[HISTORY: Adopted by the Mayor and Council of the Borough of New
Providence 9-13-1999 by Ord. No. 99-4.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance supersedes former Ch. A343, Cable
Television Franchise, adopted 6-13-1988 by Ord. No. 88-9.
Subject to the terms and conditions of this ordinance, the borough hereby
grants to Comcast Cablevision 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
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. Such renewal shall be conditioned upon receipt
by the Borough Clerk of written notification by Comcast Cablevision of New
Jersey, Inc., that it accepts all of the provisions of this ordinance, including
all of its commitments, undertakings and responsibilities hereunder.
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 rules and regulations, 47 C.F.R. Subsection 76.1 et seq., 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 Board of Public Utilities, State of New Jersey.
The grantee of rights under this ordinance and is known as "Comcast
Cablevision of New Jersey, Inc."
The Federal Communications Commission.
The Borough of New Providence, County of Union, State of New Jersey.
The Office of Cable Television of the Board of Public Utilities.
The tier of service offered by Comcast which includes all channels
other than channels specializing in adult entertainment, pay-per-view channels
and certain premium channels which are priced by Comcast on a per channel
basis.
Public hearings conducted by the borough 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, including the hearing on the
application held on June 8, 1998, having been fully open to the public, and
the borough, having received at said public hearings comments regarding the
qualifications of the company to receive this renewal of municipal consent,
the borough 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 consent granted herein shall expire
on December 14, 2008, 10 years from the date of expiration of the previous
certificate of approval as issued by the Board of Public Utilities, unless
such period is terminated earlier pursuant to this section or under applicable
law.
B.
The municipality may conduct a review of the company's
compliance under this ordinance. Said review shall commence on the 5th anniversary
of the issuance of the renewal certificate of approval by the BPU and shall
be completed no later than six months from that date. The municipality shall
notify the company and the BPU in writing of the commencement of said review
and shall also notify the company and the BPU upon completion of said review.
Said notification shall present the municipality's complete findings
in this matter.
C.
In the event that the municipality finds that the company
has not substantially complied with any material term or condition of this
ordinance, the municipality may petition the OCTV for appropriate action,
including modification or termination of the renewal certificate of approval;
provided, however, that the municipality shall first have given the company
no less than 60 days' prior written notice of all alleged instances of
noncompliance and an opportunity to cure same within such sixty-day period.
Subject to the terms and conditions of the Act, the company shall, during
each year of operation under the consent granted herein, pay to the borough
2% of the gross revenues from all recurring charges in the nature of subscription
fees paid by subscribers in the borough for cable television reception service
or any higher amount permitted by the Cable Television Act or otherwise allowable
by law, whichever is greater. In the event that applicable law permits a larger
franchise fee to be collected, but does not fix the amount thereof, the municipality
and the company shall negotiate in good faith with respect to the amount thereof.
All amounts payable under this section shall be paid on or before January
25 of each succeeding year. Each payment shall be accompanied by a verified
statement showing the gross receipts upon which the payment is based.
The consent granted under this ordinance to the renewal of the franchise
shall apply to the entirety of the borough and any property subsequently annexed
thereto.
Comcast 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.
A.
Comcast has completed an upgrade of the cable television
distribution system serving the borough. The upgraded system is a hybrid fiber
optic/coaxial cable system following a fiber to the node architecture. Comcast
represents that the upgraded system provides improved picture quality, enhanced
signal reliability and increased channel capacity.
B.
The upgrade has been completed following Comcast's
engineering guidelines for hybrid fiber/coaxial plant design, which Comcast
represents meets or exceeds all applicable state and federal regulations as
well as voluntary cable television industry standards and follows commonly
accepted industry practices.
C.
The quality of signal provided by Comcast to subscribers
within the municipality shall be as good as or better than that customarily
provided under prevailing industry standards. Comcast shall comply with all
applicable state and federal statutes and regulations and shall use its best
efforts to meet or exceed all voluntary company and industry standards regarding
the transmission of television signals, transmission quality, facilities and
equipment.
D.
Comcast shall continue to upgrade and improve its cable
delivery system throughout the period of this franchise by taking advantage
of new technology and shall make available to subscribers within the municipality
improvements and enhancements which it makes available to subscribers in other
communities which it services.
A.
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 surfaces or things so disturbed in as good a condition
as existed prior to the commencement of said work. Except to the extent preempted
by state or federal law, all such work shall be performed in accordance with
local governmental requirements as contained in municipal ordinances or as
determined by the Borough Engineer.
B.
Relocation. If at any time during the period of this
franchise the municipality shall alter or change the grade of
any street, alley or other way or place, the company, upon reasonable written
notice from the municipality, shall remove, relay or relocate its equipment,
at the expense of the company.
C.
Temporary removal of cables. Upon the request of the
municipality, the company, at its sole expense, shall temporarily raise, lower
or remove its lines in order to facilitate the moving of buildings or machinery
or in other like circumstances.
D.
Trimming of trees. During the period of 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 and shall be conducted
in a manner so as to preserve the health and appearance of the trees.
E.
Prior to commencing any work which could have an impact
upon public works within the municipality or which could disrupt vehicular
or pedestrian traffic within the municipality, Comcast shall provide the Borough
Engineer with reasonable notice of such work and shall file with the Borough
Engineer all construction plans relating to such work. Nothing contained herein
shall create any rights on the part of Comcast with respect to work which
is inconsistent with requirements of the OCTV or the Board or is otherwise
inconsistent with applicable law.
In providing services to its customers, Comcast shall comply with N.J.A.C.
14:18 and all applicable state and federal statutes and regulations. In addition,
Comcast shall use its best efforts to meet or exceed all voluntary company
and industry standards in the delivery of customer service.
A.
The company shall 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. Copies
of all outage reports furnished to the OCTV shall be forwarded by the company
to the Borough Clerk at the time the reports are furnished to the OCTV.
B.
The company shall 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.
C.
The company shall use its best efforts to meet or exceed
voluntary standards for telephone accessibility developed by the National
Cable Television Association. Those standards shall include, but not be limited
to, the goal of answering 90% 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.
D.
Throughout the period of this franchise the company,
upon written request, shall provide the Borough Clerk, on a timely basis,
with such information as the Borough Council or its designee reasonably may
request regarding the performance of the company under the terms of its franchise,
including without limitation descriptions of improvements and enhancements,
reports of actions taken by the company in response to customer complaints
and information regarding telephone accessibility, service calls, reception
quality and signal interruptions. Upon the reasonable written request of the
Borough Council or its designee, one or more representatives of the company
shall meet with the Borough Council or its designee at such times as the Borough
Council or its designee reasonably may request.
E.
Throughout the period of this franchise, the company
shall provide the Borough Clerk, on a timely basis, with copies of all literature
and other communications sent to borough subscribers, including surveys, descriptions
of new programming and rate changes, but not including individual billing
statements.
The Office of Cable Television is hereby designed as the complaint officer
for the Borough of New Providence pursuant to N.J.S.A. 48:5A-26b. 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 borough customers from the OCTV.
A.
Throughout the period of this franchise, the company
shall maintain a local business office for the purpose of receiving, investigating
and resolving all complaints regarding the quality of service, equipment malfunctions
and similar matters. Such local business office shall be open during normal
business hours and in no event less than 9:00 a.m. to 5:00 p.m., Monday through
Friday. Telephone response for such purposes as mentioned herein will be provided
by the company's employees, representatives or agents 24 hours per day.
B.
The telephone number and address of the local office
shall be listed in applicable telephone directories and in correspondence
from the company to the customer. The telephone number for the local office
shall utilize an exchange that is a nontoll call for borough residents.
The company shall provide the municipality with a performance bond in
the amount of $25,000. The purpose of such bond shall be to insure the faithful
performance of all obligations and undertakings of the company, as contained
herein or in its application for municipal consent, or as otherwise provided
by applicable law. Such bond shall remain in effect throughout the period
of this franchise.
The rates of the company shall be subject to regulation as provided
by federal and state law. In the event that applicable law is amended to permit
the exercise of regulatory power over rates by municipalities, the borough
reserves the right to exercise the maximum power permitted by law.
A.
The company shall continue to provide one dedicated,
system-wide public access channel (currently Channel 57), to be utilized by
qualified individuals and organizations, for the purpose of cablecasting noncommercial
access programming in conformance with the company's published public
access rules.
B.
The company shall continue to provide the borough with
a dedicated municipal access channel (currently Channel 35) for use by the
municipality and its designees for the purpose of cablecasting noncommercial
public, educational and governmental programming. The company shall also maintain
the dedicated return line from the New Providence High School/Middle School.
Upon the request of the borough, the company shall provide the borough with
an additional dedicated municipal access channel and shall maintain the return
line for such additional channel.
C.
Within 12 months of receipt of a renewal certificate
of approval, the company shall construct and maintain a second dedicated return
line from the New Providence Borough Municipal Building for the purpose of
originating programming on the local access channel.
D.
The company shall provide the municipality with the ability
to switch remotely between the feeds from the Municipal Building and the High
School/Middle School. The primary switching unit shall be located in the Municipal
Building and the secondary switching unit shall be located in the High School.
The company will provide additional switching capability in the future if
and when it becomes able to do so.
E.
The company shall take such steps as may be necessary
to ensure that the signals originated on the municipal access channel or channels
and on Channel 36 are carried without material degradation and with a signal
whose quality is equal to that of the other channels that the company transmits.
F.
The company shall provide the borough with a one-time
grant in the amount of $60,000 within six months of receipt of a renewal certificate
of approval to be used in support of access programming or as the borough
deems appropriate.
G.
The company shall continue to make available to the municipality
a mobile production vehicle for the purpose of producing noncommercial community,
governmental or educational access programming consistent with the company's
written rules and regulations on the use of said vehicle. In the event that
Comcast makes one or more of its nonmobile production studios available to
other municipalities and/or school districts, Comcast shall make such studio
or studios available to the municipality on a nondiscriminatory basis. The
company shall continue to provide basic training to all users of said vehicle
and production studio and, whenever possible, will lend its own equipment
to the borough or the school system to replace equipment which is being repaired.
H.
The company shall provide the municipality with a state-of-the-art
remotely accessible personal computer-based character generator (CG), for
use in the creation and distribution of noncommercial community messages over
the municipal access channel or channels within 12 months of receipt of the
renewal certificate of authority. The provision of the CG will include hardware,
software, installation, maintenance and training at a cost to Comcast of no
more than $5,000.
I.
The company shall designate one or more Comcast employees
who will be responsible for providing assistance (including both production
assistance and technical assistance in maintaining and servicing equipment),
receiving comments and responding to complaints with respect to local access
transmissions. Such employee or employees shall be available during normal
business hours. The company shall also put in place procedures for providing
assistance with respect to local access transmissions outside of normal business
hours and shall provide the municipality with written notice of such procedures.
J.
The company, upon reasonable written request, shall lend
to the municipality videotapes of programming relating to the municipality
or matters of particular interest to the municipality (including, but not
limited to, interviews with borough officials and sporting events involving
school district teams) which are in the company's possession or control
and which may have been previously shown on The Comcast Network or such other
channel Comcast uses for its own originated programming. The company may withhold
such videotapes on reasonable grounds, including, but not limited to, the
rights of copyright holders or its other commitments with respect to such
programming.
K.
The company shall continue to transmit the signal for
Communities on Cable (so long as that organization or a successor to it continues
to be the municipality's PEG designee) on Comcast's Channel 36.
Within 12 months of receipt of a renewal certificate of authority, the company
shall provide Communities on Cable with a one-time grant in the amount of
$15,000 for video production and cable related expenses.
L.
Upon reasonable written request, the company shall offer
seminars on basic access production for personnel who will assist in productions
originated by the borough and its designees and shall similarly offer seminars
providing such training to students and to other residents at the municipality's
schools.
M.
To the extent that the company offers one or more internships
or similar programs designated to train students in basic television production,
residents of the municipality shall have an opportunity to participate in
such programs on a nondiscriminatory basis.
N.
The company shall continue to make available to the school
system all of the benefits of the Cable In The Classroom program, including
but not limited to a subscription to Cable In The Classroom magazine for each
school, monthly mailings from the company's education coordinator, participation
in the Comcast Scholarship Program, programming-based curriculum material
and periodic inservice workshops.
A.
The company, on a timely basis, shall provide free standard
installation and total preferred cable service monthly on up to 10 outlets
in each private school in the borough, provided that the school is within
200 feet of active cable distribution plant. The installation of each additional
outlet shall be paid for by the school requesting such installation on a materials
plus labor basis. Monthly service charges shall be waived on all additional
outlets.
B.
The company, on a timely basis, shall provide free standard
installation and total preferred cable service monthly for a total of 50 outlets
in the four public elementary, intermediate and secondary schools in the borough,
provided that the school is within 200 feet of active cable distribution plant.
The installation of each additional outlet shall be paid for by the school
requesting such installation on a materials plus labor basis. Monthly service
charges shall be waived on all additional outlets.
C.
The company, on a timely basis, shall provide free standard
installation and total preferred cable service monthly on one outlet to each
police station, fire station, first aid facility, emergency management facility,
public library, senior citizens center and community center in the borough
at no charge, provided that the station or facility is located within 200
feet of active cable distribution plant. The installation of each additional
outlet shall be paid for by the organization requesting such installation
on a materials plus labor basis. Monthly service charges shall be waived on
all additional outlets.
D.
The company shall use its best efforts to deploy new
or advanced technology and services in the municipality that are commercially
available, economically practicable and technically feasible. Such technology
shall include but not be limited to video-on-demand, digital video compression,
advanced or high-definition television, digital audio services, digital television,
Internet access via high-speed cable modems and interactive program guides.
E.
The company, on a timely basis, shall provide free basic
Internet access service, via high-speed cable modem, to one nonnetworked personal
computer in each school in the municipality, public and private, elementary,
intermediate and secondary, at no charge, provided that the facility is located
within 200 feet of active cable distribution plant. Upon written request,
the company shall provide basic internet access service to one or more additional
nonnetworked personal computers in each such school, as well as to one or
more such computers in the Municipal Building or in any other governmental
facility, provided that the facility is located within 200 feet of active
cable distribution plant, at no more than $100 per month for from one to four
computers, $175 per month for from five to eight computers and $225 per month
for from nine to 25 computers. Installation charges shall be waived for all
such internet service provided by the company.
F.
The company, on a timely basis, shall provide free basic
Internet access service, via high-speed cable modem, to one nonnetworked personal
computer in each public library in the municipality, at no charge, provided
that the facility is located within 200 feet of active cable distribution
plant.
In the event that the borough 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 apply to the BPU for approval
to enter into and establish the terms and conditions of such contract. Any
application fee assessed by the BPU shall be the responsibility of the borough.
Upon activation of the state's Emergency Alert System (EAS), the
company shall be required to have the capability to override at the head end
a portion of the system in order to permit the cablecasting of emergency messages.
The company's participation in the EAS shall be in compliance 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 beyond the reasonable control of the
company the municipality is unable to make full use of the cable television
system as contemplated herein.
The company agrees to maintain and keep in full force and effect, at
its sole expense and at all times during the period of this franchise, a comprehensive
general liability insurance policy naming the municipality as an insured and
insuring against loss by any claim, suit, judgment, execution or demand in
the minimum amounts of $1,000,000 for bodily injury or death to one person,
and $100,000 for property damage resulting from one accident, together with
an excess liability policy naming the municipality as an insured in the minimum
amount of $10,000,000.
Except as otherwise provided by applicable law, all of the obligations
and undertakings contained in the application for municipal consent, a copy
of which is annexed hereto and made a part hereof, except as modified herein,
are binding upon the company as terms and conditions of this consent.
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.
This ordinance shall take effect immediately upon issuance of a renewal
certificate of approval by the BPU.
