[HISTORY: Adopted by the Township Committee of the Township of Hillside 3-27-2007. Amendments noted where applicable.]
Editor's Note: This ordinance also replaced former Ch. A390, Cable Television Franchise, adopted 3-3-1992, which had approved a franchise agreement set to expire in 2007.
The Township of Hillside hereby grants to Comcast renewal of its nonexclusive municipal consent to place in, upon, along, 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 Township of a cable television and communications system. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
For the purposes 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.
- CITY, MUNICIPALITY or TOWNSHIP
- The Township of Hillside, County of Union, State of New Jersey.
- The grantee of rights under this ordinance and is known as Comcast of New Jersey II, LLC.
- 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.
A public hearing conducted by the municipality, concerning the renewal of municipal consent 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 and fully open to the public, and the municipality, having received at said public 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 and construction arrangements are adequate and feasible.
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.
In the event that the municipality shall find that the company has not substantially complied with the material terms and conditions of this ordinance, or for any other lawful reason provided for under state or federal statute, rule or regulation, 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 municipality 2% 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 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 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 lawful rules and regulations governing the operation of its cable television system and cable communications system within the Township of Hillside. If any referenced regulations are deemed unlawful by a court of competent jurisdiction or superseded by a duly enacted state or federal statute or regulation, neither Comcast nor the Township will be bound by such regulation, nor will Comcast or the Township be bound by any provision of the municipal consent ordinance or renewal certificate of approval with regard to same. Both Comcast and the Township 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 surfaces in the natural topography, the company shall provide notice thereof to the Township and shall, at its sole expense, promptly restore and replace, to the reasonable satisfaction of the Township, such places or things so disturbed in as good a condition as existed 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, re-lay or relocate its equipment, at the expense of the company.
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 cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance of the company's wire and cables.
Temporary removal of cables: The company shall temporarily move or remove appropriate parts of its facilities to allow for moving of buildings and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the Township of Hillside, in which case the Company shall bear the cost.
The owner of any affected property shall be promptly and justly compensated by the company for any damages caused by the company's installation, construction, operation, or removal of the company's cable facilities.
At all times in which any of the actions set forth in this section shall take place, the company shall ensure that the safety, functioning and appearance of the property and the convenience and the safety of other persons will not be adversely affected by the installation or construction of the company's cable system facilities.
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 Municipal Administrator or Clerk.
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 statutes 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.
The Office of Cable Television is hereby designated 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 customers 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 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. Upon or before the effective date of this renewal of consent, the company shall provide to the Township, in writing, the local office's street and mailing address and telephone number if said office is different than that contained in the company's application, and the company shall provide prompt written notice to the Township of any change of address or telephone number for the local office during the term of this franchise.
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.
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 guidelines and applicable state and federal statutes and regulations.
The company shall continue to provide a dedicated local access channel maintained by the company for the purpose of cablecasting noncommercial access programming in conformance with the company'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 access channels are carried without material degradation, and with a signal whose quality is equal to that of the other standard channels that the company transmits.
The company shall provide standard installation and basic cable television service on one outlet at no cost to each school building in the municipality, including the office of the Board of Education, public and private, elementary, intermediate and secondary, provided the school building is within 200 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.
The company shall provide standard installation and basic cable television service at no cost on one outlet to each police, fire, emergency management and public works facility, public library building, community center facility and municipally sponsored senior citizens' facility in the municipality, provided the facility is located within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor basis by the facility. Monthly service charges shall be waived on all additional outlets.
The company shall provide standard installation and one free nonnetworked Internet connection and service via high-speed cable modem in each qualified existing and future public library building, 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.
Within six months of the issuance of a renewal certificate of approval (COA) by the BPU, the company shall provide to the municipality a one-time grant for cable-related needs in the amount of $45,000.
The company shall continue to maintain two fiber-optic return lines for the dedicated access channel. Returns are currently located at the Hillside Municipal Building and at Hillside High School.
Should the company implement in other New Jersey municipalities a discount or reduced rate program for senior citizens, disabled persons or other eligible individuals as provided for in N.J.S.A. 48:5A-11.1 and 48:5A-11.2, then the eligible subscribers within the Township of Hillside shall be immediately provided the same level of such benefits as the eligible subscribers in the other New Jersey municipalities. Such subscribers must meet the applicable age, income and residence requirements of the Pharmaceutical Assistance to Aged and Disabled program (P.A.A.D.) pursuant to N.J.S.A. 30:4D-20 et seq.
The company will comply with the emergency alert system (EAS) rules in accordance with applicable state and federal statues and regulations.
The company shall in no way be held liable by the Township for any injury suffered by the municipality 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 during the term of this consent maintain and keep in full force and effect at its sole expense a comprehensive general liability insurance policy naming the Township of Hillside as an insured and insuring against loss by any such claim, suit, judgment, execution or demand 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, maintenance, repair, relocation, removal, demolition and operation of the cable television system, and an excess liability (or "umbrella") policy in the amount of $5,000,000.
All of the statements, promises, covenants, warranties, representations, provisions and commitments of any kind whatsoever contained in the application or annexed thereto or incorporated therein, and any amendment thereto submitted in writing to the Township by the company, except as modified or contradicted by this chapter, are incorporated herein and 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 this ordinance or 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 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.
This ordinance shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.