[HISTORY: Adopted by the Borough Council of the Borough of Wrightstown 8-11-2004 by Ord. No. 2004-4. Amendments noted where applicable.]
Editor's Note: This ordinance superseded former Ch. A225, Cable Television Franchise, adopted by Ord. No. 1994-12 (Chapter XX of the Revised General Ordinances).
The Borough 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 continued operation and maintenance in the municipality of a cable television and communications system. All construction must comply with Wrightstown Borough Code Chapter 219, except where said Code is superseded by federal or state law.
Comcast of Garden State, L.P., (hereinafter "company"), is hereby granted the use of the highways, streets and alleys as are owned by the Borough or in which the Borough possesses an easement or right-of-way, but no such interest is granted with respect to such other public property as is owned by the Borough, whether by easement, right-of-way, title in fee simple, leasehold or any other interest.
The foregoing consent is and shall at all times be subject to all rules, regulations and laws of all applicable jurisdictions, particularly N.J.S.A. 48:5A-22, as to all aspects of locations, operations, maintenance and to every microwave or other receiver or transmitter, studio facilities, mobile equipment and vehicles, all other facilities, equipment, apparatus and the sending or receiving of signal, and offices, storage, power sources, power plant and the like to be in full and detailed compliance with the Borough of Wrightstown's Land Use Ordinances to the extent not otherwise preempted.
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, F.C.C. Rules and Regulations, 47 C.F.R. 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:
- The Cable Television Act in Chapter 186 of the General Laws of New Jersey, N.J.S.A. 48:5A-1 et seq., and subsequent amendments thereto.
- Board of Public Utilities.
- BOROUGH or MUNICIPALITY
- The Borough of Wrightstown, County of Burlington and State of New Jersey.
- The grantee of rights under this ordinance and is known as "Comcast of Garden State, L.P."
- The Federal Communications Commission.
- OFFICE or OCTV
- The Office of Cable Television.
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 hearings having been fully open to the public, and the Borough having received at said hearing all comments regarding the qualifications of the company to receive this franchise renewal consent, the Borough 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 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.
In the event that the municipality shall find that, after providing written notice to the company and holding a public hearing, the company has not substantially 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.
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 Borough 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers for cable television reception in the Borough, or any greater amount permitted by the Act or otherwise allowable by law, whichever is greater.
The consent granted herein to the company shall apply to the entirety of the Borough and any property hereafter annexed thereto.
Restoration. In the event that the company or its agents shall disturb any pavement, street, sidewalk, driveway, or other surface of nature or topography, the company shall, at its sole expense, restore and replace such things or places so disturbed in as good if not better a condition as existed prior to the commencement of said work.
Relocation. If at any time during the period of this consent the Borough shall alter or change the grade of any street, alley or other passage or way, the company, upon reasonable notice by the Borough, shall remove, relay or relocate its equipment, at the sole expense of the company.
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.
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 for municipal consent. Any extension of the system beyond the primary service area shall be governed by the company's line extension policy, as set forth in the company's application for municipal consent.
In providing services to its customers, the company shall comply with N.J.A.C. 14:18-1 et seq. and all applicable local, 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 by the municipality.
The company shall continue to comply fully with all applicable state and federal statutes and regulations regarding credit for outages, and shall report same to regulatory agencies along with notification of same to customers.
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.
The company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
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 by law.
The Office of Cable Television is hereby designated as the complaint officer for 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. 14:17-6.5. The municipality shall have the right to request copies of records and reports pertaining to complaints by municipality customers from the OCTV.
During the life of the franchise, the company shall give to the Borough a bond in the amount of $25,000. Such bond shall be to insure the faithful performance of any and 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.
The company will comply with the emergency alert system (EAS) rules in accordance with applicable state and federal statutes and regulations. The company shall in no way be held liable for any injury suffered by the municipality or any other person during or related to an emergency if for any reason the State Office of Emergency Management is unable to make full use of the cable television system as contemplated herein.
The company shall provide total preferred 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 175 feet of an 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. Any and all monthly service charges shall be waived on all additional outlets.
The company shall provide total preferred 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 175 feet of an active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a materials-plus-labor basis by the municipality. Any and all monthly service charges shall be waived on all additional outlets.
The company shall provide free of charge basic Internet service, via high-speed cable and modem to one nonnetworked personal computer in each qualified existing and future school in the municipality, public and private, elementary, intermediate and secondary, at no charge provided the facility is located within 175 feet of an active cable distribution plant. The Internet service shall be installed on a personal computer that is accessible to the students and not for administrative use only.
The company shall provide total preferred cable television service on one outlet at no cost to the existing municipal administration building at 21 Saylors Pond Road, Wrightstown, New Jersey. The company shall provide total preferred cable television service on one outlet to arty qualified future municipal administration building provided the facility is located within 250 aerial feet of an active cable distribution plant. Installation of additional outlets shall be paid for on a materials-plus-labor basis by the municipality. Any and all monthly service charges shall be waived on all additional outlets.
Within six months of the approval of this Municipal Consent Ordinance, the company shall provide the Borough with a one-time technology grant in the amount of $3,000 for cable or technology related needs.
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 or 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.
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 damage 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 commitments and statements contained in the application and any amendment thereto submitted in writing to the municipality by the company, except as modified herein, are binding upon the company as terms and conditions of this Municipal Consent. The application and any other relevant writing submitted by the company shall be annexed hereto and made a part hereof by reference as long as it does not conflict with state or federal law. All ordinances or parts of ordinances or other agreements between the municipality and the company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
Except as modified by this ordinance, the following are hereby incorporated by reference and are and shall continue to be binding upon the company as the terms and conditions of this consent to the same extent as if set forth verbatim herein except where in conflict with the provisions of state or federal law.
All correspondence and other writings and documents submitted by the company in connection with its application;
The written application of the company and all commitments, representations and other statements contained therein. The company's application, which has been filed with the Borough Clerk and available for public inspection, shall upon final adoption of this ordinance be annexed hereto and made a part hereof.
If any section, paragraph, sentence, clause, phrase, term, provision or part of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid or inoperative, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the section, paragraph, sentence, clause, phrase, term, provision or part thereof directly involved in the controversy in which such judgment shall have been rendered.
All ordinances or parts of ordinances heretofore adopted which are inconsistent with the terms and provisions of this ordinance are hereby repealed to the extent of such inconsistency.
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.
Should the municipality grant a franchise to construct, operate and maintain a cable television system to any other person, corporation or entity on terms 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 ordinance subject to the provisions of N.J.A.C. 14:17-6.7.
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 9:00 a.m. to 5:00 p.m., Monday through Friday.
This ordinance shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.