[HISTORY: Adopted by the Township Committee of the Township of Pennsauken 4-27-2011 by Ord. No. 2011:13. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. A353, Cable Television, adopted 10-25-1995 by Ord. No. 95-6.
The Township of Pennsauken hereby grants to Comcast (herein also referred to as "Company"), subject to the terms and conditions of this chapter, 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.
Except for the Company's right to use the Township's streets as granted above, no easement, right-of-way, title in fee simple, leasehold or other interest in real estate nor any other interest in property of the Township is hereby granted.
The foregoing consent is and shall at all times also be subject to full compliance with the Township's Zoning Ordinance, Land Subdivision Ordinance, all other Township ordinances and resolutions and all rules, regulations and laws of all applicable jurisdictions ("requirements") as to all aspects of locations, operations, maintenance and to all facilities and equipment, movable or fixed, except as such requirements may be preempted under state or federal law.
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 ("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.
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
- BOARD or BPU
- The Board of Public Utilities, State of New Jersey.
- The grantee of rights under this ordinance and is known as Comcast of Garden State, L.P.
- The Federal Communications Commission.
- 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, TOWNSHIP or MUNICIPALITY
- The Township of Pennsauken, County of Camden, State of New Jersey.
Public hearings conducted by Township Committee 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 Township Committee having received and considered at said public hearings all comments regarding the qualifications of the Company to receive this renewal of municipal consent, Township Committee herein 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;
That the Company has substantially complied with its obligations under the franchise and applicable law, and has provided generally satisfactory service, and the Township has no reason to believe that in the future the Company would fail to comply with its obligations under a renewal of the franchise and under applicable law; and
That if the Company undertakes the commitments herein, and performs thereunder, such shall provide a reasonable assurance of meeting the Township's future cable-related needs.
The nonexclusive municipal consent granted herein shall expire 15 years from the date of expiration of the previous certificate of approval issued by the Board with a ten-year automatic renewal as provided by N.J.S.A. 48:5A-19 and 48:5A-25, and N.J.A.C. 14:18-13.6.
In the event that the Township shall find that the Company has not substantially complied with the material terms and conditions of this ordinance, the Township 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 Township 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.
Comcast shall report gross revenues in accordance with regulations set forth by the Board of Public Utilities. Comcast agrees that such information shall be available to the Township from the Board of Public Utilities upon request.
The consent granted under this ordinance to the renewal of the franchise shall apply to the entirety of the Township and any property subsequently annexed hereto. Any questions or clarifications sought as to boundary locations or rights or interests in property shall be resolved by the Company at its own cost and expense.
The Company shall, during the franchise period, offer cable television reception service to every present or future dwelling unit, school, institution and business located and to be located in the primary service area of the franchise territory, as reflected on the map included in the Company's application. The Company shall provide that connection not later than three months following the date of the issuance of a certificate of occupancy for a new dwelling unit, provided that reasonable advance notice is given by the new owner or resident to the Company concerning his or her desire for service.
No line extension charge shall be levied by the Company within the franchise territory on existing streets and roads. Streets and roads constructed after franchise adoption, or extensions of existing streets and roads, will be governed by the Company's line extension policy, HPM (homes per mile) of 35.
Standard installation charges shall apply to all installations measured from the main service line or right-of-way line, whichever is less, or as same shall be modified by the Company's tariff.
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 Township shall alter or change the grade of any street, alley or other way or place or change the location or grade of any municipally owned water or sewer facility or other municipally owned utility facility, the Company, upon reasonable notice by the Township, shall remove, re-lay or relocate its equipment, at the expense of the Company.
Removal or trimming of trees. Subject to the following conditions, 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 Township 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.
Except for an emergency situation that effects the public right-of-way, the Company shall not trim a privately owned tree until the Company has provided the owner of the tree with reasonable notice, and complies with all laws respecting any approval to be secured from the owner of privately owned trees.
Temporary removal of cables. The Company shall, upon request of the Township, at the Company's expense, temporarily raise, lower or remove its cables and associated facilities in order to facilitate the moving of Township-owned buildings, equipment, vehicles and machinery and to accommodate other like circumstances. In light of a temporary removal request by other than the Township for non-Township-owned buildings, equipment, vehicles and machinery, the cost of such temporary removal shall be the responsibility of the requesting party. For purposes of this subsection, the Company may require prepayment for expenses associated with such removal request made by other than the Township.
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 Township Committee 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 credit 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 reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
Nothing herein shall impair the right of any subscriber or the Township 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 permitted under law.
The Office of Cable Television is hereby designed 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 Township shall have the right to request copies of records and reports pertaining to complaints by Township customers from the OCTV.
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. Such a business office shall have a publicly listed toll-free telephone number and be open during standard business hours, and in no event (excepting emergent circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday. The Company may make reasonable efforts to comply with the recommended cable industry service standards of the National Cable Television Association.
During the life of the franchise the Company shall give to the Township 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 total preferred cable television service on one outlet at no cost to each qualified existing and future school in the Township, public and private, elementary, intermediate and secondary, provided the school is within 175 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor basis by the school requesting service. Monthly service charges shall be waived on all additional outlets.
The Company shall provide total preferred cable television service at no cost on one outlet to the Township building, the Homestead Youth Association building, each police, fire, emergency management facility, and public library in the Township, provided the facility is located within 175 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a material-plus-labor basis by the Township. Monthly service charges shall be waived on all additional outlets.
The Company shall provide free basic Internet service, via high-speed cable and modem, to one nonnetworked personal computer in each qualified existing and future school in the Township, public and private, elementary, intermediate and secondary, at no charge provided the facility is located within 175 feet of active cable distribution plant. The Internet service shall be installed on a personal computer that is accessible to the students and not for administrative use only.
The Company shall provide free basic Internet access via high-speed cable and modem on one nonnetworked personal computer in each qualified existing and future public library at no charge provided the facility is located within 175 feet of active cable distribution plant. The Internet shall be installed on a personal computer that is accessible to library patrons and not for administrative use only.
Within six months of receipt of a renewal certificate of approval, the Company shall provide the Township with a one-time grant in the amount of $85,000 for the Township's cable, technology, and other related needs.
The Company will continue to provide one channel for educational and governmental ("EG") access for the shared use by the residents of Pennsauken Township and Merchantville Borough (collectively "municipalities") on the most basic tier of service offered by the Company in accordance with the Cable Act, § 623, and as further set forth below. The governing bodies of Pennsauken Township and Merchantville Borough or a designated educational institution shall provide government and/or educational video programming. Unused capacity may be utilized by the Company subject to the provisions for "fallow time" below.
The Company does not relinquish its ownership of or ultimate right of control over a channel by designating it for EG use. An EG access user — whether an educational or government user — acquires no property or other interest by virtue of the use of a channel so designated, and may not rely on the continued use of a particular channel number, no matter how long the same channel may have been designated for such use.
The Company shall not exercise editorial control over any educational or governmental use of channel capacity, except the Company may refuse to transmit any educational or governmental access program or portion of an educational or governmental access program that contains obscenity, indecency, or nudity.
The governing bodies of Pennsauken Township and Merchantville Borough shall be responsible for developing, implementing, and enforcing rules for EG access channel use which shall ensure that the EG access channel and the EG access equipment, which shall be provided by the municipalities or designated educational institution, will be available on a first-come, first-served, nondiscriminatory basis.
Educational access. "Educational access" shall mean noncommercial use by educational institutions such as public or private schools, but not "home schools," community colleges, and universities.
Government access. "Government access" shall mean noncommercial use by the governing bodies of Pennsauken Township and Merchantville Borough for showing the public local government at work.
Company use of fallow time. Because blank or underutilized EG channels are not in the public interest, in the event the municipalities or other EG access users elect not to fully program their EG access channel, the Company may program unused time on those channels (at its discretion and for any purpose), subject to reclamation by the municipality upon no less than 60 days' written notice.
Indemnification. The Township shall indemnify the Company for any liability, loss, or damage it may suffer due to violation of the intellectual property rights of third parties on the EG channel and from claims arising out of the Township's rules for or administration of access.
The Company will comply with Emergency Alert System ("EAS") rules in accordance 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 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. The Company shall use reasonable commercial efforts to assure that no such policy of insurance may be cancelled without a minimum of 30 days' notice to the Township. The Company shall deliver to the Township certificates of insurance naming the Township as an additional insured for every such policy immediately upon or prior to the effective date of each.
All of the statements, representations and commitments contained in the application or annexed thereto and incorporated therein, and any amendment thereto, except as modified herein, are binding upon the Company as terms and conditions of this consent. The application and other relevant writings and/or documents in connection therewith submitted by the Company shall be annexed hereto and made a part hereof by reference provided same do not conflict with applicable state or federal law. All ordinances or parts of ordinances or other agreements between the municipality and the Company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
Should the Township 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 ordinance subject to the provisions of N.J.A.C. 14:17-6.7.
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 the ordinance.
Nothing in this consent, in the franchise renewal, 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.
In the event of any change in controlling law or any change in any controlling regulations or ruling of any federal, state or other governmental body or agency, each such change shall be incorporated into this consent effective on and after the applicable date of each such change.
The Company shall hold and save the Township harmless from and indemnify and defend the Township against every claim, loss and liability of every kind arising in any and every way, directly and indirectly, immediately and consequentially ("loss"), from:
The grant or use of this municipal contract.
The construction, operation and/or maintenance of a cable television system and/or incidental fixtures or facilities within or without the Township.
Any act or omission of the Company or any of its officers, directors, employees, agents, contractors, suppliers, materialmen or affiliated companies.
The exercise or implementation, whether or not proper or lawful, of any right or privilege, express or implied hereunder, by law or otherwise arising out of this municipal consent or in any other way caused, directly or indirectly, by the Company's action, inaction, franchise, operation, maintenance, construction, installation or the like, except that this section shall not apply to any loss caused by or attributable to the Township's actions or inactions.
"Loss" shall include all actual legal fees and court costs.
Notwithstanding the foregoing, this section shall not apply to any loss caused by or attributable to the Township's actions or inactions.
Ordinance No. 95-6 of the Township of Pennsauken, adopted October 25, 1995, be and hereby is repealed as contrary to and inconsistent with the provisions of this ordinance, and superseded by this ordinance.
All ordinances contrary to the provisions of this ordinance are hereby repealed to the extent that they are inconsistent herewith.
This ordinance shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.