[Adopted 3-26-2002 by Ord. No. 3680-02]
The purpose of this ordinance is to issue a municipal consent to the refranchisement of Cablevision of Monmouth, Inc., in the Township of Toms River, and to establish the terms and conditions of said consent, pursuant to the applicable 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 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, N.J.S.A. 48:5A-1 et seq.
- The Board of Public Utilities of the State of New Jersey or any successor agency.
- The grantee of rights under this ordinance and known as "Cablevision of Monmouth, Inc."
- The Federal Communications Commission or any successor agency.
- MUNICIPAL CHANNEL
- Those channels on the system which are used or reserved for use by the municipality and its agencies. This channel is to be used for noncommercial purposes only.
- The municipality of Toms River Township, County of Ocean, in the State of New Jersey.
- The Office of Cable Television established by the Cable Television Act.
- The streets, avenues, highways, parks, parkways, driveways, concourses, boulevards, bridges, viaducts, tunnels, places or any property to which the municipality has title or over which the public has an easement or right-of-way.
- A person or organization whose premises are physically wired and connected to the company facilities to receive company transmissions.
- TECHNOLOGY CURRENT
- The ability to support the multiple analog and digital television services, internet service and other two-way services.
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 provision of any communication service over such systems as may be authorized by federal or state regulatory agencies. Construction pursuant to said consent is conditioned upon prior approval of the Board of Public Utilities.
A series of public hearings concerning the consent herein granted to the company was held after proper public notice pursuant to the terms and conditions of the Act. Said hearings having been held as above stated and said hearings 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 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 existing 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 authorization for 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 required by the New Jersey Cable Television Act or otherwise required by law.
The company shall on or before the 25th day of January each year file with the chief fiscal officer of the municipality a verified statement showing the gross subscriber revenues received from the cable television reception service within the Township and shall at the same time pay thereon to said chief fiscal officer the two-percent charge hereby imposed as a yearly franchise revenue for the use of the streets.
Cablevision agrees that the capabilities of the system shall be maintained as technologically current throughout the duration of the franchise, as compared with other Cablevision of Monmouth, New Jersey, systems of comparable size, measured by the number of subscribers in the system, and to the extent economically reasonable and commercially practicable. Cablevision shall make internet service available to residents of the Township to the extent that it is generally made commercially available by Cablevision, on other than a trial or test basis, elsewhere on the cable system. Notwithstanding the foregoing, nothing herein shall obligate Cablevision to perform a rebuild of the system. The company shall extend service along any public right-of-way outside its service area to those residences within the franchise territory which are located in areas that have a residential density of 25 homes per mile or greater, or areas with less than 25 homes per mile where residents agree to share the costs of such extension in accordance with the line extension formula as provided by the company in its application for municipal consent.
The company shall be required to proffer service along any public right-of-way to any person's business or residence located in the franchise territory at tariff rates for standard and nonstandard installation.
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 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.
During the exercise of the 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 not place or operate any fixtures or equipment in such locations as will or may interfere with any other public or private utility system or any part thereof, and the location by the company of its lines and equipment shall be in the manner as not to unreasonably interfere with usual travel or use of streets or private ways.
Upon request of a person holding a building or moving permit issued by the Township, the company shall temporarily move or remove appropriate parts of its facilities so as to permit the moving or erection of buildings or for the performance of other work. The expense of any such temporary removal or relocation shall be paid in advance to the company by the person requesting the same. In such cases, the company shall be given not less than 14 days' prior written notice in order to arrange for the changes required.
The consent granted herein to the company shall apply to the beach portions of the Township of Toms River as described further in a map of the franchise area provided in the application and shall not apply to any portion of the mainland territory of the municipality.
During the term of this franchise, the company shall maintain, in or within reasonable proximity of its service area, 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. In addition, the company shall maintain a twenty-four-hour, seven-days-a-week telephone communications system to receive complaints regarding quality of service or service outages and similar matters. Complaints of subscribers shall be addressed by the company in a timely fashion.
The company shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
No person shall be required to receive the services of the company, and any person who shall agree to receive such services of the company may at his election at any time terminate the services of the company.
During the life of the franchise the company shall give a bond to the Township of Toms River, which bond shall be 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 municipality, pursuant to 47 U.S.C. § 543 and other applicable laws, has no jurisdiction over rates. Accordingly, the municipality makes no determination as to the reasonableness of the rates proposed.
Cablevision shall provide, free of charge, one standard installation and monthly cable television reception service to all state or locally accredited public schools and all municipal public libraries, as well as municipal buildings located within the Township franchise area.
Cablevision shall provide to the Township, free of charge, one high-speed cable modem and monthly internet access service, including standard installation, to the Toms River Township Police Substation located on the beach. The Township 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 Cablevision.
Cablevision shall implement a senior citizen discount in the amount of 10% off the rate for the monthly basic level of cable television reception service to any person 62 years of age or older who subscribes to cable television reception services provided by the company, subject to the following:
Such discount shall only be available to eligible senior citizens who do not share the subscription with more than one person in the same household who is less than 62 years of age; and
Subscribers seeking eligibility for the discount must meet the income and residence requirements of the Pharmaceutical Assistance to Aged and Disabled (PAAD) program in the state pursuant to N.J.S.A. 30:4D-21; and
The senior citizen discount herein relates only to the entry level basic rate of cable television reception service, and shall not apply to any additional service, feature, or equipment offered by the company, including premium channel services and pay-per-view services.
The basic service includes those channels which the company is required to carry by FCC rules and/or applied federal law. The company shall include in the video programming it offers subscribers the following broad programming categories:
The company shall not delete any broad category of programming within its control without the consent and approval of the Township and the Board. Should the company seek to delete in its entirety any broad category of programming provided herein, it may make such a request by application to the Board, on notice to the Township, stating the category deleted and the reasons therefor. Nothing herein shall be construed to extend any right to mandate or enforce any programming service requirement, except to the extent permitted under applicable federal law.
The cable operator shall provide access time to noncommercial public, governmental and educational entities to the extent such access was promised to the municipality as stated in the application which is incorporated herein.
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 shall continue its policy to broadcast local programming including, at a minimum, news of local events, athletics and other regional programming relevant to the Township and the surrounding area.
In the event that another multichannel video program provider's service within the Township creates a significant competitive disadvantage to Cablevision of Monmouth, Inc., the company shall have the right to request from the Township 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, it shall notify the Township prior to petitioning the Board for relief under this section. Upon notification to the Township of the company's intent to request amendments to the franchise, the Township and the company agree to negotiate in good faith appropriate changes to the franchise in order to relieve the company of such competitive disadvantages. If the Township and the company can reach an agreement on such terms, the Township 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.
If the Township and the company are unable to reach an agreement on appropriate amendments to the franchise, the Township 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 Township shall be under no obligation to support the company's request for such relief from the Board, and further provided that the company shall afford the Township adequate notice of its filing in order to enable the municipality sufficient time to respond.
The company represents and acknowledges that, as of the date of its acceptance of this municipal consent, competition within the Township has not yet risen to the level of creating a significant competitive disadvantage sufficient to enable the company to seek relief under this section.
The company agrees to maintain in full force and effect at its sole expense at all times during the terms of this consent sufficient liability insurance naming the Township of Toms River 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 $100,000 for property damage resulting from any one accident.
The terms of the company's application, and any amendments thereto except as modified by this ordinance, are incorporated herein and are binding upon the company's terms and conditions of this consent. The municipality notes that any portion of the application which is in conflict with the provisions of the Cable Television Act, 47 U.S.C. § 521 et seq., and/or FCC rules and regulations 76.1 et seq., as amended, is not to be construed as effective under the terms of this ordinance.
The company hereby acknowledges that if during the refranchisement period it is sold, said sale will be predicated on the purchaser's obligation to fulfill the terms of the application and this ordinance.
Nothing in this ordinance shall be held to limit or modify any power which any statute has granted or may later grant to the municipality to acquire by purchase or condemnation the real property of the company within the municipality.
Upon expiration, termination or revocation of this ordinance, Cablevision, at its sole cost and expense and upon approval of the Board, 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.
This consent shall be construed in a manner consistent with all applicable federal, state and local laws.
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 affect the validity of the remaining portions hereof.
Every direction, notice or order to be served upon the company shall be sent by certified mail or hand delivered. Every notice to be served upon the municipality shall be delivered or sent by certified mail to the Toms River Township Municipal Complex, 33 Washington Street, Toms River, New Jersey.
This ordinance shall take effect immediately upon final passage and publication as provided by law subject to the approval of the municipal consent herein granted by the Board.