[HISTORY: Adopted by the Township Council
of the Township of West Windsor 12-16-2019 by Ord. No. 2019-38.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 59,
Cable Television Franchise, adopted 9-9-2002 by Ord. No. 2002-17.
The Township hereby grants to Comcast of Central New Jersey,
LLC (hereafter "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 of West Windsor, 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 system and cable communications
system.
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 Subsection 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:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1 et seq. The "Cable Act" shall
refer to Title VI of the U.S. Communications Act of 1934, as amended.
The company's application for renewal of municipal consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
The grantee of rights under this chapter and is known as
"Comcast of Central New Jersey."
The Federal Communications Commission, or successor governmental
entity.
The Office of Cable Television of the Board.
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.
The Township of West Windsor, County of Mercer, State of
New Jersey.
Public hearings conducted by the Township concerning the renewal
of municipal consent herein granted to the company, were held during
regularly scheduled public meetings of the Township Council between
December of 2016 and March of 2017, 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 Township, having received at said public hearings
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.
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 90 days of that notification.
Pursuant to the terms and conditions of the Act, N.J.S.A. 48:5A-30,
the company shall, during each year of operation under the consent
granted herein, pay to the municipality 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 municipality or any
higher amount permitted by the Act or otherwise allowable by law.
The current fee is 3.5% of the company's gross revenues, as defined
under N.J.S.A. 48:5A-3x, pursuant to N.J.S.A. 48:5A-30d.
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.
The company shall be required to proffer service along any public
right-of-way to any person's residence or business located in
all areas of the franchise territory as described herein, at tariffed
rates for standard and nonstandard installations.
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
comparable to the condition as existed prior to the commencement of
said work. Any restoration shall commence as expeditiously as practical,
but in no event shall restoration be commenced more than 30 calendar
days after written notice is issued to the company by the Township.
B.
Relocation. If at any time during the period of this consent, the
Township shall undertake or approve the construction of any sanitary
sewer or storm drainage line or other street improvement project (including,
without limitation, installation of traffic signals, streetlights,
road improvements including widening, sidewalks and pedestrian amenities
wherein the facility so constructed or approved is or shall become,
by gift, transfer, dedication or otherwise, a public facility owned,
maintained or operated by the Township), the company, upon reasonable
notice by the Township, but no less than 90 business days, shall remove,
re-lay or relocate its equipment, at the expense of the company prior
to approval of the Board. If public funds are available to any other
user of the public way for the purpose of defraying the cost of any
of the foregoing, the Township shall notify the company of such funding
and make available such funds to 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 in order to facilitate the moving of buildings
or machinery or in other like circumstances, subject to the prior
approval of the Board. Whenever a request for the temporary removal
of cables is made by, for, or on behalf of private parties, the cost
of temporary removal shall be borne by those same parties.
E.
Installation of equipment. The company shall install equipment in
the same location and manner as existing public utilities whenever
practicable, in order to minimize the impact of same on surrounding
property. [N.J.A.C. 14:18-2.3(a)].
F.
Traffic control. For all work performed by or on behalf of the company
in the streets or public rights-of-way which may disturb the normal
flow of vehicular or pedestrian traffic, the company shall comply
with all state and generally applicable local traffic safety regulations.
G.
Minimum interference. The company shall make reasonable efforts to
protect the public and its property from injury or damage and shall
execute due care to reduce hazards to which employees, customers or
the general public may be subjected by reasons of its equipment or
facilities [N.J.A.C. 14:18-2.1(c)].
H.
Emergency notification. The company shall provide the Township's
Business Administrator with a twenty-four-hour emergency telephone
number at which a representative of the company (not electronic voice
mail or a recording) can be accessed in the event of an emergency.
I.
Right of inspection. The company shall be responsible to ensure and
be prepared to show, on request by an authorized representative of
the Office, that the cable system complies with the applicable rules
and regulations of Part 76, Subpart K of Title 47 CFR 76.601 through
76.617, as amended. The rights and obligations of the Township and
Comcast under this section shall at all times be subject to applicable
federal law and FCC regulation.
J.
Notice of construction to Township. In accordance with N.J.A.C. 14:18-2.1
et seq., if at any time for the duration of municipal consent the
company proposes to rebuild significant portions of the existing plant,
and/or proposes to build significant areas of new plant, the company
shall file with the Board a schedule for the construction of its facilities
and provide the Township a copy thereof upon request.
K.
(Reserved)
L.
Temporary hookups. Absent good cause shown, the company shall not
maintain and place any temporary installations for a period that exceeds
30 calendar days, weather permitting.
M.
Company subject to federal, state and local laws. The company is
subject to and shall be governed by all lawful and applicable provisions
of federal and state laws and regulations. This franchise is further
subject to all generally applicable ordinances and resolutions of
the Township in the exercise of its inherent police powers. Without
waiving any of its rights, the Township agrees that, to the extent
any term of this municipal consent is inconsistent with the terms
of any Township ordinance existing prior or subsequent to the effective
date, this municipal consent shall control.
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,
as required by N.J.A.C. 14:18-3.18(a)(4).
C.
In providing cable 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 as noted below. Those standards include, but are not limited
to, the goal of answering 90% of incoming telephone calls within 30
seconds.
D.
Upon written request the company shall provide the Township with annual reports regarding customer service that it is required to provide to the BPU. These reports shall be submitted simultaneously with annual payment of the franchise fee, pursuant to § 59-5 of this chapter. In providing such information to the Township, it shall not be compelled to violate the privacy provisions under Section 631 of the Cable Act or applicable federal law.
E.
Comcast shall provide the Township with contact information in the
event of an emergency involving the operation of an EG channel.
F.
(Reserved)
G.
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.
The Office of Cable Television is hereby designated as the complaint
officer for the Township 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 Township shall have the right to request copies of records and
reports pertaining to complaints by Township customers from the OCTV.
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.
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
ensure the faithful performance of all undertakings of the company
as represented in its application for municipal consent incorporated
herein. The Township may request a higher performance bond than the
$25,000 required by the Act by establishing a need, which normally
is found to exist in the event that the company will be engaging in
significant construction within the public right-of-way to accommodate
new or updated equipment. A request for an increased performance bond
is subject to review and approval by the Board. At the request of
the Township, the company shall provide updated information pertaining
to the performance bond on an annual basis.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
A.
The company shall provide expanded basic or a similar tier of cable
television service to one outlet to each qualified existing and future
school in the Township, public and private, elementary, intermediate
and secondary, provided that 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 to one outlet to every Township building listed
in Exhibit A[1] and each qualified existing and future municipal building,
police, fire, emergency management facility and public library in
the Township, provided that 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.
[1]
Editor's Note: Exhibit A is included as an attachment to this chapter.
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 PEG
access capital grant in the amount of $75,000 to meet the PEG access
capital needs of the community.
D.
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, including the services set forth in Subsections A and B, above which may be recovered at the fair market value as a pass-through in addition to the franchise fee of 4.0% provided herein.
A.
The company will continue to provide one channel for government and
educational access. The channel will be on the expanded basic or similar
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 EG use. An EG 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 any public or governmental access program that contains
obscenity, indecency, or nudity.
D.
Educational access. "Educational access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not home schools, community colleges and/or universities.
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 PG channels are not in
the public interest, in the event the Township or other EG access
users elect not to fully program the PG access channel, the company
may program unused time on those channels subject to reclamation by
the Township upon no less than 60 calendar days' written notice.
G.
Signal quality. The company shall take any steps that are necessary
to ensure that the signals originated on the access channels are carried
without material degradation, and with a signal whose quality is equal
to that of the other channels that the company transmits.
H.
Dedicated channel for EG channels. The company shall continue carry the educational and governmental access programming on the channel numbers currently assigned to them. Notwithstanding and pursuant to § 59-15B hereinabove, if the company decides to change the channel designation for any of the EG access channels, it must provide at least 30 days' prior written notice to the Township.
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.
A.
The company agrees to maintain and keep in full force and effect
at its sole expense at all times during the term of this consent,
sufficient liability insurance naming the Township as an insured,
and insuring against loss by any such claim, suit, judgment, execution
or demand in the minimum amounts 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.
B.
The company agrees to provide the Township with adequate notice of
a change in or cancellation of its liability insurance policy. The
company further agrees to resubmit proof of insurance coverage upon
request.
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 municipal consent. The application and other relevant
writings submitted by the company shall be annexed hereto and made
a part hereof by reference, provided that same do not conflict with
application of state or federal law.
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 provision of copy of an agreement
between the Township and the petitioner to the Board stating that
the changes are acceptable. The company agrees to simultaneously provide
a courtesy copy of the petition to the Township Business Administrator
in the event that it files such a request with the BPU under this
section of the consent agreement.
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.
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.
This chapter shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
