Editor's Note: Prior ordinance history includes portions
of Ordinance No. 94-13, 95-8 and 2004-15.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
For the purpose of this Ordinance, 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" is the Borough of Surf City, County of Ocean, State of
New Jersey.
b.
"Company" or "Comcast" is the grantee of rights under this Ordinance
and is known as Comcast of Long Beach Island 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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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.
In the event that the Borough shall find that the Company has
not substantially complied with the material terms and conditions
of this Ordinance, 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 non-compliance and an opportunity
to cure same within 90 days of that notification.
[Added 2-12-2020 by Ord.
No. 2020-01]
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.
[Added 2-12-2020 by Ord.
No. 2020-01]
The consent granted under this Ordinance for the renewal of
the franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 a HPM ("homes-per-mile") of 35 dwellings per linear mile from
the nearest active trunk or feeder line.
[Added 2-12-2020 by Ord.
No. 2020-01]
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, re-lay 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 same on surrounding property.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 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 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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
The rates of the Company shall be subject to regulation as permitted
by federal and state law.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 Borough, 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 Borough, 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 Borough.
c.
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 Technology
Grant in the amount of $8,000 to meet the technology and/or cable
related 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.
[Added 2-12-2020 by Ord.
No. 2020-01]
a.
The Company shall continue to make available one shared government
access channel. The government access channel is maintained by the
Borough for the purpose of cablecasting non-commercial government
access programming.
b.
The Company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for Government use. A
Government access 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 governmental
use of channel capacity, except Company may refuse to transmit any
governmental access program or portion of a governmental access program
that contains obscenity, indecency, or nudity.
d.
Government Access. "Government Access" shall mean noncommercial use
by the Township for the purpose of showing the local government at
work.
e.
Company Use of Fallow Time. Because blank or underutilized EG channels
are not in the public interest, in the event the Municipalities or
other EG access users elect not to fully program their EG access channel,
Company may program unused time on those channels subject to reclamation
by the Municipality upon no less than 60 days' written notice.
f.
Indemnification. The Township 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 Municipalities' rules for or administration
of EG access channel and its programming.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
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 Ordinance subject to the provisions
of N.J.A.C. § 14:17-6.7.
[Added 2-12-2020 by Ord.
No. 2020-01]
If any section, subsection, sentence, clause, phrase or portion
of this Ordinance 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 Ordinance.
[Added 2-12-2020 by Ord.
No. 2020-01]
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 2-12-2020 by Ord.
No. 2020-01]
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.
