[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:
- ACT or CABLE TELEVISION ACT
- 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.
- 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.
- 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.
- OFFICE or OCTV
- 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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
Pay a one-time technology grant of $175,000 to be paid within 12 months of the BPU issuing the certificate of approval.
Continue to provide one government access channel and one educational access channel.
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.
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.
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.
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.
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 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.