[HISTORY: Adopted by the Township Committee of the Township of Washington 7-16-2007 by Ord. No. 17-07. Amendments noted where applicable.]
Editor's Note: This ordinance replaced former Ch. A258, which consisted of Ord. No. 20-92, adopted 11-16-1992 (Ch. XVIII of the Revised General Ordinances), as amended.
The municipality hereby grants to Comcast 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 municipality, 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 municipality of a cable television and communications system.
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 C.F.R. Subsection 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 Northwest New Jersey, LLC.
- 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 or MUNICIPALITY
- The Washington Township, County of Morris, State of New Jersey.
Public hearings conducted by the municipality 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 the municipality, having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal consent, the municipality 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.
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.
In the event that the municipality shall find that the company has not substantially complied with the material terms and conditions of this ordinance, the municipality 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 municipality 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 municipality 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 municipality or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater. The fee shall be paid on or before January 31 of each year.
The consent granted under this ordinance to the renewal of the franchise shall apply to the entirety of the municipality and any property subsequently annexed hereto.
[Amended 6-16-2008 by Ord. No. 10-08]
The Company shall be required to proffer service to any residence or business along any public right-of-way in the primary service area, as set forth in the company's application. The company's line extension policy, as set forth in the company's application, shall govern any extension of plant beyond the primary service area, provided that the company's line extension policy shall be modified to reflect that the company shall extend its plant along public rights-of-way to all residences and businesses within 300 aerial or underground feet of the operator's existing plant at no cost beyond the normal installation rate.
Comcast will comply with all lawful rules and regulations governing the operation of its cable television system and cable communications system within the Township of Washington. If any referenced regulations are deemed unlawful by a court of competent jurisdiction or superseded by a duly enacted state or federal statute or regulation, Comcast will not be bound by such regulation, nor will the company be bound by any provision of the municipal consent ordinance or renewal certificate of approval with regard to same. Comcast reserves the right to seek administrative or judicial review of the validity of any statute, regulation or ordinance.
Editor's Note: This ordinance provided that it shall take effect upon final passage, approval and publication and upon issuance of an amended certificate of approval by the Board of Public Utilities.
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. The Township will make all reasonable efforts to insure the prompt issuance of municipal permits when required to install, repair or replace company cable plant.
Relocation: 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, the company, upon reasonable notice by the municipality, shall remove, re-lay or relocate its equipment, at the expense of the company.
Removal or trimming of trees: 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 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.
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 the municipality upon written request of the Municipality 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 statues 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 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 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 municipality shall have the right to request copies of records and reports pertaining to complaints by municipality 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 toll-free number shall be accessible 24 hours a day, seven days a week and listed on monthly customer bills.
During the life of the franchise, the Company shall give to the municipality 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 continue to provide a system-wide public access channel maintained by the company for the purpose of providing access time to public, educational and governmental entities of the Township. Qualified individuals and organizations may utilized the public access channel for the purpose of cablecasting noncommercial access programming in conformance with the Company's published public access rules.
The company shall take any steps that are necessary to ensure that the signal originated on the access channel are carried without material degradation and with a signal whose quality is equal to that of other standard channels that the company transmits.
The company will produce, at its expense and upon request of the Township, two programs on an annual basis for the Township, provided that the company is given at least 30 days' notice. Such programs shall be aired on the system access channel. The Township Clerk shall act as the contact person between the Township and the company with respect to such matters. If the company has already produced programs similar to those requested by the Township, those programs already produced shall count towards the two-program requirement. Similarly, if the company has already promoted the Township by way of two programs previously produced by the company during the year, they shall also be counted towards the company's requirement under this section. The Township Clerk must approve, in writing, any program the company wants to count towards its obligation under this section.
Subject to the provisions herein, and under supervision, if required, the company shall lend to the Township, for PEG broadcast, videotapes of programming relating to the Township or matters of particular interest to the Township (including but not limited to the interviews with Township officials and sporting events involving Township teams and local school events) which are in the company's possession or control and which have been previously shown on the company channel or such other channel the company uses for it own originated programming, provided that the company may withhold such videotapes on reasonable grounds, including but not limited to the rights of copyright holders or other commitments or policies with respect to such programming.
The Company shall provide or continue to provide standard installation and basic cable television service on one outlet at no cost to each school in the municipality, public and private, elementary, intermediate and secondary, and public library; and the Board of Education facilities at 53 West Mill Road and 259 Bartley Road, provided that each school, library or other facility is within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor-and-equipment basis by the school requesting service. Monthly service charges shall be waived on all additional outlets.
The company shall provide or continue to provide standard installation and basic cable television service at no cost on one outlet to each police, fire, first aid squad, and emergency management facility in the municipality and in the following municipal facilities: Public Works facility, 54 Rock Road; Recreation, Buildings and Grounds facility, 50 Rock Road; Senior Citizen Center, East Springtown Road; Recreation facility, 212 West Mill Road; Municipal Building and Court, 43 Schooley's Mountain Road, provided the facility is located within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor-and-equipment basis by the municipality. Monthly service charges shall be waived on all additional outlets.
The company shall provide standard installation and one free nonnetworked Internet connection and service via high-speed cable modem in each public library building, and all public and private schools. Connections are to be located in areas accessible to student and community use and cannot be restricted to administrative use. All facilities must be located within 200 feet of active cable plant.
Within 180 days of the issuance of a renewal certificate of approval (COA) by the BPU, the company shall provide to the municipality a one-time grant for access-related needs in the amount of $20,000.
The company shall provide limited training and access to production equipment for local programming to the extent that such equipment and training are available.
The company will comply with the Emergency Alert System ("EAS") rules in accordance with applicable state and federal statues 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 indemnify, protect and save the Township harmless from and against losses and physical damages to property, including those properties owned or under the control of the Township, and bodily injury or death of persons, including payments made under any worker's compensation law, which may arise out of or be caused by the construction, location, installation, operation, erection, maintenance, repair, replacement, removal or use of the cable television system within the Township contemplated by this franchise or by any act of the company, its agents or employees; provided, however, that the company shall not be required to indemnify, protect and save harmless for any losses and physical damages and bodily injury or death of persons which may arise out of or be caused by the negligent acts or omissions of the Township, its agents or employees.
The company shall also carry such insurance as it deems necessary to protect it from all claims under the workmen's compensation laws in effect that may be applicable to the franchise.
All insurance required by this ordinance shall be and remain in full force and effect for the entire life of the franchise. A certificate of insurance must be submitted to the Township Attorney to review for compliance with the above-mentioned limits of liability, and the Township shall be a named insured on said policies. The insurer shall notify the Township at least 30 days prior to its intention to cancel any policy.
All of the statements and commitments contained in the application or annexed thereto and incorporated therein, and any amendment thereto, except as modified herein, is binding upon the company as terms and conditions of this consent. The application and other relevant writings 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.
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 franchise 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.