[HISTORY: Adopted by the Township Committee
of the Township of Hamilton 12-2-2019 by Ord. No. 1912-2019.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. A315,
Cable Television, adopted 10-17-1994 by Ord. No. 1183-94.
The Township hereby grants to Comcast 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 municipality, 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. This consent is subject to the terms and conditions of this
chapter and upon the condition that the company accepts the provisions
of this chapter, and confirms that it shall comply with the commitments
contained herein.
For the purpose of this chapter, 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 C.F.R. Subsection 76.1 et seq., and the Cable Communications Policy
Act, 47 U.S.C. Section 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:
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 Board of Public Utilities, State of New Jersey.
The grantee of rights under this chapter and is known as
Comcast of South Jersey, LLC.
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the municipality currently served
with existing plant as set forth in the map annexed to the company's
application for municipal consent.
The Township of Hamilton, County of Atlantic, State of New
Jersey.
A public hearing concerning the consent herein granted to the
company 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 the company to receive this consent,
and the representations of the company 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.
A.
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.
B.
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 municipality and any
property subsequently annexed hereto.
The company shall be required to proffer service to any residence
or business along any public right-of-way in the primary service area,
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.
For purposes of this section and the company's implementation
of the LEP, a home shall only be counted as a "dwelling unit" if such
home is within 275 feet of the public right-of-way.
A.
Restoration. 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 reasonably
good a condition as existed prior to the commencement of said work.
B.
Relocation. If at any time during the period of this consent, the
Township shall alter or change the grade of any street, alley or other
way or place the company, upon reasonable notice by the Township,
shall remove, relay or relocate its equipment, at the 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 Township 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.
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.
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 permitted under law.
The Office of Cable Television is hereby designated as the complaint
officer for the Township 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 Township 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 business office or agent in accordance
with N.J.A.C. 14:18-5.1 for the purpose of receiving, investigating
and resolving local complaints regarding the quality of service, equipment
malfunctions, and similar matters.
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.
A.
The company shall continue to provide expanded basic or a similar
tier of cable television service on one outlet at no cost to each
qualified existing school in the Township, public and private, elementary,
intermediate and secondary, provided the school is within 175 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. Comcast shall provide the above referenced services
to any future such facility upon written request.
B.
The company shall continue to provide expanded basic or a similar
tier of cable television service at no cost on one outlet to each
qualified existing police, fire, emergency management facility, public
works and public library in the Township, provided the facility is
located within 175 feet of active cable distribution plant. Each additional
outlet installed, if any, shall be paid for on a materials plus labor
basis by the Township. Comcast shall provide the above referenced
services to any future such facility upon written request.
C.
The company shall continue to provide expanded basic or a similar
tier of cable television service on one outlet at no cost to each
qualified existing school in the Township, public and private, elementary,
intermediate and secondary, provided the school is within 175 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. Comcast shall provide the above referenced services
to any future such facility upon written request.
D.
The Communications Act of 1934, as amended [47 U.S.C. § 543
(b)], allows the company to itemize and/or identify the amount on
the subscriber bill assessed as a franchise fee and the identity of
the governmental authority to which the fee is paid; 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 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 shall continue to make available one shared education
and government access channel. The channel is currently maintained
and administered by Oakcrest High School for the purpose of cablecasting
noncommercial educational and governmental access programming in conformance
with the school district's published access rules. The company
shall maintain during the life of this Franchise the existing fiber
return line at Oakcrest High School in order to enable the distribution
of EG access programming.
B.
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.
C.
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.
D.
Educational access. "Educational access" shall mean noncommercial
use by educational institutions such as public or private schools,
but not "home schools," community colleges, and universities.
E.
Government access. "Government access" shall mean noncommercial use
by the Township for the purpose of showing the local government at
work.
F.
Company use of fallow time. Because blank or underutilized EG channels
are not in the public interest, in the event the municipalities or
other EG access users elect not to fully program their EG access channel,
Company may program unused time on those channels subject to reclamation
by the municipality upon no less than 60 days' written notice.
G.
Indemnification. The Township shall indemnify company for any liability,
loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the EG channel and from claims
arising out of the municipalities' rules for or administration
of EG access channel and its programming.
H.
Within six months of receipt of a renewal certificate of approval,
the company shall provide the Township with a one-time EG capital
grant in the amount of $35,000 for the Township's capital government
and education access channel needs.
A.
The company will 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 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.
In excess of the requirements presently mandated by N.J.S.A.
48:5A-28(f), unless otherwise required by applicable law, 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 $5,000,000.
All of the statements and commitments contained in the application
or annexed thereto and incorporated therein, and any amendment 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.
Should the Municipality grant a franchise or other authorization
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 other
portion of this chapter is, for any reason, declared invalid, in whole
or in part, by any court, agency, commission, legislative body, or
other authority of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
A.
The company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
Township agrees to treat any information disclosed by the company
as confidential and only to disclose it to those employees, representatives,
and agents of the Township that have a need to know in order to enforce
this ordinance agreement and who agree to maintain the confidentiality
of all such information.
B.
The company shall not be required to provide customer information
in violation of § 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this section, the terms
"proprietary or confidential" include, but are not limited to, information
relating to the cable system design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the company to be competitively sensitive. The company
may make proprietary or confidential information available for inspection
but not copying or removal by the municipality's representative.
In the event that the municipality has in its possession and receives
a request under a state "sunshine," public records, or similar law
for the disclosure of information the company has designated as confidential,
trade secret or proprietary, the Township shall notify the company
of such request and cooperate with company in opposing such request.
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.
The municipality, for its part, shall endeavor to exercise reasonable
efforts to require developers and utility companies to provide the
company with at least 15 days' advance notice of an available
open trench for the placement of necessary cable.
