[HISTORY: Added by the Mayor and Council of the Borough of Somerville 10-18-93 as Ord. No. 1153. Amended in its entirety 10-20-03 by Ord. No. 2148. Subsequent amendments noted where applicable.]
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:
- ACT OR CABLE TELEVISION ACT
- 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.
- Cablevision's application for Renewal of Municipal Consent, which application is on file in the Borough's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this Ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The governing body of the Borough of Somerville in the County of Somerset, and the State of New Jersey.
- CSC TKR, Inc. ("Cablevision"), the grantee of rights under this Ordinance.
- The Federal Communications Commission.
- FEDERAL ACT
- 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
- 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.
- The State of New Jersey.
- STATE REGULATIONS
- 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.
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.
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.
This consent granted herein shall be nonexclusive and shall be for a term of ten (10) years from the effective date of this Ordinance. In the event that the borough requests an additional access return line in accordance with Section A191-21C of this Ordinance, the term of this consent shall be automatically extended for an additional five (5) year term, measured from the expiration of the certificate of approval granted in connection with this Ordinance. The automatic renewal term shall be subject to approval of the Board in accordance with applicable law.
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-11 and N.J.S.A. 48:5A-16, and applicable State and Federal rules and regulations. The Company shall also seek approval from the Office of Cable Television 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.
The consent granted under this Ordinance to Cablevision shall apply to the entirety of the borough and any property hereafter annexed.
Cablevision shall be required to proffer service along any public right-of-way to any person's residence located within the portion of the franchise territory, as described in the map attached to the application at tariffed rates for standard and nonstandard installation. Such area designated shall constitute the primary service area.
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.
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 percent (2%) 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, or changes to mandate the inclusion of revenue received by the Company for the provision of cable modem service provided over the system into the franchise fee payment authorized under applicable cable television law, then the borough and Cablevision shall negotiate in good faith with respect to the amount thereof.
Cablevision shall, upon written request, provide, free of charge, one (1) standard installation and monthly basic cable television service to all State or locally accredited public and private elementary and secondary schools and all public libraries, as well as municipal buildings used for governmental purposes within the borough as set forth in Exhibit A to this Ordinance.
The Company shall provide, free of charge, upon written request, one (1) standard installation, one (1) cable modem and monthly Internet access to all State accredited public and private elementary and secondary schools and the municipal public library.
The Company shall provide, free of charge, one (1) standard installation, one (1) cable modem and monthly Internet access to one (1) municipal location upon written request by the borough. The borough shall be permitted at its own cost, to network up to three (3) additional personal computers terminals in the designated building (four (4) computers in total) to the cable modem provided by Cablevision.
Editor's Note: Exhibit A, referred to herein, may be found on file in the office of the Borough Clerk.
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:
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.
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.
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.
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.
Cablevision shall comply with the technical and customer service standards established for the cable industry under applicable Federal and State laws, rules and regulations.
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.
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.
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 dollars ($500,000) for bodily injury or death to one person, and one million dollars ($1,000,000) 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.
Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this Ordinance, a bond to the municipality in the amount of twenty-five thousand dollars ($25,000). Such bond shall be to insure the faithful performance of its obligations as provided in this Franchise.
The rates of the Company for cable television service shall be subject to regulation to the extent permitted by Federal and State law.
Cablevision shall implement its senior citizen discount in the amount of ten percent (10%) off the monthly broadcast basic level of cable television service rate to any person sixty-two (62) years of age or older, who subscribes to cable television services provided by the Company, subject to the following:
Such discount shall only be available to eligible senior citizens who do not share the subscription with more than one person in the same household who is less than sixty-two (62) years of age; and,
Subscribers seeking eligibility for the discount must meet the income and residence requirements of the Pharmaceutical Assistance to Aged and Disabled (PAAD) program in the State pursuant to N.J.S.A. 30:4D-21;
The senior citizen discount herein relates only to the entry level basic rate of cable television service, and shall not apply to any additional service, feature, or equipment offered by the Company, including premium channel services and pay-per-view services.
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.
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.
In the event that the borough approves or permits a cable system to operate in the community on terms more favorable or less burdensome than those contained in this Ordinance, such more favorable or less burdensome terms shall be applicable in this consent, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-15 and N.J.A.C. 14:17-6.7.
In the event that a nonfranchised multi-channel video programmer provides service to residents of the borough, Cablevision shall have a right to request franchise amendments to this Ordinance that relieve Cablevision of regulatory burdens that create a competitive disadvantage to the Company. In requesting amendments, Cablevision shall file with the Board of Public Utilities a petition for approval in accordance with N.J.S.A. 48:5A-15 and N.J.A.C. 14:17-6.7 seeking to amend the Ordinance. Such petition shall: i) indicate the presence of a nonfranchised competitor(s); ii) identify the basis for Cablevision's belief that certain provisions of this franchise place it at a competitive disadvantage; and iii) identify the regulatory burdens to the amended or repealed in order to eliminate the competitive disadvantage. The borough shall not unreasonably withhold or object to granting the Company's petition and so amending the Ordinance, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-15 and N.J.A.C. 14:17-6.7.
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 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.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access as described in the Application for municipal consent.
Within one hundred and twenty (120) days following the request of the borough, Cablevision shall provide one (1) access return line at the following locations — either Somerville High School located at 222 Davenport Street, or the Somerville Borough Hall building located at 25 West End Avenue. The borough may not request installation of the access return line prior to the issuance of the certificate of approval granting the renewal by the Board. The borough may use the return only for the production of noncommercial educational and governmental (EG) programming.
Upon request of the borough, Cablevision shall provide one additional access return line at either the Somerville High School or the Somerville Municipal building. The additional access return line shall similarly be for the production of noncommercial EG programming by the borough. In the event that the borough requests the additional access return line as specified in this subsection, the consent shall be automatically extended in accordance with Section A191-4 of this Ordinance. Upon the effective date of the amended certificate of approval extending the term for an additional five (5) years, Cablevision shall construct the access return line within one hundred twenty (120) days. If the automatic renewal term is not authorized or otherwise granted, for any reason, then the Company shall not be responsible for providing the additional EG access return line specified in this subsection.
The borough agrees that Cablevision shall retain the right to use the EG access channel, or portion thereof, for non-EG access programming, during times when the borough is not utilizing the channel for purposes of providing EG access programming. In the event that the Company uses said EG access channel for the presentation of such other programming, the EG programming shall remain the priority use and the Company's rights with respect to using the channel for non-EG programming shall be subordinate to the borough's provision of EG access programming on such channel.
In consideration for the rights granted by this Ordinance, Cablevision shall provide the borough with a one-time grant of twenty thousand dollars ($20,000) to be used by the municipality specifically for cable and/or other telecommunications related purposes, including to supplement EG access related production and programming efforts in the borough.
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.
This consent shall be construed in a manner consistent with all applicable Federal, State and local laws.
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.
This Ordinance shall take effect upon passage and publication in accordance with applicable law.