Editor's Note: Prior ordinance history includes portions of Ordinance No. 714.
[Ord. No. 884 § 1]
This chapter shall be known and may be cited as the "Cablevision of New Jersey, Inc., Municipal Consent Renewal Ordinance."
[Ord. No. 884 § 2]
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural.
APPLICATION - Shall mean the Application for Renewal of Municipal Consent filed with the Borough on or about October 21, 1999.
BOARD - Shall mean the Board of Public Utilities of the State of New Jersey.
BOROUGH - Shall mean the Borough of Haworth, County of Bergen, State of New Jersey, and shall include, as appropriate, the Governing Body of the Borough.
CABLE SYSTEM OR CABLE TELEVISION SYSTEM - Shall have the same meaning as set forth in N.J.S.A. 48:5A-3(d).
CABLE TELEVISION COMPANY OR CATV COMPANY - Shall mean any person owning, controlling, operating, or managing a cable television system. The term "person" as used herein shall be construed, without limiting the generality thereof, to include specifically any agency or instrumentality of this State or of any of its political subdivisions; but this definition shall not include a telephone, telegraph, or electric utility company regulated by the Board in a case where it merely leases or rents or otherwise provides to a CATV Company wires, conduits, cables, or pole space used in the redistribution of television signals to or toward subscribers or customers of such CATV company.
COMPANY - Shall mean the grantee of rights under this chapter renewing municipal consent and is known as Cablevision of New Jersey, Inc. (Cablevision)
FCC - Shall mean the Federal Communications Commission.
FEDERAL ACT - Shall mean that Federal statute relating to cable communications commonly known as 47 U.S.C. § 521 et seq., or as that statute may be amended.
FEDERAL REGULATIONS - Shall mean those Federal regulations relating to cable television service, 47 C.F.R. § 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. § 76.3, or as such regulations may be amended.
HIGHWAY - As used herein shall mean and include every street, road, alley, thoroughfare, way or place of any kind used by the public or open to use by the public.
OCTV - Shall mean the Office of Cable Television in the Board of Public Utilities.
PERSON - Shall mean any person, firm, partnership, association, corporation, company, or organization of any kind.
STATE ACT - Shall mean 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., or as that statute may be amended.
STATE REGULATIONS - Shall mean those regulations of the Board relating to cable television, N.J.A.C. 14:17-1.1 et seq., and N.J.A.C. 14:18-1.1 et seq., or as such State regulations may be amended.
SUBSCRIBER REVENUES - Shall mean those revenues derived from all recurring charges in the nature of subscription fees paid by subscribers located within the Borough for cable television reception service as set forth in the State Act.
[Ord. No. 884 § 3]
A public hearing concerning the renewal of the franchise herein granted to the Company was held on May 22, 2000, after proper public notice pursuant to the terms and conditions of the State Act. Said notice was published on April 27, 2000, and again on May 4, 2000. Said hearing, having been held as above stated and having been fully open to the public, and the Borough, having received at said hearing all comments regarding the qualifications of the Company to receive this municipal consent, hereby finds that the Company continues to possess the necessary legal, technical, character, financial, and other qualifications and that the Company's operating and construction arrangements are adequate and feasible, and that, therefore, the Borough hereby grants the Company a non-exclusive consent, right and privilege (the "municipal consent") to construct, erect, operate, modify and maintain, in, upon, along, across, above, over, and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Borough such poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the Borough of a cable television system and cable communications system for the purpose of distributing television and radio signals, and other electronic impulses in order to furnish television and radio programs, and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said highways, streets, alleys, public ways and public places, and all manner of easements for the purposes herein set forth and as provided by the Federal and State Act.
[Ord. No. 884 § 4]
The municipal consent granted the Company herein shall expire 10 years from the date of the expiration of the current Certificate of Approval issued by the Board.
[Ord. No. 884 § 5]
The Company shall, during each year of operation under this municipal consent, pay to the Borough 2% of the annual gross subscriber revenues received by the Company for cable television reception services rendered to subscribers located within the Borough as set forth in the State Act. In the event that applicable laws are changed or amended to mandate an increased franchise fee, the Borough will be entitled to collect such additional payments. In the event applicable law hereinafter permits a larger franchise fee, but does not fix the amount thereof, the Borough and the Company shall negotiate in good faith with respect to the amount thereof.
[Ord. No. 884 § 6]
The Borough reserves the right to regulate rates, including but not limited to rates for basic service, to the extent not prohibited by Federal or State law, including any future changes in law.
[Ord. No. 884 § 7]
During the term of this municipal consent, the Company shall maintain a local business office or agent for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, and similar matters in accordance with N.J.A.C. 14:18-5.1. All complaints shall be received and processed by the Company pursuant to N.J.A.C. 14:17-6.5.
In addition to the requirements of paragraph a of this section, the OCTV is hereby designated as the complaint officer required by N.J.S.A. 48:5A-26, to receive and act upon complaints by subscribers to cable television service provided pursuant to this municipal consent.
[Ord. No. 884 § 8]
The Company shall pay, and by its acceptance of this municipal consent the Company expressly agrees that it will pay, all damages and penalties which the Borough may legally be required to pay as a result of the Company's activities in the installation, operation, or maintenance of the cable television system authorized herein. The Borough shall notify the Company's manager within 60 days after the presentation of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any action, negligence or contract as aforesaid on the part of the Company. It is expressly understood and agreed that the Company shall not be required to indemnify the Borough with regard to claims, damages and/or penalties arising out of programming, access or consent.
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 Township of Haworth as an insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $500,000 for bodily injury or death to one person, and one million ($1,000,000.00) dollars 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.
During the life of the municipal consent, the Company shall give a bond to the Borough in accordance with N.J.S.A. 48:5A-28(d), which bond shall be in the amount of $25,000. Such bond shall be to insure the faithful performance of all undertakings of the Company as represented in the application herein.
[Ord. No. 884 § 9]
Franchise Territory. The consent granted under this chapter to the Company shall apply to the entirety of the Borough, and any property hereafter annexed thereto.
Service Area. The Company shall be required to proffer cable television service along any public right-of-way within the Borough to any person's residence within he portion of the franchise territory, as described in the application for municipal consent, at tariffed rates for standard and nonstandard installations. Such area shall constitute the Company's service area.
Extension of Service. Cablevision shall be required to extend service along public rights-of-way, outside of the Company's service area to any person's business or residence in accordance with the Company's commercial and residential line extension policies as provided in the application for municipal consent.
Facilities and Equipment. In transmitting its television signals to subscribers in the Borough, the Company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards, and shall comply with any lawful requirements imposed by the Federal regulations, any Federal pronouncements, and (to the extent not preempted by Federal law) any State pronouncements relating to technical standards for the transmission of television signals, transmission quality, or facilities and equipment.
Relocation of Poles. In the event that, at any time during the term of this chapter, the Borough shall lawfully elect to alter or change the grade of any street, alley, or other public way, the Company, upon reasonable notice by the Borough, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at the Company's own expense.
Temporary Wire Changes. The Company shall, on the request of any person holding a valid building moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings, machinery or in other similar circumstances. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting same, unless the request is made by the Borough in which case there shall be no charge, and the Company shall have the authority to require any such payment in advance. The Company shall be given not less than 10 days advance notice to arrange for temporary wire changes.
Tree Trimming. The Company shall have the authority to trim trees upon and overhanging streets, highways, alleys, sidewalks, and public places within the Borough so as to prevent the branches of such trees from coming into contact with the wires and cables of the Company. In nonresidency situations the Company shall provide reasonable advanced notice to the Borough of contemplated tree trimming activities.
Compliance with Standards. All facilities and equipment of the Company shall be constructed and maintained in accordance with any applicable State, Federal or local law.
System to be Technologically Current. The Company agrees that the capabilities of the system serving the Borough shall be maintained as technologically current throughout the duration of the franchise, as compared with other systems operated by Cablevision in Bergen County of comparable size, measured by the number of subscribers in the system, and to the extent economically reasonable and commercially practicable.
Emergency Uses. 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 Borough is unable to make full use of the capable system as contemplated herein. The Borough shall utilize the State approved procedures for such emergencies.
[Ord. No. 884 § 10]
The Company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this Franchise, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with Federal and/or State laws.
[Ord. No. 884 § 11]
The Company shall not sell or transfer its CATV System to another, nor transfer any rights under this franchise to another, except as provided in the State Act.
[Ord. No. 884 § 12]
This chapter and franchise is subject to all provisions of the State Act and Federal Act and to all lawful rules and regulations of the Board and OCTV, adopted pursuant thereto. The Company shall at all times comply with the rules and regulations governing cable television operations lawfully promulgated and adopted by the Board. In the event of a conflict between the State Act and State regulations and any FCC or Federal regulations, the FCC or Federal regulations shall prevail.
[Ord. No. 884 § 13]
The Company shall not allow its cable or other operations to interfere with television reception of persons not served by the Company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the Borough.
[Ord. No. 884 § 14]
The Company shall provide one standard installation and outlet of free monthly cable television reception to all State accredited primary and secondary schools, municipal public libraries and the Municipal Building in the Borough. In addition, the Company shall provide one cable modem and monthly Internet access service, free of charge to all State accredited primary and secondary schools, municipal public libraries and the Municipal Building in the Borough. Additionally, if requested by the schools and/or library, the Company agrees to install a router, for a one-time fee not to exceed $2,000, which will enable such State accredited primary and secondary schools, municipal public libraries receiving the free cable modem and monthly Internet access service to connect up to 25 outlets to such service at each location.
[Ord. No. 884 § 15]
The Company shall continue to offer a discount on basic cable service for qualifying senior citizens in accordance with the requirements set forth by the State Act, N.J.S.A., 48:5A-11.1.
[Ord. No. 884 § 16]
Cablevision shall make available a noncommercial educational and governmental (PEG) access channel for the Borough's future use upon reasonable request.
The Borough agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming, during times when the Borough is not utilizing the channel for purposes of providing PEG access programming. In the event that Cablevision uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use and the Company's rights with respect to using the channel for non-PEG programming shall be subordinate to the Township provision of PEG access programming on such channel.
Cablevision shall also provide for the use of the Borough $10,000 to be applied toward the purchase of PEG access equipment, such as a character generator and a modulator.
[Ord. No. 884 § 17]
All of the statements and commitments contained in the application 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 made a part hereof by reference.
[Ord. No. 884 § 17]
If any section, subsection, sentence, clause, phrase, or portion of this chapter is for any reason held invalid, preempted, or unconstitutional by any court or Federal or State agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision of this chapter, and such holding shall not affect the validity of the remaining portions hereof.
[Ord. No. 884 § 18]
Should any of the Federal or State acts, regulations or pronouncements applicable to the regulation of cable television service be modified in any way, such modification, to the extent it embodies required terms and conditions and meaningfully can be incorporated into this chapter shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modification places limits on permissible terms and conditions, and any provision of this chapter becomes invalid by virtue of such modification, the preceding Section 20-18 shall apply.
[Ord. No. 884 § 20]
This chapter shall take effect upon its final passage and publication according to law.
[Ord. No. 884 § 21]
The Municipal consent and associated rights granted herein are nonexclusive and the Borough may, in accordance with the requirements of the Federal Act and the State Act, award another municipal consent to a separate CATV company in addition to the Company, or to any other communications service provider in accordance with law.
[Ord. No. 884 § 22]
During the term of the municipal consent, the Company agrees that upon a request from the Borough, the Company will meet with Borough officials on a reasonable basis and attend meetings of the Borough Governing Body to discuss matters regarding the Company's service and to answer relevant questions. The Borough will provide the Company with reasonable advance written notice of any such request.
[Ord. No. 884 § 23]
In the event the Borough approves or permits a cable television system to operate in the Borough of Haworth on terms more favorable or less burdensome than those contained in this franchise, such more favorable or less burdensome terms shall be applicable in this franchise, pursuant to approval of a petition to the Board of Public Utilities as provided for under N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
[Ord. No. 884 § 24]
In the event that a nonfranchisable multi-channel video programmer provides service to subscribers of the Borough of Haworth, Cablevision shall have the right to petition the Board of Public Utilities for franchise amendments that relieve Cablevision of regulating burdens that create a competitive disadvantage to Cablevision. Such petition shall: (1) identify the nonfranchised competitor; (2) detail the provisions of its franchise that place it at a competitive disadvantage and the manner in which those provisions place Cablevision at a competitive disadvantage; (3) identify the regulations to be amended or repealed (and only the minimum amendments required to eliminate its competitive disadvantage without giving Cablevision a competitive advantage) in order to eliminate the competitive disadvantage. The Borough shall review the petition and shall determine whether it shall grant its consent to the petition based upon the best interests of the Borough and the subscribers in Haworth. The Borough shall not unreasonably withhold granting Cablevision's petition and so amending the franchise agreement, pursuant to approval of the petition by the Board of Public Utilities as provided for under N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
[Ord. No. 884 § 25]
All ordinances or parts of ordinances in conflict with the provisions of this chapter are hereby repealed.
[Ord. No. 884 § 26]
If any provisions of this chapter are found to be invalid, for any reason, by the final judgment of a court of competent jurisdiction, the validity of such portions shall not affect the validity of the remaining provisions of this chapter, which shall be severable therefrom.
[Ord. No. 884 § 27]
This chapter shall take effect immediately after final adoption and publication as required by law.