[HISTORY: Adopted by the City Council of the City of Somers Point 10-23-2014 by Ord. No. 28-2014. Amendments noted where applicable.]
The City of Somers Point hereby grants to Comcast of South Jersey, LLC, a 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 City, poles, wires, cables, underground conduits, manholes and other television conductors, fixtures, apparatus and equipment as may be necessary for the construction, operation and maintenance of a cable television and communications system in the City of Somers Point.
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 ("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 the New Jersey Administrative Code, N.J.A.C. 14:18-11.6 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.
- The company's application for renewal of municipal consent.
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
- BOARD, NJBPU or BPU
- The New Jersey Board of Public Utilities.
- CITY or MUNICIPALITY
- The City of Somers Point, County of Atlantic, and State of New Jersey.
- COMPANY or PETITIONER
- The grantee of rights under this ordinance and is known as Comcast of South Jersey, LLC.
- EDUCATIONAL ACCESS
- Noncommercial use by educational institutions such as public or private schools, but not home schools, community colleges, and universities.
- EXPANDED BASIC CABLE SERVICE
- The tier of cable service in effect at the time of the adoption of this ordinance which includes two tiers (Limited Basic and Expanded Basic) or its equivalent during the term of this ordinance which may be from time to time offered by the petitioner or petitioner's successor.
- The Federal Communications Commission.
- GOVERNMENT ACCESS
- Noncommercial use by the governing body of City of Somers Point, which is shared with the governing bodies of the Cities of Linwood and Northfield.
- GOVERNING BODY
- The Somers Point City Council.
- OFFICE or OCTV
- The Office of Cable Television of the Board.
- Ordinance No. 28 of 2014.
- PRIMARY SERVICE AREA or PSA
- Consists of the area of the City currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
Public hearings conducted by the City, 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 City having received at said public hearings all comments regarding the qualifications of the company to receive this renewal of municipal consent, the City hereby finds that 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; and does further find that the company has continued to provide cable television service to the City pursuant to N.J.S.A. 48:5A-25, pending disposition of proceedings regarding the renewal of its municipal consent certificate.
The nonexclusive municipal consent granted herein shall expire 15 years from January 23, 2012, (the "franchise term") the date of expiration of the previous certificate of approval issued by the Board with an automatic ten-year renewal (the "automatic extension term") as allowed by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6.
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 City 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 City or any higher amount permitted by the Act or otherwise allowable by law, whichever is greater.
The consent granted under this ordinance to the renewal of the franchise shall apply to the entirety of the City and any property subsequently annexed thereto.
The company shall be required to proffer service to any residence or business along any public right-of-way in the primary service area at no cost beyond standard and nonstandard installation charges, as set forth in the company's application. Any extension of plant beyond the primary service area shall be governed by the company's line extension policy, as set forth in the company's application, with a HPM of 30.
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 or things so disturbed in as good a condition as existed prior to the commencement of said work.
During the term of this franchise and any automatic extension term thereof, the company shall be subject to and shall comply with the generally applicable requirements of Chapter 220 of the Municipal Code of the City of Somers Point, entitled "Streets and Sidewalks," as the same may be from time-to-time supplemented or amended. Notwithstanding, the Board [of Public Utilities] considers its authority to have precedence over the municipal ability to set specifications for the construction of cable service facilities [N.J.S.A. § 48:5A-10(a)]. Pursuant to that authority, every cable service company is mandated to perform construction and installation of its plant and facilities in accordance with the requirements of N.J.A.C. § 14:18-2.1, which affords every cable service company the capability to design and construct its facilities in a manner that meets the technical standards promulgated by the Board or the FCC. This preemption does not affect those duties that the municipality is authorized to perform pursuant to its police powers for the purpose of protecting its citizens. However, the all-inclusive franchisee fee supersedes and covers all individual permit fees, such as for road opening and other costs attributable to cable operations. Moreover, the City shall not use its legislative powers to effectively amend the provisions of this franchise subsequent to the effective date in such a manner as to have a material adverse effect on the rights of the company set forth herein, or to adopt ordinances that are applicable only to the company.
Relocation. If at any time during the period of this consent, the City shall alter or change the grade of any street, alley or other way or place the company, upon reasonable notice by the City, shall remove, re-lay 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 City 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.
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 City upon written request of the City Administrator or City Clerk.
The company shall continue to comply fully with all applicable state and federal statutes and regulations regarding credit for outages, the reporting of same to regulatory agencies and 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 City to express any comment with respect to accessibility by telephone or otherwise to the Complaint Officer, or impair the right of the Complaint Officer to take any action that is permitted under law.
The Office of Cable Television is hereby designated as the Complaint Officer for the City 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 City shall have the right to request copies of records and reports pertaining to complaints by City's customers from the OCTV.
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 office 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 eight hours per day, five days per week. The company currently maintains a local business office at 901 West Leeds Avenue, Absecon, NJ 08201.
During the life of the franchise, including any renewal term, the company shall give to the City 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 provide Expanded Basic or a comparable tier of cable television service on one outlet at no cost to each existing and future public and private, elementary, intermediate and secondary school in the City, provided that the school is within 200 feet of 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. Monthly service charges shall be waived on all additional outlets.
The company shall provide Expanded Basic or a comparable tier of cable television service at no cost on one outlet to each present and future police, fire, emergency management facility, library, Youth Center, Senior Center, Community Center, Office of Recreation, and other City offices including but not limited to the Construction Office, Tax Assessor's Office, Historical Society Building, and Department of Public Works, provided that the facility is located within 200 feet of active cable distribution plant. Each additional outlet installed in such facility, if any, shall be paid for on a materials plus labor basis by the City. Monthly service charges shall be waived on all additional outlets.
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 school in the City, elementary, intermediate and secondary, at no charge, provided that the facility is located within 200 feet of 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 free basic Internet access via high-speed cable modem on one non-networked personal computer in each qualified existing and future public library at no charge, provided that the facility is located within 200 feet of 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.
The company will continue to provide one channel for educational and governmental ("EG") access for the shared use by the municipalities of the City of Somers Point, City of Northfield, and City of Linwood (Collectively, "Municipalities") as more specifically set forth in § A269-15.
The company shall pay to the City a one-time technology grant in the amount of $65,000 to be paid within three months of the issuance of a renewal certificate of approval by the BPU.
Upon reasonable written request of the Mayor, Council President, or City Administrator, a representative of the petitioner shall appear, but not more frequently than annually, at a public hearing, public meeting, or public work session of the governing body, to discuss matters pertaining to the provision of cable television service to residents of the City, and any other cable-television-related issues as the governing body, the petitioner, and the public may deem appropriate to discuss.
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)], allows the company to itemize and/or identify: 1) the amount on the subscriber bill assessed as a franchise fee and the identity of the governmental authority to which the fee is paid; 2) the amount on the bill assessed to satisfy any requirements imposed on the company by the cable franchise to support public, educational, and/or governmental access channels or the use of such channels; and 3) any grants or other fees on the bill or any tax, assessment, or charge of any kind imposed by any governmental authority on the transaction between the operator and the subscriber. The company reserves these external cost pass-through rights to the extent permitted by law.
The company will continue to provide one channel for educational and governmental ("EG") access for the shared use by the municipalities of the City of Somers Point, City of Northfield, and City of Linwood (collectively, "municipalities").
The company will provide and maintain the cable, modulators and equipment necessary for the education-government access channel to send a signal to the company, and to receive the return feed signal. The company will not be responsible for the acquisition or maintenance of any studio facility or equipment used for the access channel, including, but not limited to, cameras, editing decks, monitors, character generators, etc.
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 government user — acquires 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.
The company shall not exercise editorial control over any educational or governmental use of channel capacity, except 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.
Company use of fallow time. Because blank or underutilized EG channels are not in the public interest, in the event the municipality or other EG access users elect not to fully program their EG access channel, the company may program unused time on those channels (at its discretion and for any purpose), subject to reclamation by the municipality upon no less than 60 days' written notice.
Limited indemnity. The City and the company acknowledge that the EG access channel is currently operated and maintained by the municipalities' designated access administrator, Mainland Regional High School, which videotapes and airs various public meetings within the municipalities. Without waiving its defenses and immunities under Title 59 of the New Jersey Statutes, to the extent that an employee or elected official of the City of Somers Point submits any item to be aired on the EG channel knowing that such airing will violate the intellectual property rights of third parties, upon written notice of such claim and a finding by a Court of competent jurisdiction that such a violation did occur, the City shall indemnify the company for any liability, loss or damage directly and proximately caused by such violation. The City shall be given proper and prompt notice of any such claim and shall be provided the opportunity, but not an obligation, to participate in the defense of any such action.
The City reserves the right to designate a different designated access channel administrator on its behalf.
The company shall 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 City or any other person, during an emergency, if for any reason the City is unable to make full use of the cable television system as contemplated herein.
The City reserves the right, at its discretion, to review the performance of the petitioner with regard to this ordinance during the franchise term and the automatic extension term. If the governing body determines that the petitioner has failed to substantially comply with any one or more of the material terms and conditions of this ordinance, the City shall provide written notice to the petitioner of such alleged incidents of noncompliance, and shall grant the petitioner 90 days to cure such deficiency (the "cure period").
If, after the expiration of the cure period, in the opinion of the governing body the deficiency has not been satisfactorily cured, the City may petition the Board pursuant to N.J.S.A. 48:5A-47, for appropriate action, including modification and/or termination of the certificate of approval, reduction of the franchise term and/or automatic extension term, or such other relief as may be deemed appropriate and allowed by law or in equity.
The company shall at all times maintain a comprehensive general liability insurance policy with a minimum 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 minimum amount of $5,000,000.
All of the statements and commitments contained in the application or annexed thereto and incorporated therein, and any amendments thereto, except as modified herein, are binding upon the company as terms and conditions of this consent. The application and other relevant writings submitted by the company shall be annexed hereto and made a part hereof by reference provided same do not conflict with applicable state or federal law.
If any section, subsection, sentence, clause, phrase or portion of this ordinance 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 ordinance.
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 ordinance shall take effect immediately upon passage and publication, according to law, and issuance of a renewal certificate of approval by the BPU.
Upon approval of the BPU, this ordinance shall be codified in the Somers Point Municipal Code as Appendix A269, Comcast Municipal Consent and Franchise.