[Adopted 4-17-1979 by Ord. No. 791
(Art. I of Ch. A380 of the 1984 Code); amended in its entirety 9-23-1997
by Ord. No. 1098]
This ordinance shall be known and may be cited as the "Roseville, Michigan,
Cable Communications Regulatory Ordinance."
A.
When not inconsistent with the context, words used in
the present tense include the future, and words in the plural number include
the singular number, and words in the singular number include the plural number.
The word "shall" is always mandatory and not merely directory.
B.
CITY
COMPANY
COUNCIL
FEDERAL COMMUNICATIONS COMMISSION or FCC
GROSS SUBSCRIBER REVENUES
PERSON
SYSTEM
WRITTEN PROPOSAL
For the purpose of this ordinance, the following terms,
phrases, words and derivations shall have the meanings given herein:
The City of Roseville, Michigan.
Any grantee of rights under this regulatory ordinance.
The City Council of Roseville, Michigan.
That federal agency constituted by the Communications Act of 1934,
as amended.
Revenues received by the franchisee from subscribers for transmission
of broadcast signals and for programming on required access and origination
channels in the City of Roseville. This term shall further include forfeited
deposits, installation fees, service call fees, fees for the provision or
rental of converters, remote controls, additional outlets and other customer
premises equipment. This term does not include any sales, excise or other
taxes or copyright fees collected by franchisee on behalf of any state, city
or governmental unit and shall be net of bad debt, refunds to subscribers,
home shopping revenues and advertising revenues.
Any person, firm, partnership, association, corporation, company
or organization of any kind.
The lines, fixtures, equipment, attachments and all appurtenances
thereto which are used in the construction, operation and maintenance of the
community antenna television system herein authorized.
The Continental Cablevision cable communications proposal for Roseville,
Michigan, dated March 1979, consisting of approximately 48 pages of text,
plus attached exhibits and the proposal overview, Roseville, Michigan, consisting
of four pages of text, and any amendments, revisions or supplements thereto
as approved and agreed upon between the city and Continental Cablevision and/or
its successor or successors.
This regulatory ordinance, which provides for the granting of the nonexclusive
right to construct, operate and maintain a cable television system in the
city, was passed and adopted by the city after a full, open and public proceeding.
Before any grant hereunder is made, public notice shall be given, and all
interested parties shall be given the opportunity to comment upon the legal,
character, financial, technical and other qualifications of any proposed company.
After receiving at said proceeding all comments regarding the qualifications
of the proposed company, the city shall make findings concerning whether the
company possesses the necessary legal, technical, character, financial and
other qualifications and whether the company's construction arrangements
are adequate and feasible. Based thereon the city may grant to the company
a nonexclusive franchise, right and privilege to construct, erect, operate,
modify and maintain in, upon, along, across, above and over and under the
highways, streets, alleys, sidewalks, public ways and public places now laid
out or dedicated and all extensions thereof and additions thereto, in the
city, poles, wires, cables, underground conduits, manholes and other television
conductors and fixtures necessary for the maintenance and operation in the
city of a cable television system for the purpose of distributing television
and radio signals and other electronic impulses in order to furnish television
and radio programs and various communications and other electronic services
to the public. The right so granted includes the right to use and occupy the
streets, alleys, public ways and public places and all manner of easements
for the purposes herein set forth.
The franchise granted to any company hereunder shall terminate after
the term negotiated with Council, which term may be up to 15 years from the
date of the grant, subject to renewal for periods of reasonable duration on
the same terms and conditions as contained herein or on such different or
additional terms and conditions as may be lawfully specified by the city and
as are consistent with the rules and regulations of the FCC. The company's
application for franchise renewal shall be granted, provided that the company
shows that its cable television service during the preceding franchise period
has reflected a good faith effort to serve the needs and interests of its
service area, that the company had not demonstrated a callous disregard of
the law and all pertinent regulations and that the company has substantially
complied with all terms and conditions of the franchise agreement with the
city.
The company shall, at all times during the life of this regulatory ordinance,
be subject to all lawful exercise of the police power by the city and to such
reasonable regulations as the city shall hereafter by resolution or ordinance
provide. The construction, operation and maintenance of the system by the
company shall be in full compliance with such portions of the National Building
and Electrical Code and National Electrical Safety Code as may be applicable
and as the same may be amended and revised from time to time and in full compliance
with all other applicable rules, regulations and ordinances now in effect
or hereafter adopted by the Federal Communications Commission, the city or
any other agency of the State of Michigan or of the United States which may
hereafter acquire jurisdiction of the operations of the company authorized
herein; provided, however, that such amendments by the city do not materially
or adversely affect the rights or privileges granted within the franchise
agreement.
The company shall indemnify the city for, and hold it harmless from,
all liability, damage, cost or expense arising from claims of injury to persons
or damage to property occasioned by reason of any conduct undertaken pursuant
to this ordinance, including libel and slander actions. The city shall notify
the company's representative within 15 days after the presentation of
any claim or demand to the city, either by suit or otherwise, made against
the city on account of any negligence or contract as aforesaid on the part
of the company. The company further agrees as follows:
A.
The company shall carry worker's compensation insurance,
with statutory limits and employer's liability insurance with limits
of no less than $100,000, which shall cover all operations to be performed
by the company as a result of this ordinance.
B.
The company shall carry comprehensive general liability
and comprehensive automobile liability insurance with bodily injury limits
of not less than $1,000,000 per person and $1,000,000 per occurrence.
C.
The company's worker's compensation comprehensive
general liability and comprehensive automobile liability insurance shall be
written by an insurance company agreed upon by the city, which agreement shall
not be unreasonably withheld, and the company agrees to furnish the city with
certified copies of certificates of insurance of said policies, which shall
provide that insurance shall not be canceled unless 10 days' prior written
notice shall first be given to the city.
D.
The company shall, within 30 days subsequent to the effective
date of any grant hereunder, post a performance bond with the city, written
by an approved corporation surety in the amount of $100,000 and in a form
satisfactory to the city, guaranteeing the company's continued operation
of the cable television system within the city, and the company shall well
and truly observe, fulfill and perform each term and condition of the bond;
provided, however, that if the company had posted a bond pursuant to the requirements
of the ordinance heretofore granted and said bond is in effect when the term
of this ordinance begins and is in a form and amount satisfactory to the city,
such bond shall constitute full compliance with the requirements of this subsection.
All damages which may be directly occasioned by the failure of the company
to perform under this ordinance, up to the principal amount of the bond, shall
be recoverable from the principals and sureties of said bond by the city.
The bond required hereunder may be reduced in face amount to $25,000 at such
time as may be provided in the company's franchise agreement.
E.
If the company should commit a breach of this ordinance
and not remedy such breach within 60 days after having received written notice
from the city to do so, then the city, at its discretion, may declare a portion
of the bond equivalent to the amount of damages sustained by the municipality
which are directly attributable to such breach forfeited, and the company
shall thereupon be required to remedy the breach with reasonable dispatch
and, within 60 days of such forfeiture, to replace the forfeited portion of
the bond. Notwithstanding the foregoing, nothing contained in this subsection
shall serve to absolve the company of any of its obligations under this ordinance
or the rules and regulations of the Federal Communications Commission.
F.
The company shall pay all premiums chargeable for the
bond and shall keep the same in full force and effect at all times throughout
the term of this ordinance and during the removal of all poles, wires, cable,
underground conduits, manholes and other conductors, converters, equipment
and fixtures subsequent to the termination of this ordinance. The bond shall
contain a provision that it shall not be terminated or otherwise allowed to
expire prior to 30 days after written notice to that effect is given to the
Clerk or similar official of the city.
G.
Resident company and agent. All insurance policies and
bonds as are required of the company in this regulatory ordinance shall be
written by a company or companies authorized and qualified to do business
in the State of Michigan. Certificates of all coverage required shall be promptly
filed by the company with the city.
H.
Application for permit. Within 60 days after the effective
date of any grant hereunder, the company shall file with the Federal Communications
Commission such request, petition or other application as is then proper to
secure from said Federal Communications Commission any and all necessary permits,
licenses, waiver or the like as may be necessary to be secured from said Federal
Communications Commission to fully comply with the terms of this ordinance.
The company shall thereafter diligently pursue such application with the Federal
Communications Commission and shall do all reasonable things necessary and
proper to secure any such permit, license, waiver, approval or the like from
it. The company shall keep the city advised, from time to time, of the progress
of such application.
A.
Upon the grant of this ordinance to construct and maintain
a cable television system in the city and in furtherance of the company's
execution of contracts with public utility companies or any other owner or
lessee of any poles located within or without the city to whatever extent
such contract or contracts shall be expedient and of advantage to the company
for use of poles and posts necessary for proper installation of the system,
the company shall obtain right-of-way permits, from appropriate state, county
and federal officials, necessary to cross highways or roads under their respective
jurisdictions to supply main trunk lines from the company's receiving
antennas, obtain permission from the Federal Aviation Authority to erect and
maintain antennas suitable to the needs of the system and its subscribers
and obtain whatever other permits a city, county, state or federal agency
may require. The company shall construct its cable system using material of
good and durable quality, and all work involved in the construction, installation,
maintenance and repair of the cable system shall be performed in a safe, thorough
and reliable manner. Any municipal property damaged or destroyed shall be
promptly repaired or replaced by the company and restored to serviceable condition.
B.
The company's system, poles, wires and appurtenances
shall be located, erected and maintained so that none of its facilities shall
endanger or interfere with the lives of persons or interfere with any improvements
the city may deem proper to make or unnecessarily hinder or obstruct the free
use of the streets, alleys, bridges, easements or public property.
C.
In the event that the city shall annex further territory as authorized by law, the company shall extend energized trunk cable to the remaining portions of the city so annexed within an acceptable time thereafter, unless additional time is granted by the City Council upon request of the company for good cause shown, subject to § A380-32 of this ordinance.
D.
All transmission and distribution structures, lines and
equipment erected by the company within the city shall be so located as to
cause minimum interference with the proper use of streets, alleys or other
public ways and places.
E.
In the case of any disturbance of pavement, sidewalk,
driveway or other surfacing, the company shall, at its own cost and expense
and in a manner approved by the city and/or Macomb County, replace and restore
all paving, sidewalk, driveway or surface of any street or alley disturbed,
in as good condition as before said work was commenced.
F.
In the event that at any time during the period of this
ordinance the city and/or Macomb County shall lawfully elect to alter or change
the grade of any street, alley or other public way, the company, upon reasonable
notice by the city and/or Macomb County, shall remove, relay and relocate
its poles, wires, cables, underground conduits, manholes and other fixtures
at its own expense.
G.
The company shall not place poles or other fixtures where
the same will interfere with any gas, electric or telephone fixture or water
hydrant or main, and all such poles or other fixtures placed in any street
shall be placed at the outer edge of the sidewalk and inside the curbline,
and those placed in alleys shall be placed close to the line of the lot abutting
on said alley, and then in such manner as not to interfere with the usual
travel on said streets, alleys and public ways.
H.
The company shall, on the request of any person holding
a building moving permit issued by the city, temporarily raise or lower its
wires to permit the moving of buildings. The expense of such temporary removal,
raising or lowering of wires shall be paid by the person requesting the same,
and the company shall have the authority to require such payment in advance.
The company shall be given not less than 48 hours' advance notice to
arrange for such temporary wire changes.
I.
The company shall have the authority to trim trees upon
and overhanging streets, alleys, sidewalks and public places of the city so
as to prevent the branches of such trees from coming in contact with the wires
and cables of the company, all trimming to be done under the supervision and
direction of the city and/or Macomb County and at the expense of the company.
J.
The company shall provide, upon request and without charge,
one service outlet to any municipal buildings owned and operated by the city
and to any public and parochial educational facilities. Additional internal
wiring and service outlets shall be borne by the institution at cost of time
and materials except as may be agreed upon in any franchise agreement.
The company shall make cable service available to all residents of the city, subject to the line extension provisions of § A380-32A, within five months after all necessary permits and notifications are received and all necessary utility (telephone and power) pole rearrangements are completed, unless otherwise agreed in the franchise agreement.
A.
It shall be the obligation of the company to serve all
residents of the city. The company shall extend service to new subscribers
at the normal installation charge and monthly rate for customers of that classification
where there are an average of 70 homes per each linear mile of new cable construction.
All facilities and equipment of the company shall be constructed and
maintained in accordance with the requirements and specifications of the National
Electrical Safety Code and such applicable ordinances and regulations set
forth by the city and/or any other local, state or federal agencies.
The company shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the company to exercise its rights and perform its obligations
under this ordinance and to assure an uninterrupted service to each and all
of its customers; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or with federal
and state laws.
No renewal of this ordinance shall be effective except pursuant to a
public proceeding affording due process. The company shall be party to any
such proceedings and any other proceedings in which its rights, privileges
or interests would be affected and shall be fully entitled to such due process
rights as may be available under applicable laws, ordinances, rules or regulations.
The company shall not sell, assign or transfer its system to another,
nor transfer any rights under this ordinance to another, except to a wholly
owned subsidiary, without written approval by the city, provided that such
approval shall not be unreasonably withheld if the vendee, assignee or lessee
has filed with the appropriate official of the city an instrument duly executed,
reciting the fact of such sale, assignment or lease, accepting the terms of
this ordinance and agreeing to perform all conditions thereof.
The company shall at all times comply with the rules and regulations
governing CATV operations promulgated by the FCC. This shall include adherence
by the company to FCC rules regarding technical and engineering specifications
involved in the construction of the CATV system and signal carriage therein.
Channel capacity and access to the cable television system to be installed
shall be fully consistent with the company's written proposal or the
franchise agreement which are hereby incorporated by reference in this ordinance.
Consistent with the requirements of FCC, any modification of FCC rules
and regulations shall be considered incorporated in this ordinance unless
same are permissive only and are less restrictive upon the company than this
ordinance and/or the franchise agreement.
The company shall assume the costs of the publication of this ordinance
as such publication is required by law. A bill for publication costs shall
be presented to the company by the appropriate city officials upon the company's
filing of its acceptance of this ordinance, and said publication costs shall
be paid at that time by the company.
A.
City rules. The right is hereby reserved to the city
to adopt, in addition to the provisions herein contained and existing applicable
ordinances, such additional regulations as it shall find necessary in the
exercise of the police power, provided that such regulations, by ordinance
or otherwise, shall be reasonable and not in conflict with the rights herein
granted and shall not be in conflict with the applicable laws of the State
of Michigan or of the United States and provided that such amendments do not
materially or adversely effect the rights or privileges granted within a franchise
agreement.
B.
Use of system by city. The city shall have the right,
during the life of this ordinance, of maintaining upon the poles or in the
underground conduits of the company, within the city limits, wire and fixtures
necessary for a traffic signal control system and/or a police and fire alarm
system. Such wires and fixtures shall be installed and maintained at the sole
expense of the city and shall at all times comply with all the reasonable
rules and regulations of the company so that there may be a minimum danger
of contact or conflict between the wires and fixtures of the company and wires
and fixtures used by the city.
C.
Emergency or disaster. In the case of any emergency or
disaster, the company shall, upon request of the City Manager, make its facilities
available to the city for emergency use during the emergency or disaster period.
D.
Liability. The city shall not be liable for any damage
occurring to the property of the company caused by employees of the city in
the performance of their duties, except for damage caused to the company's
facilities by the negligence of the city's employees. The city shall
not be liable for the interruption of service by actions of city employees
in the performance of their duties, nor shall the city be held liable for
the failure of the company to be able to perform normal services due to acts
of God or other factors beyond the control of the city.
E.
No property right. Nothing in this ordinance shall grant
to the company any right of property in the city-owned property, nor shall
the city be compelled to maintain any of its property any longer than, or
in any fashion other than, in the city's judgment its own business or
needs may require.
F.
Construction approval by city. Except for individual
service drops, the company shall not erect any pole, install any underground
lines or conduits, run any line, make any attachment, nor shall any construction
of any kind be commenced, without the prior approval of the Director of Department
of Buildings and Inspections or appropriate department of the city, which
approval shall not be unreasonably withheld, and the city shall have and maintain
the right to inspect the construction, operation and maintenance of the system
by the company to ensure the proper performance of the terms of this regulatory
ordinance.
A.
The company shall not allow its cable or other operations
to interfere with television reception of persons not served by the company,
nor shall the system interfere with, obstruct or hinder in any manner the
operation of the various utilities serving the residents of the city.
B.
The company shall not, as to rates, charges, service
facilities, rules, regulations or any other respect, make or grant any preference
or advantage to any person and not subject any person to any prejudice or
disadvantage, provided that nothing in this ordinance shall be deemed to prohibit
the establishment of a graduated scale of charges and classified rate schedules
to which any customer coming within such legally allowed classification would
be entitled.
A.
The company shall, during each year of operation under
this ordinance, pay to the city such percent of the annual gross subscriber
revenues received by the company for its cable services as agreed upon and
set forth in the franchise agreement. At the time of this annual payment,
the company shall furnish the city with an operating report showing the company's
annual gross subscriber revenues during the preceding year and such other
information as the city shall reasonably require with respect to properties
related to the company's services within the city for such period.
B.
Manner of payment. All payments as required by the company
to the city shall be made annually and shall be due 30 days after the close
of the twelve-month period unless otherwise agreed in the franchise agreement.
The company shall keep full, true, accurate and current books of account,
which books and records, and all other pertinent books, records, maps, plans,
revenue statements and other like materials, shall be made available for inspection
and copying by the city upon reasonable notice and during normal business
hours to the extent necessary to enforce the terms of this ordinance and the
franchise agreement.
During the term of this ordinance, and any renewal thereof, the city
may require the company to maintain within the city a service business office
or agent for the purpose of receiving and resolving all complaints regarding
the quality of service, equipment malfunctions and similar matters or a substitute
service office adequate to respond to the service needs of the public as set
forth in the franchise agreement. The service office shall be reached by a
toll-free telephone call; and the company shall provide the City Manager's
office with the name, address and phone number of a person who will act as
the company's agent to receive complaints regarding the quality of service,
equipment malfunctions and similar matters. The service office shall be open
to receive inquiries or complaints from subscribers during normal business
hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
Any complaints from subscribers shall be investigated and acted upon as soon
as possible, but at least within three business days of their receipt. The
company shall keep a maintenance service log listing all complaints resulting
in service calls, their dispositions and any service interruption. This log
shall be made available for periodic inspection by the city.
A.
The company shall not permit the transmission of any
signal, aural, visual or digital, including polling the channel selection,
from any subscriber's premises without first obtaining written permission
of the subscriber. This provision is not intended to prohibit the use of transmission
of signals useful for the control or measurement of system performance.
B.
The company shall not permit the installation of any
specific terminal equipment in any subscriber's premises that will permit
transmission from the subscriber's premises of two-way services utilizing
aural, visual or digital signals without first obtaining written permission
of the subscriber.
C.
It shall be unlawful for any person to attach or affix
or to cause to be attached or affixed any equipment or device which allows
access or use of the cable television service without payment to the grantee
for same.
The city reserves the right to adopt, in addition to the provisions
contained in this ordinance, such additional regulations as it shall find
necessary in the exercise of its police power; provided, however, that such
regulations are reasonable and not materially in conflict with the privileges
granted in this ordinance; provided, however, that any such additional regulations
by the city do not materially or adversely affect the rights or privileges
granted with the franchise agreement.
A.
The franchise herein granted hereunder shall, at the
option of the City Council or its designee, cease and terminate 120 days after
the appointment of a receiver or receivers or trustee or trustees to take
over and conduct the business of the franchisee, whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of said 120
days, or unless:
(1)
Such receivers or trustees shall have, within 120 days
after their election or appointment, fully complied with all the terms and
provisions of this ordinance and the franchise granted pursuant hereto, and
the receivers or trustees within said 120 days shall have remedied all defaults
under the franchise; and
(2)
Such receivers or trustees shall, within said 120 days,
execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the franchise herein granted.
B.
In the case of a foreclosure or other judicial sale of
the plant, property and equipment of the franchisee, or any part thereof,
including or excluding this franchise, the City Council or its designee may
serve notice of termination upon the franchisee and the successful bidder
at such sale, in which event the franchise herein granted and all rights and
privileges of the franchisee hereunder shall cease and terminate 30 days after
service of such notice, unless:
In addition to providing basic cable television service consisting of
broadcast and access signals, the company may offer subscribers optional services
on a per-program or per-channel basis (pay cable). The company's programming
shall be in compliance with the First Amendment to the Constitution of the
United States.
The grantee shall not refuse to hire nor discharge from employment nor
discriminate against any person regarding compensation, terms, conditions
or privileges of employment because of sex, race, color, creed or national
origin. The grantee shall take affirmative action to ensure that employees
are treated, during employment, without regard to their sex, race, color,
creed or national origin.
