[HISTORY: Adopted by the Mayor and Council
of the Borough of North Arlington 12-19-2000 by Ord. No. 1796.
Amendments noted where applicable.]
This ordinance shall be known and may be cited
as the "RCN Telecom Services of New Jersey, Inc., Open Video Systems
Service Ordinance."
For the purpose of this ordinance, the following
terms, phrases, words, and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense include the future, words in the plural include
the singular, and words in the singular, include the plural.
AFFILIATE
The same meaning as set forth in the rules and regulations
of the FCC which govern the provision of OVS services as set forth
in 47 CFR 76.1500(g).
BOROUGH
The Borough of North Arlington, County of Bergen, State of
New Jersey.
FEDERAL LAW
The federal statute relating to open video systems, known
as 47 U.S.C. § 521 et seq., or as the statute may be amended.
FEDERAL REGULATIONS
Those federal regulations relating to open video systems,
47 CFR 76.1500 et seq., and, to the extent applicable, any other federal
rules and regulations.
FCC
The Federal Communications Commission.
HIGHWAY
Includes every street, road, alley, thoroughfare, way or
place of any kind used by the public or open to use by the public.
PERSON
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
OPEN VIDEO SERVICE OPERATOR or OVS OPERATOR
Any person or group of persons who provides cable television
service over an open video system and directly or through one or more
affiliates owns a significant interest in such open video system,
or otherwise controls or is responsible for the management and operation
of such an open video system.
OPEN VIDEO SYSTEM
A facility consisting of transmission paths and associated
signal generation, reception, and control equipment that is to provide
cable television service which includes video programming to multiple
subscribers within the Borough and which has received a certificate
from the FCC pursuant to 47 CFR 76.1502.
OVS SERVICE
Includes the video programming services distributed by an
OVS operator or its affiliate directly to their subscribers in the
Borough by use of the OVS operator's facilities.
TECHNOLOGY ACCESS FUND
Those revenues paid by the company to the Borough pursuant to §
A465-5 of this agreement to be used by the Borough to promote access to advanced technologies.
VIDEO REVENUES
Those revenues derived from the provision of video programming
services as part of the open video systems services.
Pursuant to applicable law, at a public meeting,
upon appropriate notice, the Borough has considered the qualifications
of the company to provide OVS service and 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, and that, therefore, the Borough
hereby grants the company a nonexclusive right and privilege to construct,
erect, operate, modify and maintain, in, upon, along, across, above,
over, and under the highways, streets, alleys, sidewalks, public ways
and public places now laid out or dedicated and all extensions thereof,
and additions thereto, in the Borough such poles, wires, cables, underground
conduits, manholes, and other communications conductors and fixtures
necessary for the maintenance and operation in the Borough of an open
video system and to provide OVS service and other electronic impulses
in order to furnish television and radio programs, and various communications
and other electronic services to the public. The right so granted
includes the right to use and occupy said highways, streets, alleys,
public ways and public places, and all manner of easements for the
purposes herein set forth and as provided by federal and state law.
The authority granted to the company shall be
for a term of 10 years from the date that notice of final passage
of this ordinance is published in a newspaper of general circulation
in North Arlington.
The company shall, during each year of operation
under this agreement, pay to the Borough 2% of the revenues received
from the company's basic level of video programming services and an
additional 3% of gross revenues from the company's OVS service, which
shall be applied as a Technology Access Fund.
A. During the term of this authority, the company shall
maintain a local business office or agent for the purpose of receiving
and resolving all complaints regarding the quality of service, equipment
malfunctions, and similar matters.
B. The company shall comply with all federal regulations
and state regulations pertaining to customer service, including but
not limited to those pertaining to office hours and telephone availability,
installations, outages and service interruptions, service calls, billing,
billing disputes, service-related complaints, and notices of changes
in rates, programming, and channel positions.
C. With respect to service-related complaints and other
complaints, the company shall inform the complainant that he/she may
request review of the complaint by the Complaint Officer, and shall
provide the subscriber with the name and address of the Complaint
Officer.
D. With respect to service-related complaints and other
complaints, when such complaints are made in writing, the company
shall retain an actual copy of such written complaints in its files.
The company shall provide the Borough with notice of its intent to
dispose of any records kept pursuant to this section, in a manner
similar to N.J.A.C. 14:18-6.2(b), or pursuant to N.J.A.C. 14:18-6.5,
at least 120 days prior to such disposal, in order to permit the Borough
adequate time to request that such records be available for the Borough's
inspection and copying as permitted by law.
E. The company shall provide written notice to its subscribers
on a quarterly basis of the procedures by which a subscriber may obtain
credits for outages and interruptions of service.
F. The company will meet with the Borough on an annual
basis, at the Borough's request, to review and discuss billing, service-related,
and other complaints of North Arlington subscribers, and other issues
of concern of the Borough.
G. The company will make trained company representatives
available to respond to telephone inquiries from North Arlington customers
between the hours of 8:00 a.m. and 11:00 p.m., Monday through Friday,
between the hours of 9:00 a.m. and 12:00 a.m. on Saturday, and between
the hours of 12:00 p.m. and 12:00 a.m. on Sunday.
H. The Borough Clerk is hereby designated as the complaint
officer for the Borough.
A. The company expressly agrees that it will indemnify
and hold harmless the Borough and its officials, agents and employees
and pay all damages and penalties which the Borough may legally be
required to pay as a result of the company's negligence in the installation,
operation, or maintenance of the open video system authorized herein.
The Borough shall notify the company's manager within 90 days after
the presentation of any claim or demand to the Borough, either by
suit or otherwise, made against the Borough on account of any negligence
or contract as aforesaid on the part of the company.
B. Furthermore, the company shall maintain and keep in
full force and effect liability insurance naming the Borough and the
company as insured and insuring against loss by any claim, suit, judgment,
execution or demand in the minimum amounts as follows: 1) $1,000,000
for bodily injury or death resulting from any one accident; 2) $3,000,000
for property damage resulting from any one accident; 3) $1,000,000
for all other types of liability including property damage; and an
umbrella policy in the minimum amount of $15,000,000.
C. Upon the effective date of this authority, the company
shall secure a performance bond in the amount of $100,000. Upon completion
of construction of the system and during the life of this authority,
the company may reduce the amount to $25,000. Such bond shall be to
insure the faithful performance of all undertakings of the company.
A. Territory. The authority granted under this ordinance
shall apply to the entirety of the Borough, and any property hereafter
annexed thereto.
B. Facilities and equipment. In transmitting its communications
signals to subscribers in the Borough, the company shall provide a
quality of signal that is at least as good as that customarily provided
under prevailing industry standards, and shall comply with any requirements
imposed by the federal regulations, any federal pronouncements, and
(to the extent not preempted by federal law) any state pronouncements
relating to technical standards for the transmission of communication
signals, transmission quality, or facilities and equipment. The company
shall notify the Borough prior to commencement of any work or construction
activities which would materially impact the condition or use of Borough
property or the public streets and rights-of-way.
C. Extension of service. The company shall be required
to provide service to any person's residence or business located in
the Borough along public streets and rights-of-way, except where access
to such residence or business is denied.
D. Relocation of poles. In the event that, at any time
during the term of this ordinance, the Borough shall lawfully elect
to alter or change the grade of any street, alley, or other public
way, the company, upon reasonable notice by the Borough, shall promptly
remove, re-lay and relocate its poles, wires, cables, underground
conduits, manholes, and other fixtures at the company's own expense.
E. Temporary wire changes. The company shall, on the
request of any person holding a valid building moving permit issued
by the Borough, temporarily raise or lower its wires to permit the
moving of buildings, machinery or in other similar circumstances.
The expense of such temporary removal, raising or lowering of wires
shall be paid by the person requesting same, unless the request is
on behalf of the Borough in which case there shall be no charge. The
company shall have the authority to require any such payment in advance.
The company shall be given not less than 30 days' advance notice to
arrange for temporary wire changes.
F. Tree trimming. The company shall have the authority
to trim trees upon and overhanging streets, highways, alleys, sidewalks,
and public places within the Borough so as to prevent the branches
of such trees from coming into contact with the wires and cables of
the company.
G. Compliance with standards. All facilities and equipment
of the company shall be constructed and maintained in accordance with
the requirements and specifications of the applicable ordinance and
regulations set forth by the Borough and/or any other local, state
or federal agencies. The company shall maintain its facilities and
equipment within the Borough in good and reasonable operating condition
at all times during the term of the authority granted herein.
H. Coordination of initial construction. During the initial
construction of the open video system, the company will coordinate
construction activities with the Borough to minimize disruption to
residents of the Borough. The vehicles of the company, and those of
any contractors, shall be suitably marked, and all employees and contractors
shall display appropriate identification.
The company shall have the authority to promulgate
such reasonable rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonably necessary to enable
the company to exercise its rights and perform its obligations under
this authority, and to assure an uninterrupted service to each and
all of its customers; provided, however, that such rules, regulations,
terms and conditions shall not be in conflict with federal and/or
state laws.
The company shall not sell or transfer its open
video system to another entity, nor transfer any rights under this
ordinance to another, without the consent of the Borough, which shall
not be unreasonably withheld. The company shall notify the Borough
at least 60 days in advance of any transfer. Such transfer shall be
deemed approved by the Borough if the Borough has not raised any questions
or objections within 60 days of receipt of such notice. The company,
may, however, upon 60 days' written notice to the Borough, and without
reasonable objection by the Borough, transfer any rights or privileges
to an affiliate of the company without prior approval and may pledge
its property in the ordinary course of business.
This ordinance and agreement is subject to all
provisions of the state and federal, law applicable to OVS service
providers and to all lawful rules and regulations pursuant thereto.
The company shall not allow its OVS service
or other operations to interfere with television reception of persons
not served by the company, nor shall the system interfere with, obstruct
or hinder in any manner the operation of the various utilities serving
the residents of the Borough.
The company shall provide installation and at
least one outlet of free monthly basic service in all schools and
public libraries in the Borough, as well as Borough Hall.
The company shall offer a discount of $2 on
its basic level of video programming service, exclusive of any other
package or discounts, to any senior citizen 62 years of age or older
who does not share the company's service with more than one person
who is less than 62 years of age and any disabled persons or any disabled
individual. In order to receive the discount, the senior citizens
or disabled citizen must have an annual household income of $30,000
or less.
A. After the construction is complete, the company will
provide a minimum of one governmental access channel, one educational
access channel and one public access channel on the North Arlington
system. The educational access channels, governmental access channels
and public access channels (hereinafter referred to collectively as
the "PEG channels") will be provided at no cost to the Borough as
part of the entry-level service for the duration of the agreement.
B. In the event that any of the access channels are relocated
to another channel number during the term of this agreement, the company
shall comply with the provisions of the federal regulations and any
applicable state regulations pertaining to changes in channel positions
or channel allocation, including but not limited to 47 CFR 76.309(c)(3).
Additionally, in such event, the company shall publish notice of any
change in an access channel position in a newspaper of general circulation
in North Arlington at least 15 days prior to the effective date of
such change. Furthermore, contemporaneous with its written notice
provided to subscribers, the company shall provide written notice
to the Borough of any change in the channel position of either the
municipal or educational access channel.
C. The company shall take any steps that are necessary
to ensure that the signals originated on the PEG channels are carried
without material degradation, and that the quality of the signal transmitted
to subscribers over the PEG channels meets prevailing industry standards
and is equal to the quality of the signals transmitted by RCN on its
other channels.
A. The company will provide free of charge such technical
assistance, advice, and support as is reasonably requested by the
Borough. Such technical assistance, advice and support will be available
to:
(1)
Governmental officials, representatives, and
employees;
(2)
Educational system officials, representatives
and employees;
(3)
Community leaders and interest groups;
B. Upon reasonable notice to the company by the Borough,
the company shall provide annual training workshops, free of charge,
to municipal and educational persons or groups on the use of access
facilities and equipment, including production techniques. Equipment
for public access courses will be provided by the company.
The company shall provide Internet access services
for use by the Borough. Internet access shall include the hosting
of an Internet web site for the Borough and Internet addresses for
Borough Hall officials. The company shall also provide one outlet
of a basic level of Internet access to each school and library in
the Borough.
This ordinance shall take effect upon its final
passage and publication according to law.
The rights granted herein are nonexclusive,
and the Borough may, in accordance with the requirements of federal
or state law, award another like authority to a separate company in
addition to the company.
All notices shall be sent via certified mail,
return receipt requested, and regular mail to the following addresses:
For the Borough:
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For the company:
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Borough Clerk
Municipal Building
214 Ridge Road
North Arlington, NJ 07031
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RCN Telecom Services of New Jersey, Inc.
Vice President, Franchising and Development
105 Carnegie Center
Princeton, NJ 08540
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This agreement may be amended or modified in
accordance with law if, during the term of this agreement, the parties
determine that such amendment or modification is necessary or desirable
due to changes in circumstances or applicable law.