ATTACHMENTS
Exhibits A and B
[8-2-2018 by Ord. No. 18-1588[1]]
The Township 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 Township, 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 Township of a cable television and communications system. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the BPU.
[1]
Editor’s Note: This ordinance superseded former Ch. 20, Cable Television Franchise, adopted by Ord. No. 03-1092.
[8-2-2018 by Ord. No. 18-1588]
For the purpose of this chapter, 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.
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.
APPLICATION
The company's application for renewal of municipal consent.
BASIC CABLE SERVICE
Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
BOARD or BPU
The Board of Public Utilities, State of New Jersey.
COMPANY or COMCAST
The grantee of rights under this chapter, known as "Comcast of Central New Jersey II."
FCC
The Federal Communications Commission.
OFFICE or OCTV
The Office of Cable Television of the Board.
PRIMARY SERVICE AREA or PSA
Consists of the area of the Township currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
TOWNSHIP
The Township of Montgomery, County of Somerset, State of New Jersey.
[8-2-2018 by Ord. No. 18-1588]
A public hearing conducted by the Township, concerning the renewal of municipal consent herein granted to the company, was held after proper public notice pursuant to the terms and conditions of the Act and the regulations of the Board adopted pursuant thereto. Said hearing having been fully open to the public, and the Township having received at said public hearing all comments regarding the qualifications of the company to receive this renewal of municipal consent, the Township 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.
[8-2-2018 by Ord. No. 18-1588]
a. 
The nonexclusive municipal consent granted herein shall expire 15 years from the date of expiration of the previous certificate of approval issued by the Board.
b. 
In the event that the Township shall find that the company has not substantially complied with the material terms and conditions of this chapter, the Township 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 Township shall first have given the company written notice of all alleged instances of noncompliance and an opportunity to cure same within a reasonable amount of time of that notification.
[8-2-2018 by Ord. No. 18-1588]
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 Township 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 Township or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater.
[8-2-2018 by Ord. No. 18-1588]
The consent granted under this chapter for the renewal of the franchise shall apply to the entirety of the Township and any property subsequently annexed hereto.
[8-2-2018 by Ord. No. 18-1588]
The company shall be required to proffer service to any residence or business along any public right-of-way in the primary service area, as set forth in the company's application, at tariffed rates for standard or nonstandard installation. 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 25 dwellings per linear mile from the nearest active trunk or feeder line.
[8-2-2018 by Ord. No. 18-1588]
a. 
Restoration. 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 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 Township shall alter or change the grade of any street, alley or other way or place, the company, upon reasonable notice by the Township, 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 Township 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.
d. 
Temporary removal of cables. The company shall, upon request of the Township, at the company's expense, temporarily raise, lower or remove its lines and facilities in order to facilitate the moving of buildings or machinery or in other like circumstances.
e. 
Installation of equipment. The company shall install equipment in the same location and manner as existing public utilities whenever possible, in order to minimize the impact of same on surrounding property.
[8-2-2018 by Ord. No. 18-1588]
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 Township upon written request of the Township 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 Township 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.
[8-2-2018 by Ord. No. 18-1588]
The Office of Cable Television ("OCTV") is hereby designated as the complaint officer for the Township 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 Township shall have the right to request copies of records and reports pertaining to complaints by Township customers from the OCTV.
[8-2-2018 by Ord. No. 18-1588]
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.
[8-2-2018 by Ord. No. 18-1588]
During the life of the franchise, the company shall give to the Township 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.
[8-2-2018 by Ord. No. 18-1588]
The rates of the company shall be subject to regulation as permitted by federal and state law.
[8-2-2018 by Ord. No. 18-1588]
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 Township, public and private, elementary, intermediate and secondary, provided the school building is within 200 feet of active cable distribution plant or through customer-owned conduit. 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 municipal building, police, fire, emergency management facility and public library in the Township, provided the facility is located within 200 feet of active cable distribution plant or through customer-owned conduit. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor basis by the Township.
c. 
Within six months of the issuance of a renewal certificate of approval by the BPU, the company shall provide to the Township a one-time technology grant in the amount of $30,000 to meet the technology and/or cable-related needs of the community.
d. 
Video return line.
1. 
Within the first five years of the franchise and within 12 months of a written request from the Township, the company shall construct a video return line (VRL) with necessary associated electronics and cable system interconnection for PEG access video origination from the new Municipal Building located at 200 Headquarters Park Drive, Skillman, New Jersey, at no cost to the Township. With respect to the foregoing, any relocation/moving costs for moving Township-owned access equipment from the current Municipal Building location shall be the sole cost of the Township. Upon completion of the VRL construction from the new Municipal Building, the company shall deactivate the existing VRL in the Municipal Building located at 2261 Van Horne Road (Route 206 North), Belle Mead, New Jersey. The intent of this paragraph is to ensure that the Township's PEG access video origination is able to be actively used at its then-current Municipal Building and that transition of an active PEG access video from the existing Municipal Building to the new Municipal Building is as seamless as reasonably possible. The parties will use commercially reasonable efforts to ensure that PEG access video origination from the existing Municipal Building to the new Municipal Building does not interrupt the Township's use of the PEG access video services.
2. 
Any future moves necessitating a new or different VRL other than the new Municipal Building, shall be entirely borne by the Township and paid to the company prior to any such VRL construction, subject to the following. Upon written request, the company shall provide a written cost estimate to the Township of such future or alternative VRL relocation.
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.
[8-2-2018 by Ord. No. 18-1588]
a. 
The company will continue to provide two channels for public, educational and governmental ("PEG") access. It will be 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 PEG use. A PEG 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 a public or governmental access program that contains obscenity, indecency, or nudity.
d. 
Public access. "Public access" shall mean noncommercial use by the public.
e. 
Government access. "Government access" shall mean noncommercial use by the governing bodies of the Township for the purpose of showing the public local government at work.
f. 
Fallow time. Because blank or underutilized PEG channels are not in the public interest, in the event the Township or other PEG access users elect not to fully program the PEG access channel, the company may program unused time on those channels subject to reclamation by the Township upon no less than 60 days' written notice.
[8-2-2018 by Ord. No. 18-1588]
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 Township or any other person, during an emergency, if for any reason the Township is unable to make full use of the cable television system as contemplated herein.
[8-2-2018 by Ord. No. 18-1588]
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. The Township shall be named as an additional insured on such policies.
[8-2-2018 by Ord. No. 18-1588]
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.
[8-2-2018 by Ord. No. 18-1588]
Should the Township grant municipal consent for 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 chapter, subject to the provisions of N.J.A.C. 14:17-6.7, including the agreement of the Township.
[8-2-2018 by Ord. No. 18-1588]
If any section, subsection, sentence, clause, phrase or portion of this chapter 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 chapter.
[8-2-2018 by Ord. No. 18-1588]
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.
[8-2-2018 by Ord. No. 18-1588]
This chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.