[HISTORY: Adopted by the Township Council
of the Township of Moorestown 11-26-1990 by Ord. No. 1555-90;[1] amended in its entirety 12-15-2008 by Ord. No. 39-2008. Subsequent amendments noted where applicable.]
[1]
Editor's Note: This ordinance supersedes former
Ch. A220, Cable Television Franchise, adopted 10-9-1978 by Ord. No.
931, as amended.
As used in this chapter, the following terms
shall have the meanings indicated:
Chapter 186 of the General Law of New Jersey 1972, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The company's application for renewal of municipal consent.
The Board of Public Utilities of the State of New Jersey.
The Office of Cable Television of the Board of Public Utilities.
The grantee of rights under this chapter, known as Comcast
of Garden State L.P., its servants, employees, agents, officers, directors,
contractors, successors and assigns.
The construction, installation and completion of cable television
system facilities, fixtures and other things described and/or referred
to in the company's application and all correspondence, commitments,
representations and other statements in connection therewith. Construction
shall not pertain to small extensions of plant or the installation
of services to residences, businesses, or institutions.
The Federal Communications Commission.
The construction or installation of cable television service
lines along public rights-of-way not previously served by the company.
An office, open to the public as further described and defined in § A220-11 hereof.
Any service drop where the distance exceeds that of a standard
installation.
Those channels requiring a descrambling device or decoder.
The service connection between the public right-of-way or
the main service line and the building being served.
Any service drop the length of which is equal to or less
than 150 feet underground or aerial.
The Township of Moorestown in the County of Burlington, State
of New Jersey.
A.
The Council hereby consents, subject to the terms,
conditions and provisions of this chapter, to the company's placing
in, upon, along, across, above, under and over the highways, streets,
alleys, sidewalks, easements and rights-of-way of the Township poles,
wires, cables, underground conduits, manholes and other incidental
television conductors and fixtures necessary for the operation and
maintenance within the Township of a cable television system.
B.
No easement, right-of-way, title in fee simple, leasehold
or other interest in real estate nor any other interest in property
of the Township is hereby granted.
C.
The foregoing consent is and shall at all times also
be subject to full and detailed compliance with the Township's Zoning
Ordinance,[1] Land Subdivision Ordinance,[2] all other Township ordinances and resolutions and all
rules, regulations and laws of all applicable jurisdictions ("requirements")
as to all aspects of locations, operations, maintenance and to all
facilities and equipment, movable or fixed, except as such requirements
may be preempted under state or federal law.
Public hearings conducted by the Council 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 Council
having received at said public hearings all comments regarding the
qualifications of the company to receive this renewal of municipal
consent, the Council herein finds:
A.
That the company has substantially complied with its
obligations under the franchise and applicable law, and has provided
generally satisfactory service, and the Township has no reason to
believe that in the future the company would fail to comply with its
obligations under a renewal of the franchise and under applicable
law; and
B.
That if the company undertakes the commitments herein,
and performs thereunder, such shall provide a reasonable assurance
of meeting the Township's future cable-related needs.
A.
The nonexclusive municipal consent granted herein
shall expire 15 years from the date of the expiration of the previous
certificate of approval, with a ten-year automatic renewal as provided
by N.J.S.A. 48:5A-19 and 48:5A-25 and N.J.A.C. 48:5A-14:18-13.6. The
previous certificate of approval expired on December 31, 2003.
B.
In the event that the Council shall find that the
company has not substantially complied with the material terms and
conditions of this chapter, the Township 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 Township 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.
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 Township a sum equal to 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers to the company's cable television reception service within the franchise territory referred to under § A220-6, or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater.
B.
Comcast shall report gross revenues in accordance
with regulations set forth by the Board of Public Utilities. Comcast
agrees that such information shall be available to the Township from
the Board of Public Utilities upon request.
The consent granted herein to the company shall
apply to the entirety of the Township and to any property subsequently
annexed thereto. Any questions or clarifications sought as to boundary
locations or rights or interests in property shall be resolved by
the company at its own cost and expense.
A.
The company shall, during the franchise period, offer
cable television reception service to every present or future dwelling
unit, school, institution and business located and to be located in
the primary service area of the franchise territory, as reflected
on the map included in the company's application. The company shall
provide that connection not later than three months following the
date of the issuance of a certificate of occupancy for a new dwelling
unit, provided that reasonable advance notice is given by the new
owner or resident to the company concerning his or her desire for
service.
B.
No line extension charge shall be levied by the company
within the franchise territory on existing streets and roads. Streets
and roads constructed after franchise adoption, or extensions of existing
streets and roads, will be governed by the company's line extension
policy, HPM (houses per mile) of 35.
C.
Standard installation charges shall apply to all installations
of 150 feet or less measured from the main service line or right-of-way
line, whichever is less, or as same shall be modified by the company's
tariff.
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 and things so disturbed
to and in not less than as good condition as existed prior to each
such disturbance. In so doing, the company shall comply with all applicable
ordinances, resolutions, laws, rulings and regulations.
B.
Relocation. If, at any time during the period of this
consent, the Township shall alter or change the grade of any public
street, alley or other way or place or alter or change the location
or grade of any public water or sewer facility or other utility facility,
the company, upon reasonable notice by the Township, shall, at its
own expense, remove, relay and relocate its cables, equipment or other
facilities.
C.
Temporary removal of cables. The company shall, upon
request of the Township, at the company's expense, temporarily raise,
lower or remove its cables and associated facilities in order to facilitate
the moving of Township-owned buildings, equipment, vehicles and machinery
and to accommodate other like circumstances. In light of a temporary
removal request by other than the Township for non-Township-owned
buildings, equipment, vehicles and machinery, the cost of such temporary
removal shall be the responsibility of the requesting party.
D.
Removal and/or trimming of trees. The company shall,
subject to the following conditions, have the authority to trim trees
overhanging streets, alleys, sidewalks or other public places of the
Township 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 of the
company's wire and cables.
(1)
The company will not, without the prior consent of
the Township's Tree Superintendent or his designee, trim or remove
trees in the public rights-of-way or parks in the Township, except
in an emergency. The Tree Superintendent will respond to a request
for authorization within 48 hours, Monday through Friday. If requested,
the company will perform any trimming under the direct supervision
of the Tree Superintendent or his designee.
(2)
The company and the Township will cooperate in mitigating
any potential damage to company-owned underground cable and trees
on Township property. The company will cooperate closely with the
Township in the planting and/or removal of trees in the curb strip
where underground cable has been determined to be present. On any
weekday, the company will respond to a request from the Township to
mark its underground lines within 24 hours, and will provide a special
telephone number for this purpose. (This refers only to the company's
lines; the company cannot locate and shall not be responsible for
other utilities.) If requested on a case-by-case basis, and on 48
hours' notice, the company will be on standby for a tree removal that
includes uprooting of a tree and potential cable damage.
(3)
The company shall not trim a privately owned tree
until the company has provided the owner of the tree with reasonable
notice, and complies with all laws respecting any approval to be secured
from the owner of privately owned trees.
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 Council upon written request of the Township Clerk or Township
Manager.
A.
The company shall continue to comply fully with all
applicable state and federal regulations regarding credit for outages,
the reporting of same to regulatory agencies and notification of the
same to customers.
B.
The company shall continue to comply fully 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.
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.
Nothing herein shall impair the right of any subscriber
or the Township 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 the law.
The Office of Cable Television ("OCTV") is hereby
designated as the Complaint Officer for the Township 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 Township shall have the right to request
copies of records and reports pertaining to complaints by Township
customers from the OCTV, although the Township recognizes the company's
obligation to abide by appropriate laws and requirements regarding
the protection of confidential customer information.
A.
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 officer
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.
B.
The company shall remove the telephone complaints
number that is, under the previous franchise, currently answered by
the Township from the company's channel line-up and the rates and
charges card when next printed, and shall instead list the OCTV as
the complaint office.
C.
The company shall comply with the recommended cable
industry service standards of the National Cable Television Association.
During the life of the franchise the company
shall give to the Township 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.
The company shall provide total preferred cable television
service on one outlet at no cost to each school in the Township, 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 entity requesting service. Monthly service charges shall
be waived on all additional outlets.
B.
The company shall provide total preferred cable television
service on one outlet at no cost to each fire station, police station,
emergency management facility and public library in the Township,
and to the Town Hall and the Public Works Center, provided the facility
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 entity requesting service. Monthly service charges shall
be waived on all additional outlets.
C.
The company shall provide free basic internet service,
via high-speed cable modem, to one non-networked personal computer
in each qualified existing and future elementary, intermediate and
secondary school, both public and private in the Township, provided
the school is 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.
D.
The company shall provide free basic internet service,
via high-speed cable modem, to one non-networked personal computer
in each qualified existing and future public library provided the
facility is within 175 feet of an active cable distribution plant.
The internet service shall be installed on a personal computer that
is accessible to library patrons and not for administrative use only.
E.
The company shall provide to the Township, for any
purpose the Township deems appropriate, a one-time technology grant
in the amount of $40,000 within 12 months of the issuance of a renewal
certificate of approval.
A.
The company shall provide, at its sole expense, an
emergency alert system ("EAS") in compliance with applicable state
and federal statutes and regulations.
B.
The company shall in no way be held liable for any
injury suffered by the Township or any other person during an emergency,
if for any reason the Township is unable to make full use of the cable
television system as contemplated herein.
A.
The company will provide one channel for educational
and governmental ("EG") access for use by the residents of Moorestown
Township on the most basic tier of service offered by the company
in accordance with the Cable Act, Section 611, and as further set
forth below. Unused capacity may be utilized by the company subject
to the provisions for "fallow time" below.
B.
Within 12 months of the issuance of a written request
from the Township and after at least 12 months after the receipt of
a renewal certificate of approval, the company shall construct, at
no cost to the Township, a dedicated fiber optic return line, to be
located at within 250 feet of an existing company plant, for the purpose
of cablecasting live and/or recorded programming on the shared E/G
channel. Within 12 months of the issuance of a written request from
the Township and at least 12 months after the receipt of a renewal
certificate of approval, the company shall isolate Township transmission
points to provide for Township-only programming. The company shall
undertake all necessary work and expense to isolate and convert the
channel to broadcast solely within the franchise area.
C.
The company shall provide and maintain the cable,
modulators and equipment necessary for the Township E/G channel to
send a signal to the company, and to receive the return feed of signal.
The company will not be responsible for the maintenance of any studio
equipment used for the E/G channel, including but not limited to cameras,
editing decks, monitors, character generators, etc.
(1)
The company does not relinquish its ownership
of or ultimate right of control over a channel by designating it for
EG use. An EG access user, whether an educational or governmental
user, acquired no property or other interest by virtue of the use
of a channel so designated, and may not rely on the continued use
of a particular channel number, no matter how long the same channel
may have been designated for such use.
(2)
The company shall not exercise editorial control
over any educational or governmental use of channel capacity, except
the company may refuse to transmit any educational or governmental
access program or portion of an educational or governmental access
program that contains obscenity, indecency, or nudity.
(3)
The Township Council shall be responsible for
developing, implementing, and enforcing rules for the EG access channel
use which shall insure that the EG access channel and the EG access
equipment, which shall be provided by the Township, will be available
on a first-come-first-served, nondiscriminatory basis.
(4)
Educational access. "Educational access" shall
mean noncommercial use by educational institutions such as public
or private schools, but not "home schools," community colleges, and
universities.
(5)
Government access. "Government access" shall
mean noncommercial use by the Township Council.
(6)
Company use of fallow time. Because blank and
underutilized EG channels are not in the public interest, in the event
the Township elects not to fully program their EG access channel,
the company may program unused time on those channels subject to reclamation
by the Township upon no less than 60 days' written notice.
(7)
Indemnification. The Township shall indemnify
the company for any liability, loss, or damage it may suffer resulting
from actions over which the Township exercises control due to violation
of the intellectual property rights of third parties on the EG channel
and from claims arising out of the Township's rules for or administration
of access.
Should the Township 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.
A.
A petition for the approval or amendment of the terms
or conditions of a municipal consent upon which a certificate of approval
is based shall conform to the provisions of N.J.A.C. 14:17-4 and 4:17-6.1
through 14:17-6.4 to the extent applicable, and shall in the body
thereof or attached exhibits also provide the following information:
(1)
A certified copy of the existing municipal consent
including the terms and conditions related thereto;
(2)
A statement describing the proposed modification
or amendments to said terms or conditions with reasons for the changes
proposed;
(3)
Proof of service of notice to all cable television
companies operating in the areas either contiguous to or in the same
franchise territory to that served by the petitioners;
(4)
A copy of the agreement between the municipality
and the petitioner stating that the changes are acceptable.
B.
For the purposes of this section, proof of service
of notice shall include a copy of the notice and service of notice
upon the indicated party.
C.
The petitioner shall provide copies of the petition
to noticed parties upon request.
The Telecommunications and Technology Committee
or such other committee as Council may designate shall:
A.
Oversee programming on the educational and governmental
access channel.
B.
Arbitrate disputes among persons requesting the use
of educational access and/or governmental access channel for initiation
of programming.
C.
Serve as liaison between the Council and schools on
the one hand and the company on the other hand.
D.
Furnish such information and advice to the Council
as may be required by this chapter or as the Council may from time
to time request.
Company representatives shall not be required
to appear more than once per year, upon written notice of at least
30 days, before the Council or such other committee as Council may
designate, to discuss matters pertaining to the provision of cable
service to residents of the Township and other cable-related issues,
if such a meeting is needed. The necessity of such meetings shall
be determined solely by the Township. Notwithstanding, in an emergency
situation, the Township may dispense with the notice requirement and
call an immediate meeting with the company representatives.
A.
The company shall give notice, as required under FCC
or Board regulations, of all proposed or contemplated changes and
requests and applications for changes in rates, fees and charges of
all kinds, and in the type and configuration of channels and/or subscriber
equipment used and/or sought or intended to be used.
B.
The Council may choose to conduct a public hearing
on the proposed changes. If the Township chooses to conduct said public
hearing, then the company shall attend said hearing, upon reasonable
notice, and may respond to questions on the changes.
The company shall at all times maintain a comprehensive
general liability 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 company shall assure that
no such policy of insurance may be cancelled without a minimum of
30 days' notice to the Township. The company shall deliver to the
Township certificates of insurance naming the Township as an additional
insured for every such policy immediately upon or prior to the effective
date of each.
A.
The company shall hold and save the Township harmless
from and indemnify and defend the Township against every claim, loss
and liability of every kind arising in any and every way, directly
and indirectly, immediately and consequentially, ("loss") from:
(1)
The grant or use of this municipal contract.
(2)
The construction, operation and/or maintenance
of a cable television system and/or incidental fixtures or facilities
within or without the Township.
(3)
Any act or omission of the company or any of
its officers, directors, employees, agents, contractors, suppliers,
materialmen or affiliated companies.
(4)
The exercise or implementation, whether or not
proper or lawful, of any right or privilege, express or implied hereunder,
by law or otherwise arising out of this municipal consent or in any
other way caused, directly or indirectly, by the company's action,
inaction, franchise, operation, maintenance, construction, installation
or the like, except that this section shall not apply to any loss
caused by or attributable to the Township's actions or inactions.
B.
"Loss" shall include all actual legal fees and court
costs.
Except as modified by this chapter, 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:
A.
All correspondence and other writings and documents
submitted by the company in connection with its application.
B.
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 Township Clerk and is available
for public inspection, shall, upon final adoption of this chapter,
be annexed hereto and made a part hereof.
In the event of any change in controlling law
or any change in any controlling regulations or ruling of any federal,
state or other governmental body or agency, each such change shall
be incorporated into this consent effective on and after the applicable
date of each such change.
Nothing in this consent, in the franchise renewal
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.
If any section, paragraph, sentence, clause,
phrase, term, provision or part of this chapter 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 to 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.
This municipal consent shall take effect immediately
upon issuance of a renewal certificate of approval from the Board
of Public Utilities.
