[HISTORY: Adopted by the Mayor and Council of the Borough of Hopatcong 4-3-2002 by Ord. No. 7-2002; amended in its entirety 12-5-2012 by Ord. No. 25-2012. Subseqent amendments noted where applicable.]
This ordinance shall be known and may be cited as the "Cablevision of Morris Franchise Ordinance."
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein:
- 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 Borough 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 Borough of Hopatcong in the County of Sussex, and the State of New Jersey.
- Cablevision of Morris, 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 C.F.R. 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 C.F.R. 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 Borough hereby finds that 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 Borough 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 Borough 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 10 years from the date of issuance of a certificate of approval by the Board.
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 Borough 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 Borough 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 within the portion of the franchise territory, as described in the application for municipal consent, at Cablevision's schedule of rates for standard and nonstandard installation.
Cablevision shall extend service along any public right-of-way outside its service area to those residences within the franchise territory which are located in areas that have a residential density of 25 homes per mile or greater, or areas with less than 25 homes per mile where residents agree to share the costs of such extension in accordance with the line extension formula as provided by the company in its application for municipal consent.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision 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 applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Borough and Cablevision shall negotiate in good faith with respect to the amount thereof; provided, however, that nothing herein shall be construed to permit the Borough 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 Borough as set forth herein.
Upon written request from the Borough, the company shall provide to state and locally accredited elementary and secondary schools and municipal public libraries in the Borough, without charge, the following: 1) one standard installation per school or library; 2) one cable modem per installation; and 3) basic cable modem service for the term of this ordinance for each installation. This offer shall be subject to the terms, conditions and use policies of the company, as those policies may exist from time to time.
Upon written request from the Borough, the company shall provide to one municipally owned facility, without charge, the following: 1) one standard installation; 2) one cable modem per installation; and 3) basic cable modem service for the term of this ordinance for each installation. This offer shall be subject to the terms, conditions and use policies of the company 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 Borough:
Restoration. 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.
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 Borough, shall remove or relocate its equipment, at its own expense.
Temporary removal of cables. 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.
Removal or trimming of trees. 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.
Cablevision shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
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 Borough 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 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 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 service shall be subject to regulation to the extent permitted by federal and state law.
Cablevision shall implement a senior citizen discount in the amount of 10% off the monthly broadcast basic level of cable television service rate to any person 62 years of age or older, who subscribes to cable television services provided by the company, subject to the following:
Such discount shall only be available to eligible senior citizens who do not share the subscription with more than one person in the same household who is less than 62 years of age; and
In accordance with N.J.S.A. 48:5A-11.2, subscribers seeking eligibility for the discount must meet the income and residence requirements of the Pharmaceutical Assistance to the Aged and Disabled program pursuant to N.J.S.A. 30:4D-21; and
The senior discount herein relates only to the broadcast basic level of cable television service, and shall not apply to any additional service, feature, or equipment offered by the company, including any premium channel services and pay-per-view services; and
Senior citizens who subscribe to a level of cable television service beyond expanded basic service, including any premium or per channel a la carte service, shall not be eligible for the discount.
The company shall have no further obligation to provide the senior discount herein in the event that a) the company converts the municipal consent granted herein to a system-wide franchise in accordance with N.J.S.A. 48:5A-25.1; or b) upon Board approval of a certification that another cable television service provider offering services to residents of the Township files, in accordance with N.J.S.A. 48:5A-30d, is capable of serving 60% or more of the households within the Township. In the event the company does cease providing a senior discount pursuant to this provision, it shall comply with all notice requirements of applicable 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 Borough pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the Borough 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 Borough shall utilize the state-approved procedures for such emergency uses.
In the event that the service of another multi-channel video program provider not subject to the Borough's regulatory authority within the Borough creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the Borough 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 Borough 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 Borough 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, the Borough shall be under no obligation to support Cablevision's request for such relief from the Board.
In any subsequent municipal consent, the Borough shall require, at a minimum, the same terms and conditions of any other provider of multi-channel video programming subject to the Borough'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 Borough 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 Borough 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 Borough 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 Borough 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 Borough'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 § A295-22.
Cablevision shall provide the Borough with a one-time PEG grant of $20,000 payable as follows: 1) an initial grant payment of $4,025 within 60 days of the issuance of the certificate of approval by the Board of Public Utilities (the "initial grant"); and 2) a grant of $1,775 provided in annual installments each remaining year of the term, upon written request by the Borough (the "annual grant"). The annual grant shall be payable to the Borough within 90 days from receipt of the Borough's written request. Cablevision shall not be obligated to make any additional payments beyond Year 10 of the franchise term.
The Borough agrees that the initial grant and the annual grant provided pursuant to § A295-22D shall be used by the Borough for any cable and/or other telecommunications' related purpose and/or for the exclusive support of PEG access programming, such as the purchase and/or rental of PEG access equipment and facilities. On request, the Borough shall provide Cablevision with a certification of compliance with § A295-22.
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 Borough 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 portions hereof.
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.
Notices to the company shall be mailed to:
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.