[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:
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.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The New Jersey Board of Public Utilities.
The City of Somers Point, County of Atlantic, and State of
New Jersey.
The grantee of rights under this ordinance and is known as
Comcast of South Jersey, LLC.
Noncommercial use by educational institutions such as public
or private schools, but not home schools, community colleges, and
universities.
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.
As defined in § A269-4 of this ordinance.
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.
The Somers Point City Council.
The Office of Cable Television of the Board.
Ordinance No. 28 of 2014.
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.
A.
Restoration.
(1)
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.
(2)
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.
B.
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.
C.
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.
A.
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.
B.
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.
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 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.
A.
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.
B.
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.
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 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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
A.
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").
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
The City reserves the right to designate a different designated access
channel administrator on its behalf.
A.
The company shall comply with the Emergency Alert System ("EAS")
rules in accordance with applicable state and federal statutes and
regulations.
B.
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.
A.
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").
B.
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.
