver to the City, written evidence of payment of premiums for and duplicate originals of the following:
(a) 
A general comprehensive public liability policy or policies indemnifying, defending and saving harmless the City, its officers, boards, commissions, agents or employees from any and all claims by any person whatsoever (including the costs, defenses, attorney fees and interest arising therefrom) on account of injury to or death of a person or persons occasioned by the operations of the franchisee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of $500,000 per personal injury or death of any one person and $2,000,000 for personal injury or death of any two or more persons in any one occurrence. The policy shall be endorsed adding coverage against all claims for personal injury liability offenses.
(b) 
A property damage insurance policy or policies indemnifying, defending, and saving harmless the City, its officers, boards, commissions, agents and employees from and against all claims by any person whatsoever (including the costs, defenses, attorney fees and interest arising therefrom) for property damage occasioned by the operations of the franchisee under the franchise herein granted, or alleged to have been so caused or occurred, with a minimum liability of $250,000 for property damage to the property of any one person and $1,000,000 for property damage to the property of two or more persons in any one occurrence.
(c) 
A performance bond or bonds in favor of the City with good and sufficient surety approved by the City in the sum of $25,000 in the franchise agreement conditioned upon the faithful performance and discharge of the obligations imposed by this article and the franchise awarded hereunder from the date thereof. The amount of the bond may be reduced as any construction that is required is completed, consistent with the franchise agreement.
(2) 
All bonds and insurance policies called for herein shall be in a form satisfactory to the City Attorney. The City may at any time, if it deems itself insecure, require a franchisee to provide additional sureties to any and all bonds or to replace existing bonds with new bonds with good and sufficient surety approved by the City. No bond or insurance policy shall be cancelable during its term unless the franchisee, not less than 30 days prior to cancellation, has delivered to the City a substitute or replacement bond or policy in conformance with the provisions of this article.
(3) 
A franchisee shall, at its sole cost and expense, indemnify and hold harmless the City, its officials, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings, and judgments for damage arising out of the operation of the cable television system under the franchise; except, that no such requirement shall apply when such claims, suits, causes of actions, proceedings, and judgments for damage are occasioned by the negligence, gross negligence or intentional acts of the City, or its officials, boards, commissions, agents and employees while acting on behalf of the City. These damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of any failure by a franchisee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the franchisee's television system whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. Further, a franchisee shall, at its sole cost and expense, indemnify and hold harmless the City, its officials, boards, commissions, agents and employees for damage arising out of any misrepresentation, negligence, gross negligence or intentional act of the franchisee, its agents or employees in connection with the grant or transfer of a franchise to such franchisee, or the renewal of a franchise, under this article. Indemnified expenses shall include, but not be limited to, all out-of-pocket expenses, such as costs and attorney fees, and shall also include the reasonable value of any services reasonably rendered by the City Attorney or the City Attorney's assistants or any employees of the City. The City shall notify the franchisee in the event any person shall in any way notify the City of any claim or demand in connection with the cable communications system or this article for which the franchisee may be subject to liability under this section or otherwise, and provide to the franchisee the opportunity to defend, settle or otherwise resolve such claim in its discretion, after consulting with the City.
(4) 
No franchisee shall permit any policy or bond to expire, and a franchisee, not less than 30 days prior to its expiration, shall deliver to the City a substitute, renewal or replacement policy or bond in conformance with the provisions of this article.
D. 
Letter of credit.
(1) 
The City may at its discretion require that a franchisee obtain a letter of credit. When and if the City should so require, the franchisee shall deposit with the City a letter of credit from a financial institution approved by the City in the amount set by the City, but not to exceed $10,000. The letter of credit may not be revoked or terminated during the term of the franchise except with written approval of the City. The form and content of such letter of credit shall be approved by the City Attorney. The letter of credit shall be used to insure the faithful performance by the franchisee of all provisions of the franchise and this article, compliance with all orders, permits, and directions of any agency, commission, board, department, division, or office of the City having jurisdiction over its acts or defaults under the license, and the payment by the franchisee of any claims, liens, and taxes due the City or other municipalities which arise by reason of the construction, operation, or maintenance of the system.
(2) 
The letter of credit shall be maintained by the franchisee at $10,000 or such lesser amount as the City shall determine during the entire term of the franchise, as the City may require, even if funds are drawn against it pursuant to this article.
(3) 
The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit may not be canceled by the surety nor the intention not to renew be stated by the surety until 30 days after receipt by the City Attorney, by certified mail, of a written notice of such intention to cancel or not to renew."
(4) 
At the City's option, it may draw against the letter of credit for any unpaid liquidated damages, franchise fees or other amounts owing to it under the franchise which are 30 days or more past due. The City shall notify the franchisee in writing at least 10 days in advance of drawing upon the letter of credit.
E. 
Liquidated damages.
(1) 
Because a franchisee's failure to comply with the provisions of this article and its franchise will result in damage to the City and because it will be impractical to determine the actual amount of such damages, the City and any franchisee shall agree upon and specify in the franchise certain amounts which represent both parties' best estimate of the damages.
(2) 
The City Attorney shall calculate the amount of any damages and mail notice thereof to the franchisee. Such a notice may provide for damages sustained prior to the notice and subsequent thereto pending compliance by the franchisee.
(3) 
The liquidated damages provided in a franchise shall be the exclusive monetary remedy for the named breaches. Neither the right to liquidated damages nor the payment of liquidated damages shall bar or otherwise limit the right of the City in a proper case to: (1) obtain judicial enforcement of the franchisee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity; (2) consider any violation as grounds for forfeiture and termination of the franchise pursuant to this article; and (3) consider any violation as grounds for nonrenewal or nonextension of the franchise or issuance of a new franchise. The franchisee shall pay all fees and costs of public hearings or meetings called for under this franchise.
F. 
Forfeiture and termination.
(1) 
In addition to all other rights and powers retained by the City under this article and any franchise issued pursuant thereto, the City Commission reserves the right to forfeit and terminate the franchise and all rights and privileges of the franchisee in the event of a substantial breach of its terms and conditions. A substantial breach by the franchisee shall include, but shall not be limited to, the following:
(a) 
An uncured violation of any material provision of this article or franchise issued thereunder, or any material rule, order, regulation, or determination of the City made pursuant thereto;
(b) 
An attempt to evade any material provision of the franchise or practice of any fraud or deceit upon the cable television system customers and subscribers or upon the City;
(c) 
Failure to begin or substantially complete any system construction or system extension as set forth in the franchise;
(d) 
Failure to provide the services promised in the application or specified in the franchise, or a reasonable substitute therefor;
(e) 
Failure to restore service after five consecutive days of interrupted service, except when approval of such interruption is obtained from the City; or
(f) 
Material misrepresentation of fact in the application for, or during negotiation relating to, the franchise;
(g) 
Failure to provide surety and indemnity as required by the franchise or this article.
(2) 
None of the foregoing shall constitute a substantial breach if a violation occurs which is without fault of the franchisee or occurs as a result of circumstances beyond the franchisee's control. The franchisee shall not be excused by mere economic hardship nor by nonfeasance or malfeasance of its directors, officers, agents or employees; provided, however, that damage to equipment causing service interruption shall be deemed to be the result of circumstances beyond the franchisee's control if it is caused by any negligent act or unintended omission of its employees (assuming proper training) or agents (assuming reasonable diligence in their selection), or sabotage or vandalism or malicious mischief by its employees or agents. The franchisee shall bear the burden of proof in establishing the existence of such conditions.
(3) 
The City may make a written demand by certified mail that the franchisee comply with any such provision, rule, order, or determination under or pursuant to the franchise. If the violation by the franchisee continues for a period of five days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the City Commission may consider terminating the franchise; provided, however, a written notice thereof shall be given to the franchisee at least five days in advance and the franchisee must be given an opportunity to appear before the City Commission in a public hearing to present its arguments, including the opportunity to offer evidence and question witnesses. A transcript or recording shall be made of such hearing. Based on the evidence of such hearing, the City Commission shall determine whether to terminate the franchise and shall issue a written opinion stating the reasons for its decision.
(4) 
Should the City Commission determine, following the public hearing, that the violation by the franchisee was the fault of the franchisee and within the franchisee's control, the City Commission may, by resolution, declare that the franchise be forfeited and terminated; provided, however, the City Commission may, in its discretion, provide an opportunity for the franchisee to remedy the violation and come into compliance with the franchise and this article so as to avoid the termination.
G. 
Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the cable communications system facilities, or upon the termination of any lease covering all or a substantial part of the cable communications system, or upon the occasion of additional events which effectively cause termination of the system's operation, the franchisee shall notify the City of such fact, and such notification or the occurrence of such terminating events shall be treated as a notification that a change in control of the franchisee has taken place, and the provisions of this article governing the consent of the City to such change in control of the franchisee shall apply.
H. 
Receivership. The City shall have the right to cancel a franchise issued 120 days after the appointment of a receiver, or trustee, and to take over and conduct the business of the franchisee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
(1) 
Within 120 days after the election or appointment, such receiver or trustee shall have fully complied with all of the provisions of this article and remedied any defaults thereunder; and
(2) 
Within said 120 days, such receiver or trustee shall have executed an agreement, duly approved by the court having jurisdiction whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this article and the franchise granted to the franchisee.
I. 
Purchase of cable system by City.
(1) 
At the normal expiration of a franchise term (preceded by at least six month's notice) or upon receiving a request for transfer under § 140-4K, the City shall have the right, directly or through an intermediary, to purchase the franchised cable system.
(2) 
In the event the City decides to deny renewal of a franchise, or upon receiving a request for transfer under § 140-4K, the City shall have the right to purchase the system at its fair market value. Fair market value shall be determined on the basis of the going concern value of the system, taking into account such factors as the replacement cost, system cash flow, existing and potential goodwill, existing arrangements with programmers and subscribers; except no value shall be assigned to the franchise itself. The fair market value shall be reduced by the amount of any lien, encumbrance or financial obligation which the City will assume.
(3) 
In the event the City revokes, forfeits or terminates the franchise for cause, it shall have the right to purchase the cable system for an equitable price. An equitable price shall take into account such matters as the harm to the community resulting from the franchisee's breach, and shall be determined without reference to § 140-4I(2) of this article.
(4) 
Upon exercise of the option to purchase and the payment of the purchase price by the City and its service of official notice of such action upon the franchisee, the franchisee shall immediately transfer to the City possession and title to all facilities and property, real and personal, of the cable television system, free from any and all liens and encumbrances not agreed to be assumed by the City, and the franchisee shall execute such warranty deeds or other instruments of conveyance to the City as shall be necessary for this purpose.
J. 
Removal of cable communications system. At the expiration of the term for which a franchise issued hereunder is granted, or upon its termination as provided herein, the franchisee shall forthwith, upon notice by the City, remove at its own expense all designated portions of the cable communications system from all streets and public ways within the City and shall restore said streets and public ways to their former condition; provided, however, the franchisee shall have the right to sell its physical plant to a subsequent franchisee, subject to City approval, in which case said plant need not be removed. If the franchisee fails to remove its facilities upon request, the City may perform the work at the franchisee's expense.
K. 
Transfer of ownership or control.
(1) 
A franchise issued pursuant to this article shall not be sold, assigned, transferred, leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger, consolidation, or otherwise hypothecated 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 or entity, or the controlling interest in any corporation holding a franchise hereunder be changed without the prior consent of the City Commission (which consent shall not be withheld unreasonably), and then only under such conditions as may be required by the City Commission. Such a transfer of control is not limited to major interest holders but includes actual working or de facto control by minor interest holders in whatever manner exercised. Every change, transfer, or acquisition of control of the franchisee shall make the franchise subject to cancellation unless and until the City shall have consented. Nothing in this section shall be deemed to prohibit the mortgage or pledge of the cable communications system or any part thereof; provided, however, that any such mortgage or pledge shall require the City's consent under this section.
(2) 
The franchisee shall promptly notify the City of any proposed change in control of the franchisee. A formal application for approval of a proposed transfer of control shall be filed within 30 days of such notification. The application shall include the full particulars relating to the sale or transfer. An original and three copies of the text of the application shall be filed and additional copies as the City may request.
(3) 
The proposed purchaser, transferee, or assignee must show financial responsibility as determined by the City and must agree to comply with all provisions of the franchise, including any provisions which the City may amend or add prior to approval of the transfer.
(4) 
For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into all qualifications of the prospective controlling party, and the franchisee shall assist the City in any such inquiry. The City may require any reasonable conditions which it deems necessary at the time of review to ensure that the cable communications system will satisfy the public interest of the City and its citizens for the balance of the term of the franchise. The City Commission shall have 90 days within which to approve or disapprove a transfer under this section, except that in the case of a transfer from a subsidiary to a parent corporation or other controlling or related entity, or vice versa, the City Commission shall have 30 days within which to approve or disapprove such transfer; and if no action is taken within the applicable period, approval shall be deemed to have been given; provided, however, that nothing contained in this section shall alter or interfere with the right of the City to purchase the cable communications system pursuant to § 140-4I of this article.
(5) 
Section 140-3D of this article shall apply to any transfer as if the transferee were an applicant for a new franchise.
L. 
Resident agent. A franchisee shall maintain a force of one or more resident agents or employees in the City of Fennville at all times and have sufficient employees to provide safe, adequate and prompt service for its facilities.
M. 
Nondiscrimination in employment. Grantee shall comply fully with the requirements of § 634 of P.L. 98-549 concerning equal employment opportunity.[1]
[1]
Editor's Note: See 47 U.S.C. § 554.
A. 
Subscriber fees and rates.
(1) 
The initial fees to be charged to subscribers for all services, including installation fees and other one-time charges, shall be specified in any franchise agreement issued pursuant hereto.
(2) 
Those fees and charges subject to regulation by the City pursuant to state and federal law shall not be increased without prior approval of the City. The City reserves the right to regulate rates for any service pursuant to changes in federal or state law which would authorize such regulation. The City reserves the right to establish procedures for any lawful regulation of rates.
(3) 
Rates shall be just and reasonable, considering the franchisee's costs, including a reasonable return on investment over the remaining term of the franchise, and shall not give any undue or unreasonable preference or advantage to any subscriber or class of subscribers.
(4) 
Rates and charges may be reduced at any time without prior City approval, provided that the reductions do not result in rates which are unreasonably discriminatory to any subscriber or class of subscribers. Where temporary reductions are put into effect for promotional purposes for a specified time period, the return to the permanent rates shall not be considered a rate increase for purpose of this article. The City shall be formally notified in writing and in advance of all reductions in rates, other than temporary reductions as described above.
(5) 
Rates and charges not subject to regulation by the City under state or federal law or regulation may be changed by the licensee following a minimum 30 days' prior written notice to the City and each subscriber.
B. 
Reports. To facilitate timely and effective enforcement of this article and any cable television franchises and to develop a record for purposes of determining whether to renew any cable television franchises, the City requires reports as specified in this section.
(1) 
Annual report. No later than March 31 of each year, the franchisee shall file a written report with the City, which shall include:
(a) 
A summary of the previous calendar year's activities in development of its system, including but not limited to services begun or dropped, number of subscribers (including gains and losses), homes passed, and miles of cable distribution plants in service (including different classes if applicable).
(b) 
A financial statement reviewed (or audited, if requested in writing by the City) by an independent public accountant certified in the State of Michigan, who is acceptable to the City. The financial statement shall include a statement of income, a balance sheet, and a statement of sources and applications of funds. The statement shall include notes that specify all significant accounting policies and practices upon which it is based (including, but not limited to, depreciation rates and methodology, overhead and intrasystem cost allocation methods, and basis for interest expense). A summary shall be provided comparing the current year with previous years since the beginning of the franchise. The statement shall contain a summary of franchise fee payments and any adjustment thereto as specified in § 140-4B of this article.
(c) 
A current statement of cost of any construction by component category.
(d) 
If requested by the City, a projected income statement, balance sheet, statement of sources and applications of funds, and statements of any construction for the next two years. All significant assumptions upon which projections are made shall be noted.
(e) 
If requested by the City, a reconciliation between previously projected estimates and actual results.
(f) 
A summary of complaints, identifying the number and nature of complaints and their disposition.
(g) 
If the franchisee is a corporation, a list of officers and members of the board and the officers and board members of any parent corporation(s), including all tiers of a controlled group of corporations.
(h) 
A list of all partners or stockholders holding 1% or more ownership interest in the franchisee and any parent corporation(s), including all tiers of a controlled group of partnerships and/or corporations, shall be disclosed; provided, however, that when any parent corporation has in excess of 1,000 shareholders and its shares are publicly traded on a national stock exchange, then a list of all holders of 5% or more of the voting stock of such corporation shall be disclosed.
(i) 
A copy of all the franchisee's rules and regulations applicable to subscribers and users of the cable system.
(2) 
The City may specify the form and details of all reports, with franchisee given an opportunity to comment in advance upon such forms and details. The City may change the filing dates for reports upon reasonable request of the franchisee.
C. 
Records. The franchisee shall maintain a complete set of books and records at an office within the State of Michigan. Unless otherwise prohibited by law, upon 48 hours' notice to the franchisee, the City will have the right to inspect all records relating to the system operations at any time during normal business hours at the franchisee's office in the City of Fennville.
D. 
Filings. Upon request of the City Commission from time to time, the franchisee shall mail or deliver to the City Clerk a copy of any petitions, applications and communications submitted by the franchisee to the FCC, Federal Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction with respect to any matters affecting the cable communications system operations authorized pursuant to the grant of the franchise. Said copies shall be mailed or delivered on the filing date.
A. 
System technical standards. The cable communications system to be installed by a franchisee shall comply in all respects with the technical performance requirements set forth in the application, Part 76 of the FCC's Rules and Regulations or any other FCC guidelines, including any published in an Office of Science and Technology bulletin, and the franchise agreement. If the FCC should cease to enforce said requirements, the City reserves the right to amend the franchise or this article to incorporate comparable technical standards. At a minimum, the cable television system shall be designed to provide picture quality of TASO grade 2 or better and superior reliability and shall be a 300 MHZ system with 36 channel capacity.
B. 
Access and local programming.
(1) 
The City believes that local programming can play a distinctive, valuable, and essential role as part of a cable television system. A successful community programming operation requires the cooperation and support of a franchisee, the City, and the public over an extended period of time. Applications for a franchise shall include proposals for the provision of public, education, and local government access channels, including facilities and support services sufficient to meet community needs. Applicants are encouraged to include proposals for local origination programming by the franchisee. All local programming equipment, facilities, and support services — whether supplied directly by a franchisee or through grant funds provided by the grantee — shall be available to all users in the community, including the franchisee. All proposals shall conform to the following minimum requirements:
(a) 
A franchisee shall provide access to equipment for local program production by all cable users and live and video-taped presentation over the cable television system in addition to automated services.
(b) 
The franchisee shall have no control over the content of access programs. The City may require a franchisee or a nonprofit corporation or other entity selected to manage the access program to establish reasonable rules for the use of access channels consistent with the requirements of this article, the franchise, other applicable law and the intended purpose of such channels. Such rules shall be subject to review and approval by the City.
(c) 
Any public access channel shall be made available to any member of the public on a nondiscriminatory basis at no charge for channel or equipment use, except as otherwise provided in access rules developed by the franchise and approved by the City. Use of personnel for production of public access programming shall be made available consistent with the goal of affording users a low-cost means of television access and the requirements of the franchise.
(d) 
Any education access channel shall be made available free of charge for the transmission of local educational programming.
(e) 
Any local government access channels shall be made available free of charge for the transmission of government-related programming.
(f) 
The franchisee shall provide for a training program for access users sufficient to meet the demand for such a program.
(2) 
The City shall promulgate rules under which channel capacity dedicated to access use may be used by the franchisee when it is not being used for access purposes.
C. 
Leased access. A franchisee shall make channels available for leased or commercial use as specified in the franchise consistent with federal requirements. The franchisee shall facilitate leased access use by assuring that lessees will have full use of the system's technical capabilities, including but not limited to addressability and code formats for data transmission. The franchisee shall also make available for lease narrow band channels. Leased access shall be made available on a first-come, non-discriminatory basis and at reasonable rates. A channel designated for leased access may be utilized by the franchisee until such time as there is demand for commercial leased use of the channel.
D. 
Public drops. A franchisee shall provide without charge within the franchise area one drop activated for basic subscriber cable television service to each fire station, public school, police station, public library, and other such buildings used for public purposes as may from time to time be designated by the City. A franchisee shall be permitted to recover, at the franchisee's actual cost, for any additional converters required and the franchisee's direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than 250 feet of drop cable.
E. 
Parental control.
(1) 
A franchisee shall provide subscriber controlled "lock-out" devices (audio and visual) at a reasonable charge to subscribers upon their request. These devices should provide the greatest degree of parental discretion and control. The franchisee shall consult with the City concerning the parental control device to be used in the system. A franchisee shall notify all subscribers in writing of the availability of these devices at least annually.
(2) 
As to any program which is transmitted on a channel offered on a per-channel or per-program basis, a franchisee shall block entirely the audio and video portion of such program from reception by any subscriber who does not subscribe to that particular channel. Scrambling of the signal shall not be sufficient to comply with this provision.
F. 
Emergency audio alert system. The cable system shall be engineered, constructed and maintained to provide for an audio alert system. This audio alert system shall allow authorized officials of the City or its designated representatives to override automatically the "audio" signal on all channels and to transmit and report emergency information. The franchisee shall, in the case of any emergency or disaster, make its entire system available without charge to the City or any other governmental or civil defense agency that the City shall designate for the duration of such emergency or disaster. In the event of any such use by the City, the City shall hold harmless and indemnify the franchisee for any damages or penalties resulting from such use of this service.
A. 
Construction standards.
(1) 
Any cable system constructed within the City shall meet or exceed all technical standards consistent with this article, the franchise agreement, and the franchisee's application.
(2) 
The franchisee shall submit a copy, at its expense, of the final report on each proof of performance test required by Part 76, Subpart K of the Rules and Regulations of the FCC to the City within five working days of completion of such reports. If the FCC shall cease to require such tests, a franchisee shall continue to conduct such tests at least once each calendar year (at intervals not to exceed 14 months), shall provide a copy of each final report to the City within five working days of completion of such reports, and shall maintain the resulting test data on file at its local office for at least five years. The City subsequently may require a full report on any deficiencies as disclosed by the proof of performance test within such reasonable period of time as it may designate.
(3) 
The City may require any other reasonable proof of performance tests annually and within 90 days of the completion of the construction of a new system or the upgrading or reconstruction of an existing system. The tests and verification shall be at the expense of the franchisee.
(4) 
The franchisee shall submit to the City, as the City may request, a copy of all maps and charts of cable locations prepared by or for the franchisee during the duration of this franchisee.
B. 
Construction and installation work.
(1) 
The City shall have the right to inspect all construction and installation work performed by the franchisee subject to this article as it shall find necessary to insure compliance with governing ordinances and the franchise.
(2) 
All construction, installation and maintenance must comply with the National Electrical Safety Code, the National Electrical Code as adapted by the City, the Bell System Code of Pole Line Construction, all state and local regulations, and good and accepted industry practices.
C. 
Location of structures, lines and equipment.
(1) 
A franchisee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property until approval of the property owner or appropriate governmental authority is obtained. Such approval shall not be unreasonably withheld. However, the location of any pole or wire-holding structure by a franchisee shall not constitute a vested interest, and such poles, structures, or facilities shall be removed, replaced or modified by the franchisee at its own expense whenever the Commission or other governmental authority determines that the public interest so necessitates.
(2) 
All transmission and distribution structures, lines, and equipment installed by the franchisee within the City shall be located so as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys or other public ways or places and where they will not interfere with any gas, electric, telephone, water or other preexisting utility facility.
(3) 
All such poles and other fixtures in any street or public way shall be placed in accordance with all ordinances of the City.
(4) 
In those areas of the City where electric and telephone utility lines have been placed underground, a franchisee shall place its lines and installations underground. In areas where either telephone or electric facilities are above ground at the time of installation, the franchisee may install its service above ground, provided that, at such time as both of those other facilities are placed underground, the franchisee shall forthwith place its facilities underground, and the cost of such shall be borne by the franchisee, with no special charge being imposed upon any subscriber for such change. In new housing developments a franchisee shall install distribution cables at the same time utility facilities are being installed if reasonably possible.
(5) 
The franchisee shall locate the system head end within the City of Fennville.
D. 
Replacement of paving. The franchisee at its own cost and expense and in the manner approved by the City shall replace and restore all paving, sidewalks, driveways, or surface of any street or alley disturbed, in as good condition as before the work was commenced and shall maintain the restoration in an improved condition for a period of one year. Failure of the franchisee to replace or restore such paving, sidewalk, driveway or street surface within 48 hours after completion of work shall authorize the City to cause the proper restoration to be made at the franchisee's expense.
E. 
Alteration of streets by City. If the City shall lawfully decide to alter or change the grade of any street, alley, or other public way, the franchisee, upon reasonable notice by the City, shall, in a timely manner as requested by the City, remove and relocate its poles, wires, cables, underground conduits, and other facilities at its own expense.
F. 
Moving of buildings. A franchisee shall, on the request of any person holding a valid house-moving permit, temporarily raise or lower its wires or cables to permit the moving of buildings or other large objects. The expense of such temporary raising or lowering of wires shall be paid by the person making the request, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes.
G. 
Trimming trees. A franchisee shall have the authority to trim trees on public property or which overhang streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with wires and cables and other television conductors and fixtures of the franchisee. The City may require all trimming to be done at the franchisee's expense and under the City's supervision and direction.
A. 
Provision of service. A franchisee shall provide subscriber service on the following basis:
(1) 
A franchisee shall not deny service, access, or otherwise discriminate against any person, including subscribers and users, on the basis of race, color, religion, national origin, age, or sex. A franchisee shall comply at all times with all other applicable federal, state, and local laws and regulations.
(2) 
In providing service a franchisee shall:
(a) 
Provide a local toll-free telephone service capable of receiving subscriber service complaints, on a seven days-a-week, 24 hours-a-day basis.
(b) 
Establish a maintenance service capable of promptly locating and correcting system malfunctions. Service trucks shall be equipped for voice communication with the franchisee's dispatcher. In order to permit a rapid response to any system-wide outage, the franchisee shall have service trucks available for emergency duty to repair system outages during non-business hours.
(c) 
Make every attempt to respond to customer complaints upon receipt, but in no case later than the next working day. The franchisee, whenever reasonably practicable, shall make system repairs and testing (which would result in any interruption of service to subscribers) at times which will least affect typical subscriber television viewing habits; provided, however, a franchisee shall not be required to conduct such system repairs and testing during non-business hours.
(d) 
In those cases where service is not restored within 24 hours due to unusual circumstances, the reasons for the delay shall be fully documented in a complaint log. If, after 24 hours, service is not restored to a subscriber, a franchisee shall, upon subscriber request, provide a refund or credit to such subscriber as hereinafter set forth for such full twenty-four-hour period and subsequent fractions thereof. The refund or credit shall be in the amount of 1/30 the monthly charge for each tier of service and each premium service which is unavailable to the subscriber.
(e) 
A log of such complaints shall be maintained for inspection by the City. A franchisee shall respond to written complaints within seven days of receipt.
(3) 
As subscribers are connected or reconnected to the system, a franchisee shall, by appropriate means such as a card or brochure, furnish general subscriber information (including, but not limited to, terms of service, procedures for making inquiries or complaints, including the name, address, and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed) and furnish information concerning the City office responsible for the administration of the franchise, including the address and telephone number of said office.
(4) 
When similar complaints have been made by a number of subscribers, or where other evidence exists which, in the judgment of the City, casts doubt on the reliability or quality of the cable service, the City shall have the right and authority to require that the franchisee test, analyze, and report on the performance of the system. The franchisee shall fully cooperate with the City in performing such testing and shall prepare a written report of the results, if requested, within 30 days after notice. Costs of such testing shall be borne by the franchisee.
(5) 
Where the franchisee provides service which is not subject to rate regulation by the City, it shall give at least 30 days' prior written notice to the City and all subscribers before implementing any rate increases.
B. 
Refunds and service terminations.
(1) 
A franchisee shall establish and conform to the following policy regarding refunds to subscribers and users:
(a) 
If the franchisee collects a deposit or advance charge on any service or equipment requested by a subscriber or user, the franchisee shall provide such service or equipment within 30 days of the collection of the deposit or charge or it shall refund such deposit or charge within 30 days thereafter. Nothing in this section shall be construed:
[1] 
To relieve a franchisee of any responsibility it may have under separately executed contracts or agreements with subscribers or users;
[2] 
As limiting a franchisee's liability for liquidated damages, if any, which may be imposed under the franchise for the violation or breach of any provisions thereof; or
[3] 
To limit the franchisee's liability for damages, if any, because of its failure to provide the service for which the deposit or charge was made.
(b) 
In the event that a subscriber terminates service during the first 12 months of service because of the failure of the franchisee to render service substantially in accordance with the requirements set forth in this article and the franchise, the franchisee shall, upon written request, refund to such subscriber an amount equal to the initial installation or reconnection charge paid by the subscriber; provided, however, that nothing herein shall be deemed to entitle subscriber to a refund of any other charges due the franchisee for its cable television service. The subscriber shall bear the burden of proof in establishing that they are entitled to a refund of initial installation or reconnection charges hereunder.
(c) 
In the event that such subscriber has made any additional advance payment, the amount so advanced shall be refunded to such subscriber within 30 days after service termination. Nothing in this provision shall be construed to relieve the franchisee of any liability established under any other provisions of this article or a franchise issued pursuant thereto.
(2) 
The following requirements shall apply to subscriber disconnection:
(a) 
There shall be no charge for disconnection of any installation service or outlet. All cable communications equipment shall be removed within a reasonable time from a subscriber's property upon the subscriber's request, such time not to exceed 30 days from the date of request.
(b) 
If any subscriber fails to pay a properly due monthly subscriber's fee, or any other properly due fee or charge, the franchisee may disconnect the subscriber's service; provided, however, that such disconnection shall not be effected until 30 days after the due date of the monthly subscriber fee or charges and shall include a minimum 10 days' written notice to the subscriber of the intent to disconnect. After disconnection, upon payment in full of all proper fees or charges, including the payment of any reconnection charge (which shall not exceed the fee for a new installation), the franchisee shall promptly reinstate the service. This provision shall not apply to subscribers who have been previously disconnected for nonpayment in accordance with the provisions of this article.
C. 
Service area. A franchisee shall offer full cable television service to all areas of the City which are specifically set forth in the franchise agreement. A franchise issued pursuant hereto shall require that all dwelling units within the franchise territory shall be offered service on the same terms and conditions; provided, however, that multiple-family dwelling complexes, apartments or condominiums may be served on a master-billed basis and, further, service to motels, hotels, hospitals and similar businesses or institutions may be offered on terms and conditions different from single resident subscribers. In the event that subsequent to the issuance of a franchise the City annexes additional territory, a franchisee shall extend its cable television services into the annexed area upon reasonable request of the City.
D. 
Protection of privacy. Protection of subscriber privacy shall be assured consistent with the provisions of 47 U.S.C. § 631.[1]
[1]
Editor's Note: See now 47 U.S.C. § 551.
E. 
Tampering or unauthorized connections.
(1) 
It shall be unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a franchise cable television system within the City for the purpose of enabling anyone to receive any television signal or other information transmitted over the cable television system without proper authorization to do so.
(2) 
It shall be unlawful for any person, without the consent of the cable system operator, to willfully tamper with, remove or injure any cables, wires or other cable television system equipment except, however, a subscriber may disconnect a television receiver from the cable system upon termination of service if the operator has not responded within the 30 days to a request for disconnection.
F. 
Continuity of service.
(1) 
Where a franchisee rebuilds, modifies or sells its system, it shall ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances.
(2) 
As long as it is entitled to revenues from the operation of the cable system, a franchisee shall maintain continuity of service during any temporary transition in the franchise, including but not limited to the following circumstances:
(a) 
Revocation of the franchise;
(b) 
Non-renewal of the franchise; or
(c) 
Transfer of the cable system to the City or another entity.
G. 
Transitional operation. In the event a franchisee continues to operate the system in a transitional period, with City acquiescence, following the expiration, revocation or other termination of the franchise, it shall be bound by all the terms, conditions and obligations of the franchise as if it were in full force and effect. The terminating franchisee shall cooperate with the City and any subsequent franchisee in maintaining and transferring service responsibility.
H. 
Equal opportunity employment. Equal opportunity in employment shall be afforded by a franchisee to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, national origin or sex. A franchisee shall establish, maintain, and carry out a positive, continuing program of specific practices designed to assure equal opportunity in every aspect of company employment policy and practice. A franchisee shall immediately comply with all federal, state and local equal opportunity employment requirements and practices and shall forthwith comply with the equal employment opportunity program of the City.
I. 
Additional consumer protection. The City reserves the authority to take any reasonable action, including amendments to this article, to protect consumers of cable television services.
A. 
Interconnection.
(1) 
A franchisee's system shall be designed and constructed so as to be capable of interconnection with any systems existing in areas contiguous to the City and, insofar as technically and economically feasible, with any such systems anticipated for future construction.
(2) 
The City Commission shall have the right to require the franchisee to interconnect its system with any other broadband communications facility; provided, however, that such interconnection shall not be required if, after negotiating in good faith, the franchisee is unable to reach an equitable cost-sharing agreement with the operator of such other facility. Such interconnection shall be made within a reasonable time limit established by the City Commission. The interconnection shall be accomplished according to the method and technical standards determined by the City Commission in a manner consistent with FCC standards.
B. 
Cooperation. A franchisee shall cooperate with any interconnection corporation, regional interconnection authority, or county or state regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing, or otherwise providing for the interconnection of cable communications system beyond the boundaries of individual political jurisdictions.
A. 
Established. Before any franchise is granted or franchise agreement is executed, there shall be appointed a Commission, to be known as the "Fennville City Cable Communications Commission."
B. 
Composition. The Commission shall consist of four residents of the City appointed by the City Commission and the Chairman of the City Ordinance Committee. Each member shall serve a term of five years; provided, however, that appointments to the first Commission shall be for one-, two-, three- and four-year terms, respectively. Any vacancy on the Commission shall be filled by the City Commission for the remainder of the term. No employee or person with ownership interest in a cable television franchise granted pursuant to this article shall be eligible for membership on the Commission. No person shall serve on the Commission for an aggregate period in excess of 10 years.
C. 
Functions. The Commission, in addition to functions provided elsewhere in this article, shall have the following functions:
(1) 
Advise the City Commission on applications for franchise;
(2) 
Advise the City Commission on matters which might constitute grounds for suspension or revocation of the franchise in accordance with this article;
(3) 
Resolve disagreements among franchisee, subscribers and public and private users of the system; such decisions of the Commission shall be appealable to the City Commission;
(4) 
Advise the City Commission on the regulation of rates in accordance with this article; and advise the City Commission on other matters pertaining to this article, the franchisee and/or the franchise agreement;
(5) 
Coordinate the franchisee's consultant services to facilitate government, educational, community group and individual use of the public channels;
(6) 
Monitor the services provided subscribers and the operation and use of public channels, with a view towards maximizing the diversity of programs and services to subscribers;
(7) 
Encourage use of public channels among the widest range of institutions, groups and individuals within the City;
(8) 
Submit an annual report to the City Commission, including, but not limited to, the total number of hours of utilization of public channels, a review of any plans submitted during the year by franchisees for development of new services, and hourly subtotals for various programming categories. The annual report shall include the following programming categories:
(a) 
Local educational uses, including library, public and private schools;
(b) 
Public access for local programming under public control;
(c) 
Public agency access (including fire, police, burglar alarms, and public announcements);
(d) 
Availability of channel time for lease for pay TV;
(e) 
Availability of channel time for lease for business uses, including telemetry of information;
(f) 
Information retrieval and professional communication;
(9) 
Cooperate with other systems, and supervise interconnection of systems;
(10) 
Maintain a knowledge of current developments in cable communications;
(11) 
Submit a budget request to the City Commission to cover expenses incurred with respect to the performance of Commission functions provided by this article. This request may include funds to be used for the development of the use of public access channels, including production grants to users and the purchase and maintenance of equipment not required to be provided by the franchisee, and funds to be used for reasonable expenses of Commission members;
(12) 
Audit all franchisee records required by this article and, in the Commission's discretion, require the preparation and filing of information additional to that required herein;
(13) 
Conduct evaluations of the system at least every three years with the franchisee and, pursuant thereto, make recommendations to the City Commission for amendment to this article or the franchise agreement;
(14) 
Employ, as necessary but within budgetary allocations, the services of a technical consultant, to assist in the analysis of any matter relative to any franchise under this article;
(15) 
Act on behalf of or as the designee of the City Commission for the purpose of proposing regulations deemed necessary by the City Commission, and/or to provide any other service to the City Commission that may be reasonably required by the City Commission under the authority of this article; and
(16) 
Develop, publish and amend, all subject to City Commission adoption and approval, reasonable rules and regulations governing the Commission's functions and procedures pursuant to this article.
D. 
Action by majority. Any actions of the Commission shall require the concurrence of four members.
A. 
Penalties. Violation of § 140-8E, Tampering or unauthorized connections, of this article or failure to comply with any of its requirements shall constitute a misdemeanor. Any person who violates § 140-8E of this article or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than $500 or imprisoned for not more than 90 days, or both. Each day a violation continues shall be considered a separate offense. The City Commission, its authorized representative or any other public official or private citizen may take such lawful action as is necessary to restrain or prevent any violation of § 140-8E of this article. Any person violating any of the provisions of § 140-8E of this article shall be liable to the City for any expense, loss or damage occasioned the City by reason of such violation.
B. 
Administrative liability. No officer, agent or employee of the City or its authorized representative or member of the City Commission shall render themselves personally liable for any damage that may accrue to any person as a result of any acts, decisions or other consequence or occurrence arising out of the discharge of their duties and responsibilities pursuant to this article.
[Adopted 9-20-1993 by Ord. No. 172 (Ch. 18, Art. III, Div. 3, of the 1992 Code of Ordinances)]
A. 
As used in this article, the following terms shall have the meanings indicated:
ACT
The Communications Act of 1934, as amended (and specifically as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385), and as may be amended from time to time.
ASSOCIATED EQUIPMENT
All equipment and services subject to regulation pursuant to 47 CFR § 76.923.
BASIC CABLE SERVICE
"Basic service" as defined in the FCC Rules, and any other cable television service which is subject to rate regulation by the City pursuant to the Act and the FCC Rules.
FCC
The Federal Communications Commission.
FCC RULES
All rules of the FCC promulgated from time to time pursuant to the Act.
INCREASE
Increase in rates shall mean an increase in rates or a decrease in programming or customer services as provided in the FCC Rules.
B. 
All other words and phrases used in this article shall have the same meanings as defined in the Act and FCC Rules.
A. 
The purpose of this article is to:
(1) 
Adopt regulations consistent with the Act and the FCC Rules with respect to basic cable service rate regulation; and
(2) 
Prescribe procedures to provide a reasonable opportunity for consideration of the views of interested parties in connection with basic cable service rate regulation by the City.
B. 
This article shall be implemented and interpreted consistent with the Act and FCC Rules.
A. 
A cable operator shall submit its schedule of rates for the basic service tier and associated equipment or a proposed increase in such rates in accordance with the Act and the FCC Rules. The cable operator shall include as part of its submission such information as is necessary to show that its schedule of rates or its proposed increase in rates complies with the Act and the FCC Rules. The cable operator shall file 10 copies of the schedule or proposed increase with the City Clerk. For purposes of this article, the filing of the cable operator shall be deemed to have been made when at least 10 copies have been received by the City Clerk. The City Commission may, by resolution or otherwise, adopt rules and regulations as allowed by law prescribing the information, data and calculations which must be included as part of the cable operator's filing of the schedule of rates or a proposed increase.
B. 
In addition to information and data required by rules and regulations of the City pursuant to § 140-15A above, a cable operator shall provide all information requested by the City that is related and helpful in connection with the City's review and regulation of existing rates for the basic service tier and associated equipment or a proposed increase in these rates. The City may establish reasonable deadlines for submission of the requested information, and the cable operator shall comply with such deadlines.
C. 
A cable operator has the burden of proving that its schedule of rates for the basic service tier and associated equipment or a proposed increase in such rates complies with the Act and the FCC Rules, including, without limitation, 47 USC § 543 and 47 CFR §§ 76.922 and 76.923.
A. 
If this article, any rules or regulations adopted by the City pursuant to § 140-15A, or any request for information pursuant to § 140-15B requires the production of proprietary information, the cable operator shall produce the information. However, at the time the allegedly proprietary information is submitted, a cable operator may request that specific, identified portions of its response be treated as confidential and withheld from public disclosure. The request must state the reason why the information should be treated as proprietary and the facts that support those reasons. The request for confidentiality will be granted if the City determines that the preponderance of the evidence shows that non-disclosure is consistent with the provisions of the Freedom of Information Act, 5 U.S.C. § 552. The City shall place in a public file for inspection any decision that results in information being withheld. If the cable operator requests confidentiality and the request is denied:
(1) 
Where the cable operator is proposing a rate increase, it may withdraw the proposal, in which case the allegedly proprietary information will be returned to it; or
(2) 
The cable operator may seek review within five working days of the denial in any appropriate forum. Release of the information will be stayed pending review.
B. 
Any interested party may file a request to inspect material withheld as proprietary with the City. The City shall weigh the policy considerations favoring non-disclosure against the reasons cited for permitting inspection in light of the facts of the particular case. It will then promptly notify the requesting entity and the cable operator that submitted the information as to the disposition of the request. It may grant, deny or condition a request. The requesting party or the cable operator may seek review of the decision by filing an appeal with any appropriate forum. Disclosure will be stayed pending resolution of any appeal.
C. 
The procedures set forth in this section shall be construed as analogous to and consistent with the rules of the FCC regarding requests for confidentiality including, without limitation, 47 CFR § 0.459.
A. 
Upon the filing of 10 copies of the schedule of rates or the proposed increase in rates pursuant to § 140-15A above, the City Clerk shall publish a public notice in a newspaper of general circulation in the City which shall state that:
(1) 
The filing has been received by the City Clerk and (except those parts which may be withheld as proprietary) is available for public inspection and copying; and
(2) 
Interested parties are encouraged to submit written comments on the filing to the City Clerk not later than seven days after the public notice is published.
B. 
The City Clerk shall give notice to the cable operator of the date, time, and place of the meeting at which the City Commission shall first consider the schedule of rates or the proposed increase. This notice shall be mailed by first-class mail at least three days before the meeting.
C. 
In addition, if a written staff or consultant's report on the schedule of rates or the proposed increase is prepared for consideration of the City Commission, then the City Clerk shall mail a copy of the report by first-class mail to the cable operator at least three days before the meeting at which the City Commission shall first consider the schedule of rates or the proposed increase.
After a cable operator has filed its existing schedule of rates or a proposed increase in these rates, the existing schedule of rates will remain in effect or the proposed increase in rates will become effective after 30 days from the date of filing under § 140-15A above unless the City Commission (or other properly authorized body or official) tolls the thirty-day deadline pursuant to 47 CFR § 76.933 by issuing a brief written order, by resolution or otherwise, within 30 days of the date of filing. The City Commission may toll the thirty-day deadline for an additional 90 days in cases not involving cost-of-service showings and for an additional 150 days in cases involving cost-of-service showings.
A. 
If a written order has been issued pursuant to § 140-18 and 47 CFR § 76.933 to toll the effective date of existing rates for the basic service tier and associated equipment or a proposed increase in these rates, the cable operator shall submit to the City any additional information required or requested pursuant to § 140-15 of this article. In addition, the City Commission shall hold a public hearing to consider the comments of interested parties within the additional ninety-day or 150-day period, as the case may be.
B. 
The City Clerk shall publish a public notice of the public hearing in a newspaper of general circulation within the City which shall state:
(1) 
The date, time, and place at which the hearing shall be held;
(2) 
Interested parties may appear in person, by agent, or by letter at such hearing to submit comments on or objections to the existing rates or the proposed increase in rates; and
(3) 
Copies of the schedule of rates or the proposed increase in rates and related information (except those parts which may be withheld as proprietary) are available for inspection or copying from the office of the City Clerk.
C. 
The public notice shall be published not less than 15 days before the hearing. In addition, the City Clerk shall mail by first-class mail a copy of the public notice to the cable operator not less than 15 days before the hearing.
Following the public hearing, the Mayor or City staff shall prepare a report for the City Commission which shall (based on the filing of the cable operator, the comments or objections of interested parties, information requested from the cable operator and its response, staff or consultant's review, and other appropriate information) include a recommendation for the decision of the City Commission pursuant to § 140-21. The City Clerk shall mail a copy of the report to the cable operator by first-class mail not less than 20 days before the City Commission acts under § 140-21. The cable operator may file a written response to the report with the City Clerk. If at least 10 copies of the response are filed by the cable operator with the City Clerk within 10 days after the report is mailed to the cable operator, the City Clerk shall forward it to the City Commission.
The City Commission shall issue a written order, by resolution or otherwise, which, in whole or in part, approves the existing rates for basic cable service and associated equipment or a proposed increase in such rates, denies the existing rates or proposed increase, orders a rate reduction, prescribes a reasonable rate, allows the existing rates or proposed increase to become effective subject to refund, or orders other appropriate relief, in accordance with the FCC Rules. If the City Commission issues an order allowing the existing rates or proposed increase to become effective subject to refund, it shall also direct the cable operator to maintain an accounting pursuant to 47 CFR § 76.933. The order specified in this section shall be issued within 90 days of the tolling order under § 140-18 in all cases not involving a cost-of-service showing. The order shall be issued within 150 days after the tolling order under § 140-18 in all cases involving a cost-of-service showing.
The City Commission may order a refund to subscribers as provided in 47 CFR § 76.942. Before the City Commission orders any refund to subscribers, the City Clerk shall give at least seven days' written notice to the cable operator by first-class mail of the date, time, and place at which the City Commission shall consider issuing a refund order and shall provide an opportunity for the cable operator to comment. The cable operator may appear in person, by agent, or by letter at such time for the purpose of submitting comments to the City Commission.
A. 
Any order of the City Commission pursuant to § 140-21 or 140-22 shall be in writing, shall be effective upon adoption by the City Commission, and shall be deemed released to the public upon adoption. The City Clerk shall publish a public notice of any such written order in a newspaper of general circulation within the City which shall:
(1) 
Summarize the written decision; and
(2) 
State that copies of the text of the written decision are available for inspection or copying from the office of the City Clerk.
B. 
In addition, the City Clerk shall mail a copy of the text of the written decision to the cable operator by first-class mail.
In addition to rules promulgated pursuant to § 140-15, the City Commission may, by resolution or otherwise, adopt rules and regulations for basic cable service rate regulation proceedings (including, without limitation, the conduct of hearings), consistent with the Act and the FCC Rules.
The failure of the City Clerk to give the notices or to mail copies of reports as required by this article shall not invalidate the decisions or proceedings of the City Commission, so long as there is substantial compliance with this article.
In addition to the requirements of this article, the City Commission may in its sole discretion hold additional public hearings upon such reasonable notice as the City Commission shall prescribe.
The City shall possess all powers conferred by the Act, the FCC Rules, the cable operator's franchise, and all other applicable law. The powers exercised pursuant to the Act, the FCC Rules, and this article shall be in addition to powers conferred by law or otherwise. The City may take any action not prohibited by the Act and the FCC Rules to protect the public interest in connection with basic cable service rate regulation.
The City may pursue any and all legal and equitable remedies against the cable operator (including, without limitation, all remedies provided under a cable operator's franchise with the City) for failure to comply with the Act, the FCC Rules, any orders or determinations of the City pursuant to this article, any requirements of this article, or any rules or regulations promulgated hereunder. Subject to applicable law, failure to comply with the Act, the FCC Rules, any orders or determinations of the City pursuant to this article, any requirements of this article, or any rules and regulations promulgated hereunder, shall also be sufficient grounds for revocation or denial of renewal of a cable operator's franchise.
In the event of any conflict between this article and the provisions of any prior ordinance or any franchise, permit, consent agreement or other agreement with a cable operator, then the provisions of this article shall control.