[Ord. No. 2023-10 Grants Renewal of Municipal Consent to
Comcast of New Jersey, LLC, to Construct, Connect, Operate and Maintain
a Cable Television and Communications System. History includes Ord.
#96-04 and Ord. #96-12.]
[Added 10-18-2023 by Ord. No. 2023-10]
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. Subsection 76.1 et seq., and the Cable Communications Policy
Act, 47 U.S.C. Section 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:
a. "Borough"
is the Borough of Beachwood, County of Ocean, State of New Jersey
b. "Company"
or "Comcast: is the grantee of rights under this Ordinance and is
known as Comcast of New Jersey, LLC.
c. "Act" or
"Cable Television Act" is Chapter 186 of the General Laws of New Jersey,
and subsequent amendments thereto, N.J.S.A. § 48:5A-1, et
seq.
d. "FCC" is
the Federal Communications Commission.
e. "Board"
or "BPU" is the Board of Public Utilities, State of New Jersey.
f. "Office"
or "OCTV" is the Office of Cable Television of the Board.
g. "Basic Cable
Service: any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
h. "Application"
is the Company's Application for Renewal of Municipal Consent.
i. "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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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 30 dwellings per linear mile from
the nearest active trunk or feeder line.
[Added 10-18-2023 by Ord. No. 2023-10]
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, to minimize the impact of same on surrounding property.
[Added 10-18-2023 by Ord. No. 2023-10]
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 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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
The rates of the Company shall be subject to regulation as permitted
by federal and state law.
[Added 10-18-2023 by Ord. No. 2023-10]
a. The Company shall provide, at no cost, Expanded Basic or a similar
tier of cable television service to one outlet 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 material plus labor basis by the school requesting service.
b. The Company shall provide, at no cost, Expanded Basic or a similar
tier of cable television service to one outlet to every Borough building
and 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 material 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 PEG
Access Capital Grant in the amount of $25,000 to meet the PEG Access
capital 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.
[Added 10-18-2023 by Ord. No. 2023-10]
a. The Company shall continue to make available to the Borough one governmental
access channel and one educational access channel.
b. The Company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for 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 Borough 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 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. Government access. "Government Access" shall mean noncommercial use
by the Borough for the purpose of showing the local government at
work.
f. Company use of fallow time. Because blank or underutilized E/G channels
are not in the public interest, in the event the Borough or other
qualified E/G access users elect not to fully program their E/G access
channel, Company may program unused time on those channels subject
to reclamation by the Borough upon no less than 60 days' written
notice.
g. Indemnification. The Borough 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 rules for or administration of E/G access channel
and its programming.
h. 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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
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.
[Added 10-18-2023 by Ord. No. 2023-10]
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.