one three days two zero zero four one three das two zero zero five and one three das two zero zero six city of detroit versus comcast of detroit at all or are give it fifteen minutes for the plaintiffs fifteen minutes for the interven we only need to get if we don't affirm the the judgment below i mean i don't really see across appeal here i mean if you're title to complete relief if you're firm you don't even have to cross appeal anyway but anyway i want to let you know that we comcast i reserved ten minutes of my thirty minutes for rebuttal with the courts that were mission in the statute as you in this case the michigan legislature sought to improve the fairness and efficiency of the cable franchise process just as congress and the c envisioned the states would do comcast pursued a new you know form franchise under that statute and undisputedly complied with all statutory requirements the detroit city council quote approved the uniform franchise for comcast in an official binding resolution and the city subsequently sought to enforce that franchise at the state pearcey as quote approved and fully effective under the act that's if that's not quite  correct i'm sorry you submitted to the city the uniform franchise for that's required by the michigan statute but that form has a blank as to the fee for  city agreed with the standard contract however they inserted two percent into that blank where you had zero so that they require two percent you you want zero percent your interpretation of the michigan statute is that because you submitted the form i guess first that the city has to accept zero for fee as opposed to percent and therefore you have a contract for zero p about your honor it's actually up to two percent no your honor that what the statute says is that if there is an existing franchise on the effective date of this act then it's the franchise fee that applied in that incumbent providers prior existing franchise and in this particular case that was zero the detroit city council tried to get around that statutory language by saying well it's actually the date that had the city council take action march sixteenth and we look and there is no incumbent providers franchise on this date because comcast originally franchise had expired on february twenty eighth but this dispute  at the point is that the state law is that this is not a question that's really before this court the question that's before this court is whether comcast has a franchise and by operation of the michigan act we do because the plain language of that statute and the michigan rule is that statutes must be taken as written is that a uniform franchise agreement if it's complete when it submitted not complete is approved zero they do not agree with zero there is no medium of the mines traditionally under contract principles and you're talking a lot of money i think about two million dollars a year or something like this and so it is in material terms in the contract that is not agreed to by both parties so i it's hard for me to say how you have a contract and the only way you get there is to say the michigan legislature requires the franchise or to accept whatever fee zero to two percent the cable company is willing to pay and it's hard to believe the michigan legislature would grant that sort of discretion to the cable company or just whatever they want to pay for a fee they have to accept it that's their fault it's hard to believe that's the third thought would you ok i'm sorry sorry you guys got it but i want her answer your question because that's what i want to know so two points if i might common law contract principles are irrelevant in this dispute the city spends pages and pages on that in their brief the michigan legislature had every right to decide the franchise in its state should be uniform and should be easy to get that was the point of this competitive reform isn't the standard form have a blank as to the p g b it does it doesn't that show that that is subject to negotiation between the parties and when the legislature says that they shall of approve it within thirty days if they don't act it's deemed approved doesn't presuppose that there is an agreement between the two parties as to what to put in that blank as to the p no your honor because the third blank did not apply here the negotiation that the city can engage in only applies when there is no existing franchise on the date of this act and that is it as there was was deferred that there was this was a new contract and if it's new that hundred five franchise agreement that agreement provided zero pegs the payment to the city the point of the michigan act if i could just step back expired at not know your honor and what not still in effect on january one two thousand and seven the date the michigan expired on february twenty eighth we submitted our form on february twenty seventh what the statute says is that if there is an existing franchise agreement on the effective date of the stock which was january one we looked to see what the peg fee was in that existing contract and that's what applies to everybody going forward which makes sense your honor because what section five of the michigan act did was to hit a reset button and to say these are going to be the terms for franchises state wide and we don't want anybody to have a higher burden than anybody else as a video service provider because that can create competitive disadvantage is so the x said if there is an existing peg fee that will be it for everybody going forward you're saying that you said that there law carried over to the new uniform franchise but this is a dispute that the michigan act provides for if there is a dispute between the video service provider and the city over any term of the contract that's to be resolved at the c and that's what should have happened right here i didn't you raise that issue in your peel you're the appellant i don't see if there were two exhaustive ministry of revenue issue in this case and if there is i'd like to know about it that's a state law question that we didn't bring to the school we were city had had done but this court the big i think we're getting sidetracked by the question that should have been litigated at the p v c which we were happy to do after the city dropped that proceeding they then tried to turn around and take down the entire michigan act and there's nothing about the act getting back to the actual federal questions that is preempted by federal law michigan's pro competitive reform they now say that the michigan act is consistent with federal law that the district court got it right as an interpretive michigan law allows them at least in these circumstances i think to reject where that there is a dispute as to the peg i know that some of this argument is broader that they might have rights to reject other situations but the fact we have right now is when the dispute is over the peg does the city have to accept whatever peg fee the cable operator is willing to pay out of the goodness of their hearts or can they reject what the cable company is willing out of the goodness of their hearts to pay as a pig fee and they say the michigan law has to be read as to allowing rejection under these circumstances and to do so it's consistent with federal law there's no preemption it makes the case a lot easier what's wrong with that argument wrong with that argument is your honor that we have to construe the michigan act under michigan rules of construction dispute about a reasonable construct who's there if you know what the statute says is that you know form franchises unless they're incomplete shall be deemed a proof of the problem with the district courts and construction and the reason why that is wrong here on our is that the district court inserted the words approve or reject into the michigan act or it just rewrote it completely to say well as long as the city takes action submitted a complete form and what the act does is it says by thirty days the words how could you possibly be happy your honor that statute says that the agreements are deemed approved thirty days afterwards if the city has an affirmatively approved it within that time period the city has thirty days to discuss this with us to put the matter out for public comment but what the city can't do and this is what the michigan legislative history shows is to try to extract more concessions from applicants the city has a section thirteen process i think this goes to some of your concerns the statute in section thirteen says that cable providers  cities can com to negotiated agreements if that is truly voluntary on the part of the cable operator the city could have initiated that proceeding with us and they never did so but where we're proceeding under section three the whole point of what the michigan legislature wanted to do in this is not absurd is to say that the local franchise process has gotten cumbersome in michigan it has become a barrier to entry it is hurting competition it is hurting the willingness of providers to come to michigan and provide services in this state the legislative history says we the michigan legislature have decided that franchises should be easy to obtain within a short period of time that statute has worked pretty well there are fifteen hundred uniform franchises in michigan now and a contrary ruling here accepting the district court's interpretation of the statute which is completely a textual would throw all of those franchises into doubt and michigan is not the the michigan act would require that the standard franchise act four be used would it not yes that's ok and that's standard ok to say assuming just for sake of argument that this is a new franchise and that standard form has a boy as to the what is your interpretation of how that works that the cable company fills in the blank as to the peg the the city has to accept it or what there's a go sheesh and how i would how would that work in your scenario we'll do it the way filled in out of the harbor again type there's never been a franchise in that city for cable service the city would use the third blank and do a community needs assessment and determine on its own what the pegs the should be ok so they would make a demand of you know up to two percent does the cable company have to accept up to two percent based on a community needs assessment that would apply but that's ok so that that's approved then whatever the consequences for whether or not you know what the peg fee will be going forward and no matter when we were submitted whether was the day before the day after there was a franchise for video services in detroit that comcast held on january one two thousand and seven and again the reason that makes sense is because what the statute did is it hit a reset button on franchises in michigan and it tried to true them all up to a uniform standard so there wouldn't be competitive disadvantage among video service providers so if you look at section five of the act it has these provisions in there that explain that if you have an old franchise you can't renew it if an old franchises has terms that are contrary to the new uniform terms those are unreasonable and on enforceable it has a lot of mechanisms to get everybody to a competitive level playing field and it used the date of the act and the city has never said that comcast didn't have a franchise on january one two thousand and seven so i don't think we should get confused about this nobody has ever said there was an x stand cable franchise agreement on the effective date of this act which was january one two thousand and seven there are no and problems and that's how we got here in the first place your honor on our air lock a tory appeal i'd like to just address the city's suggestion that federal law the cable act somehow stands in the way of the state's ability to exercise its policy judgment in this way the cable act was meant to promote competition and to remove burdensome franchising processes your opinion and community alliance for community media explained that well the provisions that the city claims are preemptive of the michigan act are entirely permissive the renewal provision of the federal act uses the word may the modification provision of the federal act uses the word may congress never intended to disrupt the relationship between states in their political subdivisions and it never meant to stop the states from doing an even better job in removing barriers to entry in the local franchising process that's what michigan did comcast happens to believe that that's good policy but it doesn't matter whether it's good policy or not what the state did was totally consistent with federal goals the f c c has even pointed to michigan statute as a great example of a state providing more certainty and more uniformity in its franchise terms to help spur new entry so to say that somehow congress in the federal cable act tied the hands of the states to do a better job in within their traffic authority of correct but perspective it's not and for two reasons your honor the federal cable act defines a franchising energy as whatever entity is empowered under federal state or local law to grant the franchise so that definitional provision of the cable act explicitly leaves it up to whoever the state authority is to be giving out that job in a particular state here in michigan and this is the second part of my answer cases likes city of which is michigan and for president make clear that ultimately this is the state's power the state has delegated franchising power to municipalities in section twenty nine but it comes back and i'm sure the a g will address is it's ultimately an exercise of the s power of the state so nothing in the cable act fixes municipalities as the franchising entity it leaves it up for a state to distribute its power in that way as it sees fit and michigan law also supports that one last issue on the preemption question the supreme court's decision and nixon makes clear that to the extent there's any concern here about federal preemption it's the federal law that has to be interpreted narrowly so that federal courts don't interfere with the state's allocation good morning good morning your honor thank you  first who are you well i apologize i david fink appearing on behalf of the city of detroit and with me at counsel table is isaac stern from my office is the attorney general or eternal general is here you're the up ellie that sometimes you know the appellate often will withdraw issues on appeal and clarify position but i'm i'm pleased at the i p l he can do it as well like well we think your honor is we explained in the supplemental brief when the new administration came in in the city of detroit they reviewed the case closely and realized that aside from the fact that the in some respects our position was a little in comprehensible more importantly  we wanted to be clear what we really wanted to do in judge lawson the closer we get into this case and i'm relatively new to it but the closer we get into this case the clearer it is that the judge lawson really got his arms around it really understood what was indicated just judge griffin is into they did that in some respects the black letter law is is so something in the first day of contracts everybody learns that and unaccepted counteroffer is a rejection and despite the fact that throughout their brief they talk about approval approval approval by the city of detroit as the and i won't waste time on that the court has noted there is no such a printer counter offer that it's a material term because it's a lot of money to put it that's correct i was that it was in the previous contract in the previous contract there was a pig fee but it was paid it was not paid to the city to try to was paid it was to be paid to the something called the public benefit corporation i think was the name of it and i apologize i should have the correct name for the court but it was it although it wasn't paid directly to the city as an entity it was paid to to to another entity and of course they agreed to continue that under this no no they did not they really want to have their cake and eat it at the same time that ok i mean if their argument is that whatever peg fee was in the prior agreement is that the existing agreements you're saying that that's that wasn't included in their standard for  records not clear on it i've been told that it was his height it could be as high as three percent but it wouldn't be allowed to not under the not in the new new act but what's really important in this process is conscious wants to accept part but not all of with how the statute works the statute directs the commission by the way there were several references to i think she said p e c the i some she was referring to the public service commission and the statute requires the public service commission to create the form and they did in the form that was created by the public service commission had these blanks in it but very significantly and this is a footnote five of our brief we reference an administrative case at the public service commission and in that case the michigan public service commission said that pig in franchise fee blanks are the responsibility of the franchising entity to complete comcast wasn't supposed to fill in that part of the the franchise form at all they were to submit the form to the city and the city was to determine what to fill in there ok so they weren't supposed to fill it and the city was comcast rejected that so you so you had what what violates what constitutes really a rejection of a contract terms that all happen but your didn't bring things going on at the public utility commission or you have no idea but i do know that there was one thing initially the a matter was brought to the public service commission by this by the city to try to enforce the corrected if you will franchise agreement to try to enforce the two percent paid fees that penn did at the public service commission for a while and ultimately was dismissed by the public service commission on a procedural basis so after that dismissal the case was brought in federal court so i guess they did have an answer i just couldn't recall at them at the moment the judge down and you with us to post a very good question when you asked who the  franchising entity is and i have to say we certainly disagree with with comcast on this the cable act does say in its definition is that a franchise an entity means the local unit of government in which  provider offers video services through a franchise and then of course this the state constitution i'm not going to spend a lot of time on that but the state constitution is quite clear that the local unit of government has franchise authority we can argue about how much authority that is but we can't argue that there's no authority at all and that's the position that they're trying to take that this franchising entity is strictly a and administer has an in ministerial minister a function excuse me in i actually want to take a moment to talk about something we don't have we don't discuss in our brief it was when we're really looking closely at this statute that the absurdity of the position the comcast takes becomes more clear and that's that getting back to michigan construction is walker is it right is she not that the michigan supreme court has actually hell that and that statutes in michigan can be interpreted to come to an absurd result if that's what the plain language dictates i mean that's contrary to federal statutory construction but the michigan supreme court as has so eloquently of evena yes but they start with the principle that you try to determine the actual intent you don't just later that's the primary goal of statutory construction and to do so you look at the plain language but federal the federal system if the plain language then leads to an absurd result that  rejected but in michigan if it leads to absurd result if that's consistent that the legislature intended the absurd result hold to right i have seen it's rather absurd to but that's the way i've seen  orders fortunately that's not the only principle statutory right structure that we have in among other things we look to see if it's if it can be interpreted in a way that doesn't violate the state constitution which here becomes relevant but there's another issue here which which which in terms of these detrick instructions we look at the language there's no dispute that the city has fifteen days to determine whether the application is complete they've got fifteen day fifteen business days to terminate the application is complete but the city has thirty days to approve so the question is what is the city supposed to be doing between the end of the fifteen business days and the end of the thirty days according to contest nothing at all because they would interpret that the statute says all the city can do is approve they can either approve or do nothing in which case approval applies it's made it is ministerial but again until you answer that they're there to make sure that the form is complete but for the form to be completed needs the blanks to be filled and the blanks have to be great but don't pay part of the that's what they do isn't it but the application the application in the blanks the application have to be note they get to go first they get to apply and they would suggest once they've applied that must be accepted and again i ask what happens between the fifteen days for reviewing the application and the thirty days there's absolutely nothing for the city to do based on their theory there's absolutely nothing between the fifteen days in the thirty days because we can't reject we must accept if it's administratively complete it so the statute must must mean that something other than approval can occur during that second fifteen days and i would argue that the only logical thing is the only logic in the statute but this isn't the only michigan statute that has a provision that if something doesn't happen in a certain time period it's deemed to prove this a few of these an environmental law where you have the agency has a certain amount of time to it to act and if they don't act in that time there's an automatic approval but during the interim period a rejection can occur and that's the point here and i you know here's it's interesting when you get right down to it comcast really does stand alone in this argument that they can ignore the two percent pick the we can have no agreement on the two percent pick fee and they can just go about their business with the contract that they want obviously we don't agree the attorney general has indicated in his in his brief that he doesn't agree but what actually most in of course are the amicus from the michigan it's believed michigan conscious association in the state bar state bar public sector  corporation section all agree with our view but what's most interesting is if you look at their two amicus parties one the cable association sidesteps the issue never talks about the two percent eighty and t in their meekest brief explicitly says that part of the grand compromise that leads to this statute includes two things that this that the local community can oppose impose a five percent franchise fee and a two percent there's no place in the eighteen t brief that suggests that there isn't that there shouldn't be a two percent peg fee here i think the court has caught the base of the questions that we've heard to the real issue here it's about the two percent peggy and we can't make any sense of their position and yes we have other issues that still have to be litigated below regarding the older contract regarding the have to hold over and yes it's absolutely true that they're trying to have it both ways they're trying to say they had an existing contract and therefore they get the benefit of having the existing contract but this isn't a renewal they are applying for a brand new one and the absolute the absolute last minute and then they claim that they have this entitle me mr fink this is in michigan law whether the cable company is deemed a trespasser as opposed to hold over kind of i mean are there remedies are the damages different under michigan law does th or have any significance that there could be some significance and but i do have to say this i don't think it's briefed extensively i d c did see it was briefed if we were going to do a more extensive supplemental brief which we didn't think was appropriate we might have gone to that issue a little bit because in the end the remedy phase is going to sort that out there is a distinction and here's the distinction if we have the luxury of a choice that we can call them a holdover tenant or a trespasser then we can go to the hold over this in the old contract and say well they had a lot of obligation to provide certain peg services they had agreed previously to do certain things community services and other things like that and arguably we might be able to get something you can't trespass but the truth is the damages that apply in trespass are so significant in that it is it seems to me relatively insignificant whether we have the option or not to go with holdover tendency i think the important thing is the ultimate remedy is this should be pretty much the same they're operating a business in our city without our permission despite the many many many times during the very first very beginning of the brief they say we all agree that there lawfully there no we don't they would be turn of the last century and there's fascinating questions about when they can be compelled to tear up the rails and and not compelled to tear up the rails because it's not equitable so there are very interesting equitable issues and and in fashioning a remedy is is not a simple in this case but of course for the city of detroit it's no secret that our primary interest right now is is recovering whatever financial benefit the city's entitle to so that the city can can can provide the services it needs for its citizens not just unsuccessful there been any efforts to mediate this dispute in our court not not that i'm aware of but to be fair my appearance was just in the last two months so i don't know if there was going to be in view of the city to never suggest for any client that we wouldn't want to work with the mediation office but to be more specific in this case it doesn't make a lot of sense for this to drag out in litigation if there's a way to resolve and i agree completely think thank you for that let's hear from the state of michigan or from mr shooty anyway  sattler appearing on behalf of the machine attorney general machine attorney general has a slightly different take on whether or not there was a contract in this case or franchise the contessa's claiming that delegate authority that's that's critical your honor we agree with contests which is why i was sitting with contests that the state is the ultimate franchising authority and i'll return to that but just it's zero and it's two percent i mean what do you read it as a fiction or so yes because that's how it should work and it wasn't comcast role to place a paper in the uniform proposal and you say when the city except the agreement what how what is it about the fact that constitute and accept him about the city of if they were thought the city i'm sorry the city didn't accept the zero percent the city accepted it with a two percent and the city passed a resolution accepting michigan act says you shall use this standardize franchise for what it has blanks and doesn't presuppose that the parties have agreed to the blanks as opposed to the franchise or has to accept whatever figure the franchisee puts in the blanks what the mission public service commission has said and its role to end to establish a uniform proposal has said sorry i thought you i thought you were sitting with comcast and with them on that well we were in intervene or in the case and we have interest on both sides but i apologize your honor but you agree with the city that comcast is stuck with the city's two percent why wouldn't use the term stuck because contest has some options they have options to dispute the peggy that the city included remedies that bars the city's claim here is that what you're saying is that your position today because i don't think it's in your brief it's not in my brief we decided instead to take the standing approach and and argue that the sea like standing but there's certainly is  an industry of remedy question we just need a question i'd if it's not before me it's not a question we rule out i mean the statement of issues on in the case are stated in the briefs particularly by the appellant and we don't we just don't deal with issues that are floating around that haven't been argued that have been brief so i don't see it in the middest failure to exhaust administrative remedies issue here you throwing it in here at the last minute i don't think is helpful at all and i wasn't raising the issue as i would like you were well i was simply pointing out that the city has an administrative remedy if this court finds that that there  passage of the machine act and to determine who's the franchising authority it's necessary to look at the cable act first and the cable act as comcast said provides that either the state sovereign franchising authority you can look at the city of najaf case in which it said that the grant of a franchise is an exercise of sovereign power vested in legislature and all can delegate authority to municipalities exercise that authority as the states agents and separate conditions imposed by law and the state can't divest itself of this franchising authority is part of state's police power and it can't be surrendered and this provides context for us as we look at the mission constitution in the machine act in the mission constitution for example public utilities are prohibited from conducting business in municipalities without first obtaining a franchise but ordinances related to me concerns but those ordinances must be subject to the constitution and state law and that's what the machine act is in this case it's delegating responsibilities to local franchising entities and opposing conditions on the exercise of that authority and the state act is really intended to the michigan act provides procedures that we've talked about and and provides that there were under those procedures that in this case there was a franchise agreement as i detroit is what would be in effect yes that's correct but again the campus has the ability to challenge what's wrong with comcare your argument that they didn't do it right there stuck with the no pe there's nothing wrong with contests argument per se but it's just that it shouldn't be raised in this particular venue it should be raised in front of the mission public service commission it's a burden that we really don't need shouldn't have been addressing at all because the city didn't have standing to challenge it the city claims that it was harmed by the modification provision because it modified provisions in the old french agreement and that the city stopped providing services as a result but if you look at the cities affidavits any harm that it allegedly incurred was the result of the francesa going to expire and not the result of any modified provision because there's only a two month period in which the old agreement was in effect the michigan act was adopted in january of two thousand and seven hours and it became effective than and then the the franchise in the city would have been deprived of those fees whether or not the machine acted been passed or not because it's franchise expired and whether or not the machine act was enacted there is no reason to believe that it wouldn't have expired and so it would be private those fees regardless of whether or not the machine act was an act most moving on to the substance of the modification provision it's not granted because the cable acts procedures are only triggered if a cable provider requests a modification not in instances like this where the state has modified the agreement then this is consistent with congress intent in passing the cable act because as i've stated in the whole support it wasn't intended to interfere with the relationships that states have with their political hundred five contract because for i haven't done the math but for over twenty years twenty two years that they didn't negotiate a new contract they were trying to and they kept extending the contract if the contract it is there's no reason to believe that and february twenty eighth that that was the the one contract they wouldn't extend of course that would have extended it if the city doesn't have standing it because they said  clearly the city has an injury and in this city has been arguing even during those two months that the contract wasn't in forced and because the city makes an arguer they can say it's only two months but standing is standing its injury in fact the city had an injury in fact and during those two months they were precluded by the michigan act so i don't see any question i agree with judge judge the implications of judge donald's questions it doesn't seem to me that it's a close question that all this city clearly has standing up with the attorney general who again it should have standing yes comcast does have standing to object to that the level of the peg fee if you accept the attorney general's argument the two percent applies by the way we do so but in terms of these other issues of the way that we were affected by the michigan act or they have been refusing to under the old it that that's right exactly and we and we claim they should they can say we were wrong they can say and they also have been providing various facilities they have provided some links between the nine that the network among the government buildings that's our position anyway and how we can be precluded by this michigan act from bringing those and then say we don't have standing to object to the michigan complaint it was a dispute seven years ago and at the state p u c but the city then changed its mind and said hey let's go to federal court and challenge the entire act so their complaint doesn't seek payment of the peg the what we're here to ask you to do with all respect is to reverse the district court's ruling that cable that comcast has no franchise at all and is trespassing it sounds like the city now agrees that we have some kind of a uniform franchise and we think the record supports that and you know if it includes a two percent peggy we are happy to go to mediation to talk about that your honor we're happy to work that out at the state p u c but the lawsuit that was brought in federal court was to take down the entire michigan act as somehow violative of federal law or state law and we think that's wrong so you're absolutely right you guys have identified a dispute between us and the city about the possibility of the reversing the district court's holding that comcast has no franchise it all is whether there was a uniform franchise by operation of the michigan act and we think that that at the very least is established on this summary judgment record we don't lack any franchise at all which is kind of where the district court with all respect went completely off the rails and found us to be a trespasser in a sewer sponte rule it sounds like the city of detroit would be happy to have you as the cable operator if you paid the two percent paid for you you're telling me you would least be so be willing to mediate that issue of the we have nobody ever said there was no franchise at all and certainly nobody ever said there was no uniform franchise regardless of what has been fed in the past so you can deal with both issues within the mediation environment and right and and mediation i mean you know the case is going to be submitted to us and what happens is if we submit something to mediation we put a deadline on it and if it's not settled within a deadline we'll will issue a decision ok you can have the rest of your rebuttal time but i do want you to argue the issues because if the thing is not settled we are we're going to decide that the panel has decided that we will refer this case to the mediation office of the of the circuit court  with the sixty day window that the parties will be the granite sixty days from today to settle the case or mediation if we are not advised by the mediation office within sixty days the case will the normal course if it has been submitted so the sixty days as is what we'll do in that will you'll be both contacted by the mediation office but why don't you go ahead and argue the rest understood thank you your honor even as to mediation though there's an important point for comcast if we're able to settle the case we still need perverse all or vacate or of the district court's ruling that comcast possesses no lawful franchise at all and is a major difference between that and a holdover tenancy remedy your honor the city on its in its remedial papers below asked for the discouragement of all profits that comcast had earned since two thousand and seven and asked for the court's assistance in the removal of all of cop casts equipment from the city that is obviously quite radical of a remedy to even ask for and that's what the city thought was made available under united railway pursuant to the trespass ruling and one important thing again as the case was litigated it has kind of grown into something larger the city never said that comcast was a  trespasser the city itself said we were in a hold over tenancy because we were still operating pursuant to the one thousand nine hundred five franchise the controversy before the district court was which franchise applied it was never asserted by any party that compacts had no franchise at all and somehow the district court wound up at that result we have explained in our briefs why we think we had some kind of a franchise we had a franchise by operation of law under the michigan act which with all respect is not about counteroffers and negotiation when a cable operator pursues the uniform franchise for him that's what the michigan legislature was frankly trying to put an end to was bargaining in the local things i think you're sort of inviting bargaining well of the major that you food the machine was trying to get rid of so briefly if i might this is answered by the miss to judge graham's question section sixty eight says in addition to the fee required under subsection one which is the franchise fee a video service provider shall pay a peg fee and if there is an existing franchise on the effective date of this act january one two thousand and seven the fee paid by that to the franchising entity shall be x and then at the expiration of that franchise agreement you can have another amount but if there is no existing franchise agreement the percentage of gross revenues to be paid by prior mr fink was right it is zero because it wasn't paid to the city was paid to a public commission that had been established and which no longer exists ok so there that part of the statute that you would pay the prior is like a nonstarter because it's a possibility and therefore it simply doesn't apply because it cannot be here well you know it's just that the plain language of the act means that and that's what you want to force what would would you not be required to at least pay that amount i mean that was like us assume that there was a public entity that was a surrogate for the city that was doing the public service functions that the city wants wants done i guess but by not agreeing to pay that money really haven't agreed to comply with prior we just have a different view than the city about what the plain language of the act where you're saying because our energy doesn't exist i don't have to pay anything for what while under the prior says the fee paid to the franchising t is what shall be the new fee but again this court need not decide that and it's not really and it's not really in dispute here the point is we have a uniform franchise it may include a two percent fee at the city's right about state law it may not if we're right but we have a uniform franchise we are not trespassers in the city of detroit and that radical ruling at the very least needs to be reversed we also are operating at a bare minimum under the  franchise agreement why because the michigan act has a provision in section five that says if you are an income or provider you can continue to operate until under your former agreement until a new uniform one takes effect so no matter what you think about the existence of a uniform franchise and it sounds respectfully like you think there was one under the operation of the act and perhaps it included a two percent fee perhaps it didn't but even if that were not the case we could continue to operate by operation of the michigan act under the one thousand nine hundred five franchise comcast has been in the city doing by the city's account a great a great job and to say that for the last seven years we've actually had no franchise at all when the city has explicitly approved our franchise in official documents taken franchise fees quote pursuant to the uniform franchise agreement in its own letters and issued proclamations like comcast cares day we think