[HISTORY: Adopted by the Mayor and Council of the Township
of Berlin 10-27-2003 by Ord. No. 2003-17 (Ch. A161 of the 1976 Code). Amendments
noted where applicable.]
[Amended 12-22-2003 by Ord. No. 2003-20]
The Township of Berlin hereby grants to Comcast Garden State,
LP, renewal of its nonexclusive municipal consent to place in, upon,
across, above, over and under highways, streets, alleys, sidewalks,
easements, public ways and public places in the municipality, poles,
wires, cables, underground conduits, manholes and other television
conductors, fixtures, apparatus and equipment as may be necessary
for the construction, operation and maintenance in the municipality
of the cable television and communications systems.
For the purpose of this ordinance, the following terms, phrases,
words and their derivations shall have the meanings given herein.
Such meanings or definitions of terms is supplemental to those definitions
of the Federal Communications Commission (FCC) rules and regulations,
47 CFR 76.1 et seq., and the Cable Communications Policy Act, 47 U.S.C.
§ 521 et seq., as amended, and the Cable Television Act,
N.J.S.A. 48:5A-1 et seq., and shall in no way be construed to broaden,
alter or conflict with the federal and state definitions.
APPLICATION
The company's application for renewal of municipal consent.
BASIC CABLE SERVICE
Any service tier which includes the retransmission of local
television broadcast signals as defined by the FCC.
BOARD or BPU
The Board of Public Utilities, State of New Jersey, or its
successors in interest.
COMPANY
The grantee of right under this ordinance and is known as
Comcast Garden State, LP.
[Amended 12-22-2003 by Ord. No. 2003-20]
FCC
The Federal Communications Commission.
OFFICE or OCTV
The Office of Cable Television of the Board, or its successors
in interest.
A public hearing conducted by the municipality concerning the
renewal of municipal consent herein granted to the company was held
after proper public notice pursuant to the terms and conditions of
the Act and the regulations of the Board adopted pursuant thereto.
Said hearing, having been fully open to the public, and the municipality,
having received at said public hearing all comments regarding the
qualifications of the company to receive this renewal of municipal
consent, the municipality hereby finds that the company possesses
the necessary legal, technical, character, financial and other qualifications
and that the company's operating and construction arrangements
are adequate and feasible.
A. The nonexclusive municipal consent granted herein shall expire 15
years from the date of expiration of the previous certificate of approval
issued by the Board (with a ten-year automatic renewal provided by
N.J.S.A. 48:5A-19 and 48:5A-25 and N.J.A.C. 14:18-13.6).
B. In the event that the municipality shall find that the company has
not substantially complied with the material terms and conditions
of this ordinance, the municipality shall have the right to petition
the OCTV, pursuant to N.J.S.A. 48:5A-47, for the appropriate action,
including modification and/or termination of the certificate of approval;
provided, however, that the municipality shall first have given the
company written notice of all alleged instances of noncompliance and
an opportunity to cure same within 90 days of that notification.
Pursuant to the terms and conditions of the Act, the company
shall, during each year of operation under the consent granted herein,
pay to the municipality 2% of the gross revenues from all recurring
charges in the nature of subscription fees paid by subscribers for
cable television reception service in the municipality or any higher
amount permitted by the Act or otherwise allowable by law, whichever
is greater.
The consent granted under this ordinance to the renewal of the
franchise shall apply to the entirety of the municipality and any
property subsequently annexed hereto.
The company shall be required to proffer service to any residence
or business along any public right-of-way in the primary service area,
as set forth in the company's application. Any extension of plant
beyond the primary service area shall be governed by the company's
line extension policy, as set forth in the company's application.
A. Restoration. In the event that the company or its agents shall disturb
any pavement, street surfaces, sidewalks, driveways, or other surface
in the natural topography, the company shall, at its sole expense,
restore and replace such places or things so disturbed in as good
a condition as existed prior to the commencement of said work.
B. Relocation. If at any time during the period of this consent, the
municipality shall alter or change the grade of any street, alley
or other way or place, the company, upon reasonable notice by the
municipality, shall remove, re-lay or relocate its equipment, at the
expense of the company.
C. Temporary removal of cables. The company shall temporarily move or
remove appropriate parts of its facilities to allow for the moving
of buildings and machinery, or in other similar circumstances. If
such a request is made to the company by or on behalf of someone other
than the Township, the person requesting such action shall bear the
cost of any action by the company to satisfy the request.
D. Removal or trimming of trees. During the exercise of its rights and
privileges under this franchise, the company shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks or other
public places of the municipality so as to prevent the branches of
such trees from coming in contact with the wires and cable of the
company. Such trimming shall be only to the extent necessary to maintain
proper clearance of the company's wire and cables.
A. In providing services to its customers, the company shall comply
with N.J.A.C. 14:18-1 et seq. and all applicable state and federal
statutes and regulations. The company shall strive to meet or exceed
all voluntary company and industry standards in the delivery of customer
service and shall be prepared to report on that service to the municipality
upon written request of the Municipal Administrator or Clerk.
B. The company shall continue to comply fully with all applicable state
and federal statutes and regulations regarding credit for outages
and the reporting of same to customers.
C. The company shall continue to fully comply with the applicable state
and federal statutes and regulations regarding the availability or
devices for the hearing impaired and the notification of same to customers.
D. The company shall use every reasonable effort to meet or exceed voluntary
standards for telephone accessibility developed by the National Cable
Television Association (NCTA).
E. Nothing herein shall impair the right of any subscriber or the municipality
to express any comment with respect to the telephone accessibility
to the Compliant Officer or impair the right of the Compliant Officer
to take any action that is permitted under the law.
The Office of Cable Television is hereby designed as the complaint
officer for the municipality pursuant to N.J.S.A. 48-5A-26b. All complaints
shall be processed in accordance with N.J.A.C. 14:17-6.5. The municipality
shall have the right to request copies of records and reports pertaining
to complaints by municipality customers from the OCTV.
During the term of this franchise, and any renewal thereof,
the company shall maintain a business office or agent in accordance
with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating
and resolving all local complaints regarding the quality of service,
equipment malfunctions, and similar matters. Such a business office
shall have a publicly listed toll-free telephone number and be opened
during standard business hours, and in no event (excepting emergent
circumstances) less than 9:00 a.m. to 5:00 p.m. Monday through Friday.
During the life of the franchise, the company shall give to
the municipality a bond in the amount of $25,000. Such bond shall
be to insure the faithful performance of all undertakings of the company
as represented in its application for municipal consent incorporated
herein.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
A. The company shall provide total preferred cable television service
on one outlet at no cost to each school in the municipality, public,
elementary, intermediate and secondary, provided the school is within
200 feet of an active cable distribution plant. Each additional outlet
installed, if any, shall be paid for on a materials-plus-labor basis
by the school requesting service. Monthly service charges shall be
waived on all initial and additional outlets.
B. The company shall provide total preferred cable television service
at no cost on one outlet to each police, fire, emergency management
facility and public library in the municipality, provided the facility
is located with 200 feet of an active cable distribution plant. The
company shall also provide, at no cost, a nonstandard installation
for total preferred cable television service to the Township's
Public Works Building located at 200 Edgewood Avenue. Each additional
outlet installed, if any, shall be paid for on a materials-plus-labor
basis by the municipality. Monthly service charges shall be waived
on all initial and additional outlets.
C. The company shall provide free basic Internet service, via high-speed
cable modem, to one non-networked personal computer in each qualified
existing and future school in the municipality, public and private,
elementary, intermediate and secondary, at no charge, provided the
facility is located within 200 feet of an active cable distribution
plant. The Internet service shall be installed on a personal computer
that is accessible to the students and not for administration use
only.
D. The company shall provide free basic Internet access via high-speed
cable modem on one non-networked personal computer in each qualified
existing and future public library at no charge, provided the facility
is located within 200 feet of an active cable distribution plant.
The Internet service shall be installed on a personal computer that
is accessible to library patrons and not for administration use only.
E. Within six months of the adoption of this municipal consent ordinance,
the company shall provide the municipality with a one-time technology
grant in the amount of $5,000 for any purpose the municipality deems
appropriate.
In the event that the municipality determines that it is necessary
and feasible for it to contract with the company for the purpose of
providing two-way or interconnection services, the company shall be
required to apply to the BPU for approval to enter into and establish
the terms and conditions of such contract. All costs for such application
to the BPU shall be borne by the municipality.
A. The company will comply with the Emergency Alert System (EAS) rules
in accordance with applicable state and federal statutes and regulations.
The Company shall in no way be held liable for any injury suffered
by the municipality or any other person, during an emergency, if for
any reason the municipality is unable to make full use of the cable
television system as contemplated herein.
A. The company shall at all times maintain a comprehensive general liability
insurance policy with a single limit amount of $1,000,000 covering
liability for any death, personal injury, property damages or other
liability arising out of its construction and operation of the cable
television system, and an excess liability (or "umbrella") policy
in the amount of $5,000,000.
B. All of the commitments and statements contained in the application
and any amendment thereto submitted in writing to the municipality
by the company, except as modification herein, are binding upon the
company as terms and conditions of this municipal consent. The application
and any other relevant writing submitted by the company shall be annexed
hereto and made a part hereof by reference as long as it does not
conflict with state or federal law. All ordinances or parts hereof
by reference as long as it does not conflict with the provisions of
this agreement are hereby declared invalid and superseded.
Should the Township of Berlin grant a franchise to construct,
operate and maintain a cable television system to any other person,
corporation, or entity on terms materially less burdensome or more
favorable than the terms contained herein, the company may substitute
such language that is more favorable or less burdensome for the comparable
provision of this ordinance subject to the provisions of N.J.A.C.
14:17-6.7.
If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held invalid or unconstitutional
by any court or federal or state agency of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent
provision, and its validity or unconstitutionality shall not affect
the validity of the remaining portions of this ordinance.
Nothing in this franchise or in any prior agreement is or was
intended to confer third-party beneficiary status on any member of
the public to enforce the terms of such agreements or franchise.
This ordinance shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.