[HISTORY: Adopted by the Township Committee of the Township of Lumberton 4-20-1998 by Ord. No. 1998-19. Amendments noted where applicable.]
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein. Such meaning or definition of terms is supplemental to those definitions of the Federal Communications Commission, FCC Rules and Regulations, 47 CFR Subsection 76.1, et seq., and the Cable Communications Policy Act, 47 USC 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 or state definitions.
Definitions. As used in this ordinance, the following terms shall have the meanings indicated:
- ACT or CABLE TELEVISION ACT
- Chapter 186 of the General Laws of New Jersey 1972 and subsequent amendments thereto (N.J.S.A. 48:5A-1 et seq.).
- ADVISORY COMMITTEE
- The Lumberton Township Cable Television Advisory Committee established by this ordinance.
- The grantee of rights under this ordinance and is known as Garden State Cablevision, L.P.
- The Township of Lumberton, County of Burlington, State of New Jersey.
Word usage. The terms "Board," "Office," "Director," "cable television reception service," "cable communications system," "highway" and "certificate" shall have those meanings as defined and set forth in the Cable Television Act, as amended or supplemented.
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 as above stated and said hearing having been fully open to the public, and the township having received at said hearing all comments regarding the qualification of the company to receive this consent, the township 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.
During the course of the hearing, and during the course of the efforts to renegotiate this franchise, certain allegations of violations by the company or its predecessor of the terms and conditions of the original consent were brought to the attention of the Township Committee. Many of these instances are adequately discussed in the document entitled "Municipal Report of the Township of Lumberton: Review of Past Performance of Garden State Cable Television, and Assessment of Future Cable-Related Needs of the Municipality," which document has been submitted to both the company and to the Office of Cable Television (OCT), and which document is incorporated herein by reference. Nevertheless, despite these allegations, the Township Committee is equally aware of the presumption of renewal contained in the New Jersey Cable Television Act, and specifically found at N.J.S.A. 48:5A-19. In balancing, therefore, the statutory presumption of renewal with the nature of the allegations, complaints and concerns brought to the Committee's attention, the Committee finds and determines that the company has generally complied with its obligations under the consent and applicable law, and has provided generally satisfactory service, and, as otherwise provided herein, the township is hopeful that in the future the company will comply with its obligations under a renewal of the franchise and under applicable law.
If the company undertakes the commitments and performs thereunder, such shall provide a reasonable assurance of meeting the township's future cable-related needs.
The township hereby consents to a renewal of the franchise, subject to the terms and conditions of this ordinance and upon the condition that the company accept the provisions of this ordinance and confirm, in writing, that it shall comply with all of the commitments.
At the time this municipal consent becomes effective, the township shall renew and continue to give the company its consent to place, in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the township, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the township of a cable television system.
The consent herein granted shall expire fifteen years from the date of the adoption of this ordinance.
Where the municipality determines after notice and a public hearing that the municipality believes the company has failed to meet the commitments set forth in this ordinance and in the application previously filed by the company, within a reasonable time period, or has engaged in a pattern of noncompliance, it shall request that the Board take action to determine whether the company has materially breached the terms and conditions of the franchise.
The consent granted herein shall be subject to a ten-year renewal only after review of the performance of the company and the adequacy of the terms of the consent herein granted in a full public proceeding in accordance with the then applicable law.
The consent granted under this ordinance to the renewal at the franchise shall apply to the entirety of the township and any property annexed hereto.
The company shall, during each year of operation under the consent granted herein, pay to the township 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers to its cable television reception service within the franchise territory or any amount otherwise allowed by law. It is acknowledged that the current law in New Jersey limits the franchise fee to 2% of the gross revenues from all recurring charges in the nature of subscription fees received by the company as described above. In the event that applicable law hereafter permits a larger franchise fee to be collected, the township shall be entitled to the larger franchise fee.
Line extension. The company shall be required to proffer service along any public right-of-way to any person's residence or business located in the township, in accordance with the proposal for the provision of services as described in the application. Any additional extension of the system which is necessary in the future but not contemplated in the application shall be made in accordance with the Office of Cable Television line extension policy now or hereafter promulgated, except as otherwise provided in this ordinance. The company will provide service to residences in existing presently wired commercial areas. Commercial areas which are currently not served and residential units located in those areas will be provided service based on the company's tariffed rates for installation and extension.
Nonstandard installation. The company currently employs a nonstandard installation policy which is on file with, and has been approved by, the Office of Cable Television. However, in consideration for the renewal of this franchise, and in recognition of the rural nature of much of Lumberton township, the company agrees that it will modify its nonstandard installation policy in the following fashion: Those potential customers who are considered as "nonstandard installation" will be allowed the option of performing some of the work themselves, such as the trenching, and thus avoid the costs that the customer would otherwise be required to incur for that portion of the installation. The customer will agree to follow the company's specifications for the trenching, which generally requires that the trench be 12 inches at the top and bottom and that it be 36 inches deep and free of rocks or other obstructions. The customer would be responsible for the safety of the trench and be required to follow the law with respect to the "one call service," which shall be made available by Garden State Cable.
The township's consent to the renewal of the franchise is subject to, and expressly contingent upon the company's written undertaking (which may be expressed by means of an amendment to the application, by any separate proposal for renewal or by the company's written statement that it accepts the provisions of this ordinance) as to the following:
Facilities and equipment.
In transmitting its television signals to subscribers in the township, the company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards, and the company shall comply with any requirements imposed by the federal regulations and federal pronouncements and (to the extent not preempted by federal law) any state pronouncements relating to technical standards for the transmission of television signals, transmission quality or facilities and equipment.
The company shall provide for the expansion of the existing system from a 38-channel capacity to a 78-channel capacity. Construction for such expansion shall be completed by July 31, 1998.
In order to maintain its level of telephone accessibility for calls relating to maintenance and repairs ("service"), and to improve it for calls relating to installation, addition or deletion of programming services, and other customer inquiries ("business"), the company shall comply with any and all requirements of the OCT or other regulatory bodies with respect to telephone accessibility, facilities and personnel and shall use its best efforts to comply with any OCT guidelines relating to the foregoing. Nothing herein shall impair the right of any subscriber or the township to express any comment or complaint with respect to telephone accessibility to the Complaint Officer or impair the right of the Complaint Officer to take any action which is appropriate under law.
During the term of this franchise, and any renewal hereof, the company shall maintain a local business office or agent for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunction and similar matters. Such local business office shall be open during normal business hours and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
In the event that the company requires the converter or other equipment provided to a subscriber to be exchanged in order for such subscriber to maintain his or her current level of service, or in the event that the customer needs to purchase or have equipment repaired, the company shall either cause such exchange to be effected by delivery of the equipment to the subscriber's home (and to the extent necessary), in the evening or on a weekend, at no cost to the subscriber, or allow customer pickup of the equipment at a designated location of the company.
Restoration. In the event that the company or its agents shall disturb any public or private pavement, street surfaces, curbs, gutters, sidewalks, driveways, landscaping, trees, shrubs or other surfaces in the natural topography, the company shall, at its sole expense, restore and replace such places or things so disturbed in not less than as good condition as existed prior to the commencement of said work.
Relocation. If at any time during the period of this consent the township shall alter or change the grade of any street, alley or other way or place, the company, upon reasonable notice by the township, shall at its own expense remove, re-lay and relocate its equipment.
Temporary removal of cables. The company shall, upon request of the township, at the company's expense, temporarily raise, lower or remove its cables and associated facilities in order to facilitate the moving of buildings, equipment, vehicles and machinery and to accommodate other like circumstances. When such activity is for a private purpose, the person necessitating such action shall pay the company the cost no later than 48 hours in advance of the action.
Removal and/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 and public places of a 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 and to maintain proper clearance for the company's wires and cables. All work is to be in compliance with ANZJ standard SZ133.1, "Tree Care Operations for Safety," as may be subsequently amended, and the National Arborist Association Standards for Pruning and Removal. If the tree is privately owned, the company must give reasonable notice to the owner and make every effort to protect the owner's interest in the tree. Nothing herein contained shall be construed to mean that the township is allowing the company to trespass upon private property, and in the event that the private property owner seeks damages for the company's actions, the company shall be solely liable for same and shall hold the township harmless and indemnify it against any such claims.
The Office of Cable Television is hereby designated as the Complaint Officer for Lumberton Township pursuant to N.J.A.C. 48:5A-26(b). All complaints shall be received and processed in accordance with N.J.A.C. 14:17-6.5.
There is hereby established a Cable Television Advisory Committee which shall serve as an Advisory Board to the Township Committee with respect to cable television matters. The members of the Cable Television Advisory Committee shall be residents of the Township of Lumberton.
There shall be five members of the Cable Television Advisory Committee, who shall be appointed by the Township Committee to serve terms of three years. All terms shall expire on December 31 at the appropriate year. Of those members first appointed, two shall be appointed for a term of three years, two shall be appointed for a term of two years, and one shall be appointed for a term at one year; all appointments shall thereafter be for a full term of three years, except that any vacancy occurring during a term of appointment shall be filled for the balance of the unexpired term.
The Mayor and all members of the Committee shall also serve as "ex officio" members of the Cable Television Advisory Committee.
The Cable Television Advisory Committee shall meet at least two times each calendar year and shall render advice to the Township Committee in the following areas:
To assess on an ongoing basis the future cable-related community needs and interests of the township.
To review on an ongoing basis the present and past performance of the company.
To make recommendations for the development and presentation of programming to be provided on the local access channel(s) for the purpose of utilizing the channel to the fullest extent in the public interest of the township, maximizing its potential as community resource, and encouraging widespread viewership.
To ascertain the opinions and desires of the township residents and subscribers on all aspects of the cable television system.
To serve as liaison on cable television matters between the township and the company.
To furnish such other information and advice as may be requested by the Township Committee.
The failure of the Township Committee to appoint this Cable Television Advisory Committee shall not in any way affect the validity of this ordinance or the enforcement powers of the municipality under same.
Although notifying herein shall require the company to carry or transmit any particular television stations or programming source, the company shall provide the subscribers in the township with at least the same broad categories of programming as are now provided, and which appear in the Application.
Weather channel. The company and the municipality are aware of the importance of weather information. The company will continue the carriage of the Weather Channel until such time as it is no longer feasible or permissible due to cost, regulatory or contract considerations. In the event that the company ceases to carry the Weather Channel it will either work with the municipality in seeking to obtain replacement programming which could be placed on the municipality's local access channel, or the company will provide some form of weather information on one of its channels.
The company shall comply with any state law or regulation and shall use its best efforts to comply with any guideline with respect to maintaining space for a statewide interconnect channel.
Basic service. The basic service includes those channels which the company is required to carry by FCC rules and any channel which the company has previously agreed to carry without a separate or additional charge or which the company currently carries without a separate or additional charge.
Change in programming to be preceded by notification. The company shall precede any change in programming with the notification procedures established by the Office of Cable Television in its then current rules and regulations.
During the life of the franchise the company shall give a bond to the Township of Lumberton, which bond shall be 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.
Said bond shall be in a form acceptable to the Township Solicitor and the Township Committee.
The township shall have the maximum authority with respect to regulation of rates permitted by law.
The company shall provide the standard installation of one outlet and basic monthly service to each school, public or private, and library in the township free of charge. In addition, the company shall provide for the free standard installation and basic monthly service, without charge, of one outlet to the Lumberton Township Municipal Building. Said installation shall be completed within 90 days after the adoption of this ordinance or after the request for the installation, whichever is later.
In addition to providing an immediate standard installation to the existing Municipal Building, Garden State has been advised that the township intends to construct a new municipal building some time in the next few years. Garden State agrees that it will provide free installation to said building, once same is constructed, and that it will also provide basic monthly service, without charge, to one outlet in same. Similarly, the township agrees to communicate with Garden State during the course of its construction planning and to coordinate the trenching, cable installation and all construction with Garden State so that installation is made as convenient as possible to both parties.
In addition, the company shall provide, within the technical limits of available signal strength, multiple connections to serve as many television sets as possible in each of the Lumberton township public schools. The municipality and/or the Board of Education shall inform the company of the specific requirements for service in the schools prior to construction/installation by the company. The company will inform the municipality or Board of Education of the costs necessary to be able to meet those specifications, if they are beyond one outlet to be installed free by the company. In order to be able to provide maximum signal strength for multiple outlets within the schools, the company must know in advance the information it will need to develop the plans and cost estimates for acceptance by the Board of Education.
Any internal wiring shall be constructed by the company, at cost, provided that the municipality and/or Board of Education, as appropriate, installs any necessary conduit and performs other make-ready work required to provide a clear path for the cable. Construction of new schools, libraries or municipal building at a different location than the existing structures shall have the benefit of this section at that time; however, in the event that the installation to the schools and/or libraries is a nonstandard installation, the company shall bear the first $2,000 in installation costs, with the public entity bearing the balance of the cost. The public entity shall also be permitted to take advantage of the cost reduction offer where the entity agrees to perform some of the work itself in accordance with the company's specifications.
The company will also provide, if same has not already been provided, free standard installation to each fire and rescue/emergency squad and fire company located within the municipality. In the event of nonstandard installation, these facilities are entitled to participate in the cost reduction offer by performing some of the self-trenching installation work in accordance with the company's specifications. Basic service to these facilities will be at residential rates.
The company shall maintain an emergency audio override capability to permit the broadcasting of emergency messages by the State Office of Emergency Management.
Currently public educational and governmental (PEG) access is provided on Channel 14 and is shared by several communities, including the municipality. The origination point at the present time is at Burlington County College, Pemberton Township. This channel will become the channel that is referred to hereinafter once the operating procedures have been developed by the participants.
Within six months after completion of the upgrade and the approval from the school, the company will provide a return carrier between Rancocas Valley High School and the company's headend. This return carrier will be connected to a video switching device which will be provided by the company. This switcher will enable public educational and governmental (PEG) programming originating from the high school to be available to the company's customers in Lumberton, Hainesport, Mount Holly, Eastampton and Westampton (being the current high school sending districts). Currently it would be available to customers on Channel 14.
The use of the return path is limited to qualified, prerecorded video material and live real time programming originating within the high school or property (including athletic fields) immediately surrounding the high school. No physical, electronic or other interconnection may be made by anyone or any entity which would allow for insertion of programming other than in the manner and location as above stated.
It is intended that the return carrier and PEG channel will be operated on a shared basis by a committee which includes representation from each of the sending school districts, the governing bodies in each of these municipalities, and the public. The school and each municipality will need to agree to share the channel equitably with each other and the public through operating procedures developed and adopted by the participants.
The switching device located at the company's headend will have the ability to connect to other access channels served from the company's headend, including Burlington County College. Therefore, importing and exporting PEG programming to and from other school districts or Burlington County College will be possible. This means the schools may engage in its own distance learning should the schools and/or the sending districts wish to invest in the studio, origination equipment and programming needed.
Interconnecting Rancocas Valley High School PEG channel to other schools' PEG channels requires coordination and the cooperation of the communities served by the PEG channels involved. Should the need arise to import and export programming, the schools and/or the municipalities involved will need to coordinate the interconnection, which includes scheduling time with the other PEG channels and programming the switcher with the company.
The company will not be required to cover any costs associated with reconfiguring its plant if the sending districts are changed.
A camcorder and microphone shall be made available by the company for shared use in noncommercial access programming.
The company agrees to maintain and keep in full force and effect, at its sole expense, at all times during the term of this consent, sufficient liability insurance naming the Township of Lumberton as an insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $250,000 per person for any one claim and $500,000 as to any accident or occurrence; and in the minimum amount of $100,000 for property damage as to any one accident or occurrence. Additionally the company shall maintain and keep in full force and effect an umbrella policy with limits of not less than $1,000,000.
The company shall hold and save the township harmless from and indemnify and defend the township against every claim, loss and liability of every kind arising in any and every way, directly and indirectly, immediately and consequentially, arising from the grant and/or use of this municipal consent.
Except as modified by this ordinance, all of the statements and commitments contained in the application of Garden State Cablevision, Ltd., L.P., for renewal of municipal consent filed with the township, together with all of the statements, representations, and/or commitments made by the company on the record during the municipal consent renewal proceedings, or in correspondence and other documents entered into the record of those proceedings, and/or received by the township, are hereby incorporated by reference in this ordinance and shall be binding upon the company as terms and conditions of this consent, whether annexed hereto or not. However, any portions of the application which are in conflict with the provisions of the Cable Television Act, N.J.S.A. 48:5A-1 et seq., the Cable Communications Policy Act, 47 USC 521 et seq., and/or FCC rules and regulations, as amended, are not to be construed as effective under the terms of this ordinance.
Subject to the requirements of the Federal Act and approval by the Board, the township reserves the ability to amend any portion of this ordinance as it relates to its police powers after public hearing.
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 such holding shall not affect the validity of the remaining portions thereof.
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 that they embody required terms and conditions and meaningfully can be incorporated into this ordinance, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modification places limits on permissible terms and conditions, and any provision of this ordinance becomes invalid by virtue of such modification, then preceding § A301-23 shall apply.
The company shall comply with OCTV requirements with respect to notices to the municipality and to subscribers to the service of rate and channel changes.
The franchise herein granted shall be nonexclusive.
The company agrees that any future cable lines installed or constructed shall be installed underground to the extent that other utilities are also constructing their facilities underground. Moreover, the company agrees that during the course of its efforts to upgrade the channel capacity pursuant to § A301-9A(2) hereof, it will undertake to place all cable lines underground, to the same extent as other utilities have installed underground lines. In the event that the company is unable to install underground lines in a certain area, the company will so advise the township, and the parties agree to discuss the reasonableness of the physical inability of the company to install those lines underground. Nothing herein contained, however, shall permit the company to install its lines underground simply because other utilities do the same, where those lines are installed in violation of local zoning or other ordinances.
All ordinances or parts thereof which are inconsistent with this ordinance are hereby repealed to the extent of such inconsistency; specifically repealed herein and replaced hereby is Ordinance No. 1994-17.
Editor's Note: Ordinance No. 1994-17, adopted 11-21-1994, comprised former Ch. A301, Cable Television Franchise.
This ordinance shall take effect upon final passage and publication according to law.