[Editor's Note: Prior source history includes Ordinance
Nos. O-80-4, O-80-8, O-95-22 and Ord. No. O-08-01.]
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 12-21-2022 by Ord.
No. 0-22-26]
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 in supplemental to those definitions
of the Federal Communications Commission ("FCC") rules and regulations,
47 C.F.R. Subsection 76.1 et seq., and the Cable Communications Policy
Act, 47 U.S.C. Section 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:
a.
"Borough" or "Municipality" is the Borough of Highlands, County of
Monmouth, State of New Jersey.
b.
"Company" or "Comcast" is the grantee of rights under this Chapter
and is known as Comcast of Monmouth, LLC.
c.
"Act" or "Cable Television Act" is Chapter 186 of the General Laws
of New Jersey, and subsequent amendments thereto, N.J.S.A. § 48:5A-1,
et seq.
d.
"FCC" is the Federal Communications Commission.
e.
"Board" or 'BPU" is the Board of Public Utilities, State of
New Jersey.
f.
"Office" or "OCTV" is the Office of Cable Television of the Board.
g.
"Basic Cable Service" means any service tier, which includes the
retransmission of local television broadcast signals as defined by
the FCC.
h.
"Application" is the Company's Application for Renewal of Municipal
Consent.
i.
"Primary Service Area" or 'PSA" 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 12-21-2022 by Ord.
No. 0-22-26]
A public hearing concerning the consent herein granted to the
Company 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 the Company to receive this consent,
and the representations of the Company 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 12-21-2022 by Ord.
No. 0-22-26]
The non-exclusive Municipal Consent granted herein shall expire
ten (10) years from the date of expiration of the previous Certificate
of Approval issued by the Board.
In the event that the Municipality shall find that the Company
has not substantially complied with the material terms and conditions
of this Chapter, the Municipality 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 Municipality shall first have given the Company
written notice of all alleged instances of non-compliance and an opportunity
to cure same within ninety (90) days of that notification.
[Added 12-21-2022 by Ord.
No. 0-22-26]
Pursuant to the terms and conditions of the Act, and, except
as where higher payment is otherwise required by the applicable law
and regulations (including N.J.S.A. 48:5A-30), the Company shall,
during each year of operation under the consent granted herein, pay
to the Borough two percent (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. If another CATV
company receiving a system-wide franchise files a certification with
the BPU that the company is capable of serving 60 percent or more
of the households within the Borough and the BPU approves such certification,
then the Company shall pay to the Borough three and one half percent
(3.5%) 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 pursuant to N.J.S.A. 48:5A-30(d).
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 12-21-2022 by Ord.
No. 0-22-26]
Comcast will provide service to all areas of the municipality
by installation of standard, or if the service drop is unusually long,
at non-standard installation rates. These rates shall be in accordance
with the rates set forth in the Company's Application.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 reasonably
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, re-lay or relocate its equipment, at the expense of the Company.
In requiring Company to remove, re-lay or relocate any portion of
its property, the Borough shall treat Company the same as, and require
no more of Company than, any other similarly situated entity utilizing
the Public Rights of Way, including with respect to reimbursement
of costs.
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.
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.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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.
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.
[Added 12-21-2022 by Ord.
No. 0-22-26]
The Office of Cable Television is hereby designated as the Complaint
Officer for the Borough 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 Borough shall have the right to
request copies of records and reports pertaining to complaints by
Borough customers from the OCTV.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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.
[Added 12-21-2022 by Ord.
No. 0-22-26]
During the life of the franchise the Company shall give to the
Borough a bond in the amount of Twenty-Five Thousand Dollars ($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 12-21-2022 by Ord.
No. 0-22-26]
The rates of the Company shall be subject to regulation as permitted
by federal and state law.
[Added 12-21-2022 by Ord.
No. 0-22-26]
a.
The parties agree that Comcast will provide basic cable service to
one outlet in the Borough Hall, First Aid, Fire Department, Department
of Public Works and Police Department buildings, provided the building
is within two-hundred (200) feet of active cable distribution plant
free of charge. Each additional outlet installed, if any, shall be
paid for a materials and labor basis by the Borough requesting service(s).
Monthly service charges shall be waived on all additional outlets
except for service charges for equipment.
b.
The Company shall provide cable television services on one outlet
at no cost to each school in the municipality, public and private,
elementary, intermediate and secondary, provided the school is within
two-hundred (200) feet of active cable distribution plant free of
charge. Each additional outlet installed, if any, shall be paid for
a materials and labor basis by the school requesting service(s). Monthly
service charges shall be waived on all additional outlets except for
service charges for equipment.
[Added 12-21-2022 by Ord.
No. 0-22-26]
a.
The Company shall continue to make available to the Borough one system-wide
public access channel.
b.
The Company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for access use. An PEG
access user whether an 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 will maintain the cable, modulators, and equipment necessary
for the Borough or its designee to send a signal to the Company, and
to receive the return feed of the signal.
d.
The Company shall not exercise editorial control over any educational
or governmental use of channel capacity, except 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.
e.
Government Access. "Government Access" shall mean noncommercial use
by the Borough for the purpose of showing the local government at
work.
f.
Company Use of Fallow Time. Because blank or underutilized P/E/G
channels are not in the public interest, in the event the Borough
or other qualified P/E/G access users elect not to fully program their
E/G access channel, Company may program unused time on those channels
subject to reclamation by the Borough upon no less than 60 days written
notice.
g.
Indemnification. The Borough shall indemnify Company for any liability,
loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the EG channel and from claims
arising out of the rules for or administration of P/E/G access channel
and its programming.
h.
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 P/E/G
Access Capital Grant in the amount of $7,000 to meet the P/E/G Access
capital needs of the community.
i.
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.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 12-21-2022 by Ord.
No. 0-22-26]
The Company shall at all times maintain a comprehensive general
liability insurance policy with a single limit amount of One Million
Dollars ($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 Five Million Dollars ($5,000,000).
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 State
or Federal law.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 12-21-2022 by Ord.
No. 0-22-26]
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.
[Added 12-21-2022 by Ord.
No. 0-22-26]
The Company shall not be required to disclose information which
it reasonably deems to be proprietary or confidential in nature. The
Borough agrees to treat any information disclosed by the Company as
confidential and only to disclose it to those employees, representatives,
and agents of the Borough that have a need to know in order to enforce
this Chapter and who agree to maintain the confidentiality of all
such information.
The Company shall not be required to provide Customer information
in violation of Section 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this Section, the terms
"proprietary or confidential" include, but are not limited to, information
relating to the Cable System design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the Company to be competitively sensitive. The Company
may make proprietary or confidential information available for inspection
but not copying or removal by the Municipality's representative.
In the event that the Municipality has in its possession and receives
a request under a state "sunshine," public records, or similar law
for the disclosure of information the Company has designated as confidential,
trade secret or proprietary, the Borough shall notify the Company
of such request and cooperate with Company in opposing such request.
[Added 12-21-2022 by Ord.
No. 0-22-26]
The Company shall not be liable or responsible for, in whole
or in part, any delay or failure to perform any of its obligations
hereunder which may result from accidents, pandemics, floods, fires,
earthquakes, tornadoes or other acts of God; war, acts of war (whether
or not a declaration of war is made), civil disobedience; civil disturbance,
sabotage or vandalism, customer tampering or interference, or act
of public enemy; strikes, other labor or job actions or unavailability
of materials or equipment; or other events or circumstances beyond
the reasonable control of the Company.
[Added 12-21-2022 by Ord.
No. 0-22-26]
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 12-21-2022 by Ord.
No. 0-22-26]
This chapter shall take effect upon issuance of a renewal certificate
of approval from the BPU, but not earlier than the expiration of the
current Franchise on February 4, 2021.
