[HISTORY: Adopted by the Borough Council of the Borough of Bay Head 12-21-2004
by Ord. No. 2004-14. Amendments noted where applicable.]
For the purpose of this ordinance, the terms below shall have the following
meanings:
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.
Comcast's Application for Renewal of Municipal Consent, which
application is on file in the Municipal 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 Borough of Bay Head in the County of Ocean and the State of New
Jersey.
Comcast of Ocean County, Inc. ("Comcast") the grantee of rights under
this ordinance.
The Federal Communications Commission.
The federal statute relating to cable communications commonly known
as the "Cable Communications Policy Act of 1984," 47 U.S.C. Section 521 et
seq. and the "Telecommunications Act of 1996," or as those statutes may be
amended.
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.
The State of New Jersey.
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 Comcast was
held after proper public notice pursuant to the terms and conditions of the
Act. This hearing having been held and fully open to the public, and the municipality
having received all comments regarding the qualifications of Comcast to receive
this consent, the Borough hereby finds Comcast possesses the necessary legal,
technical, character, financial and other qualifications to support municipal
consent, and that Comcast's operating and construction arrangements are
adequate and feasible.
The Borough hereby grants to Comcast 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 Borough
of a cable television system, and for the provision of any communication service
over the such system as may be authorized by federal or state regulatory agencies.
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.
If Comcast 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. The Company shall also petition the Board for approval authorizing
continued operation during the period following expiration of the consent
granted herein, and until such a time that a decision is made by the Borough
and the Board relative to the renewal of said consent.
The consent granted under this ordinance to Comcast shall apply to the
entirety of the Borough and any property hereafter annexed.
[Amended 3-7-2006 by Ord. No. 2006-4[1]]
Comcast 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
Comcast's application. Any extension of plant beyond the primary service area
shall be governed by Comcast's Line Extension Policy, as set forth in Comcast's
application.
Pursuant to the terms and conditions of the Cable Television Act, Comcast
shall pay to the Borough, as an annual franchise fee, a sum equal to 2% of
the actual gross revenues received from all recurring charges in the nature
of subscription fees paid by subscribers for its cable television reception
services in the Borough. In the event that applicable state and federal law
hereinafter changes to permit a higher franchise fee to be collected, but
does not fix the amount thereof, or changes to allow the inclusion of Internet
revenues in the franchise fee payment authorized under applicable cable television
law, then the Borough and Comcast shall negotiate in good faith with respect
to the amount thereof.
[Amended 3-7-2006 by Ord. No. 2006-4]
A.Â
Comcast shall, upon written request, provide free of charge,
one standard installation and monthly cable television reception service to
all state or locally accredited public, elementary and secondary schools and
all municipal public libraries, as well as municipal buildings, used for municipal
and governmental purposes, located within the Borough.
B.Â
Comcast shall also provide, upon written request, free of charge,
one high-speed cable modem and monthly internet access service, including
a standard installation, to each state or locally accredited elementary and
secondary public and private school and the municipal public library within
the Borough.
C.Â
Comcast will provide a one-time $15,000 technology grant.
Comcast 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 plant and facilities in the Borough:
A.Â
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.
B.Â
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 Borough, shall remove
or relocate its equipment, at its own expense.
C.Â
Upon request of a person holding a building or moving
permit issued by the Borough, 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.
D.Â
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 Borough 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.
E.Â
Comcast agrees that the capabilities of the cable system
shall be maintained technologically current throughout the duration of the
franchise, as compared with other communities served by Comcast, to the extent
economically reasonable and commercially practicable. Comcast further agrees
that it will exercise reasonable efforts to deploy the same or comparable
cable services in the Borough that are provided to other similarly situated
communities operated by Comcast in Ocean County, on other than a trial or
test basis; provided, however, this obligation shall apply only to comparisons
with other communities whose cable system has the same technical capabilities
to offer such cable services as the system operated in the Borough, including,
but not limited to, the system's band width capacity, physical architecture.
and network construction; and, further provided that this requirement shall
be subject to Comcast's reasonable right to consider the commercial practicality
of providing such cable service in the Borough, including its ability to obtain
a reasonable rate of return on investment over the remaining term of the Consent.
Comcast shall comply with the technical and customer service standards
established for the cable industry under applicable federal and state laws,
rules and regulations.
Comcast 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. The 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 1 exception of holidays.
The Office of Cable Television is hereby designated as the complaint
officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26, and
any complaints by local subscribers to cable television reception or service
shall be filed directly with said office. All complaints shall be reviewed
and processed in accordance with N.J.A. C. 14:17-6.5.
Comcast 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 Borough 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 herein.
Comcast 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. The bond shall be to insure the faithful performance of its obligations
as provided in this franchise.
[Amended 3-7-2006 by Ord. No. 2006-4]
The rates of Comcast for cable television services shall be subject
to regulation to the extent permitted by federal and state law.
[Amended 3-7-2006 by Ord. No. 2006-4]
A.Â
Comcast will comply with the Emergency Alert System (EAS) rules
in accordance with applicable state and federal statutes and regulations.
B.Â
Comcast 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.
[Amended 3-7-2006 by Ord. No. 2006-4]
Should the municipality 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, Comcast 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.
[1]
Editor's Note: Former § A237-20, Removal of facilities,
was repealed 3-7-2006 by Ord. No. 2006-4.
[1]
Editor's Note: Former § A237-21, Public educational and
governmental access, was repealed 3-7-2006 by Ord. No. 2006-4.
All of the commitments contained in the application and any amendment
thereto submitted in writing to the Borough by the Company, except as modified
herein, are binding upon Comcast as terms and conditions of this consent.
The application and any other written amendments thereto submitted by Comcast
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.
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.
This ordinance shall become effective immediately upon its final passage
and publication as required by law.
