[HISTORY: Adopted by the Mayor and Council of the Borough of Alpha 1-24-2012 by Ord. No. 12-01. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. A450, Cable Television Franchise, adopted 6-24-1997 by Ord. No. 97-9.
This ordinance shall be known and may be cited as the "Service Electric Cable TV of Hunterdon, Inc., Franchise Ordinance."
Service Electric Cable TV of Hunterdon, Inc., a Pennsylvania corporation (SECTV), has applied to the Borough of Alpha pursuant to the provisions of the Cable Television Act, N.J.S.A. 48:5A-1 et seq. ("the Act") for renewal of the Borough's consent to operate a cable television system in the Borough of Alpha and to use the public roads of the Borough for its cable television system. A public hearing concerning the franchise granted to the company was held on October 11, 2011, after proper public notice pursuant to the terms and conditions of the Act, the hearing having been fully opened to the public, and the Borough having received at the hearing all comments regarding the qualifications of the company to receive a franchise.
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural.
- The application for renewal of municipal consent filed with the Borough.
- The Board of Public Utilities of the State of New Jersey.
- BOROUGH or MUNICIPALITY
- The Borough of Alpha, County of Warren, State of New Jersey, and shall include, as appropriate, the governing body of the Borough.
- The commitments, terms and undertakings on the part of Service Electric set forth in this ordinance.
- CABLE COMMUNICATIONS SYSTEM
- Any communications service other than cable television reception service delivered through the facilities of a CATV system and for which charges in addition to or other than those made for cable television reception service are made or proposed to be made.
- CABLE TELEVISION COMPANY or CATV COMPANY
- Any person owning, controlling, operating or managing a cable television system. The term "person," as used herein, shall be construed, without limiting the generality thereof, to include specifically any agency or instrumentality of this state or of any of its political subdivisions; but this definition shall not include a telephone, telegraph or electric utility company regulated by the Board in a case where it merely leases or rents or otherwise provides to a CATV company wires, conduits, cables or pole space used in the redistribution of television signals to or toward subscribers or customers of such CATV company.
- CABLE TELEVISION SYSTEM or CATV SYSTEM
- Any facility within this state which is operated or intended to be operated to perform the service of receiving and amplifying the signals broadcast by one or more television stations and redistributing such signals by wire, cable or other device or means for accomplishing such redistribution to members of the public who subscribe to such service or distributing through its facility any television signals, whether broadcast or not, or any part of such facility. The term "facility," as used in this definition, includes all real property, antennas, poles, wires, cables, conduits, amplifiers, instruments, appliances, fixtures and other personal property used by a CATV company in providing service to its subscribers and customers.
- The grantee of rights under this ordinance awarding a franchise and known as "Service Electric Cable TV of Hunterdon, Inc."
- The Federal Communications Commission.
- FEDERAL ACT
- That federal statute relating to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521 et seq., or as that statute may be amended.
- FEDERAL REGULATIONS
- Those federal regulations 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.
- Every street, road, alley, thoroughfare, way or place of any kind used by the public or open to use by the public.
- Any natural person, firm, partnership, associates, corporation, company or organization of any kind.
- STATE ACT
- That statute of the State of New Jersey relating to cable television, commonly known as the "Cable Television Act," N.J.S.A. 48:5A-1 et seq., or as that statute may be amended.
- STATE REGULATIONS
- Those regulations of the Board relating to cable television, N.J.A.C. 14:17-1.1 et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
- SUBSCRIBER REVENUES
- Those revenues derived from all recurring charges in the nature of subscription fees paid by subscribers located within the Borough for cable television reception service for which no separate or additional charge is made, i.e., basic cable service.
The Borough 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. The Borough therefore grants the company a franchise, right and privilege to construct, erect, operate, modify and maintain in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto such poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Borough of a cable television system and cable communications system for the purpose of distributing television and radio signals and other electronic impulses in order to furnish television and radio programs and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said highways, streets, alleys, public ways and public places and all manner of easements for the purposes herein set forth as provided by the Federal Act and State Act.
The nonexclusive franchise granted the company herein shall expire 15 years from the date of expiration of the previous certification of approval by the Board. The fifteen-year term shall be conditioned upon the company complying with a mutually negotiated agreement between the Borough and the company for the expansion of the company's cable and Internet service to the areas designated in § A450-8 of this ordinance. The Borough reserves the right at any time to enforce and/or terminate the franchise according to applicable laws, rules and regulations for the company's failure to perform any of its commitments and obligations as set forth in this ordinance. Prior to enforcement or termination, the Borough shall give the company 60 days' written notice to cure the noncompliance. In the event, noncompliance continues, the Borough shall file a petition with the Board of Public Utilities seeking such relief as is appropriate under the circumstance.
If the company seeks successive consent, it shall, prior to the expiration of this consent, apply for municipal consent and certificate of approval in accordance with the Cable Television Act, N.J.S.A. 48:5A-11 and 48:5A-16, and applicable state and federal rules and regulations. The company shall also petition the Board for continued operation during the period following expiration of the consent granted herein and until such a time that a decision is made by the municipal governing body relative to the renewal of said consent.
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 to its cable television reception service in the municipality or any amount permitted by the Cable Television Act or otherwise allowable by law. The fee shall be paid on or before January 25 of each year, and at the same time the company shall file with the Chief Financial Officer of the municipality a statement showing the gross receipts upon which payment is based.
In the event applicable law hereafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Borough and the company shall negotiate in good faith with respect to the amount. Additionally, in the event the relevant laws are amended in the future to allow additional fees and/or charges (collectively "fees") to be paid to the Borough, the Borough shall have the right to impose such fees in accordance with the applicable law. In the event the law does not state the amount the Borough is allowed to impose, the parties shall negotiate in good faith with respect to the amount of the fee. In the event any of the fees provided for in this section cannot be agreed to after negotiations, then the Borough shall have all rights available to it under law in order to establish the fee.
The Company shall be required to offer service to any residence located in those areas of the franchise territory described herein, in accordance with the proposal for the provision of services as described in the application. Any additional extension of the system will be made in accordance with the proposal in the application. The company shall be further required to extend service to those Borough streets, along public rights-of-way as indicated below:
New cable service or products made available to the residents of Phillipsburg shall be made available to all of Alpha Borough within one year after introduction.
Any future extensions of the system, or any extension of the system along private roads will be made in accordance with the company's line extension policy, where applicable.
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.
In the event that at any time during the term of this ordinance the Borough shall lawfully elect to alter or change the grade of any street, alley or other public way, the company, upon reasonable notice by the Borough, shall, at its expense, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures.
The company shall, on the request of any person holding a valid building moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the company shall have the authority to require such payment in advance. The company shall be given not less than 10 days' advance notice to arrange for temporary wire changes.
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 within the Borough so as to prevent the branches of such trees from coming into contact with the wires and cables of the company. Such trimming shall be performed only to the extent necessary to maintain proper clearance for the company's wires and cables.
The company shall cause any and all construction plans relating to work on any extension of the company plant or work which could have a significant impact on public works within the Borough to be filed with the Borough Engineer.
All facilities and equipment of the company shall be constructed and maintained in accordance with the requirements and specifications of the applicable ordinances and regulations set forth by the Borough and/or any other local, state or federal agencies.
The consent granted herein to the company shall apply to the entirety of the municipality and any property hereafter annexed.
During the term of this franchise and any renewal term, 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 in accordance with N.J.A.C. 14:18-5.1. All complaints shall be received and processed by the company pursuant to N.J.A.C. 14:17-6.5. The local office shall be open to receive inquiries and complaints and to receive payment of bills from subscribers during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday. Any complaints from subscribers shall be investigated as soon as practicable, but at least within two business days of their receipt. The company shall keep a maintenance service log in the manner required by the regulations of the Office of Cable Television.
The New Jersey Office of Cable Television (OCTV) is hereby designated as the complaint officer required by N.J.S.A. 48:5A-26 to receive and act upon complaints by subscribers to cable television reception service provided pursuant to this franchise.
Facilities and equipment. In transmitting its television signals to subscribers in the Borough, the company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards, and the company shall comply with any requirements imposed by the federal regulations, any federal pronouncements and, to the extent not preempted by federal law, any state pronouncements relating to technical standards for the transmission of television signals, transmission quality or facilities and equipment.
Emergency uses. The company is in compliance with the Federal Emergency Alert System ("EAS") and, as such, 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 pursuant to state and federal requirements. The company shall in no way be held liable for any injuries 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 systems as contemplated herein. The municipality shall utilize the state-approved procedures for such emergency uses.
Customer service. At the request of the Borough, the company and Borough's designee shall meet at least semiannually to review all matters relating to cable television in the Borough, with the minutes of such meetings to be delivered to the company and to be filed with the Borough.
The Borough acknowledges that, under the Federal Act, municipalities do not have the authority to regulate the rates the company charges subscribers for its services. Therefore, the Borough will not regulate the rates the company may charge subscribers for its service; provided, that, in the event the Federal Act and other applicable law hereinafter is amended to permit the exercise of regulatory power over rates by municipalities, the Borough reserves the right to exercise the maximum power permitted by law.
The Borough is desirous of obtaining reduced rates for senior citizens, disabled residents and other parties for whom reduced rates may currently be available or may be available during the term of this ordinance. Therefore, if the company has adopted or adopts reduced rates for senior citizens, disabled persons or other parties in the future, all in accordance with N.J.S.A. 48:5A-11.1 et seq. and the Federal Act or any other law or regulation, these special rates shall be offered to qualified Alpha residents.
Although nothing herein shall require the company to carry or transmit any particular television stations or programming source, the company shall provide the subscribers in the Borough with at least the same broad categories of programming, in approximately the same quantity, as are now provided and which appear in the application.
The company shall provide free installation and basic cable service through one service outlet to the following facilities: the municipal building; Alpha Borough School; each police, fire, first aid, and emergency management facility; Department of Public Works; and Borough-operated community center at no cost. This obligation shall apply to any new facilities in the preceding categories constructed during the term of municipal consent.
The company shall provide free installation of Internet services to the same facilities listed in Section A. This obligation shall apply to any new facilities in the preceding categories constructed during the term of municipal consent. The company is not required to provide the monthly service fee free of charge.
The company shall pay, and by its acceptance of this franchise the company expressly agrees that it will pay, all damages and penalties which the Borough may legally be required to pay as a result of the company's negligence in the installation, operation, or maintenance of the cable television system authorized herein. The Borough shall notify the company's general manager within 30 days after the presentation of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any negligence or contract as aforesaid on the part of the company.
Furthermore, the company shall carry liability insurance in the minimum amount as follows:
During the life of the franchise, the company shall give a bond to the Borough in accordance with N.J.S.A. 48:5A-28(d), which bond shall be in the minimum amount of $25,000. Such bond shall be to insure the faithful performance of all undertakings of the company as represented in the application herein.
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 franchise and to assure uninterrupted service to each and all of its subscribers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with federal and/or state laws.
The company shall not sell or transfer its CATV system to another, nor transfer any rights under this franchise to another, except as provided in the State Act.
Any modification of existing and applicable FCC rules resulting from amendment thereto by the FCC shall, to the extent applicable, be considered as part of this franchise as of the effective date of the amendment made by the FCC and shall be incorporated in this franchise by specific amendments thereto by the lawful action of the Borough Council within one year from the effective date of the FCC's amendment or at the time of renewal to this franchise, whichever occurs first.
This ordinance and franchise are subject to all provisions of the State Act and Federal Act and to all lawful rules and regulations of the OCTV adopted pursuant thereto. The company shall at all times comply with the state regulations governing cable television operation, the State Act, the Federal Act and any other. In the event of a conflict between the State Act and state regulations and any FCC rules and regulations, the FCC rules and regulations shall prevail.
The company shall not allow its cable or other operations to interfere with the television reception of persons not served by the company, nor shall the CATV system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the residents of the Borough.
In the event new cable services or products are made available to subscribers in the Town of Phillipsburg, the same or similar service or product shall be made available to all of Alpha Borough within one year after introduction.
Subject to the requirements of the Federal Act and approval by the Board, the Borough reserves the power to amend any portion of this ordinance after public hearing for the purpose of requiring reasonable additions or greater standards of construction, operation, maintenance or otherwise on the part of the company. Said amendments shall be feasible and within the economic capabilities of the company.
Notwithstanding any specific mention of applicable federal or state statutes or regulations above, the company shall 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 statute, regulation, rule or promulgation.
Should any of the federal or state statutes, regulations or pronouncements applicable to the regulation of cable television be modified in any way, such modifications, to the extent that they embody required terms and conditions and meaningfully can be incorporated into this ordinance, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modification places limits on permissible terms and conditions and any provision of this ordinance becomes invalid by virtue of such modification, § A450-27 shall apply.
The Borough reserves the right to amend this ordinance in the event of any changes in state and/or federal law or regulations regarding cable television in a manner consistent with the regulations of the OCTV/BPU.
All of the statements and commitments contained in the application and any amendment thereto, or otherwise submitted in writing to the Borough or its Governing body, 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 part hereof by reference to the extent that they do not conflict with state or federal law.
Editor's Note: Copies of said application and other relevant writings are on file in the Borough offices.