[Adopted 8-18-1999 by Ord. No. R-395]
This article shall be known and may be cited as the "RCN Telecom Services of New Jersey, Inc., Open Video Systems Service Agreement."
For the purpose of this article, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular, include the plural.
AFFILIATE
The same meaning as set forth in the Rules and Regulations of the FCC which govern the provision of OVS Services as set forth in 47 CFR 76.1500(g).
CITY
The City of Hoboken, County of Hudson, State of New Jersey.
COMPANY OR RCN
RCN Telecom Services of New Jersey, Inc.
FEDERAL LAW
The federal statute relating to Open Video Systems, known as 47 U.S.C. § 521 et seq., or as the statute may be amended.
FEDERAL REGULATIONS
Those federal regulations relating to Open Video Systems, 47 CFR § 76.1500 et. seq., and, to the extent applicable, any other federal rules and regulations.
FCC
The Federal Communications Commission.
HIGHWAY
Includes every street, road, alley thoroughfare, way or place of any kind used by the public or open to use by the public.
PERSON
Any person, firm partnership, association, corporation, company, or organization of any kind.
VIDEO REVENUES
Those revenues derived from the provision of video programming services as part of the Open Video Systems Services.
OPEN VIDEO SYSTEM
A facility consisting of transmission paths and associated signal generation, reception, and control equipment that is to provide cable television service which includes video programming to multiple subscribers within the City and which has received a certificate from the FCC pursuant to 47 CFR 76.1502.
OPEN VIDEO SERVICE OPERATOR OR OVS OPERATOR
Any person or group of persons who provides cable television service over an open video system and directly or through one or more affiliates owns a significant interest in such open video system, or otherwise controls or is responsible for the management and operation of such an open video system.
OVS SERVICE
The video programming services distributed by an OVS operator or its affiliate directly to their subscribers in the City by use of the OVS operator's facilities.
TECHNOLOGY ACCESS FUND
Those revenues paid by the company to the City pursuant to § A260-7 of this agreement to be used by the City to promote access to advanced technologies.
Pursuant to applicable law, at a public meeting, upon appropriate notice, the City has considered the qualifications of the company to provide OVS service and 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, and that, therefore, the City hereby grants the company a non-exclusive right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, above, over, and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the City such poles, wires, cables, underground conduits, manholes, and other communications conductors and fixtures necessary for the maintenance and operation in the City of an open video system and to provide OVS service and other electronic impulses in order to furnish television and radio programs, and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said highways, streets, alleys, public ways and public places, and all manner of easements for the purposes herein set forth and as provided by federal and state law.
The authority granted to the company shall be for a term of 10 years from the date that notice of final passage of this article is published in a newspaper of general circulation in Hoboken.
The company shall, during each year of operation under this agreement, pay to the City 2% of the revenues received from the company's basic level of video programming services and an additional 3% of gross revenues from the company's OVS service, which shall be applied as a Technology Access Fund.
The City reserves the right to regulate or renegotiate rates, including but not limited to rates for basic service, to the extent not prohibited by federal and state law, including any future changes in law.
A. 
During the term of this authority, the company shall maintain a local business office or agent within the City for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, and similar matters.
B. 
The company shall comply with all federal regulations and state regulations pertaining to customer service, including, but not limited to those pertaining to office hours and telephone availability, installations, outages and service interruptions, service calls, billing, billing disputes, service-related complaints, and notices of changes in rates, programming, and channel positions.
C. 
The company agrees to adhere to the voluntary customer service standards promulgated by the New Jersey Cable Television Association, and published by the Association on or about August 26, 1993.
D. 
With respect to service-related complaints and other complaints, the company shall inform the complainant that he may request review of the complaint by the Complaint Officer, and shall provide the subscriber with the name and address of the Complaint Officer.
E. 
With respect to service-related complaints and other complaints, when such complaints are made in writing, the company shall retain an actual copy of such written complaints in its files. The company shall provide the City with notice of its intent to dispose of any records kept pursuant to this section, in a manner similar to N.J.A.C. 14:18-6.2(b), or pursuant to N.J.A.C. 14:18-6.5, at least 120 days prior to such disposal, in order to permit the City adequate time to request that such records be available for the City's inspection and copying as permitted by law.
F. 
The company shall provide written notice to its subscribers on a quarterly basis of the procedures by which a subscriber may obtain credits for outages and interruption of services. Such notices shall be written in both English and Spanish.
G. 
The company will meet with the City on a semiannual basis, at the City's request, to review and discuss billing, service-related, and other complaints of Hoboken subscribers, and other issues of concern of the City.
H. 
The company will make trained company representatives available to respond to telephone inquiries from Hoboken customers between the hours of 8:00 a.m. and 11:00 p.m., Monday through Friday, between the hours of 9:00 a.m. and 12:00 a.m. on Saturday, and between the hours of 12:00 p.m. and 12:00 a.m. on Sunday.
I. 
The City Clerk is hereby designated as the complaint officer for the City.
A. 
The company expressly agrees that it will indemnify and hold harmless the City and its officials, agents and employees and pay all damages and penalties which the City may legally be required to pay as a result of the company's negligence in the installation, operation, or maintenance of the open video system authorized herein. The City shall notify the company's manager within 90 days after the presentation of any claim or demand to the City, either by suit or otherwise, made against the City on account of any negligence or contract as aforesaid on the part of the company.
B. 
Furthermore, the company shall maintain and keep in full force and effect liability insurance naming the City and the company as insureds and insuring against loss by any claim, suit judgment, execution or demand in the minimum amounts as follows: $1,000,000 for bodily injury or death resulting from any one (1) accident; (2) $3,000,000 for property damage resulting from any one (1) accident; (3) $1,000,000 for all other types of liability including property damage; and an umbrella policy in the minimum amount of $15,000,000.
C. 
Upon the effective date of this authority, the company shall secure a performance bond in the amount of $500,000. Upon completion of construction of the system and during the life of this authority, the company may reduce the amount to $100,000. Such bond shall be to insure the faithful performance of all undertakings of the company.
A. 
Territory. The authority granted under this article shall apply to the entirety of the City, and any property hereafter annexed thereto.
B. 
Facilities and equipment. In transmitting its communications signals to subscribers in the City, the company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards, and shall comply with any requirements imposed by the federal regulations, any federal pronouncements, and (to the extent not preempted by federal law) any state pronouncements relating to technical standards for the transmission of communication signals, transmission quality, or facilities and equipment. The company will be committed to keeping pace with the technology of the communications industry in New Jersey and the New York metropolitan area and will maintain a high degree of product availability and system reliability as compared with New Jersey and the New York metropolitan area systems of comparable size, measured by the number of subscribers on the system. The company shall notify the City prior to commencement of any work or construction activities which would materially impact the condition or use of City property or the public streets and rights-of-way.
C. 
Extension of service. The company shall be required to provide service to any person's residence or business located in the City along public streets and rights-of-way, except where access to such residence or business is denied.
D. 
Relocation of poles. In the event that, at any time during the term of this article, the City shall lawfully elect to alter or change the grade of any street, alley, or other public way, the company, upon reasonable notice by the City, shall promptly remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at the company's own expense.
E. 
Temporary wire changes. The company shall, on the request of any person holding a valid building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings, machinery or in other similar circumstances. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting same, unless the request is on behalf of the City in which case there shall be no charge. The company shall have the authority to require any such payment in advance. The company shall be given not less than 30 days advance notice to arrange for temporary wire changes.
F. 
Tree trimming. The company shall have the authority to trim trees upon and overhanging streets, highways, alleys, sidewalks, and public places within the City so as to prevent the branches of such trees from coming into contact with the wires and cables of the company. The company shall request permission from the director of the City's department of environmental services prior to commencement of tree trimming activities, except where such tree trimming is necessary due to emergency conditions or to restore the company's service. Such permission shall not be unreasonably withheld.
G. 
Compliance with standards. All facilities and equipment of the company shall be constructed and maintained in accordance with the requirements and specifications of the applicable ordinance and regulations set forth by the City and/or any other local, state or federal agencies. The company shall maintain its facilities and equipment within the City in good and reasonable operating condition at all times during the term of the authority granted herein.
H. 
Coordination of initial construction. During the initial construction of the open video system, the company will coordinate construction activities with the City to minimize disruption to residents of the City. The company shall inform designated City officials of the location of construction activities prior to commencing construction in any area of the City. The company shall designate a contact person to coordinate activities during the initial construction and to receive complaints regarding construction and restoration. The company shall develop a pre-construction plan to coordinate construction activities in the City for review and approval by the City, which shall not unreasonably be withheld, and shall review such plan with designated representatives of the City. Thereafter, the company will provide reports, including meetings with City representatives, to the City on accomplished and contemplated construction activities in a form and at such intervals as determined by the City. The vehicles of the company, and those of any contractors, shall be suitably marked and all employees and contractors shall display appropriate identification.
I. 
In the areas of the City in which telephone lines are currently, or in the future specified to be, underground, whether required by law or not, all of the company's lines, cables and wires shall be underground. At such time these facilities are placed underground by the telephone and electric utilities at their sole cost and expense or are required to be placed underground by the City at the sole cost and expense of such telephone and electric utility companies, the company shall likewise place its facilities underground at its sole cost and expense.
The company shall have the authority to promulgate such reasonable rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its obligations under this authority, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with federal and/or state laws.
The company shall not sell or transfer its open video system to another entity, nor transfer any rights under this article to another, without the consent of the City, which shall not be unreasonably withheld. The company shall notify the City at least 90 days in advance or any transfer. Such transfer shall be deemed approved by the City if the City has not raised any questions or objections within 90 days of receipt of such notice. The company, may, however, upon 90 days written notice to the City, and without reasonable objection by the City, transfer any rights or privileges to an affiliate of the company without prior approval and may pledge its property in the ordinary course of business.
This article and agreement is subject to all provisions of the state and federal law applicable to OVS Service providers and to all lawful rules and regulations pursuant thereto.
The company shall not allow its OVS service or other operations to interfere with television reception of persons not served by the company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the City.
The company shall provide installation and at least one outlet of free monthly basic service in all schools and public libraries in the City, as well as City hall.
The company shall offer a discount of $2 on its basic level of video programming service, exclusive of any other package or discounts, to any senior citizen 62 years of age or older who does not share the company's service with more than one person who is less than 62 years of age and any disabled persons or any disabled individual. In order to receive the discount, the senior citizens or disabled citizen must have an annual household income of $30,000 or less. The company has agreed to apply the same discount rate to the disabled subject to the Pharmaceutical Assistance to Aged and Disabled (PAAD) pursuant to N.J.S.A. 30:4D-21.
A. 
After the construction is complete, the company will provide a minimum of one governmental access channel, one educational access channel and one public access channel on the Hoboken system. The City shall not be required to share either the educational or governmental access channels with any other municipality. The public access channel may be shared with the company's other franchised municipalities on the same system. The company will provide the City and the Hoboken Board of Education with exclusive usage and control of their respective channels. None of the access channels will be arbitrarily relocated to another channel number during the duration of the Agreement. The educational access channels, governmental access channels and public access channels (hereinafter referred to collectively as the "PEG channels") will be provided at no cost to the City as part of the entry level service for the duration of the agreement.
B. 
In the event that any of the access channels are relocated to another channel number during the term of this agreement, the company shall comply with the provisions of the federal regulations and any applicable state regulations pertaining to changes in channel positions or channel allocation, including but not limited to 47 U.S.C. § 76.309(c)(3). Additionally, in such event, the company shall publish notice of any change in an access channel position in a newspaper of general circulation in Hoboken at least 15 days prior to the effective date of such change, and a second time no more than eight days nor less than five days prior to the effective date of such change. Furthermore, contemporaneous with its written notice provided to subscribers, the company shall provide written notice to the City of any change in the channel position of either the municipal or educational access channel, and written notice to the Hoboken Board of Education of any change in the channel position of the education access channel.
C. 
If during any two-month period during the term of this agreement, three or more PEG channel users in Hoboken cannot reasonably be accommodated in their requirement(s) for access on a PEG channel, and during such period over 75% of all available time on such channel between the hours of 9:00 a.m. and 9:00 p.m. has been utilized for PEG programming, the company shall thereupon make an additional channel available for PEG usage. It shall be within the sole discretion of the City to decide whether the additional access channel provided shall be for governmental, educational or public access, or any combination thereof. All additional governmental access and educational access channels shall be for the exclusive usage and with the exclusive control of the City and the Hoboken Board of Education respectively.
D. 
The company shall take any steps that are necessary to ensure that the signals originated on the PEG channels are carried without material degradation, and that the quality of the signal transmitted to subscribers over the PEG channels meets prevailing industry standards and is equal to the quality of the signals transmitted by RCN on its other channels.
A. 
To meet the educational and municipal access production and origination equipment needs of the Hoboken community, the company shall pay to the City the sum of $100,000 pursuant to a schedule to be determined by the City and the company. Such funds shall be utilized by the City for the purpose of purchasing, installing, and servicing equipment for the operation of municipal or educational access channels or the institutional network, including the production of municipal or educational access channels or the institutional network, including the production of municipal or educational access programming, and for other municipal and educational access-related purposes.
B. 
The company will provide free of charge such technical assistance, advice, and support as is reasonably requested by the City, with respect to the purchase of equipment, and the installation and use of the equipment purchased, with funds provided hereunder. Such technical assistance, advice and support will be available to:
(1) 
Governmental officials, representatives, and employees;
(2) 
Educational system officials, representatives and employees;
(3) 
Community leaders and interest groups;
(4) 
Students; and
(5) 
Individuals.
In addition, the company will install such equipment purchased with funds provided hereunder as comprises the education and/or municipal access studios located in Hoboken.
C. 
Upon reasonable notice to the company by the City, the company shall provide annual training workshops, free of charge, to municipal and educational persons or groups on the use of access facilities and equipment, including production techniques. Equipment for public access courses will be provided by the company.
Public access programming on RCN's system will be aired between the hours of 7:30 p.m. and 11:00 p.m. unless the public access user wishes otherwise. The company will use its best efforts to replay all public access programming. The company will impose no charge on Hoboken public access users for airing or replying noncommercial public access programming on the public access channel.
A. 
The company shall provide Internet access services for use by the City. Internet access shall include the hosting of an Internet website for the City and Internet addresses for a minimum of 15 various City offices. Such Internet access services shall be made available within 90 days of the effective date of this article.
B. 
Upon completion of construction of the open video system, the company shall dedicate two fiber optic cables to permit an interconnection of municipal building and schools. These fiber optic cables would permit two-way video capability and point-to-point data capability. The two fiber optic cables would be owned and maintained by the company, but would be dedicated to the City's use. End user equipment will be the responsibility of the City to purchase and maintain.
The open video system shall have the capability to have an emergency alert throughout the City by an audio or video override of all channels in the event of a public emergency. The company shall coordinate the use of the emergency alert system with appropriate national, state and local officials.
If any section, subsection, sentence, clause, phrase, or portion of this article is for any reason held invalid, preempted, or unconstitutional by any court or federal or state agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision of this article, and such holding shall not affect the validity of the remaining portions hereof.
A. 
This agreement is subject to the Laws of the State of New Jersey and any actions hereto shall be maintained in the State of New Jersey.
B. 
Should any of the federal or state acts, regulations or pronouncements applicable to the regulation of OVS service or cable television service be modified in any way, such modification, to the extent it embodies required terms and conditions and meaningfully can be incorporated into this article, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modifications places limits on permissible terms and conditions, and any provision of this article becomes invalid by virtue of such modification, the preceding § A260-23 shall apply.
This article shall take effect upon its final passage and publication according to law.
The rights granted herein are non-exclusive and the City may, in accordance with the requirements of federal or state law, award another like authority to a separate company in addition to the company.
All notices shall be sent via certified mail/return receipt requested and regular mail to the following addresses:
For the City
For the Company
City Clerk
RCN Telecom Services of
City Hall
New Jersey Inc.
94 Washington Street
George Duffy,
Hoboken, NJ 07030
Vice President, Franchising & Development Princeton, N
This agreement may be amended or modified in accordance with law if, during the term of this agreement, the parties determine that such amendment or modification is necessary or desirable due to changes in circumstances or applicable law.