[HISTORY: Adopted by the City Council of the City of Cape
May by Ord. No. 1267-2012 (Ch. XXI of the
Revised General Ordinances). Amended in its entirety 8-21-2012 by Ord. No. 254-2012.
Subsequent amendments noted where applicable.]
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 term is supplemental to those definitions
given by the Federal Communications Commission, FCC Rules and Regulations
47 CFR Subsection 76.1 et seq. and the Communications Act of 1934
at 47 U.S.C. § 521 et seq., as amended, and the Cable Television
Act, N.J.S.A. 48:5A-1 et seq., and in no way shall be construed to
broaden, alter or conflict with federal or state definitions:
Chapter 186 of the General Laws of New Jersey, and subsequent
amendment thereto, N.J.S.A. 48:5A-1 et seq.
The City of Cape May in the County of Cape May, New Jersey.
The grantee of rights under this chapter and is known as
"Comcast of Wildwood, LLC"
The Federal Communications Commission.
The New Jersey Board of Public Utilities.
The Office of Cable Television of the New Jersey Board of
Public Utilities.
Any communications service other than cable television reception
service delivered through the facilities of a Cable System and for
which charges in addition to or other than those made for cable television
reception service are made or proposed.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service, and as further defined under Section 602
(6) of the Federal Cable Act.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the franchise
area, and as further defined under Section 602 (7) of the federal
Cable Act.
The Company's Application for Renewal of Municipal Consent.
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.
The Municipality hereby grants to the Company a nonexclusive
consent to place in, upon, along, across, over and under the 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, maintenance and operation
in the Municipality of a cable television system and cable communications
system. Operation and construction to said consent is conditioned
upon prior approval of the Board of Public Utilities.
A public hearing concerning the franchise herein granted to
the Company was held after proper public notice pursuant to the terms
and conditions of the Act and the regulations of the Board adopted
pursuant thereto. Said hearing, having been held as above stated and
said hearing having been fully open to the public, and the municipality,
having received at said hearing all comments regarding the qualifications
of the Company to receive this renewal of Municipal Consent, the Municipality
hereby finds that the Company possesses the necessary legal, technical,
character, financial and other qualifications and that the Company's
operating construction arrangements are adequate and feasible.
The right to use and occupy said streets and other public ways
for the purpose herein set forth shall not be exclusive.
A.
The non-exclusive Municipal Consent granted herein shall expire 15
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.
The consent granted under this Ordinance to the renewal of the
franchise shall apply to the entirety of 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 Municipality two percent of the gross revenues from all
recurring charges in the nature of subscription fees paid by subscribers
for cable service in the Municipality or any higher amount permitted
by the Act or otherwise allowable by law, whichever is greater.
A.
All future transmission and distribution structures, lines and equipment
erected by the Company within the franchise area shall be so located
as to cause minimum interference with the proper use of streets and
other public ways and places.
B.
In case of disturbance of any street, public way or paved area as
a result of operations of the Company, the Company shall, at no expense
to the Municipality, replace and restore such street, public way or
paved area.
C.
Any future poles or other fixtures placed in any public way by the
Company shall be placed in such manner as not to interfere with reasonable
travel on such public way.
D.
The Company shall, at the request of any person holding a building
moving permit issued by the Municipality, temporarily remove or raise
or lower its wires, and the Company shall be paid by person requesting
the same, and the Company shall have the authority to require such
payment in advance. The Company shall be given not less than 30 days'
notice to arrange for such temporary wire changes.
E.
The Company shall have the authority to trim trees upon and overhanging
streets and public ways and places of the franchise area so as to
prevent the branches of such trees from coming in contact with the
wires, cables or other equipment of the Company. Such tree trimming
shall be only to the extent necessary to maintain proper clearance
of the Company's wire and cables. Said tree trimming shall be
done in a proper and workmanlike manner so as to protect the public
and the viability of any trees trimmed. Except in an emergency, the
Company shall first contact and consider the input from the Cape May
City Shade Tree Commission before undertaking any tree removal activities.
F.
If at any time during the period of this consent, the Municipality
shall alter or change the grade of any street, alley or other way
or place the Company, upon reasonable notice by the Municipality,
shall remove, re-lay or relocate its equipment, at the expense of
the Company.
The Company shall provide to the City a construction plan, construction
time table, and written reports on the progress of any major upgrading
or rebuilding that requires significant construction work within the
Municipality. The Company shall not be required to submit construction
plans and related information for any period during which no construction
activity will take place. Except for emergencies, the Company will
use its best efforts to avoid major construction projects between
the months of May through October.
The Company shall, at all times, employ ordinary care and shall
install and maintain, in use commonly accepted, methods and devices
for preventing failures and accidents which are likely to cause damage,
injuries or nuisances to the public. All structures and all lines,
equipment and connections in, over, under and upon the streets, sidewalks,
alleys and public ways or places of the franchise area, wherever situated
or located, shall at all times be kept and maintained in a safe, suitable
condition, and in good order and repair.
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 (Appendix "III"). 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.
The rates of the Company shall be subject to regulation as permitted
by federal and state law.
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.
A.
The Company shall be required to fully comply with all applicable
federal and state statutes and regulations governing the implementation,
operation and testing of the Emergency Alert System.
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 not sell or transfer its plant or system to
another, nor transfer the rights under this franchise to another,
without prior approval from the New Jersey Board of Public Utilities,
if then required by law.
When not otherwise prescribed hereto, all matters herein required
to be filed with the Municipality shall be filed with the Clerk of
the Municipality.
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, and in no event (excepting emergent
circumstances) less than 9:00 A.M. to 5:00 P.M., Monday through Friday.
As provided by N.J.A.C. 14:18-3.6, customer phone calls shall
be answered by a representative or agent of the Company 24 hours a
day. Such representative or agent shall be able to contact appropriate
personnel of the cable television company in the event an emergency
situation exists. If used by the cable system, an Automatic Response
Unit (ARU) must allow an escape option by which a customer can speak
to the next available operator.
A.
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 municipality
upon written request of the Municipality Administrator or Clerk.
(1)
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.
(2)
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.
(3)
The Company shall use every reasonable effort to meet or exceed
voluntary standards for telephone accessibility developed by the National
Cable Television Association (NCTA).
(4)
Nothing herein shall impair the right of any subscriber or the
Municipality 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.
A.
The Company shall provide Expanded Basic or a similar tier of cable
television service on one outlet at no cost to each qualified existing
and future school in the Municipality, public and private, elementary,
intermediate and secondary, provided the school is within 175 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. Monthly service charges shall be waived on all
additional outlets.
B.
The Company shall provide Expanded Basic or a similar tier of cable
television service at no cost on one outlet to each qualified existing
and future police, fire, emergency management facility and public
library in the Municipality, provided the facility is located within
175 feet of active cable distribution plant. Each additional outlet
installed, if any, shall be paid for on a materials plus labor basis
by the Municipality. Monthly service charges shall be waived on all
additional outlets.
C.
The Company shall provide free basic Internet service, via high-speed
cable modem, to one non-networked personal computer in each qualified
existing and future public and private elementary, intermediate and
secondary school in the City, elementary, intermediate and secondary,
at no charge, provided the school is within 175 feet of active cable
distribution plant. The Internet service shall be installed on a personal
computer that is accessible to the students and not for administrative
use only.
D.
The Company shall provide free basic Internet access via high-speed
cable modem on one non-networked personal computer in each qualified
existing and future public library at no charge, provided the school
is within 175 feet of active cable distribution plant. The Internet
service shall be installed on a personal computer that is accessible
to library patrons and not for administrative use only.
Within 18 months of receipt of a Renewal Certificate of Approval
(COA) by the OCTV, the Company shall provide one channel for Educational
and Governmental ("EG") access for the shared use by the City of Cape
May, West Cape May and Cape May Point (collectively, "Municipalities")
on the most basic tier of service offered by the Company in accordance
with Section 611 of the federal Cable Act, and as further set forth
below. Educational access video programming shall be provided by the
governing bodies of the municipalities or other designated educational
institution. Government video programming shall be provided by the
municipalities. Unused capacity may be utilized by the Company subject
to the provisions for "fallow time" below.
A.
Within 18 months of receipt of a Renewal Certificate of Approval
(COA) by the OCTV, the Company shall activate a dedicated fiber optic
return line to the Cape May City Convention Hall for the purpose of
telecasting live and/or recorded programming on the EG access channel.
B.
The Company will provide and maintain the cable, modulators and equipment
necessary for the City EG access channel to send a signal to the Company,
and to receive the return feed of signal. The Company will not be
responsible for the maintenance of any studio facility or equipment
used for the access channel, including but not limited to cameras,
editing decks, monitors, and character generators, etc.
C.
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.
D.
The Company shall not exercise editorial control over any educational
or governmental use of channel capacity, except in accordance with
federal law the 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.
E.
The governing bodies of the municipalities shall be responsible for
developing, implementing, and enforcing rules for EG Access programming.
F.
Educational access. "Educational Access" shall mean non-commercial
use for educational purposes that is managed, scheduled, and programmed
by local educational institutions such as public or private schools,
but not "home schools," community colleges, and universities.
G.
Government access. "Government Access" shall mean noncommercial use
by the governing bodies of the municipalities, for the purpose of
showing the public local government at work.
H.
Company use of fallow time. Because blank or under-utilized 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.
The Office of Cable Television is hereby designated as the complaint
officer for the City.
A.
During the term of the franchise, the Company shall give a surety
bond to the City, which bond shall be in the amount of $25,000. Such
bond shall be to insure the faithful performance by the Company of
all of its obligations and undertakings as represented in the application
and in the commitments. The City reserves the right by resolution
to require a reasonable increase in the amount of said bond, subject
to review and approval by the Board.
B.
No later than 10 days after the City's receipt of payment under
the bond, the Company shall replenish the bond in an amount equal
to the amount so paid.
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.
Notwithstanding any specific mention of applicable federal or
state statutes or regulations above, the franchise shall comply with
all of the requirements of the Federal Act, the Federal Regulations,
the State Act and State Regulations (to the extent not preempted)
and any other valid statute, regulations, rule or promulgation, specifically
including, but without limitation, those relating to equal employment
opportunity.
Any reference in any provision of this chapter to any federal
or state statute or regulation shall be deemed to be a reference to
such statute or regulation as it may be amended in the future to any
successor statute or regulation governing the same subject matter.
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.
If any section, subsection, sentence, clause, phrase or portion
of this chapter 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 such holding shall not effect the validity of the remaining
portions hereof.
The municipal consent shall become effective upon the approval
by the Board of Public Utilities.
All ordinances or parts of ordinances conflicting herewith are
hereby repealed to the extent of such inconsistency.
