[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.
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).
The City of Hoboken, County of Hudson, State of New Jersey.
RCN Telecom Services of New Jersey, Inc.
The federal statute relating to Open Video Systems, known
as 47 U.S.C. § 521 et seq., or as the statute may be amended.
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.
The Federal Communications Commission.
Includes every street, road, alley thoroughfare, way or place
of any kind used by the public or open to use by the public.
Any person, firm partnership, association, corporation, company,
or organization of any kind.
Those revenues derived from the provision of video programming
services as part of the Open Video Systems Services.
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.
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.
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.
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.
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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.
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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:
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For the City
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For the Company
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City Clerk
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RCN Telecom Services of
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City Hall
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New Jersey Inc.
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94 Washington Street
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George Duffy,
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Hoboken, NJ 07030
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Vice President, Franchising & Development Princeton, N
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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.
