[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:
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.
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.
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.
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[1] 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.
[1]
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:
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.
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:
A.
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,
B.
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;
C.
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.
D.
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.
A.
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.
B.
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.
A.
Cablevision shall continue to make available noncommercial public,
educational and governmental (PEG) access as described in the Application
for municipal consent.
B.
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.
C.
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.
D.
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.
E.
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.
