Editor's Note: Prior ordinance history includes portions
of Ordinance No. 94-590.
[Ord. No. 2003-730 Preamble]
The Governing Body of the Borough of Lake Como (hereinafter
referred to as the "Borough") determined that Cablevision of Monmouth,
Inc., (hereinafter referred to as "the Company" or "Cablevision")
had the technical competence and general fitness to operate a cable
television system in the Borough, and by prior ordinance granted its
municipal consent for Cablevision to obtain a nonexclusive franchise
for the placement of facilities and the establishment of a cable television
system in the Borough.
By application for renewal consent filed with the Borough and
the Office of Cable Television on or about July 26, 2002, Cablevision
has sought a renewal of the franchise.
The Borough having held public hearings has made due inquiry
to review Cablevision's performance under the franchise, and
to identify the Borough's future cable-related needs and interests
and has concluded that Cablevision has substantially complied with
its obligations under the franchise and has committed to certain undertakings
responsive to the Borough's future cable-related needs and interests.
The Governing Body of the Borough has accordingly concluded
that the consent should be renewed subject to the requirements set
forth below; and that, provided Cablevision's proposal for renewal
embodies the commitments set forth below, the Borough's municipal
consent to the renewal of the franchise should be given.
[Ord. No. 2003-730 § 1]
For the purpose of this chapter the terms defined above shall
have the meanings there indicated, and the following additional terms
shall have the following meanings:
ACT or CABLE TELEVISION ACT
shall mean that statute of the State of New Jersey relating
to cable television, known as the Cable Television Act, N.J.S.A. 48:5A-1
et seq.
APPLICATION
shall mean Cablevision's application for Renewal of
Municipal Consent, which application is on file in the Borough Clerk's
office and is incorporated herein by reference and made a part hereof,
except as modified, changed, limited or altered by this chapter.
BOARD
shall mean the Board of Public Utilities of the State of
New Jersey or its successor agency.
BOROUGH
shall mean the Governing Body of the Borough of Lake Como
in the County of Monmouth, and the State of New Jersey.
COMPANY
shall mean Cablevision of Monmouth, Inc. ("Cablevision")
the grantee of rights under this Ordinance.
FCC
shall mean the Federal Communications Commission.
FEDERAL ACT
shall mean that Federal statute relating to cable communications
commonly known as the Cable Communications Policy Act of 1984, 47
U.S.C. Section 521 et seq. and the Telecommunications Act of 1996,
or as those statutes may be amended.
FEDERAL REGULATIONS
shall mean those Federal regulations relating to cable television
services, 47 C.F.R. Section 76.1 et seq. (and, to the extent applicable,
any other Federal rules and regulations relating to cable television
including, but not limited to, those described in 47 C.F.R. Section
76.3), or as such regulations may be amended.
STATE
shall mean the State of New Jersey.
STATE REGULATIONS
shall mean those regulations of the State of New Jersey Board
of Public Utilities relating to cable television. N.J.A.C. 14:17-1.1
et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be
amended.
[Ord. No. 2003-730 § 2]
A public hearing concerning the consent herein granted to Cablevision
was held after proper public notice pursuant to the terms and conditions
of the Act. Said hearing having been held and fully open to the public,
and the municipality having received all comments regarding the qualifications
of Cablevision to receive this consent, the Borough hereby finds Cablevision
possesses the necessary legal, technical, character, financial and
other qualifications to support municipal consent, and that Cablevision's
operating and construction arrangements are adequate and feasible.
[Ord. No. 2003-730 § 3]
The Borough hereby grants to Cablevision its nonexclusive consent
to place in, upon, along, across, above, over, and under its highways,
streets, alleys, sidewalks, public ways, and public places in the
municipality poles, wires, cables, and fixtures necessary for the
maintenance and operation in the Borough of a cable television system,
and for the provision of any communication service over such system
as may be authorized by Federal or State regulatory agencies. Operation
and construction, pursuant to said consent, is conditioned upon prior
approval of the Board of Public Utilities.
[Ord. No. 2003-730 § 4]
This consent granted herein shall be nonexclusive and shall
be for a term of ten (10) years from the date of issuance of a Certificate
of Approval by the Board.
[Ord. No. 2003-730 § 5]
If Cablevision seeks successive consent, it shall, prior to
the expiration of this consent, apply for a municipal consent and
certificate of approval in accordance with N.J.S.A. 48:5A-16, and
applicable State and Federal rules and regulations. The Company shall
also petition the Board for approval authorizing continued operation
during the period following expiration of the consent granted herein,
and until such time that a decision is made by the Borough and the
Board relative to the renewal of said consent.
[Ord. No. 2003-730 § 6]
The consent granted under this chapter to Cablevision shall
apply to the entirety of the Borough and any property hereafter annexed.
[Ord. No. 2003-730 § 7]
Cablevision shall be required to proffer video programming service
along any public right-of-way to any person's residence within
the portion of the franchise territory, as described in the application
for municipal consent, at tariffed rates for standard and nonstandard
installation.
[Ord. No. 2003-730 § 8]
Cablevision shall extend service along any public right-of-way
outside its primary service area to those residences within the franchise
territory which are located in areas that have a residential density
of twenty-five (25) homes per mile or greater, or areas with less
than twenty-five (25) homes per mile where residents agree to share
the costs of such extension in accordance with the line extension
formula as provided by the Company in its application for municipal
consent.
[Ord. No. 2003- 730 § 9]
Pursuant to the terms and conditions of the Cable Television
Act, Cablevision shall pay to the Borough, as an annual franchise
fee, a sum equal to two (2%) percent of the actual gross revenues
received from all recurring charges in the nature of subscription
fees paid by subscribers for its cable television reception services
in the Borough. In the event applicable law hereinafter permits a
larger franchise fee to be collected, but does not fix the amount
thereof, the Borough and Cablevision shall negotiate in good faith
with respect to the amount thereof.
[Ord. No. 2003-730 § 10]
a. Cablevision shall, upon written request, provide free of charge one
(1) standard installation and monthly cable television reception service
to all State or locally accredited elementary and secondary public
schools and all municipal public libraries, as well as municipal buildings
located within the Borough as set forth in Exhibit A to this chapter.
b. Cablevision shall, upon written request, provide free of charge one
(1) high-speed cable modem and monthly Internet access service, including
a standard installation service to all State or locally accredited
elementary and secondary public schools and all municipal public libraries.
c. Cablevision shall provide to the Borough, upon written request, one
(1) high-speed cable modem and monthly Internet access service, including
a standard installation, to Borough Hall (the "designated building").
The Borough shall be permitted, at its own cost, to network up to
three (3) additional personal computer terminals in the designated
building (four computers in total) to the cable modem provided by
Cablevision.
[Ord. No. 2003-730 § 11]
a. Cablevision shall perform construction and installation of its plant
and facilities in accordance with applicable State and Federal law.
The Company shall be subject to the following additional construction
requirements with respect to the installation of its plant and facilities
in the Borough:
1. In the event that the Company or its agents shall disturb any pavement,
street surfaces, sidewalks, driveways or other surfaces, the Company
shall at its sole expense restore and replace such disturbances in
as good a condition as existed prior to the commencement of said work.
2. 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 Borough, shall
remove or relocate its equipment at its own expense.
3. Upon request of a person holding a building or moving permit issued
by the Borough, the company shall temporarily move or remove appropriate
parts of its facilities so as to permit the moving or erection of
buildings or for the performance of other work. The expense of any
such temporary removal or relocation shall be paid in advance to the
Company by the person requesting the same. In such cases, the Company
shall be given not less than fourteen (14) days prior written notice
in order to arrange for the changes required.
4. During the exercise of its rights and privileges under this consent,
the Company shall have the authority to trim trees upon and overhanging
streets, alleys, sidewalks and public places of the Borough so as
to prevent the branches of such trees from coming in contact with
the wires, cables, conduits and fixtures of the Company. Such trimming
shall be only to the extent necessary to maintain proper clearance
for the Company's facilities.
b. The cable system operated by the Company in the Borough shall offer
no less than eighty (80) channels of video programming during the
term of this chapter, and shall further be capable of supporting multiple
analog and or digital video programming, and two-way interactive services.
[Ord. No. 2003-730 § 12]
Cablevision shall comply with the technical and customer service
standards established for the cable industry under applicable Federal
and State laws, rules and regulations.
[Ord. No. 2003-730 § 13]
Cablevision shall establish and maintain during the entire term
of this consent a local area business office or agent for the purpose
of receiving, investigating and resolving complaints regarding the
quality of service, equipment malfunctions and similar matters. Said
office shall be open daily during normal business hours, and in no
event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, with
the exception of holidays.
[Ord. No. 2003-730 § 14]
The Office of Cable Television is hereby designated as the complaint
officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26.
All complaints shall be reviewed and processed in accordance with
N.J.A.C. 14:17-6.5.
[Ord. No. 2003-730 § 15]
Cablevision agrees to maintain and keep in force and effect
at its sole cost at all times during the term of this consent, sufficient
liability insurance naming the Borough as an additional insured and
insuring against loss by any such claim, suit, judgment, execution
or demand in the minimum amounts of five hundred thousand ($500,000.00)
dollars for bodily injury or death to one person, and one million
($1,000,000.00) dollars for bodily injury or death resulting from
any one accident or occurrence stemming from or arising out of the
Company's exercise of its rights hereunder.
[Ord. No. 2003-730 § 16]
Cablevision shall obtain and maintain, at its sole cost and
expense, during the entire term of this Agreement, a bond to the municipality
in the amount of twenty-five thousand ($25,000.00) dollars. Such bond
shall be to insure the faithful performance of its obligations as
provided in this franchise.
[Ord. No. 2003-730 § 17]
a. The rates of the Company for cable television services shall be subject
to regulation to the extent permitted by Federal and State law.
b. Cablevision shall implement a senior citizen discount in the amount
of ten (10%) percent off the monthly rate of the broadcast basic level
of cable television reception service to any person sixty-two (62)
years of age or older who subscribes to the Company's cable television
service, subject to the following:
1. Such discount shall only be available to eligible senior citizens
who do not share the subscription with more than one (1) person in
the same household who is less than sixty-two (62) years of age; and,
2. In accordance with N.J.S.A. 48:5A-11.2, subscribers seeking eligibility
for the discount must meet the income and residence requirements of
the Pharmaceutical Assistance to the Aged and Disabled program pursuant
to N.J.S.A. 30:4D-21; and,
3. The senior discount herein relates only to the broadcast basic level
of cable television service, and shall not apply to any additional
service, feature, or equipment offered by the Company, including any
premium channel services and pay-per-view services; and,
4. Senior citizens who subscribe to a level of cable television service
beyond expanded basic service, including any premium or per channel
a la carte service, shall not be eligible for the discount.
[Ord. No. 2003-730 § 18]
Cablevision shall be required to have the capability to override
the audio portion of the system in order to permit the broadcasting
of emergency messages pursuant to State and Federal requirements.
The Company shall in no way be held liable for any injury suffered
by the Borough 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 Borough shall utilize the state-approved
procedures for such emergency uses.
[Ord. No. 2003-730 § 19]
Cablevision agrees that the capabilities of the cable system
shall be maintained technologically current throughout the duration
of the franchise, as compared with other communities of similar size
served by the Company, to the extent economically reasonable and commercially
practicable.
[Ord. No. 2003-730 § 20]
In the event that another multi-channel video program provider's
service within the Borough creates a significant competitive disadvantage
to Cablevision, the Company shall have the right to request from the
Borough lawful amendments to its franchise that relieve it of burdens
which create the unfair competitive situation. Should the Company
seek such amendments to its franchise, the parties agree to negotiate
in good faith appropriate changes to the franchise in order to relieve
the Company of such competitive disadvantages. If the parties can
reach an agreement on such terms, the Borough agrees to support the
Company's petition to the Board for modification of the consent
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate
amendments to the franchise, the Borough acknowledges that the Company
shall have the right to petition the Board directly for such amendments
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided,
however, the Borough shall be under no obligation to support Cablevision's
request for such relief from the Board.
Cablevision represents and acknowledges that as of the date
of its acceptance of this municipal consent, competition within the
Borough has not yet risen to the level of creating a significant competitive
disadvantage sufficient to enable the Company to seek relief under
this section.
[Ord. No. 2003-73 § 21]
Upon expiration, termination or revocation of this chapter,
Cablevision, at its sole cost and expense and upon direction of the
Board, shall remove the cables and appurtenant devices constructed
or maintained in connection with the services authorized herein, unless
Cablevision, its affiliated entities or assignees should, within six
(6) months after such expiration, termination or revocation obtain
certification from the FCC to operate an open video system or any
other Federal or State certification to provide telecommunications.
[Ord. No. 2003-730 § 22]
a. Cablevision shall continue to make available noncommercial public,
educational and governmental (PEG) access as described in the application
for municipal consent.
b. The Borough agrees that Cablevision shall retain the right to use
the PEG access channel, or portion thereof, for non-PEG access programming,
during times when the Borough is not utilizing the channel for purposes
of providing PEG access programming. In the event that the Company
uses said PEG access channel for the presentation of such other programming,
the PEG programming shall remain the priority use, and the Company's
rights with respect to using the channel for non-PEG programming shall
be subordinate to the Borough's provision of PEG access programming
on such channel.
c. In consideration for the rights granted in this chapter, the Company
shall provide the Borough with a one-time grant of three thousand
($3,000.00) dollars, which may be used by the Borough for any cable
and/or other telecommunications-related purpose as the Borough, in
its discretion, may deem appropriate.
[Ord. No. 2003-730 § 23]
All of the commitments contained in the application and any
amendment thereto submitted in writing to the Borough by the Company,
except as modified herein, are binding upon Cablevision as terms and
conditions of this consent. The application and any other written
amendments thereto submitted by Cablevision in connection with this
consent are incorporated in this chapter by reference and made a part
hereof, except as specifically modified, changed, limited, or altered
by this chapter, or to the extent that they conflict with State or
Federal law.
[Ord. No. 2003-730 § 24]
This consent shall be construed in a manner consistent with
all applicable Federal, State and local laws.
[Ord. No. 2003-730 § 25]
If any section, subsection, sentence, clause, phrase, or portion
of this chapter is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portion thereof.
[Ord. No. 2003-730 § 26]
This chapter shall take effect upon issuance of a Certificate
of Approval as issued by the Board of Public Utilities.