[HISTORY: Adopted by the Council of the Township of Montclair 10-7-2008 by Ord. No. 08-34. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. A351, Cable Television Franchise, adopted 5-26-1998 by Ord. No. 98-21.
The Township of Montclair (hereinafter the Municipality or the Township) hereby grants to Comcast of New Jersey II, LLC renewal of its nonexclusive municipal consent to place in, upon, across, above, over and under 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, operation and maintenance in the municipality 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 is 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. § 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:
- ACT or CABLE TELEVISION ACT
- 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 application for renewal of municipal consent.
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
- BOARD or BPU
- The Board of Public Utilities, State of New Jersey.
- Comcast of New Jersey II, LLC, the grantee of rights under this ordinance.
- The Federal Communications Commission.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- PRIMARY SERVICE AREA or PSA
- 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.
- TOWNSHIP or MUNICIPALITY
- The Township of Montclair in the County of Essex, State of New Jersey.
Public hearings were conducted by the municipality, concerning the renewal of municipal consent herein granted to the company, after proper public notice pursuant to the terms and conditions of the Act and the regulations of the Board adopted pursuant thereto. Said hearings were fully open to the public and the municipality received and considered during said hearings 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 and construction arrangements are adequate and feasible.
The nonexclusive municipal consent granted pursuant to this ordinance shall expire 15 years from the date of expiration of the previous certificate of approval issued to the company by the Board.
In the event that the municipality determines that the company has not substantially complied with the material terms and conditions of this ordinance, the municipality shall have the right, pursuant to N.J.S.A. 48:5A-47, to petition the OCTV for appropriate action, including modification and/or termination of the certificate of approval; provided, however, that the municipality shall have given the company prior written notice of the company's alleged failure to comply with the terms and conditions of this ordinance and the company has not cured same within 45 days of delivery of said notice.
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 franchise fees equal to the greater of:
Two percent of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers for cable television reception service in the municipality; or
The amount permitted or required by the Act or other applicable legal requirements, including, but not limited to, the New Jersey systemwide cable franchising law.
The consent granted under this ordinance to the renewal of the franchise shall apply to the entirety of the municipality and any property subsequently annexed hereto.
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. The company's line extension policy, as set forth in the company's application, shall govern any extension of plant beyond the primary service area.
Comcast will comply with all applicable laws, rules and regulations governing the operation of its cable television system and cable communications system within the Township. If any laws, rules or regulations are declared unlawful by a court of competent jurisdiction or superseded by a duly-enacted state or federal statute or regulation, Comcast will not be bound by such regulation, nor will the company be bound by any provision of this ordinance or the renewal certificate of approval which is declared unlawful by a court of competent jurisdiction or which is superseded by a duly-enacted state or federal statute or regulation. The Township and the company reserve the right to seek administrative or judicial review of the validity of any statute, regulation or ordinance.
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 to a condition equal to or better than the condition existing prior to the commencement of said work.
Relocation. 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, relay or relocate its equipment at the expense of the company.
Removal or trimming of trees. In the exercise of its rights and privileges under this franchise, the company shall have the authority, upon at least seven days' prior written notice to the Township, except in cases of emergency, to reasonably trim trees located upon and overhanging streets, alleys, sidewalks or other public places of the municipality 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 performed to the minimum 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 other applicable state and federal statutes and regulations. The company shall strive to meet or exceed all company and industry standards in the delivery of customer service, and the company shall provide annual written reports to the Township regarding its customer service, including a description of all written complaints received from the company's subscribers in the Township and the company's resolution of such complaints.
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.
The company shall continue to fully comply with all applicable state and federal statues and regulations regarding the availability of devices for the hearing impaired and the notification of same to customers.
The company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
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.
In addition to the requirements of Subsection A above, the company shall, upon the Township's reasonable request, provide interim customer service reports to the Township, but not more than once every four months, and the company will meet with the Township Council or other designated Township officials to review any customer service issues or other concerns within 30 days of written request from the Township or the Township Manager.
The Office of Cable Television in the Board of Public Utilities is hereby designed as the complaint officer for the municipality 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 municipality shall have the right to request copies of records and reports pertaining to complaints by municipality subscribers from the OCTV.
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 business office shall have a publicly listed toll-free telephone number and be open during standard business hours, but in no event (excepting for emergent circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
During the life of the franchise, the company shall maintain and deliver to the municipality a performance 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.
The rates of the company shall be subject to regulation as permitted by federal and state law.
The company shall continue to provide a system-wide public access channel maintained by the company. Qualified individuals and organizations may utilize public access for the purpose of cablecasting noncommercial access programming in conformance with the company's published public access rules.
The company shall continue to provide a system-wide leased access channel maintained by the company for the purpose of cablecasting commercial access programming in conformance with the company's guideline and applicable state and federal statutes and regulations.
The company shall continue to provide the Township with a dedicated local (governmental) access channel maintained by the company for use by the Township or its designee for the purpose of cablecasting noncommercial access programming in conformance with the Township's guidelines and applicable state and federal statutes and regulations.
The company shall take any steps that are necessary to ensure that the signals originated on the all access channels are carried without material degradation, and with a signal whose quality is equal to or better than that of the other standard channels that the company transmits.
The company shall continue to provide standard installation and basic cable television service on one outlet, and all other authorized existing outlets, at no cost, to each school in the municipality, public and private, elementary, intermediate and secondary. In addition, the company shall provide additional outlets, provided that the additional outlets are located in a school located within 200 feet of an 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 also be waived on all such additional outlets. Conversion of noncompany authorized outlets to company standards, including wiring, equipment and installation charges, shall be paid by the affected location, entity or school.
The company shall continue to provide standard installation and basic cable television service at no cost on one outlet each, and on all other company authorized existing outlets, at each police, fire, emergency management facility and public library in the municipality. In addition, the company shall provide additional outlets to police, fire, emergency management facility and public libraries in the municipality, provided that the additional outlets are located in a facility located within 200 feet of an 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 also be waived on all such additional outlets. Conversion of noncompany authorized outlets to company standards, including wiring, equipment and installation charges, shall be paid by the municipality.
The company shall continue to provide one free nonnetworked high-speed Internet connection and service (one outlet at each location) at all public library buildings and all public and private schools. Connections are to be located in areas accessible to student and community use, and cannot be restricted to administrative use. All facilities must be located within 200 feet of active cable plant.
The company shall continue to provide and maintain existing local access returns at the Montclair Municipal Building, presently located at 205 Claremont Avenue, and to Montclair High School located at 100 Chestnut Street.
The company shall provide an additional fiber optic local access return with transmitter, receiver and monitor outlet (monitor not provided by company) at a location designated by the Township within one year of the Township's written request. The location of said return must be within 200 feet of an active cable plant.
Within three months after the issuance of a renewal certificate of approval (COA) by the OCTV, the company shall provide to the municipality a one-time grant in the amount of $90,000 for local access-related and communication needs.
The company shall continue to make available to the Township, on an availability and scheduled basis, a mobile production vehicle for the purpose of producing noncommercial community governmental or educational access programming, consistent with the company's written rules and regulations governing the use of said vehicle. The company shall provide basic training to users of the production vehicle and will provide other technical assistance and training upon written request for local residents for the purpose of producing PEG access programming, to the same extent and on the same terms as the company offers such technical assistance and training to other municipalities.
The company shall provide the Township with a second dedicated digital local (governmental) access channel and return, for use by the Township or its designee, if and when the Township demonstrates that programming on the Township's original local access channel has reached 20 hours of unduplicated original programming per week for a period of 13 consecutive weeks (the demonstration period), exclusive of regularly scheduled statutory meetings of official municipal bodies, i.e., the Township Council, Planning Board, Zoning Board of Adjustment and Board of Education. The second digital local access channel shall be completed and operational within one year after the end of the demonstration period. Origination of the channel must be within 200 feet of active cable plant. Upon request of the Township, and at the Township's option, the second dedicated access channel may be transferred or converted to a public (P) access channel.
The company shall provide an additional grant of $75,000 in support of cable-related and communications programs, or as otherwise determined by the Township, which grant shall be payable in 15 annual installments, in the amount of $5,000 per year, with the first payment due on March 1, 2009, and each additional payment due on March 1 of each succeeding year. This grant shall be payable by the company regardless of whether the franchise granted pursuant to this ordinance is cancelled or terminated, by agreement or otherwise, or whether the franchise is superseded or nullified by virtue of any law, rule or regulation enacted subsequent to the date of this ordinance or by any other act or event which occurs after the date of this ordinance.
The company will provide no cost digital video monitor service and installation at access origination site(s) and future origination sites, if any.
The company will comply with the Emergency Alert System (EAS) rules in accordance with applicable state and federal statutes and regulations.
The company shall in no way be held liable for any injury suffered by the municipality or any 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 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 (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 amendments 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 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 ordinance or in any prior agreement is or intended to confer third-party beneficiary status on any member of the public to enforce the terms of such agreements or ordinance.
This ordinance shall take effect upon final adoption and immediately upon issuance of a renewal certificate of approval by the BPU.