[HISTORY: Adopted by the Township Committee
of the Township of Wall 8-11-2004 by Ord. No. 17-2004.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed
former Ch. A266, Cable Television Franchise, adopted by Ord. No. 8-1986
(Ch. XIX of the Revised General Ordinances).
This ordinance shall be known and may be cited
as the "Cable Television Franchise Ordinance of the Township of Wall."
For the purpose of this ordinance, the terms
defined above shall have the meanings there indicated,[1] and the following additional terms 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.
Cablevision's application for renewal of municipal consent,
which application is on file in the Township 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.
Cablevision of Monmouth, Inc. ("Cablevision"), the grantee
of rights under this ordinance.
The Federal Communications Commission.
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.
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.
The governing body of the Township of Wall in the County
of Monmouth and the State of New Jersey.
[1]
Editor's Note: This ordinance did not include
any definitions other than those included in this section.
A public hearing concerning the consent herein
granted to the company 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, and after extensive negotiations, the Township 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. If Cablevision undertakes the commitments and performs
thereunder, such shall provide a reasonable assurance of meeting the
Township's future cable related needs.
The Township hereby grants to the company 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 Township of a cable
television system, and for the provision of any communication service
over 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.
A.
This consent granted herein shall be nonexclusive
and shall be for a term of five years from the date of issuance of
a certificate of approval by the Board.
B.
During the franchise term, the company agrees to meet
with the Township Committee or any representatives from the Township
at the Township's request to discuss implementation of this franchise
agreement and the company's plans for new technologies.
C.
If during the term of this franchise the Township
finds that the provisions of this ordinance are not satisfied, the
Township may petition the Board of Public Utilities to commence revocation
proceedings in conformance with applicable statutes and regulations.
If the company 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 Township and
the Board relative to the renewal of said consent.
The consent granted under this ordinance to
the company shall apply to the entirety of the Township and any property
hereafter annexed.
The company shall be required to proffer video
programming service along any public right-of-way to any person's
business or residence within the portion of the franchise territory,
as described in the map attached to the application for municipal
consent, at tariffed rates for standard and nonstandard installation.
Cablevision's system shall be capable of providing service to all
residential units within the Township, whether now in existence of
hereafter to be built.
The company shall be required to extend its system to provide service along any public right-of-way outside of its primary service area to any person's residence within the franchise territory that are located in areas with a residential density of 25 homes per mile or greater (measured from the nearest cable system trunk or feeder cable), or areas with less than 25 homes per mile where residents agree to share the costs of such extension in accordance with the Office of Cable Television's line extension policy attached hereto as Exhibit A.[1] Extension of service to commercial establishments outside
the primary service area will be governed in accordance with the commercial
line extension policy as provided in the company's application for
municipal consent.
[1]
Editor's Note: Exhibit A is included at the end of this chapter.
A.
Pursuant to the terms and conditions of the Cable
Television Act, the company shall pay to the Township, 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
Township. In the event applicable law hereinafter permits a larger
franchise fee to be collected, but does not fix the amount thereof,
the Township and the company shall negotiate in good faith with respect
to the amount thereof.
B.
The company shall, on or before the 25th day of January
each year, file with the Chief Financial Officer of the Township a
verified statement showing the gross subscriber revenues received
from the cable television reception service within the Township and
shall at the same time pay thereon to said Chief Financial Officer
the two-percent charge hereby imposed as a yearly franchise revenue
for the use of the streets.
A.
The company shall provide, free of charge, upon request, one standard installation and monthly cable television reception service to all state or locally accredited elementary and secondary public and private schools and all municipal public libraries, as well as municipal buildings located within the Township as set forth in Exhibit B to this ordinance.[1]
[1]
Editor's Note: Exhibit B is included at the end of this chapter.
B.
The company shall provide to the Township, free of
charge, one high-speed cable modem and monthly Internet access service,
including a standard installation, to the Municipal Building located
at 2700 Allaire Road. The Township shall be permitted, at its own
cost, to network up to three additional personal computer terminals
in the designated building (four computers in total) to the cable
modem provided by the company.
C.
The company shall provide, free of charge, upon request, 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 schools and all municipal public libraries within the Township as set forth in Exhibit C.[2] Each school and library shall be permitted, at its own
cost, to network up to three additional personal computer terminals
in the designated building (four computers in total) to the cable
modem provided by the company.
[2]
Editor's Note: Exhibit C is included at the end of this chapter.
The company 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 Township:
A.
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 to the satisfaction of the Township Engineer.
B.
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
Township, shall remove or relocate its equipment, at the company 's
own expense.
C.
Upon request of a person holding a building or moving
permit issued by the Township, 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, except
when requested by the Township, in which case the company shall bear
the cost. In such cases, the company shall be given not less than
10 days' prior written notice in order to arrange for the changes
required.
D.
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
Township 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.
The company shall not place or operate any fixtures
or equipment in such locations as will or may interfere with any other
public or private utility system or any part thereof, and the location
by the company of its lines and equipment shall be in the manner as
not to unreasonably interfere with usual travel or use of streets
or private ways.
The company shall comply with the technical
and customer service standards established for the cable industry
under applicable federal and state laws, rules and regulations. The
company shall comply with any requirements imposed by the federal
or state regulations relating to technical standards for the transmission
of television signals, transmission quality or facilities and equipment.
A.
The company 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 8:30 a.m. to 5:00 p.m., Monday through Saturday,
with the exception of holidays.
B.
Notwithstanding anything contained in its application
to the contrary, the company currently maintains its local office
at 1501 18th Avenue, Wall, New Jersey. In the event that the company
will seek to relocate this office, it must provide notice to the Township
in accordance with N.J.A.C. 14:18-5.1, as may be amended.
C.
In addition, the company shall maintain a twenty-four-hour,
seven-day-per-week telephone communications system to receive complaints
regarding quality of service, equipment malfunctions, service outages
and similar matters. Complaints of subscribers shall be addressed
by the company as soon as possible and in accordance all federal and
state rules and regulations.
The Office of Cable Television is hereby designated
as the complaint officer for the Township 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.
A.
The company 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 Township as an additional
insured and insuring against loss by any such claim, suit, judgment,
execution or demand. The policy shall be in the minimum amounts of
$1,000,000 covering liability for any death, bodily injury, property
damages or other liability resulting from any one accident or occurrence
stemming from or arising out of the company's exercise of its rights
hereunder and an excess liability policy in the amount of $10,000,000.
B.
All insurance required by this ordinance shall be
and remain in full force and effect for the entire life of this franchise.
A certificate of insurance must be submitted to the Township Attorney
to review for compliance with the above mentioned limits of liability.
Said certificate of insurance shall be kept on file with the Township
Clerk, and the Township shall be an additional insured on said policies.
The company shall notify the Township at least 30 days prior of its
intention to cancel or change any policy. All of the aforesaid policies
shall contain a provision requiring the insurance company give to
the Township at least ten-day notice of cancellation.
The company shall indemnify, protect and save
the Township harmless from and against losses and physical damages
to property, including those properties owned or under the control
of the Township, and bodily injury or death of persons, which may
arise out of or be caused by the construction, location, installation,
operation, erection, maintenance, repair, replacement, removal or
use of the cable television system within the Township contemplated
by this franchise or by any act of the company, its agents or employees.
Cablevision is under no obligation to indemnify the Township of any
suits, claims or causes of action arising from any programming produced
or provided by the Township, its employees, officers or agents on
the PEG access channel, or for any suits, claims or cause of action
resulting from the gross negligence of the Township or its employees,
officers or agents.
The company 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.
A.
The rates of the company for cable television services
shall be subject to regulation to the extent permitted by federal
and state law. As such, the Township has no jurisdiction over the
rates charged by the company. In the event the federal law or other
applicable law is hereafter amended to permit the exercise of regulatory
power over rates by municipalities, the Township reserves the right
to exercise the maximum power permitted by law.
B.
The company shall implement a senior citizen discount
in the amount of a 10% off the monthly rate of the broadcast basic
level of cable television reception service to any person 62 years
of age or older who subscribes to the company's cable television service,
subject to the following:
(1)
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
(2)
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
(3)
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.
(4)
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.
A.
The basic service includes those channels which the
company is required to carry by FCC rules and/or applicable federal
law. The company shall include in the video programming it offers
subscribers the following broad programming categories:
B.
The company shall not delete any broad category of
programming within its control without the consent and approval of
the Township and the Board of Public Utilities. Should the company
seek to delete in its entirety any broad category of programming provided
herein, it may make such a request by application to the Board, on
notice to the Township, stating the category deleted and the reasons
therefore. Nothing herein shall be construed to extend any right to
mandate or enforce any programming service requirement, except to
the extent permitted by law.
The company 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 Township pursuant to state
and federal requirements. 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 municipality is unable to make
full use of the cable television system as contemplated herein. The
Township shall utilize the state-approved procedures for such emergency
uses.
A.
The company agrees that the capabilities of the system
shall be maintained as technologically current throughout the duration
of the franchise, as compared with other systems operated by the company
of comparable size, measured by the number of subscribers in the system
and to the extent economically reasonable.
B.
In the event of a change in state law mandating the
company to pay either a higher franchise fee and/or a discount for
senior citizens which is greater than the discount specified in this
ordinance, then the company will implement theses changes in the Township
as of the effective date of the law.
C.
In the event that another multichannel video program
provider's service within the Township creates a significant competitive
disadvantage to the company, the company shall have the right to request
from the Township 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 Township 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.
D.
If the parties are unable to reach an agreement on
appropriate amendments to the franchise, the Township 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 Township shall be under no obligation
to support Cablevision's request for such relief from the Board.
E.
The company represents and acknowledges that as of
the date of its acceptance of this municipal consent, competition
within the Township has not yet risen to the level of creating a significant
competitive disadvantage sufficient to enable the company to seek
relief under this section.
A.
The company shall make available one exclusive noncommercial
public, educational and governmental (PEG) access channel to the Township.
B.
The company shall provide one access return line at
the Wall Township High School or Municipal Building for use by the
Township in the cablecasting of noncommercial public, educational
and governmental (PEG) access for the Township's Cablevision customers.
C.
In consideration for the rights granted by this ordinance,
the company shall provide the Township with a one-time grant of $15,000
to be used by the municipality for cable and/or other telecommunications
related purposes, including to supplement PEG access-related production
and programming efforts in the Township. Training on PEG access equipment
shall be made available by the company, four times a year for up to
15 hours of training per session, at the request of the Township.
The grant money shall be paid to the Township within 60 days of approval
of this ordinance by the Board of Public Utilities.
D.
The Township agrees that the company shall retain
the right to use the PEG access channel, or portion thereof, for non-PEG
access programming during times when the Township is not utilizing
the channel for purposes of providing PEG access programming. Said
right is subject to the company obtaining prior written approval from
the Township for said use. In the event that the company uses said
PEG access channel for the presentation of such other programming,
the PEG programming of the Township shall remain the priority use,
and the company's rights with respect to using the channel shall be
subordinate to the Township's provision of PEG access programming
on such channel.
E.
The company shall take any steps which are necessary
to ensure that the signals originated on the PEG channel are carried
without material degradation and, to the extent the PEG channel's
programming is originated by Cablevision with a signal whose quality
meets accepted standards, that it is equal to that of other analog
channels the company transmits.
A.
Upon request of the Township, the company will provide
to the Township, within 60 days from the date of the request, telephone-related
records submitted to the Office of Cable Television in accordance
with N.J.A.C. 14:18-7.6 and 14:18-7.7, as may be amended. Upon receipt
of a request for this information, Cablevision will provide the records
submitted to the Office of Cable Television dating back one year from
the date of the Township's request.
B.
Upon request of the Township, the company will provide
to the Township, within 60 days from the date of the request, copies
of all complaints concerning the Township referred to the company
by the Office of Cable Television in its capacity as municipal complaint
officer. Upon receipt of a request for this information, the company
will provide the records submitted to the Office of Cable Television
dating back one year from the date of the Township's request.
C.
The Township will maintain the confidentiality of
the information provided by the company to the extent permitted by
law. The company, in accordance with applicable federal and state
rules and regulations, shall have the right to delete all personally
identifiable information from the records and complaints it provides
to the Township in accordance with this section.
All of the commitments contained in the application
and any amendment thereto submitted in writing to the Township by
the company, except as modified herein, are binding upon the company
as terms and conditions of this consent. The application and any other
written amendments thereto submitted by the company 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.
If during the franchise period the company is
sold, the Board of Public Utilities may predicate the sale upon the
purchaser's obligation to fulfill the terms of this ordinance.
Upon expiration, termination or revocation of
this ordinance, the company, 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 services authorized
herein, unless the company, 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.
This consent shall be construed in a manner
consistent with all applicable federal, state and local laws.
Should any of the federal or state statutes,
regulations or pronouncements applicable to the regulation of cable
television be modified in any way, such modifications, to the extent they embody required terms and conditions and can be
incorporated into this ordinance, shall be so incorporated, consistent
with any applicable effective dated specified in such modification.
Notwithstanding any specific mention of applicable
federal or state statutes or regulations, the company shall comply
with all of the requirements of the federal laws and regulations,
state statutes and regulations and any other valid statutes.
Subject to the company's rights under existing
federal or state laws or regulations, the company shall not be relieved
from obtaining any and all required permits for the location and construction
of its facilities as may be required by any governmental agency.
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 take effect upon issuance
of a certificate of approval as issued by the Board of Public Utilities.
