(a) Nonexclusivity of Franchise. The Village Council may award a nonexclusive franchise to construct, erect, operate and maintain in, upon, along, above, over and under the streets, alleys, public ways and public places, now laid out or dedicated and all extensions thereof, and additions thereto, in the franchise territory, poles, wires, cables, conductors, ducts, underground conduits, vaults, manholes, amplifiers, appliances, attachments and other property and fixtures necessary for the operation and maintenance of a cable communications system, and to furnish and to sell service from such system to the inhabitants of the entire franchise territory pursuant to the terms of this chapter. The Village Council specifically reserves the right to grant a similar franchise to any person at any time.
(b) Length of Franchise. The term of a franchise and all rights, privileges, obligations and restrictions pertaining thereto shall not be more than fifteen years from the effective date of the franchise, as specifically set forth in the franchise agreement. The franchise may be terminated sooner pursuant to the provisions of this chapter, or the franchise agreement. The Village shall have the option to extend the franchise for an additional five-year period. The decision to extend the franchise under this section shall be made by resolution of the Village Council at least six months prior to the expiration of the initial franchise term, and after a public hearing. Notice of the public hearing shall be given in accordance with the provisions of Section 820.09
(o). A copy of the Village Council resolution setting forth its decision shall be mailed to the franchisee no more than five days after its passage.
(c) Conditions for Initial Franchise Validation.
(1) Within thirty days after the effective date of the franchise, the franchisee shall apply for all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility-joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable communications systems or their associated microwave transmission facilities. The franchisee shall apply for all necessary and required permits and file all necessary and required statements with the FCC within thirty days after the effective date of the franchise.
(2) The franchisee shall complete strand mapping and shall commence initial ground breaking within sixty days after the effective date of the franchise.
(3) The franchisee shall complete pole agreements and shall begin preparing the poles within ninety days after the effective date of the franchise subject to the cooperation of the utility companies involved. All poles shall be ready within 180 days after the effective date of the franchise subject to the cooperation of the utility companies involved. The franchisee shall notify the Village of any failure on the part of the utility company to so cooperate under this subsection.
(4) Within 120 days after the commencement of construction, activation and installation of the system, the franchisee shall proceed to render cablecast service to subscribers, and the completion of the construction, activation and installation shall be pursued with reasonable diligence thereafter. Service shall be provided to not less than one-third of the franchise territory, and the subscribers located therein, within six months from the effective date of the franchise, and service shall be provided to not less than two-thirds of the franchise territory, and the subscribers located therein, within twelve months from the effective date of the franchise. Additional time for completing the installation of service may be granted by the Village Council during the twelve months upon a proper showing of need, but in no event shall the elapsed time for completing such installation exceed fifteen months.
(5) Within twelve months from the effective date of the franchise or within the times otherwise set forth in the franchise agreement, the franchisee shall provide all equipment and all personnel required by this chapter and the franchise agreement.
(6) Any required institutional network shall be activated and fully operational in all local government buildings, libraries and community service agencies specified in the franchise agreement within twelve months of the effective date of the franchise. The institutional network shall be activated and fully operational in all public schools in the school district located within the franchise territory within eighteen months of the effective date of the franchise unless a shorter time period is specified in the franchise agreement.
(7) Failure on the part of the franchisee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth in this chapter shall be grounds for immediate rescission of the authorizing ordinance, revocation of any rights the franchisee may have in the franchise and forfeiture of the franchisee's security fund, performance bonds, and/or letter of credit; provided, however, that the Village Council, upon formal application of the franchisee, in its discretion may extend the time for the commencement and completion of construction, activation and installation for additional periods if the franchisee, acting in good faith, experiences delays by reason of circumstances beyond its control.
(d) Transfer of Ownership or Control.
(1) A franchise shall not be assigned or transferred, either in whole or in part, or leased, or sublet in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person without the prior written consent of the Village. The proposed assignee must show its qualifications and its financial responsibility as determined by the Village Council and must agree to comply with all provisions of the franchise. A franchise shall not be mortgaged, either in whole or in part, without an agreement by the mortgagee to be subordinate to the franchisor's right to receive franchise fees from the franchisee, and without the prior written consent of the Village. The Village shall be deemed to have consented to a proposed transfer, assignment, or mortgage if its refusal to consent is not communicated in writing to the franchisee within 120 days following receipt of written notice of a proposed transfer, assignment, or mortgage, accompanied by all information required by law, including this chapter and the franchise agreement. Consent by the Village Council shall not be unreasonably withheld.
(2) A franchisee shall promptly notify the Village of any proposed change in, or transfer of, or disposition of or acquisition by any other party of, control of the franchisee. The word "control" as used in this subsection is not limited to major stockholders but includes actual working control in whatever manner exercised. Every change in, transfer of, or acquisition of control of the franchisee shall make the franchise subject to revocation unless and until the Village shall have consented thereto, which consent shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, disposition, or acquisition of control, the Village Council may inquire into the qualifications of the prospective controlling party, and the franchisee shall assist the Village Council in such inquiry.
(3) The consent or approval of the Village Council to any transfer of a franchise shall not constitute a waiver or release of the right of the Village in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of the franchise.
(4) In the absence of extraordinary circumstances, the Village Council shall not approve any transfer or assignment of a franchise prior to completion of construction of the proposed system or any required upgrade thereof.
(5) The Village Council reserves the right to review the purchase price of any transfer or assignment of the cable communication system.
(6) In no event shall a transfer of ownership be approved without the transferee becoming a signatory to the franchise agreement.
(e) Franchise Renewal.
(1) The franchise may be renewed by the Village Council upon application by the franchisee pursuant to the procedures established in this section upon the advice of the cablecasting board.
(2) At least twelve months prior to the expiration of the franchise, the franchisee shall inform the Village Council in writing if it intends to seek renewal of the franchise.
(3) After giving public notice, the Village Council shall proceed, upon the advice of the cablecasting board, to determine whether the franchisee has satisfactorily performed all obligations under the franchise. To determine satisfactory performance, the Village Council shall consider technical developments and performance of the system, programming, other services offered, costs of services, and any other particular requirements set out in this chapter and the franchise agreement. The Village Council shall also consider the records of the performance evaluation sessions required hereinafter as well as the franchisee's annual reports made to the Village as required by this chapter. The Village Council shall also be entitled to consider or compare the franchisee's performance with the performance of other systems of comparable configuration nationally in arriving at its decision. The Village Council shall also consider comments of subscribers to, and users of, the system.
(4) Within four months of receiving notice from the franchisee of its desire to renew the franchise, the Village Council shall hold a public hearing. Subsequently, the Village shall arrive at a decision on the eligibility of the franchisee for renewal. Notice of the public hearing shall be given in accordance with the provisions of Section 820.09(o). Upon the finding by the Village Council that the franchisee's performance is satisfactory, and that superior service for subscribers may not be obtained from other companies or operators, a renewal with any amendments shall be granted for a period of not more than fifteen years and not less than five years, as specifically set forth in the franchise agreement. All contracts granting any franchise, or renewing or amending any existing franchise, shall be made by ordinance, which ordinance shall be thereafter published in the manner prescribed by law.
(5) Upon a finding that the franchisee's performance is not satisfactory or that superior service for subscribers may be obtained from other companies or operators, the Village Council may deny renewal. A new franchise may be awarded at any time utilizing the procedures set forth in this chapter.
(6) If a franchise is denied renewal, the Village Council may require, at its option, the non-renewed franchisee to temporarily continue service until the execution of a new franchise agreement.
(7) The provisions of this subsection (e) shall be applicable only to the extent permitted by the renewal provisions of higher law.
(f) Franchise Termination. Any franchise granted by the Village, pursuant to this chapter, shall be revocable at the will of the Village or for any material violation by the franchisee of the provisions of this chapter or of the terms of the franchise agreement. The procedure set forth in this chapter regarding franchise termination shall be followed in revoking a franchise.
(g) Termination Procedure.
(1) Upon receipt by the Village Council of a petition seeking termination of the franchise and signed by five percent of cable communications system subscriber households in the Village, or upon receipt by the Village Council of a written report of the Cablecasting Board recommending investigation into the possibility of franchise termination, the Village Council shall, by resolution, direct the Cablecasting Board to:
A. Investigate all areas of concern in the operation of the franchise;
B. Hold public hearings to receive the viewpoint of the franchisee and the general public;
C. Report to the Village Council within a specified period of time regarding the condition of the franchise; and
D. Set forth the recommendations of the Cablecasting Board on termination of the franchise.
A copy of the Village Council resolution, together with a copy of the petition and/or written reports of the Cablecasting Board, shall be sent to the franchisee.
(2) At the direction of the Village Council, the Cablecasting Board shall investigate and collect all relevant data regarding the operation of the franchise. The Cablecasting Board shall hold at least one public hearing to hear the comments and concerns of the general public and to hear the position of the franchisee. Written notice of the first such hearing shall be mailed to the franchisee at least thirty days prior to the scheduled hearing date. Written notice of any subsequent public hearings shall be mailed to the franchisee at least fifteen days in advance. Public notice of each hearing shall be given in accordance with the provisions of Section 820.09(o).
(3) Upon completion of its investigation, the Cablecasting Board shall prepare a written report outlining the scope of its investigation and the information received, and setting forth its recommendations regarding termination of the franchise. A copy of the report shall be mailed to the franchisee. The report shall be forwarded to the Village Council which shall schedule a public hearing to hear and determine the issue of franchise termination. Written notice of the public hearing shall be mailed to the franchisee at least thirty days prior to the scheduled hearing date. Public notice of the hearing shall be given in accordance with the provisions of Section 820.09(o).
(4) The Village Council shall hear any interested person, shall consider the issue, and shall determine in its discretion whether to continue the franchise, to continue the franchise for a specified period subject to conditions, or to terminate the franchise. If the Village Council decides to terminate the franchise, it shall issue a written report within fifteen days setting forth its position and the date upon which the franchise shall be terminated. If the Village Council decides to continue the franchise with conditions, it shall issue a written report within fifteen days setting forth the specific conditions, establishing an appropriate timetable for accomplishment and review of the objectives and establishing any necessary supervisory board. A copy of the Village Council report shall be mailed to the franchisee.
(h) Removal of System. At the expiration of the term, or any extension thereof, for which this franchise is granted, or upon its termination as provided in this chapter, a franchisee shall forthwith, at the option of the Village and upon notice by the Village Council, remove at its own expense such portions of the cable communications system owned by the franchisee as specified by the Village from all streets and public property within the Village. If a franchisee fails to do so, the Village may have the work performed at a franchisee's expense after thirty days' written notice to a franchisee. A letter of credit or bond, at the Village's discretion, in the amount of fifty thousand dollars ($50,000) or in any greater amount specified in the franchise agreement shall be furnished by a franchisee for the specific performance of this section, not less than thirty days after the above notice. Such letter of credit or bond, in the Village's discretion, shall be furnished in addition to and concurrently with the letter of credit or bond required in Section 820.09
(c).
(i) Resolution of Disputes.
(1) Any disputes arising under this chapter or the franchise agreement shall be settled either by commencement of a suit in County Circuit Court or by compulsory arbitration, at the option of the Village. If a franchisee feels aggrieved, it shall advise the Village of any dispute it has arising out of this chapter or a franchise agreement and shall demand that the Village elect whether the dispute is to be resolved by submitting it to compulsory arbitration or by commencement of a suit in the County Circuit Court. The Village shall make its election in writing within 30 days from the receipt of such notice.
(2) If the Village elects to have the dispute resolved by compulsory arbitration, it shall be settled pursuant to M.C.L. 600.5001 et seq., M.S.A. 27A.5001 et seq., with each of the parties appointing one arbitrator and the two thus appointed appointing a third.
(3) If the Village fails to make such an election, any dispute between the parties may be resolved by filing of a suit in Oakland County Circuit Court. (Ord. 2000-59. Passed 7-10-00.)