[HISTORY: Adopted by the Mayor and Council of the Borough of Bradley
Beach by Ord. No. 2003-14 (Ch. XVII of the 1974 Code). Amendments
noted where applicable.]
A.
The governing body of the Borough of Bradley Beach (hereinafter
referred to as the "Borough") determined that Cablevision of Monmouth, Inc.,
(hereinafter referred to as "the company" or "Cablevision") had the technical
competence and general fitness to operate a cable television system in the
Borough, and by prior ordinance granted its municipal consent for Cablevision
to obtain a nonexclusive franchise for the placement of facilities and the
establishment of a cable television system in the Borough.
B.
By application for renewal consent filed with the Borough
and the Office of Cable Television on or about July 26, 2002, Cablevision
has sought a renewal of the franchise.
C.
The Borough having held public hearings has made due
inquiry to review Cablevision's performance under the franchise, and to identify
the Borough's future cable-related needs and interests and has concluded that
Cablevision has substantially complied with its obligations under the franchise
and has committed to certain undertakings responsive to the Borough's future
cable-related needs and interests.
D.
The governing body of the Borough has accordingly concluded
that the consent should be renewed subject to the requirements set forth below;
and that, provided Cablevision's proposal for renewal embodies the commitments
set forth below, the Borough's municipal consent to the renewal of the franchise
should be given.
For the purpose of this chapter, the terms defined above shall have
the meanings there indicated, and the following additional terms shall have
the following meanings:
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.
Cablevision's application for renewal of municipal consent, which
application is on file in the Borough Clerk's office and is incorporated herein
by reference and made a part hereof, except as modified, changed, limited
or altered by this chapter.
The Board of Public Utilities of the State of New Jersey or its successor
agency.
The governing body of the Borough of Bradley Beach in the County
of Monmouth, and the State of New Jersey.
Cablevision of Monmouth, Inc. ("Cablevision"), the grantee of rights
under this chapter.
The Federal Communications Commission.
That federal statute relating to cable communications commonly known
as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521
et seq., and the Telecommunications Act of 1996, or as those statutes may
be amended.
Those federal regulations relating to cable television services,
47 CFR Section 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 Section 76.3), or as such regulations may be
amended.
The State of New Jersey.
Those regulations of the State of New Jersey Board of Public Utilities
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.
A public hearing concerning the consent herein granted to Cablevision
was held 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
municipality having received all comments regarding the qualifications of
Cablevision to receive this consent, the Borough hereby finds Cablevision
possesses the necessary legal, technical, character, financial and other qualifications
to support municipal consent, and that Cablevision's operating and construction
arrangements are adequate and feasible.
The Borough hereby grants to Cablevision its nonexclusive consent to
place in, upon, along, across, above, over, and under its highways, streets,
alleys, sidewalks, public ways, and public places in the municipality poles,
wires, cables, and fixtures necessary for the maintenance and operation in
the Borough of a cable television system, and for the provision of any communication
service over such system as may be authorized by federal or state regulatory
agencies. Operation and construction, pursuant to said consent, is conditioned
upon prior approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive and shall be for a
term of five years from the date of issuance of a certificate of approval
by the Board.
If Cablevision seeks successive consent, it shall, prior to the expiration
of this consent, apply for a municipal consent and certificate of approval
in accordance with N.J.S.A. 48:5A-16, and applicable state and federal rules
and regulations. The company shall also petition the Board for approval authorizing
continued operation during the period following expiration of the consent
granted herein, and until such time that a decision is made by the Borough
and the Board relative to the renewal of said consent.
The consent granted under this chapter to Cablevision shall apply to
the entirety of the Borough and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along
any public right-of-way to any person's residence within the portion of the
franchise territory, as described in the application for municipal consent,
at tariffed rates for standard and nonstandard installation. The primary service
area is the area specified on the map as provided in the application for municipal
consent.
Cablevision shall extend service along any pubic right-of-way outside
its primary service area to those residences within the franchise territory
which are located in areas that have a residential density of 25 homes per
mile or greater, or areas with less than 25 homes per mile where residents
agree to share the costs of such extension in accordance with the line extension
formula as provided by the company in its application for municipal consent.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision
shall pay to the Borough, as an annual franchise fee, a sum equal to 2% of
the actual gross revenues received from all recurring charges in the nature
of subscription fees paid by subscribers for its cable television reception
services in the Borough. In the event applicable law hereinafter permits a
larger franchise fee to be collected, but does not fix the amount thereof,
the Borough and Cablevision shall negotiate in good faith with respect to
the amount thereof.
A.
Cablevision shall, upon written request, provide, free
of charge, one standard installation and monthly cable television reception
service to all state or locally accredited elementary and secondary public
schools and all municipal public libraries, as well as municipal buildings
located within the Borough as set forth in Exhibit A to this chapter.[1]
[1]
Editor's Note: Exhibit A may be found on file in the office of the
Borough Clerk.
B.
Cablevision shall, upon written request, provide, free
of charge, one high-speed cable modem and monthly Internet access service,
including a standard installation service, to all state or locally accredited
elementary and secondary public schools and all municipal public libraries.
C.
Cablevision shall provide to the Borough, upon written
request, one high-speed cable modem and monthly Internet access service, including
a standard installation, to Borough Hall (the "designated building"). The
Borough shall be permitted, at its own cost, to network up to three additional
personal computer terminals in the designated building (four computers in
total) to the cable modem provided by Cablevision.
A.
Cablevision shall perform construction and installation
of its plant and facilities in accordance with applicable state and federal
law.
B.
The company shall be subject to the following additional construction
requirements with respect to the installation of its plant and facilities
in the Borough:
(1)
In the event that the company or its agents shall disturb
any pavement, street surfaces, sidewalks, driveways or other surfaces, the
company shall at its sole expense restore and replace such disturbances in
as good a condition as existed prior to the commencement of said work.
(2)
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 Borough, shall remove
or relocate its equipment at its own expense.
(3)
Upon request of a person holding a building or moving
permit issued by the Borough, the company shall temporarily move or remove
appropriate parts of its facilities so as to permit the moving or erection
of buildings or for the performance of other work. The expense of any such
temporary removal or relocation shall be paid in advance to the company by
the person requesting the same. In such cases, the company shall be given
not less than 14 days' prior written notice in order to arrange for the changes
required.
(4)
During the exercise of its rights and privileges under
this consent, 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,
cables, conduits and fixtures of the company. Such trimming shall be only
to the extent necessary to maintain proper clearance for the company's facilities.
Cablevision shall comply with the technical and customer service standards
established for the cable industry under applicable federal and state laws,
rules and regulations.
Cablevision shall establish and maintain during the entire term of this
consent a local area business office or agent for the purpose of receiving,
investigating and resolving complaints regarding the quality of service, equipment
malfunctions and similar matters. Said office shall be open daily during normal
business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through
Friday, with the exception of holidays.
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. All
complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force and effect at its sole
cost at all times during the term of this consent sufficient liability insurance
naming the Borough as an additional insured and insuring against loss by any
such claim, suit, judgment, execution or demand in the minimum amounts of
$500,000 for bodily injury or death to one person, and $1,000,000 for bodily
injury or death resulting from any one accident or occurrence stemming from
or arising out of the company's exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its sole cost and expense,
during the entire term of this agreement, a bond to the municipality in the
amount of $25,000. Such bond shall be to insure the faithful performance of
its obligations as provided in this franchise.
A.
The rates of the company for cable television services
shall be subject to regulation to the extent permitted by federal and state
law.
B.
Cablevision shall implement a senior citizen discount
in the amount of 10% off the monthly rate of the broadcast basic level of
cable television reception service to any person 62 years of age or older
who subscribes to the company's cable television service, subject to the following:
(1)
Such discount shall only be available to eligible senior
citizens who do not share the subscription with more than one person in the
same household who is less than 62 years of age; and
(2)
In accordance with N.J.S.A. 48:5A-11.2, subscribers seeking
eligibility for the discount must meet the income and residence requirements
of the Pharmaceutical Assistance to the Aged and Disabled program pursuant
to N.J.S.A. 30:4D-21; and
(3)
The senior discount herein relates only to the broadcast
basic level of cable television service, and shall not apply to any additional
service, feature, or equipment offered by the company, including any premium
channel services and pay-per-view services; and
(4)
Senior citizens who subscribe to a level of cable television
service beyond expanded basic service, including any premium or per-channel
a la carte service, shall not be eligible for the discount.
Cablevision shall be required to have the capability to override the
audio portion of the system in order to permit the broadcasting of emergency
messages pursuant to state and federal requirements. The company shall in
no way be held liable for any injury suffered by the Borough 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 Borough
shall utilize the state-approved procedures for such emergency uses.
Cablevision agrees that the capabilities of the cable system shall be
maintained technologically current throughout the duration of the franchise,
as compared with other communities of similar size served by the company,
to the extent economically reasonable and commercially practicable.
A.
In the event that another multichannel video program
provider's service within the Borough creates a significant competitive disadvantage
to Cablevision, the company shall have the right to request from the Borough
lawful amendments to its franchise that relieve it of burdens which create
the unfair competitive situation. Should the company seek such amendments
to its franchise, the parties agree to negotiate in good-faith appropriate
changes to the franchise in order to relieve the company of such competitive
disadvantages. If the parties can reach an agreement on such terms, the Borough
agrees to support the company's petition to the Board for modification of
the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
B.
If the parties are unable to reach an agreement on appropriate
amendments to the franchise, the Borough acknowledges that the company shall
have the right to petition the Board directly for such amendments in accordance
with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, the Borough
shall be under no obligation to support Cablevision's request for such relief
from the Board.
C.
Cablevision represents and acknowledges that, as of the
date of its acceptance of this municipal consent, competition within the Borough
has not yet risen to the level of creating a significant competitive disadvantage
sufficient to enable the company to seek relief under this section.
Upon expiration, termination or revocation of this chapter, Cablevision,
at its sole cost and expense and upon direction of the Board, shall remove
the cables and appurtenant devices constructed or maintained in connection
with the services authorized herein, unless Cablevision, 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.
A.
Cablevision shall continue to make available noncommercial
public, educational and governmental (PEG) access as described in the application
for municipal consent.
B.
The Borough agrees that Cablevision shall retain the
right to use the PEG access channel, or portion thereof, for non-PEG access
programming, during times when the Borough is not utilizing the channel for
purposes of providing PEG access programming. In the event that the company
uses said PEG access channel for the presentation of such other programming,
the PEG programming shall remain the priority use and the company's rights
with respect to using the channel for non-PEG programming shall be subordinate
to the Borough's provision of PEG access programming on such channel.
C.
In consideration for the rights granted in this ordinance,
the company shall provide the Borough with a one-time grant of $5,000, which
may be used by the Borough for any cable and/or other telecommunications-related
purpose as the Borough, in its discretion, may deem appropriate.
All of the commitments contained in the application and any amendment
thereto submitted in writing to the Borough by the company except as modified
herein are binding upon Cablevision as terms and conditions of this consent.
The application and any other written amendments thereto submitted by Cablevision
in connection with this consent are incorporated in this chapter by reference
and made a part hereof, except as specifically modified, changed, limited,
or altered by this chapter, or to the extent that they conflict with state
or federal law.
This consent shall be construed in a manner consistent with all applicable
federal, state and local laws.
If any section, subsection, sentence, clause, phrase, or portion of
this chapter is for any reason held invalid or unconstitutional by any court
of competent jurisdiction, such portion shall be deemed a separate, distinct
and independent provision, and such holding shall not affect the validity
of the remaining portion thereof.
This chapter shall take effect upon issuance of a certificate of approval
as issued by the Board of Public Utilities.
