[HISTORY: Adopted by the Mayor and Council of the Borough of Wharton (Ch. XIII of the Revised General Ordinances). Amendments noted where applicable.]
This ordinance shall be known and may be cited as the "Sammons Communications of New Jersey, Inc. Franchise Ordinance."
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 shall be interpreted consistent with the definitions of the Federal Communications Commission, FCC Rules and Regulations, 47 CFR 76.1 et seq., and the Cable Communications Policy Act, 47 CFR 521 et seq., as amended, and shall in no way be construed to broaden, alter or conflict with the federal or state definitions.
- The application of Sammons Communications of New Jersey, Inc. and addenda thereto, which application and addenda are on file in the office of the Borough Clerk and are 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.
- BOROUGH or MUNICIPALITY
- The municipality of the Borough of Wharton in the County of Morris in the State of New Jersey.
- The commitments, terms and undertakings on the part of Sammons set forth in this ordinance.
- The grantee of rights under this ordinance and is known as Sammons Communications of New Jersey, Inc.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., or as that statute may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television service, 47 CFR 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 CFR 76.3), or as such regulations may be amended.
- STATE ACT or CABLE TELEVISION ACT
- Chapter 186 of the General Laws of New Jersey, 1972, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
- 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. 14:18-1.1 et seq., or as such regulations may be amended.
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. Any of the work noted above shall be done in accordance with those standards promulgated by the New Jersey Office of Cable Television and pursuant to those Borough ordinances and regulations governing road openings. The company will be required to make application to the Borough for road opening permits; however, the company will be relieved of any requirement to pay the requisite fees for such permits. In the event of an emergency, the Administrator/Clerk or her agent may waive the application process.
The municipality's consent to the renewal of the franchise is subject to the terms and conditions of this ordinance and the company's acceptance of the provisions of this ordinance and its written confirmation that it will comply with all of the commitments.
A public hearing regarding the company's consent application was held on November 13,1995, after proper public notice. The hearing was fully open to the public, and the Borough received at the hearing and for a period of 30 days thereafter all comments regarding the qualifications of the company to receive municipal consent. Pursuant to the terms and conditions set forth herein, the company possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent, and the company's operating and construction arrangements are adequate and feasible.
The consent herein granted shall be nonexclusive and shall expire 15 years from the date of the expiration of the current 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 48:54-16 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 Borough 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 Borough, or any greater amount permitted by the New Jersey Cable Television Act or otherwise allowed by law immediately upon the effective date thereof. The fee shall be paid on or before January 25 of each year, and at the same time the company shall file with the Chief Financial Officer of the municipality a verified statement showing the gross receipts upon which payment is based.
The company shall be required to proffer service along any public right-of-way to any person's residence or business located in those areas of the franchise territory described herein, in accordance with the proposal for the provision of service as described in the application. Additionally, the company shall pre-wire, at the company's expense, the proposed senior citizen housing, provided that the municipality give at least 30 days' written notice to the company prior to interior walls being closed so as to permit such pre-wiring. Such wiring of the facility shall include any internal wiring necessary to allow the residents of the facility to view the front entrance door via a camera provided by the center on the cable television system throughout the facility. The entrance door shall be able to be viewed on a channel designated by the senior citizen housing corporation. Such will be accomplished by trapping a channel designated by the senior citizen housing corporation. In no event shall the company be required to dedicated an unused channel for such use. The municipality shall also contact the company, in writing, during the planning phase of the above-mentioned project so as to enable the company to make arrangements to serve the facility.
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.
If at any time during the period of this consent the Borough shall alter or change the grade of any street, alley or other way or place, the company, upon reasonable notice by the Borough, shall remove, re-lay and relocate its equipment, at the expense of the company. However, to the extent any utility company is reimbursed for the relocation of its facilities, the company shall also be reimbursed for its expenses.
The company shall temporarily move or remove appropriate parts of its facilities to allow moving of buildings, machinery or in other similar circumstances. The expense for the movement or removal of such facilities shall be borne by the party requesting such action except when requested by the Borough, in which case the company shall bear the cost.
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 Borough so as to prevent, but only 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 each person's residence or business within the Borough based on the price schedule set forth in the application, which may be amended from time to time.
The consent granted herein to the company shall apply to the entirety of the Borough and any property hereafter annexed hereto.
During the term of this franchise, and any renewal thereof, the company shall maintain a local business office or agency for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters. The local business office need not be located within the Borough, but rather within a reasonable distance thereof affording convenient accessibility to Borough subscribers. 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. In addition, the company shall ensure that its telephone hours for its service departments are maintained from 9:00 a.m. to 11:00 p.m. Monday through Friday and 9:00 a.m. to 5:00 p.m. on Saturday. Further, in accord with N.J.A.C. 14:18-3.6, company representatives shall be available 24 hours a day to respond to outages and other emergent situations. In addition, telephone response for such purpose will be provided by the company's personnel, representative or agent 24 hours a day.
Facilities and equipment.
In transmitting its television signals to subscribers in the Borough the company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards.
The company shall comply with any requirements imposed by the Federal Regulations and (to the extent not preempted by federal law) state regulations relating to technical standards for the transmission of television signals, transmission quality, or facilities and equipment.
As soon as practicable after any source of television programming or signals ("programming source") carried by the company commences the transmission of at least 50% of its programming day utilizing an MTS (stereo) signal, the company shall, unless compelling reasons dictate otherwise, complete any necessary steps to effect its retransmission of such programming service with an MTS signal. However, the company shall not be required to effectuate such retransmission as to more than three channels during each year of the renewal term.
The company shall cause construction plans relating to work on major extensions of the company plant or work which could have a significant impact on public works within the Borough to be filed with the Borough Clerk. Nothing herein shall create any rights or obligations with respect to any construction work of the Borough or otherwise undermine the regulatory authority of the OCTV or the Board.
In order to maintain its level of telephone accessibility for calls relating to maintenance and repairs ("service"), installation, addition, or deletion of programming services, and other customer inquiries ("business"), the company shall do the following:
The company shall comply with any and all properly adopted rules or regulations of the OCTV or federal regulatory bodies insofar as they apply to telephone accessibility.
The company shall meet with the Borough or its authorized representatives at the Borough's written request on an annual basis and as otherwise reasonably requested to discuss the company's customer service, including telephone accessibility to Borough subscribers. Such meetings shall be held at the request of the Borough upon reasonable written notice to the company.
Nothing herein shall impair the right of any subscriber of the Borough to express any comment or complaint with respect to telephone accessibility to the Complaint Officer (as designated in § A390-13 hereof) or impair the right of the Complaint Officer to take any action which is appropriate under law.
The company shall maintain a telephone number by which subscribers wishing to communicate with the company by day or evening for any reason can reach it by a toll-free telephone call, and as to which the provisions of the preceding § A390-14B(1) shall apply.
The toll-free number shall be published in every monthly bill; and
In the event of major technical changeovers of converter equipment affecting the majority of subscribers, where such changeover of equipment is necessary for such subscribers to maintain their current level of service, the company shall exchange such equipment for the subscriber at the local office (and to the extent necessary, at night and on Saturday) at no cost to the subscriber other than the usual charges relating to the rental of such converter equipment.
Before sending out any questionnaire which will go exclusively to subscribers in the Borough, which questionnaire concerns subscribers in the Borough with respect to subscriber experiences, preferences or views, the company shall provide the Borough or its designee a reasonable opportunity to suggest revisions or matters for inclusion. The company shall provide the Borough or its designee with access to the questionnaire and any summaries or compilations or such responses permitted within the subscriber privacy provisions of federal law.
The company shall provide by means which are reasonable in quantity and quality information informing subscribers and potential subscribers to the most efficient procedures and telephone numbers for requesting installation, repairs and the addition or deletion of services, of addressing billing problems, and for reporting comments or complaints.
The company shall credit the accounts of company subscribers affected by service outages pursuant to N.J.A.C. 14:18-3.5, any and all properly adopted rules or regulations of the OCTV or applicable state or federal statutes, except that the company may, at its option, elect to credit customer accounts after outages or interruptions of services lasting only four hours.
Locally originated programming.
The company shall continue to make a available two channels for purposes such as public, educational and government (PEG) use, as set forth in the application, to the Borough. The company shall be deemed to have satisfied such obligation if those two PEG channels are shared by the Borough with other municipalities. Subject only to: (i) the requirements of law; (ii) any company requirements that PEG programming be of a noncommercial nature; and (iii) any need for the sharing municipalities to cooperate in programming origination, the municipality shall have full direction and flexibility with respect to program content in its use of the PEG channels, provided all such programming shall comply with applicable statutes, rules and regulations. It shall be understood that views expressed on PEG channels shall not be deemed to be the views of the company, and it shall not be responsible for the content of PEG programming or for views expressed on programming produced.
The company shall take any steps which are reasonably necessary to ensure that the signals transmitted on the PEG channels are carried without material degradation and that, to the extent the PEG channels' programming is originated with a signal whose quality meets accepted industry standards, it is equal to that of other channels the company transmits.
The company will produce, at its expense and upon the request of the Borough, at least two programs on an annual basis for the Borough, provided the company is given at least 30 days' written notice. Such programs shall be aired on the local access channel. The Borough Administrator shall act as the contact person between the Borough and company with respect to such matters. Borough residents who want the company to produce a program must present their ideas to the Borough Administrator, who will notify and seek approval of the company. If, however, the company has already produced programs similar to those requested by the Borough, those programs already produced shall count towards the program production requirements of this section. Similarly, if the company has already promoted the Borough 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 paragraph. The Borough Administrator must approve, in writing, any program the company wants to count towards its obligation under this paragraph.
Subject to the provisions herein and under supervision, if required, the company shall loan to the Borough for PEG broadcasts videotapes of programming relating to the Borough or matters of particular interest to the Borough (including, but not limited to, interviews with Borough officials and sporting events involving Borough teams) 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 its own originated programming, providing that the company may withhold such videotapes on reasonable grounds, including, but not limited to, the rights of copyright holders or its other commitments with respect to such programming.
Compliance with law. Notwithstanding any specific mention of applicable federal or state statutes or regulations above, the company shall comply with all of the requirements of the federal act, the federal regulations, the state act and state regulations (to the extent not preempted) and any other valid statute, regulation or rule, specifically including, but without limitation, those relating to equal employment opportunity.
The Borough will not regulate the rates the company may charge subscribers for its service, provided that, in the event the federal act and other applicable law hereafter is amended to permit the exercise of regulatory power over rates by municipalities, the Borough reserves the right to exercise the maximum power permitted by law.
The company shall implement a senior citizens' rate discount as described in its pre-published price schedule and as approved by the Board to any person 62 years of age or older who subscribes to cable services and does not share the subscription with more than one other person in the same household who is less than 62 years of age. Such subscribers must meet the income and residence requirements of the Pharmaceutical Assistance to Aged and Disabled Program pursuant to N.J.S.A. 30:4D-21 and N.J.A.C. 10:69A-1.1 (eligibility).
Although nothing herein shall require the company to carry or transmit any particular television stations or programming source, the company shall provide the subscribers in the Borough with at least the same broad categories of programming in approximately the same quantity as are now provided and which appear in the application.
The company shall provide the standard installation of at least one outlet and Lifeline and first tier level of monthly service to each school, library, municipally owned facility and firehouse or first aid squad located in the Borough free of charge. Each additional outlet installation fee shall be paid for by the institution on a materials-plus-labor basis, except that the company shall provide four outlets free of charge at the Borough Municipal Building. Monthly service on all other such additional outlets shall be charged at the regular tariffed rates for additional outlets. The company shall not be required to extend its lines to unserviced areas of the Borough in order to provide service to those facilities listed above.
Unless otherwise provided by law, in the event that a predominant number of the municipalities within the company's service area agree to participate in an emergency use system, the company shall be required to have the capability at the head end to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Borough. The Borough shall provide such facilities or, if such facilities are provided by the company, it shall be the responsibility of the Borough to pay for their use. The company shall in no way be held liable for any injury suffered by the Borough or any other person during an emergency if for any reason the Borough is unable to make full use of the cable television system as contemplated herein. The company and the participating municipalities shall also establish reasonable procedures for such uses.
Subject to the provision of § A390-18 herein, the company shall indemnify, protect and save the Borough harmless from and against losses and physical damages to property, including those properties owned or under the control of the Borough, and bodily injury or death of person, including payments made under any workmen's compensation law, which may arise out of or be caused by the company's negligence in the construction, location, installation, operation, erection, maintenance, presence, repair, replacement, removal or use of the cable television system within the Borough contemplated by this franchise or by any act or omission of the company, its agents or employees.
The company shall maintain, at all times during the term of the franchise liability insurance naming the Borough as an named insured and providing insurance coverage against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of any loss, injury or damage related to the company's operation of its cable television system. The amounts of such insurance against liability due to physical damages to property or bodily injury or death to any one person shall not be less than $1,000,000 and not less than $1,000,000 to any one accident and excess liability (or "umbrella") policy in the amount of $5,000,000.
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 this franchise. A certificate of insurance with the above-mentioned limits of liability must be submitted to the Borough to review. Said policy or policies of insurance or certificate of insurance shall be deposited with and kept on file by the Borough Clerk, and the Borough shall be a named insured on said policies. The insurer shall notify the Borough at least 30 days prior of its intention to cancel any policy. The insurer further shall certify to the Borough the fact of renewal of every such insurance policy at least 15 days prior to the expiration date.
To insure its faithful performance of its obligations under a renewal of the franchise during the renewal term, the company shall provide a performance bond in the sum of $25,000. Such bond shall specifically secure the faithful performance of all undertakings of the company as represented in the application and in the commitments. The Borough reserves the right by resolution to require a reasonable increase in the amount of said bond, subject to review by the OCTV and approval by the Board.
All of the statement and commitments contained in the application and any amendment thereto submitted, in writing, by the company to the Borough, except as modified herein, are binding upon the company as terms and conditions of this consent. The application and any other relevant writings submitted by the company shall be annexed hereto and made a part hereof by reference.
The company shall be bound by the terms and provisions of its ordinance irrespective of the number of subscribers to its system.