Michael J. Watza | Kitch Drutchas Wagner Valitutti & Sherbrook |
1 Woodward Ave # 2400 | Detroit, MI 48226 |
Joseph Van Eaton | Matthew K. Schettenhelm | Miller & Van Eaton P.L.L.C.

1. Michigan Townships Association (MTA)
2. PROTEC
3. State Bar of Michigan Public Corporation Law Section (PCLS)

Amicus counsel argues that the cable franchise between the city of Detroit and Comcast is unenforceable because the Federal Cable Act preempts the State Act as applied by Comcast, and the State Act violates the Michigan Constitution. The State Act is inconsistent with the Cable Act, therefore preventing municipalities from complying with it. First, the State Act makes the city, not the State as Comcast suggests, the franchising authority. Second, the State Act circumvents the Cable Act’s renewal process, which requires a franchising authority to ensure that the franchise renewal meets the ever-changing needs of the community by way of public comment, because the State Act allows those comments to be disregarded. Third, the State Act prevents the City from fulfilling it’s obligation under the Cable Act to assure that redlining does not occur because the State Act allows for redlining if certain “defenses” are satisfied, which then renders the City powerless to stop even intentional redlining. Fourth, the Cable Act authorizes the City to enforce PEG channel requirements, but the State Act denies this to the authority. In regard to the Michigan Constitution, the State Act violates Michigan’s Constitution because, as seen in Article 7, Section 29, it ensures that local governments retain the authority to consent to franchise, not the State legislature. However, as applied by Comcast, the State Act allows the State to franchise and consent decisions by allowing the PSC to create uniform franchise agreements, which leaves local governments the option of approving those agreements, or having their consent compelled upon inaction.

The Court finds that it does not have subject matter jurisdiction to adjudicate the City’s claims that the customer service, anti-discrimination , universal build-out, and safe harbor provisions
of the Michigan Act are preempted by federal law because of lack of standing and ripeness. The Court does have jurisdiction to decide whether the renewal and modification procedures in the Michigan Act are preempted, and whether the Michigan Act can curtail the enforcement of existing PEG requirements in the franchise agreement. The Court finds that although the Michigan Act’s renewal provisions are not preempted by the Cable Act, the provisions that purport to modify existing franchise agreements by operation of law to curtail a municipality’s authority to enforce PEG channel requirements in existing agreements are expressly preempted by the Cable Act. The Court also finds that the Michigan Act does not prevent municipalities from refusing to approve franchise renewal proposals from cable operators as long as the municipality acts on the proposal within the 30-day limit set forth in the Act. The Court determines that the undisputed facts establish
that the City timely rejected Comcast’s renewal proposal by proposing allowable additional conditions, and because Comcast thereafter withdrew from negotiations, no new franchise agreement was established. Because Michigan law will not permit Comcast to be treated as a holdover tenant,
Comcast must be considered a trespasser.
Accordingly, it is ORDERED that the motions for partial summary judgment filed by the plaintiff, defendant Comcast, and intervening defendant State of Michigan [dkt. #41, 59, 63] are GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that Comcast is found to be a trespasser in the public spaces and rights-of-way within the City of Detroit in which it has placed its facilities and equipment.
It is further ORDERED that the parties must file briefs addressing an appropriate remedy for the trespass and failure to renew the franchise agreement for provision of cable services on or before July 31, 2012. Briefs must conform to E.D. Mich LR 7.1(d) and may not may not exceed (10) ten pages.