Township of Hopewell, NJ
Mercer County
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Table of Contents
Table of Contents
[Editor's Note: Prior ordinance history includes ordinance Nos. 710-86 and 03-1296.]
[Ord. #18-1696]
Hopewell Township hereby grants to Comcast of Southeast Pennsylvania, LLC its non-exclusive consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways, and public places in the municipality poles, wires, cables, and fixtures necessary for the construction, maintenance and operation in Hopewell Township of a cable television system and cable communications system.
[Ord. #18-1696]
For the purposes 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 given by the Federal Communications Commission F.C.C. 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, the New Jersey Cable Television Act, N.J.S.A. 48:5A-1 et seq. as amended, and the Rules of Practice and Procedure of the Office of Cable Television and Telecommunications, and shall in no way be construed to broaden, alter or conflict with federal or state definitions:
a. 
TOWN or MUNICIPALITY – Is the Township of Hopewell, County of Mercer, State of New Jersey.
b. 
COMPANY – Is the grantee of rights under this Ordinance and is known as Comcast of Southeast Pennsylvania, LLC.
c. 
ACT or CABLE TELEVISION ACT – Is Chapter 186 of the General Laws of New Jersey, and subsequent amendment thereto, Section 48:SA-1
d. 
FCC – Is the Federal Communications Commission.
e. 
BOARD or BPU – Is the Board of Public Utilities, State of New Jersey.
f. 
OFFICE or OCTV – Is the Office of Cable Television of the Board.
g. 
BASIC CABLE SERVICE – Means any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
h. 
APPLICATION – Is the Company's Application for Renewal of Municipal Consent.
i. 
PRIMARY SERVICE AREA or PSA – Consists of the area of the Township currently served with existing plant as set forth in the map annexed to the Company's Application for Municipal Consent.
[Ord. #18-1696]
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.
[Ord. #18-1696]
The consent herein granted shall expire 10 years from the date of expiration of the pervious Certificate of Approval issued by the Board.
In the event that the Municipality shall find that the Company has not substantially complied with the material terms and conditions of this Ordinance, 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 non-compliance and an opportunity to cure same within 90 days of that notification.
[Ord. #18-1696]
Pursuant to the terms and conditions of the Act, N.J.S.A. 48:5A-30, the Company shall, during each year of operation under the consent herein, pay to the Municipality 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 Municipality or any higher amount permitted by the Act or otherwise allowable by law. The current fee is 3.5% of the Company's gross revenues, as defined under N.J.S.A. 48:5A-3(x) pursuant to N.J.S.A. 48:5A-30(d).
[Ord. #18-1696]
The consent granted herein to the Company shall apply to the entirety of the Municipality and any property hereafter annexed.
[Ord. #18-1696]
The Company shall be required to proffer service along any public right-of-way to any person's residence or business located in those areas of the franchise territory described herein. Any additional extension of the system will be made in accordance with the company's line extension policy. The Company observes a line extension policy of 25 homes per mile.
[Ord. #18-1696]
a. 
Restoration: In the event that the Company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways or other surfaces in the natural topography, the company shall at its sole expense restore and replace such places or things so disturbed in as good condition as existed prior to the commencement of said work. Any restoration shall commence as expeditiously as practical, and the Company will make every effort to commence restoration work 10 calendar days after a notice of violation is issued to the Company by the Township.
b. 
Relocation: 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 municipality, shall remove, re-lay and 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 and public places of the municipality so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company. Such trimming shall be only to the extent necessary to maintain proper clearance for the Company's facilities.
d. 
Installation of Equipment: The Company shall install equipment in the same location and manner as existing public utilities whenever deemed possible by the Company, in order to minimize the impact of same on surrounding property.
[Ord. #18-1696]
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 Township upon written request of the Township Administrator or 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.
The Company shall use every reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association ("NCTA").
c. 
Nothing herein shall impair the right of any subscriber or the Township 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.
[Ord. #18-1696]
The Office of Cable Television and Telecommunications is hereby designated as the complaint officer for the municipality, 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.
[Ord. #18-1696]
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.
[Ord. #18-1696]
During the life of the franchise, the Company shall give to the Township 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.
[Ord. #18-1696]
The rates of the Company shall be subject to regulation as permitted by federal and state law.
[Ord. #18-1696]
a. 
The Company shall provide Expanded Basic or a similar tier of cable television service to one outlet at no cost to each qualified existing and future school in the Township, public and private, elementary, intermediate and secondary, provided the school building is within 200 feet of active cable distribution plant. This includes Bear Tavern Elementary School located at 1162 Bear Tavern Road Titusville; Stony Brook Elementary School located at 20 Stephenson Road Pennington; Timberlane Middle School located at 51 S. Timberlane Drive Pennington; Hopewell Valley Central High School located at 259 Pennington- Titusville Road Pennington. Each additional outlet installed, if any, shall be paid for on a materials plus labor basis by the school requesting service.
b. 
The Company shall provide Expanded Basic or a similar tier of cable television service at no cost to one outlet to every Township building located at 201 Washington Crossing Pennington Road Titusville, including the main Municipal Building, Police Station and Municipal Court, and the Department of Public Works building located at 203 Washington Crossing Road Titusville; the Union Fire and Rescue located at 1396 River Road Titusville, and each qualified existing and future municipal building, police, fire or emergency management facility in the Township, provided the facility is located 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 Township.
c. 
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, education, 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 its external cost, pass-through rights to the full extent permitted by law.
[Ord. #18-1696]
a. 
The Company will continue to provide one channel for educational access and one channel for governmental access. These channels shall be provided on the most basic tier of service offered by the Company in accordance with the Cable Act, Section 611, and as further set forth below. The government access channel is managed by the Township. Hopewell Valley Regional High School has been designated by the Township as the administrator of the educational access channel.
b. 
The Company will maintain the cable, modulators, and equipment necessary for Hopewell Township to send a signal to the Company, and to receive the return feed of the signal.
c. 
The Company will maintain the cable, modulators, and equipment necessary for the Hopewell Valley Regional High School to Send a signal to the Company, and to receive the return feed of the signal. Shared use of the channel shall be governed by mutual agreements among the Boroughs of Hopewell and Pennington, the Township of Hopewell and the Hopewell Valley Regional High School.
d. 
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.
e. 
The Company shall not exercise editorial control over the use of any educational or governmental channel capacity, except Company may refuse to transmit any educational or governmental access program or portion of any public or governmental access program that contains obscenity, indecency, or nudity.
f. 
Educational Access. "Educational Access" shall mean non-commercial use by educational institutions such as public or private schools, but not "home schools," community colleges and/or universities.
g. 
Government Access. "Government Access" shall mean non-commercial use by the governing bodies of the Township for the purpose of showing the public local government at work.
h. 
Fallow Time. Because blank or underutilized PG channels are not in the public interest, in the event the Township or other EG access users elect not to fully program the PG access channel, the Company may program unused time on those channels subject to reclamation by the Township upon no less than 60 calendar days' written notice.
i. 
Signal Quality. The Company shall take any steps that are necessary to ensure that the signals originated on the access channels are carried without material degradation, and with a signal whose quality is equal to that of the other channels that the Company transmits.
[Ord. #18-1696]
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 Township or any other person, during an emergency, if for any reason the Township is unable to make full use of the cable television system as contemplated herein.
[Ord. #18-1696]
The Company agrees to maintain and keep in full force and effect at its sole expense at all times during the term of this consent, sufficient liability insurance naming the Township as an insured, and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts 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.
The Company agrees to provide the Township with adequate notice of a change in or cancellation of its liability insurance policy.
[Ord. #18-1696]
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 municipal 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 application State or Federal law.
[Ord. #18-1696]
Should the Township grant municipal consent for a franchise 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 Ordinance subject to the provisions of N.J.A.C. § 14:17-6.7. The Company agrees to simultaneously provide a courtesy copy of the petition to the Township Administrator in the event that it files such a request with the BPU under this Section of the consent agreement.
[Ord. #18-1696]
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.
[Ord. #18-1696]
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.
[Ord. #18-1696]
If any section, subsection, paragraph, sentence or other part of this Ordinance is adjudged unconstitutional or invalid, such judgment shall not affect or invalidate the remainder of this Ordinance, but shall be confined in its effect to the section, subsection, paragraph, sentence or other part of this Ordinance directly involved in the controversy in which said judgment shall have been rendered and all other provisions of this Ordinance shall remain in full force and effect.
[Ord. #18-1696]
All ordinances or parts of ordinances that are in conflict with or otherwise impose obligations different from the provisions of this Franchise Agreement are superseded by this Franchise Agreement.
[Ord. #18-1696]
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 and who agree to maintain the confidentiality of all such information.
The Company shall not be required to provide Customer information in violation of Section 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 Township 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.
[Ord. #18-1696]
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.
[Ord. #18-1696, adopted 9-24-2018]
This Ordinance shall take effect immediately upon issuance of a Renewal Certificate of Approval from the BPU.