[HISTORY:[1] Adopted by the Board of Commissioners of the City of Bordentown 6-11-2018 by Ord. No. 2018-06. Amendments noted where applicable.]
[1]
Former Ch. 138, Construction Codes, Uniform, adopted 9-8-1980
by Ord. No. 1980-5, as amended, was repealed 1-25-1993 by Ord. No.
1993-1.
The City hereby grants to Comcast renewal of its nonexclusive
municipal consent to place in, upon, across, above, over and under
highways, streets, alleys, sidewalks, easements, public ways and public
places in the municipality, poles, wires, cables, underground conduits,
manholes and other television conductors, fixtures, apparatus and
equipment as may be necessary for the construction, operation and
maintenance in the City of a cable television and communications system.
This consent is subject to the terms and conditions of this chapter
and upon the condition that the company accepts the provisions of
this chapter, and confirms that it shall comply with the commitments
contained herein.
For the purpose of this chapter, 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
of the Federal Communications Commission ("FCC") rules and regulations,
47 C.F.R. Subsection 76.1 et seq., and the Cable Communications Policy
Act, 47 U.S.C. Section 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 the federal and state definitions:
Is Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1, et seq.
Is 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.
Is the Board of Public Utilities, State of New Jersey.
Is the City of Bordentown, County of Burlington, State of
New Jersey.
Is the grantee of rights under this chapter and is known
as Comcast of Burlington County, LLC.
Is the Federal Communications Commission.
Is 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.
A public hearing was conducted by the Bordentown City Board
of Commissioners during a regular meeting of the Board of Commissioners
on July 11, 2016, concerning the renewal of municipal consent herein
granted to the company, after proper public notice pursuant to the
terms and conditions of the Act and the regulations of the Board adopted
pursuant thereto. Said hearings, having been fully open to the public,
and the Board of Commissioners, having received at said public hearings
all comments regarding the qualifications of the company to receive
this renewal of municipal consent, the Board of Commissioners 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.
A.
The nonexclusive municipal consent granted herein shall expire 15
years from the date of expiration of the previous certificate of approval
issued by the Board.
B.
In the event that the City shall find that the company has not substantially
complied with the material terms and conditions of this chapter, the
City 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 City 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.
Pursuant to the terms and conditions of the Act, N.J.S.A. 48:5A-30,
the company shall, during each year of operation under the consent
granted herein, pay to the City 2% of the gross revenues from all
recurring charges in the nature of subscription fees paid by subscribers
for cable television reception service in the City or any higher amount
permitted by the Act or otherwise allowable by law, whichever is greater.
The current fee is 3.5% of the company's gross revenues, as defined
under N.J.S.A. 48:5A-3(x), due to the fact that the Board has certified
another cable television company as being capable of serving 60% or
more of the households within the City, as set forth under N.J.S.A.
48:5A-30(d). The company agrees to continue paying the City the current
franchise fee for the duration of this consent, so long as the terms
of N.J.S.A. 48:5A-30 or any other applicable statute so require.
The consent granted under this chapter for the renewal of the
franchise shall apply to the entirety of the City and any property
subsequently annexed hereto.
The company shall be required to proffer service to any residence
or business along any public right-of-way in the primary service area,
as set forth in the company's application. Any extension of plant
beyond the primary service area shall be governed by the company's
line extension policy with a minimum homes per mile (HPM) of 35.
A.
Restoration. In the event that the company or its agents shall disturb
any pavement, street surfaces, sidewalks, driveways, or other surface
in the natural topography, the company shall, at its sole expense,
restore and replace such places or things so disturbed in as good
a condition as existed prior to the commencement of said work. Any
restoration shall commence as expeditiously as practical.
B.
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, relay or relocate its equipment, at the expense of the
company.
C.
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 or other
public places of the municipality so as to prevent the branches of
such trees from coming in contact with the wires and cable of the
company. Such trimming shall be only to the extent necessary to maintain
proper clearance of the company's wire and cables.
D.
Local ordinances. The company is subject to and shall be governed
by all lawful and applicable provisions of federal, state laws and
regulations. This franchise is further subject to all generally applicable
ordinances and resolutions of the City in the exercise of its inherent
police powers. Without waiving any of its rights, the City agrees
that, to the extent any term of this municipal consent is inconsistent
with the terms of any City ordinance existing prior or subsequent
to the effective date, this municipal consent shall control.
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 Board of Commissioners
upon written request of the City 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 City
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.
E.
The company is permitted, but is not required to, change a late fee
consistent with applicable state and federal statutes and regulations.
The Office of Cable Television is hereby designated as the complaint
officer for the City 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 City shall have the right to request copies of records and reports
pertaining to complaints by City customers from the OCTV.
During the term of this franchise, and any renewal thereof,
the company shall maintain a business office or agent in accordance
with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating
and resolving all local complaints regarding the quality of service,
equipment malfunctions, and similar matters.
During the life of the franchise the company shall give to the
municipality a bond in the amount of $25,000. Such bond shall be to
insure the faithful performance of all undertakings of the company
as represented in its application for municipal consent incorporated
herein. At the written request of the City Clerk, the company shall
provide updated information pertaining to the performance bond on
an annual basis.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
A.
The company shall provide expanded basic or a similar tier of cable
television service on one outlet at no cost to the schools listed
in Exhibit A to this chapter[1] and to each qualified existing and future school in the
City, public and private, elementary, intermediate and secondary,
provided the school is within 300 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.
[1]
Editor's Note: Exhibit A is on file in the City offices.
B.
The company shall provide expanded basic or a similar tier of cable
television service at no cost on one outlet to the City-owned and
operated buildings listed in Exhibit A to this chapter, and each qualified
existing and future police, fire, emergency management facility, public
works building, and public library in the City, provided the facility
is located within 300 feet of active cable distribution plant. Each
additional outlet installed, if any, shall be paid for on a materials
plus labor basis by the City.
C.
The company shall provide free basic internet access service, via
high-speed cable modem, to one nonnetworked personal computer in each
qualified existing and future public school in the City, elementary,
intermediate and secondary, at no charge provided the facility is
located within 175 feet of an active cable distribution plant. The
internet access service shall be installed on a personal computer
that is accessible to the students and not for administrative use
only.
D.
Within 90 days of receipt of a renewal certificate of approval, the
company shall provide the City with a one-time technology grant in
the amount of $3,000.
E.
The Communications Act of 1934, as amended [47 U.S.C. § 543
(b)], allows the company to itemize and/or identify the amount on
the subscriber bill assessed as a franchise fee and the identity of
the governmental authority to which the fee is paid; the amount on
the bill assessed to satisfy any requirements imposed on the company
by the cable franchise to support public, educational, and/or governmental
access channels or the use of such channels; and any grants or other
fees on the bill or any tax, assessment, or charge of any kind imposed
by any governmental authority on the transaction between the operator
and the subscriber. The company reserves these external cost, pass-through
rights to the extent permitted by law.
A.
The company will continue to provide a dedicated educational and
government access channel for shared use by the City and other municipalities
served by Comcast of Burlington County, LLC.
B.
The company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for educational and government
access use. An educational and government access user acquires no
property or other interest by virtue of the use of a channel so designated,
and may not rely on the continued use of a particular channel number,
no matter how long the same channel may have been designated for such
use.
C.
The company shall not exercise editorial control over any educational
or governmental use of channel capacity, except the company may refuse
to transmit any educational or governmental access program or portion
of an educational or governmental access program that contains obscenity,
indecency, or nudity.
D.
Educational access. "Educational access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not "home schools," community colleges, and universities.
E.
Government access. "Government access" shall mean noncommercial use
by the governing body of Bordentown City for the purpose of showing
the public local government at work.
F.
Company use of fallow time. Because blank or under-utilized access
channels are not in the public interest, in the event the municipality
or other educational access users elect not to fully program their
access channel, the company may program unused time on those channels
(at its discretion and for any purpose), subject to reclamation by
the municipality upon no less than 60 days' written notice.
G.
Indemnification. The municipality shall indemnify company for any
liability, loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the educational channel and from
claims arising out of the municipality's rules for or administration
of access.
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.
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 of its construction and operation of
the cable television system, and an excess liability (or umbrella)
policy in the amount of $5,000,000.
All of the statements and commitments contained in the application
or annexed thereto and incorporated therein, and any amendment thereto,
except as modified herein, are binding upon the company as terms and
conditions of this consent. The application and other relevant writings
submitted by the company shall be annexed hereto and made a part hereof
by reference provided same do not conflict with applicable state or
federal law.
Should the municipality grant a franchise to construct, operate
and maintain a cable television system to any other person, corporation
or entity on terms materially less burdensome or more favorable than
the terms contained herein, the company may petition the Office of
Cable Television for its approval to substitute such language that
is more favorable or less burdensome for the comparable provision
of this chapter subject to the provisions of N.J.A.C. 14:17-6.7. The
company agrees to simultaneously provide a courtesy copy of the petition
to the City Clerk in the event that it files such a request with the
BPU under this section of the consent agreement.
If any section, subsection, sentence, clause, phrase or portion
of this chapter 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 its validity or unconstitutionality shall not affect
the validity of the remaining portions of the ordinance.
Nothing in this franchise or in any prior agreement is or was
intended to confer third-party beneficiary status on any member of
the public to enforce the terms of such agreements or franchise.
A.
The company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
City agrees to treat any information disclosed by the company as confidential
and only to disclose it to those employees, representatives, and agents
of the City that have a need to know in order to enforce this chapter
agreement and who agree to maintain the confidentiality of all such
information.
B.
The company shall not be required to provide customer information
in violation of Section 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this section, the terms
"proprietary or confidential" include, but are not limited to, information
relating to the cable system design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the company to be competitively sensitive. The company
may make proprietary or confidential information available for inspection
but not copying or removal by the municipality's representative.
In the event that the City has in its possession and receives a request
under a state "sunshine," public records, or similar law for the disclosure
of information the company has designated as confidential, trade secret
or proprietary, the City shall notify the company of such request.
The City, for its part, shall endeavor to exercise reasonable
efforts to require developers and utility companies to provide the
company with at least 15 days' advance notice of an available
open trench for the placement of necessary cable.
This chapter shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
