[HISTORY: Adopted by the Borough Council
of the Borough of Eatontown 8-8-2012 by Ord. No. 21-2012.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded
former Ch. A362, Cable Television Franchise, adopted 10-23-2002 by
Ord. No. 23-2002.
The Borough hereby grants to Comcast of Monmouth County, 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 Borough, 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 Borough of a cable television system.
Operation and construction, pursuant to said consent is conditioned
upon prior approval of the Board Of Public Utilities.
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:
Federal law permits municipalities to require provisions
for public, educational and government access (PEG access) channels
and equipment as part of the franchise agreement. The following definitions
of "access" shall apply to this agreement:
PUBLIC ACCESSNoncommercial local programming cablecast without advertising for use by individuals in a community, usually on a first-come, first-serve basis.
EDUCATIONAL ACCESSNoncommercial local programming cablecast without advertising utilized by school systems and colleges according to local needs and the franchise.
GOVERNMENTAL ACCESSNoncommercial local programming cablecast without advertising which is reserved for governmental entities to cablecast public meetings, governmental messages and other information.
LEASED ACCESSChannel space made available by the cable operator for commercial use.
Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The committee established by Ordinance No. 10-2008 on May
14, 2008, and as amended as the ongoing Technical Advisory Committee
for the Borough of Eatontown.[1]
The company's application for renewal of municipal consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
The grantee of rights under this ordinance and known as Comcast
of Monmouth County, LLC.
The Federal Communications Commission.
The Borough of Eatontown, County of Monmouth, State of New
Jersey.
The Office of Cable Television of the Board.
Consists of the area of the municipality currently served
with the existing plant as set forth in the map annexed to the company's
application for municipal consent.
Public hearings conducted by the Borough, concerning the renewal
of municipal consent herein granted to the company were held after
proper public notice pursuant to the terms and conditions of the Act
and the regulations of the Board adopted pursuant thereto. Said hearings,
having been fully open to the public, and the Borough, having received
at said public hearings all comments regarding the qualifications
of the company to receive this renewal of municipal consent, the Borough
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 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.
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 Borough 2% of the gross revenues from all recurring charges
in the nature of subscription fees paid by subscribers for cable television
reception service or any other services that may be allowed by law
in the future in the Borough or any higher amount permitted by the
Act or otherwise allowable by law, whichever is greater.
The consent granted under this ordinance to the renewal of the
franchise shall apply to the entirety of the Borough and any property
subsequently annexed hereto.
The company shall be required to proffer service along any public
right-of-way to any person's residence or business located in all
areas of the franchise territory as described herein, at tariffed
rates for standard and nonstandard installations. Comcast's application
before the Board of Public Utilities of the State of New Jersey provides
that it will use a line extension policy ("LEP") with certain homes
in any area outside its primary service area as shown on a map included
in its application for municipal consent. Use of an LEP may result
in additional cost to potential subscribers who do not already have
cable television service available to their premises. The company
adopts a line extension policy with a density of 35 homes per mile.
A.
The company has completed an upgrade of the cable television distribution
system serving the Borough. The upgraded system is a hybrid fiber
optic/coaxial cable system following a "fiber to the node" architecture.
The upgraded system provides improved picture quality, enhanced signal
reliability and increased channel capacity.
B.
The upgrade has been completed following the company's engineering
guidelines for hybrid fiber/coaxial ("HFC") plant design, which meets
or exceeds all applicable state and federal regulations as well as
voluntary cable television industry standards and follows commonly
accepted industry practices.
C.
The company shall make every effort to deploy new or advanced technology
and/or services in the Borough that are commercially available, economically
practicable, and technically feasible. That technology shall include
but not be limited to: video-on-demand; digital video compression;
advanced or high-definition television, digital audio services; digital
television, high-speed Internet service via cable modem; and interactive
program guides.
A.
Restoration. In the event that the company or its agents shall disturb
any pavement, street surfaces, sidewalks, driveways, or other surface
in the nature 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
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.
C.
Temporary removal of cables. The company shall, upon request of the
municipality at the company's expense, temporarily raise, lower, or
remove its lines in order to facilitate the moving of buildings or
machinery or in other like circumstances. Whenever the request is
made by, for, or on behalf of private parties, the cost will be borne
by those same parties.
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 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 only to the extent necessary to maintain
proper clearance of the company's wires and cables but shall be in
accordance with and pursuant to the procedures and requirements of
any local ordinance established in the Borough of Eatontown concerning
the removal or trimming or pruning of trees by utility companies,
subject to the elimination of any permit fee required by local ordinance
as required by the New Jersey Cable Television Act, N.J.S.A. 40A:5A-30,
and as interpreted by the Board of Public Utilities in The Township
of Middletown v. Storer Cable Communications, Inc., Docket No. 843C-7058
and 795C-6468, dated November 7, 1984.
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 community upon
written request of the Borough Administrator or Clerk.
A.
The company shall continue to comply fully with all applicable state
and federal statutes and regulations regarding credits 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 effort to meet or exceed voluntary standards
for telephone accessibility developed by the National Cable Television
Association (NCTA). Those standards shall include, but not be limited
to, the goal of answering 80% of incoming telephone calls within 30
seconds.
D.
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 appropriate under law.
E.
The company is permitted, but is not required to charge a late fee
consistent with applicable state and federal statutes and regulations.
The Office of Cable Television is hereby designated as the complaint
officer for the municipality pursuant to N.J.S.A. 48:5A-26b. 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 Borough customers from the
OCTV.
A.
During the term of this franchise, and any renewal thereof, the company
shall maintain a local business office or agent for the purpose of
receiving, investigating and resolving all complaints regarding the
quality of service, equipment malfunctions and similar matters. Such
local business office shall be open during normal business hours and
in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
Telephone response for such purposes as mentioned herein will be provided
by the company's employees, representatives or agents 24 hours per
day.
B.
The telephone number and address of the local office shall be listed
in applicable telephone directories and in correspondence from the
company to the customer. The telephone number for the local office
shall utilize an exchange that is a non-toll call for Borough residents.
During the life of the franchise, the company shall give to
the municipality a 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.
A.
The company shall continue to provide system leased access channel
opportunities and provide access time to noncommercial public, governmental
and educational entities on a channel maintained by the company for
the purpose of cablecasting commercial, noncommercial public, governmental
and educational access programming in conformance with the company's
guideline and applicable state and federal statutes and regulations
and to the extent such access is provided to the Borough by this agreement.
B.
The company shall take any steps that are necessary to ensure that
the signals originated on the access channels are carried without
material degradation, and with a signal whose quality is equal to
that of the other channels that the company transmits.
C.
The company shall record up to two events per year and/or promotional
programs for the Borough of Eatontown per year upon request of the
Borough and provide the recording to the Borough for use on its access
channels. Due to the fact that the company will have to outsource
the recording and preparation of promotional programs, the Borough
will give the company at least six weeks' notice in advance of the
events to be recorded.
D.
The company shall create up to two thirty-second promotional spots
per year for local not-for-profit or other organizations as designated
by the Borough. The Borough will be solely responsible for choosing
the organization, and will give the company at least six weeks' notice
for preparation of the spots. The company shall air the spots a total
of 100 times each, run-of-schedule (ROS), over a four-week period
on its Monmouth County system.
A.
Company representatives shall appear at least once annually, upon
reasonable written request of the Borough, at a public hearing of
the governing body or before the Borough's Technical Advisory Committee,
to discuss matters pertaining to the provision of cable service to
residents of the Borough and other related issues as the Borough and
company may see fit.
B.
The company shall provide total preferred cable television service
at no cost on one outlet to each police, fire, emergency management
facility, first aid, community or senior center and public works facility
and public library in the municipality, provided the facility is located
within 200 feet of nearest active cable distribution plant. In addition,
the company shall continue to provide a free standard cable television
installation and free basic service to one instructional space in
each public and private elementary and secondary school in the Borough
and provide one drop and free basic service and Internet service on
one non-network computer at no cost to each facility to the library
and Borough museum on Broad Street, both of which are research and
learning centers. The company, however, as part of its digital upgrade
shall provide three free digital converters per public building.
C.
A one-time technology grant in the amount of $38,500 shall be paid
within 12 months of the NJ BPU approval of the franchise renewal.
In the event that the Borough determines that it is necessary
and feasible for it to contract with the company for the purpose of
providing two-way or interconnection services, the company shall be
required to apply to the BPU for approval to enter into and establish
the terms and conditions of such contract. All costs for such application
to the BPU shall be borne by the Borough.
A.
The company shall be required to fully comply with all applicable
federal and state statutes and regulations, rules and regulations
governing the implementation, operation and testing of the Emergency
Alert System (EAS).
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.
C.
The company shall not be required to allow the Borough to provide
public programming on Channel 20 unless the Borough provides the company
with six months' notice, in which case the Borough shall pay for all
equipment and labor for setting up the public programming for the
Borough.
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 $3,000,000.
All of the commitments and statements contained in the application
and any amendment thereto submitted in writing to the municipality
by the company, except as modified herein, are binding upon the company
as terms and conditions of this municipal consent. The application
and any other relevant writings submitted by the company shall be
considered a part of this ordinance and made a part hereof by reference
as long as it does not conflict with the state or federal law. All
ordinances or parts of ordinances or other agreements between the
Borough and the company that are in conflict with the provisions of
this agreement are hereby declared invalid and superseded.
Should the Borough 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 parties may consider modifying the
terms and conditions of this ordinance to take into consideration
the difference in burden or terms but such modification shall require
the consent of both parties and a formal petition for approval to
the Board pursuant to N.J.S.A. 48:5A-47 and 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.
[Amended 2-22-2023 by Ord. No. 08-2023]
A.
The Borough has dissolved the Technical Advisory Committee under
Ordinance No. 08-2023 and the duties of the Technical Advisory Committee
as it relates to the previous Cable Television Advisory Committee
will now rest with the Business Administrator. The Business Administrator
shall perform the following services related to this Cable Television
Franchise Ordinance and cable services in general:
(1)
Make recommendations to the governing body.
(2)
Develop understanding of cable issues.
(3)
Analyze which services can be required of the company.
(4)
Evaluate the cable operations, reliability and performance.
(5)
Ascertain community needs.
(6)
Establish a dialog with the company.
(7)
Participate in the franchise negotiations.
