[HISTORY: Adopted by the Township Council
of the Township of Evesham 12-4-2018 by Ord. No. 30-12-2018.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Trees and shrubs — See Ch. 144.
[1]
Editor's Note: This ordinance also repealed
former Ch. 61, Cable Television, adopted 4-16-1991 by Ord. No. 15-3-1991.
The Township 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 Township 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 Commissions ("FCC") rules and regulations,
47 CFR 76.1 et seq., and the Cable Communications Policy Act, 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 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 grantee of rights under this chapter and is known
as Comcast of Garden State, L.P.
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.
Is the Township of Evesham, County of Burlington, State of
New Jersey.
A public hearing was conducted by the Township Council on April
4, 2017, 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 Township Council, having received at said public hearings all
comments regarding the qualifications of the Company to receive this
renewal of Municipal Consent, the Township Council 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 10
years from the date of expiration of the previous certificate of approval
issued by the Board.
B.
In the event that the municipality shall find that the Company has
not substantially complied with the material terms and conditions
of this chapter, 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.
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 Township 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 Township 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 Township, as set
forth under N.J.S.A. 48:5A-30(d). The Company agrees to continue paying
the Township 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 Municipality 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, as set forth in the Company's application.
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 reasonably
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, re-lay 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 Township in the exercise of its
inherent police powers. Without waiving any of its rights, the Township
agrees that, to the extent any term of this Municipal Consent is inconsistent
with the terms of any Township 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 Township Council
upon written request of the Township Manager or Clerk, as required
by applicable law.
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 Township
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 applicable law.
The Office of Cable Television is hereby designated as the complaint
officer for the Township 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 Township shall have the right to request copies of records and
reports pertaining to complaints by Township 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 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.
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 each qualified existing
and future school in the Township, 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.
B.
The Company shall continue to provide expanded basic or a similar
tier of cable television service at no cost on one outlet to each
qualified existing police, fire, emergency management facility, public
works and public library in the Township, 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 Township. Comcast shall provide the above-referenced
services to any future such facility upon written request.
C.
The Company shall continue to provide free basic residential Internet
access service, via high-speed cable modem, to one non-networked personal
computer in each qualified existing and future public school in the
Township, elementary, intermediate and secondary, at no charge provided
the facility is located within 175 feet of 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. Comcast shall provide the above-referenced services to any
future such facility upon written request.
D.
The Communications Act of 1934, as amended [47 U.S.C. § 543
(b)], allows the Company to itemize and/or identify: (1) the amount
on the subscriber bill assessed as a franchise fee and the identity
of the governmental authority to which the fee is paid; (2) 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 (3) 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 shall continue to make available one shared educational
access channel and one dedicated government access channel. The educational
access channel is currently maintained and administered by the Lenape
Regional High School District for the purpose of cablecasting noncommercial
educational access programming in conformance with the Lenape School
District's published access rules. The government access channel
is maintained by the Township for the purpose of cablecasting noncommercial
government access programming.
B.
The Company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for EG use. An EG access
user, whether an educational or government 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 that 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 Township for the purpose of showing the local government at
work.
F.
Company use of fallow time. Because blank or underutilized EG channels
are not in the public interest, in the event the Municipalities or
other EG access users elect not to fully program their EG access channel,
the Company may program unused time on those channels subject to reclamation
by the Municipality upon no less than 60 days' written notice.
G.
Indemnification. The Township shall indemnify the Company for any
liability, loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the EG channel and from claims
arising out of the Township's rules for or administration of
EG access channel and its programming.
H.
Within 90 days of receipt of a renewal certificate of approval, the
Company shall provide the Township with a one-time grant in the amount
of $30,000 for the purchase and upgrade of video production equipment,
cameras, and other equipment required to operate the government access
channel.
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 or other authorization
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
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 Township Manager 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 other
portion of this chapter is, for any reason, declared invalid, in whole
or in part, by any court, agency, commission, legislative body, or
other authority of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
A.
The Company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
Township agrees to treat any information disclosed by the Company
as confidential and only to disclose it to those employees, representatives,
and agents of the Township 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 Township 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 Township shall notify the Company
of such request and cooperate with Company in opposing such request.
The Company agrees to reimburse the Township for all reasonable costs
and legal fees associated with opposing such a public records request,
which may include litigation before the Government Records Council
and/or a court of competent jurisdiction.
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.
The Township, 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.
