[HISTORY: Adopted by the City Council of the City of Passaic 3-9-2010 by Ord. No. 1824-10. Amendments noted where applicable.]
Editor's Note: This ordinance superseded former Ch. A321, Cable Television Franchise, adopted 5-4-2000 by Ord. No. 1486-00.
For the purpose of this ordinance, the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
- ACT or CABLE TELEVISION ACT
- That statute of the State of New Jersey relating to cable television, known as the Cable Television Act, N.J.S.A. 48:5A-1 et seq.
- Cablevision's application for renewal of municipal consent, which application is on file in the City Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The governing body of the City of Passaic in the County of Passaic, and the State of New Jersey.
- Cablevision of Oakland, LLC ("Cablevision"), the grantee of rights under this ordinance.
- The Federal Communications Commission.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521 et seq., and the Telecommunications Act of 1996, or as those statutes may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television services, 47 CFR 76.1 et seq. (and, to the extent applicable, any other federal rules and regulations relating to cable television, including but not limited to those described in 47 CFR 76.3), or as such regulations may be amended.
- STANDARD INSTALLATION
- The installation of drop cable to a customer's premises where the distance from the point of entry into the building being served is less than 150 feet from the active cable television system plant.
- The State of New Jersey.
- STATE REGULATIONS
- Those regulations of the State of New Jersey Board of Public Utilities relating to cable television, N.J.A.C. 14:17-1.1 et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
A public hearing concerning the consent herein granted to Cablevision was held after proper public notice pursuant to the terms and conditions of the Act. Said hearing having been held and fully open to the public, and the municipality having received all comments regarding the qualifications of Cablevision to receive this consent, the City hereby finds Cablevision possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent, and that Cablevision's operating and construction arrangements are adequate and feasible.
The City hereby grants to Cablevision its nonexclusive consent to place in, upon, along, across, above, over and under its highways, streets, alleys, sidewalks, public ways and public places in the municipality poles, wires, cables, and fixtures necessary for the maintenance and operation in the City of a cable television system or other communications facility, and for the provision of any communication service over such facilities. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive and shall be for a term of 15 years from the date of issuance of a certificate of approval 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, 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 notification.
If Cablevision seeks successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with N.J.S.A 48:5A-16, and applicable state and federal rules and regulations. In accordance with N.J.S.A. 48:5A-25.1, both the City and Cablevision shall be bound by the terms of this municipal consent until such time as Cablevision converts the municipal consent (and any certificate of approval) into a system-wide franchise.
The consent granted under this ordinance to Cablevision shall apply to the entirety of the City and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along any public right-of-way to any person's residence located in the franchise territory at Cablevision's schedule of rates for standard and nonstandard installation, in accordance with applicable law and regulations.
Cablevision shall pay to the City an annual franchise fee calculated in accordance with N.J.S.A. 48:5A-30d. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the City and Cablevision shall negotiate in good faith with respect to the amount thereof; provided, however, that nothing herein shall be construed to permit the City to require payment of a franchise fee by Cablevision that is higher than the fee paid by all other cable television service providers offering service in the municipality.
Cablevision shall, upon written request, provide free of charge one standard installation and monthly cable television reception service to all state or locally accredited public schools and all municipal public libraries, as well as municipal buildings located within the City as set forth in Exhibit A to this ordinance.
Editor's Note: Exhibit A is included at the end of this chapter.
Cablevision shall, upon written request, provide without charge basic cable modem service to state and local accredited elementary and secondary schools and municipal public libraries in the municipality as follows: one standard installation per school or library campus; one cable modem per installation; and cable modem service for the term of this agreement for each installation, subject to the terms, conditions and use policies of the provider of the cable modem service, as those policies may exist from time to time.
Cablevision shall, upon written request, provide without charge basic cable modem service to one municipal location within the City as follows: one cable modem, and cable modem service for the term of this agreement, subject to the terms, conditions and use policies of the provider of the cable modem service, as those policies may exist from time to time.
Cablevision shall perform construction and installation of its plant and facilities in accordance with applicable state and federal law. The company shall be subject to the following additional construction requirements with respect to the installation of its cable plant and facilities in the City:
In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces, the company shall at its sole expense restore and replace such disturbances in as good a condition as existed prior to the commencement of said work.
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 City, shall remove or relocate its equipment at its own expense.
Upon request of a person holding a building or moving permit issued by the City, the company shall temporarily move or remove appropriate parts of its facilities so as to permit the moving or erection of buildings or for the performance of other work. The expense of any such temporary removal or relocation shall be paid in advance to the company by the person requesting the same. In such cases, the company shall be given not less than 14 days' prior written notice in order to arrange for the changes required.
During the exercise of its rights and privileges under this consent, the company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and fixtures of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities.
In providing services to its customers, the company shall comply with N.J.A.C. 14:18-1.1 et seq. and all applicable state and federal statutes and regulations. The company shall strive to meet or exceed all federal and state law and regulation related to 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 notifications 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.
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.
Cablevision shall establish and maintain during the entire term of this consent a local area business office or agent for the purpose of receiving, investigating and resolving complaints regarding the quality of service, equipment malfunctions and similar matters. Said office shall be open daily during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, with the exception of holidays.
The Office of Cable Television is hereby designated as the complaint officer for the City pursuant to the provisions of N.J.S.A. 48:5A-26. All complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect, at its sole cost, at all times during the term of this consent, sufficient liability insurance naming the City as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $500,000 for bodily injury or death to one person, and $1,000,000 for bodily injury or death resulting from any one accident or occurrence stemming from or arising out of the company's exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this agreement, a bond to the municipality in the amount of $25,000. Such bond shall be to insure the faithful performance of its obligations as provided in this franchise.
The rates of the company for cable television services shall be subject to regulation to the extent permitted by federal and state law.
Cablevision shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the City pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the City 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 City shall utilize the state-approved procedures for such emergency uses.
In the event that the service of another multichannel video program provider not subject to the City's regulatory authority within the City creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the City lawful amendments to its franchise that relieve it of burdens which create the unfair competitive situation. Should the company seek such amendments to its franchise, the parties agree to negotiate in good faith appropriate changes to the franchise in order to relieve the company of such competitive disadvantages. If the parties can reach an agreement on such terms, the City agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the City acknowledges that the company shall have the right to petition the Board directly for such amendments in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, that the City shall be under no obligation to support Cablevision's request for such relief from the Board.
In any subsequent municipal consent, the City shall require, at a minimum, the same terms and conditions of any other provider of multichannel video programming subject to the City's regulatory authority as those contained in the instant consent. In the event such subsequent consent does not contain the same terms and conditions as the instant consent, the City agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 to relieve the company of competitive disadvantages identified in the company's petition.
Upon expiration, termination or revocation of this ordinance, Cablevision, at its sole cost and expense and upon direction of the Board, shall remove the cables and appurtenant devices constructed or maintained in connection with the cable services authorized herein, unless Cablevision, its affiliated entities or assignees should, within six months after such expiration, termination or revocation, obtain certification from the FCC to operate an open video system or any other federal or state certification to provide telecommunications.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access services available to the residents of the City as described in the application for municipal consent. All Cablevision support for PEG access shall be for the exclusive benefit of Cablevision's subscribers.
The City agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming, during times when the City is not utilizing the channel for purposes of providing PEG access programming. In the event that the company uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use and the company's rights with respect to using the channel for non-PEG programming shall be subordinate to the City's provision of PEG access programming on such channel.
Cablevision shall have discretion to determine the format and method of transmission of the PEG access programming provided for in this § A321-20.
In consideration for the rights granted in this ordinance, the company shall provide the City with an initial grant of $10,000. Such amount shall be paid to the City following the grant of the certificate from the Board. In addition, in the second year of the municipal consent Cablevision shall pay a grant to the City in the amount of $10,000. In the third year and each of the following years of the term of the ordinance through year 15 of the consent, the company shall pay an "annual grant" of $5,000 to the City. The annual grant shall be payable to the City within 30 days of the payment of the annual franchise fee.
The City agrees that all amounts provided pursuant to Subsection D shall be used for the exclusive benefit of Cablevision customers in the City and for the support of PEG access programming, such as the purchase and/or rental of PEG access equipment and facilities and as the City deems appropriate, provided that: a) such uses are lawful and consistent with the terms of this ordinance; and b) if used to purchase communications services, the City shall seek to purchase such services from the company or its affiliates, if offered. On request, the City shall provide Cablevision with a certification of compliance with this subsection.
The company shall have no further obligation to provide any PEG grant payments due and payable after the date upon which the company converts the municipal consent granted herein to a system-wide franchise in accordance with N.J.S.A. 48:5A-25.1.
All of the commitments contained in the application and any amendment thereto submitted in writing to the City by the company, except as modified herein, are binding upon Cablevision as terms and conditions of this consent. The application and any other written amendments thereto submitted by Cablevision in connection with this consent are incorporated in this ordinance by reference and made a part hereof, except as specifically modified, changed, limited or altered by this ordinance, or to the extent that they conflict with state or federal law.
This consent shall be construed in a manner consistent with all applicable federal, state and local laws, as such laws, rules and regulations may be amended from time to time.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portion thereof.
Notices required under this ordinance shall be in writing and shall be mailed, first class, postage prepaid, to the addresses below. Either party may change the place where notice is to be given by providing such change in writing at least 30 days prior to the time such change becomes effective. The time to respond to notices under this ordinance shall run from receipt of such written notice.
This ordinance shall take effect upon issuance of a certificate of approval as issued by the Board of Public Utilities that incorporates the material terms of this ordinance. Nothing herein shall alter the right of the company to seek modification of this ordinance in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
The company shall cooperate and fully implement the program to be established by the State Treasurer in accordance with N.J.S.A. 48:5A-30 for the provisions of reduced cable television rates to those eligible for the Pharmaceutical Assistance to the Aged and Disabled.