4.01 Franchise necessary
4.02 Definitions
4.03 Reserved

4.04 Selection of Franchisee

4.04.1 Request for proposal
4.04.2 Application process
4.04.3 Application fees
4.04.4 Criteria for selection of franchisee
4.04.5 Reserved
4.04.6 Disclosure requirements
4.04.7 Award of franchise
4.04.8 Franchise agreement
4.04.9 et seq. Reserved

4.05 Franchise Territory

4.05.1 Service area
4.05.2 Initial geographic coverage
4.05.3 et seq. Reserved

4.06 Length, Renewal and Transfer of Franchise

4.06.1 Nonexclusivity of franchise
4.06.2 Length of franchise
4.06.3 Conditions for initial franchise validation
4.06.4 Transfer of ownership or control
4.06.5 Franchise renewal
4.06.6 Franchise termination
4.06.7 Termination procedure
4.06.8 Removal of system
4.06.9 - 4.06.11 Reserved
4.06.12 Resolution of disputes
4.06.13 et seq. Reserved

4.07 System Design and Specifications

4.07.1 Channel capacity
4.07.2 Lock-out device

4.07.3 Services to educational institutions
4.07.4 Timetable for establishment of educational services
4.07.5 Future educational facilities
4.07.6 Reserved
4.07.7 Government access channels
4.07.8 Cost and maintenance of equipment
4.07.9 Public access channels
4.07.10 Leased access channels
4.07.11 Additional channel capacity
4.07.12 FM radio service
4.07.13 Automated channel
4.07.14 Program index
4.07.15 Additional services
4.07.16 Interconnection
4.07.17 Standby power
4.07.18 Underground and aboveground installations
4.07.19 Construction standards and technical requirements
4.07.20 System design changes
4.07.21 Maintenance of facilities, equipment
4.07.22 Subscriber privacy
4.07.23 Continuity of service
4.07.24 All channels emergency alert
4.07.25 Home security
4.07.26 Reserved

4.08 Franchise Fee and Rates

4.08.1 Establishment of franchise fee
4.08.2 Payment of franchise fee
4.08.3 Renegotiation of franchise fees
4.08.4 Rates and charges for service
4.08.5 Revision of rates for services
4.08.6 Establishment of rates and charges subject to law
4.08.7 Refunds to subscribers and programmers
4.08.8 et seq. Reserved

4.09 Administration and Regulation

4.09.1 Performance review
4.09.2 Security fund
4.09.3 Performance bond/Letter of credit
4.09.4 Insurance

4.09.5 Indemnification
4.09.6 Foreclosure
4.09.7 Receivership
4.09.8 Reports
4.09.9 Other petitions and applications
4.09.10 Other business activities
4.09.11 Nondiscrimination requirements
4.09.12 Compliance with laws
4.09.13 Theft of services and tampering
4.09.14 Approval by Village Engineer
4.09.15 Public notice
4.09.16 Charges to security fund
4.09.17 Penalties and charges to tenants for service prohibited
4.09.18 Solicitation of subscribers
4.09.19 et seq. Reserved

4.10 Cablecasting Board

4.10.1 Creation and membership of board
4.10.2 Meetings
4.10.3 Duties and powers
4.10.4 Appeals
4.10.5 Authority of municipalities
4.10.6 et seq. Reserved

4.11 Consumer Protection

4.11.1 Customer service
4.11.2 Cable service
4.11.3 Franchisee's billings
4.11.4 Disconnect and downgrade charges
4.11.5 Late payment charges
4.11.6 Notice of programming or channel change
4.11.7 Notice of price increase or reduction of service
4.11.8 Franchisee's communications
4.11.9 Disclosure of information on franchisee's costs
4.11.10 Subscriber rebates
4.11.11 Liquidated damages
4.11.12 Remedies available
4.11.13 Appeal process
4.11.14 et seq. Reserved

4.01. FRANCHISE NECESSARY

No person shall occupy or use the streets, sidewalks or other public right-of-way of the Village for the purpose of operating a cable communications system, nor operate such a system, without a cable communications franchise.

4.02. DEFINITIONS

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Access channel means any channel dedicated for use by a governmental institution, educational institution or the public.

Access channel, educational, means any channel or portion of a channel in which educational institutions are the only designated programmers.

Access channel, government, means any channel or portion of a channel to which governmental agencies are the only designated programmers.

Access channel, leased, means any channel or portion of a channel made available for a fee by an operator for programming by persons other than the franchisee.

Access channel, public, means any channel or portion of a channel utilized for programming on a nonprofit basis with no commercial purpose that is available to the general public.

Activated or ability to activate means a function, service, channel or piece of equipment that is in working order and may be operated or received by a franchisee, subscriber, programmer, operator or user.

Basic service means any service tier which includes the retransmission of local television broadcast signals.

Broadcast means the over-the-air transmission of an electromagnetic audio or video signal.

Cable means either coaxial cable or fiber optic cable.

Cable, A trunk means a downstream distribution system which supplies cable communications signals to the feeder line.

Cable communications service or cable service means the one-way transmission to subscribers of video programming or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

Cable communications system or cable system means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; a facility that serves subscribers without using any public right-of-way; a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; an open video system that complies with section 653 of the Communications Act of 1934, as amended; or any facilities of any electric utility used solely for operating its electric utility systems.

Cablecast means transmission of programming and signals over a cable communications system.

Cablecasting board means the agency of the City of Birmingham, Village of Beverly Hills, Village of Franklin and Village of Bingham Farms whose duties may include the monitoring and reporting of and on the cable communications system.

Capability means a function, service, channel or piece of equipment that has the potential to be operated or received at some time in the future by a subscriber, programmer, franchisee, user or operator.

Cable Channel or Channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation).

Coaxial cable means copper or aluminum wire used to transmit cable communications signals through the cable system.

Community service agencies means the Birmingham-Bloomfield Art Association, Common Ground, the Birmingham Community House and the Birmingham Center for Continuing Education.

Complete wiring means the time when cable and related equipment, facilities, and appurtenances are installed throughout the Village of Beverly Hills so that service may be provided to any person that may choose to become a subscriber.

Completion of construction means the time when all services offered in the application and franchise agreement shall be accomplished, including but not limited to stringing of cable throughout the community so that any subscriber may immediately receive cable communications signal upon installation, construction of all access facilities and required networks and are fully operational.

Converter or Set Top Convertor means an electronic device which converts signals to a frequency for use by the television receiver of the subscriber, and by an appropriate channel selector which also permits a subscriber to view all signals including the cable service delivered at designated cable channel locations.

Downstream means cable communications signals that travel on a cable from the headend equipment or other location to the individual subscribers.

Drop means a line or cable linking the feeder line to an individual subscriber.

Effective date of the franchise means the date on which the parties have signed the franchise agreement or as otherwise specified in the franchise agreement.

FCC means the Federal Communications Commission.

Feeder line means the line or cable linking a main cable trunk line to a drop serving an individual subscriber.

Fiber Optic Cable means high capacity cable made of glass or plastic threads through which information is transmitted as pulsating light.

Franchise means the authorization granted by the Village of Beverly Hills to construct, operate, maintain, rebuild, and/or retrofit a cable communications system in the Village of Beverly Hills.

Gross revenues means all revenue derived directly or indirectly by the franchisee, its affiliates, subsidiaries, parent companies and/or any person in which the franchisee has a financial interest, from or in connection with the operation of a cable communications franchise authorized by the Village. Gross revenues shall include but not be limited to basic subscriber monthly fees, pay cable fees, installation and reconnection fees, converter fees, fees relating to internet access and leased access fees. Gross revenues shall not include advertising revenues, home shopping revenue and any taxes on services furnished by the franchisee and imposed directly upon any subscriber or user, by the state, village or other governmental unit and collected by the franchisee on behalf of such governmental unit.

Headend means the electronic control center of the cable communications system where, among other things, incoming cable communications signals are amplified, filtered and converted before being delivered to the subscriber home.

Initial groundbreaking means the first step in construction: either stringing of cable or installation of a pole.

Institutional subscriber means any public agency or institution, educational institution, community service agency or school receiving institutional services on the institutional subscriber network.

Institutional subscriber network means a cable communications network designed principally for the provision of nonentertainment interactive services to schools or public agencies for use in connection with the ongoing operations of such institutions.

Interactive services means services provided to subscribers by which the subscriber either receives information consisting of television or other signals and transmits signals generated by the subscriber or equipment under its control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or transmits signals to any other location for any purpose.

Interconnection means the linking of separate cable communications systems by microwave, cable or other means.

Local origination channel means any channel or portion of a channel on which the franchisee is either the only designated programmer or has received programming from a third party, and which is utilized to provide television programs to subscribers.

Microwave means a high-frequency transmission facility used to relay messages, including cable communications signals from point to point, by common carrier.

Monitoring means observing a communications signal or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means. Monitoring shall not include a systematic, nonindividually addressed sweep of the system for the purpose of verifying system integrity, controlling return pass transmissions, or billing for cable services.

Operator means the franchisee.

Parent corporation or parent company means any corporation of which the franchisee is a subsidiary.

Pay channel or premium channel means a channel in which television channels are delivered to subscribers for a special fee or charge to subscribers over and above the regular charges for basic subscriber services, on a per program, per channel, or other subscription basis.

Pay television means the delivery over the cable communications system of video and audio signals in intelligible form to subscribers for a fee or charge over and above the charge for basic or full services, on a per program, per channel, or other subscription basis.

Person means individual, firm, organization, partnership, association, corporation, legal representative, or other entity.

Pole agreements means the authorization from utility companies to the franchisee for use of or space in their easements, equipment, poles or other facilities for installation of equipment related to the cable communications system.

Programmer means any person who produces or otherwise lawfully provides program material or information for transmission by means of the cable communications system.

Proposal means an application filed with the Village either in response to the Village of Beverly Hills' request for proposal, or any additions or amendments thereto, or submitted without such request.

Records means any writing or other memorialization containing information relating to the system, regardless of form or characteristics.

Related persons means any agent or employee of an applicant or its parent corporation; any person to whom an applicant or its parent corporation has paid or has promised to pay any money or compensation of any kind whatsoever for that person's services in promoting the applicant's proposal for the cable communications franchise before the Village, its employees, agents, servants and/or elected or appointed officials or any community service agencies or newspaper reporters in the Detroit Dominant Market Area; officers and directors of any applicant or its parent corporation; persons owning one percent or more of any class of outstanding stock or securities convertible into stock of an applicant or its parent corporation; partners of an applicant; and the spouse, parent, child or sibling of any such person described in the foregoing definitions.

Residential services means services delivered on the residential subscriber network.

School district means the school district of the Village.

Service means all services delivered on the institutional or residential subscriber network.

Standard service drop means the installation of the feeder cable to individual subscribers.

Strand mapping means the designation on maps of where cables will be placed.

Street means the surface of and the space above and below a public street, road, highway, freeway, path, public place, sidewalk, alley, boulevard, parkway, drive or other easement held by the Village and shall include other easements or rights-of-way which shall be held by the Village and which shall within their proper use allow the Village and a franchisee to the use thereof for the purposes of installing or transmitting cable communications system transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily pertinent to a cable communications system.

Subscriber means a recipient of services which are delivered over the cable communications system.

Tamper or tapping means observing a communication signal exchange when the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, but shall not include monitoring.

Television broadcast signals means signals receivable in the Detroit Dominant Market Area, including but not limited to, those on channels 2, 4, 7, 9, 20, 38, 50, 56, 62.

Upstream means cable communications signals traveling from subscribers to the headend.

User means a person utilizing a cable communications system channel for purposes of production and transmission of materials to subscribers.

Village means the Village of Beverly Hills

4.03. RESERVED.

4.04 SELECTION OF FRANCHISEE

In selecting a franchisee pursuant to this chapter, the Village Council may prepare a request for proposal to seek bids for a cable communication system to be established under franchise by the Village Council. This request for proposal may contain detailed information and instructions relating to the preparation and filing of proposals, construction and technical standards regarding the installation, operation and maintenance of a cable communications system under the Village's franchise, and the criteria to be used in evaluating applicant proposals.

4.04.2. APPLICATION PROCESS

(a) The Village shall only consider those applications for a franchise that have been submitted on an application form approved by the Village Council. Applications shall only be considered if submitted to the Village's office prior to any deadline authorized by the Village Council and if accompanied by the application fees set forth in section 4.04.3.

(b) Any requests for proposal shall be sent to all operators that have indicated, in writing, an interest in obtaining a franchise.

(c) Any notice soliciting the submission of applications shall be sent to all persons who have previously indicated, in writing, an interest in obtaining a franchise and shall be advertised in a local newspaper of general circulation and at least two national trade magazines. Applications shall be opened no earlier than 90 days after the initial publication date of the newspaper notice.

(d) Distortion, falsehoods or misinformation by an applicant may be grounds for elimination of the proposal if the Village should choose.

(e) Any request for proposal shall clearly state that the Village Council reserves the right to reject any and all bids. The Village shall have the right to negotiate with any person that has submitted a qualified application.

4.04.3. APPLICATION FEES

(a) Applications shall only be considered if accompanied by a cashier's or certified check in the amount of $10,000.00 of which fifty percent of the application fee shall not be refundable in any case.

(b) If any applicant shall withdraw its application or cease to be considered after initial screening, fifty percent of the application fee shall be returned to the applicant without interest. The entire application fee of any applicant which remains under consideration after initial screening shall be nonrefundable.

Revenues from application fees shall be used to offset the cost of consulting services, if any, and administration of the franchise selection process. If the costs of consulting services, if any, and other administrative expenses shall exceed the amount of the application fee, then an applicant to whom a cable communications franchise is awarded shall pay the excess costs and expenses up to a maximum of $30,000.00.

4.04.4. CRITERIA FOR SELECTION OF FRANCHISEE

Applicants for a cable franchise will be required to furnish information to be evaluated according to the following criteria:

(1) Service priorities. System capability in terms of no cost or low cost telecasting production facilities and service available to municipal and educational institutions, community groups and individuals; system provisions for two-way communications; and the maximum total channels provided by the system.

(2) Installation plan. An installation plan that addresses the flexibility needed to adjust to new developments, maintenance practices and services that would be available to the subscriber and the community upon initial activation and throughout the duration of the franchise.

(3) Rate schedule. Applicant's installation and subscriber rate schedule.

(4) Financial soundness. Evidence of the applicant regarding the following:

a. Its financial ability to assure completion of construction as called for in the application and franchise agreement within 18 months of the effective date of the franchise.
b. Its ability to obtain all necessary and required permits and authorizations from the federal, state and local governments.
c. Its ability to sustain and enhance a fiscally sound system throughout the duration of the franchise.
d. Its ability to obtain the performance bond or letter of credit specified in section 4.07.3 should it be awarded a franchise. Evidence of current financial capability shall include, but not be limited to, the most recent three years' audited or reviewed financial statements of the applicant and of any parent entities, and a copy of the most recent published annual report and 10-K report if the applicant is, or is a subsidiary of, a publicly held company.

(5) Demonstrated experience in operating a cable communications system under local government franchise; the extent to which an applicant has experience in operating a cable communications system under village or county franchise.

(6) Educational programming. The extent to which the system presents and supports a program whereby the school district and other educational institutions such as Oakland Community College, Oakland University and Birmingham Center for Continuing Education may benefit, utilize and develop educational programs for students and subscribers; the extent to which the system provides an activated two-way system and a plan to interconnect public schools within the school district through a cable communications network

(7) Technical standards. The extent to which the system will meet or exceed all of the technical standards and specifications set forth in the most current FCC Technical Standards Order.

(8) Pay cable services. The extent to which the system offers at least alternate levels of pay cable services, for the purpose of providing a pay cable channel that would offer full service pay cable programming and a distinct pay cable channel that would offer a minipay package designed and marketed for general audience and family viewing.

(9) Interconnection plan. The extent to which the system includes a firm timetable for active interconnection with other political subdivisions in the Detroit Dominant Market Area.

(10) Innovative technology. The extent to which the system offers system technology sufficiently flexible and progressive to adapt to new services, including: home security, energy management, meter reading, home computer for entertainment, educational, business or personal purposes, two-way computer data transmission, internet access, and traffic signalization.

4.04.5. RESERVED.

4.04.6. DISCLOSURE REQUIREMENTS

(a) Any applicant for a franchise shall file with its application a sworn statement setting forth in such detail as shall be satisfactory to the Village the identification and description of all relationships which such applicants (or any related parties) may then have, or may have had during the year prior to the date of filing of such application, directly or indirectly, with the Village, its employees, agents, servants and/or elected or appointed officials, including but not limited to the following:

(1) Written or oral arrangements or undertakings of any nature whatsoever, including as vendor, vendee, or the provider of services, credit, or counsel or otherwise;

(2) All lending relationships, whether as borrower or lender;

(3) All investing relationships, as stockholder, partner, joint venturer, coadventurer or otherwise, or as the entity, vehicle or recipient of such investment;

(4) All relationships entailing the granting or holding of security in any property, tangible or intangible, real or personal;

(5) All relationships in which any valuable consideration shall have been required, offered, received, paid or extended, whether in cash, in kind or in services, and whether contemporaneous or deferred in whole or in part; and

(6) All relationships involving the assertion of any claim of any nature whatsoever, including administrative proceedings or litigation.

(b) Each applicant shall affirmatively undertake to advise the Village during the pendency of the application, and prior to its rejection or acceptance, of any additional such relationships which shall come into being, and of the termination or other material change in any such relationships as shall have been required to be disclosed prior thereto. Each franchisee shall also affirmatively undertake to so advise the Village on a continuing basis, and shall recertify the existence or nonexistence of all such relationships (other than as a franchisee pursuant to this chapter) on each annual anniversary of the franchise agreement under which such franchisee shall derive rights pursuant to this chapter.

4.04.7. AWARD OF FRANCHISE

The Village Council shall award a franchise to an applicant only after a public hearing on the application and proposal, notice of which hearing shall be published in a local newspaper of general circulation at least 20 days before the date of the hearing. Except as otherwise provided in Sec. 4.06.02, all contracts granting or giving any original franchise, or extending or amending any existing franchise, shall be made by ordinance, which ordinance shall be thereafter published in the manner prescribed by law.

4.04.8. FRANCHISE AGREEMENT

(a) An applicant awarded a franchise by ordinance shall execute a franchise agreement, agreeing to the terms and provisions of this chapter. Failure of a selected applicant to execute such an agreement, within 30 days from the Village Council's demand therefor, or to meet any deadlines outlined in the franchise agreement and this chapter for completion of strand mapping, pole agreements, initial ground breaking and all wiring phases shall be grounds for immediate rescission of the authorizing ordinance, revocation of any rights the applicant may have in the franchise and forfeiture of the applicant's security fund. The franchisee shall, within 30 days after the execution of the franchise agreement, apply for all necessary permits and authorizations for the construction of the cable communications system.

(b) In addition to those matters required elsewhere in this chapter to be included in the franchise agreement, the franchise agreement shall contain the following express representations of the franchisee that:

(1) It accepts and agrees to all the enforceable provisions of this chapter and any enforceable supplementary specifications, as to construction, technical standards, operation, maintenance and rate structures, which the Village Council may include in the franchise agreement.

(2) It recognizes the right of the Village Council to make lawful amendments to the franchise ordinance during the term of the franchise upon 30 days' notice to the franchisee. If an emergency amendment becomes necessary, the Village Council shall not be required to direct the amendment to the Cablecasting Board for review, but the franchisee shall be given at least two hours' notice, orally or in writing, of the Village Council meeting at which the emergency amendment is to be considered. It further recognizes and agrees that the Village Council shall not be bound to renew the franchise at the end of any franchise term, except as otherwise provided by law.

(3) It recognizes and agrees that it may be considered as a franchisee for the purposes of this chapter.

(4) It recognizes and agrees that no franchise shall be exclusive.

(c) The franchise agreement may set forth the specific standards which the franchisee must maintain in respect to signal quality requirements and technical standards of construction, operation and maintenance of the system.

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

4.04.9 et seq. RESERVED.

4.05 FRANCHISE TERRITORY

4.05.1. SERVICE AREA

The franchise territory shall include the entire territorial limits of the Village, and shall include any future area that shall become part of the Village, during the term of the franchise, by annexation, consolidation, merger, realignment, subdivision development or other means. Any portion of the Village which, during the term of the franchise, is annexed from the Village or which by consolidation, merger, realignment, subdivision development, or other means, shall cease to be within the territorial limits of the Village shall cease to be included in the franchise territory.

4.05.2. INITIAL GEOGRAPHIC COVERAGE

Cable communications service must be available for installation to all residents within the Village within 15 months of the effective date of the franchise. Service in newly acquired territory, as defined in section 4.05.1, must be available to residents within 12 months of annexation of the territory to the Village.

4.05.3 et seq. RESERVED.

4.06 LENGTH, RENEWAL AND TRANSFER OF FRANCHISE

4.06.1. 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.

4.06.2. LENGTH OF FRANCHISE

The term of a franchise and all rights, privileges, obligations and restrictions pertaining thereto shall not be more than 15 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 4.09.15. 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.

4.06.3. CONDITIONS FOR INITIAL FRANCHISE VALIDATION

(a) Within 30 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 30 days after the effective date of the franchise.

(b) The franchisee shall complete strand mapping and shall commence initial ground breaking within 60 days after the effective date of the franchise.

(c) The franchisee shall complete pole agreements and shall begin preparing the poles within 90 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.

(d) 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 12 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 12 months upon a proper showing of need, but in no event shall the elapsed time for completing such installation exceed 15 months.

(e) Within 12 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.

(f) 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 12 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 18 months of the effective date of the franchise unless a shorter time period is specified in the franchise agreement.

(g) 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.

4.06.4. TRANSFER OF OWNERSHIP OR CONTROL

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) The Village Council reserves the right to review the purchase price of any transfer or assignment of the cable communication system.

(f) In no event shall a transfer of ownership be approved without the transferee becoming a signatory to the franchise agreement.

4.06.5. FRANCHISE RENEWAL

(a) 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.

(b) At least 12 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.

(c) 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.

(d) 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 4.09.15. 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 (15) years and not less than five (5) 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.

(e) 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.

(f) 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.

(g) The provisions of this Section 4.06 shall be applicable only to the extent permitted by the renewal provisions of higher law.

4.06.6. 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.

4.06.7. TERMINATION PROCEDURE

(a) 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:

(1) Investigate all areas of concern in the operation of the franchise;

(2) Hold public hearings to receive the viewpoint of the franchisee and the general public;

(3) Report to the Village Council within a specified period of time regarding the condition of the franchise; and

(4) 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.

(b) 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 30 days prior to the scheduled hearing date. Written notice of any subsequent public hearings shall be mailed to the franchisee at least 15 days in advance. Public notice of each hearing shall be given in accordance with the provisions of section 4.09.15.

(c) 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 30 days prior to the scheduled hearing date. Public notice of the hearing shall be given in accordance with the provisions of section 4.09.15.

(d) 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 15 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 15 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.

4.06.8. 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 article, 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 30 days' written notice to a franchisee. A letter of credit or bond, at the Village's discretion, in the amount of $50,000.00 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 (30) 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 4.09.3.

4.06.9. RESERVED.

4.06.10. RESERVED.

4.06.11. RESERVED.

4.06.12. RESOLUTION OF DISPUTES

(a) 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.

(b) If the Village elects to have the dispute resolved by compulsory arbitration, it shall be settled pursuant to MCL 600.5001 et seq., MSA 27A.5001 et seq., with each of the parties appointing one arbitrator and the two thus appointed appointing a third.

(c) 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.

4.06.13 et seq. RESERVED

4.07 SYSTEM DESIGN AND SPECIFICATIONS

4.07.1. CHANNEL CAPACITY

(a) A franchisee shall construct, and thereafter operate and maintain, a cable communications system that shall initially be capable of delivering the minimum number of channels specified in the franchise agreement. Applicants may provide greater channel capacity. A set top converter shall be provided by a franchisee when required to enable subscribers to receive programming services. Any fee charged by a franchisee for a set top converter shall be in accordance with applicable law. A franchisee may also require a refundable deposit not to exceed the franchisee's actual cost of the converter , but only if the franchisee has required such deposit in adjacent cable systems. A franchisee shall not be required to pay interest on the refundable deposit. The refundable deposit may be required by a franchisee for each set top converter provided and the responsibility for normal maintenance of the converter shall be that of the franchisee and no charges for the repair of the converter shall be made except in cases of subscriber misuse. There shall be no charge for removal of the converter.

(b) When required by federal law, a franchisee shall provide, as part of its cable communications system, all television broadcast signals, as presently available or as may become available off the air in the Village, and the maximum number of additional television signals consistent with the rules and regulations of the FCC and all other applicable laws, rules, or regulations. A franchisee's system shall be designed, engineered and maintained so as not to interfere with the television and radio reception of residents of the Village who are not subscribers to the system.

(c) A franchisee shall offer all channels and programming specified in its application and the franchise agreement. Changes in service may be made only if authorized by the Village Council and incorporated into an amended franchise agreement except as otherwise provided by law.

4.07.02. LOCK-OUT DEVICE

A franchisee shall provide, at no charge to subscribers, a lock-out mechanism that prevents viewing of any pay channel. This mechanism shall be provided upon request of the subscriber. A franchisee shall make all subscribers, prior to installation, aware of the availability of this device.

4.07.3. SERVICES TO EDUCATIONAL INSTITUTIONS

A franchisee shall provide, at no charge throughout the term of the franchise, such services, equipment and facilities devoted to educational use as specified in the franchise agreement.

4.07.4. TIMETABLE FOR ESTABLISHMENT OF EDUCATIONAL SERVICES

The educational services, equipment and facilities shall be furnished by a franchisee within the time periods specified in the franchise agreement.

4.07.5. FUTURE EDUCATIONAL FACILITIES

In addition to the currently existing educational facilities and buildings benefiting from the provisions of section 4.07.3, the same services shall be provided to all future such facilities and buildings. Such services may be suspended to buildings no longer used for public purposes.

4.07.6. RESERVED

4.07.7. GOVERNMENT ACCESS CHANNELS

A franchisee shall provide, at no charge throughout the term of the franchise, such services, equipment, and facilities devoted to village governmental use as specified in the franchise agreement. Such services, equipment and facilities shall be furnished within the time periods specified in the franchise agreement.

4.07.8. COST AND MAINTENANCE OF EQUIPMENT

(a) When required by a franchise agreement, all maintenance, repair and periodic update/replacement of the original equipment shall be provided by a franchisee at no charge to the educational institutions or any other governmental agency. The level of service provided shall be sufficient to assure that each unit of equipment operates satisfactorily at least 95 percent of the elapsed time desired for use during any 90-day period. Responsibility for maintaining appropriate operating and failure statistics shall be that of the institution or agency. A franchisee shall be notified promptly by the institution or agency whenever a failure occurs and maintenance or repair service is required.

(b) When required by a franchise agreement, any major additional equipment which may be acquired, and which is clearly not a replacement for originally installed equipment, may be provided through a franchisee at the lowest possible cost for comparable equipment with acceptable quality. Lowest cost shall be evidenced by competitive bids from at least three suppliers of such equipment, each of whom have records of previous sales with acceptable performance. Such equipment shall be warranted by a franchisee to the educational institution for a period of not less than one year after installation of each unit of equipment. During this warranty period, all maintenance, repair and replacement, if necessary, shall be provided by a franchisee at no charge to the institution in order to provide a minimum 95 percent level of service as described above for the original equipment requirements.

4.07.9. PUBLIC ACCESS CHANNELS

(a) Throughout the duration of a franchise, a franchisee shall make available, at no cost, such public access channels exclusively dedicated for use by the public as specified in the franchise agreement. Priority in use of the channel and public access playback facilities shall be given to residents, taxpayers, and persons affiliated with tax-exempt organizations as set forth in section 501(c)(3) of the United States Internal Revenue Code, within the Village, and to residents, taxpayers and persons affiliated with the aforementioned organizations in municipalities that enter into an agreement with the Village for cooperative use of the public access channel and its related studio and facilities. Use of the public access studio and production equipment shall be restricted to residents, taxpayers, and persons affiliated with such organizations.

(b) A franchisee shall provide such public access studios, facilities, and equipment as specified in the franchise agreement.

(c) In order that there is maximum opportunity for freedom of expression by members of the public, public access programming shall be free from any control by a franchisee as to program content except as required by the FCC or to protect a franchisee from liability under appropriate law to the extent such exceptions are permitted by law.

(d) Reasonable rules and procedures governing use of and charges for use of any public access channel shall be established by the Cablecasting Board upon the approval of the Village Council.

4.07.10. LEASED ACCESS CHANNELS

A franchisee shall make any unused channels available for lease to any organization, group, or individual on a first come, first served basis. At least one channel must be available for leasing on a part-time basis. A franchisee shall not exercise program controls over leased channels, but it shall adopt rules governing the leasing of channel space which:

(1) Provide for access on a first come, nondiscriminatory basis;

(2) Prohibit the presentation of lottery information and obscene or indecent matter;

(3) Require sponsorship identification;

(4) Specify an appropriate rate schedule; and

(5) Permit public inspection of the record of the names and addresses of all persons or groups requesting time, which record shall be retained for a period of two years.

4.07.11. ADDITIONAL CHANNEL CAPACITY

If any public, governmental or educational access channel is cablecasting locally produced, non-duplicative programming Monday through Friday for eight consecutive hours for ten consecutive weeks, a franchisee shall report that fact to the Cablecasting Board. For purposes of this threshold, character generator programming shall not qualify. The Cablecasting Board shall investigate the need for the addition of a new channel or channels and file its recommendations with the Village Council. After review of the Cablecasting Board report, the Village Council may, in its discretion, require a franchisee to make a new channel available within six months for any or all of the uses and under the conditions specified in section 4.07.3, 4.07.7, 4.07.9 or 4.07.10. Nothing in this section shall interfere with a franchisee's right to add additional channels of the type described in such sections, provided that such channels are operated in a manner consistent with those sections. Should a franchisee choose to add such additional channels, it shall notify the Village Council, in writing, of its intention, its plan and its timetable for doing so.

4.07.12. FM RADIO SERVICE

A franchisee shall make available to all subscribers any FM stereo radio service indicated in its proposal and the stereo audio portion of all channels as available. A franchisee shall advise all subscribers of the availability of this service, but shall not require that it be purchased.

4.07.13. AUTOMATED CHANNEL

A franchisee shall provide a channel cablecasting automated time, weather, stock, sports and news information. Such information may be displayed by means of a character generator during normal cablecast hours.

4.07.14. PROGRAM INDEX

During all cablecast hours, a franchisee shall provide a channel continuously informing subscribers of the programs being cablecast on all other operational channels. A franchisee shall actively seek and cablecast such indexing information from access channel managers.

4.07.15. ADDITIONAL SERVICES

If such services are generally available in the Detroit Dominant Market Area, a franchisee shall make available such additional video, audio, radio, digital, internet and other services as are requested by subscribers and/or programmers who are willing to pay for such services, provided that such services are technologically and economically appropriate. The Village specifically reserves the right, if authorized by law, to require a franchisee to furnish non-discriminatory access to its cable system for providers of internet access service, subject to applicable law. This provision does not waive the Village or franchisee's rights, obligations, claims, defenses or remedies regarding the authority of such requirement. The franchisee shall be provided with reasonable notice and an opportunity to be heard, including the right to present evidence on the findings, if any, to be made by the Village with respect to such requirement.

4.07.16. INTERCONNECTION

(a) A franchisee shall provide one-way and two-way interconnection facilities to interconnect the system with other cable systems, the school district, and other political subdivisions as may be required by the Village Council. Interconnection facilities may be effected by direct cable connection, microwave length, satellite or any other appropriate method. Interconnection facilities may be required for one, several, or all channels of the system. Upon receiving a directive to interconnect, a franchisee shall reasonably cooperate in the interconnection if other systems express a willingness to share the cost of such interconnection.

(b) Before the Village Council issues a directive requiring interconnection, it shall notify a franchisee in writing of its consideration of the issue and schedule a public hearing, not less than 15 days from the notification date, at which a franchisee shall be provided an opportunity to state its position on the issue. Notice of the hearing shall be given in accordance with the provisions of section 4.09.15.

(c) Upon receiving a directive from the Village Council to interconnect, a franchisee shall immediately initiate negotiations with the other affected system or systems in order that the cost may be shared by the franchisees of the affected systems for both construction and operation of the interconnection link. A franchisee shall report to the Village Council monthly in writing regarding the status of all negotiations and construction progress. The monthly reports shall continue until the interconnection line is operational.

(d) A franchisee shall cooperate with any interconnection corporation, regional interconnection authority, council of governments, county, federal or state regulatory agency which may be established for the purpose of regulating, facilitating, encouraging, financing or otherwise providing for the interconnection of cable communication systems beyond the boundaries of the individual political jurisdictions.

(e) Should a dispute arise over any matter regarding interconnection, it shall be resolved in accordance with the provisions of this chapter on methods of resolving disputes.

(f) The Village Council may grant reasonable extensions of time to interconnect or rescind its request to interconnect upon petition by a franchisee to the Village Council. The Village Council shall grant such request if it finds that a franchisee has negotiated in good faith and has failed to obtain an approval from the system of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

(g) In order to assure future interconnection capability, a franchisee shall meet the following initial technical requirements: use of standard frequency allocations for cable communications signals, use of signal processors at the headend for each cable communications signal, use of adequate amplifiers spaced appropriately to enable two-way activation of the total system, and use of local origination equipment compatible with video cassettes, videotapes, video disks, video film chains and other various video formats.

4.07.17. STANDBY POWER

A franchisee shall install and maintain equipment capable of providing standby power for headend, transportation and trunk amplifiers for a minimum of four hours. The standby power equipment for the headend shall be constructed so as to automatically notify the cable office when it is in operation and to automatically revert to the standby mode when the AC power returns. All utility safety regulations must be followed to prevent a standby generator from powering the dead utility line.

4.07.18. UNDERGROUND AND ABOVEGROUND INSTALLATIONS

(a) A franchisee may lease, rent or in any other manner by mutual agreement obtain the use of towers, poles, lines, cables and other equipment and facilities from utility companies operating within the Village, and use towers, poles, lines, cables and other equipment and facilities for the system, subject to all existing and future laws, ordinances and regulations of the Village, the state and the United States of America. When and where practicable, the poles used by a franchisee's distribution system shall be those erected and maintained by utility companies operating within the Village provided mutually satisfactory rental agreements can be reached. All utility companies in the Village shall cooperate with a franchisee and allow a franchisee the use of their poles and pole line facilities whenever possible so that the number of new or additional poles installed in the Village may be minimized.

(b) A franchisee shall have the right to erect, install and maintain its own towers, poles, guys, anchors, underground conduits, amplifiers, transformers, manholes and other equipment as may be necessary for the proper construction and maintenance of the antenna site, headend and distribution system, provided that the location and construction of towers, poles, guys, anchors, underground conduits, amplifiers, transformers and other equipment, manholes placed on Village property and public rights-of-way shall be approved in advance, in writing, by the Village Engineer. In cases of conflict, preference shall be given to more essential utilities and services such as water, power, steam, telephone, sanitary sewer, storm sewer, traffic signals, street lighting and gas. If a franchisee violates the provisions in this paragraph, the Village Engineer may require a franchisee to remove any and all equipment at its own cost.

(c) A franchisee shall have the right to establish terms, conditions and specifications governing the form, type, size, quantity and location of equipment belonging to other persons on its poles, and shall have the further right to charge a fair rental for attachment, space or spaces occupied by the equipment and plant of such other persons, except that no rent shall be paid by the Village for its attachment to a franchisee's poles. The Village shall pay any reasonable additional costs incurred by a franchisee in providing space for the Village's attachments, including the reasonable cost of any necessary rearrangements of a franchisee's equipment and plant to provide room for Village attachments. Upon expiration, termination or revocation of a franchise, or should a franchisee wish to dispose of any of its poles being used by the Village, the Village shall have the first option to purchase them in place for a value equal to depreciated book value.

(d) In those areas of the Village where transmission or distribution facilities of all utility companies are, or are scheduled to be placed underground, a franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground to the maximum extent the then existing technology permits, in accordance with the then management edition of the National Electrical Safety Code, and the Telephone System Practices Governing Joint Attachment Practices, and their successor documents, as well as in conformance with all applicable laws, statutes, ordinances, regulations and/or codes of the federal, state or municipal governments. If and when necessary, amplifiers and/or transformers in a franchisee's transmission and distribution lines may be in appropriate housings on the surface of the ground.

(e) All transmission and distribution structures, lines, poles, conduits, fixtures and equipment erected by a franchisee in the Village shall be located so as not to endanger life or property or interfere with the normal use of streets, alleys or other public ways and places, so as to cause minimum interference with the rights or reasonable convenience of the general public and adjoining property owners and so as not to interfere with existing traffic control, street lighting, gas, electric, telephone, water hydrant or other public utility installations and so as to comply with the then current edition of the National Electrical Safety Code, and the Telephone System Practices Governing Joint Attachment Practices and their successor documents, as well as in conformance with all applicable laws, statutes, ordinances, regulations and/or codes of the federal, state and municipal governments. If the Village Engineer determines any of such equipment erected by a franchisee violates the provisions outlined in this subsection, he may require a franchisee to alter or remove any or all of the offending equipment.

(f) Prior to the commencement of construction, a franchisee shall file with the Village maps, plats, and records of the locations and character of all facilities to be constructed, including underground facilities and shall have received prior approval from the Village Engineer for such construction. A franchisee is required to maintain current and accurate maps, plats and permanent records for public inspection and to file such documents with the Village annually.

(g) In the case of any disturbance of pavement, sidewalks, driveway, lawn or other surfacing, a franchisee shall, at its expense, promptly replace and restore all such surfacing to its original condition.

(h) The Village may, upon reasonable notice, require a franchisee, at its expense, to protect, support, temporarily disconnect, relocate or remove a franchisee's equipment from a particular area of the Village's streets if reasonably necessary by reason of traffic conditions, public safety, street construction or vacation, change or establishment of communication lines, tracks, traffic signals, street lighting or by reason of other conditions. Reasonable notice for this provision shall be construed to mean at least ten days, except in the case of emergencies.

(i) A franchisee shall have the authority, upon prior approval of the Village Manager or his designated representative, to trim any trees upon and overhanging the streets, alleys, sidewalks and public places of the Village so as to prevent the branches of such trees from coming in contact with wires and cables of a franchisee, except that at the option of the Village, trimming may be done by it, or under its supervision and direction, at the expense and liability of a franchisee. In trimming any trees, a franchisee shall not go upon private property without the consent of the owner. Any damage caused to the property of building owners or users, or of any other person, by the franchisee's negligence shall be repaired fully and promptly at a franchisee's sole expense.

(j) Prior to the installation of any portion of the cable system in or onto a building, a franchisee shall obtain from the building department a cable communications installation permit at the request of and on behalf of the owner of the building or premises. The permit shall be required to defray the costs of an electrical inspection to insure compliance with applicable requirements of the Village. A franchisee shall be responsible for payment of applicable permit fees to the Village.

4.07.19. CONSTRUCTION STANDARDS AND TECHNICAL REQUIREMENTS

(a) All of a franchisee's plant and equipment, including but not limited to, the antenna site, headend, and distribution system, towers, house connections, structures, poles, wire, cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced pole line construction crews and so as not to:

(1) Endanger or interfere with the safety of any persons or property,

(2) Interfere with improvements the Village may deem proper,

(3) Interfere in any manner with the rights of any property owner, or

(4) Unnecessarily hinder or obstruct pedestrian or vehicular traffic on Village property.

(b) All of a franchisee's system, including all plant and equipment and all construction, shall meet, at a minimum, all relevant and applicable specifications as set forth in a request by the Village for proposal, a franchisee's application, this chapter, and this Code, when not preempted by higher law. Such specifications, construction standards and performance characteristics shall include, but not be limited to, the following listed construction and technical standards:

(1) Construction standards - Methods of construction, installation and maintenance of the cable communications system shall comply with all applicable laws and regulations.

(2) Technical standards - A franchisee shall comply with all the rules and standards for cable communications operations as adopted by the FCC.

(3) Performance testing.

a. Performance requirements and standards specified in this chapter, and in all FCC requirements and standards, shall be measured at the time of initial testing as provided in subsection (b)(3)b. of this section, to ensure compliance with all specified requirements and standards for construction. Measurements shall be taken and recorded as specified in the Cable Television Information Center specifications. All costs of such tests shall be borne by a franchisee, including all costs associated with the hiring of an independent supervising engineer pursuant to subsection (b)(3)j. of this section.

b. Initial proof of performance testing shall occur within 60 days of the commencement of cable service to each section of the system franchise area as delineated in a construction timetable which shall be submitted with a franchisee's application and bid proposal and also included in the final franchise agreement. Initial proof of performance shall also be tested within 30 days of the commencement of cable service to new subscribers on any extension of the system not specified in the construction timetable, and within 30 days after service has been extended to new subscribers upon any reconstruction of the cable system.

c. All measurements shall be made using instruments which are appropriate for making each performance test. Such instruments shall be sufficiently sensitive to measure each parameter accurately. The accuracy of the instruments must meet those standards developed by the National Bureau of Standards for Test Equipment. Such test equipment and instruments shall know a correction factor for bandwidth and scale position where applicable. All measurements shall be taken at test points to be designated in a franchisee's application, which shall also be included in the franchise agreement.

d. Tests and measurements to ensure compliance with the technical standards shall be performed in a manner that is consistent with the provisions of federal law and regulations.

e. Performance requirements and standards specified in this document, including all FCC requirements and standards, and all local performance guidelines, shall be measured annually to ensure compliance with all specified requirements and standards. Measurements shall be taken and recorded as specified in this subsection (b)(3). All costs of such tests shall be borne by the franchisee.

f. Routine proof of performance tests shall be made on a periodic basis to ensure compliance with applicable performance standards. Measurements shall be taken and recorded as specified in this subsection (b)(3). All costs of such tests shall be borne by the franchisee.

g. When complaints have been made or when other evidence exists which, in the judgment of the Village Council, casts doubt on the reliability or quality of cable service, the Village shall have the right and authority to compel a franchisee to test, analyze and report on the performance of the system. Such test or tests shall be made and the reports of such tests shall be delivered to the Village no later than 14 days after the Village Council formally notifies a franchisee.

h. The Village's rights under subsection (b)(3)g. of this section shall be limited to requiring tests, analysis, and reports covering specific subjects and characteristics based on such complaints or other evidence when and under such circumstances as the Village has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public substandard cable service. All costs for such tests shall be borne by the franchisee.

i. Reports required pursuant to subsection (b)(3)g. of this section shall include information setting forth the nature of the complaint or other evidence which precipitated the special tests; what system component was tested, the equipment used and procedures employed in such testing, the results of the testing and the resolution of the complaint or problem. Any additional information pertinent to the special test or specifically requested by the Village shall be reported.

j. All performance testing shall be done under the supervision and direction of a qualified engineer, not on the permanent staff of the franchisee. The engineer shall be selected by a franchisee and approved by the Village Manager or his designated representative, after reviewing the individual's professional qualifications and a statement, provided by the engineer, indicating all associations or relationships of any nature which that individual may currently have or may formerly have had with the franchisee. All records of performance tests and their results shall be signed and certified by the engineer who shall include in the records a copy of his qualifications and of the statement.

(c) If, at any time, the cable communications system or any portion thereof fails to comply with any of the standards set forth in this section, the Village Engineer shall send written notice to a franchisee listing any deficiencies and requiring a franchisee to repair, alter or correct the deficiencies so as to meet all such standards. A franchisee shall have 30 days after the date of the notice within which to correct the deficiencies. A franchisee's failure to correct the deficiencies within 30 days shall subject it to the penalties provided in section 4.09.16, unless the penalty is waived by the Village Council upon a showing by a franchisee that it has made all reasonable efforts to correct the deficiency but has been unable to do so due to the occurrence of conditions beyond its control. If deficiencies in the cable communications system remain after the 30-day period, the Village Council may direct the engineering department to correct such deficiencies and a franchisee shall pay all reasonable costs associated therewith.

(d) Where the provisions of any codes or regulations referred to in this section are in conflict, the more stringent provisions, as determined by the Village Engineer, shall be deemed to apply.

4.07.20. CHANGES PROHIBITED

(a) A franchisee shall provide its cable system and all services as set forth in the franchise agreement, including all exhibits thereto and all documents and written material incorporated by reference therein.

4.07.21. MAINTENANCE OF FACILITIES, EQUIPMENT

A franchisee shall upgrade its facilities, equipment and service so that its system is as advanced as the current state of technology will allow, provided that any necessary upgrade to its facilities, equipment, or service is economically appropriate. A franchisee shall install additional channel capacity as required to keep channel capacity in excess of the demand therefor by users. At all times, the cable system shall be no less advanced than any cable system in the Detroit Dominant Market Area or than any other cable system of comparable size excepting only those cable systems which are experimental, pilot, or demonstration. Such matters shall be a topic of discussion at all review sessions. A franchisee shall submit a five-year plan for upgrading facilities and equipment at each performance review session.

4.07.22. SUBSCRIBER PRIVACY

(a) No signals of a cable communications channel shall be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. The request for such permission shall be contained in a separate document with a prominent statement to be signed by the subscriber acknowledging his full understanding of the provisions of the request and permitting the activity to occur. No penalty shall be invoked for a subscriber's failure to provide such an authorization. The authorization shall be revocable at any time by the subscriber without penalty. Such authorization is required for each type or classification of subscriber terminal signal planned; provided, however, that a franchisee may keep such records of viewing or purchasing of services by individual subscribers as are necessary for the billing of the individual subscriber for such services.

(b) A franchisee shall not monitor or tabulate any records or test results in any manner that would reveal the economic status, commercial product preferences or opinions of individual subscribers or their families. A franchisee shall not maintain or tabulate any data on the political, religious, moral or social preferences or opinions of individual subscribers or their families.

(c) A franchisee, or any of its agents or employees, shall not, without the specific written authorization of the subscriber involved, sell, or otherwise make available to any party:

(1) Lists of the names and addresses of such subscribers, or

(2) Any list which identifies the viewing habits of subscribers.

(d) A franchisee shall be constantly alert to possible abuses of any legal right of privacy or other legal rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the cable communications system. The possibility of such abuse shall be discussed at every scheduled review session.

(e) Devices such as electronic locks, scramblers, warning lights, and others designed to inhibit signals originating from a subscriber terminal shall be provided by a franchisee for all two-way system subscribers. Such devices shall additionally be provided as other privacy problems are identified, the technology becomes available and reasonable financial arrangements can be made.

4.07.23. CONTINUITY OF SERVICE

(a) It shall be the right of all consumers and programmers to receive all available services insofar as their financial and other obligations to a franchisee are honored. If a franchisee elects to overbuild, rebuild, renovate, modify or sell the system, or the Village gives notice of intent to terminate or fails to extend or renew this franchise, a franchisee shall act so as to ensure that all consumers and programmers receive continuous, uninterrupted service regardless of the circumstances, for a period not to exceed six (6) months unless a longer period is agreed to by the parties.

(b) Upon a change of franchisee, or if a new operator acquires the system, a franchisee shall cooperate with the Village, new franchisee or operator in maintaining continuity of service to all consumers and programmers. During such period, a franchisee shall be entitled to the revenues for any period during which it operates the system, and shall be compensated for reasonable costs incurred in providing any services when it no longer operates the system.

(c) If a franchisee fails to operate the system for three (3) consecutive days without prior approval of the Village or without just cause, the Village may, at its option, operate the system or designate an operator until such time as a franchisee restores service under conditions acceptable to the Village or a permanent operator is selected. If the Village fulfills this obligation for a franchisee, the franchisee shall reimburse the Village for all reasonable costs or damages, in excess of revenues from the system received by the Village, that are the result of the franchisee's failure to perform.

4.07.24. ALL CHANNELS EMERGENCY ALERT

A franchisee shall, in the case of any emergency or disaster, make its entire system available without charge to the Village Manager or his representative, or to any other governmental or civil defense agency that the Village shall designate. The system shall be engineered to provide an emergency alert system as set forth in the franchise agreement to allow authorized officials to automatically override the audio signal on all channels, and transmit and report emergency information. The system shall provide for visual transmission of emergency messages.

4.07.25. HOME SECURITY

No home security program shall be promoted, nor shall a home security device be installed, without the prior approval from the Director of Public Safety of the overall home security system design. This provision shall include alarm systems the purpose of which is to detect and warn monitoring agencies of medical emergencies, fires or illegal entry. This section shall be interpreted to cover the general plan and scope of activities, not individual service hookups.

4.07.26 et seq. RESERVED.

4.08 FRANCHISE FEE AND RATES

4.08.1. ESTABLISHMENT OF FRANCHISE FEE

(a) As compensation for the use of the Village's streets, public ways and places, and other facilities, and for the right to construct, operate, maintain, modify, and reconstruct a cable communications system, and for the Village's costs of maintenance, and supervision of the franchise, and for the Village's costs of establishing and conducting the regulatory activities required by virtue of the franchise, a franchisee shall pay to the Village an amount equal to five percent of a franchisee's gross revenues from all sources attributable to the operations of the franchisee within the Village. The franchise fee payment shall be in addition to any tax, permit fee, or other payment owed or service to be provided to the Village by a franchisee.

(b) For purposes of this chapter, gross revenues shall be calculated on an accrual basis.

4.08.2. PAYMENT OF FRANCHISE FEE

(a) Payment of the franchise fee shall be made quarterly at the Village Treasurer's office. Each payment shall be accompanied by a financial statement in a standard form, approved by the Village Treasurer, setting forth the basis for the computation and specifically showing the gross revenues attributable to the franchise during the preceding quarter, as well as such other relevant facts as may be required by the Village.

(b) Each quarterly payment and accompanying financial statement shall be filed in the Village Treasurer's office within 20 days after the last day of the quarter for which the payment is due.

(c) A franchisee shall file, within 120 days of the close of the franchisee's fiscal year, an annual report audited by a certified public accountant, of the annual gross revenues attributable to a franchisee's cable communications operation in the Village as well as such other items of information as may be required of a franchisee. This requirement may be modified by the Village Council in appropriate circumstances. Extension of such period up to 30 additional days may be granted by the Village Council upon request by a franchisee.

(d) The Village shall have the right to inspect a franchisee's financial records, such records to be kept or made available within the Village, and the rights of audit and recomputation of any amounts that may be determined to be payable under this chapter. Any additional amount due the Village as a result of the audit shall be paid within 30 days following written notice to a franchisee by the Village, which notice shall include a copy of the audit report. The cost of the Village's audit shall be borne by a franchisee if it is properly determined that a franchisee's annual payments to the Village for the preceding year are increased thereby by more than three percent.

(e) If any franchise fee payment or recomputed amount is not made on or before the applicable due date a late payment fee of $250.00 and a monthly service charge of 1.8 percent of the total unpaid amount shall be paid to the Village by the franchisee.

(f) No acceptance of any payment by the Village shall be construed as a release or as an accord and satisfaction of any claim the Village may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of a franchisee.

4.08.3. RENOGOTIATION OF FRANCHISE FEES

If the law permits a specified franchise fee greater than the franchise fee set forth in this Chapter, the Village shall have the right to impose such greater fee upon thirty days written notice to a franchisee. If the law removes all limitations on the amount of such fee, the Village shall have the right to increase such fee to eight percent, or more if negotiated, upon thirty days written notice to a franchisee.

4.08.4. RATES AND CHARGES FOR SERVICE

(a) The Village Council shall be empowered to determine, fix, and regulate the charges or rates of the franchisee and from time to time to alter or change such rates.

(b) The Village shall fix and regulate rates for services which shall include, but not be limited to, the following:

(1) Rates for the provision of basic service to subscribers, residential or nonresidential.

(2) Rates for the provision of pay television service to subscribers.

(3) Rates for the connection and installation of services, and for the downgrade or disconnection and/or reconnection of such services.

(4) Rates for nonentertainment services, such as home security, utility meter reading, data transmission, use of access channels, energy management, traffic signalization and other services that may be introduced during the term of the franchise.

(c) Initial maximum rates for services of the cable communications system shall be those delineated in a franchise agreement. Initial maximum rates shall not be increased during the period specified in a franchise agreement except as otherwise permitted by law. If construction of the cable communications system is not timely completed and activated as set forth in a franchise agreement, and an extension is not granted by the Village Council, the rate guarantee shall be extended one day for each day that construction remains incomplete and inactivated beyond the specified construction and activation period.

(d) A franchisee shall have the right to conduct promotional campaigns which permit new subscriptions to the system at lesser rates than those applicable to earlier subscribers provided those promotional rates shall be equally available to all such new subscribers in the Village.

4.08.5. REVISION OF RATES FOR SERVICES

(a) The Village Council, upon request of a franchisee or upon its own initiative, may establish revised rates for services. The following procedures are hereby adopted to provide for a method for the revising of rates:

(1) A franchisee shall file a petition with the Village Council, which petition shall contain full and detailed information concerning the rate revisions being requested and supporting financial documentation for such rate revision.

(2) The Village Council shall establish the date and time for public hearing on such rate revision request no less than 30 days from the date a written request is formally received by the Village Council in a regularly scheduled public meeting and shall render a decision on the request within 30 days following the public hearing.

(3) Notice of the public hearing shall be given in accordance with the provisions of section 4.09.15.

(4) The Village Council may, at its option, employ a consultant or consultants mutually acceptable to a franchisee to aid in the analysis of the requested rate revision. Costs of such consultants shall be borne by a franchisee.

(5) The Village may renegotiate other provisions of the franchise at such times as rate revisions are requested by a franchisee.

(6) Nothing in this section shall be deemed to prevent the Village on its own initiative from instituting proceedings to revise rates at the Village's expense.

(b) In making its determination with regard to the setting or revision of rates, the Village Council may direct the Cablecasting Board to review and report on the following items:

(1) The rate request and its supporting financial documentation;

(2) Comparative rates in metropolitan Detroit and the United States;

(3) Performance ratings and subscriber complaints;

(4) System expansion and franchise fee payments;

(5) Comparable services in metropolitan Detroit and the United States; and

(6) Other items as it deems fit.

4.08.6. ESTABLISHMENT OF RATES AND CHARGES SUBJECT TO LAW

The provisions of Sections 4.08.4 and 4.08.5 shall be applicable only if, when, and to the extent, permitted by law.

4.08.7. REFUNDS TO SUBSCRIBERS AND PROGRAMMERS

If a franchisee fails to provide any material service requested by a subscriber or programmer in accordance with the standards set forth in this chapter, a franchisee shall promptly refund all deposits or advance charges paid for the service in question by the subscriber or programmer. This section shall include discontinuance of service for each 24-hour period, as well as lack of service after payment for initial hookup.

4.08.8 et seq. RESERVED

4.09 ADMINISTRATION AND REGULATION

4.09.1. PERFORMANCE REVIEW

(a) In order to monitor a franchisee's performance and adherence to this chapter and the franchise agreement, the Village, through the Cablecasting Board, and a franchisee may hold scheduled review sessions within 30 days after the first, fourth, seventh and tenth anniversary dates of the effective date of the franchise and each three years thereafter during the remaining initial term of the franchise and any extension or renewal thereof. All such review sessions shall be open to the public and notice thereof shall be published not less than ten days nor more than 30 days before each review session in a local newspaper of general circulation. The published notice shall specify the topics to be discussed. Notice shall be given in accordance with the provisions of section 4.09.15.

(b) Unless waived by resolution of the Cablecasting Board in writing four months prior to each scheduled review session, a franchisee shall submit to the Cablecasting Board the results of an independent opinion survey which shall elicit constructive criticisms and identify unmet needs among subscribers and nonsubscribers in the franchise area. The Cablecasting Board shall establish standards and controls with respect to the opinion survey, the preparation and implementation of which shall be without expense to the Village or the Cablecasting Board, and shall approve in advance the survey form and the person conducting the survey.

(c) Special review sessions may be held at any time during the term of the franchise by the Village or by the Cablecasting Board upon not less than 30-days' notice to a franchisee of the time and place of the review sessions and the topics to be covered. All such review sessions shall be open to the public and public notice of the review sessions shall be given in accordance with the provisions of section 4.09.15.

(d) All or any of the following topics may be designated for discussion and review at any review session:

(1) Judicial and federal communications rulings.

(2) Rate structures.

(3) Application of new technology or new developments.

(4) System performance.

(5) System extension policy.

(6) Service provided.

(7) Programming offered.

(8) Customer complaints.

(9) Privacy.

(10) Amendments to the ordinance authorizing the franchise.

(11) Interconnection.

(12) Underground progress.

(13) Public, governmental and educational access programs and performance.

(14) Studio facilities and service.

(15) Insurance.

(16) New services.

Other topics may be added by either party. Members of the general public may also request discussion of additional topics.

(e) The Cablecasting Board at its discretion may utilize the services of a consultant to gain additional information for use during the review sessions. A franchisee shall cooperate with such consultant and the Cablecasting Board in all aspects of the performance review. In the event the consultant's review reveals or leads to the discovery of a significant default or violation of the franchise, the reasonable fees of such consultant relating to such default or violation shall be borne by a franchisee.

(f) The Cablecasting Board shall, at the conclusion of all review sessions, issue a public report to the Village Council announcing its findings and recommendations for enforcement of or modifications to this chapter or the franchise agreement.

4.09.2. SECURITY FUND

(a) Within thirty days after the effective date of franchises between a franchisee and each of the Cablecasting Board's member communities, a franchisee shall deposit with the Cablecasting Board, and maintain on deposit through the term of the franchise, the sum of $10,000. Such sum shall stand as security for the obligations of a franchisee to the member communities of the Cablecasting Board and be administered by the Cablecasting Board as set forth below.

(1) The faithful performance by it of all the provisions of this chapter and the franchise;

(2) Compliance with all orders, permits and directions of any agency, commission, board or department of the member communities having jurisdiction over its acts or defaults under the franchise agreements; and

(3) The payment by the franchisee of any claims, liens and taxes due the member communities which arise by reason of the construction, operation or maintenance of the system.

(b) Within ten days after notice to it that any amount has been withdrawn from the security fund, the franchisee shall pay to or deposit with the Cablecasting Board a sum of money in the full amount withdrawn.

(c) If the franchisee fails to pay to the member communities any fees within the time fixed in this chapter; or fails, after ten days' written notice, to pay to the member communities any taxes due and unpaid; or fails to repay the member communities within such ten days, any damages, costs, or expenses which the member communities shall be compelled to pay by reason of any act or default of the franchisee in connection with the franchise, or fails, after three days' notice of such failure, to comply with any provisions of the franchise which the member communities reasonably determines can be remedied by a withdrawal from the security, the member communities may immediately withdraw the amount thereof, with interest and any penalties, or liquidated damages from the security fund. Upon such withdrawal, the member communities shall notify the franchisee of the amount and date thereof.

(d) The security fund deposited pursuant to this section, including all interest thereon, shall become the property of the member communities if the franchise is rescinded or revoked by reason of the default of the franchisee. The franchisee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the franchisee. Interest earned by the investment of the security fund shall become part of the security fund and unless consumed by the payment of penalties, fees or other charges under this chapter, shall be returned to the franchisee at the expiration of the franchise term, provided that there is then no outstanding default on the part of the franchisee.

(e) The payment of a penalty from the security shall not constitute a cure of any violation or any act of noncompliance. The rights reserved to the member communities with respect to the security fund are in addition to all other rights of the member communities whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the member communities may have.

4.09.3. PERFORMANCE BOND/LETTER OF CREDIT

(a) Upon the effective date of the franchise agreement, at the Village's discretion, a franchisee shall file with the Village a performance bond, in favor of the Village, in the sum of $250,000.00, or in any greater amount specified in the franchise agreement, conditioned that the franchisee shall well and truly observe, fulfill and perform each term and condition of this chapter and the franchise agreement. This bond shall be maintained by the franchisee throughout the construction period and until such time as determined by the Village Council. At the request of the Village Council, additional municipalities may be named as additional secured parties in such bond. In lieu of all or part of the amount of such performance bond, at the Village's discretion, a franchisee shall file with the Village an unconditional and irrevocable letter of credit, in form and content satisfactory to the Village, in the sum specified in this section or in any greater amount specified in the franchise agreement. Failure to furnish such bond or letter of credit and to maintain the same in effect in the full amount required hereby during the entire term of the franchise agreement, and any extension or renewal thereof, shall constitute a violation of this section and a material breach of the franchise agreement.

(b) If a franchisee fails to comply with any law, ordinance or regulation governing the franchise, or fails to well and truly observe, fulfill and perform each term and condition of the franchise, including the franchisee's proposal, there shall be recoverable, jointly and severally, from the principal and surety of the bond, and/or from the letter of credit, any damages or loss suffered by the Village as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of a franchisee, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond or letter of credit.

(c) The Village may, upon completion of initial or subsequent construction, waive or reduce the requirement of the franchisee to maintain such bond or letter of credit. However, the Village may require a performance bond or letter of credit to be posted by a franchisee for any construction subsequent to the completion of the initial service areas, in a reasonable amount and upon such terms as determined by the Village Council.

(d) The bond or letter of credit shall contain the following or substantially similar endorsement: It is hereby understood and agreed that the bond or letter of credit may not be canceled nor the intention not to renew be stated until 30 days after receipt by the Village, by registered mail, of a written notice of such intent to cancel or not to renew.

4.09.4. INSURANCE

(a) A franchise shall maintain throughout the term of the franchise, insurance insuring the Village and franchisee in the minimum amount of:

(1) Workers' compensation. As required by all applicable federal, state, maritime or other laws including franchisee's liability with a limit of at least $100,000.00 for each occurrence.

(2) Comprehensive general liability and extended coverage endorsement. Including nonownership and hired car coverage as well as owned vehicles, with minimum limits as follows: Bodily injury for each person, $1,000,000.00, and each occurrence, $1,000,000.00; property damage or each occurrence $500,000.00.

(3) Excess liability. Bodily injury and property damage, $5,000,000.00 for each occurrence.

(b) The insurance policies obtained by a franchisee in compliance with this section must be approved by the Village Attorney as being in compliance with this chapter and the franchise agreement within 30 days of the execution of the franchise agreement. Certified copies of such insurance policies, or certificates of insurance in lieu of the policies, along with written evidence of payment of required premiums, shall be filed and maintained with the Village Clerk during the term of the franchise. Such certified copies may be changed from time to time to reflect any increase in liability limits. A franchisee shall immediately advise the Village of any litigation covered by the insurance.

(c) Neither the provisions of this section nor any damages recovered by the Village thereunder shall be construed to limit the liability of a franchisee under any franchise issued under this chapter or for damages.

(d) All insurance policies maintained pursuant to a franchise shall name the Village, its employees, agents, boards and officers as additional named insured parties with respect to all actions, inactions, errors and omissions of the franchisee, its agents or subcontractors, and shall contain the following or substantially similar endorsement: It is hereby understood and agreed that this insurance policy may not be canceled by the insurer nor the intention not to renew be stated by the insurer until at least 30 days after receipt by the Village, by registered mail, of a written notice of such intention to cancel or not to renew.

(e) Each policy of insurance shall be noncancellable except upon giving such notice to the Village. If deemed appropriate by the Village Attorney, the franchisee shall also provide an owners and contractors protective liability policy.

4.09.5. INDEMNIFICATION

(a) A franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Village, its officers, boards, committees and employees against any and all claims, suits, actions, liability and judgments for damages, including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the Village in connection therewith:

(1) In any way arising out of or through the acts or omissions of a franchisee, its servants, agents, or employees, or to which the franchisee's negligence shall in any way contribute with respect to any claim attributable to the operation or existence of any part of the cable communications system.

(2) Arising out of any claim for invasion of the right of privacy, for defamation of any person, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, excluding claims arising out of or relating to Village programming.

(3) Arising out of a franchisee's failure to comply with the provisions of any federal, state or local statute, ordinance or regulation applicable to the franchisee in its business hereunder.

(b) The foregoing indemnity is conditioned upon the following:

(1) The Village shall give a franchisee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section.

(2) Nothing in this section shall be deemed to prevent the Village from cooperating with a franchisee and participating in the defense of any litigation by its own counsel at its sole cost and expense.

(3) No recovery by the Village of any sum by reason of the security fund shall be any limitation upon the liability of a franchise to the Village under the terms of this section, except that any sum so received by the Village shall be deducted from any recovery which the Village might have against a franchisee under the terms of this section.

4.09.6. FORECLOSURE

Upon foreclosure or other judicial sale of all or a substantial part of the cable communications system, or upon the termination of any lease covering all or a substantial part of the cable communications system, a franchisee shall notify the Village of such fact. Such notification shall be treated as notification that a change in control of the franchisee has taken place, and the provisions of this chapter governing transfer shall apply.

4.09.7. RECEIVERSHIP

A franchise granted under this chapter shall, at the option of the Village, cease and terminate 90 days after the appointment of a receiver, or trustee, to take over and conduct the business of a franchisee, whether in receivership, reorganization, bankruptcy or other action or proceedings, unless such receivership or trusteeship shall have been vacated prior to the expiration of such 90 days.

4.09.8. REPORTS

(a) On not less than 30 days' advance notice, the franchisee shall submit reports on such matters as the Village or Cablecasting Board may request from time to time. All reports and records of the franchise required under this chapter or the franchise agreement shall be furnished at the sole expense of the franchisee. Any materially false or misleading statement or report made by a franchisee under this chapter or the franchise agreement shall be deemed a violation of this chapter and a material breach of the franchise agreement.

(b) A franchisee shall fully cooperate in making available at reasonable times, and representatives of the Cablecasting Board and the Village Manager or designated representatives shall have the right to inspect, the books, records, maps, plans and other like materials of a franchisee applicable to the cablecasting system, at any time during normal business hours within the Village. Where volume and convenience necessitate, a franchisee may require inspection to take place on its premises within the Village.

(c) The Village and the Cablecasting Board, whenever consistent with its public records ordinance and the state's Freedom of Information Act (MCL 15.231 et seq., MSA 4.1801(1) et seq.), shall attempt to protect, within reasonable limits, the privacy of a franchisee's financial records, unless such records are otherwise available to the public.

4.09.9. OTHER PETITIONS AND APPLICATIONS

Upon request by the Village or the Cablecasting Board, copies of all petitions, applications, communications and reports submitted by a franchisee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to the franchise, shall be provided no later than the filing date for such petitions, applications, communications and reports.

4.09.10. OTHER BUSINESS ACTIVITIES

In the conduct of a business franchised under this article, neither a franchisee nor its officers, employees, or agents shall directly or indirectly:

(1) Sell, lease, repair, install or maintain; or

(2) Recommend for sale, lease, repair or maintenance television sets or receivers.

Nothing under this section shall be construed to prohibit a franchisee, at a customer's request and without payment, from examining and adjusting the customer's receiver set to determine whether reception difficulties originate in the set or in the franchisee's system.

4.09.11. NONDISCRIMINATION REQUIREMENTS

(a) A franchisee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, age, handicap, national origin or sex. A franchisee shall comply at all times with all applicable federal, state, and local laws and regulations, and all executive and administrative orders relating to nondiscrimination.

(b) A franchisee shall strictly adhere to the equal employment opportunity requirements of the FCC, federal, state, and local regulations, as amended from time to time.

4.09.12. COMPLIANCE WITH LAWS

Notwithstanding any other provisions of this chapter to the contrary, a franchisee shall at all times comply with all laws and regulations of the federal, state, county and village governments or any administrative agencies thereof. If any such federal, state or county law or regulation shall require a franchisee to perform any service or shall permit a franchisee to perform any service or shall prohibit a franchisee from performing any service in conflict with the terms of the franchise or of any law or regulation of the Village, then as soon as possible following its knowledge thereof, a franchisee shall notify the Village Council of the point of conflict believed to exist between such regulation or law and the laws or regulations of the Village or the terms of the agreement. The Village Council shall review the possible conflict and determine what action, if any, it shall take regarding the point of possible conflict.

4.09.13. THEFT OF SERVICES AND TAMPERING

(a) No person shall intentionally or knowingly:

(1) Damage or cause to be damaged any wire, cable, conduit, equipment, apparatus or appurtenance of a franchisee of commit any act with intent to cause such damage.

(2) Tap, tamper with or otherwise, connect any wires or device to a wire, cable, conduit, equipment, apparatus or appurtenances of a franchisee with the intent to obtain or send a signal or impulse from the cable system without authorization from or compensation to the franchisee, or to obtain or send cable television or other communication service with intent to obtain or send cable television or other communication service with intent to defraud a franchisee of any lawful compensation to which it is otherwise entitled.

(b) Each day's violation of this section shall be considered a separate offense.

4.09.14. APPROVAL BY VILLAGE ENGINEER

Where provisions of this chapter require approval of the Village Engineer, the Engineer shall grant approval only upon the Engineer's determination that the proposed construction, installation or other activity for which approval is required will not endanger or adversely affect the public health, safety or welfare.

4.09.15. PUBLIC NOTICE

Unless otherwise specifically set forth in this chapter, minimum public notice of any public hearing relating to a franchise shall be by publication, at least once per week, in a local newspaper of general circulation beginning 15 days prior to the meeting, and by announcement, in a format approved by the Village Council, on at least two channels of the cable communications system between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days prior to the hearing.

4.09.16. CHARGE TO SECURITY FUND

The Village shall be entitled to be paid liquidated damages, and may draw upon the security fund, performance bond, or letter of credit, for the same as follows:

(1) For failure to complete initial system construction and for all other construction or activation obligations of a franchisee including, without limitation, upgrades of the system, or provide services, equipment or personnel in accordance with section 4.06.3, 4.07.3, 4.07.7 or 4.07.10, unless the Village Council specifically approves the delay by motion or resolution, due to the occurrence of conditions beyond the franchisee's control, $2,500.00 per day for each day, or part thereof, the deficiency continues.

(2) For failure to provide dates, documents, reports, information as required by sections 4.08.2, 4.09.1 and 4.09.8, $50.00 per day each violation occurs or continues.

(3) For failure to test, analyze and report on the performance of the system following a request pursuant to section 4.07.19, $50.00 per day for each day, or part thereof, that such noncompliance continues.

(4) For failure to restore the cash deposit as required in section 4.09.2 within the specified ten days, $50.00 per day for each day, or part thereof, that such violation continues.

(5) For failure to comply, after 30 days' notice by the Village Engineer with the standards set forth in section 4.07.19, $100.00 per day for each day, or part thereof, that such violations continues, unless the penalty is waived by the Village Council upon a showing by a franchisee that it has made a reasonable effort to correct the deficiency but has been unable to do so, due to the occurrence of conditions beyond its control.

(6) Except as otherwise provided in section 4.11.11, for any other violation or default under the franchise agreement or this chapter, $100.00 per day for each day that such violation or default continues.

4.09.17. PENALTIES AND CHARGES TO TENANTS FOR SERVICES PROHIBITED

Neither the owner of any multiple-unit residential dwelling nor his agent or representative shall penalize, charge or surcharge a tenant or resident or forfeit or threaten to forfeit any right of such tenant or resident, or discriminate in any way against such tenant or resident who requests or receives cable communications service from a franchisee operating under a valid and existing cable communications franchise issued by the Village.

4.09.18. SOLICITATION OF SUBSCRIBERS

Neither a franchisee nor its agents or employees shall solicit subscribers to the cable communications system by any threatening or harassing means. Harassment shall include the following actions when undertaken with the purpose of soliciting a cable communications subscription:
(1) Entry into a dwelling unit without an oral invitation to do so;

(2) A telephone call to a dwelling unit between the hours of 10:00 p.m. and 7:00 a.m.;

(3) A telephone call to a dwelling unit within three months of a prior rejection of a cable communications subscription by any person residing at that dwelling unit, unless some person residing therein has expressly indicated an interest in subscribing to the cable communications system; and

(4) Visiting a dwelling unit within three months of a prior rejection of a cable communications subscription by any person residing at that dwelling unit, unless some person residing therein has expressly indicated an interest in subscribing to the cable communications system.

4.10.19 et seq. RESERVED

4.10 CABLECASTING BOARD

4.10.1. CREATION AND MEMBERSHIP OF BOARD

(a) The Birmingham City Commission and the Village Councils of Beverly Hills, Bingham Farms, and Franklin have established a Cablecasting Board hereinafter called the "Birmingham Area Cable Board". The Board shall continue to consist of thirteen (13) members, seven (7) who are residents of Birmingham who shall be appointed by the City, four (4) who shall be residents of Beverly Hills who shall be appointed by that Village, one (1) who shall be a resident of Bingham Farms who shall be appointed by that Village, and one (1) who shall be a resident of Franklin who shall be appointed by that Village. Each respective authority shall also appoint one (1) alternate representative. In the absence of the representative, the alternate representative shall be entitled to cast the vote for that member. Members of the Board shall serve without compensation and for such terms as their respective authorities shall determine. The City of Birmingham and the Villages shall also have sole power to remove and/or replace their respective appointees. {Ord. 301, 7-18-01}

(b) Each of the Board's member communities is encouraged to appoint an elected or appointed official of that community to act as a liaison to the Board, to attend Board meetings, and to participate in board discussions.

(c) The Birmingham School District and the Baldwin Library are each also encouraged to appoint a representative to act as a liaison to the Board and to participate in Board discussions regarding matters relevant to their respective interests and constituencies.

(d) Seven (7) members of the board shall constitute a quorum and the affirmative vote of a majority of the full Board shall be required for board action.

4.10.2. MEETINGS

Meetings of the Cablecasting Board shall be held at the call of the chairman and at such other times as the board may determine, but not less frequently than once a month. The Board shall adopt rules of procedures and shall keep minutes of its meetings, which shall be a public record. A representative of the franchisee may attend all open sessions of the Board and shall be given a place on the agenda for all regular board meetings and special meetings when deemed appropriate by the Board in order to enable the franchisee to make such reports as it may desire and to respond to questions from Board members and the public.

4.10.3. DUTIES AND POWERS

The Cablecasting Board shall perform the following roles and functions:

(1) Advise the Birmingham City Commission, Beverly Hills Village Council; Bingham Farms Village Council and Franklin Village Council on matters related to cable communications.

(2) Monitor the franchisee's compliance with the franchise agreement and the cable communications ordinance.

(3) Conduct performance reviews as outlined in this chapter.

(4) Act as liaison between the franchisee and the public; hear complaints from the public and seek their resolution from the franchisee.

(5) Advise the Birmingham City Commission, Beverly Hills Village Council; Bingham Farms Village Council and Franklin Village Council on adjustments of rates and services according to the procedure outlined in this chapter and to regulate rates as authorized by the City and Villages and permitted by law.

(6) Advise the Birmingham City Commission, Beverly Hills Village Council; Bingham Farms Village Council and the Franklin Village Council on transfer, renewal, extension or termination of a franchise and change of control of a franchisee.

(7) Appropriate those moneys deposited in an account in the name of the Cablecasting Board by the City of Birmingham, Village of Beverly Hills, Village of Franklin, and the Village of Bingham Farms for:

a. The costs of any consulting and administrative expenses related to the franchise selection process;
b. The costs of any consulting and administrative expense related to performance reviews;
c. Enhancement of the cable access channels; and
d. The costs of any consulting or administrative services under contracts entered into by the Board and other expenses related to the continuing duties and operation of the Cablecasting Board;

and submit an annual budget to the Birmingham City Commission, Beverly Hills Village Council, Franklin Village Council and Bingham Farms Village Council.

(8) Oversee the operation of the educational, governmental and public access channels by:

a. Establishing reasonable user fees.
b. Developing policy guidelines for programming, scheduling and utilization of equipment and facilities.
c. Directing that programming related primarily to the promotion of a business, trade or profession be discontinued or not delivered.
d. Hearing and deciding conflicts between access channel users regarding utilization of equipment, cablecasting time or facilities.

(9) Apprise the Birmingham City Commission, Beverly Hills Village Council, Franklin Village Council, and Bingham Farms Village Council of new developments in cable communications technology.

(10) Hear and make recommendations to the Birmingham City Commission, Beverly Hills Village Council, Franklin Village Council, and Bingham Farms Village Council on any request of a franchisee for modification of its franchise obligations.

(11) Enter into contracts within the Board's budget and such other contracts as may be authorized by the City and the Villages.

(12) Administer contracts entered into by the board and terminate such contracts.

(13) Except as otherwise provided in this chapter, hear and decide all matters and disputes relating to or arising under the customer service standards and consumer protection provisions of this chapter, including the assessment of liquidated damages for any violation of such standards or provisions.

(14) Perform such other functions and duties as may lawfully be delegated to it by the Birmingham City Commission, Beverly Hills Village Council, Franklin Village Council and Bingham Farms Village Council, and exercise such additional powers and functions as may be necessary or proper to carry out the duties expressly mandated in subsections (1) through (13) of this section or as may be delegated under this subsection (14).

4.10.4. APPEALS

Any person jointly or severally aggrieved by a decision of the Cablecasting Board shall have the right to appeal to the county circuit court on any matter on which the Cablecasting Board has the power to render a final decision and exercises such power.

4.10.5. AUTHORITY OF MUNICIPALITIES

The Birmingham City Commission, Beverly Hills Village Council, Franklin Village Council, and Bingham Farms Village Council shall retain full authority over all decisions pertaining to the issuance, extension, or renewal of a franchise, franchise transfer or change of control of a franchisee, franchise termination or franchise purchase, appointments to the Cablecasting Board, public access guidelines, and bond or letter of credit reduction.

4.10.6 et seq. RESERVED

4.11 CONSUMER PROTECTION

4.11.1. CUSTOMER SERVICE

(a) A franchisee shall maintain an office which provides the necessary facilities, equipment, and personnel to comply with the following customer service standards under normal conditions of operation:

(1) Sufficient customer service representatives and toll-free telephone line capacity during normal business hours to assure that a minimum of 90 percent of all calls will be answered within 30 seconds and 90 percent of all calls for service will not be required to wait more than 30 seconds after such call has been answered before being connected to a service representative. All incoming customer service lines shall not be simultaneously busy more than three percent of the total time the cable office is open on any business day.

(2) Emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays.

(3) A franchisee shall maintain a presence within the franchise area with adequate hours to meet public demand. The Cablecasting Board may require a franchisee to alter or extend these hours if there is significant evidence through subscriber complaints that the posted hours are not adequate. For purposes of this provision only, "franchise area" may include neighboring municipalities acting jointly under an intergovernmental agreement to which the Village is a party.

(4) An emergency system maintenance and repair staff, capable of responding to and repairing malfunctions on a 24-hour basis.

(5) An installation staff, normally capable of installing service to any subscriber within seven days after receipt of a request, in all areas where trunk and feeder cables have been activated.

(b) A franchisee shall furnish each subscriber at the time service is installed or reinstalled, and at least annually thereafter, written instructions and information regarding the franchisee's general policies and practices applicable to subscribers including, without limitation, information regarding products and services, prices and options, installation and service maintenance policies, instructions for using the system, billing and complaint procedures, and such additional matters as may be required by law or as may reasonably be required by the Village or the Cablecasting Board. Such instructions and information shall include the franchisee's business address, applicable phone number, and the name of the appropriate official or department of the franchisee to whose attention the subscriber should direct a request for service, request for billing adjustment or complaint. Such instructions or information shall also include the name, business address, and telephone number of the Cablecasting Board's administrator and the name, business address and telephone number of the Village Manager or other designated Village employee to whom the subscriber can call or write for information regarding the terms, conditions and provisions governing a franchisee's franchise if a franchisee fails to respond within a reasonable period of time to the subscriber's complaint or request for installation, service or billing adjustment.

(1) A franchisee shall furnish revised written instructions to each subscriber whenever the instructions previously provided have been changed, and at least annually.

(2) The written instructions and information provided for in this section shall be subject to the review and approval of the Cablecasting Board which shall not withhold its approval unreasonably. The Board shall have the power to compel changes in such materials if the Board deems the same to be incorrect or inadequate in any material respect, and a franchisee shall promptly institute any changes so required by the board.

4.11.2. CABLE SERVICE

(a) A franchisee shall interrupt programming service only with good cause and for the shortest time possible and, except in emergency situations, only after periodic cablecasting notice of service interruption for two days prior to and on the same channel and at the same time as the anticipated interruption. Programming services may be interrupted between 1:00 a.m. and 5:00 a.m. for routine testing, maintenance and repair, without notification, any night except Friday, Saturday, or Sunday, or the night preceding a holiday.

(b) A franchisee shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, of all subscriber complaints. Such log shall list the date and time of such complaints, identifying the subscribers and the describing the nature of the complaints and when and what actions were taken by the franchisee in response thereto. Such log shall be made available at a location convenient to the Village, reflecting the operations to date for a period of at least three years, and shall be available for public inspection during regular business hours. The franchisee shall submit a copy of such log quarterly to the Cablecasting Board for its review. For purposes of this section, "complaint" means any expression of dissatisfaction or report of a failure or defect, by a subscriber or other user of the cable system to the franchisee relating to any product, service, price, facility of the franchisee, or action or omission of the franchisee relating to the franchisee's status as a cable franchisee of the Village.

(c) For purposes of this section, "subscriber problem" means any malfunction affecting a single subscriber; "outage" means a complete loss of picture and sound affecting more than one subscriber; "system problem" means any problem other than an outage which affects more than one subscriber. With respect to matters within a franchisee's control, a franchisee shall maintain a repair force of technicians so as to resolve any subscriber request for service or to repair any malfunction within the following time frames:

(1) For an outage. Within two hours, including weekends and holidays, after receiving knowledge of such malfunction.

(2) For a subscriber problem. Next business day service and repair, seven days a week, for all complaints and requests for repairs or adjustments. In no event shall the response and repair time for calls received subsequent to 2:00 p.m. exceed 24 hours, including weekends and holidays, from the time of receiving a subscriber's request for service.

(3) For a system problem. Within 24 hours, including weekends and holidays, of receiving a request for service identifying a problem concerning picture or sound quality affecting any two or more subscribers.

(d) Upon receipt of a request for service, a franchisee shall establish a four-hour appointment window with the subscriber or adult representative of the subscriber. A franchisee shall respond to the request for service within such established appointment window.

(1) If access to the subscriber's home is not made available to a franchisee's technician when the technician arrives during the established appointment window, the technician shall leave written notification stating the time of arrival and requesting that the franchisee be contacted again to establish a new appointment window. In such case, the required response time for the request for service shall remain the next business day from the time the franchisee is contacted to establish the new appointment window.

(2) Notwithstanding the foregoing, if a franchisee's technician telephones the subscriber's home during the appointment window and is advised that the technician will not be given access to the subscriber's home during the appointment window, then the technician shall not be obliged to travel to the subscriber's home or to leave the written notification referred to above, and the burden shall again be upon the subscriber, or adult representative of the subscriber, to contact the franchisee to arrange for a new appointment window, in which case the required response time for the request for service shall again be the next business day from the time the franchisee is contacted to establish the new appointment window.

(e) Except as otherwise provided in subsection (d) of this section, a franchisee shall be deemed to have responded to a request for service under the provisions of this section only when a technician arrives at the service location, begins work on the problem, and proceeds diligently to complete such work.

(f) No charge shall be made to the subscriber for any service call unless the problem giving rise to the service request can be demonstrated by a franchisee to have been:

(1) Caused by subscriber negligence,

(2) Caused by malicious destruction of cable equipment, or

(3) A problem previously established as having been noncable in origin.

(g) All service personnel of a franchisee or its contractors or subcontractors who have as part of their normal duties contact with the general public shall wear on their clothing a clearly visible identification card bearing their name and photograph. A franchisee shall account for all identification cards at all times. Every service vehicle of a franchisee shall be clearly identifiable by the public.

4.11.3. FRANCHISEE'S BILLINGS

(a) A franchisee's bills to its subscribers shall be clear, concise and understandable and shall be itemized as to each charge reflected thereon. The billing content in use by a franchisee as of the date of adoption of the ordinance from which this article is derived shall be subject to the approval of the Cablecasting Board. Any modification of the content of a franchisee's bills to subscribers shall also be subject to the Board's approval.

(b) The Board shall not withhold its approval of the content of a franchisee's bills unreasonably. If the Board disapproves of any of a franchisee's bills to subscribers, it shall so notify the franchisee and shall specify the basis for such disapproval. A franchisee shall then modify the bills so as to remedy the defects specified by the board. The modification shall be implemented by a franchisee effective with the first billing after the expiration of 45 days after receipt by the franchisee of the Board's notice of disapproval, unless the Board extends such time.

4.11.4. DISCONNECT AND DOWNGRADE CHARGES

(a) A franchisee shall make no charge to any subscriber on account of complete discontinuance of service. Except as may otherwise be provided by a law which preempts this section, a franchisee shall make no charge to any subscriber on account of a net downgrade of service whereby the subscriber requests a lower tier of basic service and/or a reduction in premium service.

(b) A franchisee may only disconnect a subscriber if at least 45 days have elapsed after the due date for payment of the subscriber's bill and a franchisee has provided at least ten days written notice to the subscriber prior to disconnection, specifying the effective date after which cable services are subject to disconnection; provided, however, notwithstanding the foregoing, a franchisee may disconnect a subscriber at any time if the franchisee in good faith and on reasonable grounds determines that the subscriber has tampered with or abused the franchisee's equipment, or is or may be engaged in the theft of cable services.

(c) A franchisee shall promptly disconnect any subscriber who so requests disconnection. No period of notice prior to requested termination of service may be required of subscribers by a franchisee. No charge may be imposed upon the subscriber for any cable service delivered after the effective date of the disconnect request. If the subscriber fails to specify an effective date for disconnection, the effective date shall be deemed to be the day following the date the disconnect request is received by a franchisee.

4.11.5. LATE PAYMENT CHARGES

Late payment charges imposed by a franchisee upon subscribers shall be fair and shall be reasonably related to a franchisee's cost of administrating delinquent accounts. No late payment charge shall be imposed upon a subscriber, and a subscriber shall not be deemed to be in arrears on a bill, until at least forty-five (45) days have elapsed after the due date specified on the bill; and, for purposes of this section and the prior section, the due date specified on the bill shall not be earlier than the first day of the monthly period to which the bill is attributable.

4.11.6. NOTICE OF PROGRAMMING OR CHANNEL CHANGE

Except as may otherwise be provided by federal law, a franchisee shall provide at least 45 days written notice to subscribers prior to discontinuing any channel or programming service or to realigning any channel and shall provide written notice of the same to the Cablecasting Board no later than the franchisee's notice to subscribers. This provision shall not preclude the right of the Village to contest or prohibit any such action by a franchisee if, and to the extent, such rights exists. The foregoing notice requirement shall not apply in cases in which a programming service is discontinued because a nonaffiliated provider thereof discontinues furnishing the same to a franchisee on less than 45 days notice to a franchisee. In any such case a franchisee shall nevertheless furnish notice to its subscribers and the Cablecasting Board promptly upon a franchisee receiving notice of the discontinuance of the programming service from such unaffiliated provider.

4.11.7. NOTICE OF PRICE INCREASE OR REDUCTION OF SERVICE

Except as may otherwise be provided by federal law, a franchisee shall provide at least 45 days written notice to subscribers prior to implementing any increase in subscriber rates or reduction in subscriber services and shall provide written notice of the same to the Cablecasting Board no later than a franchisee's notice to the subscribers. The provisions of this section shall not preclude the right of the Village to contest or prohibit any such action by a franchisee if, and to the extent, such right exists.

4.11.8. FRANCHISEE'S COMMUNICATIONS

Prior to or simultaneously with any communication made by a franchisee to the general public or to a franchisee's subscribers announcing or explaining any increase in subscriber rates or reduction in programming services, a franchisee shall furnish a copy of such communication to the Cablecasting Board. The copy of the communication required to be furnished to the Board under this section shall be deemed to be a report under Sec. 4.09.8 and hence subject to the provisions of Sec. 4.09.8.

4.11.9. DISCLOSURE OF INFORMATION ON FRANCHISEE'S COSTS

If a franchisee, in any communication to the general public, to the Village, to subscribers, or to the Cablecasting Board, justifies a price increase or reduction in service on the basis of increased costs to which the franchisee has been subjected, a franchisee, on written request of the Board, shall promptly furnish the Board with the underlying information on which such claim of increased costs is based in such form as the Board may request. The information furnished to the Board pursuant to this section shall be deemed to be a report under Sec. 4.09.8 and hence subject to the provisions of Sec. 4.09.8.

4.11.10. SUBSCRIBER REBATES

(a) Upon a violation of the provisions of this article by a franchisee which results in a subscriber not receiving cable programming service or receiving only significantly impaired service, the Board may order and direct a franchisee to issue a rebate to such subscriber in any amount determined by the Board to provide monetary relief to the subscriber substantially equal to the subscriber's unliquidated detriment or loss resulting from such violation.

(b) Except for planned outages where subscribers are provided reasonable notification in advance, upon a subscriber's request a franchisee shall provide not less than a one-day credit for each day in which there is a period of four hours or more during which the subscriber experienced an outage or significant impairment of cable service not attributable to any action or omission of the subscriber or to any defect in the subscriber's equipment. The credit specified in this section shall be equal to 1/30 of the subscriber's total monthly bill for all services and equipment multiplied by the applicable number of days, but excluding any pay-per-view charges; provided, however, if such monthly bill includes any charge for a pay-per-view program subject to such outage or significant impairment, then the credit shall be increased by the amount of such charge.

(c) Nothing in this section shall be deemed to preclude a subscriber from requesting and receiving from a franchisee a rebate greater than that provided in subsections (a) and (b) of this section.

4.11.11. LIQUIDATED DAMAGES

(a) The Cablecasting Board may assess liquidated damages of up to $100.00 per day against a franchisee for each day a franchisee is in violation of this article. Such assessment may be levied against the security fund specified in Sec. 4.09.2.

(b) Assessment of liquidated damages shall not constitute a waiver by the Village of any other right or remedy it may have under the franchise agreement or applicable law, including the right to recover from a franchisee any costs and expenses, including reasonable attorney's fees, which are incurred by the Village on account of a franchisee's violation of this article.

4.11.12. REMEDIES AVAILABLE

If the Cablecasting Board determines that a franchisee has violated this article, the Board may order appropriate rebates to subscribers as provided in section 4.11.10 and/or assess liquidated damages against a franchisee as provided in section 4.11.11. In addition, the Village may pursue any additional or other legal or equitable remedies available to it under the franchise agreement or any applicable law.

4.11.13. APPEAL PROCESS

A franchisee may appeal any action of the Cablecasting Board to the Village by submitting a written appeal within 21 days from the date of the Board's action to which a franchisee objects. Upon such appeal, the Village Council shall conduct a de novo review of the action of the Board being appealed and shall set a hearing date within 45 days of the date of receipt of the appeal. A franchisee may present any information, data or other evidence to the council either prior to or at the time of the hearing. Hearings shall be open to the public and members of the public and members of the Board may also present any evidence or information pertinent to the matter appealed. The Council shall then determine whether to uphold, reverse or modify the action of the Board. The appeal shall stay any further action on the matter appealed until the appeal has been decided by the Council.

4.11.14 et seq. RESERVED.
{Ord. 298, 6-7-00}