[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:
A.
BOROUGH
OR MUNICIPALITY - The Borough of Wenonah, County of Gloucester, State
of New Jersey.
B.
COMPANY
- The grantee of rights under this ordinance and is known as Comcast
of Gloucester County, LLC.
C.
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.
D.
FCC - The
Federal Communications Commission.
E.
BOARD or
BPU - The Board of Public Utilities, State of New Jersey.
F.
OFFICE
OR OCTV - The Office of Cable Television of the Board.
G.
BASIC CABLE
SERVICE - Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
H.
APPLICATION
- Company's Application for Renewal of Municipal Consent.
I.
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.
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.
B.
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.
C.
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.
D.
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.
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 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.
A.
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.
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 governing bodies of the municipalities, for the purpose of
showing the public local government at work.
F.
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.
G.
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.
A.
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.
B.
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.
C.
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.
