[Added 10-17-2023 by Ord.
No. 2023-11]
The Borough hereby grants to Comcast renewal of its non-exclusive
municipal consent to place in, upon, across, above, over and under
highways, streets, alleys, sidewalks, easements, public ways and public
places in the Borough 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 Borough of a cable television and communications
system.
[Added 10-17-2023 by Ord.
No. 2023-11]
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning 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.
Is Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1 et seq.
Is the company's application for renewal of municipal consent.
Means any service tier which includes the retransmission
of local television broadcast signals as defined by the FCC.
Is the Board of Public Utilities, State of New Jersey.
Is the Borough of Mantoloking, County of Ocean, State of
New Jersey.
Is the grantee of rights under this chapter and is known
as "Comcast of Ocean."
Is the Federal Communications Commission.
Is the Office of Cable Television of the Board.
Consists of the area of the Borough currently served with
existing plant as set forth in the map annexed to the company's application
for municipal consent.
[Added 10-17-2023 by Ord.
No. 2023-11]
Public hearings conducted by the Borough 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 Borough having received
at said public hearings all comments regarding the qualifications
of the company to receive this renewal of municipal consent, the Borough
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.
[Added 10-17-2023 by Ord.
No. 2023-11]
A.
The non-exclusive
municipal consent granted herein shall expire 10 years from the date
of expiration of the previous certificate of approval issued by the
Board as provided by N.J.S.A. 48:5A-19 and 48:5A-25 and N.J.A.C. 14:18-13.6.
B.
In the event
that the Borough shall find that the company has not substantially
complied with the material terms and conditions of this chapter, the
Borough 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 Borough
shall first have given the company written notice of all alleged instances
of noncompliance and an opportunity to cure the same within 90 days
of that notification.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 Borough 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 Borough or any higher amount permitted by
the Act or otherwise allowable by law, whichever is greater. The current
franchise fee amount for the Borough is 2.0% of the gross revenues
pursuant to N.J.S.A. 48:5A-30(d).
[Added 10-17-2023 by Ord.
No. 2023-11]
The consent granted under this chapter for the renewal of the
franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
[Added 10-17-2023 by Ord.
No. 2023-11]
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.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 Borough 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,
relay or relocate its equipment, at the expense of the company, prior
to approval of the Board.
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 Borough 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 Borough,
at the company's expense, temporarily raise, lower or remove its lines
in order to facilitate the moving of buildings or machinery or in
other like circumstances, subject to the prior approval of the Board.
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 the same on surrounding property.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 Borough upon
written request of the Borough 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 the same to regulatory agencies and notification of the 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 the 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 Borough 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.
[Added 10-17-2023 by Ord.
No. 2023-11]
The Office of Cable Television is hereby designated as the complaint
officer for the Borough pursuant to N.J.S.A. 48:5A-26b. All complaints
shall be received and processed in accordance with N.J.A.C. 14:17-6.5.
The Borough shall have the right to request copies of records and
reports pertaining to complaints by Borough customers from the OCTV.
[Added 10-17-2023 by Ord.
No. 2023-11]
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.
[Added 10-17-2023 by Ord.
No. 2023-11]
During the life of the franchise the company shall give to the
Borough 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.
[Added 10-17-2023 by Ord.
No. 2023-11]
The rates of the company shall be subject to regulation as permitted
by federal and state law.
[Added 10-17-2023 by Ord.
No. 2023-11]
A.
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, Public Works Department, Office of Emergency Management,
Police Department facility, Fire Departments, First Aid Departments,
libraries and community centers provided the facility is located within
200 feet of active cable distribution plant or through customer-owned
conduit. This obligation shall apply to any new facilities that are
constructed during this municipal consent. Each additional outlet
installed, if any, shall be paid for on a materials plus labor basis
by the Borough.
B.
The Communications
Act of 1934, as amended [47 U.S.C. § 543(b)], allows the
company to itemize and/or identify: the amount on the subscriber bill
assessed as a franchise fee and the identity of the governmental authority
to which the fee is paid; 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 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.
C.
Company
representatives shall appear at least once annually, upon reasonable
written request of the Borough, at a public hearing of the governing
body, to discuss matters pertaining to the provision of cable service
to residents of the Borough and other related issues as the Borough
and company may see fit.
[Added 10-17-2023 by Ord.
No. 2023-11]
A.
The company
shall make available to the Borough one government access channel
within 18 months written notice.
B.
The company
does not relinquish its ownership of or ultimate right of control
over a channel by designating it for access use. A PEG access user,
whether a public, 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 any educational or governmental
use of channel capacity, except the company may refuse to transmit
any educational or governmental access program or portion of any educational
or governmental access program that contains obscenity, indecency,
or nudity.
D.
Government
access. "Government access" shall mean noncommercial use by the Borough
for the purpose of showing the local government at work.
E.
Company
use of fallow time. Because blank or underutilized PEG channels are
not in the public interest, in the event the Borough or other qualified
PEG access users elect not to fully program their PEG access channel,
the company may program unused time on those channels subject to reclamation
by the Borough upon no less than 60 days' written notice.
F.
Indemnification.
The Borough 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 access channel and from claims arising
out of the rules for or administration of the PEG access channel and
its programming.
G.
Within
six months of the issuance of a renewal certificate of approval by
the BPU, the company shall provide to the Borough a one-time PEG access
capital grant in the amount of $15,000 to meet the PEG access capital
needs of the community.
H.
The Communications
Act of 1934, as amended [47 U.S.C. § 543(b)], allows the
company to itemize and/or identify: the amount on the subscriber bill
assessed as a franchise fee and the identity of the governmental authority
to which the fee is paid; 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 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.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 Borough
or any other person during an emergency if for any reason the Borough
is unable to make full use of the cable television system as contemplated
herein.
[Added 10-17-2023 by Ord.
No. 2023-11]
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.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 the same do not conflict with applicable state
or federal law.
[Added 10-17-2023 by Ord.
No. 2023-11]
Should the Borough 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.
[Added 10-17-2023 by Ord.
No. 2023-11]
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 invalidity or unconstitutionality shall not affect
the validity of the remaining portions of this chapter.
[Added 10-17-2023 by Ord.
No. 2023-11]
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.
[Added 10-17-2023 by Ord.
No. 2023-11]
This chapter shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
