[HISTORY: Adopted by the Township Council of the Township of West Windsor 12-16-2019 by Ord. No. 2019-38. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. 59, Cable Television Franchise, adopted 9-9-2002 by Ord. No. 2002-17.
The Township hereby grants to Comcast of Central New Jersey, LLC (hereafter "Comcast") 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 Township of West Windsor, 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 system and cable communications system.
For the purpose of this chapter, 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 CFR 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 "Cable Act" shall refer to Title VI of the U.S. Communications Act of 1934, as amended.
- 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.
- COMPANY or COMCAST
- The grantee of rights under this chapter and is known as "Comcast of Central New Jersey."
- The Federal Communications Commission, or successor governmental entity.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- PRIMARY SERVICE AREA or PSA
- Consists of the area of the Township currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
- The Township of West Windsor, County of Mercer, State of New Jersey.
Public hearings conducted by the Township concerning the renewal of municipal consent herein granted to the company, were held during regularly scheduled public meetings of the Township Council between December of 2016 and March of 2017, 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 Township, having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal consent, the Township 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 Township shall find that the company has not substantially complied with the material terms and conditions of this chapter, the Township 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 Township 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, N.J.S.A. 48:5A-30, 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. The current fee is 3.5% of the company's gross revenues, as defined under N.J.S.A. 48:5A-3x, pursuant to N.J.S.A. 48:5A-30d.
The consent granted under this chapter for the renewal of the franchise shall apply to the entirety of the Township 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.
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 in as reasonably comparable to the condition as existed prior to the commencement of said work. Any restoration shall commence as expeditiously as practical, but in no event shall restoration be commenced more than 30 calendar days after written notice is issued to the company by the Township.
Relocation. If at any time during the period of this consent, the Township shall undertake or approve the construction of any sanitary sewer or storm drainage line or other street improvement project (including, without limitation, installation of traffic signals, streetlights, road improvements including widening, sidewalks and pedestrian amenities wherein the facility so constructed or approved is or shall become, by gift, transfer, dedication or otherwise, a public facility owned, maintained or operated by the Township), the company, upon reasonable notice by the Township, but no less than 90 business days, shall remove, re-lay or relocate its equipment, at the expense of the company prior to approval of the Board. If public funds are available to any other user of the public way for the purpose of defraying the cost of any of the foregoing, the Township shall notify the company of such funding and make available such funds to 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 Township 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 wire and cables.
Temporary removal of cables. The company shall, upon request of the Township, 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, subject to the prior approval of the Board. Whenever a request for the temporary removal of cables is made by, for, or on behalf of private parties, the cost of temporary removal shall be borne by those same parties.
Installation of equipment. The company shall install equipment in the same location and manner as existing public utilities whenever practicable, in order to minimize the impact of same on surrounding property. [N.J.A.C. 14:18-2.3(a)].
Traffic control. For all work performed by or on behalf of the company in the streets or public rights-of-way which may disturb the normal flow of vehicular or pedestrian traffic, the company shall comply with all state and generally applicable local traffic safety regulations.
Minimum interference. The company shall make reasonable efforts to protect the public and its property from injury or damage and shall execute due care to reduce hazards to which employees, customers or the general public may be subjected by reasons of its equipment or facilities [N.J.A.C. 14:18-2.1(c)].
Emergency notification. The company shall provide the Township's Business Administrator with a twenty-four-hour emergency telephone number at which a representative of the company (not electronic voice mail or a recording) can be accessed in the event of an emergency.
Right of inspection. The company shall be responsible to ensure and be prepared to show, on request by an authorized representative of the Office, that the cable system complies with the applicable rules and regulations of Part 76, Subpart K of Title 47 CFR 76.601 through 76.617, as amended. The rights and obligations of the Township and Comcast under this section shall at all times be subject to applicable federal law and FCC regulation.
Notice of construction to Township. In accordance with N.J.A.C. 14:18-2.1 et seq., if at any time for the duration of municipal consent the company proposes to rebuild significant portions of the existing plant, and/or proposes to build significant areas of new plant, the company shall file with the Board a schedule for the construction of its facilities and provide the Township a copy thereof upon request.
Temporary hookups. Absent good cause shown, the company shall not maintain and place any temporary installations for a period that exceeds 30 calendar days, weather permitting.
Company subject to federal, state and local laws. The company is subject to and shall be governed by all lawful and applicable provisions of federal and state laws and regulations. This franchise is further subject to all generally applicable ordinances and resolutions of the Township in the exercise of its inherent police powers. Without waiving any of its rights, the Township agrees that, to the extent any term of this municipal consent is inconsistent with the terms of any Township ordinance existing prior or subsequent to the effective date, this municipal consent shall control.
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 Township upon written request of the Township 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, as required by N.J.A.C. 14:18-3.18(a)(4).
In providing cable 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 as noted below. Those standards include, but are not limited to, the goal of answering 90% of incoming telephone calls within 30 seconds.
Upon written request the company shall provide the Township with annual reports regarding customer service that it is required to provide to the BPU. These reports shall be submitted simultaneously with annual payment of the franchise fee, pursuant to § 59-5 of this chapter. In providing such information to the Township, it shall not be compelled to violate the privacy provisions under Section 631 of the Cable Act or applicable federal law.
Comcast shall provide the Township with contact information in the event of an emergency involving the operation of an EG channel.
Nothing herein shall impair the right of any subscriber or the Township 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 Township 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 Township shall have the right to request copies of records and reports pertaining to complaints by Township 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.
During the life of the franchise, the company shall give to the Township a bond in the amount of $25,000. Such bond shall be to ensure the faithful performance of all undertakings of the company as represented in its application for municipal consent incorporated herein. The Township may request a higher performance bond than the $25,000 required by the Act by establishing a need, which normally is found to exist in the event that the company will be engaging in significant construction within the public right-of-way to accommodate new or updated equipment. A request for an increased performance bond is subject to review and approval by the Board. At the request of the Township, the company shall provide updated information pertaining to the performance bond on an annual basis.
The rates of the company shall be subject to regulation as permitted by federal and state law.
The company shall provide expanded basic or a similar tier of cable television service to one outlet to each qualified existing and future school in the Township, public and private, elementary, intermediate and secondary, provided that the school building is within 200 feet of active cable distribution plant or through customer owned conduit. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the school requesting service.
The company shall provide expanded basic or a similar tier of cable television service to one outlet to every Township building listed in Exhibit A and each qualified existing and future municipal building, police, fire, emergency management facility and public library in the Township, provided that the facility is located within 200 feet of active cable distribution plant or through customer owned conduit. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the Township.
Editor's Note: Exhibit A is included as an attachment to this chapter.
Within six months of the issuance of a renewal certificate of approval by the BPU, the company shall provide to the Township a one-time PEG access capital grant in the amount of $75,000 to meet the PEG access capital needs of the community.
The Communications Act of 1934, as amended [47 U.S.C. § 543 (b)], allows the company to itemize and/or identify: 1) the amount on the subscriber bill assessed as a franchise fee and the identity of the governmental authority to which the fee is paid; 2) the amount on the bill assessed to satisfy any requirements imposed on the company by the cable franchise to support public, education, and/or governmental access channels or the use of such channels; and 3) any grants or other fees on the bill or any tax, assessment, or charge of any kind imposed by any governmental authority on the transaction between the operator and the subscriber. The company reserves its external cost, pass-through rights to the full extent permitted by law, including the services set forth in Subsections A and B, above which may be recovered at the fair market value as a pass-through in addition to the franchise fee of 4.0% provided herein.
The company will continue to provide one channel for government and educational access. The channel will be on the expanded basic or similar tier of service offered by the company in accordance with the Cable Act, Section 611 [47 U.S.C. § 531], and as further set forth below.
The company does not relinquish its ownership of or ultimate right of control over a channel by designating it for EG use. An EG access user, whether an educational or government user, acquires no property or other interest by virtue of the use of a channel so designated and may not rely on the continued use of a particular channel number, no matter how long the same channel may have been designated for such use.
The company shall not exercise editorial control over the use of any educational or governmental channel capacity, except the company may refuse to transmit any educational or governmental access program or portion of any public or governmental access program that contains obscenity, indecency, or nudity.
Educational access. "Educational access" shall mean noncommercial use by educational institutions such as public or private schools, but not home schools, community colleges and/or universities.
Government access. "Government access" shall mean noncommercial use by the governing bodies of the Township for the purpose of showing the public local government at work.
Fallow time. Because blank or underutilized PG channels are not in the public interest, in the event the Township or other EG access users elect not to fully program the PG access channel, the company may program unused time on those channels subject to reclamation by the Township upon no less than 60 calendar days' written notice.
Signal quality. 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.
Dedicated channel for EG channels. The company shall continue carry the educational and governmental access programming on the channel numbers currently assigned to them. Notwithstanding and pursuant to § 59-15B hereinabove, if the company decides to change the channel designation for any of the EG access channels, it must provide at least 30 days' prior written notice to the Township.
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 Township or any other person during an emergency if for any reason the Township is unable to make full use of the cable television system as contemplated herein.
The company agrees to maintain and keep in full force and effect at its sole expense at all times during the term of this consent, sufficient liability insurance naming the Township as an insured, and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts 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 $5,000,000.
The company agrees to provide the Township with adequate notice of a change in or cancellation of its liability insurance policy. The company further agrees to resubmit proof of insurance coverage upon request.
All of the statements and commitments contained in the application or annexed thereto and incorporated therein, and any amendment thereto, except as modified herein, are binding upon the company as terms and conditions of this municipal consent. The application and other relevant writings submitted by the company shall be annexed hereto and made a part hereof by reference, provided that same do not conflict with application of state or federal law.
Should the Township grant municipal consent for 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 company may substitute such language that is more favorable or less burdensome for the comparable provision of this chapter subject to the provisions of N.J.A.C. 14:17-6.7, including the provision of copy of an agreement between the Township and the petitioner to the Board stating that the changes are acceptable. The company agrees to simultaneously provide a courtesy copy of the petition to the Township Business Administrator in the event that it files such a request with the BPU under this section of the consent agreement.
If any section, subsection, sentence, clause, phrase or portion of this chapter 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 chapter.
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 chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.