[HISTORY: Adopted by the Board of Commissioners of the City of Bordentown 6-11-2018 by Ord. No. 2018-06. Amendments noted where applicable.]
Former Ch. 138, Construction Codes, Uniform, adopted 9-8-1980 by Ord. No. 1980-5, as amended, was repealed 1-25-1993 by Ord. No. 1993-1.
The City hereby grants to Comcast 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 municipality, 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 City of a cable television and communications system. This consent is subject to the terms and conditions of this chapter and upon the condition that the company accepts the provisions of this chapter, and confirms that it shall comply with the commitments contained herein.
For the purpose of this chapter, 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. Subsection 76.1 et seq., and the Cable Communications Policy Act, 47 U.S.C. Section 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:
- ACT or CABLE TELEVISION ACT
- Is Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1, et seq.
- Is the company's application for renewal of municipal consent.
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
- BOARD or BPU
- Is the Board of Public Utilities, State of New Jersey.
- CITY or MUNICIPALITY
- Is the City of Bordentown, County of Burlington, State of New Jersey.
- Is the grantee of rights under this chapter and is known as Comcast of Burlington County, LLC.
- Is the Federal Communications Commission.
- OFFICE or OCTV
- Is the Office of Cable Television of the Board.
- PRIMARY SERVICE AREA or PSA
- Consists of the area of the municipality currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
A public hearing was conducted by the Bordentown City Board of Commissioners during a regular meeting of the Board of Commissioners on July 11, 2016, concerning the renewal of municipal consent herein granted to the company, 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 Board of Commissioners, having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal consent, the Board of Commissioners 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.
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.
In the event that the City shall find that the company has not substantially complied with the material terms and conditions of this chapter, the City 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 City 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, N.J.S.A. 48:5A-30, the company shall, during each year of operation under the consent granted herein, pay to the City 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 City or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater. The current fee is 3.5% of the company's gross revenues, as defined under N.J.S.A. 48:5A-3(x), due to the fact that the Board has certified another cable television company as being capable of serving 60% or more of the households within the City, as set forth under N.J.S.A. 48:5A-30(d). The company agrees to continue paying the City the current franchise fee for the duration of this consent, so long as the terms of N.J.S.A. 48:5A-30 or any other applicable statute so require.
The consent granted under this chapter for the renewal of the franchise shall apply to the entirety of the City and any property subsequently annexed hereto.
The company shall be required to proffer service to any residence or business along any public right-of-way in the primary service area, as set forth in the company's application. Any extension of plant beyond the primary service area shall be governed by the company's line extension policy with a minimum homes per mile (HPM) of 35.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, or other surface in the natural 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. Any restoration shall commence as expeditiously as practical.
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, relay or relocate its equipment, at the expense of the company.
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.
Local ordinances. The company is subject to and shall be governed by all lawful and applicable provisions of federal, state laws and regulations. This franchise is further subject to all generally applicable ordinances and resolutions of the City in the exercise of its inherent police powers. Without waiving any of its rights, the City agrees that, to the extent any term of this municipal consent is inconsistent with the terms of any City ordinance existing prior or subsequent to the effective date, this municipal consent shall control.
In providing services to its customers, the company shall comply with N.J.A.C. 14:18-1, 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 Board of Commissioners upon written request of the City Clerk.
The company shall continue to comply fully with all applicable state and federal statutes and regulations regarding credit for outages, the reporting of same to regulatory agencies and notification of same to customers.
The company shall continue to fully comply with all applicable state and federal statutes and regulations regarding the availability of devices for the hearing impaired and the notification of same to customers.
The company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
Nothing herein shall impair the right of any subscriber or the City 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 permitted under law.
The company is permitted, but is not required to, change 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 City 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 City shall have the right to request copies of records and reports pertaining to complaints by City customers from the OCTV.
During the term of this franchise, and any renewal thereof, the company shall maintain a business office or agent in accordance with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating and resolving all local complaints regarding the quality of service, equipment malfunctions, and similar matters.
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. At the written request of the City Clerk, the company shall provide updated information pertaining to the performance bond on an annual basis.
The rates of the company shall be subject to regulation as permitted by federal and state law.
The company shall provide expanded basic or a similar tier of cable television service on one outlet at no cost to the schools listed in Exhibit A to this chapter and to each qualified existing and future school in the City, public and private, elementary, intermediate and secondary, provided the school is within 300 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the school requesting service.
Editor's Note: Exhibit A is on file in the City offices.
The company shall provide expanded basic or a similar tier of cable television service at no cost on one outlet to the City-owned and operated buildings listed in Exhibit A to this chapter, and each qualified existing and future police, fire, emergency management facility, public works building, and public library in the City, provided the facility is located within 300 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the City.
The company shall provide free basic internet access service, via high-speed cable modem, to one nonnetworked personal computer in each qualified existing and future public school in the City, elementary, intermediate and secondary, at no charge provided the facility is located within 175 feet of an active cable distribution plant. The internet access service shall be installed on a personal computer that is accessible to the students and not for administrative use only.
Within 90 days of receipt of a renewal certificate of approval, the company shall provide the City with a one-time technology grant in the amount of $3,000.
The Communications Act of 1934, as amended [47 U.S.C. § 543 (b)], allows the company to itemize and/or identify the amount on the subscriber bill assessed as a franchise fee and the identity of the governmental authority to which the fee is paid; the amount on the bill assessed to satisfy any requirements imposed on the company by the cable franchise to support public, educational, and/or governmental access channels or the use of such channels; and any grants or other fees on the bill or any tax, assessment, or charge of any kind imposed by any governmental authority on the transaction between the operator and the subscriber. The company reserves these external cost, pass-through rights to the extent permitted by law.
The company will continue to provide a dedicated educational and government access channel for shared use by the City and other municipalities served by Comcast of Burlington County, LLC.
The company does not relinquish its ownership of or ultimate right of control over a channel by designating it for educational and government access use. An educational and government access user acquires no property or other interest by virtue of the use of a channel so designated, and may not rely on the continued use of a particular channel number, no matter how long the same channel may have been designated for such use.
The company shall not exercise editorial control over any educational or governmental use of channel capacity, except the company may refuse to transmit any educational or governmental access program or portion of an educational or governmental access program that contains obscenity, indecency, or nudity.
Educational access. "Educational access" shall mean noncommercial use by educational institutions such as public or private schools, but not "home schools," community colleges, and universities.
Government access. "Government access" shall mean noncommercial use by the governing body of Bordentown City for the purpose of showing the public local government at work.
Company use of fallow time. Because blank or under-utilized access channels are not in the public interest, in the event the municipality or other educational access users elect not to fully program their access channel, the company may program unused time on those channels (at its discretion and for any purpose), subject to reclamation by the municipality upon no less than 60 days' written notice.
Indemnification. The municipality shall indemnify company for any liability, loss, or damage it may suffer due to violation of the intellectual property rights of third parties on the educational channel and from claims arising out of the municipality's rules for or administration of access.
The company will comply with the emergency alert system (EAS) rules in accordance with applicable state and federal statutes and regulations.
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 $5,000,000.
All of the statements and commitments contained in the application or annexed thereto and incorporated therein, and any amendment thereto, except as modified herein, are binding upon the company as terms and conditions of this consent. The application and other relevant writings submitted by the company shall be annexed hereto and made a part hereof by reference provided same do not conflict with applicable state or federal law.
Should the municipality 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 petition the Office of Cable Television for its approval to substitute such language that is more favorable or less burdensome for the comparable provision of this chapter subject to the provisions of N.J.A.C. 14:17-6.7. The company agrees to simultaneously provide a courtesy copy of the petition to the City Clerk in the event that it files such a request with the BPU under this section of the consent agreement.
If any section, subsection, sentence, clause, phrase or portion of this chapter 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 the 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.
The company shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The City agrees to treat any information disclosed by the company as confidential and only to disclose it to those employees, representatives, and agents of the City that have a need to know in order to enforce this chapter agreement and who agree to maintain the confidentiality of all such information.
The company shall not be required to provide customer information in violation of Section 631 of the Cable Act or any other applicable federal or state privacy law. For purposes of this section, the terms "proprietary or confidential" include, but are not limited to, information relating to the cable system design, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the company to be competitively sensitive. The company may make proprietary or confidential information available for inspection but not copying or removal by the municipality's representative. In the event that the City has in its possession and receives a request under a state "sunshine," public records, or similar law for the disclosure of information the company has designated as confidential, trade secret or proprietary, the City shall notify the company of such request.
The City, for its part, shall endeavor to exercise reasonable efforts to require developers and utility companies to provide the company with at least 15 days' advance notice of an available open trench for the placement of necessary cable.
This chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.