[HISTORY: Adopted by the Board of Commissioners of the Town of West New York as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 352.
[Adopted 3-15-1995 by Ord. No. 8/95]
Pursuant to the provisions of N.J.S.A. 48:17-10, 48:17-11 and 48:17-12, permission and consent is hereby granted to Bell Atlantic-New Jersey, Inc. (the "company"), its successors and assigns to install, operate, inspect, maintain, repair, replace and remove its communications facilities and other transmission or process equipment, including underground facilities such as conduits, manholes, cables, wires and all other facilities appurtenant thereto and aboveground facilities such as cables, wires, antennas, poles, posts, supports, guys, pedestals, cable termination and distribution cabinets and all other facilities appurtenant thereto, in, through, upon, along, over, under and across all of the various public streets and ways, which include the roads, avenues, rights-of-way, sidewalks, highways, bridges, waterways and other public places and parts thereof throughout their entire length and to effect the necessary street openings and lateral connections to curb poles, property lines and other facilities in the Town of West New York (the "town") for said company's local and through lines and other communications facilities in connection with the transaction of its business. In the event that any public street or way where the company has facilities is vacated by the town, the town agrees to reserve unto said company the rights granted the company by the present article.
All poles, posts, pedestals, cabinets or other facilities shall be located and placed back of the curblines where shown on the Official Map(s) of the town; the poles and posts, however, shall be located within 18 inches of the face of such curbline or as may otherwise be mutually agreed upon by both parties or at the points or places now occupied by the poles, posts, pedestals, cabinets or other facilities of the company, its successors and assigns and, where there are no curblines, at other convenient points or places in, upon, along, adjacent or across the public streets and ways as may be mutually agreed upon between the parties.
The company may bury its local and through communications facilities such as cables, conduits, manholes and associated equipment, fixtures, process equipment and appurtenances within the right-of-way of the various public streets and ways and at such locations as shall be mutually agreed upon by the parties for said company's local and through lines and communications facilities. Underground conduits and associated facilities as aforementioned shall be placed at least 18 inches below the surface of said public streets and ways and, with the exception of lateral branches to curb poles and property lines and other facilities, the same shall generally not be constructed more than 10 feet from the curbline unless obstructions make it necessary to deviate from such course or unless the parties mutually agree to another location. Manholes shall be located at such points along the line of underground conduits as may be necessary or convenient for placing, maintaining and operating the facilities as aforementioned which the company may from time to time use in connection with its underground conduit system and shall be so constructed as to conform to the cross-sectional and longitudinal grade of the surface so as not to interfere with the safety or convenience of persons or vehicles.
Before proceeding with any new construction or relocation work in an area covered by this article, the company shall give prior notice, in writing, thereof to the town through its designated representative of its intention to perform such work. The company shall obtain such street opening or excavation permits as may be lawfully required by any applicable ordinances regulating such openings or excavations. Any such area affected by the company in constructing its facilities shall be restored to as good a condition as it was before the commencement of work thereon. No public streets or ways shall be encumbered for a period longer than shall be reasonable to execute the work.
The company agrees to indemnify and save harmless the town from and against all claims and liabilities resulting from any injury or damage to the person or property of any person, firm or corporation caused by or arising out of road conditions resulting from any negligent or faulty excavations, installation or maintenance connected with the work or equipment of said company and not attributable to the fault or negligence of the town, except that if such injury or damage shall be caused by the joint or concurring negligence or fault of the company and the town, the same shall be borne by them to the extent of their respective fault or negligence.
Whenever a curbline shall be established on streets where one does not now exist or where an established curbline shall be relocated in order to widen an existing street in conjunction with road construction being performed by the town, the company shall change the location of its aboveground facilities covered by this article in accordance with applicable law so that the same shall be back of and adjacent to the new curbline so long as the town has acted in accordance with applicable law and with reasonable care in establishing the new curbline and providing notice thereof.
Any company or corporation having legal authority to place its facilities in the public streets and ways of the town may jointly use the company's poles, posts, pedestals or other structures for all lawful purposes, provided that the company consents to such use on terms and conditions acceptable to the company and not inconsistent with the provisions of the this article.
The company shall provide space, to the extent available, on its poles so long as said poles are occupied by the company and space, to the extent available, in its main conduits existing on the date of passage of this article, but not exceeding one duct of standard size for the sole benefit of the town during the pendency of this article. Such space shall be provided for the exclusive use of the town, which use shall be limited to accommodating the wires or electrical conductors required for one-way signal control in connection with municipal police patrol, fire alarm signal control and traffic signal control systems only, but for no other uses or purposes either alone or in conjunction therewith nor for circuits for the supply of electrical energy for traffic or other signals nor for wires, conductors, cable or the equivalent which provide a means of transmitting any signal to a private, commercial or residential location and which is normally provided by a nongovernmental supplier; provided, further, that no such use or attachment by the town shall interfere with the plant or facilities of or the use thereof by the company. All costs or expenses incurred by the company in connection therewith shall be paid by the town. It shall be the obligation of the town to attach its wires to the poles or place its electric conductors in the conduits or manholes of the company, provided that before proceeding with said work, either by itself or by a person, firm or corporation engaged to perform such work, the town shall give the company 30 days prior notice, in writing. All such work shall be performed under the supervision of said company. The town will indemnify and save harmless the company from and against all claims, liabilities or demands arising in any manner in connection with the town's wires or facilities or their installation, maintenance, operation or removal or the town's use or enjoyment of the company's plant or facilities provided under this § 46-8.
If any or all of said streets or ways are later taken over by the County of Hudson or the State of New Jersey, such county or state shall have such rights and privileges and be subject to the same terms, conditions and limitations of use as apply herein to the town; provided, however, that satisfactory prior arrangements as may be necessary are made with the town and the company for the full protection of the respective interest of each.
The term "town," as used in this article, shall be held to apply to and include any form of municipality or government into which the town or any part thereof may at any time hereafter be changed, annexed or merged.
The permission and consent hereby granted shall apply to and cover all communications facilities of the company existing at any time and related structures, process equipment and appurtenances heretofore or hereafter erected, constructed, reconstructed, removed, located, relocated, replaced, maintained, repaired or operated by the company, its predecessors, successors or assigns within the town. This article shall cancel and supersede all prior consent ordinances between the town and the company regarding the subject matter hereof.
The company shall maintain its property within the town and shall comply with applicable law for the provision of safe, adequate and proper service at just and reasonable rates and safeguard the public interest in continuous and uninterrupted service within the town.
The company shall pay the expenses incurred for advertising required in connection with the passage of this article after the date of its first reading within 30 days after the company has received a bill for said advertising from the publisher. Following final passage of this article, the Town Clerk shall provide the company with written notice thereof by certified mail. As provided by applicable law, this article and any subsequent amendments shall not become effective until acceptance thereof by the company and approval thereof by the Board of Public Utility Commissioners.
[Adopted 3-15-2006 by Ord. No. 2/06[1]]
[1]
Editor's Note: Former Art. II included a cable television franchise with Cablevision of Riverview, Inc. adopted 11-23-1994 by Ord. No. 120/94.
A. 
The governing body of the Town of West New York (hereinafter referred to as the "Town") determined that Cablevision of Hudson County, Inc., d/b/a Cablevision of Hudson (hereinafter referred to as "the Company" or "Cablevision"), had the technical competence and general fitness to operate a cable television system in the Town, and by prior ordinance granted its municipal consent for Cablevision to obtain a nonexclusive franchise for the placement of facilities and the establishment of a cable television system in the Town; and
B. 
By application for renewal consent filed with the Town and the Office of Cable Television on or about May 6, 2005, Cablevision has sought a renewal of the franchise; and
C. 
The Town, having held public hearings, has made due inquiry to review Cablevision's performance under the franchise, and to identify the Town's future cable-related needs and interests and has concluded that Cablevision has substantially complied with its obligations under the franchise and has committed to certain undertakings responsive to the Town's future cable-related needs and interests; and
D. 
The governing body of the Town has accordingly concluded that the consent should be renewed subject to the requirements set forth below; and that, provided Cablevision's proposal for renewal embodies the commitments set forth below, the Town's municipal consent to the renewal of the franchise should be given; and
E. 
Imposition of the same burdens and costs on other franchised competitors by the Town is a basic assumption of the parties.
For the purpose of this article the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
ACT or CABLE TELEVISION ACT
That statute of the State of New Jersey relating to cable television, known as the "Cable Television Act," N.J.S.A. 48:5A-1 et seq.
APPLICATION
Cablevision's application for renewal of municipal consent, which application is on file in the Town's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this article.
BOARD
The Board of Public Utilities of the State of New Jersey or its successor agency.
COMPANY
Cablevision of Hudson County, Inc., d/b/a Cablevision of Hudson ("Cablevision"), the grantee of rights under this article.
FCC
The Federal Communications Commission.
FEDERAL ACT
That federal statute relating to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521 et seq. and the Telecommunications Act of 1996, or as those statutes may be amended.
FEDERAL REGULATIONS
Those federal regulations relating to cable television services, 47 CFR § 76.1 et seq. (and, to the extent applicable, any other federal rules and regulations relating to cable television, including, but not limited to, those described in 47 CFR § 76.3), or as such regulations may be amended.
STANDARD INSTALLATION
The installation of drop cable to a customer's premises where the distance from the point of entry into the building being served is less than 150 feet from the active cable television system plant.
STATE
The State of New Jersey.
STATE REGULATIONS
Those regulations of the State of New Jersey Board of Public Utilities relating to cable television, N.J.A.C. 14:17-1.1 et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
TOWN
The governing body of the Town of West New York in the County of Hudson and the State of New Jersey.
A public hearing concerning the consent herein granted to Cablevision 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 Cablevision to receive this consent, the Town hereby finds Cablevision possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent and that Cablevision's operating and construction arrangements are adequate and feasible.
The Town hereby grants to Cablevision its nonexclusive consent to place in, upon, along, across, above, over and under its highways, streets, alleys, sidewalks, public ways, and public places in the municipality poles, wires, cables, and fixtures necessary for the maintenance and operation in the Town of a cable television system, and for the provision of any communication service over the such system as may be authorized by federal or state regulatory agencies. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive and shall be for a term of 10 years from the date of issuance of a certificate of approval by the Board.
If Cablevision seeks successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with N.J.S.A. 48:5A-11 and N.J.S.A. 48:5A-16 and applicable state and federal rules and regulations. The Company shall also seek approval from the Board authorizing continued operation during the period following expiration of the consent granted herein and until such a time that a decision is made by the Town and the Board relative to the renewal of said consent.
The consent granted under this article to Cablevision shall apply to the entirety of the Town and any property hereafter annexed.
Cablevision shall be required to offer service along any public right-of-way to any person's residence located in the portion of the franchise territory, as described in the map attached to the application, at tariffed rates for standard and nonstandard installation. Such area designated shall constitute the primary service area.
Cablevision shall extend service along any public right-of-way outside its primary service area to those residences within the franchise territory which are located in areas that have a residential density of 25 homes per mile or greater, or areas with less than 25 homes per mile where residents agree to share the costs of such extension in accordance with the line extension formula as provided by the Company in its application for municipal consent.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision shall pay to the Town, as an annual franchise fee, a sum equal to 2% of the actual gross revenues received from all recurring charges in the nature of subscription fees paid by subscribers for its cable television reception services in the Town. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, then the Town and Cablevision shall negotiate in good faith with respect to the amount thereof.
A. 
Upon written request from the Town, the Company shall provide, free of charge, one standard installation and monthly basic cable television service to all state or locally accredited public schools and all municipal buildings used for governmental purposes within the Town.
B. 
Upon written request from the Town, the Company shall provide to Town Hall, without charge, the following: (1) one standard installation; (2) one cable modem per installation; and (3) basic cable modem service for the term of this article. The Town shall be permitted to network, at its own cost, four personal computer terminals to the cable modem provided by Cablevision. This offer shall be subject to the terms, conditions and use policies of the Company as those policies may exist from time to time.
C. 
Upon written request from the Town, the Company shall provide to state and locally accredited elementary and secondary schools and municipal public libraries in the Town, without charge, the following: (1) one standard installation per school or library; (2) one cable modem per installation; and (3) basic cable modem service for the term of this article for each installation. Each school and library shall be permitted, at its own cost, to network up to 25 computers to the cable modem provided by Cablevision. This offer shall be subject to these terms, conditions and use policies of the Company, as those policies may exist from time to time.
Cablevision shall perform construction and installation of its plant and facilities in accordance with applicable state and federal law. The Company shall be subject to the following additional construction requirements with respect to the installation of its plant and facilities in the Town:
A. 
In the event that the Company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces, the Company shall at its sole expense restore and replace such disturbances in as good a condition as existed prior to the commencement of said work.
B. 
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 Town, shall remove or relocate its equipment, at its own expense.
C. 
Upon request of a person holding a building or moving permit issued by the Town, the Company shall temporarily move or remove appropriate parts of its facilities so as to permit the moving or erection of buildings or for the performance of other work. The expense of any such temporary removal or relocation shall be paid in advance to the Company by the person requesting the same. In such cases, the Company shall be given not less than 14 days' prior written notice in order to arrange for the changes required.
D. 
During the exercise of its rights and privileges under this consent, the Company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Town so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and fixtures of the Company. Such trimming shall be only to the extent necessary to maintain proper clearance for the Company's facilities.
Cablevision shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
Cablevision shall establish and maintain during the entire term of this consent a local area business office or agent for the purpose of receiving, investigating and resolving complaints regarding the quality of service, equipment malfunctions and similar matters. Said office shall be open daily during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, with the exception of holidays.
The Office of Cable Television is hereby designated as the complaint officer for the Town pursuant to the provisions of N.J.S.A. 48:5A-26. All complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect at its sole cost at all times during the term of this consent sufficient liability insurance naming the Town as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $500,000 for bodily injury or death to one person, and $1,000,000 for bodily injury or death resulting from any one accident or occurrence stemming from or arising out of the Company's exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this article, a bond to the municipality in the amount of $25,000. Such bond shall be to insure the faithful performance of its obligations as provided in this franchise.
A. 
The rates of the Company for cable television service shall be subject to regulation to the extent permitted by federal and state law.
B. 
Cablevision shall implement a senior citizen discount in the amount of 25% off the monthly broadcast basic level of cable television service ration to any person 62 years of age or older, who subscribes to cable television services provided by the Company, subject to the following:
(1) 
Such discount shall only be available to eligible senior citizens who do not share the subscription with more than one person in the same household who is less than 62 years of age; and
(2) 
Subscribers seeking eligibility for the discount must meet the income and residence requirements for the Pharmaceutical Assistance to Aged and Disabled (PAAD) program in the state pursuant to N.J.S.A. 30:4D-21;
(3) 
The senior citizen discount herein relates only to the entry level basic rate of cable television service, and shall not apply to any additional service, feature, or equipment offered by the Company, including premium channel services and pay-per-view services.
(4) 
Senior citizens who subscribe to a level of cable television service beyond expanded basic service, including any premium or per-channel a la carte service, shall not be eligible for the discount.
C. 
Cablevision shall apply the same discount rate with the same conditions as in Subsection B(2), (3) and (4) to disabled customers who meet all PAAD eligibility requirements.
Cablevision shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Town pursuant to state and federal requirements. The Company shall in no way be held liable for any injury suffered by the Town 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 Town shall utilize the state-approved procedures for such emergency uses.
A. 
In the event that the Town approves or permits a cable system to operate in the community on terms more favorable or less burdensome than those contained in this article, such more favorable or less burdensome terms shall be applicable in this consent, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
B. 
In the event that a nonfranchised multichannel video programmer provides service to residents of the Town, Cablevision shall have a right to request franchise amendments to this article that relieve Cablevision of regulatory burdens that create a competitive disadvantage to the Company. In requesting amendments, Cablevision shall file with the Board of Public Utilities a petition for approval in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 seeking to amend this article. Such petition shall: i) indicate the presence of a nonfranchised competitor(s); ii) identify the basis for Cablevision's belief that certain provisions of this franchise place it at a competitive disadvantage; and iii) identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage. The Town shall not unreasonably withhold or object to granting the Company's petition and so amending this article, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
C. 
In any subsequent municipal consent, the Town shall require, at a minimum, the same term and conditions of any other provider of multichannel video programming subject to the Town's regulatory authority as those contained in the instant consent. In the event such subsequent consent does not contain the same terms and conditions as the instant consent, the Town agrees to support the Company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 to relieve the Company of competitive disadvantages identified in the Company's petition.
Upon expiration, termination or revocation of this article, Cablevision, at its sole cost and expense and upon direction of the Board, shall remove the cables and appurtenant devices constructed or maintained in connection with the services authorized herein, unless Cablevision, its affiliated entities or assignees should, within six months after such expiration, termination or revocation, obtain certification from the FCC to operate an open video system or any other federal or state certification to provide telecommunications.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access as described in the application for municipal consent for the exclusive use of the Company's cable subscribers in the Town.
A. 
The Town agrees that the Company shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming, during times when the Town is not utilizing the channel for purposes of providing PEG access programming. In the event that the Company uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use and the Company's rights with respect to using the channel for non-PEG programming shall be subordinate to the Town provision of PEG access programming on such channel.
B. 
Upon written request, Cablevision shall provide and maintain one access return line at any one school for use by the Town in the production of noncommercial educational and governmental access programming on the cable system.
C. 
In consideration for the rights granted by this article, Cablevision shall provide the Town with a one-time grant of $50,000 to be used by the municipality for cable and/or other telecommunications related purposes, including to supplement PEG access related production and programming efforts in the Town.
D. 
All channels, facilities, equipment, funding and other support for PEG access provided by the Company shall be for the exclusive use and benefit of Cablevision customers within the Town.
Although nothing herein shall require Cablevision to carry or transmit any particular programming source, Cablevision shall provide subscribers in the Town with a similar mix and, at a minimum, the same level of video programming as is now provided to West New York subscribers and which appears in the Company's Application. The Company shall provide West New York subscribers with at least the same broad categories of programming in approximately the same quantity as are now provided, and which appear in the Company's application.
All of the commitments contained in the application and any amendment thereto submitted in writing to the Town by the Company, except as modified herein, are binding upon Cablevision as terms and conditions of this consent. The application and any other written amendments thereto submitted by Cablevision in connection with this consent are incorporated in this article by reference and made a part hereof, except as specifically modified, changed, limited, or altered by this article, or to the extent that they conflict with state or federal law.
This consent shall be construed in a manner consistent with all applicable federal, state and local laws.
If any section, subsection, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portion thereof.
A. 
This article shall take effect upon issuance of a certificate of approval as issued by the Board of Public Utilities.
B. 
This article shall take effect upon passage and publication as required by law.