Borough of Kenilworth, NJ
Union County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the Borough of Kenilworth as indicated in article histories. Amendments noted where applicable.]
Article I Initial Term Consent

§ A217-1 Definitions.

§ A217-2 Purpose.

§ A217-3 Findings.

§ A217-4 Duration of franchise; expiration and renewal.

§ A217-5 Franchise fee.

§ A217-6 Franchise territory.

§ A217-7 Construction timetable.

§ A217-8 Conditions of construction.

§ A217-9 Extension of service.

§ A217-10 Local office.

§ A217-11 Complaint officer.

§ A217-12 Performance bond.

§ A217-13 Rates for service.

§ A217-14 Emergency uses.

§ A217-15 Interconnection.

§ A217-16 Two-way service.

§ A217-17 Access to system.

§ A217-18 Liability insurance.

§ A217-19 Incorporation of application.

§ A217-20 Severability.

§ A217-21 Consistency with future federal and state regulations.

§ A217-22 When effective.

Article II Franchise Renewal

§ A217-23 Purpose.

§ A217-24 Definitions.

§ A217-25 Statement of findings.

§ A217-26 Duration of franchise.

§ A217-27 Franchise fee.

§ A217-28 Franchise territory.

§ A217-29 Extension of service.

§ A217-30 Construction requirements.

§ A217-31 Customer service.

§ A217-32 Municipal complaint officer.

§ A217-33 Local office.

§ A217-34 Performance bonds.

§ A217-35 Subscriber rates.

§ A217-36 Public, educational and governmental access.

§ A217-37 Commitments by the company.

§ A217-38 Emergency uses.

§ A217-39 Liability insurance.

§ A217-40 Incorporation of the application.

§ A217-41 Competitive equity.

§ A217-42 Separability.

§ A217-43 Third-party beneficiaries.

§ A217-44 Effective date.

[Adopted 2-27-1979 by Ord. No. 79-2]

§ A217-1 Definitions.

For the purpose of this chapter, 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, 76.5, 47 CFR 420 (March 1972), as amended, and the Cable Television Act, N.J.S.A. 48:5A-1 et seq., and in no way shall 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, N.J.S.A. 48:5A-1 et seq.
BOARD
The Board of Public Utilities.
COMPANY
The grantee of rights under this chapter and is known as "Suburban Cablevision," a corporation of New Jersey.
MUNICIPALITY
The municipality of the Borough of Kenilworth in the County of Union and State of New Jersey.
OFFICE
The Office of Cable Television within the Department of Energy.

§ A217-2 Purpose.

The municipality hereby grants to the company a nonexclusive franchise 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.

§ A217-3 Findings.

A public hearing concerning the franchise 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 municipality having received at said hearing all comments regarding the qualifications of the company to receive this franchise, 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.

§ A217-4 Duration of franchise; expiration and renewal.

A. 
The consent herein granted shall be for a period of 10 years.
B. 
The consent herein granted shall be subject to renewal for a period of 10 years, 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.
C. 
The company shall be required to petition the Board for a certificate of approval authorizing continued operation during the period following expiration of the consent granted herein until such time as a decision is made by the municipal governing body relative to the renewal of said contract. Such petition shall be filed at least 60 days prior to the expiration of the consent herein granted.

§ A217-5 Franchise fee.

Pursuant to the terms and conditions of the act, the company shall, during each year of operations under the consent granted herein, pay to the municipality 2% of the gross revenues from all recurring charges received by the company from subscribers to its cable television reception service in the municipality.

§ A217-6 Franchise territory.

The consent granted herein to the company shall apply to the entirety of the municipality and any property hereafter annexed thereto.

§ A217-7 Construction timetable.

The company shall commence construction within 90 days after receipt of a certificate of approval from the Board and the filing of a registration statement with the Federal Communications Commission. The company shall complete construction within 18 months from the date it commences construction.

§ A217-8 Conditions of construction.

A. 
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 such work.
B. 
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, at its own expense, remove, re-lay and relocate its equipment.
C. 
Temporary removal of cables. The company shall, upon request of the municipality, at the company's expense, temporarily raise, lower or remove its lines in order to facilitate the moving of buildings or machinery or in other like circumstances. Whenever the request for removal is made by private parties, the cost will be borne by those same parties.
D. 
Removal or trimming of trees. During the exercise of its rights and privileges upon this franchise, the company shall have the authority to trim trees upon and overhanging the 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 wires and cables.

§ A217-9 Extension of service.

The company shall be required to proffer service to any person's residence or business located in those areas of the franchise territory described herein, 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 Board's line extension policy now or hereafter promulgated.

§ A217-10 Local office.

During the term of this franchise, and any renewal thereof, 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 malfunctions and similar matters. Such local business office shall be open during normal business hours and in no event less than from 9:00 a.m. to 5:00 p.m., Monday through Friday, except holidays.

§ A217-11 Complaint officer.

The Borough Clerk is hereby designated as the complaint officer for the municipality pursuant to the provisions of N.J.S.A. 48:5A-26b. All complaints shall be received and processed in accordance with the provisions of N.J.A.C. 14:17-7.1.

§ A217-12 Performance bond.

The company shall post a bond which shall remain in effect for the life of the franchise in the amount of $25,000.

§ A217-13 Rates for service.

A. 
The municipality having determined that the rates proposed in the application, and subsequent amendments thereto, for cable television reception service are reasonable, approves them as presented.
B. 
In the event that there shall be the passage of any law permitting preferred rates for senior citizens, such preferred rates shall be made available to the senior citizens of the municipality.

§ A217-14 Emergency uses.

The company shall be required to have the capability to override at the head end the audio portion of the system in order to permit the broadcasting of emergency messages by the municipal governing body.

§ A217-15 Interconnection.

In the event that the municipality determines that it is necessary and feasible for it to contract with the company for the purposes of providing interconnection services, the company shall be required to apply to the Board for approval to enter into and establish the terms and conditions of such contract. All costs for such application to the Board shall be borne by the municipality. Any such interconnection shall be done in accordance with prior Federal Communications Commission authorization and in accordance with Paragraph 22 of the Clarification of Rules, FCC 74384 46, FCC 2d 175 (1974) and FCC Rules and Regulations, 5576 252(a)(2) and 5576 252, 41 Fed. Reg. 20665 (June 30, 1976).

§ A217-16 Two-way service.

A. 
In the event that the municipality determines that it is necessary and feasible for it to contract with the company for the purpose of providing two-way service and except to the extent state regulation is preempted by the Federal Communications Commission, the company shall be required to apply to the Board for approval to enter into and establish the terms and conditions of such contract.
B. 
All costs for such application shall be borne by the contractee. The municipality and the company hereby acknowledge that state regulation of two-way cable television services has been preempted by the Federal Communications Commission, with the exception of state regulation of point-to-point intrastate nonvideo transmission.

§ A217-17 Access to system.

In the event that the municipality determines that it is necessary and feasible for it to contract with the company for the purpose of providing other specialized services, then the company shall be required to apply to the Board and the Federal Communications Commission for approval to enter into and establish the terms and conditions of such contract. All costs for such application to the Board and the Federal Communications Commission shall be borne by the contractee.

§ A217-18 Liability insurance.

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 Borough of Kenilworth as an insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $150,000 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.

§ A217-19 Incorporation of application.

All of the minutes taken in connection with the application, and all of the correspondence submitted in connection therewith, and all of the written commitments contained in the written application, except as modified herein, are to be considered to be binding upon the applicant as the terms and conditions of this consent, and that application shall be annexed hereto and made a part hereof by reference, provided that any provisions of the application in conflict with the provisions of the Cable Television Act, N.J.S.A. 48:5A-1 et seq., and/or Federal Communications Commission Rules and Regulations 5576.1 et seq. (1973), as amended and as clarified, and FCC Clarification of Rules 37 Fed. Reg. 14288 through 14300 (April 1974) shall not be construed as effective under the terms of this grant, and such provisions in the application which exceed the Federal Communications Commission Rules and Regulations are considered unenforceable.

§ A217-20 Severability.

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.

§ A217-21 Consistency with future federal and state regulations.

It is understood that should any state or federal agency or body modify, change or alter any of its provisions with respect to cable television generally, such modifications, changes or alterations shall be incorporated into this consent consistent with the applicable dates specified in the change.

§ A217-22 When effective.

This municipal consent shall become effective as of the date upon which the municipality received written notification that the company accepts the terms and conditions herein.
[Adopted 10-27-1999 by Ord. No. 99-13[1]; amended in its entirety 11-12-2014 by Ord. No. 2014-12]
[1]
Editor's Note: This ordinance superseded former Art. II, Franchise Renewal, adopted 10-27-1999 by Ord. No. 99-13.

§ A217-23 Purpose.

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.

§ A217-24 Definitions.

For the purpose of this chapter, 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:
ACT or CABLE TELEVISION ACT
Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1, et seq.
APPLICATION
The company's application for renewal of municipal consent.
BASIC CABLE SERVICE
Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
BOARD or BPU
The Board of Public Utilities, State of New Jersey.
COMPANY
The grantee of rights under this chapter and is known as Comcast of New Jersey II, LLC.
FCC
The Federal Communications Commission.
OFFICE or OCTV
The Office of Cable Television of the Board.
PRIMARY SERVICE AREA or PSA
Consists of the area of the municipality currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
TOWN or MUNICIPALITY
The Borough of Kenilworth, County of Union, State of New Jersey.

§ A217-25 Statement of findings.

Public hearings conducted by the municipality, concerning the renewal of municipal consent herein granted to the company were held after proper public notice pursuant to the terms and conditions of the act and the regulations of the Board adopted pursuant thereto. Said hearings, having been fully open to the public, and the municipality, having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal 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.

§ A217-26 Duration of franchise.

A. 
The nonexclusive municipal consent granted herein shall expire 15 years from the date of expiration of the previous certificate of approval issued by the Board, with a ten-year automatic renewal as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6.
B. 
In the event that the municipality shall find that the company has not substantially complied with the material terms and conditions of this chapter, 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.

§ A217-27 Franchise fee.

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 3.5% 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. The current franchise fee amount for the Borough is 3.5% pursuant to N.J.S.A. 48:5A-30d.

§ A217-28 Franchise territory.

The consent granted under this chapter to the renewal of the franchise shall apply to the entirety of the municipality and any property subsequently annexed hereto.

§ A217-29 Extension of service.

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. 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.

§ A217-30 Construction requirements.

A. 
Restoration. 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, restore and replace such places or things so disturbed in as good a condition as existed prior to the commencement of said work.
B. 
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. 
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 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.

§ A217-31 Customer service.

A. 
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.
B. 
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.
C. 
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.
D. 
The company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
E. 
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.

§ A217-32 Municipal complaint officer.

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.

§ A217-33 Local office.

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 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.

§ A217-34 Performance bonds.

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.

§ A217-35 Subscriber rates.

The rates of the company shall be subject to regulation as permitted by federal and state law.

§ A217-36 Public, educational and governmental access.

A. 
The company shall continue to 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. 
The company shall continue to 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. 
The company shall continue to provide a dedicated local access channel maintained by the company for the purpose of cablecasting noncommercial access programming in conformance with the company's guideline and applicable state and federal statutes and regulations.
D. 
The company shall take any steps that are necessary to ensure that the signals originated on the access channels are carried without material degradation, and with a signal whose quality is equal to that of the other standard channels that the company transmits.
E. 
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.

§ A217-37 Commitments by the company.

A. 
The company shall provide standard installation and basic cable television service on one outlet at no cost to each 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 materials plus labor basis by the school requesting service. Monthly service charges shall be waived on all additional outlets except for equipment.
B. 
The company shall provide standard installation and basic cable television service at no cost on one outlet to each police, fire, emergency management facility and public library in the municipality, provided the facility is located within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the municipality. Monthly service charges shall be waived on all additional outlets except for equipment.
C. 
The company shall provide, free of charge, one nonnetworked high-speed cable modem and monthly internet service to each school in the municipality, including public, private, elementary, and intermediate and secondary schools and to the public library. The internet service provided herein must be available to student and patron use and cannot be limited to administrative uses. All facilities must be located within 200 feet of active cable distribution plant.
D. 
Within one year of written request from the municipality the company shall provide at no cost to the municipality a second dedicated local access channel and return line and necessary equipment for signal transmission. The origination site of the channel shall be a location of the Borough's choosing.
E. 
The company shall also provide, at no cost to the municipality, an additional access channel return line and necessary transmission equipment for signal transmission for the second access channel identified in Subsection C above. Origination sites for all access channels and return lines must be with 200 feet of active cable distribution plant.
F. 
Within six months of the issuance of a renewal certificate of approval (COA) by the Board, the company shall provide to the municipality a one-time access-related technology grant in the amount of $50,000.

§ A217-38 Emergency uses.

A. 
The company will comply with the Emergency Alert System ("EAS") rules in accordance with applicable state and federal statutes and regulations.
B. 
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.

§ A217-39 Liability insurance.

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. The Borough shall be named an additional insured and shall be provided every year, during January, with proof of said coverage.

§ A217-40 Incorporation of the application.

All of the statements and commitments contained in the Application or annexed thereto and incorporated therein, and any amendment thereto, except as modified herein, is 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.

§ A217-41 Competitive equity.

Should the municipality grant a franchise to construct, operate and maintain a cable television system to any other person, corporation or entity on terms materially less burdensome or more favorable than the terms contained herein, the company may substitute such language that is more favorable or less burdensome for the comparable provision of this chapter subject to the provisions of N.J.A.C. 14:17-6.7.

§ A217-42 Separability.

If any section, subsection, sentence, clause, phrase or portion of this chapter 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 chapter.

§ A217-43 Third-party beneficiaries.

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.

§ A217-44 Effective date.

This chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.