[HISTORY: Adopted by the Mayor and Board of Aldermen of the Town of Boonton 3-4-2013 by Ord. No. 4-2013. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. A305, Cable Television Franchise, adopted 6-3-2002 by Ord. No. 8-2002.
For the purpose of this ordinance, 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.
- Cablevision's application for renewal of municipal consent, which application is on file in the Town Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- CSC TKR, LLC, d/b/a Cablevision of Morris ("Cablevision"), the grantee of rights under this ordinance.
- 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.
- 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.
- The Mayor and Board of Aldermen of the Town of Boonton in the County of Morris and the State of New Jersey.
Editor's Note: The "terms defined above" refers to terms which are defined in the preamble to this ordinance, which is on file in the Town offices.
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 that 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 or other communications facility and for the provision of any communication service over 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-16 and applicable state and federal rules and regulations. In accordance with N.J.S.A. 48:5A-25.1, both the Town and Cablevision shall be bound by the terms of this municipal consent until such time as Cablevision converts the municipal consent (and any certificate of approval) into a system-wide franchise.
The consent granted under this ordinance to Cablevision shall apply to the entirety of the Town and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along any public right-of-way to any person's residence within the portion of the Franchise territory, as described in the application for municipal consent, at Cablevision's schedule of rates for standard and nonstandard installation.
Cablevision shall extend service along any public right-of-way outside its 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 fewer 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 that applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Town and Cablevision shall negotiate in good faith with respect to the amount thereof.
Cablevision shall provide, free of charge, one standard installation and monthly cable television reception services to all public libraries, as well as to police and municipal buildings located within the Town.
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 ordinance for each installation. This offer shall be subject to the 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:
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.
If, at any time during the period of this consent, the municipalities 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.
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.
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 in 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, and any complaints by local subscribers to cable television reception or service shall be filed directly with the said office. 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.
Upon the effective date of this franchise, Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this agreement, a bond to the Town in the amount of $25,000. Such bond shall be to insure the faithful performance of its obligations as provided in this franchise.
The rates of the company shall be subject to regulation as permitted by federal and state law.
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.
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 ordinance 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 the ordinance. Such petition shall: i) indicate the presence of a nonfranchised competitor; 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 the ordinance, 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.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the Town acknowledges that Cablevision shall have the right to petition the Board directly for such amendments in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, that the Town shall be under no obligation to support Cablevision's request for such relief from the Board.
In any subsequent municipal consent, the Town shall require, at a minimum, the same terms 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 that such subsequent consent does not contain the same terms and conditions as the instant consent, the Town agrees to support Cablevision'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 Cablevision of competitive disadvantages identified in Cablevision's petition.
Upon expiration, termination or revocation of this ordinance, 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 or 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 services available to the Town and its residents as described in the application for municipal consent. All Cablevision support for PEG access shall be for the exclusive benefit of Cablevision's subscribers.
The Town agrees that Cablevision 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's provision of PEG access programming on such channel.
Cablevision shall have the discretion to determine the format and method of transmission of the PEG access programming provided for in this § A305-21.
Cablevision shall provide the Town with a PEG grant of up to $12,000, payable as follows: 1) an initial grant payment of $3,000 within 90 days of the issuance of the certificate of approval by the Board of Public Utilities (the "initial grant"); and 2) a grant of $9,000 provided in annual installments of $1,000, upon written request by the Town (the "annual grant"). The annual grant shall be payable to the Town within 90 days from receipt of the Town's written request. Cablevision shall not be obligated to make any additional payments beyond year 10 of the franchise term.
The Town agrees that the initial grant and the annual grant provided pursuant to Subsection D shall be used for the exclusive support of PEG access programming, such as the purchase and/or rental of PEG access equipment and facilities. On request, the Town shall provide Cablevision with certification of compliance with this § A305-21E.
The Company shall have no further obligation to provide any PEG grant payments due and payable after the date upon which the company converts the municipal consent granted herein to a system-wide franchise in accordance with N.J.S.A. 48:5A-25.1.
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 writings submitted by Cablevision in connection with this consent are incorporated in this ordinance by reference and made a part hereof, except as specifically modified, changed, limited, or altered by this ordinance, or to the extent that they conflict with state and 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 ordinance 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.
Notices required under this ordinance shall be in writing and shall be mailed, first class, postage prepaid, to the address below. Either party may change the place where notice is to be given by providing such change in writing at least 30 days prior to the time such change becomes effective. The time to respond to notices under this ordinance shall run from receipt of such written notice. Notices to the company shall be mailed to:
This ordinance shall take effect upon issuance of a certificate of approval, as issued by the Board of Public Utilities, that incorporates the material terms of this ordinance. Nothing herein shall alter the right of the company to seek modification of this ordinance in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.