[Adopted 3-26-2002 by Ord. No. 3680-02]
The purpose of this ordinance is to issue a
municipal consent to the refranchisement of Cablevision of Monmouth,
Inc., in the Township of Toms River, and to establish the terms and
conditions of said consent, pursuant to the applicable law.
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 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
or state definitions:
Chapter 186 of the General Laws of New Jersey, 1972, and
subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The Board of Public Utilities of the State of New Jersey
or any successor agency.
The grantee of rights under this ordinance and known as "Cablevision
of Monmouth, Inc."
The Federal Communications Commission or any successor agency.
Those channels on the system which are used or reserved for
use by the municipality and its agencies. This channel is to be used
for noncommercial purposes only.
The municipality of Toms River Township, County of Ocean,
in the State of New Jersey.
The Office of Cable Television established by the Cable Television
Act.
The streets, avenues, highways, parks, parkways, driveways,
concourses, boulevards, bridges, viaducts, tunnels, places or any
property to which the municipality has title or over which the public
has an easement or right-of-way.
A person or organization whose premises are physically wired
and connected to the company facilities to receive company transmissions.
The ability to support the multiple analog and digital television
services, internet service and other two-way services.
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 provision of any communication service over such systems
as may be authorized by federal or state regulatory agencies. Construction
pursuant to said consent is conditioned upon prior approval of the
Board of Public Utilities.
A series of public hearings concerning the consent
herein granted to the company was held after proper public notice
pursuant to the terms and conditions of the Act. Said hearings having
been held as above stated and said hearings 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 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 expire 10 years
from the date of the expiration of the existing certificate of approval
as issued by the Board of Public Utilities.
If the company seeks a successive consent it
shall, prior to the expiration of this consent, apply for a municipal
consent and certificate of approval in accordance with the Cable Television
Act, N.J.S.A. 48:5A-11 and 48:5A-16, and applicable state and federal
rules and regulations. The company shall also petition the Board for
authorization for continued operation during the period following
expiration of the consent granted herein, and until such a time that
a decision is made by the municipal governing body relative to the
renewal of said consent.
A.
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
to its cable television reception service in the municipality or any
amount required by the New Jersey Cable Television Act or otherwise
required by law.
B.
The company shall on or before the 25th day of January
each year file with the chief fiscal officer of the municipality 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 fiscal officer the
two-percent charge hereby imposed as a yearly franchise revenue for
the use of the streets.
A.
Cablevision agrees that the capabilities of the system
shall be maintained as technologically current throughout the duration
of the franchise, as compared with other Cablevision of Monmouth,
New Jersey, systems of comparable size, measured by the number of
subscribers in the system, and to the extent economically reasonable
and commercially practicable. Cablevision shall make internet service
available to residents of the Township to the extent that it is generally
made commercially available by Cablevision, on other than a trial
or test basis, elsewhere on the cable system. Notwithstanding the
foregoing, nothing herein shall obligate Cablevision to perform a
rebuild of the system. The company shall extend service along any
public right-of-way outside its service area to those residences within
the franchise territory which are located in areas that have a residential
density of 25 homes per mile or greater, or areas with less than 25
homes per mile where residents agree to share the costs of such extension
in accordance with the line extension formula as provided by the company
in its application for municipal consent.
B.
The company shall be required to proffer service along
any public right-of-way to any person's business or residence located
in the franchise territory at tariff rates for standard and nonstandard
installation.
C.
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.
D.
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 and relocate its equipment, at
the expense of the company.
E.
During the exercise of the 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 the 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 to maintain proper clearance
for the company's facilities.
F.
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.
G.
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. In such
cases, the company shall be given not less than 14 days' prior written
notice in order to arrange for the changes required.
The consent granted herein to the company shall
apply to the beach portions of the Township of Toms River as described
further in a map of the franchise area provided in the application
and shall not apply to any portion of the mainland territory of the
municipality.
During the term of this franchise, the company
shall maintain, in or within reasonable proximity of its service area,
a local business office or agent 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. to 5:00 p.m., Monday through Friday. In addition, the company
shall maintain a twenty-four-hour, seven-days-a-week telephone communications
system to receive complaints regarding quality of service or service
outages and similar matters. Complaints of subscribers shall be addressed
by the company in a timely fashion.
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.
No person shall be required to receive the services
of the company, and any person who shall agree to receive such services
of the company may at his election at any time terminate the services
of the company.
A.
During the life of the franchise the company shall
give a bond to the Township of Toms River, which bond shall be in
the amount of $25,000.
B.
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 municipality, pursuant to 47 U.S.C. § 543
and other applicable laws, has no jurisdiction over rates. Accordingly,
the municipality makes no determination as to the reasonableness of
the rates proposed.
A.
Cablevision shall provide, free of charge, one standard
installation and monthly cable television reception service to all
state or locally accredited public schools and all municipal public
libraries, as well as municipal buildings located within the Township
franchise area.
B.
Cablevision shall provide to the Township, free of
charge, one high-speed cable modem and monthly internet access service,
including standard installation, to the Toms River Township Police
Substation located on the beach. 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 Cablevision.
Cablevision shall implement a senior citizen
discount in the amount of 10% off the rate for the monthly basic level
of cable television reception service to any person 62 years of age
or older who subscribes to cable television reception services provided
by the company, subject to the following:
A.
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
B.
Subscribers seeking eligibility for the discount must
meet the income and residence requirements of the Pharmaceutical Assistance
to Aged and Disabled (PAAD) program in the state pursuant to N.J.S.A.
30:4D-21; and
C.
The senior citizen discount herein relates only to
the entry level basic rate of cable television reception service,
and shall not apply to any additional service, feature, or equipment
offered by the company, including premium channel services and pay-per-view
services.
A.
The basic service includes those channels which the
company is required to carry by FCC rules and/or applied 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. 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 therefor. Nothing
herein shall be construed to extend any right to mandate or enforce
any programming service requirement, except to the extent permitted
under applicable federal law.
C.
The cable operator shall provide access time to noncommercial
public, governmental and educational entities to the extent such access
was promised to the municipality as stated in the application which
is incorporated herein.
D.
The company shall be required to have the capability
at the headend to override the audio portion of the system in order
to permit the broadcasting of emergency messages by the municipality.
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.
E.
The company shall continue its policy to broadcast
local programming including, at a minimum, news of local events, athletics
and other regional programming relevant to the Township and the surrounding
area.
A.
In the event that another multichannel video program
provider's service within the Township creates a significant competitive
disadvantage to Cablevision of Monmouth, Inc., 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, it shall
notify the Township prior to petitioning the Board for relief under
this section. Upon notification to the Township of the company's intent
to request amendments to the franchise, the Township and the company
agree to negotiate in good faith appropriate changes to the franchise
in order to relieve the company of such competitive disadvantages.
If the Township and the company 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.
B.
If the Township and the company 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 the company's request for such relief from
the Board, and further provided that the company shall afford the
Township adequate notice of its filing in order to enable the municipality
sufficient time to respond.
C.
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.
The company agrees to maintain in full force
and effect at its sole expense at all times during the terms of this
consent sufficient liability insurance naming the Township of Toms
River as an additional insured and insuring against loss by any such
claim, suit, judgment, execution or demand in the minimum amounts
of $1,000,000 for bodily injury or death to one person, and $100,000
for property damage resulting from any one accident.
The terms of the company's application, and
any amendments thereto except as modified by this ordinance, are incorporated
herein and are binding upon the company's terms and conditions of
this consent. The municipality notes that any portion of the application
which is in conflict with the provisions of the Cable Television Act,
47 U.S.C. § 521 et seq., and/or FCC rules and regulations
76.1 et seq., as amended, is not to be construed as effective under
the terms of this ordinance.
The company hereby acknowledges that if during
the refranchisement period it is sold, said sale will be predicated
on the purchaser's obligation to fulfill the terms of the application
and this ordinance.
Nothing in this ordinance shall be held to limit
or modify any power which any statute has granted or may later grant
to the municipality to acquire by purchase or condemnation the real
property of the company within the municipality.
Upon expiration, termination or revocation of
this ordinance, Cablevision, at its sole cost and expense and upon
approval of the Board, shall remove the cables and appurtenant devices
constructed or maintained in connection with the services authorized
herein, unless Cablevision, its affiliated entities or assignees should,
within six months after such expiration, termination or revocation,
obtain certification from the FCC to operate an open video system
or any other federal or state certification to provide telecommunications.
This consent shall be construed in a manner
consistent with all applicable federal, state and local laws.
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 hereof.
Every direction, notice or order to be served
upon the company shall be sent by certified mail or hand delivered.
Every notice to be served upon the municipality shall be delivered
or sent by certified mail to the Toms River Township Municipal Complex,
33 Washington Street, Toms River, New Jersey.
This ordinance shall take effect immediately
upon final passage and publication as provided by law subject to the
approval of the municipal consent herein granted by the Board.
