[HISTORY: Adopted by the Mayor and Council
of the Borough of Sea Bright 3-15-2022 by Ord. No. 02-2022[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. A215,
Cable Television Franchise, adopted 12-2-2008 by Ord. No. 9-2008.
The Borough hereby grants to Comcast renewal of its non-exclusive
Municipal Consent to place in, upon, across, above, over and under
highways, streets alleys, sidewalks, easements, public ways and public
places in the Borough, 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 Borough of a cable television and communications
system.
For the purpose of this Ordinance, the following terms, phrases,
words and their derivations shall have the meaning given herein. Such
meaning or definition of terms in supplemental to those definitions
of the Federal Communications Commission ("FCC") rules and regulations,
47 CFR Subsection 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:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1, et seq.
The Company's Application for Renewal of Municipal Consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
The Borough of Sea Bright, County of Monmouth, State of New
Jersey.
The grantee of rights under this Ordinance and is known as
Comcast of Garden State, L.P.
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the Borough currently served with
existing plant as set forth in the map annexed to the Company's
Application for Municipal Consent.
A public hearing concerning the consent herein granted to the
Company was held after proper public notice pursuant to the terms
and conditions of the Act. Said hearing having been held and fully
open to the public, and the Borough having received all comments regarding
the qualifications of the Company to receive this consent, and the
representations of the Company 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 non-exclusive Municipal Consent granted herein shall expire 10
years from the date of expiration of the previous Certificate of Approval
issued by the Board.
B.
In the event that the Borough shall find that the Company has not
substantially complied with the material terms and conditions of this
Ordinance, the Borough shall have the right to petition the OCTV,
pursuant to N.J.S.A. 48:5A-47, for appropriate action, including modification
and/or termination of the Certificate of Approval; provided, however,
that the Borough shall first have given the Company written notice
of all alleged instances of non-compliance and an opportunity to cure
same within 90 days of that notification.
Pursuant to the terms and conditions of the Act, N.J.S.A. 48:5A-30(d),
the Company shall, during each year of operation under the consent
granted herein, pay to the Municipality 3.5% 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. The current franchise fee paid to the Borough is 3.5%.
The consent granted under this Ordinance for the renewal of
the franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
The company shall, during the franchise period, be required
to offer service to any present or future dwelling unit, school, institution,
and business located and to be located along any public rights-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, with a HPM ("homes-per-mile") of 35 dwellings per linear
mile from the nearest active trunk or feeder line from which a usable
cable signal may be obtained. For purposes of this section and the
Company's implementation of the LEP, a home shall only be counted
as a "dwelling unit" if such home is occupied and within 275 feet
of the public right of way.
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 reasonably
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
Borough shall alter or change the grade of any street, alley or other
way or place the Company, upon reasonable notice by the Borough, shall
remove, re-lay or relocate its equipment, at the expense of the Company.
In requiring Company to remove, re-lay or relocate any portion of
its property, the Borough shall treat Company the same as, and require
no more of Company than, any other similarly situated entity utilizing
the public rights-of-way, including with respect to reimbursement
of costs.
C.
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 Borough 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. Except in an emergency,
the Company will not, without the prior consent of the Supervisor
of the Borough's Department of Public Works, or his/her delegate,
trim or remove trees in the public rights-of-way or parks in the Borough.
The Supervisor or delegate will respond to a request for authorization
within 48 hours, Monday through Friday. If requested, the company
will perform any trimming under the direct supervision of the Supervisor
or his designee.
D.
Installation of equipment. The Company shall install equipment in
the same location and manner as existing public utilities whenever
possible, in order to minimize the impact of same on surrounding property.
E.
Temporary removal of cables. The Company shall, upon request of the
Borough, at the Company's expense, temporarily raise, lower or
remove its cables and associated facilities in order to facilitate
the moving of Borough-owned buildings, equipment, vehicles and machinery
and to accommodate other like circumstances. In light of a temporary
removal request by other than the Borough for non-Borough-owned buildings,
equipment, vehicles and machinery, the cost of such temporary removal
shall be the responsibility of the requesting party.
F.
Abandoned wires. The Company shall, prior to installing any new wires,
equipment or facilities, remove any abandoned wires located within
the Borough that are or have been associated with the Company.
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 it to the Borough Council
upon written request of the Borough Manager or Clerk.
A.
The Company shall continue to comply fully with all applicable state
and federal statutes and regulations regarding credit for outages,
the reporting of same to regulatory agencies and notification of same
to customers.
B.
The Company shall continue to fully comply with all applicable state
and federal statutes and regulations regarding the availability of
devices for the hearing impaired and the notification of same to customers.
The Office of Cable Television is hereby designated as the Complaint
Officer for the Borough pursuant to N.J.S.A. 48:5A-26(b). All complaints
shall be received and processed in accordance with N.J.A.C. 14:17-6.5.
The Borough shall have the right to request copies of records and
reports pertaining to complaints by Borough 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.
During the life of the franchise the Company shall give to the
Borough 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 expanded basic or a similar tier of cable
television service to one outlet to every Borough building and each
qualified existing and future municipal building, police, fire, emergency
management facility and public library in the Borough, provided the
facility is located within 200 feet of active cable distribution plant
or through customer owned conduit. Each additional outlet installed,
if any, shall be paid for on a materials plus labor basis by the Borough.
B.
Within six months of the issuance of a Renewal Certificate of Approval
by the BPU, the Company shall provide to the Borough a one-time E/G
Access Capital Grant in the amount of $5,000 to meet the E/G Access
capital needs of the community.
C.
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)],
allows the Company to itemize and/or identify: (1) the amount on the
subscriber bill assessed as a franchise fee and the identity of the
governmental authority to which the fee is paid; (2) the amount on
the bill assessed to satisfy any requirements imposed on the Company
by the cable franchise to support public, education, and/or governmental
access channels or the use of such channels; and (3) any grants or
other fees on the bill or any tax, assessment, or charge of any kind
imposed by any governmental authority on the transaction between the
operator and the subscriber. The Company reserves its external cost,
pass-through rights to the full extent permitted by law.
A.
The Company will comply with the Emergency Alert System ("EAS") rules
in accordance with applicable state and federal statutes and regulations.
B.
The Company shall in no way be held liable for any injury suffered
by the Borough or any other person, during an emergency, if for any
reason the Borough is unable to make full use of the cable television
system as contemplated herein.
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.
All of the statements and commitments contained in the Application
or annexed thereto and incorporated therein, and any amendment thereto,
except as modified herein, are binding upon the Company as terms and
conditions of this consent. The Application and other relevant writings
submitted by the Company shall be annexed hereto and made a part hereof
by reference provided same do not conflict with application State
or Federal law.
Should the Borough grant municipal consent for 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 the Ordinance.
A.
The Company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
Borough agrees to treat any information disclosed by the Company as
confidential and only to disclose it to those employees, representatives,
and agents of the Borough that have a need to know in order to enforce
this Ordinance Agreement and who agree to maintain the confidentiality
of all such information, unless such information is deemed to be subject
to New Jersey's Open Public Records Act.
B.
The Company shall not be required to provide Customer information
in violation of Section 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this Section, the terms
"proprietary or confidential" include, but are not limited to, information
relating to the Cable System design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the Company to be competitively sensitive. The Company
may make proprietary or confidential information available for inspection
but not copying or removal by the Borough's representative. In
the event that the Borough has in its possession and receives a request
under a state "sunshine," public records, or similar law for the disclosure
of information the Company has designated as confidential, trade secret
or proprietary, the Borough shall notify the Company of such request
and cooperate with Company in opposing such request.
The Company shall not be liable or responsible for, in whole
or in part, any delay or failure to perform any of its obligations
hereunder which may result from accidents, pandemics, floods, fires,
earthquakes, tornadoes or other acts of God; war, acts of war (whether
or not a declaration of war is made), civil disobedience; civil disturbance,
sabotage or vandalism, customer tampering or interference, or act
of public enemy; strikes, other labor or job actions or unavailability
of materials or equipment; or other events or circumstances beyond
the reasonable control of the Company.
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.
The Borough, for its part, shall endeavor to exercise reasonable
efforts to require developers and utility companies to provide the
Company with at least 15 days' advance notice of an available open
trench for the placement of necessary cable.
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.
