[1]
Editor's Note: Prior ordinance history includes portions
of Ord. Nos. 1969-17, 1980-16 and 1993-18.
The Borough hereby grants to Comcast Cable of Ocean County,
Inc., renewal of its non-exclusive municipal consent to place in,
upon, across, above, over and under highways, streets, alleys, sidewalks,
easements, public ways and public places in the Borough, 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 Borough of a cable television and
communications system.
For the purpose of this ordinance, 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 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:
a.
Municipality or Borough shall mean the Borough of Point Pleasant
Beach, County of Ocean, State of New Jersey.
b.
"Company" is the grantee of rights under this ordinance and is known
as "Comcast of Ocean County, LLC."
[Amended 2-20-2018 by Ord. No.
2018-01]
c.
Act or Cable Television Act shall mean Chapter 186 of the General
Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1
et seq.
d.
FCC shall mean the Federal Communications Commission.
e.
Board or BPU is the Board of Public Utilities, State of New Jersey.
f.
"Office" or "OCTT" is the Office of Cable Television and Telecommunications
of the Board.
[Amended 2-20-2018 by Ord. No.
2018-01]
g.
"Basic Cable Service" means any service tier, which includes the
retransmission of local television broadcast signals as defined by
the FCC.
[Amended 2-20-2018 by Ord. No.
2018-01]
h.
"Application" is the company's application for renewal of municipal
consent.
[Added 2-20-2018 by Ord. No. 2018-01]
i.
"Primary Service Area" or "PSA" 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.
[Added 2-20-2018 by Ord. No. 2018-01]
[Amended 2-20-2018 by Ord. No.
2018-01]
A public hearing conducted by the municipality, concerning the
renewal of municipal consent herein granted to the company, was held
after proper public notice pursuant to the terms and conditions of
the Act and the regulations of the Board adopted pursuant thereto.
Said hearing, having been fully open to the public, and the municipality
having received at said public hearing all comments regarding the
qualifications of the company to receive this renewal of municipal
consent, the municipality 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.
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.
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 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 60 days of
that notification.
Pursuant to the terms and conditions of the Act, the company
shall, during each year of operation under the consent granted herein
pay to the Borough 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 Borough, or any higher amount permitted by
the Act or otherwise allowable by law, whichever is greater.
The consent granted under this ordinance to the renewal of the
franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
The company shall be required to proffer service along any public
right-of-way to any person's residence or business located in
all areas of the franchise territory as described herein, at tariffed
rates for standard and nonstandard installations.
[Amended 2-20-2018 by Ord. No.
2018-01]
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.
b.
Relocation: If, at any time during the period of this consent, the
municipality or any other government entity with appropriate legal
authority 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.
Temporary removal of cables: The company shall, upon request of the
municipality at the company's expense, temporarily raise, lower,
or remove its lines in order to facilitate the moving of buildings
or machinery or in other like circumstances. Whenever the request
is made by, for, or on behalf of private parties, the cost will be
borne by those same parties.
d.
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, with appropriate permits as required by
the applicable municipal ordinances, rules and regulations, 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.
[1]
Editor's Note: Former Subsection 18-1.9, Construction Requirements,
was repealed 2-20-2018 by Ord. No. 2018-01.
[Amended 2-20-2018 by Ord. No.
2018-01]
In providing services to its customers:
a.
The company shall comply with N.J.A.C. 14:18-1 et seq. and all applicable
state and federal statutes and regulations.
b.
The company shall meet or exceed all voluntary company and industry
standards in the delivery of customer service and shall report on
its customer service to the municipality upon written request of the
Borough Administrator or Clerk.
c.
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.
d.
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.
e.
The company shall use every effort to meet or exceed voluntary standards
for telephone accessibility developed by the National Cable Television
Association (NCTA). Those standards shall include, but not be limited
to, the goal of answering 80% of incoming telephone calls within 30
seconds.
f.
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 appropriate under law.
[Amended 2-20-2018 by Ord. No.
2018-01]
The Office of Cable Television and Telecommunications is hereby
designated as the complaint officer for the municipality pursuant
to N.J.S.A. 48:5A-26, Subsection b. All complaints shall be received
and processed in accordance with N.J.A.C. 14:17-6.5. The municipality
shall have the right to request copies of records and reports pertaining
to complaints by Borough customers from the OCTT.
[Amended 2-20-2018 by Ord. No.
2018-01]
During the term of this franchise, and any renewal thereof,
the company shall maintain a business office or customer service center
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.
[Amended 2-20-2018 by Ord. No.
2018-01]
a.
The company shall provide channels for public and governmental ("PG")
access as requested by the municipality on the most-basic tier of
service offered by the company in accordance with the Cable Act, Section
611 (47 U.S.C. § 531), and as further set forth herein.
b.
The company shall continue to provide a dedicated government access
channel maintained by the company for use by the municipality and
its designees for the purpose of cablecasting noncommercial, local
government programming in accordance with the Cable Act, Section 611
(47 U.S.C. § 531).
c.
The company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for PG use. A PG 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.
d.
The company shall not exercise editorial control over the use of
any public, educational or governmental channel capacity, except the
company may refuse to transmit any public, educational or governmental
access program or portion of such program that contains obscenity,
indecency or nudity.
e.
Public access. "Public access" shall mean noncommercial use by the
public. Borough residents deemed qualified by the Borough and designated
organizations may utilize public access for the purpose of cablecasting
noncommercial access programming in conformance with the company's
published public access rules.
f.
Government access. "Government access" shall mean noncommercial use
by the governing body of the Borough for the purpose of showing the
public local government at work.
g.
Fallow time. Because blank or underutilized PG channels are not in
the public interest, in the event the municipality or other PG access
users elect not to fully program the PEG 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.
[Amended 2-20-2018 by Ord. No.
2018-01]
a.
The company shall provide total preferred cable television service
on one outlet at no cost to each school in the municipality, 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. Monthly service charges shall
be waived on all additional outlets.
b.
The company shall provide total preferred cable television service
at no cost on one outlet to each Borough-owned building, 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 municipality. Monthly service
charges shall be waived on all additional outlets.
c.
A one-time technology grant of $18,000 paid within 10 months of approval
of the franchise by the New Jersey Board of Public Utilities.
d.
The Communications Act of 1934, Section 623(b), 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, education,
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 its
external cost, pass-through rights to the full extent permitted by
law.
In the event that the Borough determines that it is necessary
and feasible for it to contract with the company for the purpose of
providing two-way or interconnection services, the company shall be
required to apply to the BPU for approval to enter into and establish
the terms and conditions of such contract. All costs for such application
to the BPU shall be borne by the Borough.
The company shall be required to fully comply with all applicable
federal and state statutes, regulations and rules governing the implementation,
operation and testing of the emergency alert system (EAS).
If for any reason the municipality is unable to make full use
of the cable television system as contemplated herein, the company
shall in no way be held liable for any injury suffered by the municipality
or any other person, during an emergency, due to the failure of the
EAS.
[Amended 2-20-2018 by Ord. No. 2018-01]
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.
The liability insurance policy shall provide that the basic
and excess coverage shall be fully available for events of liability
exposure within the Borough of Point Pleasant Beach undiminished by
claims, payments or reserves for events outside of the Borough of
Point Pleasant Beach. The Borough shall be named as an additional
insured "as its interest may appear." Proof of insurance shall be
provided to the Borough annually. Failure to provide the required
insurance shall constitute a breach of the franchise granted under
this ordinance.
[Amended 2-20-2018 by Ord. No. 2018-01]
To the fullest extent permitted by law, the company agrees to
indemnify and hold harmless the Borough, it agents, servants, employees,
and contractors from any losses, damages, costs, and expenses that
are, either directly or indirectly, caused by, or that arise out of,
the company's installations, equipment, or services within the
Borough, or by any omission, fault, negligence or other misconduct
by the company, its employees, independent contractors, or volunteers
in connection with this contract, regardless of whether or not the
Borough, its agents, servants, or employees are also alleged to have
been negligent.
All of the commitments and statements contained in the application
and any amendment thereto submitted in writing to the municipality
by the company, except as modified herein, are binding upon the company
as terms and conditions of this municipal consent. The application
and any other relevant writings submitted by the company shall be
considered a part of this ordinance and made a part hereof by reference
as long as it does not conflict with state or federal law. All ordinances
or parts of ordinances or other agreements between the Borough and
the company that are in conflict with the provisions of this agreement
are hereby declared invalid and superseded.
Should the Borough 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 substitute such language
that is more favorable or less burdensome for the comparable provision
of this ordinance subject to the provisions of N.J.A.C. 14:17-6.7.[1]
[1]
Editor's Note: Former Subsections 18-1.23, Validity, 18-1.24,
Repealer, and 18-1.25, Effective Date, which immediately followed
this subsection, were repealed 2-20-2018 by Ord. No. 2018-01.
Permission and consent is hereby granted to New Jersey Bell
Telephone Company, its successors and assigns, to erect, construct,
reconstruct, remove, inspect, maintain and operate its communications
facilities, including underground conduits, subways, cables and related
appurtenances, aerial and buried cables, wires and related appurtenances,
poles, posts, guys, pedestals, manholes and all other related appurtenances,
in, through, upon, along, over, under and across all of the various
streets, roads, avenues, highways, bridges and waterways and parts
thereof, throughout their entire length, and to effect necessary street
openings and lateral connections to curb poles, property lines and
other facilities in this Borough for its local and through lines and
communications facilities, in connection with the transaction of its
business. All of the various streets, roads, avenues, highways, bridges,
and waterways and parts thereof, throughout their entire length in
this Borough, are hereby designated and prescribed for the uses and
purposes of the company as aforementioned.
a.
Poles, Posts, Pedestals. All poles, posts, or pedestals hereafter
to be erected, constructed, reconstructed, maintained and operated
shall be located and placed back of and adjacent to the curb lines
where shown by official maps of this Borough and within 18 inches
thereof, or as may be mutually agreed to by both parties, and at the
points or places not occupied by the poles, posts or pedestals of
the company, its successors and assigns, and where there are no curb
lines, at other convenient points or places upon the streets, roads,
avenues and highways as may be mutually agreed to by both parties.
b.
Underground Conduits. Underground conduits shall be placed below
the surface of streets, roads, avenues and highways and parts thereof
and, with the exception of lateral branches to curb poles and property
lines and other facilities, conduits generally shall not be constructed
more than ten feet from the curbline, unless obstructions make it
necessary to deviate from such course or unless the parties mutually
agreed to another location. All underground conduits shall be placed
at least 18 inches below the surface.
c.
Manholes. All manholes shall be located at such points along the
line of the subways or underground conduits as may be necessary or
convenient for placing, maintaining and operating the cables and other
conductors and appurtenances which the company may from time to time
place in subways or underground conduits, and shall be so constructed
as to conform to the cross sectional and longitudinal grade of the
surface so as not to interfere with the safety or convenience of persons
or vehicles.
d.
Cables. The company may bury its cables and associated equipment,
fixtures and appurtenances within the right of way of the various
streets, roads, avenues and highways and parts thereof, and at such
locations as shall be mutually agreed upon by the parties in this
Borough for its local and through lines and communications facilities.
e.
Relocation of Poles, Changed or New Curb Lines. Wherever the curb
line shall be established on streets where one does not now exist,
or where an established curb line shall be relocated in order to widen
an existing street or highway, the company shall change the location
of its poles, pedestals and related appurtenances at its own expense
so that they shall be back of and adjacent to the new curb line so
established, upon receipt of notice from the municipal officials that
the curb line has been so established.
a.
Map and Plan; Approval. Before proceeding with any of the work for
which permission and consent is required under this chapter, the company
shall file with the mayor and council of this Borough a map or plan
showing the location and size of any such facilities. The map or plan
shall be first approved by the mayor and council or their authorized
representatives.
b.
Permit; Fee. Prior to the opening or excavating of any streets, roads,
avenues and highways and parts thereof for the purpose of laying,
maintaining and operating its underground systems after the approval
of the map and plan, the company shall first obtain a permit for such
opening or excavation upon payment of such reasonable fee therefor
as may be required to cover the costs of administration and inspection
and as provided by any ordinance regulating openings and excavations
of streets.
c.
Fee Exemption. Except as provided in Subsection 20-1.3b of this chapter,
the company shall be exempt from any fee which may be required by
any ordinance regulating the openings and excavations of streets within
the Borough.
The surface of the streets, roads, avenues and highways and
any pavement or flagging taken up or soil or planting disturbed by
the company in building its lines, shall be restored to as good condition
as it was before the commencement of work thereon. No highway shall
be encumbered for a longer period than shall be necessary to execute
the work. Such restoration shall be subject to the approval of the
Borough after an inspection by its authorized representative upon
completion of the work.
Upon any of the streets, roads, avenues and highways in this
Borough now or hereafter occupied by the poles, posts or pedestals
of New Jersey Bell Telephone Company, its successors and assigns,
or any other companies or corporations having legal authority to erect
and maintain poles, posts or pedestals, the New Jersey Bell Telephone
Company and such other companies or corporations may use the same
poles, posts or pedestals, provided they can agree so to do.
The telephone company shall provide free of charge to the Borough
as long as the provisions of this chapter shall continue in effect,
space on its poles so long as the poles are occupied by the company,
and space in its main subways, not exceeding one clear duct of standard
size, to accommodate the wires or electrical conductors required for
signal control in connection with its police patrol, fire alarm telegraph
signal systems and traffic signal control systems, but not to include
circuits for the supply of electrical energy for traffic or other
signals; provided that such use by the municipality shall not interfere
with the equipment or operation of the company. The Borough shall
indemnify and save harmless the telephone company from all claims
or suits for damages arising from the attachment to its poles or the
location in its main subways of any such cross-arms, wires or electrical
conductors used by this Borough.
Before proceeding with the attachment of its wires to the poles
or the placing of its electrical conductors in the main subways or
manholes of the company, either by itself or by a person, firm or
corporation engaged to perform such work, this Borough shall give
the company 30 days' notice in writing. All such work shall be
performed under the supervision of the company.
If any or all of such streets or highways be later taken over
by the Board of Chosen Freeholders of the County of Ocean or the State
of New Jersey Department of Transportation, then the Board of Chosen
Freeholders or the Department of Transportation may use the same clear
duct of standard size referred to for their respective police patrol,
fire alarm telegraph and traffic signal control systems in conjunction
with Borough use for similar purposes, but only after making such
satisfactory arrangements as may be necessary with the Borough and
the telephone company for the full protection of each others interests.
After final passage of Ordinance No. 1974-10 and acceptance
thereof by the company, the permission and consent granted herein
shall continue and be in force for a period of 50 years from the date
of its approval by the New Jersey Board of Public Utilities Commission
as required by law. Throughout the full term of this grant, the company,
its successors and assigns, shall furnish safe, adequate and proper
service within the Borough, and keep and maintain its property and
equipment in such condition as to enable it to do so.
Nothing herein contained shall be construed to grant unto the
New Jersey Bell Telephone Company, its successors and assigns, an
exclusive right, or to prevent the granting of permission and consent
to other companies for like purposes on any of the streets, roads,
avenues or highways of this Borough.
The permission and consent hereby granted shall apply to and
cover all existing communications facilities and related appurtenances
heretofore erected, constructed, reconstructed, maintained and operated
by New Jersey Bell Telephone Company or its predecessors.
Nothing herein contained shall be construed to impose any obligation
on the part of the Borough to open any streets, roads, avenues or
highways or parts thereof not heretofore dedicated or opened to the
public use, and nothing herein contained shall be construed in any
court or place as an acceptance of any unaccepted street, road, avenue
or highway or any part thereof.
The term "Borough" as used in this ordinance shall be held to
apply to and include any form of municipality or government into which
this Borough or any part thereof, may at any time hereafter be changed,
annexed or merged, and the term "Borough" or any other term herein
used in referring to the governing body of this Borough shall be held
to apply to and include the governing body of such other form of municipality.
