[Adopted 12-14-1999 by Ord. No. 3486-99]
The purpose of this ordinance is to grant to Adelphia the Township's 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 communication system in the mainland areas of the Township. Construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
For the purpose of this ordinance, the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
- ACT OR CABLE TELEVISION ACT
- That statute of the State of New Jersey relating to cable television, known as the "Cable Television Act," N.J.S.A. 48:5A-1 et seq.
- The Board of Public Utilities of the State of New Jersey or any successor agency.
- COMPANY OR ADELPHIA
- The licensee of rights under this ordinance and is known as "Clear Cablevision, Inc." d/b/a Adelphia Cable Communications.
- The Federal Communications Commission, as presently constituted by the United States Congress or any successor agency.
- FEDERAL ACT
- That federal statute related to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521 et seq., with such amendments as may be applicable.
- 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.
- MUNICIPAL CONSENT
- The legal authorization given under this ordinance to construct and operate a cable television system in the Township of Toms River pursuant to the Cable Television Act of New Jersey.
- Any person, firm, partnership, association, corporation, company or organization of any kind.
- The streets, avenues, highways, parks, parkways, driveways, concourses, boulevards, bridges, viaducts, tunnels, public places or any property to which the Township has title or over which the public has an easement or right-of-way.
- The lines, fixtures, equipment, attachments and all the appurtenances thereto whatsoever kind, which are used or intended for use in the construction, operation, maintenance and transmission of audio, video and/or other signals by the cable system herein authorized.
- The municipality of the Township of Toms River in the County of Ocean and State of New Jersey.
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.
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 hearings 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 Township hereby agrees to consent to a renewal of the company's cable television franchise according to the terms and conditions as set forth in this ordinance. In exchange for the Township's consent, the company has committed to undertake such obligations as set forth in the terms of this ordinance herein as well as within the company's application for renewal to the Township. The term for the renewal hereby granted shall be 10 years from the date of the expiration of the previous franchise.
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 shall, on or before the 25th day of January each year, file with the Chief Financial Officer of the municipality a statement verified by oath, showing the gross subscriber revenues and shall at the same time pay thereon to said Chief Financial Officer the two-percent charge hereby imposed as a yearly franchise revenue for the use of the streets.
The company shall at all times during the period of this license be subject to all lawful exercise of the police power by the Township and other public agencies. The construction, operation and maintenance of the system by the company shall be in compliance with the National Electric Code as currently in force and in full compliance with any other applicable laws, rules and regulations now in effect or hereafter adopted by the Federal Communications Commission of the United States, the Office of Cable Television of the Board of Public Utilities of the State of New Jersey and the County of Ocean.
All transmission and distribution structures, lines and equipment erected or operated by the company within the Township shall be located and operated so as to cause minimum interference with the rights or reasonable convenience of property owners adjoining any of said streets, alleys or other public ways and places of location or operation.
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 Township shall alter or change the grade of any street, alley or other way or place, the company upon reasonable notice by the Township, shall remove, relay and relocate its equipment, at the expense of the company.
Placement of fixtures. The company shall not place or operate any fixture 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 such manner as not to interfere with the usual travel or use of said streets, alleys and public or private ways or places in the use and enjoyment thereof by all of such public or private utility companies, or the owner of such places.
Temporary removal of cables. The company shall, upon request of the Township, at the company's sole expense, temporarily raise, lower or remove its lines in order to facilitate the moving of buildings or machinery or in other like circumstances. If by private request, the party requesting same shall be responsible for the company's expenses.
Removal or trimming of trees. During the exercise of its rights and privileges under this franchise, the company shall be responsible for the trimming of trees upon and overhanging streets, alleys, sidewalks and public places of the Township 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.
Restoration of landscaping. The company shall restore all landscaping, streets, etc., to prior condition for any installation, retrofit and/or maintenance without additional costs to the owner.
The consent granted herein to the company shall apply to the mainland section of Toms River Township and to any property hereinafter annexed thereto.
During the term of this franchise, and any renewal thereof, 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. The company shall strive to improve communications between itself and subscribers. Complaints of subscribers shall be addressed by the company in a timely fashion.
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 without charge or cost except for a continuing liability to pay any unpaid charges incurred to the time of termination.
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 USC § 543, has no jurisdiction over rates. Accordingly, the Municipality makes no determination as to the reasonableness of the rates proposed.
The basic service includes those channels which the company is required to carry by FCC rules and any channel which the company has previously agreed to carry without a separate or additional charge.
The cable operator shall provide access time to noncommercial public, governmental and educational entities to the extent such access was promised to the municipality in the application.
The company shall provide the installation of one outlet and basic monthly service to each school (and/or library) in the municipality free of charge. Schools in the municipality shall be interconnected on "B" cable for one channel forward and one channel return, with one channel on the subscriber's cable in the forward direction as promised to the municipality in the application. Each additional outlet in schools 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 number of lines supplied to the municipality as per the original agreement shall remain the same.
The municipality finds that the equipment and/or personnel to be provided by the company for public, educational or governmental use as provided in the application for municipal consent is reasonable.
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 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 to provide free internet services to the Toms River Regional School System, as it has in the past.
The company shall continue to provide local programming and news on Channel 8.
The company has provided a channel for municipal use which may be shared by the Police Department.
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 Township of Toms River as an 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, $100,000 for property damage resulting from any one accident.
We note 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.
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.
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.
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.
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 Public Utility Commissioners (PUC).