Prior ordinance history includes portions of Ordinance 12/13/89
[Ord. 9/28/04, Preamble]
The Governing Body of the Borough of Victory Gardens (hereinafter
referred to as the "Borough") determined that CSC TKR, Inc., (hereinafter
referred to as "the Company" or "Cablevision") had the technical competence
and general fitness to operate a cable television system in the Borough,
and by prior ordinance granted its municipal consent for Cablevision
to obtain a nonexclusive franchise for the placement of facilities
and the establishment of a cable television system in the Borough.
By application for renewal consent filed with the Borough and
the Office of Cable Television on or about March 22, 2004, Cablevision
has sought a renewal of the franchise.
The Borough having held public hearings has made due inquiry
to review Cablevision's performance under the Franchise, and
to identify the Borough's future cable-related needs and interests
and has concluded that Cablevision has substantially complied with
its obligations under the Franchise and has committed to certain undertakings
responsive to the Borough's future cable-related needs and interests.
The Governing Body of the Borough has accordingly concluded
that the consent should be renewed subject to the requirements set
forth below; and that, provided Cablevision's proposal for renewal
embodies the commitments set forth below, the Borough's municipal
consent to the renewal of the Franchise should be given.
[Ord. 9/28/04 § 1]
For the purpose of this chapter, the terms defined above shall
have the meanings there indicated and the following additional terms
shall have the following meanings:
Shall mean the 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.
Shall mean Cablevision's application for Renewal of
Municipal Consent, which application is on file in the Borough's
office and is incorporated herein by reference and made a part hereof,
except as modified, changed, limited or altered by this chapter.
Shall mean the Board of Public Utilities of the State of
New Jersey or its successor agency.
Shall mean the Governing Body of the Borough of Victory Gardens
in the County of Morris, and the State of New Jersey.
Shall mean CSC TKR, Inc. ("Cablevision"), the grantee of
rights under this chapter
Shall mean the Federal Communications Commission.
Shall mean that Federal statute relating to cable communications
commonly known as the Cable Communications Policy Act of 1984, 47
U.S.C. Section 521 et seq. and the Telecommunications Act of 1996,
or as those statutes may be amended.
Shall mean those Federal regulations relating to cable television
services, 47 C.F.R. Section 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. Section
75.3), or as such regulations may be amended.
Shall mean the State of New Jersey.
Shall mean those regulations of the State of New Jersey Board
of Public Utilities relating to cable television, N.J.A.C. 14:17-1.1
et seq. and N.J.A.C. 14:18-1 et seq. or as such regulations may be
amended.
[Ord. 9/28/04 § 2]
A public hearing concerning the consent herein granted to Cablevision
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 Cablevision to receive this consent, the Borough hereby finds Cablevision
possesses the necessary legal, technical, character, financial and
other qualifications to support municipal consent, and that Cablevision's
operating and construction arrangements are adequate and feasible.
[Ord. 9/28/04 § 3]
The Borough hereby grants to Cablevision its nonexclusive consent
to place in, upon, along, across, above, over, and under its highways,
streets, alleys, sidewalks, public ways and public place in the municipality
poles, wires, cables, and fixtures necessary for the maintenance and
operation in the Borough of a cable television system, and for the
provision of any communication service over the such system as may
be authorized by Federal or State regulatory agencies. Operation and
construction, pursuant to aid consent, its conditioned upon prior
approval of the Board of Public Utilities.
[Ord. 9/28/04 § 4]
This consent herein granted shall be nonexclusive and shall
be for a term of 10 years from the date of issuance of a Certificate
of Approval by the Board.
[Ord. 9/28/04 § 5]
If Cablevision seeks a successive consent, it shall, prior to
the expiration of this consent, apply for a Municipal consent and
Certification of Approval in accordance with N.J.S.A. 48:5A-11 and
N.J.S.A. 48:5A-16 and applicable State and Federal rules and regulations.
The Company shall also seek approval from the Board authorizing continued
operation during the period following expiration of the consent granted
herein, and until such a time that a decision is made by the Borough
and the Board relative to the renewal of said consent.
[Ord. 9/28/04 § 6]
The consent granted under this chapter to Cablevision shall
apply to the entirety of the Borough and any property hereafter annexed.
[Ord. 9/28/04 § 7]
Cablevision shall be required to proffer service along any public
right-of-way to any person's residence located in the franchise
territory, as described in the map attached to the Application at
tariffed rates for standard and nonstandard installation. Such area
designated shall constitute the primary service area.
[Ord. 9/28/04 § 8]
Cablevision shall extend service along any public right-of-way
outside its primary service area to those residences within the franchise
territory which are located in areas that have a residential density
of 35 homes per mile or greater, or areas with less than 35 homes
per mile where residents agree to share the costs of such extension
in accordance with the line extension formula as provided by the Company
in its Application for Municipal Consent.
[Ord. 9/28/04 § 9]
Pursuant to the terms and conditions of the Cable Television
Act, Cablevision shall pay to the Borough, as an annual franchise
fee, a sum equal to 2% of the actual cost revenues received from all
recurring charges in the nature of subscription fees paid by subscribers
for its cable television reception services in the Borough. In the
event applicable law hereinafter permits a larger franchise fee to
be collected, but does not fix the amount thereof, then the Borough
and Cablevision shall negotiate in good faith with respect to the
amount thereof.
[Ord. 9/28/04 § 10]
Upon written request from the Borough, the Company shall provide,
free of charge, one standard installation and monthly basic cable
television service to all municipal buildings used for governmental
purposes within the Borough.
Upon written request from the Borough, the Company shall provide
to Borough Hall, without charge, the following: (1) one standard installation;
(2) one cable modem per installation; and (3) basic cable modem service
for the term of this chapter. The Borough shall be permitted to network,
at its own expense, four (4) personal computer terminals to the cable
modem provided by the Cablevision. This offer shall be subject to
the terms, conditions and use policies of the Company as those policies
may exist from time to time.
[Ord. 9/28/04 § 11]
Cablevision shall perform construction and installation of its
plant and facilities in accordance with applicable State and Federal
law. The Company shall be subject to the following additional construction
requirements with respect to the installation of its plant and facilities
in the Borough:
a.
In the event that the Company or its agents shall disturb any pavement,
street surfaces, sidewalks, driveways or other surfaces, the Company
shall at its sole expense restore and replace such disturbances in
as good condition as existed prior to the commencement of said work.
b.
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 Borough, shall
remove or relocate its equipment, at its own expense.
c.
Upon request of a person holding a building or moving permit issued
by the Borough, the Company shall temporarily move or remove appropriate
parts of its facilities so as to permit the moving or erection of
buildings or for the performance of other work. The expense of any
such temporary removal or relocation shall be paid in advance to the
Company by the person requesting the same. In such case, the Company
shall be given not less than 14 days' prior written notice in
order to arrange for the changes required.
d.
During the exercise of its rights and privileges under this consent,
the Company shall have the authority to trim trees upon any overhanging
streets, alleys, sidewalks and public places of the Borough so as
to prevent the branches of such trees from coming in contact with
the wires, cables, conduits and fixtures of the Company. Such trimming
shall be only to the extent necessary to maintain proper clearance
for the Companies facilities.
[Ord. 9/28/04 § 12]
Cablevision shall comply with the technical and customer service
standards established for the cable industry under applicable Federal
and State laws, rules and regulations.
[Ord. 9/28/04 § 13]
Cablevision shall establish and maintain during the entire term
of this consent a local area business office or agent for the purpose
of receiving, investigating and resolving complaints regarding the
quality of service, equipment malfunctions and similar matters. Said
office shall be open daily during normal business hours, and in no
event less than 9:00 a.m. to 5:00 p.m. Monday through Friday, with
the exception of holidays.
[Ord. 9/28/04 § 14]
The Office of Cable Television is hereby designated as the complaint
officer for the Company pursuant to N.J.S.A. 48:5A-26. All complaints
shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
[Ord. 9/28/04 § 15]
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 Borough as an additional 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 $1,000,000 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.
[Ord. 9/28/04 § 16]
Cablevision shall obtain and maintain, at its sole cost and
expense, during the entire term of this chapter, a bond to the municipality
in the amount of $25,000. Such bond shall be to insure the faithful
performance of its obligation as provided in this Franchise.
[Ord. 9/28/04 § 17]
a.
The rates of the Company for cable television service shall be subject
to regulation to the extent permitted by Federal and State law.
b.
Cablevision shall implement a senior citizen discount in the amount
of 10% off the monthly broadcast basic level of cable television service
rate to any person 62 of age or older, who subscribes to cable television
service provided by the Company, subject to the following:
1.
Such discount shall only be available to eligible senior citizens
who do not share the subscription with more than one person in the
same household who is less than 62 years of age; and
2.
Subscribers seeking eligibility for the discount must meet the income
and residence requirements of the Pharmaceutical Assistance to Aged
and Disabled (PAAD) program in the State pursuant to N.J.S.A. 30:4D-21;
3.
The senior citizen discount herein relates only to the entry level
basic rate of cable television service, and shall not apply to any
additional service, feature, or equipment offered by the Company,
including premium channel services and pay-per-view services.
4.
Senior citizens, who subscribe to a level of cable television service
beyond expended basic service, including any premium or per channel
a la carte service, shall not be eligible for the discount.
[Ord. 9/28/04 § 18]
Cablevision shall be required to have the capability to override
the audio portion of the system in order to permit the broadcast 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 municipality is unable to make full use of the cable television
system as contemplated herein. The Borough shall utilize the State-approved
procedures for such emergency uses.
[Ord. 9/28/04 § 19]
a.
In the event that the Borough approves or permits a cable system
to operate in the community on terms more favorable or less burdensome
than those contained in this chapter, such more favorable or less
burdensome terms shall be applicable in this consent, subject to a
petition to the Board of Public Utilities as provided for in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
b.
In the event that a nonfranchised multi-channel video programmer
provides services to residents of the Borough, Cablevision shall have
a right to request franchise amendments to this chapter that relive
Cablevision of regulatory burdens that create a competitive disadvantage
to the Company. In requesting amendments, Cablevision shall file with
the Board of Public Utilities a petition for approval in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 seeking to amend the
chapter. Such petition shall: i) indicate the presence of a nonfranchised
competitor(s); ii) identify the basis for Cablevision's belief
that certain provisions of this Franchise place it at a competitive
disadvantage; and iii) identify the regulatory burdens to the amended
or repealed in order to eliminate the competitive disadvantage. The
Borough shall not unreasonably withhold or object to granting the
Company's petition and so amending the chapter, subject to a
petition to the board of Public Utilities as provided for in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
[Ord. 9/28/04 § 20]
Upon expiration, termination or revocation of this chapter,
Cablevision at its sole cost and expense and upon direction of the
Board, shall remove the cables and appurtenant devices constructed
or maintained in connection with the services authorized herein, unless
Cablevision, its affiliated entities or assignees should, within six
months after such expiration, termination or revocation obtain certification
from the FCC to operate an open video system or any other Federal
or State certification to provide telecommunications.
[Ord. 9/28/04 § 21]
a.
Cablevision shall continue to make available noncommercial public,
educational and governmental (PEG) access as described in the Application
for Municipal Consent.
b.
The Borough agrees that the Company 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 the Company
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 Borough provision of PEG access programming
on such channel.
c.
In consideration for the rights granted by this chapter, Cablevision
shall provide the Borough with a one-time grant of $2,000 to be used
by the municipality specifically for cable and/or other telecommunications
related purposes.
[Ord. 9/28/04 § 22]
All of the commitments contained in the Application and any
amendment thereto submitted in writing to the Borough by the Company
except as modified herein, are binding upon Cablevision as terms and
conditions of this consent. The Applicant and any other written amendments
thereto submitted by Cablevision in connection with this consent are
incorporated in this chapter by reference and made a part hereof,
except as specifically modified, changed, limited, or altered by this
chapter, or to the extent that they conflict with State or Federal
law.
[Ord. 9/28/04 § 23]
This consent shall be construed in a manner consistent with
all applicable Federal, State and local laws.
[Ord. 9/28/04 § 24]
If any section, subsection, sentence, clause, phrase, or portion
of this chapter is for any reason held invalid or unconstitutional
by any court of competent jurisdiction such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portion thereof.
[Ord. 9/28/04 § 25]
This chapter shall take effect upon issuance of a Certificate
of Approval as issued by the Board of Public Utilities.
