[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.
