[HISTORY: Adopted by the City Council of
the City of East Orange 5-24-2021 by Ord. No. 23-2021.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed
former Ch. A300, Cable Television Franchise, adopted 12-3-2018 by Ord. No. 43-2018.
The municipality hereby grants to Comcast renewal of its nonexclusive
municipal consent to place in, upon, across, above, over and under
highways, streets, alleys, sidewalks, easements, public ways and public
places in the municipality, poles, wires, cables, underground conduits,
manholes and other television conductors, fixtures, apparatus and
equipment as may be necessary for the construction, operation and
maintenance in the municipality of a cable television and communications
system, provided that Comcast accepts, in writing, all of the terms
and conditions set forth herein.
The City, having held a hearing fully open to the public, after
proper public notice, pursuant to the requirements of law and having
received and considered all comments relating to its consent to a
renewal of the franchise agreement, herein finds that:
A.Â
Since Comcast has substantially performed its obligations under its
previous franchise agreement and under applicable law, the City has
no reason to believe that in the future Comcast will fail to comply
with its obligations under a renewal franchise agreement or under
applicable law.
B.Â
If Comcast undertakes all commitments set forth in this ordinance
and performs its obligations pursuant to the terms and conditions
hereunder, the City will have reasonable assurance that Comcast will
meet the City's future cable-related needs.
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 76.1 et seq., and the Cable Communications Policy Act, 47 U.S.C.
§ 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 and state definitions:
Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The company's application for renewal of municipal consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities of the State of New Jersey
or any successor agency.
The City of East Orange, County of Essex, State of New Jersey.
The grantee of rights under this ordinance and is known as
Comcast of New Jersey II, LLC.
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the municipality currently served
with existing plant as set forth in the map attached hereto as Addendum
A.[1]
[1]
Editor's Note: Said addendum is included as an attachment to this chapter.
A.Â
The nonexclusive municipal consent granted herein shall expire 10
years from the date of expiration of the previous certificate of approval
issued by the Board. Said consent shall therefore expire on December
31, 2027.
B.Â
In the event that the municipality shall find that the company has
not 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 that notification.
A.Â
Pursuant to the terms and conditions of the Act, the company shall,
during each year of operation under the consent granted herein, pay
to the municipality 2% of the gross revenues from all recurring charges
in the nature of subscription fees paid by subscribers for cable television
reception service in the municipality or any higher amount required
by the Act or otherwise allowable by law, whichever is greater.
B.Â
The City reserves the right to petition the Board for permission
to charge a higher franchise fee as per N.J.S.A. 48:5A-30c.
C.Â
On or before January 25 of each year, Comcast shall file, with the
City's Chief Financial Officer, a verified statement indicating
the amount of gross revenues from all recurring subscription fees
paid by subscribers in the City. Simultaneously with the filing of
its verified statement of gross revenues, Comcast shall pay to the
City's Chief Financial Officer the yearly fee and amount imposed
by this section.
The consent granted under this ordinance to the renewal of the
franchise shall apply to the entirety of the municipality and any
property subsequently annexed hereto.
A.Â
The company 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 the company's application or the attached Addendum
A.[1] The company's line extension policy, as set forth
in the company's application, shall govern any extension of plant
beyond the primary service area.
[1]
Editor's Note: Said addendum is included as an attachment to this chapter.
B.Â
The company's installation and line extension policy must comply
with all federal and state laws, regulations or other pronouncements.
A.Â
Restoration.
(1)Â
In the event that the company or its agents shall disturb any pavement,
street surfaces, sidewalks, driveways, or other surface in the natural
topography, the company shall, at its sole expense and in compliance
with all applicable regulations, restore and replace such places or
things so disturbed in as good a condition as existed prior to the
commencement of said work.
(2)Â
If, in connection with said work, Comcast disturbs any underground
condition or damages underground real or personal property, Comcast
shall, at its sole expense, restore such condition or real property
to as good of condition as existed before the commencement of said
work.
B.Â
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
municipality, shall remove, re-lay or relocate its equipment, at the
expense of the company.
C.Â
Temporary removal of cables. Comcast shall temporarily raise, lower
or remove its cables and appropriate parts of its facilities to permit
the moving of buildings, machinery or other similar circumstances.
If the requesting party is a private party, that party shall bear
the expense. If the requesting party is the City, Comcast shall bear
the expense.
D.Â
Removal or trimming of trees.
(1)Â
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 or other public places of the municipality
so as to prevent the branches of such trees from coming in contact
with the wires and cable of the company. Such trimming shall be only
to the extent necessary to maintain proper clearance of the company's
wire and cables.
(2)Â
No trees shall be trimmed, removed or destroyed unless Comcast first
obtains all necessary municipal permits. Comcast shall make reasonable
efforts to notify property owners before trimming trees on private
property. In addition, any removal shall be done in accordance with
all applicable laws and regulations.
(3)Â
Nothing in this section shall be construed to prevent Comcast from
trimming trees without a permit in emergency situations.
In providing services to its customers, the company shall comply
with N.J.A.C. 14:18-1 et seq. and all applicable state and federal
statutes and regulations. The company shall strive to meet or exceed
all voluntary company and industry standards in the delivery of customer
service and shall be prepared to report on it to the municipality
upon written request of the Municipality Administrator or Clerk.
A.Â
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 notification of same
to customers.
B.Â
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.
C.Â
The company shall use every reasonable effort to meet or exceed voluntary
standards for telephone accessibility developed by the National Cable
Television Association (NCTA).
D.Â
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.
The Office of Cable Television is hereby designed as the complaint
officer for the municipality pursuant to N.J.S.A. 48:5A-26b. All complaints
shall be received and processed in accordance with N.J.A.C. 14:17-6.5.
The municipality shall have the right to request copies of records
and reports pertaining to complaints by municipality customers from
the OCTV.
A.Â
During the term of this franchise, and any renewal thereof, the company
shall maintain a business office or agent in accordance with N.J.A.C.
14:18-5.1 for the purpose of receiving, investigating and resolving
all local complaints regarding the quality of service, equipment malfunctions,
and similar matters. Such a business office shall be located no more
than 10 square miles outside of the City of East Orange, have a publicly
listed toll-free telephone number and be open during standard business
hours, and in no event (excepting emergent circumstances) less than
9:00 a.m. to 5:00 p.m., Monday through Friday. Such local office shall
be designated to receive payments on behalf of Comcast.
B.Â
The telephone number and address of the local office shall be listed
in applicable telephone directories and in correspondence from Comcast
to City subscribers. The telephone number for the local office shall
utilize an exchange which is a non-toll call for City residents.
During the life of the franchise, the company shall give to
the municipality a bond 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.
The rates of the company shall be subject to regulation as permitted
by federal and state law.
A.Â
Public access. The company shall provide residents with a system-wide
public access channel maintained by the company. Qualified individuals
and organizations may utilize public access for the purpose of cablecasting
noncommercial access programming in conformance with the company's
published public access rules.
B.Â
Leased access. The company shall provide a system-wide leased access
channel maintained by the company for the purpose of cablecasting
commercial access programming in conformance with the company's
guideline and applicable state and federal statutes and regulations.
C.Â
Local access. Comcast shall make available two channels for the use
and access by the City and one channel for use and access by the East
Orange Public School District for the cablecasting of noncommercial
governmental and/or educational programming.
D.Â
The company shall take any steps that are necessary to ensure that
the signals originated on the access channels are carried, without
material degradation, to all subscribing residents of the City of
East Orange, and with a signal whose quality is equal to that of the
other standard channels that the company transmits.
E.Â
The company shall take all steps necessary to ensure that the City's
two public access channels are viewable to all Comcast subscribers
in the City, including residential and business customers in the Ampere
section of the City, on the basic level service offered by the company.
F.Â
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)(4)],
allows the company to itemize and/or identify the amount on the monthly
bill assessed to satisfy any requirements imposed on the company by
the cable franchise to support public, educational, and governmental
channels, or the use of such channels or any other services required
under the franchise. The company reserves its external cost, pass-through
rights to the extent permitted by law.
A.Â
The company shall provide standard installation and basic cable television
service on one outlet at no cost to each existing and future school
in the municipality, public and private, elementary, intermediate
and secondary, provided the school is within 200 feet of active cable
distribution plant. Each additional outlet installed, if any, shall
be paid for on a material-plus-labor basis by the school requesting
service. Monthly service charges shall be waived on all additional
outlets except for equipment.
B.Â
The company shall provide standard installation and basic cable television
service at no cost on one outlet to each of the City's existing
and future municipal buildings, including but not limited to City
Hall, police, fire, and emergency management facilities, first aid
squad facilities, public libraries, and community and senior centers
in the municipality, provided that each facility is located within
200 feet of active cable distribution plant. Each additional outlet
installed, if any, shall be paid for on a material-plus-labor basis
by the municipality. Monthly service charges shall be waived on all
additional outlets except for equipment.
C.Â
The company shall provide free basic internet service, via high-speed
cable modem, to one non-networked computer in each school, public
and private, elementary, intermediate and secondary, and public library
facilities, provided that the schools and library facilities are located
within 200 feet of active cable distribution plant. The internet connections
shall be installed on a computer that is accessible to student and
library patron use, as applicable, and may not be installed on a computer
that is restricted to administrative use.
D.Â
Within six months of the issuance of a renewal certificate of approval
from the Board, the company will provide a one-time PEG Access Capital
Grant for equipment and facilities in the amount of $150,000 to the
City.
E.Â
The company shall provide an additional grant of $60,000 in support
of community-related events, activities and programs as determined
by the City, and such grant shall be payable in annual installments,
in the amount of $6,000 per year for the term of the ten-year franchise.
Comcast shall be recognized as a supporter/sponsor of any event, activity
or program that is the beneficiary of such grant or any part thereof.
The payment of the grant shall be due on April 1 of each year of this
ten-year franchise renewal.
F.Â
The company shall, within six months of the issuance of the renewal
certificate of approval by the Board, make the City's two public
access channels viewable to all Comcast subscribers in the City, including
residential and business customers in the Ampere section of the City,
on the basic level service offered by the company.
A.Â
The company will comply with the Emergency Alert System ("EAS") rules
in accordance with applicable state and federal statutes and regulations.
B.Â
The company 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.
C.Â
The City shall in no way be held liable, if the company's failure
to adequately maintain, replace or renew its equipment is the cause
of damage to any person or property.
The company shall at all times maintain a comprehensive general
liability insurance policy with a single limit amount of $1,000,000
covering liability for any death, personal injury, property damages
or other liability arising out of its construction and operation of
the cable television system, and an excess liability (or "umbrella")
policy in the amount of $5,000,000.
All of the statements and commitments contained in this ordinance
and the application, or annexed thereto and incorporated therein,
and any amendment thereto, except as modified herein, are binding
upon the company as terms and conditions of this consent. The application
and other relevant writings submitted by the company shall be annexed
hereto and made a part hereof by reference, provided same do not conflict
with applicable state or federal law.
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 its validity or unconstitutionality shall not affect
the validity of the remaining portions of the ordinance.
Nothing in this franchise or in any prior agreement is or was
intended to confer third-party beneficiary status on any member of
the public to enforce the terms of such agreements or franchise.
Comcast shall be bound by the terms and provisions of this ordinance
irrespective of the number of subscribers to its system.
This consent shall not be assigned or transferred without prior
written notice to the City and prior written approval of the BPU.
Every direction, notice or other communication to be served
upon the City shall be sent, by certified mail, to the office of the
City Clerk. The delivery or mailing of such notice, direction or order
shall be equivalent to direct personal notice and shall be deemed
to have been given at the time of delivery.
Should any of the federal or state statutes or regulations concerning
cable television be modified in any way, such modification shall be
incorporated into this ordinance to the extent it 1) encompasses any
required term or condition and 2) can meaningfully be so incorporated.
Any such modification shall become effective on the effective date
specified in the modification. To the extent that any such modification
restricts any permissible term or condition and thereby renders any
provision of this ordinance invalid, Section 19 of this ordinance
shall apply.[1]
It is understood by Comcast and the City that should the FCC
or BPU modify, change or alter any of their regulations in a manner
that may impact this municipal consent, such modifications, changes
or alterations shall be incorporated into this municipal consent ordinance
consistent with the applicable dates specified in the change.
This ordinance shall take effect immediately upon issuance of
a renewal certificate of approval from the BPU.
