[HISTORY: Adopted by the Municipal Council of the Borough of Hawthorne 3-5-2004 by Ord. No. 1821-04. Amendments noted where applicable.]
For the purpose of this ordinance the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
- ACT or CABLE TELEVISION ACT
- That statute of the State of New Jersey relating to cable television, known as the Cable Television Act, N.J.S.A. 48:5A-1 et seq.
- Cablevision's application for renewal of municipal consent, which application is on file in the Borough Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The governing body of the Borough of Hawthorne in the County of Passaic, and the State of New Jersey.
- Cablevision of Oakland, LLC ("Cablevision") the grantee of rights under this ordinance.
- The Federal Communications Commission.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. and the Telecommunications Act of 1996, or as those statutes may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television services, 47 C.F.R. 76.1 et seq. (and, to the extent applicable, any other federal rules and regulations relating to cable television, including but not limited to those described in 47 C.F.R. 76.3), or as such regulations may be amended.
- The State of New Jersey.
- STATE REGULATIONS
- Those regulations of the State of New Jersey Board of Public Utilities relating to cable television. N.J.A.C. 14:17-1.1 et seq. and N.J.A.C 14:18-1 et seq., or as such regulations may be amended.
A public hearing concerning the consent herein granted to Cablevision was held after proper public notice pursuant to the terms and conditions of the Act. Said hearing having been held and fully open to the public, and the municipality having received all comments regarding the qualifications of Cablevision to receive this consent, the Borough hereby finds Cablevision possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent, and that Cablevision's operating and construction arrangements are adequate and feasible.
The Borough hereby grants to Cablevision its nonexclusive consent to place in, upon, along, across, above, over, and under its highways, streets, alleys, sidewalks, public ways, and public places in the municipality poles, wires, cables, and fixtures necessary for the maintenance and operation in the Borough of a cable television system, and for the provision of any communication service over the such system as may be authorized by federal or State regulatory agencies. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive and shall be for a term of 15 years commencing upon the date of expiration of the prior grant of franchise to Cablevision or its successor, said franchise having expired on November 3, 2001. The term of this agreement shall therefore be 15 years, commencing November 4, 2001, and ending November 3, 2016.
If Cablevision seeks successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with N.J.S.A. 48:5A-16 and applicable state and federal rules and regulations. The company shall also petition the Board for approval authorizing continued operation during the period following expiration of the consent granted herein, and until such a time that a decision is made by the Borough and the Board relative to the renewal of said consent.
The consent granted under this ordinance to Cablevision shall apply to the entirety of the Borough and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along any public right-of-way to any person's residence within the portion of the franchise territory, as described in the Application for municipal consent, at tariffed rates for standard and nonstandard installation. All commercial installations shall be installed in accordance with the company's line extension policy included in Cablevision's application.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision shall pay to the Borough, as an annual franchise fee, a sum equal to 2% of the actual gross revenues received from all recurring charges in the nature of subscription fees paid by subscribers for its cable television reception services in the Borough. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Borough and Cablevision shall negotiate in good faith with respect to the amount thereof. In the event applicable law mandates a fixed maximum fee that exceeds 2% of the actual gross revenues, then the Borough shall be entitled to receive that rate in the place of that set forth herein.
Upon request, Cablevision shall provide, free of charge, one standard installation and monthly basic cable television reception service to all state or locally accredited primary and secondary schools; all municipal public libraries, as well as municipal buildings located within the Borough as provided in the attached Exhibit A.
Upon request, Cablevision shall provide, free of charge, one high-speed cable modem and monthly Internet access service, including standard installation, to all state or locally accredited elementary and secondary schools and all municipal public libraries located within the Borough.
Upon request, Cablevision shall provide to the Borough, free of charge, one high-speed cable modem and monthly Internet access service, including a standard installation, to a municipally designated building, (the "designated building"). The Borough 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 designate one composite noncommercial public, educational and governmental (PEG) access channel for use by the Borough.
The Borough agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming, during times when the Borough is not utilizing the channel for purposes of providing PEG access programming. In the event that the company uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use and the company's rights with respect to using the channel for non-PEG programming shall be subordinate to the Borough provision of PEG access programming on such channel.
In consideration for the rights granted in this ordinance, Cablevision shall provide a one-time grant of $50,000 to be used by the Borough toward the purchase of PEG access programming and production equipment. The equipment purchased shall be under the exclusive control of the Borough, and may be used solely for noncommercial programming by the Borough, its residents and schools, for the benefit of Cablevision subscribers within the municipality.
Cablevision shall perform construction and installation of its plant and facilities in accordance with applicable state and federal law. The company shall be subject to the following additional construction requirements with respect to the installation of its plant and facilities in the Borough:
In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces, the company shall at its sole expense restore and replace such disturbances in as good a condition as existed prior to the commencement of said work.
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 Borough shall remove or relocate its equipment, at its own expense.
Upon request of a person holding a building or moving permit issued by the Borough, 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.
During the exercise of its rights and privileges under this consent, the company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and fixtures of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities.
Cablevision shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
Cablevision shall establish and maintain during the entire term of this consent a local area business office or agent for the purpose of receiving, investigating and resolving complaints regarding the quality of service, equipment malfunctions and similar matters. Said office shall be open daily during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday, with the exception of holidays.
The Office of Cable Television is hereby designated as the complaint officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26. All complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect at its sole cost at all times during the term of this consent, sufficient liability insurance naming the Borough as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $500,000 for bodily injury or death to one person, and $1,000,000 for bodily injury or death resulting from any one accident or occurrence stemming from or arising out of the company's exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this agreement, a bond to the Borough in the amount of $25,000. Such bond shall be to insure the faithful performance of its obligations as provided in this Franchise.
The rates of the company shall be subject to regulation as permitted by federal and state law.
Cablevision shall implement a senior citizen discount in the amount of 10% off the monthly rate of the broadcast basic level of cable television reception service to any person 62 years of age or older who subscribes to the company's cable television service, subject to the following:
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,
In accordance with N.J.S.A. 48:5A-11.2, subscribers seeking eligibility for the discount must meet the income and residence requirements of the Pharmaceutical Assistance to the Aged and Disabled program pursuant to N.J.S.A. 30:4D-21; and
The senior discount herein relates only to the broadcast basic level of cable television service, and shall not apply to any additional service, feature, or equipment offered by the company, including any premium channel services and pay-per-view services; and
Senior citizens who subscribe to a level of cable television service beyond expanded basic service, including any premium or per channel a la carte service, shall not be eligible for the discount.
Cablevision shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Borough pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the Borough 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 Borough shall utilize the state-approved procedures for such emergency uses.
In the event that the Borough approves or permits a cable system to operate in the community on terms more favorable or less burdensome than those contained in this ordinance, such more favorable or less burdensome terms shall be applicable in this consent, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
In the event that a nonfranchised multichannel video programmer provides service to residents of the Borough, Cablevision shall have a right to request franchise amendments to this ordinance that relieve Cablevision of regulatory burdens that create a competitive disadvantage to the company. In requesting amendments, Cablevision shall file with the Board of Public Utilities a petition for approval in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 seeking to amend this ordinance. Such petition shall: i) indicate the presence of a nonfranchised competitor(s); ii) identify the basis for Cablevision's belief that certain provisions of this franchise place it at a competitive disadvantage; and iii) identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage. The Borough shall not unreasonably withhold or object to granting the company's petition and so amending this ordinance, subject to a petition to the Board of Public Utilities as provided for in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
Upon expiration, termination or revocation of this ordinance, Cablevision at its sole cost and expense and upon approval of the Board of Public Utilities, 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.
All of the commitments contained in the application, and any amendment thereto submitted in writing to the Borough by the company except as modified herein, are binding upon Cablevision as terms and conditions of this consent. The application and any other writings submitted by Cablevision in connection with this consent are incorporated in this ordinance by reference and made a part hereof, except as specifically modified, changed, limited, or altered by this ordinance, or to the extent that they conflict with state or federal law.
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 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 portion thereof.
This ordinance shall take effect upon issuance of a certificate of approval as issued by the Board of Public Utilities.