[HISTORY: Adopted by the Township Council of the Township
of Eastampton 9-27-2021 by Ord. No. 2021-16.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former Ch. A550,
Cable Television Franchise, adopted 5-24-2010 by Ord. No. 2010-11 (Ch. A129 of the 1974
Township Code).
The Township 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 Township 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 Township of a cable television and communications
system.
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 is supplemental to those definitions
of the Federal Communications Commission ("FCC") rules and regulations,
47 CFR 76.1 et seq., and the Cable Communications Policy Act, 47 U.S.C.
§ 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:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendments thereto, N.J.S.A. 48:5A-1 et seq.
The company's application for renewal of municipal consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
The grantee of rights under this ordinance and is known as
"Comcast of Garden State, L.P."
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the Township currently served with
existing plant as set forth in the map annexed to the company's
application for municipal consent.
The Township of Eastampton, County of Burlington, State of
New Jersey.
A public hearing concerning the consent herein granted to the
company 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 the company to receive this consent,
and the representations of the company 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.
A.
The nonexclusive municipal consent granted herein shall expire 10
years from the date of expiration of the previous certificate of approval
issued by the Board.
B.
In the event that the municipality shall find that the company has
not substantially complied with the material terms and conditions
of this ordinance, 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 90 days of that notification.
Pursuant to the terms and conditions of the Act, and except
where higher payment is otherwise required by the applicable law and
regulations (including N.J.S.A. 48:5A-30), the company shall, during
each year of operation under the consent granted herein, pay to the
Township 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 Township or any higher amount permitted by
the Act or otherwise allowable by law. The company shall report gross
revenues in accordance with regulations set forth by the Board of
Public Utilities.
The consent granted under this ordinance for the renewal of
the franchise shall apply to the entirety of the Township and any
property subsequently annexed hereto.
The company shall, during the franchise period, be required
to offer service to any present or future dwelling unit, school, institution,
and business located and to be located along any public rights-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 an HPM ("homes-per-mile") of 25 dwellings per linear
mile from the nearest active trunk or feeder line from which a usable
cable signal may be obtained. For purposes of this section and the
company's implementation of the LEP, a home shall only be counted
as a "dwelling unit" if such home is occupied and within 275 feet
of the public right-of-way.
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 reasonably
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
Township 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, relay or relocate its equipment, at the expense of the
company. In requiring the company to remove, relay or relocate any
portion of its property, the Township shall treat the company the
same as, and require no more of the company than, any other similarly
situated entity utilizing the public rights-of-way, including with
respect to reimbursement of costs.
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 Township 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. Except in an emergency,
the company will not, without the prior consent of the Supervisor
of the Township's Department of Public Works, or his/her delegate,
trim or remove trees in the public rights-of-way or parks in the Township.
The Supervisor or delegate will respond to a request for authorization
within 48 hours, Monday through Friday. If requested, the company
will perform any trimming under the direct supervision of the Supervisor
or his designee.
D.
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.
E.
Temporary removal of cables. The company shall, upon request of the
Township, at the company's expense, temporarily raise, lower
or remove its cables and associated facilities in order to facilitate
the moving of Township-owned buildings, equipment, vehicles and machinery
and to accommodate other like circumstances. In light of a temporary
removal request by other than the Township for non-Township-owned
buildings, equipment, vehicles and machinery, the cost of such temporary
removal shall be the responsibility of the requesting party.
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 Township Council
upon written request of the Township Manager 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.
The Office of Cable Television is hereby designated as the complaint
officer for the Township pursuant to N.J.S.A. 48:5A-26b. All complaints
shall be received and processed in accordance with N.J.A.C. 14:17-6.5.
The Township shall have the right to request copies of records and
reports pertaining to complaints by Township customers from the OCTV.
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.
During the life of the franchise, the company shall give to
the Township 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.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
A.
The company shall continue to provide basic cable television service
on one outlet to each qualified existing school and library in the
Township, public and private, elementary, intermediate and secondary,
provided the school building is within 200 feet of an 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 or library requesting service.
A.
The company shall continue to make available one shared education
and governmental (E/G) access channel for the shared use by the governing
bodies of Eastampton Township, Lumberton Township, Mount Holly Township,
Westampton Township and Hainesport Township (collectively, "municipalities").
B.
The company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for E/G access 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 will maintain the cable, modulators, and equipment necessary
for the Township or its designee to send a signal to the company,
and to receive the return feed of the signal.
D.
The company shall not exercise editorial control over any educational
or governmental use of channel capacity, except the company may refuse
to transmit any educational or governmental access program or portion
of any educational or governmental access program that contains obscenity,
indecency, or nudity.
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 Township for the purpose of showing the local government at
work.
G.
Company use of fallow time. Because blank or underutilized E/G channels
are not in the public interest, in the event the Township or other
qualified E/G access users elect not to fully program their E/G access
channel, the company may program unused time on those channels subject
to reclamation by the Township upon no less than 60 days' written
notice.
H.
Indemnification. The Township shall indemnify the 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 rules for or administration of the E/G access channel
and its programming.
I.
Within six months of the issuance of a renewal certificate of approval
by the BPU, the company shall provide to the Township a one-time E/G
access capital grant in the amount of $10,000 to meet the E/G access
capital needs of the community.
J.
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.
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 Township or any other person, during an emergency, if for any
reason the Township is unable to make full use of the cable television
system as contemplated herein.
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.
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.
Should the Township 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.
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.
A.
The company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
Township agrees to treat any information disclosed by the company
as confidential and only to disclose it to those employees, representatives,
and agents of the Township that have a need to know in order to enforce
this ordinance agreement and who agree to maintain the confidentiality
of all such information, unless such information is deemed to be subject
to New Jersey's Open Public Records Act.
B.
The company shall not be required to provide customer information
in violation of Section 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this section, the terms
"proprietary" or "confidential" include, but are not limited to, information
relating to the cable system design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the company to be competitively sensitive. The company
may make proprietary or confidential information available for inspection
but not copying or removal by the municipality's representative.
In the event that the municipality has in its possession and receives
a request under a state "sunshine," public records, or similar law
for the disclosure of information the company has designated as confidential,
trade secret or proprietary, the Township shall notify the company
of such request and cooperate with Company in opposing such request.
The company shall not be liable or responsible for, in whole
or in part, any delay or failure to perform any of its obligations
hereunder which may result from accidents, pandemics, floods, fires,
earthquakes, tornadoes or other acts of God; war, acts of war (whether
or not a declaration of war is made), civil disobedience; civil disturbance,
sabotage or vandalism, customer tampering or interference, or act
of public enemy; strikes, other labor or job actions or unavailability
of materials or equipment; or other events or circumstances beyond
the reasonable control of the company.
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.
The municipality, for its part, shall endeavor to exercise reasonable
efforts to require developers and utility companies to provide the
company with at least 15 days' advance notice of an available
open trench for the placement of necessary cable.
This ordinance shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
