[HISTORY: Adopted by the Township Committee of the Township of Cinnaminson 12-17-2003 by Ord. No. 2003-21 (Sec. 4.04 of the 1995 Code). Amendments noted where applicable.]
The municipality hereby grants to Comcast 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 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 is 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:
- ACT or CABLE TELEVISION ACT
- 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.
- 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.
- The grantee of rights under this ordinance and is known as "Comcast of Burlington County, LLC."
- The Federal Communications Commission.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- TOWNSHIP or MUNICIPALITY
- The Township of Cinnaminson, County of Burlington, State of New Jersey.
Public hearings conducted by the municipality, concerning the renewal of municipal consent herein granted to the company were held after proper public notice pursuant to the terms and conditions of the Act and the regulations of the Board adopted pursuant thereto. Said hearings, having been fully open to the public, and the municipality, having received at said public hearings 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.
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 as provided by N.J.S.A. 48:5A-19 and 48:5A-25, and N.J.A.C. 14:18-13.6.
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 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.
The company shall provide up to four hours per week of local access made available to Cinnaminson Township.
The company shall provide total preferred cable television service on one outlet at no cost to each school in the municipality, public and private, elementary, intermediate and secondary, provided the school is within 175 feet of 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 additional outlets.
The company shall provide total preferred cable television service at no cost on one outlet to each police, fire, emergency management facility, sewer authority processing plant and public library in the municipality, provided the facility is located within 175 feet of active cable distribution plant. 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 additional outlets.
The company shall provide free basic Internet service, via high speed cable and modem, to one non-networked personal computer in each qualified existing and future school in the Township, public and private, elementary, intermediate and secondary, at no charge provided the facility is located within 175 feet of active cable distribution plant. The Internet service shall be installed on a personal computer that is accessible to the students and not for administrative use only.
The company shall provide free basic Internet access via high-speed cable and modem on one non-networked personal computer in each qualified existing and future public library at no charge, provided the facility is located within 175 feet of active cable distribution plant. The Internet service shall be installed on a personal computer that is accessible to library patrons and not for administrative use only.
The company shall provide free basic Internet access via high-speed cable and modem on one non-networked personal computer in each firehouse and the public works building in the Township.
Within six months of receipt of a renewal certificate of approval, the company shall provide the Township with a one-time technology grant in the amount of $50,000 for any purpose the Township deems appropriate.
Any obligations imposed subsequent to the passage of this ordinance by federal or state law applicable to cable television companies shall be incorporated into this ordinance.
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. Payment shall be made on or before January 31 of each year. Gross revenues shall be reported on the books and records of the company in accordance with the uniform system of accounts adopted by the Office and shall mean gross revenues derived from cable television reception services as defined by New Jersey law. Sole jurisdiction over said books and records shall be vested in the Office. Upon the Township's request, the company's books and records will be open to inspection by the Office.
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.
Underground utilities. The company agrees to service residents who have underground utilities with underground connections and also all future customers who may have underground utilities.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, or other surface in the nature 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.
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.
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.
Temporary removal of cables. The company shall, upon reasonable request of the Township, at the company's expense, temporarily raise, lower or remove its lines in order to facilitate the moving of buildings or machinery or in other like circumstances. If such a request is made to the company by someone other than the Township, the person requesting this action must bear the cost of any action by the company to satisfy the request.
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 plants beyond the primary service area shall be governed by the company's line extension policy, as set forth in the company's application.
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 open 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.
The Municipal Clerk is hereby designated as the complaint officer for the municipality 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 municipality shall have the right to request copies of records and reports pertaining to complaints by municipality customers from the complaint officer.
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.
Editor's Note: See N.J.S.A. 48:58A-11.2 and 48:58A-11.3.
The company will comply with the Emergency Alert System (EAS) rules in accordance with applicable state and federal statues 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.
In the event that the company seeks to assign the municipal consent granted herein, a copy of any such application and supporting documentation filed with the Office shall be simultaneously filed with the Township, and upon request by the Township, representatives of both the company and the company to which it seeks to assign the franchise shall promptly meet and confer with the Township and will supply such further information as is requested, relative to said application for assignment. Final approval of such application shall be conditioned upon good faith compliance with said requirements, it being expressly acknowledged, however, that said final approval rests with the Board.
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.
Subject to § 620-14 hereof, the company shall hold and save the Township harmless from and indemnity and defend the Township against every claim, loss and liability of every kind, arising in any and every way, directly and indirectly, immediately and consequentially, except to the extent limited by state or federal law, from:
The grant or use of this municipal consent.
The construction, operation and/or maintenance of a cable television system and/or incidental fixtures or facilities within or without the Township.
The acquisition of, or negotiation for the acquisition of, any interest in real estate, rights or privileges within or without the Township.
The making, prosecuting or processing of any application for any governmental approval, permit or license, including all appeals.
All proceedings of every kind by or against the company.
Any act or omission of the company or any of its officers, directors, employees, agents, contractors, suppliers, materialmen or affiliated companies.
The exercise or implementation (whether or not proper or lawful) of any right or privilege express or implied hereunder, the law or otherwise arising out of this municipal consent.
Any claim in any way caused, directly or indirectly, by the company's action, inaction, franchise, operation, maintenance, construction, installation or the like.
Any personal injury claim resulting from the use or existence of any company equipment in the Township.
The Township agrees to hold the company harmless from and indemnity and defend the company against every claim, loss and liability of every kind arising from the Township's use of the emergency network.
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 commitments and statements contained in the application and any amendment thereto submitted in writing to the municipality by the company, except as modified 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 of ordinances or other agreements between the municipality and the company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
All the commitments and statements contained in the application and any amendment thereto submitted in writing to the municipality by the company, except as modified herein, are binding upon the company as terms and conditions of this municipal consent. The application and any other relevant writings submitted by the company shall be considered a part of this ordinance and made a part hereof by reference as long as it does not conflict with state or federal law. All ordinances or part of ordinances or other agreements between the Township and the company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
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 municipality upon written request of the municipality Administrator or Clerk.
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.
The company shall continue to fully comply with all applicable state and federal statues and regulations regarding the availability of devices for the hearing impaired and the notification of same to customers.
The company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
Nothing herein shall impair the right of any subscriber or the municipality to express any comment with respect to telephone accessibility to the complaint officer, or impair the right of the complaint officer to take any action that is permitted under law.
In accordance with the Cable Communications Act, upon the request of a subscriber, the company shall provide, by sale or lease, a device by which the subscriber can prohibit viewing of a particular premium channel during periods selected by that subscriber.
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.
If any part of this ordinance should now or hereafter be in conflict with any of the laws, rules, orders and regulations now in effect or hereinafter adopted by the FCC, the Board or any other governmental agency having jurisdiction, the company shall comply with such law, rule, order or regulation. Such compliance shall not be deemed a violation of this ordinance.
Should the municipality 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.
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.