[HISTORY: Adopted by the Mayor and Council of the Borough of Wenonah 8-24-1989. Amended in its entirety 9-23-1999 by Ord. No. 99-7. Amended in its entirety 9-24-2009 by Ord. No. O-2009-11. Subsequent amendments noted where applicable.]
The Borough of Wenonah hereby grants to the Comcast of Gloucester County, LLC, (hereinafter the "Company") 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 Borough's poles, wires, cables, and fixtures necessary for the maintenance and operation in the Borough of Wenonah of a cable television system and cable communications system. Operation and construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities (hereinafter the "Board").
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, FCC Rules and Regulations 47 C.F.R. § 76.1 et seq., and the Communications Act of 1934 at 47 U.S.C. § 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 federal or state definitions:
BOROUGH OR MUNICIPALITY - The Borough of Wenonah, County of Gloucester, State of New Jersey.
COMPANY - The grantee of rights under this ordinance and is known as Comcast of Gloucester County, LLC.
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.
FCC - The Federal Communications Commission.
BOARD or BPU - The Board of Public Utilities, State of New Jersey.
OFFICE OR OCTV - The Office of Cable Television of the Board.
BASIC CABLE SERVICE - Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
APPLICATION - Company's Application for Renewal of Municipal Consent.
PRIMARY SERVICE AREA OR PSA - 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.
A public hearing concerning the consent herein granted to the Company was held on June 25, 2009 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 Borough having received all comments regarding the qualifications of the Company to receive this consent, the Borough hereby finds 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.
The consent herein granted shall expire 10 years from the date of expiration of the previous Certificate of Approval as issued by the Board of Public Utilities.
The consent granted herein is subject to an automatic renewal term of 10 years in accordance with the procedures set forth in N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6 et seq.
Pursuant to the terms and conditions of the Cable Television Act, the company shall, during each year of operation under the consent granted herein, pay to the Borough 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers to its cable television reception service in the Borough or any amount permitted by the Act or otherwise allowable by law.
The consent granted herein to the Company shall apply to the entirety of the Borough and any property hereafter annexed.
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.
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.
Relocation. If at any time during the period of this consent, the Borough shall alter or change the grade of any street, alley or other way or place, the Company, upon reasonable notice by the Borough, shall remove, relay and relocate its equipment, at the expense of the Company.
Temporary Removal of Cables. The Company shall temporarily move or remove appropriate parts of its facilities to allow for the moving of buildings, and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the Borough, in which case the Company shall bear the cost.
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.
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 municipality upon written request of the Municipality Administrator or 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 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.
During the term of this franchise, and any renewal thereof, the Company shall maintain a local business office (or agent) for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters. Such local business office shall be open during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
The Office of Cable Television is hereby designated as the Complaint Officer for the Borough, 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.
During the life of the franchise the Company shall give a bond to the Borough, which bond shall be 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 and incorporated herein.
The rate of the Company shall be subject to regulation as permitted by federal and state law.
The Company will continue to provide one channel for educational and governmental ("EG") access for the shared use by the residents of municipalities served by Comcast of Gloucester County, LLC (collectively, "municipalities") on the most basic tier of service offered by the Company in accordance with the Cable Act, Section 623, and as further set forth below. Educational access and government video programming shall be provided by the municipalities or designated educational institution(s), currently, The Gloucester County Institute of Technology. Unused capacity may be utilized by the Company subject to the provisions for "fallow time" below.
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.
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.
Government access. "Government access" shall mean noncommercial use by the governing bodies of the municipalities, for the purpose of showing the public local government at work.
Company use of fallow time. Because blank or under utilized 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.
Indemnification. The municipalities 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 access.
The Company shall provide Total Preferred cable television service on one outlet at no cost to each school in the municipality, 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. Monthly service charges shall be waived on all additional outlets.
The Company shall provide Total Preferred cable television service at no cost on one outlet to the Borough municipal building and to each police, fire, emergency management facility and public library in the Municipality, 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 municipality. Monthly service charges shall be waived on all additional outlets.
The Company shall continue to provide one courtesy non-networked modem to the Wenonah School at 1 North Clinton Avenue and the Wenonah Public Library at 101 East Mantua Avenue. The Internet service should be installed on a personal computer that is accessible to the students and library patrons and not for administrative use only.
Within 12 months of receipt of a Certificate of Approval, the Company shall provide the Borough with a one-time technology grant in the amount of $5,000 for the Borough's cable- and technology-related needs.
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, 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 naming the Borough of Wenonah as an "additional insured."
The Company will 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 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.
All of the commitments and statements contained in the application and any amendment thereto submitted in writing to the Borough by the Company except as modified herein, are binding upon the Company as terms and conditions of this consent. The application and any other relevant writings submitted by the Company shall be annexed hereto and made a part hereof by reference as long as they do not conflict with state or federal law.
Should the Borough grant 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.
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.