[HISTORY: Adopted by the Mayor and Council of the Borough of Old
Tappan 8-19-2002 by Ord. No. 799-02.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch.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:
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.
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.
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.
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.
A.
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.
B.
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.
A.
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.
B.
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:
A.
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.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
