[HISTORY: Adopted by the Township Committee of the Township
of Delaware 12-27-2011 by Ord.
No. 2011-15. Amendments noted where applicable.]
The municipality 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 municipality 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 CFR 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:
APPLICATION
The companies' 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
The Board of Public Utilities, State of New Jersey.
COMPANY or COMCAST
A.
Within Zone A, as shown on the map and described in the metes
and bounds description appended hereto and made a part hereof, Comcast
of Southeast Pennsylvania, LLC.
B.
Within Zone B, as shown on the map and described in the metes
and bounds description appended hereto and made a part hereof, Comcast
of Central New Jersey II, LLC.
C.
References in the plural shall be deemed to apply to both companies.
FCC
The Federal Communications Commission.
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 companies'
application for municipal consent.
Public hearings conducted by the municipality, concerning the
renewal of municipal consent herein granted to the companies 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 municipality,
having received at said public hearings all comments regarding the
qualifications of the companies to receive this renewal of municipal
consent, the municipality hereby finds that the companies possesses
the necessary legal, technical, character, financial and other qualifications
and that the companies' operating and construction arrangements
are adequate and feasible.
A. The nonexclusive municipal consent granted herein shall expire 10
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 25, and N.J.A.C. 14:18-13.6.
B. In the event that the municipality shall find that the companies
have 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 companies
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 companies
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 for
cable television reception service in the municipality 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 municipality and any
property subsequently annexed hereto and the territory of the municipality
as follows:
A. As to Comcast of Southeast Pennsylvania, LLC, Zone A, being more
fully described on the map and metes and bounds description appended
hereto and made a part hereof as if set forth in full herein.
B. As to Comcast of Central New Jersey II, LLC, Zone B, being more fully
described on the map and metes and bounds description appended hereto
and made a part hereof as if set forth in full herein.
C. The description and map, referred to herein, may be found attached
to the ordinance as the appendix.
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 of 30 homes per mile.
A. Restoration. In the event that the companies or their agents shall
disturb any pavement, street surfaces, sidewalks, driveways, or other
surface in the natural topography, the companies shall, at their 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 companies, upon reasonable notice by the
municipality, shall remove, re-lay or relocate its equipment, at the
expense of the companies.
C. Temporary removal of cables. Upon request, the companies shall temporarily
move or remove appropriate parts of its facilities to allow for the
moving of buildings, and machinery or in other similar circumstances.
The expense shall be borne by the party requesting such action, except
when requested by the municipality, in which case, the companies shall
bear the cost.
D. Removal or trimming of trees. During the exercise of its rights and
privileges under this franchise, the companies 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
companies. Such trimming shall be only to the extent necessary to
maintain proper clearance of the companies' wire and cables.
In providing cable services to its customers, the companies
shall comply with N.J.A.C. 14:18-1 et seq. and all applicable state
and federal statutes and regulations. The companies 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 municipality upon written request of the Municipality Administrator
or Clerk.
A. The companies 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.
B. The companies 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.
C. The companies shall use every reasonable effort to meet or exceed
voluntary standards for telephone accessibility developed by the National
Cable Television Association (NCTA).
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 permitted under law.
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 municipality customers
from the OCTV.
During the term of this franchise, and any renewal thereof,
the companies 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. Such a business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours, and in no event (excepting emergent
circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
During the life of the franchise, the companies 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 companies
as represented in its application for municipal consent incorporated
herein.
The rates of the companies shall be subject to regulation as
permitted by federal and state law.
A. The companies shall provide expanded basic cable television service,
within its respective zones (A&B), on one outlet at no cost to
each school in the municipality, public and private, elementary, intermediate
and secondary, provided the school is within 175 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. Monthly service charges shall be waived on all additional
outlets.
B. The companies shall provide expanded basic cable television service,
within its respective zones (A&B), at no cost on one outlet to
the Township Building, each police, fire, emergency management facility
and public library in the municipality, provided the facility is located
within 175 feet of active cable distribution plant. Each additional
outlet installed, if any, shall be paid for on a materials-plus-labor
basis by the municipality. Monthly service charges shall be waived
on all additional outlets.
C. The companies shall provide free basic Internet access via high-speed
cable and modem, within its respective zones (A&B), on one non-networked
personal computer in each qualified existing and future public library
at no charge, provided the facility is located within 175 feet of
active cable distribution plant. The Internet access shall be installed
on a personal computer that is accessible to library patrons and not
for administrative use only.
D. Within six months of passage of the certificate of approval, the companies shall make available in Zone A the education and government channel broadcast in Zone B, pursuant to the conditions outlined in §
A401-15 of this ordinance.
A. The companies will continue to provide one channel for educational
and governmental (EG) access for the residents of Delaware Township.
The companies will provide and maintain the cable, modulators and
equipment necessary for the Township education-government access channel
to send a signal to the companies, and to receive the return feed
signal. The companies will not be responsible for the acquisition
or maintenance of any studio equipment used for the access channel
including, but not limited to cameras, editing decks, monitors, character
generators, etc.
B. The companies do not relinquish its ownership of or ultimate right
of control over a channel by designating it for EG use. An EG access
user, whether an educational or government 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.
C. The companies shall not exercise editorial control over any educational
or governmental use of channel capacity, except companies 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.
D. The governing bodies shall be responsible for developing, implementing,
and enforcing rules for EG access.
E. Educational access. "Educational access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not "home schools," community colleges, and/or universities.
F. Government access. "Government access" shall mean noncommercial use
by the governing bodies, for the purpose of showing the public local
government at work.
G. Companies use of fallow time. Because blank or underutilized EG channels
are not in the public interest, in the event the municipality or other
EG access users elect not to fully program their EG access channel,
companies 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.
H. Indemnification. The municipality shall indemnify the companies for
any liability, loss, or damage it may suffer due to violation of the
intellectual property rights of third parties on the EG channel and
from claims arising out of the municipality's rules for or administration
of access.
A. The companies will comply with the Emergency Alert System (EAS) rules
in accordance with applicable state and federal statutes and regulations.
B. The companies 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 companies 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 companies as terms
and conditions of this consent. The application and other relevant
writings submitted by the companies 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 companies 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 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.