[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:
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.
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.
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.
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.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
The number of lines supplied to the municipality as
per the original agreement shall remain the same.
E.
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.
F.
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.
G.
The company shall continue to provide free internet
services to the Toms River Regional School System, as it has in the
past.
H.
The company shall continue to provide local programming
and news on Channel 8.
I.
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).
