Editor's Note: Prior ordinance history includes portions
of Ordinance No. 14-06.
[Ord. No. 4-09 § 1]
The municipality 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 municipality of a cable television and communications
system.
[Ord. No. 4-09 § 2]
For the purpose 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
of the Federal Communications Commission ("FCC") rules and regulations,
47 C.F.R. Subsection 76.1 et seq., and the Cable Communication 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;
a.
TOWN OR MUNICIPALITY - Shall mean the Borough of South Toms River,
County of Ocean, State of New Jersey.
b.
COMPANY - Shall mean the grantee of rights under this Ordinance and
is known as Comcast of Toms River.
c.
ACT OR CABLE TELEVISION ACT - Shall mean Chapter 186 of the General
Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1,
et seq..
d.
FCC - Shall mean the Federal Communications Commission.
e.
BOARD OR BPU - Shall mean the Board of Public Utilities, State of
New Jersey.
f.
OFFICE OR OCTV - Shall mean the Office of Cable Television Board.
g.
BASIC CABLE SERVICE - Shall mean any service tier, which includes
the retransmission of local television broadcast signals as defined
by the FCC.
h.
APPLICATION - Shall mean the Company's Application for Renewal
of Municipal Consent.
i.
PRIMARY SERVICE AREA OR PSA - Shall mean 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.
[Ord. No. 4-09 § 3]
Public hearings conducted by the municipality, concerning the
renewal of Municipal Consent herein granted to the Company were held
after proper public notice pursuant to the terms and conditions of
the Act and the regulations of the Board adopted pursuant thereto.
Said hearings, having been fully open to the public, and the municipality,
having received at said public hearings all comments regarding the
qualifications of the Company to receive this renewal of Municipal
Consent, the municipality hereby finds 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. No. 4-09 § 4]
The nonexclusive Municipal Consent granted herein shall expire
15 years (plus a ten-year automatic renewal) from the date of expiration
of the previous Certificate of Approval issued by the Board.
In the event that the municipality shall find that the Company
has not substantially compiled 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
the 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.
[Ord. No. 4-09 § 5]
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 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, whichever
is greater.
[Ord. No. 4-09 § 6]
The consent granted under this Ordinance to the renewal of the
franchise shall apply to the entirety of the municipality and any
property subsequently annexed hereto.
[Ord. No. 4-09 § 7]
The Company shall be required to proffer service along the public
right-of-way to any person's residence or business located in
those areas of the Primary Service Area as set forth herein. Any extension
of the cable television system beyond the PSA will be made in accordance
with the Office of Cable Television's ("OCTV") Line Extension
Policy ("LEP"). For the purposes of the LEP, the minimum density of
homes-per-mile shall be 35.
[Ord. No. 4-09 § 8]
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 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
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 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 municipality 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.
[Ord. No. 4-09 § 9]
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.
[Ord. No. 4-09 § 10]
The Office of Cable Television is hereby designed 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. The municipality shall have the right to request copies
of records and reports pertaining to complaints by municipality customers
from the OCTV.
[Ord. No. 4-09 § 11]
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. Such a business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours, and in no event (excepting emergent
circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
[Ord. No. 4-09 § 12]
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.
[Ord. No. 4-09 § 13]
The rate of the Company shall be subject to regulation as permitted
by Federal and State law.
[Ord. No. 4-09 § 14]
a.
The Company shall provide Total Preferred cable television service
on one outlet at no cost to each educational facility 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 each police, fire, emergency management
facility, public library and Borough Hall 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.
A one-time technology grant of $15,000 to be paid within 12 months
of the BPU issuing the Certificate of Approval.
[Ord. No. 4-09 § 15]
In the event that the municipality determines that it is necessary
and feasible for it to contract with the Company for the purpose of
providing two-way or interconnection services, the Company shall be
required to apply to the BPU for approval to enter into and establish
the terms and conditions of such contract. All costs for such application
to the BPU shall be borne by the municipality.
[Ord. No. 4-09 § 16]
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.
[Ord. No. 4-09 § 17]
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.
[Ord. No. 4-09 § 18]
All of the statements and commitments contained in the Application
or annexed thereto and incorporated therein, and any amendments 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.
[Ord. No. 4-09 § 19]
Should the municipality 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.
[Ord. No. 4-09 § 20]
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. No. 4-09 § 21]
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 of franchise.
[Ord. No. 4-09 § 22]
This Ordinance shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.
