[Ord. #07-33, § 1]
The municipality hereby grants to 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 municipality, 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 municipality of a cable television and communications
system.
[Ord. #07-33, § 2]
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 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.
City or Municipality shall mean the City of Ocean City, County of
Cape May, State of New Jersey.
b.
Company shall mean the grantee of rights under this chapter and is
known as Comcast of South Jersey LLC.
c.
Act or Cable Television Act shall mean Chapter 186 of the General
Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1,
et seq.
d.
FCC shall mean the Federal Communications Commission.
e.
Board or BPU shall mean the Board of Public Utilities, State of New
Jersey.
f.
Office or OCTV shall mean the Office of Cable Television of the Board.
g.
Basic cable service shall mean any service tier, which includes the
retransmission of local television broadcast signals as defined by
the FCC.
h.
Application shall mean the Company's Application for Renewal
of Municipal Consent.
i.
Primary service area or PSA shall mean and consist of the area of
the municipality currently served with existing plant as set forth
in the map annexed to the Company's Application for Municipal
Consent.
[Ord. #07-33, § 3]
Public hearings conducted by the municipality, 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 municipality,
having received at said public hearings all comments regarding the
qualifications of the Company to receive this renewal of Municipal
Consent, the municipality 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.
[Ord. #07-33, § 4]
The nonexclusive Municipal Consent granted herein shall expire
fifteen (15) years from the date of expiration of the previous Certificate
of Approval issued by the Board (with a 10-year automatic renewal
as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6).
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 noncompliance and an opportunity
to cure same within ninety (90) days of that notification.
[Ord. #07-33, § 5]
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 municipality two (2%) percent 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,
whichever is greater.
[Ord. #07-33, § 6]
The consent granted under this Chapter to the renewal of the
franchise shall apply to the entirety of the municipality and any
property subsequently annexed hereto.
[Ord. #07-33, § 7]
The Company shall be required to proffer service along the public
right-of-way to any person's residence or business located in
those areas of the primary service area as set forth herein. As to
extensions of service beyond the PSA, Comcast's application is
required, pursuant to N.J.A.C. 14:18-11.2(a)6, to state that the Company
"shall comply with N.J.A.C. 14:3-8, more specifically . . . N.J.A.C.
14:18-3-8.1, 8.2 through 8.5, 8.6(b), 8.8 and 8.13 [the "Smart Growth
Rules"], regarding extension of service." Comcast states that it will
comply with all lawful regulations governing the operation of its
cable television system and cable communications system within the
City of Ocean, while reserving its right to seek administrative or
judicial review of the validity of any statute, regulation or ordinance.
Accordingly, any extension of the cable television system beyond
the PSA which is made in the City of Ocean will be made in accordance
with the Smart Growth Rules and/or the OCTV's Line Extension
Policy ("LEP"), as may be applicable. For purposes of the LEP, the
minimum density of homes-per-mile shall be thirty-five (35).
[Ord. #07-33, § 8]
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. All
road openings shall be subject to the then existing road opening ordinance
of the municipality.
[Ord. #07-33, § 8]
If at any time during the period of this consent, the municipality
shall alter or change the grade of any street, alley or other way
or place the Company, upon reasonable notice by the municipality,
shall remove, re-lay or relocate its equipment, at the expense of
the Company.
[Ord. #07-33, § 8]
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 municipality 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, and only to the absolute minimum
necessary for clearance.
[Ord. #07-33, § 9]
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 municipality
upon written request of the Municipality 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 municipality
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.
[Ord. #07-33, § 10]
The Office of Cable Television is hereby designated as the Complaint
Officer for the municipality 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 municipality shall have the right to request from the
OCTV copies of records and reports pertaining to complaints by customers
within the municipality.
[Ord. #07-33, § 11]
During the term of this franchise, and any renewal thereof,
the Company shall maintain a local 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, billing and similar matters. Such a business
office shall have a publicly listed toll-free telephone number and
be open during standard business hours, and in no event (excepting
emergent circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through
Friday.
[Ord. #07-33, § 12]
During the life of the franchise the Company shall give to the
municipality a bond in the amount of twenty-five thousand ($25,000.00)
dollars. 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.
[Ord. #07-33, § 13]
The rates of the Company shall be subject to regulation as permitted
by Federal and State law.
[Ord. #07-33, § 14]
a.
The Company shall provide Total Preferred cable television service
on one (1) outlet at no cost to each existing and future school in
the municipality, public and private, elementary, intermediate and
secondary, provided the school is within one hundred seventy-five
(175') feet of active cable distribution plant. Each additional
outlet installed, if any, shall be paid for on a materials plus labor
basis by the school requesting service. Monthly service charges shall
be waived on all additional outlets.
b.
The Company shall provide Total Preferred cable television service
at no cost on one (1) outlet to each existing and future police, fire,
emergency management facility and public library in the municipality
provided the facility is located within one hundred seventy-five (175')
feet of active cable distribution plant. Each additional outlet installed,
if any, shall be paid for on a materials plus labor basis by the municipality.
Monthly service charges shall be waived on all additional outlets.
c.
The Company shall provide free basic Internet service, via high-speed
cable modem, to one (1) non-networked personal computer in each qualified
existing and future school in the municipality, public and private,
elementary, intermediate and secondary, at no charge provided the
facility is located within one hundred seventy-five (175') feet
of active cable distribution plant. The Internet service shall be
installed on a personal computer that is accessible to the students
and not for administrative use only.
d.
The Company shall provide free basic Internet access via high-speed
cable modem on one (1) non-networked personal computer in each qualified
existing and future public library at no charge provided the facility
is located within one hundred seventy-five (175') feet of active
cable distribution plant. The Internet service shall be installed
on a personal computer that is accessible to library patrons and not
for administrative use only.
e.
Within six (6) months of the issuance of a Renewal Certificate of
Approval the Company shall provide to the municipality a one-time
Technology Grant in the amount of one hundred thirty thousand ($130,000.00)
dollars to meet the cable related needs of the community.
[Ord. #07-33, § 15]
a.
The Company will continue to provide one (1) channel for educational
and governmental ("EG") access for the residents of Ocean City on
the most basic tier of service offered by the Company in accordance
with the Cable Act, Section 623, and as further set forth below. Educational
access video programming shall be provided by the Governing Body of
Ocean City. Government video programming shall be provided by the
Governing Body of Ocean City. Unused capacity may be utilized by the
Company subject to the provisions for "fallow time" 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 any educational
or governmental use of channel capacity, except Company may refuse
to transmit any educational or governmental access program or portion
of an educational or governmental access program that contains obscenity,
indecency, or nudity.
d.
The Governing Body of Ocean City shall be responsible for developing,
implementing, and enforcing rules for EG Access Channel.
e.
Educational Access. "Educational Access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not "home schools," community colleges, and universities.
f.
Government Access. "Government Access" shall mean noncommercial use
by the Governing Body of Ocean City for the purpose of cablecasting
public meetings, governmental messages and other information.
g.
Company Use of Fallow Time. Because blank or under utilized 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 sixty (60) days written notice.
h.
Indemnification. The municipalities 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 access.
[Ord. #07-33, § 16]
The Company will comply with the Emergency Alert System ("EAS")
rules in accordance with applicable State and Federal statutes and
regulations.
The Company shall in no way be held liable for any injury suffered
by the municipality or any other person, during an emergency, if for
any reason the municipality is unable to make full use of the cable
television system as contemplated herein.
[Ord. #07-33, § 17]
The Company shall at all times maintain a comprehensive general
liability insurance policy with a single limit amount of one million
($1,000,000.00) dollars 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 ($5,000,000.00)
dollars.
[Ord. #07-33, § 18]
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 applicable State or
Federal law.
[Ord. #07-33, § 19]
Should the municipality grant 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.
[Ord. #07-33, § 20]
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.
[Ord. #07-33, § 21]
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.
[Ord. #07-33, § 22]
a.
A Company representative shall appear annually, upon reasonable written
request, at a public hearing or other meeting, to discuss matters
pertaining to the provision of cable service to residents of the City.
[Ord. #07-33, § 23]
Comcast shall indemnify and defend the City of Ocean City, its
agents, servants and employees, concerning any claims, lawsuits, demands,
presentations, or actions at law or equity arising out of the company's
operation and construction of its CATV system.
[Ord. #07-33, § 24]
This Chapter shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.
