[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:
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.
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.
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.
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.
A.Â
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.
B.Â
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.
C.Â
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.
A.Â
Cablevision shall designate one composite noncommercial public, educational
and governmental (PEG) access channel for use by the Borough.
B.Â
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.
C.Â
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:
A.Â
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.
B.Â
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.
C.Â
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.
D.Â
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:
A.Â
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,
B.Â
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
C.Â
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
D.Â
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.
A.Â
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.
B.Â
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.
