[Adopted 2-23-2010 by Ord. No. 4242-10]
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, cable, and fixtures, apparatus,
and equipment as may be necessary for the construction, maintenance,
and operation in the municipality of a cable television system and
cable communications system. Operation and construction, pursuant
to said consent, is conditioned upon prior approval of the Board of
Public Utilities and compliance with regulations of the Board.
For the purposes 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
given by the Federal Communications Commission, FCC Rules and Regulations
at 47 C.F.R. § 76.1 et seq., and the Communications Act
of 1934 at 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 federal or state definitions:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1 et seq.
The company's application for renewal of municipal consent.
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 New Jersey, LLC.
The Federal Communications Commission.
The Township of Toms River, formerly known as the Township
Dover, County of Ocean, State of New Jersey.
The Office of Cable Television of the Board.
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.
Public hearings conducted by the municipality, concerning the
renewal of the municipal consent herein granted to the company, were
held after proper public notice pursuant to the terms and conditions
of the Act. The hearings have been held and were fully open to the
public, and the municipality having received 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 nonexclusive municipal consent herein granted shall expire
15 years from the date of expiration of the previous certificate of
approval as issued by the Board of Public Utilities. 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.
The consent granted herein is subject to an automatic renewal
term of 10 years in accordance with the procedures set forth in N.J.S.A.
48:5A-19 and 48:5A-25 and N.J.A.C. 14:18-13.6.
Pursuant to the terms and conditions of the Cable Television
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 Act or otherwise allowable by law, whichever
is the greater. 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 charge imposed as a yearly franchise revenue for the use of the
streets.
The company shall be required to complete any proposed construction
within the service area described in the application. The timetable
presented in the application is incorporated herein and has been determined
to be reasonable by the municipality.
The consent granted herein to the company shall apply to the
entirety of the municipality and any property hereafter annexed.
The company shall be required to proffer service along any public
right-of-way to any person's residence or business located in
those areas of the primary service area as set forth herein. Any extension
of the cable television system beyond the PSA will be made in accordance
with the Office of Cable Television's ("OCTV") line extension
policy ("LEP"), at tariffed rates for standard or nonstandard installation.
A.
Notice. Prior to the company entering a subscriber's property,
the subscriber will be notified of the purpose for entering, and the
approximate dates that the maintenance, repairs or construction will
begin and be completed.
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
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 and relocate its equipment, at
the expense of the company.
D.
Temporary removal of cable. The company 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 company shall
bear the cost.
E.
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, and
public places of the municipality so as to prevent the branches of
such trees from coming in contact with the wires and cables of the
company. This trimming shall be only to the extent necessary to maintain
proper clearance for the company's facilities.
F.
All transmissions 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 rights or reasonable
convenience of property owners adjoining any said street, alleys,
or other public ways and places of location or operation.
G.
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
a manner as to not 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.
H.
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.
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. This local business office shall have a publicly listed toll-free
telephone number and be open during normal business hours, and in
no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
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 life of the franchise, the company shall give a bond
to the municipality, which bond shall be in the amount of $25,000.
The bond shall be to insure the faithful performance of all undertakings
of the company as represented in its application and incorporated
herein.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
The company shall:
A.
Provide total preferred cable television service 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.
Provide total preferred cable television service at no cost on one
outlet to 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.
Pay a one-time technology grant of $175,000 to be paid within 12
months of the BPU issuing the certificate of approval.
D.
Continue to provide one government access channel and one educational
access channel.
E.
Provide one free internet access to a nonnetworked computer to any
public or private school or library in the municipality.
In the event that the municipality 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 municipality.
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 its construction and operation of the
cable television system, and an excess liability (or "umbrella") policy
in the amount of $5,000,000.
A.
The company will comply with the emergency alert system ("EAS") rules
in accordance with applicable state and federal statutes and regulations.
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.
All of the commitments and statements contained in the application
or annexed thereto and incorporated therein, and any amendments 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 consent. The application and any other relevant writings submitted
by the company shall be annexed hereto and made a part hereof by reference
as long as they do not conflict with state or federal law.[1]
[1]
Editor's Note: Said application is on file in the Township
offices.
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 municipality
upon written request of the municipality administrator or Clerk.
A.
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.
B.
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.
C.
The company 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.
Nothing in this franchise or in any prior agreement is or was
intended to confer third-party-beneficiary status of any member of
the public to enforce the terms of such agreements or franchise.
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 of the ordinance.
This ordinance shall take effect following its final passage
by the Township Council, approval by the Mayor, and 20 days after
publication as required by law, and upon the issuance of a renewal
certificate of approval from the BPU.
