[HISTORY: Adopted by the Township Committee of the Township of Little Egg Harbor 12-10-2020 by Ord. No. 2020-16. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. A380, Cable Television Franchise, adopted by Ord. No. 90-06 (Ch. XX of the 1978 Code), amended in its entirety 9-13-2007 by Ord. No. 2007-18.
The Township hereby grants to Comcast of New Jersey, Inc., 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 Township, 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 Township of a cable television and communications system.
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. Such meanings or definitions of terms are 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:
- 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.
- BOARD or BPU
- The Board of Public Utilities, State of New Jersey.
- The grantee of rights under this chapter and is known as "Comcast of New Jersey, Inc."
- The Federal Communications Commission.
- MUNICIPALITY or TOWNSHIP
- The Township of Little Egg Harbor, County of Ocean, State of New Jersey.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- PRIMARY SERVICE AREA or PSA
- Consists of the area of the municipality currently served with existing plant as set forth in the map annexed to the Company's application for municipal consent.
- TOWN or MUNICIPALITY
- The Township of Little Egg Harbor, County of Ocean, State of New Jersey.
Public hearings conducted by the Township 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 Township, having received at said public hearings all comments regarding the qualifications of the Company to receive this renewal of municipal consent, the Township 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 10 years from the date of expiration of the previous certificate of approval issued by the Board.
In the event that the municipality shall find that the Company has not substantially complied with the material terms and conditions of this chapter, 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.
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 Township 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 Township or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater.
The consent granted under this chapter to the renewal of the franchise shall apply to the entirety of the Township and any property subsequently annexed hereto.
The Company shall be required to proffer service along any public right-of-way to any person's residence or business located in all areas of the franchise territory as described herein, at tariffed rates for standard and nonstandard installations. Any extension of the cable television system beyond the PSA will be made in accordance with the Office of Cable Television's (OCTV) line extension policy (LEP). For purposes of the LEP, the minimum density of homes per mile shall be 30.
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.
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, relay or relocate its equipment at the expense of the Company.
Temporary removal of cables. The Company shall, upon request of the municipality 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. Whenever the request is made by, for, or on behalf of private parties, the cost will be borne by those same parties.
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.
All transmission and distribution structures, lines and equipment erected or operated by the Company within the municipality shall be located and operated so as to cause minimum interference with the rights and reasonable convenience of property owners adjoining any of said streets, alleys or other public ways and places of location or operation.
The placement of fixtures. The Company shall not place or operate any fixture or equipment in such locations as will or may interfere with any other public or private utility system or any part thereof, and the location by the Company of its lines and equipment shall be in such manner as not to interfere with the usual travel or use of such streets, alleys, public or private ways or places and the use and enjoyment thereof by all of such public or private utility companies or the owner of such places.
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 community upon written request of the Township Administrator or Clerk.
The Company shall continue to comply fully with all applicable state and federal statutes and regulations regarding credits 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 statutes and regulations regarding the availability of devices for the hearing impaired and the notification of same to customers.
The Company shall use every effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA). Those standards shall include, but not be limited to, the goal of answering 80% of incoming telephone calls within 30 seconds.
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 appropriate under law.
The Company is permitted, but is not required, to charge a late fee consistent with applicable state and federal statutes and regulations.
The Office of Cable Television 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 Township customers from the OCTV. All complaints shall be received and processed in accordance with N.J.A.C. 14:17-6.5. The Company is required to come before the Mayor and Township Committee on a semiannual basis over the life of the franchise upon reasonable written request by the governing body beginning six months from the issuance of a renewal certificate of approval by the Board for the purpose of review of performance and compliance with the material terms and conditions set forth in this chapter and the rules and regulations established by the Board's Office of Cable Television.
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.
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.
The Company shall provide access time to noncommercial public, governmental and educational (PEG) entities and shall provide and maintain one full-time dedicated system-wide PEG channel for use of the Township.
The Company shall provide a PEG capital grant of $116,500 for use in the Township by the Township to be payable within six months of the adoption of the certificate of approval by the New Jersey Board of Public Utilities.
The parties agree that Comcast will provide basic cable service to the municipal building, police, fire and first aid departments, libraries, senior center, and community centers. This obligation shall apply to any new facilities that are constructed during this municipal consent. Installation shall be completed within 30 days of the certificate of occupancy. The municipality shall notify the Company of any new construction requiring a drop. The Company has the right in accordance with applicable law to deduct the fair market value of those services from franchise fees. Comcast will notify the Township if it intends to implement said offset and the fair market value of those services at least 60 days prior to doing so.
The parties agree that Comcast will provide basic cable service to each elementary and middle school, public or private, in the municipality. The Company has the right in accordance with applicable law to deduct the fair market value of those services from franchise fees. Comcast will notify the Township if it intends to implement said offset and the fair market value of those services at least 60 days prior to doing so.
Company representatives shall appear at least once annually, upon reasonable written request of the Township, at a public hearing of the governing body or before the Township's Cable Television Advisory Committee, to discuss matters pertaining to the provision of cable service to residents of the Township and other related issues as the Township and Company may see fit.
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)], allows the Company to itemize and/or identify:
The amount on the subscriber bill assessed as a franchise fee and the identity of the governmental authority to which the fee is paid;
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
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.
In the event that the Township 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 Township.
The Company shall be required to fully comply with all applicable federal and state statutes and rules and regulations governing the implementation, operation and testing of the emergency alert system (EAS). 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.
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 writings submitted by the Company shall be considered a part of this chapter 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 Township and the Company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
If any section, subsection, sentence, clause, phrase or portion of this chapter 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 chapter.
This chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.
The Company shall not alter its basic service as defined by N.J.S.A. 48:5A-3(k) without notifying the municipality and the Office of Cable Television pursuant to N.J.A.C. 14:18-3.17.
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 chapter 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.