[HISTORY: Adopted by the Mayor and Council
of the Borough of Essex Fells 7-18-2006 by Ord. No. 2006-806; amended in its entirety 10-18-2022 by Ord. No.
2022-1066. Subsequent amendments noted where applicable.]
The Borough 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 municipality, 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. This consent is subject to the terms and conditions of this
chapter and upon the condition that the Company accepts the provisions
of this chapter and confirms that it shall comply with the commitments
contained herein.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meanings 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 Borough of Essex Fells, County of Essex, State of New
Jersey.
The grantee of rights under this chapter and is known as
"Comcast of New Jersey II, LLC."
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the municipality currently served
with existing plant as set forth in the map annexed to the Company's
application for municipal consent.
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 chapter, 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, N.J.S.A. 48:5A-30,
the Company shall, during each year of operation under the consent
granted herein, pay to the municipality 3.5% of the gross revenues
from all recurring charges in the nature of subscription fees paid
by subscribers for cable television reception service in the municipality
or any higher amount permitted by the Act or otherwise allowable by
law. The current franchise fee paid to the Borough is 3.5%.
The consent granted under this chapter for the renewal of the
franchise shall apply to the entirety of the municipality and any
property subsequently annexed hereto.
The Company shall be required to proffer service to any residence
or business 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.
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 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
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.
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 any 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 cables of the Company.
Such trimming shall be only to the extent necessary to maintain proper
clearance of the Company's wire and cables.
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.
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 applicable
FCC customer service regulations.
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 applicable 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 local complaints regarding the quality of service, equipment
malfunctions, and similar matters.
During the life of the franchise, the Company shall give to
the municipality 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 courtesy cable television service on one
standard installation and up to 10 outlets at no cost to each qualified
existing and future school in the Borough, public and private, elementary,
intermediate and secondary, provided the school is within 200 feet
of active cable distribution plant. 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 free standard installation and courtesy
cable television service at no cost on one outlet to each qualified
existing police, volunteer fire, first aid, emergency management facility,
public works, community center that may be constructed in the future,
public library and any other municipally owned building in the Borough,
provided the facility is located within 200 feet of active cable distribution
plant. Each additional outlet installed, if any, shall be paid for
on a material plus labor basis by the Borough. Comcast shall provide
the above referenced services to any future municipal facility upon
written request.
C.
The Company shall continue to provide courtesy Internet service,
via high-speed cable modem, to one nonnetworked personal computer
in each qualified existing and future public school and public library
in the Borough, elementary, intermediate and secondary, at no charge
provided the facility is located within 200 feet of active cable distribution
plant. The internet access service shall be installed on a personal
computer that is accessible to the students and not for administrative
use only. Comcast shall provide the above referenced services to any
future such facility upon written request.
D.
Within one year of written request from the Borough, the Company
shall provide, at no cost to the municipality, a dedicated local access
channel, return line and necessary equipment for signal transmission.
The channel shall be maintained by the Company and provided to the
Borough for the purpose of cablecasting noncommercial access programming
in conformance with the Company's guidelines and applicable state
and federal regulations. The channel's origination site must
be within 200 feet of active cable distribution plant.
E.
Within six months of the issuance of a renewal certificate of approval
by the Board, the Company shall provide to the municipality a one-time
PEG capital grant in the amount of $10,000 for PEG access capital
support.
F.
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)(4)],
allows the Company to itemize and/or identify the amount on the monthly
bill assessed to satisfy any requirements imposed on the Company by
the cable franchise to support public, educational, and governmental
channels, or the use of such channels or any other services required
under the franchise. The Company reserves its external cost, pass-through
rights to the extent permitted by law, including the services set
forth in this section.
A.
The Company shall continue to provide residents with a system-wide
public access channel maintained by the Company. Qualified individuals
and organizations may utilize public access for the purpose of cablecasting
noncommercial access programming in conformance with the Company's
published public access rules.
B.
The Company shall continue to provide a system-wide leased access
channel maintained by the Company for the purpose of cablecasting
commercial access programming in conformance with the Company's
guideline and applicable state and federal statutes and regulations.
C.
The Company shall provide a dedicated local access channel maintained
by the Company for the purpose of cablecasting noncommercial access
programming in conformance with the Company's guidelines and
applicable state and federal statutes and regulations.
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 municipality 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 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 municipality grant a franchise or other authorization
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 chapter subject to the provisions
of N.J.A.C. 14:17-6.7.
If any section, subsection, sentence, clause, phrase, or other
portion of this chapter is, for any reason, declared invalid, in whole
or in part, by any court, agency, commission, legislative body, or
other authority of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
A.
The Company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
Borough agrees to treat any information disclosed by the Company as
confidential and only to disclose it to those employees, representatives,
and agents of the Borough that have a need to know in order to enforce
this chapter and who agree to maintain the confidentiality of all
such information.
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 Borough shall notify the Company
of such request and cooperate with the Company in opposing such request.
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 chapter shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
