[HISTORY: Adopted by the Mayor and Council
of the Borough of South Plainfield 5-17-2005 by Ord. No. 1699. Amendments
noted where applicable.]
The Borough hereby grants to Comcast of Plainfield,
LLC renewal of its nonexclusive municipal consent to place in, upon,
across, above, over and under highways, streets, alleys, sidewalks,
easements, public ways and public places in the Borough, poles, wires,
cables, underground conduits, manholes and other television conductors,
fixtures, apparatus and equipment as may be necessary for the construction,
operation and maintenance in the Borough of a cable television and
communications system.
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 C.F.R. 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 and state
definitions:
Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
The grantee of rights under this ordinance and is known as
Comcast of Plainfield, LLC.
The Federal Communications Commission.
The Borough of South Plainfield, County of Middlesex, State
of New Jersey.
The Office of Cable Television of the Board.
Public hearings conducted by the Borough, concerning
the renewal of municipal consent herein granted to the company were
held after proper public notice pursuant to the terms and conditions
of the Act and the regulations of the Board adopted pursuant thereto.
Said hearings, having been fully open to the public, and the Borough,
having received at said public hearings all comments regarding the
qualifications of the company to receive this renewal of municipal
consent, the Borough 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.
A.
The nonexclusive municipal consent granted herein
shall expire 15 years from the date of expiration of the previous
certificate of approval issued by the Board, with a ten-year automatic
renewal as provided by N.J.S.A. 48:5A-19 and 48:5A-25, and N.J.A.C.
14:18-13.6.
B.
In the event that the municipality shall find that
the company has not substantially complied with the material terms
and conditions of this ordinance, the municipality shall have the
right to petition the OCTV, pursuant to N.J.S.A. 48:5A-47, for appropriate
action, including modification and/or termination of the certificate
of approval; provided, however, that the municipality shall first
have given the company written notice of all alleged instances of
noncompliance and an opportunity to cure same within 90 days of that
notification.
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
for cable television reception service in the Borough or any higher
amount permitted by the Act or otherwise allowable by law, whichever
is greater.
The consent granted under this ordinance to
the renewal of the franchise shall apply to the entirety of the Borough
and any property subsequently annexed hereto.
The company shall be required to proffer service
along any public right-of-way to any person's residence or business
located in all areas of the franchise territory as described herein,
at tariffed rates for standard and nonstandard installations.
A.
Restoration. In the event that the company or its
agents shall disturb any pavement, street surfaces, sidewalks, driveways,
or other surface in the nature topography, the company shall, at its
sole expense, restore and replace such places or things so disturbed
in as good a condition as existed prior to the commencement of said
work.
B.
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 or relocate its equipment,
at the expense of the company.
C.
Temporary removal of cables. The company shall, upon
request of the municipality at the company's expense, temporarily
raise, lower, or remove its lines in order to facilitate the moving
of buildings or machinery or in other like circumstances. Whenever
the request is made by, for, or on behalf of private parties, the
cost will be borne by those same parties.
D.
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 or other public places of the municipality so as to prevent
the branches of such trees from coming in contact with the wires and
cable of the company. Such trimming shall be only to the extent necessary
to maintain proper clearance of the company's wire and cables.
In providing services to its customers, the
company shall comply with N.J.A.C. 14:18-1.1 et seq. and all applicable
state and federal statutes and regulations. The company shall strive
to meet or exceed all voluntary company and industry standards in
the delivery of customer service and shall be prepared to report on
it to the community upon written request of the Borough Administrator
or Clerk.
A.
The company shall continue to comply fully with all
applicable state and federal statues and regulations regarding credits
for outages, the reporting of same to regulatory agencies and notification
of same to customers.
B.
The company shall continue to fully comply with all
applicable state and federal statues and regulations regarding the
availability of devices for the hearing impaired and the notification
of same to customers.
C.
The company shall use every effort to meet or exceed
voluntary standards for telephone accessibility developed by the National
Cable Television Association (NCTA). Those standards shall include,
but not be limited to, the goal of answering 90% of incoming telephone
calls within 30 seconds.
D.
Nothing herein shall impair the right of any subscriber
or the municipality to express any comment with respect to telephone
accessibility to the Complaint Officer, or impair the right of the
Complaint Officer to take any action that is appropriate under law.
E.
The company is permitted, but is not required to,
charge a late fee consistent with applicable state and federal statutes
and regulations.
The Office of Cable Television is hereby designated
as the Complaint Officer for the municipality pursuant to N.J.S.A.
48:5A-26(b). All complaints shall be received and processed in accordance
with N.J.A.C. 14:17-6.5. The municipality shall have the right to
request copies of records and reports pertaining to complaints by
Borough customers from the OCTV.
A.
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. Telephone response for such purposes as mentioned herein will
be provided by the company's employees, representatives or agents
24 hours per day.
B.
The telephone number and address of the local office
shall be listed in applicable telephone directories and in correspondence
from the company to the customer. The telephone number for the local
office shall utilize an exchange that is a non-toll call for Borough
residents.
During the life of the franchise the company
shall give to the municipality a bond 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 rates of the company shall be subject to
regulation as permitted by federal and state law.
A.
The company shall continue to provide residents with
a system-wide public access channel (currently channel 74) maintained
by the company. Qualified individuals and organizations may utilize
public access for the purpose of cablecasting noncommercial access
programming in conformance with the company's published public access
rules.
B.
The company shall continue to provide a system-wide
leased access channel (currently channel 73) maintained by the company
for the purpose of cablecasting commercial access programming in conformance
with the company's guideline and applicable state and federal statutes
and regulations.
C.
The company shall take any steps that are necessary
to ensure that the signals originated on the access channels are carried
without material degradation, and with a signal whose quality is equal
to that of the other standard channels that the company transmits.
A.
The company shall provide or continue to provide free
basic television service on one outlet at each of the following municipal
facilities and locations: Borough Hall, Police Department and Municipal
Court; Fire Department, Rescue Squad, Emergency Management Office,
Department of Public Works building, Public Library and Senior Center,
provided each facility is located within 200 feet of active cable
distribution plant.
B.
The company shall provide or continue to provide free
basic television service on one outlet in each public and private
elementary and secondary school; and provide a high level tap to provide
adequate signal for multiple outlets at South Plainfield High School
and South Plainfield Middle School, provided all facilities are located
within 200 feet of active cable plant.
C.
The company shall provide free high-speed Internet
service to one nonnetworked computer at all public and private secondary
and elementary schools in the district. Computers must be available
to student use and not restricted to administrative use. All facilities
must be located within 200 feet of active cable plant.
D.
The company shall provide free high-speed Internet
service at one nonnetworked computer in the Public Library. An additional
high-speed Internet outlet shall be installed at proposed new library
when constructed and at written request of municipal council. All
computers so installed must be available to library patrons and not
restricted to administrative use. All facilities must be located within
200 feet of active cable plant.
E.
The company shall also provide free installation of
Internet connection via high speed cable modem to one nonnetworked
computer at each of following facilities and locations: Borough Hall,
Police Department and Municipal Court; Fire Department, Rescue Squad,
Emergency Management Office, and Department of Public Works building.
All facilities must be located with 200 feet of active cable plant.
F.
Within 12 month of the issuance of a renewal certificate
of approval (COA) by the BPU, the company shall provide to the Borough
a one-time grant for access related needs in the amount of $72,500.
G.
The company shall provide an annual grant of $5,000
for 15 years from the date of the COA issuance in support of a community
program of the Borough's choosing to be paid by mid-August of each
year.
H.
Provide videotaping of the Borough's annual Labor
Day parade and fireworks display.
I.
Allow programming schedule on system access channel
to provide three evening hours two days a week, and three hours per
week during daytime hours for municipal programming. Additional access
channel programming shall be provided when current schedule is programmed
with nonduplicative video programming for six consecutive months.
In the event that the Borough determines that
it is necessary and feasible for it to contract with the company for
the purpose of providing two-way or interconnection services, the
company shall be required to apply to the BPU for approval to enter
into and establish the terms and conditions of such contract. All
costs for such application to the BPU shall be borne by the Borough.
A.
The company shall be required to fully comply with
all applicable federal and state statutes and regulations rules and
regulations governing the implementation, operation and testing of
the emergency alert system (EAS).
B.
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 company shall at all times maintain a comprehensive
general liability insurance policy with a single limit amount of $1,000,000
covering liability for any death, personal injury, property damages
or other liability arising out of its construction and operation of
the cable television system, and an excess liability (or "umbrella")
policy in the amount of $3,000,000.
All of the commitments and statements contained
in the application and any amendment thereto submitted in writing
to the municipality by the company, except as modified herein, are
binding upon the company as terms and conditions of this municipal
consent. The application and any other relevant writings submitted
by the company shall be considered a part of this ordinance and made
a part hereof by reference as long as it does not conflict with state
or federal law. All ordinances or parts of ordinances or other agreements
between the Borough and the company that are in conflict with the
provisions of this agreement are hereby declared invalid and superseded.
Should the Borough grant a franchise to construct,
operate and maintain a cable television system to any other person,
corporation or entity on terms materially less burdensome or more
favorable than the terms contained herein, the company may substitute
such language that is more favorable or less burdensome for the comparable
provision of this ordinance subject to the provisions of N.J.A.C.
14:17-6.7.
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 its validity or unconstitutionality shall
not affect the validity of the remaining portions of this ordinance.
Nothing in this franchise or in any prior agreement
is or was intended to confer third-party beneficiary status on any
member of the public to enforce the terms of such agreements or franchise.
Terms of the automatic renewal of this agreement
may be renegotiated by mutual consent of both parties (the Borough
and the company), provided that the request for renegotiations be
made in writing to the other party no sooner than nine months and
no later that six months before the expiration of the initial fifteen-year
term granted in the COA; and that the second party agrees to such
negotiations in writing within 30 days of receipt of notification
of the renegotiation request. If written agreement by both parties
to renegotiate does not occur within 30 days of the request, the additional
ten-year term shall automatically take effect upon the expiration
of the initial fifteen-year term, as provided by N.J.S.A. 48:5A-19
and 48:5A-25, and N.J.A.C. 14:18-13.6.
This ordinance shall take effect immediately
upon issuance of a renewal certificate of approval by the BPU.
