[HISTORY: Adopted by the Mayor and Council of the Borough of Emerson 12-28-1993 by Ord. No. 1031. Amendments noted where applicable.]
Editor's Note: This ordinance supersedes former Ch. A300, Cable Television Franchise, adopted 10-17-1978 by Ord. No. 706 (Ch. A136 of the 1966 Code).
The municipality hereby grants to the company its nonexclusive consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the municipality poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the municipality of a cable television system and cable communications system. Construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. Such meaning or definition of terms is supplemental to those definitions of the Federal Communications Commission, FCC Rules and Regulations, 47 CFR 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 or state definitions:
- ACT or CABLE TELEVISION ACT
- Chapter 186 of the General Laws of New Jersey, 1972, and subsequent amendments thereto, Section 48:5A-1 et seq.
- The grantee of rights under this ordinance, and is known as "Cablevision of New Jersey, Inc."
- The Municipality of Emerson, County of Bergen, in the State of New Jersey.
A public hearing concerning the consent herein granted to the company was held after proper public notice pursuant to the terms and conditions of the Act. Said hearing having been held as above stated and said hearing having been fully open to the public and the municipality having received at said hearing all comments regarding the qualifications of the company to receive this 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 consent herein granted shall expire 10 years from the date of the expiration of the original certificate of approval as issued by the Board of Public Utilities.
If the company seeks a successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with the Cable Television Act, N.J.S.A. 48:5A-11 and 48:5A-16, and applicable state and federal rules and regulations. The company shall also petition the Board for a certificate of 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 municipal governing body relative to the renewal of said consent.
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 to its cable television reception service in the municipality, or any amount permitted by the New Jersey Cable Television Act or otherwise allowed by law.
The company will offer service to any resident within the Borough at tariffed standard and nonstandard installation rates for facilities constructed on the public right-of-way. The company will provide service to residential units in commercial areas by utilizing the office's Line Extension Policy ("LEP") with a twenty-homes-per-mile figure. Upon completion of the rebuild of the system, the company shall extend plant into existing unbuilt commercial areas, and at that time shall discontinue the application of the commercial LEP. Commercial entities shall be installed at tariffed commercial rates.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces in the natural topography, the company shall at its sole expense restore and replace such places or things so disturbed in as good condition as existed prior to the commencement of said work.
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 and relocate its equipment, at the expense of the company.
The company shall temporarily move or remove appropriate parts of its facilities to allow moving of buildings or machinery or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the municipality, in which case the company shall bear the cost.
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 and public places of the municipality so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities.
The company shall provide installation to any person's residence or business as described in § A300-7.
The consent granted herein to the company shall apply to the entirety of the municipality and any property hereafter annexed thereto.
During the term of this franchise and any renewal thereof, the company shall maintain a local business office or agent for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters. Such local business office shall be open during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
The Office of Cable Television is hereby designated as the complaint officer for the Borough of Emerson pursuant to N.J.S.A. 48:5A-26b. All complaints shall be received and processed in accordance with N.J.A.C. 14:17-7.1.
During the life of the franchise, the company shall give a bond to the Borough of Emerson, which bond shall be in the amount of $50,000. 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 municipality, having determined that the rates proposed in the application for cable television reception service are reasonable, approves them as presented, subject to review and regulation by the Board, if permitted by law.
The basic service includes those channels which the company is required to carry by FCC rules and any channel which the company carries without a separate or additional charge.
The Borough will be allowed use of studio facilities and equipment in accordance with the municipal consent application, free of charge. This shall consist of use of the company's access studio, video text service and a community bulletin board. Two-way capability shall be provided from the Borough Hall and the local origination studio back to the company's headend.
The operator shall allow the Borough access time on one channel to be used for public, educational and governmental (PEG) access. This channel is available for PEG access to local residents for noncommercial local programming and is shared with the company's other franchised municipalities. Rules governing the use of the public, educational and governmental access channels and facilities which the company provides are attached hereto.
Editor's Note: The rules are on file in the Borough Clerk's office.
Upon completion of the rebuild of the system, the company shall provide at least one and a maximum of three dedicated access channels, one each for public, educational and governmental access based on utilization. If the existing channel is utilized to the extent that more than 80% of prime time (defined as 5:00 p.m. to 11:00 p.m.) is occupied by programming produced by public, educational and governmental users, not including repeat broadcasts, Cablevision will make additional channels available for such programming, up to a maximum of three total public, educational and governmental access channels.
The cable company shall provide the installation of one outlet and basic monthly service to each school (and/or library) in the municipality free of charge. Each additional outlet installation shall be paid for by the institution on a materials-plus-labor basis. Monthly service on such additional outlets shall be charged at the regular tariffed rates for additional outlets.
The company shall be required to have the capability at the headend to override the audio portion of the system in order to permit the broadcasting of emergency messages by the municipality. 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 municipality shall also establish reasonable procedures for such uses.
The company agrees to maintain and keep in full force and effect at its sole expense at all times during the term of this consent sufficient liability insurance naming the Borough of Emerson as an insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $250,000 for bodily injury or death to one person; $250,000 for bodily injury or death from any one accident; $500,000 for property damage resulting from any one accident; and $500,000 umbrella excess liability coverage for both bodily injury and property damage for each occurrence and in the aggregate. The company shall assure that no such policy of insurance shall be canceled without a minimum of 10 days' notice to the Borough or greater notice if required by regulations of the New Jersey Department of Insurance.
We note that any portion of the application which is in conflict with the provisions of the Cable Television Act, N.J.S.A. 48:5A-1, et seq., the Cable Communications Policy Act, 47 U.S.C. 521 et seq., and/or FCC Rules and Regulations, 47 CFR 76.1 et seq., as amended, is not to be construed as effective under the terms of this ordinance.
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 such holding shall not effect the validity of the remaining portions hereof.
The company shall hold and save the Borough harmless from and indemnify and defend the Borough against every claim, loss and liability of every kind arising in any and every way, directly or indirectly, immediately and consequentially from:
The grant or use of this municipal consent.
The construction, operation and/or maintenance of a cable television system and/or incidental fixtures or facilities within or without the Borough.
The acquisition of, or negotiation for the acquisition of, any interest in real estate, rights or privileges within or without the Borough.
The making, prosecuting or processing of any application for any governmental approval, permit or license, including all appeals.
All proceedings of every kind by or against the company except by public education and government access users.
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 expressed or implied hereunder, by law or otherwise arising out of this municipal consent.
The company's action, inaction, franchise operation, maintenance, construction, installation or the like.
"Loss" shall include all actual legal fees and court costs.
The company shall complete the rebuild of its cable system in the Borough to provide a minimum capacity of 60 channels no later than March 31, 1996.
This ordinance shall take effect immediately upon final passage and publication according to law, provided that the company shall have accepted in writing all of the terms and conditions set forth herein.