[HISTORY: Adopted by the Mayor and Council of the Borough of South River 2-12-2001 by Ord. No. 2001-5. Amendments noted where applicable.]
Editor's Note This ordinance also superseded former Ch. A247, Cable Television Franchise, adopted 12-18-1991 by Ord. No. 1991-40.
The Borough hereby grants to Comcast Cablevision of New Jersey, Inc., 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 and communications system.
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. Such meaning or definition of terms is supplemental to those definitions of the Federal Communications Commission (FCC) rules and regulations, 47 CFR 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:
- MUNICIPALITY or BOROUGH
- The Borough of South River, County of Middlesex, State of New Jersey.
- The grantee of rights under this ordinance and is known as "Comcast Cablevision of New Jersey, Inc."
- 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 Federal Communications Commission.
- BOARD or BPU
- The Board of Public Utilities, State of New Jersey.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
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 opened 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.
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. Said consent is subject to an automatic renewal of term of 10 years in accordance with the procedures set forth in N.J.S.A. 48:5A-19 and N.J.A.C. 14:18-3.6 et seq.
The performance of Comcast Cablevision of New Jersey shall be reviewable by the Borough by the end of the fifth, 10th, and 15th years of the initial consent term and the fifth year of the automatic renewal. During the periods beginning on the fourth, ninth, and 14th anniversaries of the initial consent, and the fourth anniversary of the automatic renewal, the company shall write to the Borough advising the Borough of its rights to review the company's performance under this ordinance, shall present such reasonable and pertinent information as the Borough may request and shall appear upon request before a meeting of the Borough Council to answer questions about the operations of the company and its performance. Any review process shall be completed within six months of the initiating letter sent by Comcast. Upon expiration of the six-month period without a determination that the municipal consent be revoked, the consent shall continue in full force and effect.
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 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. Any such finding shall contain a full statement of the reasons for revocation and shall be forwarded to the State Office of Cable Television for proceedings in accordance with state law.
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 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.
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.
The upgrade has been completed following the company's engineering guidelines for hybrid fiber/coaxial (HFC) plant design, which meets or exceed all applicable state and federal regulations as well as voluntary cable television industry standards and follows commonly accepted industry practices.
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 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, relay or relocate its equipment, at the expense of the company.
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.
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 wires and cables.
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.
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.
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 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 90% of incoming telephone calls within 30 seconds.
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.
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.
During the term of this franchise, and any renewal thereof, the company shall maintain a local business or agent within the Borough limits 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. Telephone response for such purposes as mentioned herein will be provided by the company's employees, representatives or agents 24 hours per day.
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 nontoll 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.
The company shall continue to provide residents with system-wide public access opportunities on a 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 system-wide leased or commercial access channel opportunities on a 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 three dedicated public, educational, and government access channels as set forth in its application. The company agrees to a total of two relocations of the wiring and modulator for these channels on request of and at no cost to the Borough, provided such relocation can be accomplished without significant cost or technical difficulty.
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.
The company agrees to respond to public, educational and governmental access channel problems within 48 hours of notification of the problem, provided that there are no other simultaneous system problems of a higher priority.
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 Cable Television 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.
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.
Pole rental and electricity charges. The company agrees to a base 10% increase in pole rental and electricity charges, and in rental of space on the water tower, on January 1 of the first calendar year after issuance of a certificate of approval (COA) by the Board of Public Utilities, with subsequent annual increases on January first for the length of the franchise tied to the consumer price index (with a cap of 5% in any one year), as long as the Borough remains the owner of the poles and provider of electricity within its borders.
The company will provide a one-time access support grant in the amount of $60,000 no later than 12 months of the issuance of a certificate of approval by the Board of Public Utilities. In addition, the company will provide a camera and equipment package worth $25,000 or its equivalent no later than 12 months of the issuance of a certificate of approval by the Board of Public Utilities.
The company will videotape up to two events per year upon request of the Borough and provide the tape to the Borough for use on its access channels. The Borough will give the company at least four weeks' notice in advance of the events to be taped.
The company shall continue to provide a free standard installation and free monthly basic service to one location in each municipal building, including the Borough Hall; all libraries, fire, first aid, and police departments; public works buildings; and municipally owned community and senior centers. The company does hereby realize that the South River Municipal Building is currently being renovated and the company does hereby agree at no cost to the Borough to provide the necessary free cable installations and transfer with respect to said building.
The company shall continue to provide a free standard installation and free monthly basic service to each public and private elementary, middle, and secondary school in the Borough.
Residents of the Borough wishing to subscribe to Internet service offered through the company shall not be required to purchase cable TV service in order to do so.
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.
The company shall be required to fully comply with all applicable federal and state statutes, rules and regulations governing the implementation, operation and testing of the Emergency Alert System (EAS).
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.
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 damage 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 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 that the terms contained herein, the company may substitute such language that is more favorable or less burdensome for the comparable provision of this ordinance subject to the provisions of 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 this ordinance.
This ordinance shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.