The Township hereby grants to Comcast of Central New Jersey II, LLC renewal of its nonexclusive municipal consent to place in, construct, erect, operate, modify and maintain in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, easements, public ways and public places of 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 cable communications system for the purposes authorized by the Act.
[HISTORY: Adopted by the Township Council of the Township of Franklin as indicated in article histories. Amendments noted where applicable.]
[Adopted 9-29-2015 by Ord. No. 4118-15[1]]
[1]
Editor's Note: This ordinance also superseded former Art. I, RCN of New Jersey, Inc., adopted 8-8-2000 by Ord. No. 3147, effective until 12-31-2016.
For the purpose of this Ordinance, 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 the rules and regulations of the Board, N.J.A.C. 14-18-1.1 et seq., 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 March 11, 2014, Application for Renewal of municipal consent which is incorporated within this Ordinance by reference.
The Board of Public Utilities, State of New Jersey.
The grantee of rights under this Ordinance and is Comcast of Central New Jersey II, LLC.
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 Franklin, County of Somerset, State of New Jersey.
A public hearing was conducted by the Township Council on June 24, 2014, concerning the renewal of municipal consent herein granted to the Company. The public hearing was held after proper public notice pursuant to the terms and conditions of the Act and the regulations of the Board adopted pursuant thereto. The public hearing, having been fully open to the public, and the Township, having received at said public hearings all comments regarding the qualifications of the Company to receive this renewal of municipal consent, 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.
A.
The nonexclusive municipal consent granted herein shall expire 15 years from the date of expiration of the previous certificate of approval issued by the Board with a ten-year automatic renewal as provided by N.J.S.A. 48:5A-19 and 48:5A-25, and N.J.A.C. 14:18-13.6.
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. Notwithstanding the foregoing, in the event that an occurrence of noncompliance presents an immediate danger to public health, safety or welfare of the municipality or its inhabitants, the Company shall take immediate steps to abate the danger upon notice, while taking steps to cure an event of noncompliance within 90 days of written notification by the municipality.
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 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, whichever is greater.
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 by the Township.
The Company shall be required to provide 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 the following exception: The minimum homes per mile (HPM) figure shall be 25 homes per linear mile from the operator's existing plant.
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 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, re-lay or relocate its equipment, at the expense of the Company.
C.
Temporary removal of cables: The Company shall temporarily move or remove appropriate parts of its facilities to allow for the moving of buildings and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the Township, in which case the Company shall bear the cost of the temporary removal.
D.
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.
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 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.
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 Township 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 Township 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 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 local business office within reasonable proximity of its service area in accordance with N.J.A.C. 14:18-5.1 where applications for service, complaints, service inquiries, bill payments, and so forth will be received. Such a business office shall have a publicly listed toll-free telephone number and be open during normal business hours and such other times as the Company deems advisable to meet with customers and prospective customers.
During the life of the franchise the Company shall give a bond to the Township 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 which is incorporated herein.
The rates of the Company shall be subject to regulation as permitted by federal and state law. Nothing within this franchise renewal shall prevent the Company from offering reduced or discounted rates for senior citizens, disabled citizens, or other economically disadvantaged citizens in accordance with N.J.S.A. 48:5A-11.1 and 48:5A-11.2, or any other applicable federal or state law. Any reduced or discounted rates offered by the Company shall be in compliance with the regulations of the Board.
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 Township, including public and private, elementary, intermediate and secondary schools, provided the school building is within 200 feet aerially or 125 feet underground 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 Expanded Basic or a similar tier of cable television service at no cost to one outlet to each qualified existing and future public building including the municipal building, police, fire, rescue squad, emergency management facility, public library and library branch, and any other municipal or governmental building designated by the Township, provided the facility is located within 200 feet aerially or 125 feet underground of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor basis by the Township.
C.
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 technology grant in the amount of $125,000 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.
E.
Company representative shall appear at least once annually, upon written request of the Township Council.
A.
The Company will continue to provide two channels, one for educational and one for governmental ("EG") access for the use by Township on the most basic tier of service offered by the Company in accordance with the Cable Act, Section 611 (47 U.S.C. 531) and as further set forth within this § A402-15.
B.
The Company does not relinquish its ownership of or ultimate right of control over a channel by designating it for EG 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 shall not exercise editorial control over the use of any educational or governmental channel capacity, except Company may refuse to transmit any educational or governmental access program or portion of an educational or governmental access program that contains obscenity, indecency, or nudity.
D.
Educational access. "Educational access" shall mean noncommercial use by educational institutions such as public or private schools, but not "home schools," community colleges and/or universities.
E.
Government access. "Government access" shall mean noncommercial use by the Township for the purpose of showing the public local government at work.
F.
Fallow time. Because blank or underutilized EG channels are not in the public interest, in the event the Township or other EG access users elect not to fully program the EG access channel, Company may program unused time on those channels subject to reclamation by the Township upon no less than 60 days' written notice.
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 that same do not conflict with applicable state or federal law.
Should the Township grant 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 upon approval by the Board of the Company's petition to modify this Ordinance pursuant to 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 prior agreements or this franchise.
This Ordinance shall take effect immediately upon issuance of a renewal certificate of approval by the BPU.