[HISTORY: Adopted by the City Council of the City of Passaic 3-9-2010 by Ord. No.
1824-10.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former Ch. A321,
Cable Television Franchise, adopted 5-4-2000 by Ord. No. 1486-00.
For the purpose of this ordinance, the terms defined above shall
have the meanings there indicated, and the following additional terms
shall have the following meanings:
That statute of the State of New Jersey relating to cable
television, known as the Cable Television Act, N.J.S.A. 48:5A-1 et
seq.
Cablevision's application for renewal of municipal consent,
which application is on file in the City Clerk's office and is
incorporated herein by reference and made a part hereof, except as
modified, changed, limited or altered by this ordinance.
The Board of Public Utilities of the State of New Jersey
or its successor agency.
The governing body of the City of Passaic in the County of
Passaic, and the State of New Jersey.
Cablevision of Oakland, LLC ("Cablevision"), the grantee
of rights under this ordinance.
The Federal Communications Commission.
That federal statute relating to cable communications commonly
known as the "Cable Communications Policy Act of 1984," 47 U.S.C.
§ 521 et seq., and the Telecommunications Act of 1996, or
as those statutes may be amended.
Those federal regulations relating to cable television services,
47 CFR 76.1 et seq. (and, to the extent applicable, any other federal
rules and regulations relating to cable television, including but
not limited to those described in 47 CFR 76.3), or as such regulations
may be amended.
The installation of drop cable to a customer's premises
where the distance from the point of entry into the building being
served is less than 150 feet from the active cable television system
plant.
The State of New Jersey.
Those regulations of the State of New Jersey Board of Public
Utilities relating to cable television, N.J.A.C. 14:17-1.1 et seq.
and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
A public hearing concerning the consent herein granted to Cablevision
was held after proper public notice pursuant to the terms and conditions
of the Act. Said hearing having been held and fully open to the public,
and the municipality having received all comments regarding the qualifications
of Cablevision to receive this consent, the City hereby finds Cablevision
possesses the necessary legal, technical, character, financial and
other qualifications to support municipal consent, and that Cablevision's
operating and construction arrangements are adequate and feasible.
The City hereby grants to Cablevision its nonexclusive consent
to place in, upon, along, across, above, over and under its highways,
streets, alleys, sidewalks, public ways and public places in the municipality
poles, wires, cables, and fixtures necessary for the maintenance and
operation in the City of a cable television system or other communications
facility, and for the provision of any communication service over
such facilities. Operation and construction, pursuant to said consent,
is conditioned upon prior approval of the Board of Public Utilities.
A.Â
This consent granted herein shall be nonexclusive and shall be for
a term of 15 years from the date of issuance of a certificate of approval
by the Board.
B.Â
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 notification.
If Cablevision seeks successive consent, it shall, prior to
the expiration of this consent, apply for a municipal consent and
certificate of approval in accordance with N.J.S.A 48:5A-16, and applicable
state and federal rules and regulations. In accordance with N.J.S.A.
48:5A-25.1, both the City and Cablevision shall be bound by the terms
of this municipal consent until such time as Cablevision converts
the municipal consent (and any certificate of approval) into a system-wide
franchise.
The consent granted under this ordinance to Cablevision shall
apply to the entirety of the City and any property hereafter annexed.
Cablevision shall be required to proffer video programming service
along any public right-of-way to any person's residence located
in the franchise territory at Cablevision's schedule of rates
for standard and nonstandard installation, in accordance with applicable
law and regulations.
Cablevision shall pay to the City an annual franchise fee calculated
in accordance with N.J.S.A. 48:5A-30d. In the event applicable law
hereinafter permits a larger franchise fee to be collected, but does
not fix the amount thereof, the City and Cablevision shall negotiate
in good faith with respect to the amount thereof; provided, however,
that nothing herein shall be construed to permit the City to require
payment of a franchise fee by Cablevision that is higher than the
fee paid by all other cable television service providers offering
service in the municipality.
A.Â
Cablevision shall, upon written request, provide free of charge one
standard installation and monthly cable television reception service
to all state or locally accredited public schools and all municipal
public libraries, as well as municipal buildings located within the
City as set forth in Exhibit A[1] to this ordinance.
[1]
Editor's Note: Exhibit A is included at the end of this chapter.
B.Â
Cablevision shall, upon written request, provide without charge basic
cable modem service to state and local accredited elementary and secondary
schools and municipal public libraries in the municipality as follows:
one standard installation per school or library campus; one cable
modem per installation; and cable modem service for the term of this
agreement for each installation, subject to the terms, conditions
and use policies of the provider of the cable modem service, as those
policies may exist from time to time.
C.Â
Cablevision shall, upon written request, provide without charge basic
cable modem service to one municipal location within the City as follows:
one cable modem, and cable modem service for the term of this agreement,
subject to the terms, conditions and use policies of the provider
of the cable modem service, as those policies may exist from time
to time.
Cablevision shall perform construction and installation of its
plant and facilities in accordance with applicable state and federal
law. The company shall be subject to the following additional construction
requirements with respect to the installation of its cable plant and
facilities in the City:
A.Â
In the event that the company or its agents shall disturb any pavement,
street surfaces, sidewalks, driveways or other surfaces, the company
shall at its sole expense restore and replace such disturbances in
as good a condition as existed prior to the commencement of said work.
B.Â
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 City, shall remove
or relocate its equipment at its own expense.
C.Â
Upon request of a person holding a building or moving permit issued
by the City, the company shall temporarily move or remove appropriate
parts of its facilities so as to permit the moving or erection of
buildings or for the performance of other work. The expense of any
such temporary removal or relocation shall be paid in advance to the
company by the person requesting the same. In such cases, the company
shall be given not less than 14 days' prior written notice in order
to arrange for the changes required.
D.Â
During the exercise of its rights and privileges under this consent,
the company shall have the authority to trim trees upon and overhanging
streets, alleys, sidewalks and public places of the City so as to
prevent the branches of such trees from coming in contact with the
wires, cables, conduits and fixtures of the company. Such trimming
shall be only to the extent necessary to maintain proper clearance
for the company's facilities.
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 federal and state law and regulation related to the delivery of
customer service and shall be prepared to report on it to the municipality
upon written request of the municipal administrator or clerk.
A.Â
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 notifications of
same to customers.
B.Â
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.Â
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.
Cablevision shall establish and maintain during the entire term
of this consent a local area business office or agent for the purpose
of receiving, investigating and resolving complaints regarding the
quality of service, equipment malfunctions and similar matters. Said
office shall be open daily during normal business hours, and in no
event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, with
the exception of holidays.
The Office of Cable Television is hereby designated as the complaint
officer for the City pursuant to the provisions of N.J.S.A. 48:5A-26.
All complaints shall be reviewed and processed in accordance with
N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect,
at its sole cost, at all times during the term of this consent, sufficient
liability insurance naming the City as an additional insured and insuring
against loss by any such claim, suit, judgment, execution or demand
in the minimum amounts of $500,000 for bodily injury or death to one
person, and $1,000,000 for bodily injury or death resulting from any
one accident or occurrence stemming from or arising out of the company's
exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its sole cost and
expense, during the entire term of this agreement, a bond to the municipality
in the amount of $25,000. Such bond shall be to insure the faithful
performance of its obligations as provided in this franchise.
The rates of the company for cable television services shall
be subject to regulation to the extent permitted by federal and state
law.
Cablevision shall be required to have the capability to override
the audio portion of the system in order to permit the broadcasting
of emergency messages by the City pursuant to state and federal requirements.
The company shall in no way be held liable for any injury suffered
by the City 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 City shall utilize the state-approved
procedures for such emergency uses.
A.Â
In the event that the service of another multichannel video program
provider not subject to the City's regulatory authority within
the City creates a significant competitive disadvantage to Cablevision,
the company shall have the right to request from the City lawful amendments
to its franchise that relieve it of burdens which create the unfair
competitive situation. Should the company seek such amendments to
its franchise, the parties agree to negotiate in good faith appropriate
changes to the franchise in order to relieve the company of such competitive
disadvantages. If the parties can reach an agreement on such terms,
the City agrees to support the company's petition to the Board
for modification of the consent in accordance with N.J.S.A. 48:5A-47
and N.J.A.C. 14:17-6.7.
B.Â
If the parties are unable to reach an agreement on appropriate amendments
to the franchise, the City acknowledges that the company shall have
the right to petition the Board directly for such amendments in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however,
that the City shall be under no obligation to support Cablevision's
request for such relief from the Board.
C.Â
In any subsequent municipal consent, the City shall require, at a
minimum, the same terms and conditions of any other provider of multichannel
video programming subject to the City's regulatory authority
as those contained in the instant consent. In the event such subsequent
consent does not contain the same terms and conditions as the instant
consent, the City agrees to support the company's petition to
the Board for modification of the consent in accordance with N.J.S.A.
48:5A-47 and N.J.A.C. 14:17-6.7 to relieve the company of competitive
disadvantages identified in the company's petition.
Upon expiration, termination or revocation of this ordinance,
Cablevision, at its sole cost and expense and upon direction of the
Board, shall remove the cables and appurtenant devices constructed
or maintained in connection with the cable services authorized herein,
unless Cablevision, its affiliated entities or assignees should, within
six months after such expiration, termination or revocation, obtain
certification from the FCC to operate an open video system or any
other federal or state certification to provide telecommunications.
A.Â
Cablevision shall continue to make available noncommercial public,
educational and governmental (PEG) access services available to the
residents of the City as described in the application for municipal
consent. All Cablevision support for PEG access shall be for the exclusive
benefit of Cablevision's subscribers.
B.Â
The City agrees that Cablevision shall retain the right to use the
PEG access channel, or portion thereof, for non-PEG access programming,
during times when the City is not utilizing the channel for purposes
of providing PEG access programming. In the event that the company
uses said PEG access channel for the presentation of such other programming,
the PEG programming shall remain the priority use and the company's
rights with respect to using the channel for non-PEG programming shall
be subordinate to the City's provision of PEG access programming
on such channel.
C.Â
Cablevision shall have discretion to determine the format and method of transmission of the PEG access programming provided for in this § A321-20.
D.Â
In consideration for the rights granted in this ordinance, the company
shall provide the City with an initial grant of $10,000. Such amount
shall be paid to the City following the grant of the certificate from
the Board. In addition, in the second year of the municipal consent
Cablevision shall pay a grant to the City in the amount of $10,000.
In the third year and each of the following years of the term of the
ordinance through year 15 of the consent, the company shall pay an
"annual grant" of $5,000 to the City. The annual grant shall be payable
to the City within 30 days of the payment of the annual franchise
fee.
E.Â
The City agrees that all amounts provided pursuant to Subsection D shall be used for the exclusive benefit of Cablevision customers in the City and for the support of PEG access programming, such as the purchase and/or rental of PEG access equipment and facilities and as the City deems appropriate, provided that: a) such uses are lawful and consistent with the terms of this ordinance; and b) if used to purchase communications services, the City shall seek to purchase such services from the company or its affiliates, if offered. On request, the City shall provide Cablevision with a certification of compliance with this subsection.
F.Â
The company shall have no further obligation to provide any PEG grant
payments due and payable after the date upon which the company converts
the municipal consent granted herein to a system-wide franchise in
accordance with N.J.S.A. 48:5A-25.1.
All of the commitments contained in the application and any
amendment thereto submitted in writing to the City by the company,
except as modified herein, are binding upon Cablevision as terms and
conditions of this consent. The application and any other written
amendments thereto submitted by Cablevision in connection with this
consent are incorporated in this ordinance by reference and made a
part hereof, except as specifically modified, changed, limited or
altered by this ordinance, or to the extent that they conflict with
state or federal law.
This consent shall be construed in a manner consistent with
all applicable federal, state and local laws, as such laws, rules
and regulations may be amended from time to time.
If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portion thereof.
Notices required under this ordinance shall be in writing and
shall be mailed, first class, postage prepaid, to the addresses below.
Either party may change the place where notice is to be given by providing
such change in writing at least 30 days prior to the time such change
becomes effective. The time to respond to notices under this ordinance
shall run from receipt of such written notice.
This ordinance shall take effect upon issuance of a certificate
of approval as issued by the Board of Public Utilities that incorporates
the material terms of this ordinance. Nothing herein shall alter the
right of the company to seek modification of this ordinance in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
The company shall cooperate and fully implement the program
to be established by the State Treasurer in accordance with N.J.S.A.
48:5A-30 for the provisions of reduced cable television rates to those
eligible for the Pharmaceutical Assistance to the Aged and Disabled.
