[Adopted 8-9-2016 by Ord. No. 2016-10[1]]
[1]
Editor's Note: This ordinance superseded former § 24-1,
Comcast Cablevision, adopted by Ord. No. 2001-03.
The municipality 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 municipality of a cable television and communications
system.
For the purpose of this section, the following terms, phrases,
words and their derivations shall have the meanings 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:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. § 48:5A-1 et seq.
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.
The Board of Public Utilities, State of New Jersey.
The Borough of Island Heights, County of Ocean, State of
New Jersey.
The grantee of rights under this section, and is known as
"Comcast of New Jersey."
The Federal Communications Commission.
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.
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.
a.
The nonexclusive municipal consent granted herein shall expire 10
years from the date of expiration of the previous certificate of approval
as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6.
b.
In the event that the municipality shall find that the company has
not substantially complied with the material terms and conditions
of this section, 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, the company
shall, during each year of operation under the consent granted herein,
pay to the municipality 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 section 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
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,
with an HPM ("homes per mile") of 35 dwellings per linear mile from
the nearest active trunk or feeder line.
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 Office of Cable Television is hereby designated as the complaint
officer for the municipality 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 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.
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 to one outlet at no cost to each qualified existing
and future school in the municipality, public and private, elementary,
intermediate and secondary, provided the school building 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 provide expanded basic or a similar tier of cable
television service at no cost to one outlet to each qualified existing
and future public building, including the municipal building, police,
fire, emergency management facility and public library in the municipality,
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.
c.
The company shall provide the Borough with a government access channel
on which the Borough shall be permitted to post any appropriate content
related to Borough business and activities. The company shall provide
the Borough with all equipment necessary for the Borough to access
the government channel and to post content on the channel.
d.
Within six months of the issuance of a renewal certificate of approval
by the BPU, the company shall provide to the municipality a one-time
technology grant in the amount of $5,000 to meet the technology and/or
cable-related needs of the community.
e.
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, 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.
a.
The company will continue to provide one channel for educational
and governmental ("EG") access for the use by 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 below.
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 the use of
any educational or governmental 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/or universities.
e.
Government access. "Government access" shall mean noncommercial use
by the governing bodies of the municipality for the purpose of showing
the public local government at work.
f.
Indemnification. The municipality 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 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 application of 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 section, subject to the provisions of N.J.A.C. 14:17-6.7.
If any section, subsection, sentence, clause, phrase or portion
of this section 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 section.
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 section shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
