[HISTORY: Adopted by the Township Committee of the Township of Hamilton 10-17-1994 by Ord. No. 1183-94. Amendments noted where applicable.]
The municipality hereby grants to the company its nonexclusive consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the municipality poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the municipality of a cable television system and cable communications system. Construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities (herein, the "Board").
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. Such meanings or definitions of terms are supplemental to those definitions of the Federal Communications Commission (herein, the "FCC"), FCC Rules and Regulations, 47 CFR 76.1 et seq. and the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended, and the New Jersey 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:
- 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.
- The application for renewal of municipal consent filed with the municipality on or about July 2, 1993.
- The Board of Regulatory Commissioners of the State of New Jersey.
- CABLE COMMUNICATIONS SYSTEM
- Any communications service other than cable television reception service delivered through the facilities of a CATV system and for which charges in addition to or other than those made for cable television reception service are made or proposed to be made.
- CABLE TELEVISION SYSTEM or CATV SYSTEM
- Any facility within this state which is operated or intended to be operated to perform the service of receiving and amplifying the signals broadcast by one or more television stations and redistributing such signals by wire, cable or other device or means for accomplishing such redistribution to members of the public who subscribe to such service; or distributing through its facility any television signals, whether broadcast or not; or any part of such facility. The term "facility" as used in this definition includes all real property, antennas, poles, wires, cables, fibers, conduits, amplifiers, instruments, appliances, fixtures and other personal property used by a CATV company in providing service to its subscribers and customers.
- The grantee of rights under this ordinance and known as "Sammons Communications of New Jersey, Inc."
- GROSS SUBSCRIBER REVENUES
- Those revenues derived from all recurring charges in the nature of subscription fees paid by subscribers located within the municipality for cable television reception service for which no separate or additional charge is made, i.e., basic cable service. Gross subscriber revenues shall not include revenues received as installation charges and fees for reconnections, inspections, repairs or modifications of any installations. Gross subscriber revenues shall also not include any revenues received as reimbursement of expense in the operation of any access channels; as advertising payments; from the leasing of cable channels; from programs for which a per-channel, per-program or program/channel tier charge is made; and from furnishing other communications and nonbroadcast services either directly or as a carrier for another party.
- The Township of Hamilton, County of Atlantic, in the State of New Jersey.
- This document and expression of municipal consent and known as "Ordinance No. 1183 of 1994."
A public hearing concerning the consent herein granted to the company was held after proper public notice pursuant to the terms and conditions of said Act. Said hearing, having been held as above stated and having been fully open to the public, and the municipality, having received at said hearing all comments regarding the qualifications of the company to receive this consent, the municipality 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.
The consent herein granted shall extend for an initial term of 15 years from the date of issuance of a certificate of approval (herein, "COA") by the Board and shall also extend for a ten-year automatic renewal term as provided by N.J.S.A. 48:5A-19 and N.J.A.C. 14:18-13.6, on the same terms and conditions.
If, at the expiration of the initial term and the automatic renewal thereto, the company seeks a successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and COA in accordance with the Cable Television Act, N.J.S.A. 48:5A-11 and 48:5A-16, and the applicable state and federal rules and regulations. The company shall also petition the Board for a COA authorizing continued operation during the period following expiration of the consent granted herein and until such a time as a decision is made by the municipality relative to the renewal of said consent.
Pursuant to and consistent with the terms and conditions of the Act and the application for municipal consent filed with the municipality on July 2, 1993, (herein the "application"), the company shall, during each year of operation under the consent granted herein and any automatic renewal thereto, pay to the municipality 2% of the annual gross subscriber revenues received by the company from subscribers residing within the municipality. In the event that the company is permitted through legislative and/or administrative changes to pay to the municipality a higher percentage of annual gross subscriber revenues, the company shall serve written notice upon the municipality of that right should the state or any of its agencies fail to notify the municipality of such change. In the event that the municipality thereafter adopts a resolution regarding the franchise fee increase, consistent with state and federal statutes, rules and regulations, the company shall begin accruing such increased payments upon written notice from the municipality that it has adopted a resolution requiring the collection of a higher percentage of annual gross subscriber revenues.
Upgrade of system channel capacity. Within 12 months from the issuance of the COA, the company will start an upgrade of the cable system and related facilities. The upgrade will extend the system's bandwidth from present capability to 450 megahertz, capable of carrying 62 NTSC formatted television channels. The upgrade of the system will be completed no later than 24 months after the issuance of the COA.
Time for construction. In consideration for the duration of consent set out in § A315-4 of this ordinance (and any automatic renewal thereto), the company agrees to complete construction and make its service available to the existing homes, including homes currently under construction which are completed after adoption of this ordinance, within the municipality within six years of the date upon which it receives a COA from the Board and the requisite clearances from the appropriate public utilities. The company shall be required to complete any proposed construction in the municipality as described herein. The timetable and schedule for construction has been determined to be reasonable by the municipality and is incorporated herein by reference.
Facilities and equipment. The company agrees that it shall not activate any channels and supply any programming service(s) in or to any of the contiguous municipalities serviced out of the company's Pleasantville/Absecon office and receiving signal from the same head end facility serving the municipality unless such channels and programming service are made available to subscribers in the municipality with six months of the offering to such contiguous area.
Customer service. The company will not implement any new customer service standards or procedures provided by the Pleasantville/Absecon office without providing such standards and procedures to subscribers in the municipality.
Prior to the completion of construction in accordance with § A315-7B above, the company shall provide service to the municipality's residents in accordance with the company's stated installation charges and line extension policy. Except for those areas to be constructed in accordance with the timetable referenced at § A315-7B above, extension of service shall not be required into an area of the municipality where there are less than 35 homes per linear mile and within 500 feet of the company's existing trunk cable.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces in the natural topography, the company shall, at its sole expense, restore and replace such places or things so disturbed in as good condition as existed prior to the commencement of said work considering the nature of the work completed.
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, relay and relocate its equipment, at the expense of the company. However, if the municipality reimburses other utilities for such work, the company shall also be reimbursed. The company shall temporarily move or remove appropriate parts of its facilities to allow moving of buildings, machinery or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the municipality, in which case the company shall bear the cost unless other utilities are reimbursed or compensated by the municipality.
Removal 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 within the municipality so as to prevent the branches of such trees from coming into contact with the wires and cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities. The company shall provide at least 72 hours' notice to the municipality prior to trimming trees, unless emergency conditions make such notice impossible or impractical.
The company shall provide installation to any subscriber in the municipality as described in the application and this ordinance.
The consent granted herein to the company shall apply to the entirety of the municipality and any property hereafter annexed thereto.
During the term of this franchise and the automatic renewal thereof, the company shall maintain a local business office or agent in accordance with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters. Such local business office shall be open during normal business hours, and in no event less than 9:00 a.m. through 5:00 p.m., Monday through Friday. The company shall respond to all complaints of lack of reception within 24 hours of notice and shall respond to all other complaints within 48 hours of notice.
The Board's Office of Cable Television is hereby designated as the complaint officer of the municipality pursuant to N.J.S.A. 48:5A-26(b). All complaints shall be received and processed in accordance with N.J.A.C. 14:17-7.1.
During the life of the franchise, the company shall post a performance bond to the municipality in the amount of $25,000. Such bond shall be to ensure the faithful performance of all undertakings of the company as represented in the application and the memorandum, both of which are incorporated herein by reference.
The municipality acknowledges that, under the Federal Cable Act as implemented by the Board, municipalities do not have authority to regulate any rates the company charges subscribers for its services. However, the rates of the company shall be subject to regulation as permitted by federal and state law.
Basic service includes those channels which the company is required to carry by FCC rules and is the level of service to which all subscribers must subscribe prior to subscribing to additional video services.
The company shall purchase equipment and provide a channel to accommodate access to noncommercial governmental and educational entities in accordance with the application, a copy of which is incorporated herein by reference.
Governmental/educational channel. Within two years of issuance of a COA by the Board or upon completion of the system upgrade, whichever is first, the company shall provide a government/education channel (herein the "Governmental/Educational Channel"). It is acknowledged that the Governmental/Educational Channel shall be under the sole programming control of the municipality, its employees, agents or designees, and in that, the municipality, its employees, agents or designees will certify to the company that the programming will not contain material of an obscene or indecent nature or promote unlawful conduct and that reasonable efforts will be used to ensure that live programming does not contain such material. The municipality shall share such channel space with any other municipality receiving signal from the same head end location which serves Hamilton Township. These municipalities shall be limited to Weymouth and Egg Harbor City, unless the municipality consents to further joint use. In addition to the creation of the Governmental/Educational Channel, the company commits to purchase the following start-up equipment for and on behalf of the municipality: one character generator; one modulator; one monitor; and one tape deck and one modulator for return use. The company's monetary commitment to purchase the start-up equipment listed above shall be limited to and shall not exceed $15,000.
Additional Governmental/Educational Channel. During the initial or automatic term of this ordinance, should the company, at its sole discretion, decide to increase the bandwidth of the system to 550 megahertz or greater, the company will designate, on an as-needed basis, one additional channel for the purpose of providing an additional shared Governmental/Educational Channel. It is understood that the municipality will not request the provision of the additional channel unless or until the programming requirements, excepting automated character generator messages, exceed 10 hours of nonduplicated programming per day seven days a week. Should the circumstance and requirement above be met, the company is not obligated to provide start-up equipment for the channel as in Subsection A above. In addition, the company will not be obligated to provide an additional Governmental/Educational Channel in the event that the company increases channel capacity through the utilization of digital compression or similar technology rather than an upgrade or rebuild of the 450 megahertz system.
Maintenance of municipal start-up equipment. The company agrees to maintain start-up equipment, referenced in Subsection A of this section; however, it shall not be required to replace such equipment if it cannot be reasonably maintained. The company will not be responsible to repair equipment damaged by neglect or misuse. The municipality is solely responsible for lost, missing or stolen equipment.
Interconnect/institutional network. Upon completion of the upgrade as referenced in § A315-7A of this ordinance, the company will provide an interconnect/institutional network, the technical architecture of which will be at the sole discretion of the company. The purpose of this interconnect/institutional network is to provide connectivity for the purpose of transporting originated video programming from Atlantic Community College, Oakcrest High School, the Davies School, Vocation/Technical High School, the Hess School and the Township Hall to the company's head end and facility located on Columbia Road in Hamilton Township. The company shall cablecast the programming received from the above named locations on the Governmental/Educational Channel referenced in Subsection A of this section. It is understood by the municipality and the company that the interconnect/institutional network will not be capable of interfacility teleconferencing but will be capable of nonsimultaneous connection between each above named facility and the company's head end. The municipality has the sole responsibility to administer the interconnect/institutional network.
Service to certain institutions. The company shall provide installation of one outlet and basic service (as defined in § A315-16) to each school and library within the municipality free of charge. Each additional outlet installation shall be paid for by the institution requesting the same on a materials plus labor basis.
Service to unserved schools. Within six months of the issuance of COA, the company shall provide necessary extensions of cable system to provide basic cable service (as defined in § A315-16) to four currently unserved schools within the municipality. The four schools are as follows; Atlantic Community College, Oakcrest High School, Vocational/Technical High School and Atlantic County Special Services.
The municipality finds that the equipment to be provided by the company for public, educational or governmental use as provided in § A315-17 of this ordinance is reasonable.
The company shall be required to have the capability at the head end to override the audio portion of the cable television system in order to permit the broadcasting of emergency messages by the municipality. The capability shall be overseen and administered by the Atlantic County Emergency Management Commission, and 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. The municipality shall also establish reasonable procedures for such uses.
Senior citizen discount. The company will offer a discount for qualifying senior citizens in accordance with N.J.A.C. 14:18-3.20. The discount offered will be a fifty-cent reduction in the cost off the retail cost of the company's lowest offering, presently called "Lifeline" service, and a reduction of $3.50 off of the next level of service, currently called "Tier." These amounts may be adjusted should the company adjust its packaging. In addition, the company will make available at its local offices application forms for senior discounts. When requested, the company will mail senior application forms to subscribers requesting the same. In accordance with N.J.A.C. 14:18-3.18, the company will notify subscribers within the municipality of the availability of the subject senior citizens' discount.
Customer education. The company will make available at its local office written instructions intended to aid subscribers within the municipality to connect VCR's, A/B switches and other ancillary equipment. The company will also make available instructions concerning adding additional television set connections to the cable system.
Subscriber survey. The company shall conduct a subscriber satisfaction and information gathering survey in the fourth and also in the 14th year from the date of the issuance of the COA. The survey may be provided as a bill stuffer within the company's monthly billing envelope. Subscribers will be encouraged to complete the survey questionnaire and return to the company in the return billing envelope. The company will compile gathered information and give the results of the compilation to the municipality in the form of a condensed written report.
Semiannual construction build out review. The company and municipality will meet, upon request, to discuss progress related to build out of unserved areas as referenced in § A315-7B of this ordinance. At the time of said meetings, the company shall report to the municipality on progress made in completing scheduled build out.
Build schedule. The company will supply a map to the municipality of the unserved areas as referenced in § A315-7B of this ordinance which will illustrate the geographic areas to be constructed in order of priority. The map will also indicate the mileage of plant to be constructed in accordance with the following schedule:
Twelve miles in the second year after the issuance of the COA.
Twelve miles in the third year after the issuance of the COA.
Fifteen miles in the fourth year after the issuance of the COA.
Fifteen miles in the fifth year after the issuance of the COA.
Sixteen miles in the sixth year after the issuance the COA.
Additional programming. The company shall consider the addition of certain categories of programming indicative of the type programming requested of the municipality as a result of an ascertainment survey conducted by the municipality. The general categories are as follows: ethnic; premium movies; science fiction; and classic movies. The company will consider the addition of services generally falling into the above-mentioned categories after the completion of the upgrade referenced in § A315-7A of this ordinance.
Stereo capability. To the extent legally, technically and economically feasible, the company shall provide stereo capability for all off-air broadcast television channels received and processed and distributed throughout the company's cable distribution facilities located within the municipality. The company shall provide stereo capability for all premium and pay-per-view television channels distributed on the company's cable distribution facilities located within the municipality at a time no later than three years from the issuance of the COA. Contingent upon technical and financial considerations, the company shall consider the addition of stereo capability to popular satellite- and microwave-delivered television channels.
The company and the municipality agree that in an effort to develop a mutually beneficial franchise relationship, the company and the municipality shall make available its representatives to attend and participate in cable monitoring meeting(s) and/or hearing(s) with representatives of the other party at the request of the municipality or the company. The company and the municipality agree that should the need arise to conduct a cable monitoring meeting/hearing, either party requesting such meeting/hearing shall do so, in writing, at least 30 days in advance of the requested meeting/hearing date. Remedies for any unresolved issues shall be in accordance with all federal and state regulations governing such issues. Notwithstanding the above, the company and the municipality agree as to the importance of establishing and maintaining an open line of communication in an effort to circumvent possible problems requiring more formal proceedings as outlined above.
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 municipality as an additional insured and insuring against loss by any such claims, suit, judgment, execution or demand in the minimum amounts of $1,000,000 for bodily injury or death to one person and $1,000,000 for property damage resulting from any one accident.
Any portion of the application which is in conflict with the provisions of the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., and/or FCC Rules and Regulations, 47 CFR 76.1 et seq., as amended, is not to be construed as effective under the terms of this ordinance. Subject to the foregoing, all of the statements and commitments contained in the application and memorandum, and any amendments thereto, shall be incorporated in this ordinance and shall be binding upon the company as terms and conditions of the municipality's consent.
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 effect the validity of the remaining portions hereof.
All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed.
This ordinance shall take effect upon its final passage and publication according to law.