[HISTORY: Adopted by the Township Council of the Township of Clark 7-14-2004 by Ord. No. 04-09 (Ch. XXVII of the 2002 Revised General Ordinances). Amendments noted where applicable.]
The Township hereby grants to Comcast of New Jersey II, LLC, 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 Township 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 Township of a cable television and communications system.
For the purposes of this chapter, 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 (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.
- 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.
- The grantee of rights under this chapter and is known as "Comcast of New Jersey II, LLC."
- The Federal Communications Commission.
- MUNICIPALITY or TOWNSHIP
- The Township of Clark, County of Union, State of New Jersey.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
Public hearings conducted by the Township 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 have been fully open to the public, and the Township, having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal consent, hereby finds that the company possess 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 48:5A-25 and N.J.A.C. 14:18-13.6.
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.
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 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers for cable television reception service in the Township or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater.
The consent granted under this chapter for the renewal of the franchise shall apply to the entirety of the Township and any property subsequently annexed hereto.
The company shall be required to proffer service along any public right-of-way to any person's residence or business located in all areas of the franchise territory as described herein, at tariffed rates for standard and nonstandard installations.
The company has completed an upgrade of the cable television distribution system serving the Township. The upgraded system is a hybrid fiber optic/coaxial cable system following a "fiber to the node" architecture. The upgraded system provides improved picture quality, enhanced signal reliability and increased channel capacity.
The upgrade has been completed following the company's engineering guidelines for hybrid fiber/coaxial (HFC) plant design, which meets or exceeds all applicable state and federal regulations, as well as voluntary cable television industry standards, and follows commonly accepted industry practices.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, or other surface in the nature 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.
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 or relocate its equipment, at the expense of the company.
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 is made by, for, or on behalf of private parties, the cost will be borne by those same parties.
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 cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance of the company's wires and cables.
In providing services to its customers, the company shall comply with N.J.A.C. 14:18-1.1 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 community upon written request of the Township Administrator or Clerk.
The company shall continue to comply fully with all applicable state and federal statutes and regulations regarding credits for outages, the reporting of same to regulatory agencies and notification of same to customers.
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.
The company shall use every effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA). Those standards shall include, but not be limited to, the goal of answering 90% of incoming telephone calls within 30 seconds.
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 appropriate under law.
The company is permitted, but is not required to, charge a late fee consistent with applicable state and federal statutes and regulations.
The Office of Cable Television is hereby designated 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 Township customers from the OCTV.
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. Telephone response for such purposes as mentioned herein will be provided by the company's employees, representatives or agents 24 hours per day.
The telephone number and address of the local office shall be listed in applicable telephone directories and in correspondence from the company to the customer. The telephone number for the local office shall utilize an exchange that is a non-toll call for Township residents.
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.
The rates of the company shall be subject to regulation as permitted by federal and state law.
The company shall continue to provide residents with a system-wide public access channel (currently channel 26) 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.
The company shall continue to provide a system-wide leased access channel (currently channel 27) maintained by the company for the purpose of cablecasting commercial access programming in conformance with the company's guidelines and applicable state and federal statutes and regulations.
The company shall continue to provide an access channel (currently channel 36) maintained by the company for use by the municipality and its designees for the purpose of cablecasting noncommercial educational and governmental programming.
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 analog channels that the company transmits.
The company shall relocate the existing return of the access channel that is dedicated for use by the Township of Clark from its current location to the new master control room at 430 Westfield Avenue at its sole expense within a mutually agreed time frame. The company shall install an outlet for a monitor (not provided by the company) in the master control room at its sole expense.
Within 12 months of the issuance of a renewal certificate of approval (COA) by the BPU, the company shall construct three additional origination points to send noncommercial programming to the new master control room at 430 Westfield Avenue as follows:
The company shall construct and maintain, at its sole expense, three fiber optic returns for noncommercial programming to originate from two fixed cameras and one remote-controlled camera mounted in the Council Chamber at 315 Westfield Avenue. Said returns shall allow operation of said cameras from the master control room at 430 Westfield Avenue. The company shall provide, at its sole expense, the necessary transmitters and receivers for the returns. The company shall similarly relocate the cable outlet for a television monitor (not provided by the company) to the new master control room.
The company shall construct and maintain, at its sole expense, a fiber optic return to allow noncommercial programming to originate from the Clark High School auditorium or other location within the high school.
The company shall construct and maintain, at its sole expense, a fiber optic return to allow noncommercial programming to originate from the high school football field. The company shall provide, at its sole expense, a transmitter and receiver for the return. Further, the company shall install and maintain, at its expense, a cable outlet for a television monitor (not provided by the company) at the announcer's booth and provide free preferred monthly service.
Within 12 months of the issuance of a renewal certificate of approval (COA) by the BPU, the company shall provide to the municipality a one-time grant for production equipment in the amount of $50,000.
The company shall continue to provide free preferred monthly service on one outlet in each public and private elementary and secondary school that may be constructed in the Township and on one outlet in the Municipal Building and each Fire Department, First Aid Squad, library and public works building that is located in or may be constructed within the Township, provided the facility is located within 200 feet of an active cable distribution plant. Each additional outlet installed, if any, shall be paid for by the requesting facility on a materials-plus-labor basis. Monthly service charges shall be waived on all additional outlets.
The company shall make every effort to deploy new or advanced technology and/or services in the Township that are commercially available, economically practicable, and technically feasible. That technology shall include but not be limited to video-on-demand; digital video compression; advanced or high-definition television; digital audio services; digital television, high-speed Internet service via cable modem; and interactive program guides.
In the event that the Township 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 BPU for approval to enter into and establish the terms and conditions of such contract. All costs for such application to the BPU shall be borne by the Township.
The company shall be required to fully comply with all applicable federal and state statutes and rules and regulations governing the implementation, operation and testing of the Emergency Alert System (EAS).
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 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 $3,000,000.
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 writings submitted by the company shall be considered a part of this chapter and made a part hereof by reference as long as it does not conflict with state of federal law. All ordinances or parts of ordinance or other agreements between the Township and the company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
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.
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.
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.
This chapter shall supersede Ordinance No. 94-20, effective September 7, 1994, which is hereby repealed in its entirety.
This chapter shall take effect immediately upon issuance of a renewal certificate of approval by the BPU.