[HISTORY: Adopted by the Mayor and Council of the Borough of Lavallette. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- The application for a cable television franchise of Cablevision of Monmouth, Inc., and addenda thereto, which application and addenda are on file in the office of the Borough Clerk and are incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this chapter.
- BOROUGH or MUNICIPALITY
- The Borough of Lavallette, a municipal corporation of the State of New Jersey located in Ocean County.
- The New Jersey Board of Public Utilities, its successors and/or assigns.
- Any affiliate, parent company, subsidiary, department or division of the company operating in the State of New Jersey.
- The commitments, obligations, terms and undertakings on the part of Cablevision of Monmouth, Inc., as set forth in this chapter.
- The grantee of rights under this chapter and is known as “Cablevision of Monmouth, Inc.,” its successors and/or assigns.
- The Federal Communications Commission of the United States.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the “Cable Communications Policy Act of 1984,” 47 U.S.C. Section 521 et seq., or as the statute may be amended.
- FEDERAL REGULATION
- That federal regulation relating to cable television service, 47 CFR 76.1 et seq. (and, to the extent applicable, any other federal rules and regulations relating to cable television, including but not limited to those described in 47 CFR 76.3), or as such regulations may be amended.
- STATE ACT or CABLE TELEVISION ACT
- That statute of the State of New Jersey relating to cable television, known as the “Cable Television Act,” N.J.S.A. 48:5A-1 et seq., and subsequent amendments thereto.
- STATE REGULATIONS
- Those regulations of the New Jersey Board of Public Utilities relating to cable television, N.J.A.C. 14:17-1.1 et seq. and 14:18-1.1 et seq., or as such regulations may be amended.
The Borough hereby grants to the company its nonexclusive consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the Borough poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the municipality of a cable television system and cable communications system. The company shall comply with all zoning ordinances unless exempted pursuant to N.J.S.A. 48:5A-17(e). Operation and construction, pursuant to said consent, is conditioned upon prior approval of the BPU.
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 Cable Television Act. Said hearing having been held as above stated and said hearing having been fully opened to the public and the municipality having received at said hearing all comments regarding the qualifications of the company to receive this 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.
Term. The consent herein granted in § 16-2 shall be nonexclusive and shall expire 10 years from the date of expiration of the previous certificate of approval as issued by the BPU.
Reporting requirements. The company shall provide to the Borough a list, no later than January 15 of every year, of this franchise stating the municipalities of the State of New Jersey from whom the company has a franchise and changes to that list within 30 days of such change.
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 the subscription fee paid by subscribers to its cable television reception service in the Borough or any greater amount permitted by the Cable Television Act, or otherwise allowed by law, immediately upon the effective date thereon. The franchise fee shall be paid no later than January 25 of each year, and at the same time, the company shall file with the Chief Financial Officer of the municipality a verified statement showing the gross receipts upon which payment is based.
The consent granted herein to the company shall apply to the entirety of the Borough and any property hereinafter annexed hereto.
The company shall be required to offer service along any public right-of-way to any person, resident 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, lawns 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 the moving of buildings, machinery or other similar circumstances. The expense for the movement or removal of such facilities 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 Borough 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, and no trees shall be trimmed, removed or destroyed without the prior consent of the Borough.
During the term of this consent, 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 functions and similar matters and to provide prompt, proper service to its customers. Such 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, and 9:00 a.m. to 1:00 p.m. on Saturday. The company shall make every effort and strive to respond to any service problems from customers on the same day. The company shall also engage in ongoing customer relations and evaluations of the office staff, as well as evaluations of the service provided by the company to the subscribers in the Borough of Lavallette. The Borough Council shall be provided with copies of these evaluations.
The Office of Cable Television is hereby designated as the complaint officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26(b). All complaints shall be received and processed in accordance with the provisions of N.J.A.C. 14:17-6.5.
The company shall give to the Borough a bond which shall be in a penal sum of not less than $25,000, which bond shall be kept in effect during the entire life of the franchise. This bond shall insure the faithful performance of all undertakings by the company as represented in its application for the consent herein granted and also insure that, if the system is abandoned, the Borough will have the benefit of the bond to dismantle the system.
The rates to be charged the customers of the company within the Borough shall be those as established and approved by the BPU, Office of Cable Television.
The basic service includes those channels which the company is required to carry by FCC rules and any channel which the company carries without a separate or additional charge.
Notwithstanding any specific mention of applicable federal or state law, the company shall, at all times, comply with all of the requirements of the Federal Act, the Federal Regulations, the State Act and State Regulations (to the extent not preempted) and any other valid statutes, regulations, rules or pronouncements applicable to the company and this consent, specifically including, but without limitation, those relating to equal employment opportunity.
The company shall maintain, at its sole expense at all times during the term of the franchise, sufficient liability insurance naming the Borough as an insured and providing insurance coverage against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result directly or indirectly from or by reason of any loss, injury or damage. The amounts of such insurance against liability due to physical damage to the property or bodily injury or death to any one person shall not be less than $1,000,000 for one person and $1,000,000 for property damage resulting from any one accident.
The company shall also carry such insurance as it deems necessary to protect it from all claims under the worker's compensation laws in effect that may be applicable to the franchise.
All insurance required by this chapter shall be and remain in full force and effect for the entire life of this franchise. A certificate of insurance must be submitted to the Borough Attorney to review for compliance with the above-mentioned limits of liability. Said policy or policies of insurance or certified copy or copies thereof shall be deposited with and kept on file by the Borough Clerk, and the Borough Clerk shall be a named insured on said policy. The company shall notify the Borough, at least 30 days prior, of its intention to cancel or change any policy. The insurer further shall certify to the Borough the fact of the renewal of every such insurance policy at least 15 days prior to the expiration date.
The company shall indemnify, protect and save the Borough harmless from and against losses and physical damages to property, including those properties owned or under the control of the Borough, and bodily injury or death of persons, including payments made under worker's compensation laws, which may arise out of or be caused by the construction, location, installation, operation, erection, maintenance, repair, replacement, removal or use of the cable television system within the Borough contemplated by this franchise or by any act of the company, its agents or employees.
The company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its obligations under this consent and to ensure uninterrupted service to each and all of its subscribers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or with federal and state laws.
All the written commitments contained in the application, except as modified herein, are to be considered to be binding upon the company as terms and conditions of this consent, and the application shall be annexed hereto and made a part hereof by reference.
None of the aforementioned commitments, terms or conditions of this municipal consent shall be enforceable if they conflict with the provisions of the Cable Television Act or FCC qualifications or rules.
The company hereby agrees to and the following commitments are also incorporated into the application and ordinance:
Public, educational and governmental (PEG) access.
The company shall provide and maintain a full-time dedicated PEG channel for the use of the Borough. The company shall take any steps which are necessary to ensure that the signals originated on the PEG channel are carried without material degradation, and that, to the extent the PEG channel's programming is originated with a signal whose quality meets accepted standards and is equal to that of other channels the company transmits, the PEG channel's broadcast quality shall meet accepted standards and be equal to that of other channels the company transmits.
Based on need, the company shall be required to provide and maintain up to two additional full-time dedicated PEG channels for the use of the Borough upon 180 days' advance written notice from the Borough. The need for providing additional PEG channels shall be conditioned upon usage according to the following formula: any time the existing designated PEG channel(s) is in continuous use with the cable-casting of locally produced programming (excluding programming of solely character-generated messages or programming that is repetitive) during at least 75% of the time between 10:00 a.m. and 10:00 p.m., during any consecutive ten-week period, the Borough shall have the right to request an additional PEG channel; provided, however, that if the usage ratio of any additional PEG channel should at any time fall below 30% (based on the same formula), use of that PEG channel shall revert back to the company upon 180 days' advance written notice to the Borough. The mechanism for exchanging control of PEG channels based on usage shall be continuous throughout the term of the consent herein granted.
The company shall provide the Borough with one SVHS camera, one camera battery and one camera battery recharger. Additionally, the company shall provide one playback VHS for use in the airing of programming.
The company shall provide a “Bulletin Board” channel for the posting of messages of specific interest to the Borough. Said bulletin board shall include FM broadcast music as background.
The company shall provide the installation of one cable outlet and basic and family monthly cable services to each municipal building in the Borough, including all buildings that serve a municipal government function such as Borough Hall, the rescue squad, police, fire, public works, senior citizen center and library buildings, free of charge. The company shall also provide the installation of 10 cable outlets and basic and family cable services to the Borough's elementary/middle school free of charge. Each additional outlet installed, if any, shall be paid for by the institution requesting the same on a materials-plus-labor basis. Monthly services charges shall be charged at the regular tariffs rates for additional outlets.
The company shall provide one twenty-seven-inch color television with a built-in video cassette recorder (VCR) and 10 assorted educational videotapes to the Borough for use at its elementary/middle school.
The company shall provide cable modems and Internet access at each school and library in the Borough at no charge when such service becomes available in the Borough. At such time that the company's policy permits it to provide free cable modems and/or Internet access to any other municipal buildings in the Borough, the company shall provide same to those municipal buildings set forth in § 16-18C(4).
The company shall tape one Council meeting per month and shall provide a copy of said tape to the Borough for its archives.
The company agrees that the capabilities of the cable television system and cable communications system (the system) shall be as technologically current, which shall include the ability for the system to support multiple analog and digital television services, Internet services and other two-way services, throughout the duration of the consent granted herein, as other Cablevision systems of comparable size, measured by the number of subscribers in the system, and to the extent economically reasonable. The company shall make Internet service available to residents of the Borough to the extent that it is generally made commercially available by Cablevision, on other than a trial or test basis, elsewhere on Cablevision's systems. The company shall use reasonable and good-faith efforts to provide said Internet service by January 1, 2003. Notwithstanding the foregoing, nothing herein shall obligate the company to perform a rebuild of the system.
The company shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the municipality. 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. The municipality shall establish reasonable procedures for such emergency uses.
In the event the Borough determines that it is necessary and feasible for it to contract with the company for the purpose of providing two-way interactive services, and except to the extent state regulation is preempted by the FCC, the company shall be required to apply to BPU for approval to enter into and establish terms and conditions of such contract.
In the event the Borough determines that it is necessary and feasible for it to contract with the company for the purpose of providing interconnection services, the company shall be required to apply to BPU for approval to enter into and establish terms and conditions of such contract.
In the event that the municipality approves or permits a cable system to operate in the Borough on terms more favorable or less burdensome than those contained in this franchise, such more favorable or less burdensome terms shall be applicable to this franchise, pursuant to approval of a petition to amend the certificate of approval filed with the Board of Public Utilities as provided for under N.J.A.C. 14:17-6.7.
In the event that a non-franchised multi-channel video programmer provides service to residents of the municipality, the company shall have a right to request amendments to this chapter and any certificate of approval that relieves the company of regulatory burdens that create a competitive disadvantage to the company.
In requesting amendments, the company shall file a petition seeking to amend the franchise. Such petition shall:
Indicate the presence of a nonfranchised competitor(s);
Identify the basis for the company's belief that certain provisions of the certificate of approval place the company at a competitive disadvantage; and
Identify the regulatory burdens to be amended or repealed in order to eliminate the competitive disadvantage.
The Borough shall not unreasonably object to the granting of the company's petition filed hereunder, pursuant to N.J.A.C. 14:17-6.7.
Upon expiration, termination or revocation of the certificate of approval, the company, at its sole cost and expense and upon direction of the Borough, shall remove the cables and appurtenant devices constructed or maintained herein, unless the company, its affiliated entities or assignees should, within six months after such expiration, termination or revocation, obtain certification from the FCC to operate an open video system or any other federal or state certification to provide telecommunications services.
Should any federal or state statute, regulation, rule or pronouncement applicable to the regulation of cable television be modified in any way, such modification shall be incorporated herein and shall serve to modify the terms of this chapter.