[1]
Editor's Note: Prior ordinance history includes portions
of 1977 Code §§ A146-1 through A146-24 and Ordinance
No. 10-89.
[Ord. No. 162-05 Preamble]
The Governing Body of the Township of Upper Freehold (hereinafter
referred to as the "Township") determined that Cablevision of Monmouth,
Inc., (hereinafter referred to as "the Company" or "Cablevision")
had the technical competence and general fitness to operate a cable
television system in the Township, and by prior ordinance granted
its municipal consent for Cablevision to obtain a non-exclusive franchise
for the placement of facilities and the establishment of a cable television
system in the Township.
By application for renewal consent filed with the Township and
the Office of Cable Television on or about June 2, 2004, Cablevision
has sought a renewal of the franchise.
The Township having held public hearings has made due inquiry
to review Cablevision's performance under the franchise, and
to identify the Township'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 Township's future cable-related needs and interests;
and
The Governing Body of the Township 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 Township's municipal
consent to the renewal of the franchise should be given.
[Ord. No. 162-05 § 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 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.
Shall mean Cablevision's application for Renewal of
Municipal Consent, which application is on file in the Township Clerk'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 Cablevision of Monmouth, 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
76.3), or as such regulations may be amended.
Shall mean the installation of drop cable to a customer's
premise where the distance from the point of entry into the building
being served is less than 150 feet from the active cable television
system plant.
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.
Shall mean the Governing Body of the Township of Upper Freehold
in the County of Monmouth, and the State of New Jersey.
[Ord. No. 162-05 § 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 Township 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. No. 162-05 § 3]
The Township hereby grants to Cablevision its non-exclusive
consent to place in, upon, along, across, above, over, and under its
highways, streets, alleys, sidewalks, public ways, and public places
in the municipality poles, wires, cables, and fixtures necessary for
the maintenance and operation in the Township 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 said consent, is conditioned
upon prior approval of the Board of Public Utilities.
[Ord. No. 162-05 § 4]
This consent granted herein shall be non-exclusive and shall
be for a term of 15 years from the date of issuance of a certificate
of approval by the Board.
[Ord. No. 162-05 § 5]
If Cablevision seeks successive consent, it shall, prior to
the expiration of this consent, apply for a municipal consent and
certificate of approval in accordance with N.J.S.A. 48:5A-16, and
applicable State and Federal rules and regulations. The Company shall
also petition the Board for approval 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 Township and
the Board relative to the renewal of said consent.
[Ord. No. 162-05 § 6]
The consent granted under this chapter to Cablevision shall
apply to the entirety of the Township and any property hereafter annexed.
[Ord. No. 162-05 § 7]
Cablevision shall be required to proffer video programming service
along any public right-of-way to any person's residence within
the portion of the franchise territory, as described in the application
for municipal consent, at tariffed rates for standard and nonstandard
installation.
[Ord. No. 162-05 § 8]
Cablevision shall extend service along any public right-of-way
outside its service area to those residences within the franchise
territory which are located in areas that have a residential density
of 25 homes per mile or greater, or areas with less than 25 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. No. 162-05 § 9]
Pursuant to the terms and conditions of the Cable Television
Act, Cablevision shall pay to the Township, as an annual franchise
fee, a sum equal to 2% of the actual gross revenues received from
all recurring charges in the nature of subscription fees paid by subscribers
for its cable television reception services in the Township. In the
event applicable law hereinafter permits a larger franchise fee to
be collected, but does not fix the amount thereof, the Township and
Cablevision shall negotiate in good faith with respect to the amount
thereof.
[Ord. No. 162-05 § 10]
Cablevision shall, upon written request, provide free of charge,
one standard installation and monthly cable television reception service
to all State or locally accredited public schools and all municipal
public libraries, as well as municipal buildings located within the
Township as set forth in Exhibit A (list of sites to be prepared by
Municipality)[1] to this chapter.
Cablevision shall, upon written request from the Township, provide
to State and locally accredited elementary and secondary schools and
municipal public libraries in the Township, without charge, the following:
(1) one standard installation per school or library; (2) one cable
modem per installation; and, (3) basic cable modem service for the
term of this chapter for each installation. This offer shall be subject
to the terms, conditions and use policies of the Company, as those
policies may exist from time to time not inconsistent with the terms
of this agreement.
Further, upon written request from the Township, the Company
shall provide to Upper Freehold Township 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 for each installation. This offer shall be subject to the
terms, conditions and use policies of the Company as those policies
may exist from time to time not inconsistent with the terms of this
agreement.
[1]
Editor's Note: Exhibit A, referred to herein, may be
found on file in the office of the Township Clerk.
[Ord. No. 162-05 § 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 Township:
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 a 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 Township 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 Township, 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 cases, 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 and overhanging
streets, alleys, sidewalks and public places of the Township 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 Company's facilities.
[Ord. No. 162-05 § 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. No. 162-05 § 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. No. 162-05 § 14]
The Office of Cable Television is hereby designated as the complaint
officer for the Township pursuant to the provisions of N.J.S.A. 48:5A-26
and any complaints by local subscribers to cable television reception
or service shall be filed directly with the said office. All complaints
shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
[Ord. No. 162-05 § 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 Township 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. No. 162-05 § 16]
Cablevision shall obtain and maintain, at its sole cost and
expense, during the entire term of this Agreement, a bond to the municipality
in the amount of $25,000. Such bond shall be to insure the faithful
performance of its obligations as provided in this franchise.
[Ord. No. 162-05 § 17]
a.
The rates of the Company for cable television services 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 rate of the broadcast basic level of cable
television reception service to any person 62 years of age or older
who subscribes to the Company's cable television service, 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.
In accordance with N.J.S.A. 48:5A-11.2, subscribers seeking eligibility
for the discount must meet the income and residence requirements of
the Pharmaceutical Assistance to the Aged and Disabled program pursuant
to N.J.S.A. 30:4D-21; and
3.
The senior discount herein relates only to the broadcast basic level
of cable television service, and shall not apply to any additional
service, feature, or equipment offered by the Company, including any
premium channel services and pay-per-view services; and
4.
Senior citizens who subscribe to a level of cable television service
beyond expanded basic service, including any premium or per channel
a la carte service, shall not be eligible for the discount.
[Ord. No. 162-05 § 18]
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 Township pursuant to State and Federal
requirements. 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 municipality is unable to make full use of the
cable television system as contemplated herein. The Township shall
utilize the State-approved procedures for such emergency uses.
[Ord. No. 162-05 § 19]
In the event that the service of another multi-channel video
program provider not subject to the Township's regulatory authority
within the Township creates a significant competitive disadvantage
to Cablevision, the Company shall have the right to request from the
Township lawful amendments to its franchise that relieve it of burdens
which create the unfair competitive situation. Should the Company
seek such amendments to its franchise; the parties agree to negotiate
in good-faith appropriate changes to the franchise in order to relieve
the Company of such competitive disadvantages. If the parties can
reach an agreement on such terms, the Township agrees to support the
Company's petition to the Board for modification of the consent
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate
amendments to the franchise, the Township acknowledges that the Company
shall have the right to petition the Board directly for such amendments
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided,
however, the Township shall be under no obligation to support Cablevision's
request for such relief from the Board.
In any subsequent municipal consent, the Township shall require,
at a minimum, the same terms and conditions of any other provider
of multi-channel video programming subject to the Township's
regulatory authority as those contained in the instant consent. In
the event such subsequent consent does not contain the same terms
and conditions as the instant consent, Township agrees to support
the Company's petition to the Board for modification of the consent
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 to relieve
the Company of competitive disadvantages identified in the Company's
petition.
[Ord. No. 162-05 § 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. No. 162-05 § 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 Township 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 Township 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 Township's provision of PEG access programming
on such channel.
c.
In consideration for the rights granted in this chapter, the Company
shall provide the Township with a one-time grant of $15,500, which
may be used by the Township for any cable and/or other telecommunications
related purpose as the Township, in its discretion, may deem appropriate.
d.
Within 90 days of the fifth anniversary of the effective date of
this Agreement, the Township may request in writing that Cablevision
provide the cumulative number of Cablevision video subscribers in
the Township. If, at any time, Cablevision reports more than 1,600
cable television customer accounts (combined residential and commercial
cable television service accounts) in the Township, then the Township
may request in writing, and Cablevision shall provide to the Township
upon such request, a payment of $6 for each cable television customer
account in excess of 1,600 accounts. Such payment shall be used for
cable and/or other telecommunications purposes in the Township for
the benefit of the Company's subscribers in the municipality,
and shall be payable to the Township no later than 90 days following
receipt of the Township's request. This shall be a one-time right
of the Township, exercisable only during the time period specified
in this paragraph.
e.
The Township shall treat the number of subscribers provided by Cablevision
pursuant to this subsection as proprietary and confidential, shall
make such information available only to those employees of the Township
who reasonably need such information and shall not provide it to any
third party without Cablevision's written consent. In the event
the Township receives request for disclosure of the subscriber information
submitted by Cablevision that the Township believes in good faith
it must provide under law, then the Township shall provide Cablevision
with written notice of such request as soon as possible prior to disclosure
to allow Cablevision to take such measures as it deems appropriate
to seek judicial or other remedies to protect the confidentiality
of such information.
[Ord. No. 162-05 § 22]
All of the commitments contained in the application and any
amendment thereto submitted in writing to the Township by the Company
except as modified herein, are binding upon Cablevision as terms and
conditions of this consent. The application 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. No. 162-05 § 23]
This consent shall be construed in a manner consistent with
all applicable Federal, State and local laws.
[Ord. No. 162-05 § 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. No. 162-05 § 25]
This chapter shall take effect upon issuance of a certificate
of approval as issued by the Board of Public Utilities.
