[HISTORY: Adopted by the Mayor and Council of the Borough of Old Tappan 8-19-2002 by Ord. No. 799-02. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. A310, Cable Television Franchise, adopted 5-26-1975 as Ch. XVIII of the 1975 Code.
For the purpose of this ordinance, the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
- ACT or CABLE TELEVISION ACT
- That statute of the State of New Jersey relating to cable television, known as the "Cable Television Act," N.J.S.A. 48:5A-1 et seq.
- Cablevision's application for renewal of municipal consent, which application is on file in the Borough Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The governing body of the Borough of Old Tappan in the County of Bergen and the State of New Jersey.
- Cablevision of New Jersey, Inc. (Cablevision), the grantee of rights under this ordinance.
- The Federal Communications Commission.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. Section 521 et seq. and the Telecommunications Act of 1996, or as those statutes may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television services, 47 C.F.R. Section 76.1 et seq. (and, to the extent applicable, any other federal rules and regulations relating to cable television, including but not limited to, those described in 47 C.F.R. Section 76.3), or as such regulations may be amended.
- The State of New Jersey.
- STATE REGULATIONS
- Those regulations of the State of New Jersey Board of Public Utilities relating to cable television, N.J.A.C.14:17-1.1 et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
A public hearing concerning the consent herein granted to Cablevision 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 Cablevision to receive this consent, the Borough hereby finds Cablevision possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent, and that Cablevision's operating and construction arrangements are adequate and feasible.
The Borough hereby grants to Cablevision its nonexclusive consent to place and maintain in, upon, along, across, above, over, and under its highways, streets, alleys, sidewalks, public ways, and public places in the municipality poles, wires, cables, and fixtures necessary for the maintenance and operation in the Borough of a cable television system, and for the provision of any other service over such system as permitted under federal and state law. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
The consent granted herein shall be nonexclusive and shall be for a term of 10 years from April 26, 2000, the date of expiration of the prior consent ordinance.
If Cablevision seeks successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with N.J.S.A. 48:5A-16 et seq., and applicable state and federal rules and regulations. The company shall also petition the Board for approval authorizing continued operation during the period following expiration of the consent granted herein, and until such a time that a decision is made by the Borough and the Board relative to the renewal of said consent.
The consent granted under this ordinance to Cablevision shall apply to the entirety of the Borough and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along any public right-of-way to any person's residence located in the franchise territory at tariffed rates for standard and nonstandard installations. All commercial installations shall be installed in accordance with the company's line extension policy included in Cablevision's application.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision shall pay to the Borough, as an annual franchise fee, a sum equal to 2% of the actual gross revenues received from all recurring charges in the nature of subscription fees paid by subscribers for its cable television reception services in the Borough or such amount as may be mandated by federal or state law. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Borough and the company shall negotiate in good faith with respect to the amount thereof.
Cablevision shall provide, free of charge, one standard installation and one outlet with monthly basic cable television service to the following municipal buildings: Borough Hall, the Police Department, the Fire House, the First Aid Corps, all state or locally accredited public and private schools and all public libraries. Basic cable television service, for purposes of this ordinance, shall consist of basic and family cable packages.
When high-speed Internet access via cable modem service becomes commercially available to residential customers within the Borough, the company shall provide to the Borough, free of charge, one high-speed cable modem and monthly Internet access service, including a standard installation, to one municipally designated building. The Borough shall be permitted, at its own cost, to network up to three additional personal computer terminals in the designated building (four computers in total) to the cable modem provided by the company. There will not be any monthly service fees for the single high-speed cable modem and monthly service provided to the Borough. When high-speed Internet access via cable modem service becomes commercially available to residential customers within the Borough, the company shall provide to the Borough, free of charge, one high-speed cable modem and monthly Internet access service, including a standard installation, to each public school and municipal library in the Borough.
In consideration for the rights granted by this ordinance, Cablevision shall provide the Borough with a one-time grant of $19,000 to be used by the municipality for cable and/or other telecommunications related purposes, including the support of PEG access related production and programming efforts in the Borough.
Cablevision shall perform construction and installation of its plant and facilities in accordance with applicable state and federal law. The company shall be subject to the following additional construction requirements with respect to the installation of its plant and facilities in the Borough:
In the event that Cablevision or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, sod, grass or other surfaces, it shall, at its sole expense, within 30 days of such disturbance, restore and replace such places or things so disturbed in as good a condition as existed prior to the commencement of said work.
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, Cablevision, upon reasonable notice by the municipality, shall remove, relay or relocate its equipment, at its expense.
Upon request of a person holding a building or moving permit issued by the Borough, Cablevision shall temporarily move or remove appropriate parts of its facilities so as to permit the moving or erection of buildings, machinery or for the performance of other work. The expense of any such temporary removal or relocation shall be paid to Cablevision by the person requesting same, except when requested by the Borough of Old Tappan, in which case Cablevision shall bear the cost.
During the exercise of its rights and privileges under this consent, Cablevision shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and fixtures of the Cablevision's facilities. Cablevision shall do so with such care as necessary so as not to injure any such trees.
Cablevision agrees that the capabilities of the system shall be maintained as technologically current throughout the duration of the franchise as other cablevision systems in New Jersey of comparable size (measured by the number of subscribers in the system) to the extent economically reasonable and to the extent commercially practicable. Cablevision shall make Internet service available to residents of the Borough to the extent that it is generally made commercially available by Cablevision, on other than a trial or test basis, elsewhere in the cable system. Notwithstanding the foregoing, nothing herein shall obligate Cablevision to rebuild the system. "Technologically current" is defined as the ability to support multiple analog and digital television services, interactive service and other two-way services.
Cablevision shall comply with the technical quality and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
Cablevision shall establish and maintain during the entire term of this consent a local area business office or agent for the purpose of receiving, investigating and resolving complaints regarding the quality of service, equipment malfunctions and similar matters. Said office shall be open daily during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, excluding holidays.
The Office of Cable Television is hereby designated as the complaint officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26. All complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect, at its sole cost, at all times during the term of this consent, sufficient liability insurance naming the Borough as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $1,000,000 for bodily injury or death to one person, and $3,000,000 for bodily injury or death resulting from any one accident, plus $3,000,000 for property damage. Cablevision shall file proper evidence of such coverage with the Borough Clerk each year during the term of this consent and shall notify the Borough of any changes in coverage or nonrenewal. Cablevision shall not cancel coverage or permit its cancellation without first giving the Borough 10 days' advance written notice.
Cablevision's rates for cable television service shall be subject to regulation to the extent permitted by federal and state law. N.J.S.A. 48:5A-11.1 allows for reduced or discounted rates for the elderly to be offered by Cablevision. During the term of this consent, Cablevision shall continue its current practice of offering reduced rates for senior citizens who meet the requirements of the Pharmaceutical Assistance to Aged and Disabled Program pursuant to N.J.S.A. 30:4D-21.
Cablevision shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Borough pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the Borough or any person, during an emergency, if for any reason the municipality is unable to make full use of the cable system as contemplated herein. The Borough shall utilize the state-approved procedures for such emergency uses.
Upon expiration, termination or revocation of this ordinance, Cablevision, at its sole cost and expense and upon direction of the Borough, shall remove the cables and appurtenant devices constructed or maintained in connection with the services authorized herein, unless Cablevision, its affiliated entities or assignees should, within six months after such expiration, termination or revocation, obtain certification from the FCC to operate an open video system or any other federal or state certification to provide telecommunications.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access as described in the application for municipal consent. Cablevision shall make access available for noncommercial PEG programming. Cablevision shall permit use of the public access studio and equipment for noncommercial purposes by Borough residents. Upon request, Cablevision will provide training to Borough residents biannually at the Cablevision access studios free of charge.
The Borough agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming during times when the Borough is not utilizing the channel for purposes of providing PEG access programming. In the event that the company uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use and the company's rights with respect to using the channel for non-PEG programming shall be subordinate to the Borough's provision of PEG access programming on such channel.
If requested by the Borough, Cablevision shall appear at an annual Council meeting to present an annual report concerning its services, which shall include, among other things, the number and nature of all service calls, written complaints, line problems and the number and duration of all service outages, as well to discuss changes, improvements, new procedures, service responses and other topics requested.
All of the commitments contained in the application and any amendment thereto submitted in writing to the Borough by Cablevision, except as modified herein, are binding upon Cablevision as terms and conditions of this consent. The application and any other writings submitted by Cablevision in connection with this consent are incorporated into this ordinance by reference and made a part hereof, except as specifically modified, changed, limited, or altered by this ordinance, which shall govern and control, or to the extent that they conflict with state or federal law.
In the event that another multichannel video program provider's service within the Borough creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the Borough lawful amendments to its franchise that relieve it of burdens which create the unfair competitive situation. Should the company seek such amendments to its franchise, the parties agree to negotiate in good faith appropriate changes to the franchise in order to relieve the company of such competitive disadvantages. If the parties can reach an agreement on such terms, the Borough agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the Borough acknowledges that the company shall have the right to petition the Board directly for such amendments in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, the Borough shall be under no obligation to support Cablevision's request for such relief from the Board.
Cablevision represents and acknowledges that as of the date of its acceptance of this municipal consent, competition within the Borough has not yet risen to the level of creating a significant competitive disadvantage sufficient to enable the company to seek relief under this section.
It is understood that should any state or federal agency or body modify, change or alter any of its provisions with respect to cable television generally, such modifications, changes or alterations shall be incorporated into this consent, consistent with the applicable dates specified in the change.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portion thereof.
This ordinance shall take effect upon issuance of a certificate of approval as issued by the Board of Public Utilities, but the consent term of the franchise shall relate back to and run from the date of expiration of the previous consent which expired on April 25, 2000.