The Borough hereby grants to Comcast renewal of its non-exclusive
Municipal Consent to place in, upon, across, above, over and under
highways, streets alleys, sidewalks, easements, public ways and public
places in the Borough, 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 Borough 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 in supplemental to those definitions
of the Federal Communications Commission (“FCC”) rules
and regulations, 47 C.F.R. 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:
APPLICATION
The Company’s Application for Renewal of Municipal
Consent.
BASIC CABLE SERVICE
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
BOARD or BPU
The Board of Public Utilities, State of New Jersey.
BOROUGH
The Borough of Harvey Cedars, County of Ocean, State of New
Jersey.
COMPANY or COMCAST
The grantee of rights under this Ordinance and is known as
Comcast of Long Beach Island LLC.
FCC
The Federal Communications Commission.
PRIMARY SERVICE AREA or PSA
Consists of the area of the Borough currently served with
existing plant as set forth in the map annexed to the Company’s
Application for Municipal Consent.
Public hearings conducted by the Borough, 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 Borough, having received
at said public hearings all comments regarding the qualifications
of the Company to receive this renewal of Municipal Consent, the Borough
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 non-exclusive Municipal Consent granted herein shall expire
10 years from the date of expiration of the previous Certificate of
Approval issued by the Board.
In the event that the Borough shall find that the Company has
not substantially complied with the material terms and conditions
of this Ordinance, the Borough 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 Borough shall first have given the Company written
notice of all alleged instances of non-compliance and an opportunity
to cure same within 90 days of that notification.
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 Borough 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 Borough or any higher amount permitted by
the Act or otherwise allowable by law, whichever is greater.
The consent granted under this Ordinance for the renewal of
the franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
The Company shall be required to proffer service to any residence
along any public right-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 a HPM (“homes-per-mile”) of 35 dwellings per linear
mile from the nearest active trunk or feeder line.
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 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 Borough 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,
re-lay or relocate its equipment, at the expense of the Company prior
to approval of the board.
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 Borough 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.
d. Temporary
removal of cables: The Company shall, upon request of the Borough,
at the company’s expense, temporarily raise, lower or remove
its lines in order to facilitate the moving of buildings or machinery
or in other like circumstances, subject to the prior approval of the
board.
e. 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.
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 Borough upon
written request of the Borough 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 Borough 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.
The Office of Cable Television is hereby designated as the Complaint
Officer for the Borough 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 Borough shall have the right to request copies of records
and reports pertaining to complaints by Borough 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 for the purpose of receiving, investigating
and resolving all local complaints regarding the quality of service,
equipment malfunctions, and similar matters. Such a business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours.
During the life of the franchise the Company shall give to the
Borough 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 provide Expanded Basic or a similar tier of cable television
service to one outlet at no cost to each qualified existing and future
school in the Borough, public and private, elementary, intermediate
and secondary, provided the school building is within 200 feet of
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 requesting service.
b. The Company
shall provide Expanded Basic or a similar tier of cable television
service at no cost to one outlet to each qualified existing and future
municipal building, police, fire, emergency management facility and
public library in the Borough, provided the facility is located within
200 feet of 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 Borough.
c. Within
six months of the issuance of a Renewal Certificate of Approval by
the BPU, the Company shall provide to the Borough a one-time Technology
Grant in the amount of $5,000 to meet the technology and/or cable
related needs of the community.
d. 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
shall continue to make available one shared government access channel.
The government access channel is maintained by the Borough for the
purpose of cablecasting non-commercial government access programming.
b. The Company
does not relinquish its ownership of or ultimate right of control
over a channel by designating it for Government use. A Government
access 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 governmental use of
channel capacity, except Company may refuse to transmit any governmental
access program or portion of a governmental access program that contains
obscenity, indecency, or nudity.
d. Government
Access. “Government Access” shall mean noncommercial use
by the Township for the purpose of showing the local government at
work.
e. Company
Use of Fallow Time. Because blank or underutilized 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 60 days' written notice.
f. Indemnification.
The Township 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 EG access
channel and its programming.
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 Borough
or any other person, during an emergency, if for any reason the Borough
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 application State
or Federal law.
Should the Borough 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.
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.
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.