Editor's Note: Prior ordinance history includes portions
of Ordinance No. 12-99.
[Ord. #02-09 Preamble]
The governing body of the Borough of Midland Park (hereinafter
referred to as the "Borough") determined that Cablevision of Oakland,
LLC, (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 August 12, 2008, 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 applicable law 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.
Imposition of the same burdens and costs on other competitors
franchised by the Borough is a basic assumption of the parties.
[Ord. #02-09 § 1]
For the purpose of this Ordinance the terms defined above shall
have the meanings there indicated, and the following additional terms
shall have the following meanings:
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.
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 Ordinance.
Shall mean the Board of Public Utilities of the State of
New Jersey or its successor agency.
Shall mean the governing body of the Borough of Midland Park
in the County of Bergen, and the State of New Jersey.
Shall mean Cablevision of Oakland, LLC. ("Cablevision") the
grantee of rights under this Ordinance.
Shall mean the Federal Communications Commission.
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.
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.
Shall mean the installation of drop cable to a customer's
premises where the distance from the point of entry into the building
being served is less than one hundred fifty (150') feet from
the active cable television system plant.
Shall mean the State of New Jersey.
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. #02-09 § 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. #02-09 § 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
or other communications facility, and for the provision of any communication
service over such facilities 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. #02-09 § 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. #02-09 § 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 a time that a decision is made by the Borough and the
Board relative to the renewal of said consent.
[Ord. #02-09 § 6]
The consent granted under this Ordinance to Cablevision shall
apply to the entirety of the Borough and any property hereafter annexed.
[Ord. #02-09 § 7]
Cablevision shall be required to proffer video programming service
along any public right-of-way to any person's residence located
in the franchise territory at tariffed rates for standard and nonstandard
installation.
[Ord. #02-09 § 8]
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; provided, however, that nothing
herein shall be construed to permit the Borough to require payment
of a franchise fee by Cablevision that is higher than the fee paid
by all other cable television service providers offering service in
the Municipality.
[Ord. #02-09 § 9]
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 public schools and all
municipal public libraries, as well as municipal and emergency services
buildings located within the Borough.
Upon written request from the Borough, the Company shall provide
to State and locally accredited elementary and secondary schools and
municipal public libraries in the Borough, without charge, the following:
(1) one (1) standard installation per school or library; (2) one (1)
cable modem per installation; and, (3) basic cable modem service for
the term of this Ordinance for each installation. This offer shall
be subject to the terms, conditions and use policies of the Company,
as those policies may exist from time to time.
Upon written request from the Borough, the Company shall provide
to one (1) municipally owned or emergency services facility, without
charge, the following: (1) one (1) standard installation; (2) one
(1) cable modem per installation; and (3) basic cable modem service
for the term of this Ordinance for each installation. This offer shall
be subject to the terms, conditions and use policies of the Company
as those policies may exist from time to time; provided, however,
that these changes in policy affect only changes in use, and not the
elimination of the free service provided for herein.
[Ord. #02-09 § 10]
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 cable plant and
facilities in the Borough:
a.
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.
b.
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.
c.
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.
d.
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.
[Ord. #02-09 § 11]
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. #02-09 § 12]
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. #02-09 § 13]
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
and any complaints by local subscribers to cable television reception
or service shall be filed directly with the said office. All complaints
shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
[Ord. #02-09 § 14]
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 (1) person, and one million
($1,000,000.00) dollars for bodily injury or death resulting from
any one (1) accident or occurrence stemming from or arising out of
the Company's exercise of its rights hereunder.
[Ord. #02-09 § 15]
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. #02-09 § 16]
The rates of the Company for cable television services shall
be subject to regulation to the extent permitted by Federal and State
law.
[Ord. #02-09 § 17]
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 by the Borough 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. #02-09 § 18]
In the event that the service of another multi-channel video
program provider not subject to the Borough's regulatory authority
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.
In any subsequent municipal consent, Borough shall require,
at a minimum, the same terms and conditions of any other provider
of multi-channel video programming subject to the Borough's regulatory
authority as those contained in the instant consent. In the event
such subsequent consent does not contain the same terms and conditions
as the instant consent, 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 to relieve the Company
of competitive disadvantages identified in the Company's petition.
[Ord. #02-09 § 19]
Upon expiration, termination or revocation of this Ordinance,
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 cable 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. #02-09 § 20]
a.
Cablevision shall continue to make available non-commercial public,
educational and governmental (PEG) access services available to the
residents of the Borough as described in the application for municipal
consent. All Cablevision support for PEG access shall be for the exclusive
benefit of Cablevision's subscribers.
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.
Cablevision shall have discretion to determine the format and method of transmission of the PEG access programming provided for in this Section 20-21.
d.
In consideration for the rights granted in this Ordinance, the Company shall provide the Borough with a grant in the amount of nine thousand four hundred ($9,400.00) dollars. Cablevision shall provide an initial grant payment of four thousand ($4,000.00) dollars within ninety (90) days of the issuance of the Certificate of Approval by the Board of Public Utilities. The remaining grant of five thousand four hundred ($5,400.00) dollars shall be provided in annual installments of six hundred ($600.00) dollars, upon written request by the Borough (the "Annual Grant). The Annual Grant may be used by the Borough for any cable and/or other telecommunications related purpose as the Borough, in its discretion, might deem appropriate. Cablevision shall not be obligated to make any additional payments beyond year ten (10) of the franchise. The Annual Grant shall be payable to the Borough within sixty (60) days from receipt of the Borough's written request. Notwithstanding the foregoing, should Cablevision apply for a system-wide certification or otherwise convert its municipal consent to a system-wide certification in accordance with applicable law, it shall be relieved of any payments due and owing after the date of such conversion or award of a system-wide franchise. The Borough agrees that all amounts provided pursuant to paragraph d, shall be used for the exclusive support of PEG access programming, such as the purchase and/or rental of PEG access equipment and facilities. On request, the Borough shall provide Cablevision with a certification of compliance with this Section 20-21d.
e.
Upon written request by the Borough, Cablevision shall install a
fiber access return feed at the Borough municipal building, provided
it is a standard installation, solely for the benefit of the Company's
cable television subscribers in the municipality.
f.
The Company shall have no further obligation to provide any PEG grant
payments due and payable after the date upon which (a) the Company
converts the municipal consent granted herein to a system-wide franchise
in accordance with N.J.S.A. 48:5A-25.1.
g.
Upon request of the Borough, the Cablevision company shall provide
free public access training at their cable studio currently in Oakland.
[Ord. #02-09 § 21]
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 Ordinance by reference and made a
part hereof, except as specifically modified, changed, limited, or
altered by this Ordinance, or to the extent that they conflict with
State or Federal law.
[Ord. #02-09 § 22]
This consent shall be construed in a manner consistent with
all applicable Federal, State and local laws, as such laws, rules
and regulations may be amended from time to time.
[Ord. #02-09 § 23]
If any section, subsection, sentence, clause, phrase, or portion
of this Ordinance 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. #02-09 § 24]
Notices required under this Ordinance shall be in writing and
shall be mailed, first class, postage prepaid, to the addresses below.
Either party may change the place where notice is to be given by providing
such change in writing at least thirty (30) days prior to the time
such change becomes effective. The time to respond to notices under
this Ordinance shall run from receipt of such written notice.
Notices to the Franchisee shall be mailed to:
Cablevision Systems Corporation
638 Route 10
Randolph, NJ 07869
Attention: Vice President for Government/Public Affairs, New
Jersey
With a copy to:
Cablevision of Oakland, LLC
1111 Stewart Avenue
Bethpage, NY 11714
Attention: Legal Department
Notices to the Borough shall be mailed to:
Borough of Midland Park
280 Godwin Avenue
Midland Park, New Jersey 07432
Attention: Borough Clerk
[Ord. #02-09 § 25]
This Ordinance shall take effect upon issuance of a Certificate
of Approval as issued by the Board of Public Utilities.
