[HISTORY: Adopted by the Township Committee
of the Township of Harmony 7-6-2010 by Ord. No. 10-3[1](Ch. A190 of the 1990 Code). Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. A190,
Cable Television Franchise, adopted 9-13-1994 by Ord. No. O:94-10.
This chapter shall be known and may be cited as the "Service
Electric Cable TV of Hunterdon, Inc., Franchise Ordinance."
Service Electric Cable TV (SECTV) of Hunterdon, Inc., a Pennsylvania
corporation, has applied to the Township of Harmony pursuant to the
provisions of the Cable Television Act, N.J.S.A. 48:5A-1 et seq. ("the
Act") for renewal of the Township's consent to operate a cable television
system in the Township of Harmony and to use the public roads of the
Township for its cable television system. A public hearing concerning
the franchise granted to the company was held on March 29, 2010, after
proper public notice pursuant to the terms and conditions of the Act,
the hearing having been fully opened to the public, and the Township
having received at the hearing all comments regarding the qualifications
of the company to receive a franchise.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural include the singular,
and words in the singular include the plural.
The application for renewal of municipal consent filed with
the Township.
The Board of Public Utilities of the State of New Jersey.
The commitments, terms and undertakings on the part of Service
Electric set forth in this chapter.
Any communications service other than cable television reception
service delivered through the facilities of a CATV system and for
which charges in addition to or other than those made for cable television
reception service are made or proposed to be made.
Any person owning, controlling, operating or managing a cable
television system. The term "person," as used herein, shall be construed,
without limiting the generality thereof, to include specifically any
agency or instrumentality of this state or of any of its political
subdivisions; but this definition shall not include a telephone, telegraph
or electric utility company regulated by the Board in a case where
it merely leases or rents or otherwise provides to a CATV company
wires, conduits, cables or pole space used in the redistribution of
television signals to or toward subscribers or customers of such CATV
company.
Any facility within this state which is operated or intended
to be operated to perform the service of receiving and amplifying
the signals broadcast by one or more television stations and redistributing
such signals by wire, cable or other device or means for accomplishing
such redistribution to members of the public who subscribe to such
service or distributing through its facility any television signals,
whether broadcast or not, or any part of such facility. The term "facility,"
as used in this definition, includes all real property, antennas,
poles, wires, cables, conduits, amplifiers, instruments, appliances,
fixtures and other personal property used by a CATV company in providing
service to its subscribers and customers.
The grantee of rights under this chapter awarding a franchise
and known as "Service Electric Cable TV of Hunterdon, Inc."
The Federal Communications Commission.
That federal statute relating to cable communications commonly
known as the "Cable Communications Policy Act of 1984," 47 U.S.C.
§ 521 et seq., or as that statute may be amended.
Those federal regulations relating to cable television service,
47 CFR 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 CFR 76.3, or as such regulations
may be amended.
Every street, road, alley, thoroughfare, way or place of
any kind used by the public or open to use by the public.
Any natural person, firm, partnership, associate, corporation,
company or organization of any kind.
That statute of the State of New Jersey relating to cable
television, commonly known as the "Cable Television Act," N.J.S.A.
48:5A-1 et seq., or as that statute may be amended.
Those regulations of the Board 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.
Those revenues derived from all recurring charges in the
nature of subscription fees paid by subscribers located within the
Township for cable television reception service for which no separate
or additional charge is made, i.e., basic cable service.
The Township of Harmony, County of Harmony, State of New
Jersey, and shall include, as appropriate, the governing body of the
Township.
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. The Township therefore grants the company a franchise,
right and privilege to construct, erect, operate, modify and maintain
in, upon, along, across, above, over and under the highways, streets,
alleys, sidewalks, public ways and public places now laid out or dedicated
and all extensions thereof and additions thereto such poles, wires,
cables, underground conduits, manholes and other television conductors
and fixtures necessary for the maintenance and operation in the Township
of a cable television system and cable communications system for the
purpose of distributing television and radio signals and other electronic
impulses in order to furnish television and radio programs and various
communications and other electronic services to the public. The right
so granted includes the right to use and occupy said highways, streets,
alleys, public ways and public places and all manner of easements
for the purposes herein set forth as provided by the Federal Act and
State Act.
The nonexclusive franchise granted the company herein shall expire 15 years from the date of expiration of the previous certification of approval by the Board. The fifteen-year term shall be conditioned upon the company complying with a mutually negotiated agreement between the Township and the company for the expansion of the company's cable and internet service to the areas designated in § A540-8 of this chapter. The Township reserves the right at any time to enforce and/or terminate the franchise according to applicable laws, rules and regulations for the company's failure to perform any of its commitments and obligations as set forth in this chapter. Prior to enforcement or termination, the Township shall give the company 60 days' written notice to cure the noncompliance. In the event noncompliance continues, the Township shall file a petition with the Board of Public Utilities seeking such relief as is appropriate under the circumstance.
If the company seeks successive consent, it shall, prior to
the expiration of this consent, apply for municipal consent and certificate
of approval in accordance with the Cable Television Act, N.J.S.A.
48:5A-11 and 48:5A-16, and applicable state and federal rules and
regulations. The company shall also petition the Board for continued
operation during the period following expiration of the consent granted
herein and until such a time that a decision is made by the municipal
governing body relative to the renewal of said consent.
A.
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 2% of the gross
revenues from all recurring charges in the nature of subscription
fees paid by subscribers to its cable television reception service
in the municipality or any amount permitted by the Cable Television
Act or otherwise allowable by law. The fee shall be paid on or before
January 25 of each year and at the same time the company shall file
with the chief financial officer of the municipality a statement showing
the gross receipts upon which payment is based.
B.
In the event applicable law hereafter
permits a larger franchise fee to be collected, but does not fix the
amount thereof, the Township and the company shall negotiate in good
faith with respect to the amount. Additionally, in the event the relevant
laws are amended in the future to allow additional fees and/or charges
(collectively "fees") to be paid to the Township, the Township shall
have the right to impose such fees in accordance with the applicable
law. In the event the law does not state the amount the Township is
allowed to impose, the parties shall negotiate in good faith with
respect to the amount of the fee. In the event any of the fees provided
for in this section cannot be agreed to after negotiations, then the
Township shall have all rights available to it under law in order
to establish the fee.
A.
The Company shall be required
to offer service to any residence located in those areas of the franchise
territory described herein, in accordance with the proposal for the
provision of services as described in the application. Any additional
extension of the system will be made in accordance with the proposal
in the application. The company shall be further required to extend
service to those Township streets, along public rights-of-way as indicated
below:
(1)
Currently, the entire Township
is able to receive cable and two-way high speed internet.
(2)
Telephone services will be
available to the entire Township by the end of 2010. At that time,
the entire Township will be able to receive the Triple Play (cable,
two-way high speed internet and telephone).
B.
New cable service or products
made available to the residents of Phillipsburg shall be made available
to all of Harmony Township within one year after introduction.
C.
Any future extensions of the
system, or any extension of the system along private roads will be
made in accordance with the company's line extension policy, where
applicable.
A.
In the event that the company
or its agents shall disturb any pavement, street surfaces, sidewalks,
driveways or other surfaces in the natural topography, the company
shall at its sole expense restore and replace such places or things
so disturbed in as good condition as existed prior to the commencement
of said work.
B.
In the event that at any time
during the term of this chapter the Township shall lawfully elect
to alter or change the grade of any street, alley or other public
way, the company, upon reasonable notice by the Township, shall, at
its expense, remove, relay and relocate its poles, wires, cables,
underground conduits, manholes and other fixtures.
C.
The company shall, on the request
of any person holding a valid building moving permit issued by the
Township, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same, and the
company shall have the authority to require such payment in advance.
The company shall be given not less than 10 days' advance notice to
arrange for temporary wire changes.
D.
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 and
public places within the Township so as to prevent the branches of
such trees from coming into contact with the wires and cables of the
company. Such trimming shall be performed only to the extent necessary
to maintain proper clearance for the company's wires and cables.
E.
The company shall cause any and
all construction plans relating to work on any extension of the company
plant or work which could have a significant impact on public works
within the Township to be filed with the Township Engineer.
F.
All facilities and equipment
of the company shall be constructed and maintained in accordance with
the requirements and specifications of the applicable ordinances and
regulations set forth by the Township and/or any other local, state
or federal agencies.
The consent granted herein to the company shall apply to the
entirety of the municipality and any property hereafter annexed.
During the term of this franchise and any renewal term, the
company shall maintain a local business office or agent for the purpose
of receiving, investigating and resolving all complaints regarding
the quality of service, equipment malfunctions, and similar matters
in accordance with N.J.A.C. 14:18-5.1. All complaints shall be received
and processed by the company pursuant to N.J.A.C. 14:17-6.5. The local
office shall be open to receive inquiries and complaints and to receive
payment of bills from subscribers during normal business hours, and
in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
Any complaints from subscribers shall be investigated as soon as practicable,
but at least within two business days of their receipt. The company
shall keep a maintenance service log in the manner required by the
regulations of the Office of Cable Television.
The New Jersey Office of Cable Television (OCTV) is hereby designated
as the complaint officer required by N.J.S.A. 48:5A-26 to receive
and act upon complaints by subscribers to cable television reception
service provided pursuant to this franchise.
A.
Facilities and equipment. In
transmitting its television signals to subscribers in the Township,
the company shall provide a quality of signal that is at least as
good as that customarily provided under prevailing industry standards,
and the company shall comply with any requirements imposed by the
Federal Regulations, any federal pronouncements and, to the extent
not preempted by federal law, any state pronouncements relating to
technical standards for the transmission of television signals, transmission
quality or facilities and equipment.
B.
Emergency uses. The company
is in compliance with the Federal Emergency Alert System (EAS) and,
as such, the company 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 municipality pursuant to state and federal
requirements. The company shall in no way be held liable for any injuries
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 systems as contemplated herein. The municipality
shall utilize the state-approved procedures for such emergency uses.
C.
Customer service. At the request
of the Township, the company and Township's designee shall meet at
least semiannually to review all matters relating to cable television
in the Township, with the minutes of such meetings to be delivered
to the company and to be filed with the Township.
A.
The Township acknowledges that,
under the Federal Act, municipalities do not have the authority to
regulate the rates the company charges subscribers for its services.
Therefore, the Township will not regulate the rates the company may
charge subscribers for its service; provided, however, that in the
event the Federal Act and other applicable law hereinafter is amended
to permit the exercise of regulatory power over rates by municipalities,
the Township reserves the right to exercise the maximum power permitted
by law.
B.
The Township is desirous of
obtaining reduced rates for senior citizens, disabled residents and
other parties for whom reduced rates may currently be available or
may be available during the term of this chapter. Therefore, if the
company adopts reduced rates for senior citizens, disabled persons
or other parties in the future in accordance with N.J.S.A. 48:5A-11.1
et seq. and the Federal Act or any other law or regulation, these
special rates shall be offered to qualified Harmony residents.
Although nothing herein shall require the company to carry or
transmit any particular television stations or programming source,
the company shall provide the subscribers in the Township with at
least the same broad categories of programming, in approximately the
same quantity, as are now provided and which appear in the application.
A.
The company shall provide free
installation and basic cable service through one service outlet to
the following facilities: the municipal building, Harmony Township
School, each police, fire, first aid, emergency management facility,
Department of Public Works, and Township-operated community center
at no cost. This obligation shall apply to any new facilities in the
preceding categories constructed during the term of municipal consent.
B.
The company shall provide free
installation of internet services to the same facilities listed in
Section A. This obligation shall apply to any new facilities in the
preceding categories constructed during the term of municipal consent.
The company is not required to provide the monthly service fee free
of charge.
A.
The company shall pay, and by
its acceptance of this franchise the company expressly agrees that
it will pay, all damages and penalties which the Township may legally
be required to pay as a result of the company's negligence in the
installation, operation, or maintenance of the cable television system
authorized herein. The Township shall notify the company's general
manager within 30 days after the presentation of any claim or demand
to the Township, either by suit or otherwise, made against the Township
on account of any negligence or contract as aforesaid on the part
of the company.
B.
Furthermore, the company shall
carry liability insurance in the minimum amount as follows:
During the life of the franchise, the company shall give a bond
to the Township in accordance with N.J.S.A. 48:5A-28(d), which bond
shall be in the minimum amount of $25,000. Such bond shall be to insure
the faithful performance of all undertakings of the company as represented
in the application herein.
The company shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the company to exercise
its rights and perform its obligations under this franchise and to
assure uninterrupted service to each and all of its subscribers; provided,
however, that such rules, regulations, terms and conditions shall
not be in conflict with federal and/or state laws.
The company shall not sell or transfer its CATV system to another,
nor transfer any rights under this franchise to another, except as
provided in the State Act.
Any modification of existing and applicable FCC rules resulting
from amendment thereto by the FCC shall, to the extent applicable,
be considered as part of this franchise as of the effective date of
the amendment made by the FCC and shall be incorporated in this franchise
by specific amendments thereto by the lawful action of the Township
Council within one year from the effective date of the FCC's amendment
or at the time of renewal to this franchise, whichever occurs first.
This chapter and franchise are subject to all provisions of
the State Act and Federal Act and to all lawful rules and regulations
of the OCTV adopted pursuant thereto. The company shall at all times
comply with the state regulations governing cable television operation,
the State Act, the Federal Act and any other. In the event of a conflict
between the State Act and state regulations and any FCC rules and
regulations, the FCC rules and regulations shall prevail.
The company shall not allow its cable or other operations to
interfere with the television reception of persons not served by the
company, nor shall the CATV system interfere with, obstruct or hinder
in any manner the operation of the various utilities serving the residents
of the Township.
In the event new cable services or products are made available
to subscribers in the Town of Phillipsburg, the same or similar service
or product shall be made available to all of Harmony Township within
one year after introduction.
Subject to the requirements of the Federal Act and approval
by the Board, the Township reserves the power to amend any portion
of this chapter after public hearing for the purpose of requiring
reasonable additions or greater standards of construction, operation,
maintenance or otherwise on the part of the company. Said amendments
shall be feasible and within the economic capabilities of the company.
Notwithstanding any specific mention of applicable federal or
state statutes or regulations above, the company shall comply with
all of the requirements of the Federal Act, the federal regulations,
the State Act and state regulations (to the extent not preempted)
and any other valid statute, regulation, rule or promulgation.
Should any of the federal or state statutes, regulations or pronouncements applicable to the regulation of cable television be modified in any way, such modifications, to the extent that they embody required terms and conditions and meaningfully can be incorporated into this chapter, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modification places limits on permissible terms and conditions and any provision of this chapter becomes invalid by virtue of such modification, § A540-27 shall apply.
The Township reserves the right to amend this chapter in the
event of any changes in state and/or federal law or regulations regarding
cable television in a manner consistent with the regulations of the
OCTV/BPU.
All of the statements and commitments contained in the application
and any amendment thereto, or otherwise submitted in writing to the
Township or its governing body, except as modified herein, are binding
upon the company as terms and conditions of this consent. The application
and any other relevant writings submitted by the company shall be
annexed hereto and made part hereof by reference to the extent that
they do not conflict with state or federal law.[1]
[1]
Editor's Note: Said agreement and related writings are on
file in the Township offices.
