[HISTORY: Adopted by the Township Committee of the Township
of Barnegat 12-21-09 as Ord. No. 2009-36. Amendments noted where applicable.]
The municipality hereby grants to Comcast 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 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 municipality 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 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:
A. TOWN or
MUNICIPALITY — The Township of Barnegat, County of Ocean, State
of New Jersey.
B. COMPANY
— The grantee of rights under this ordinance and is known as
Comcast of New Jersey.
C. ACT or
CABLE TELEVISION ACT — Chapter 186 of the General Laws of New
Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1, et seq.
D. FCC —
The Federal Communications Commission.
E. BOARD or
BPU — The Board of Public Utilities, State of New Jersey.
F. OFFICE
or OCTV — The Office of Cable Television of the Board.
G. BASIC CABLE
SERVICE — Any service tier, which includes the retransmission
of local television broadcast signals as defined by the FCC.
H. APPLICATION
— The Company's application for renewal of municipal consent.
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.
Public hearings conducted by the municipality, concerning the
renewal of municipal consent herein granted to the Company were held
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 municipality,
having received at said public hearings 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
fifteen (15) years from the date of expiration of the previous certificate
of approval issued by the Board (with a 10-year automatic renewal
as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6).
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, 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 ninety (90) 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 municipality two percent (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 municipality 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 municipality and any
property subsequently annexed hereto.
The Company shall be required to proffer service along the public
right-of-way to any person's residence or business located in
those areas of 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 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 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.
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 municipality
upon written request of the Municipality Administrator or 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 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 permitted under law.
The Township of Barnegat shall remain as the Complaint Officer
for the municipality. 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 municipality 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. Such a business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours, and in no event (excepting emergent
circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
During the life of the franchise the Company shall give to the
municipality a bond in the amount of twenty-five thousand dollars
($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 Total Preferred cable television service
on one (1) outlet at no cost to each school in the municipality, public
and private, elementary, intermediate and secondary, provided the
school is within one hundred seventy-five (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 (1) outlet to each police, fire, emergency management
facility and public library in the municipality, provided the facility
is located within one hundred seventy-five (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 sixty-five thousand dollars ($65,000.)
to be paid within 12-month of the BPU issuing the Certificate of Approval.
D. Provide one (1) Government Access Channel and one (1) Educational
Access Channel within 12 months of the BPU issuing the certificate
of approval.
In the event that the municipality 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 municipality.
The Company will comply with the Emergency Alert System ("EAS")
rules in accordance with applicable state and federal statutes and
regulations.
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 one million
dollars ($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 five million dollars ($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, is 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 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.
If any section, subsection, sentence, clause, phrase or portion
of this ordinance 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.
This ordinance shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.