[HISTORY: Adopted by the Council of the Township
of Montclair 10-7-2008 by Ord. No. 08-34.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded
former Ch. A351, Cable Television Franchise, adopted 5-26-1998 by
Ord. No. 98-21.
The Township of Montclair (hereinafter the Municipality
or the Township) hereby grants to Comcast of New Jersey II, LLC 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.
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 Communications Policy Act, 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
the federal and state definitions:
Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The company's application for renewal of municipal consent.
Any service tier, which includes the retransmission of local
television broadcast signals as defined by the FCC.
The Board of Public Utilities, State of New Jersey.
Comcast of New Jersey II, LLC, the grantee of rights under
this ordinance.
The Federal Communications Commission.
The Office of Cable Television of the Board.
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.
The Township of Montclair in the County of Essex, State of
New Jersey.
Public hearings were conducted by the municipality,
concerning the renewal of municipal consent herein granted to the
company, after proper public notice pursuant to the terms and conditions
of the Act and the regulations of the Board adopted pursuant thereto.
Said hearings were fully open to the public and the municipality received
and considered during said 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.
A.Â
The nonexclusive municipal consent granted pursuant
to this ordinance shall expire 15 years from the date of expiration
of the previous certificate of approval issued to the company by the
Board.
B.Â
In the event that the municipality determines that
the company has not substantially complied with the material terms
and conditions of this ordinance, the municipality shall have the
right, pursuant to N.J.S.A. 48:5A-47, to petition the OCTV for appropriate
action, including modification and/or termination of the certificate
of approval; provided, however, that the municipality shall have given
the company prior written notice of the company's alleged failure
to comply with the terms and conditions of this ordinance and the
company has not cured same within 45 days of delivery of said notice.
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 franchise fees equal to the
greater of:
A.Â
Two percent 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
B.Â
The amount permitted or required by the Act or other
applicable legal requirements, including, but not limited to, the
New Jersey systemwide cable franchising law.
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.
A.Â
The company shall be required to proffer service to
any residence or business along any public right-of-way in the primary
service area, as set forth in the company's application. The company's
line extension policy, as set forth in the company's application,
shall govern any extension of plant beyond the primary service area.
B.Â
Comcast will comply with all applicable laws, rules
and regulations governing the operation of its cable television system
and cable communications system within the Township. If any laws,
rules or regulations are declared unlawful by a court of competent
jurisdiction or superseded by a duly-enacted state or federal statute
or regulation, Comcast will not be bound by such regulation, nor will
the company be bound by any provision of this ordinance or the renewal
certificate of approval which is declared unlawful by a court of competent
jurisdiction or which is superseded by a duly-enacted state or federal
statute or regulation. The Township and the company reserve the right
to seek administrative or judicial review of the validity of any statute,
regulation or ordinance.
A.Â
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
to a condition equal to or better than the condition existing prior
to the commencement of said work.
B.Â
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, relay or relocate its equipment at
the expense of the company.
C.Â
Removal or trimming of trees. In the exercise of its
rights and privileges under this franchise, the company shall have
the authority, upon at least seven days' prior written notice to the
Township, except in cases of emergency, to reasonably trim trees located
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 performed to the minimum extent necessary to maintain proper
clearance of the company's wire and cables.
A.Â
In providing services to its customers, the company
shall comply with N.J.A.C. 14:18-1 et seq. and all other applicable
state and federal statutes and regulations. The company shall strive
to meet or exceed all company and industry standards in the delivery
of customer service, and the company shall provide annual written
reports to the Township regarding its customer service, including
a description of all written complaints received from the company's
subscribers in the Township and the company's resolution of such complaints.
B.Â
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.
C.Â
The company shall continue to fully comply with all
applicable state and federal statues and regulations regarding the
availability of devices for the hearing impaired and the notification
of same to customers.
D.Â
The company shall use every reasonable effort to meet
or exceed voluntary standards for telephone accessibility developed
by the National Cable Television Association (NCTA).
E.Â
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.
F.Â
In addition to the requirements of Subsection A above, the company shall, upon the Township's reasonable request, provide interim customer service reports to the Township, but not more than once every four months, and the company will meet with the Township Council or other designated Township officials to review any customer service issues or other concerns within 30 days of written request from the Township or the Township Manager.
The Office of Cable Television in the Board
of Public Utilities 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 subscribers from
the OCTV.
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 business office
shall have a publicly listed toll-free telephone number and be open
during standard business hours, but in no event (excepting for emergent
circumstances) less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
During the life of the franchise, the company
shall maintain and deliver to the municipality a performance 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.
The rates of the company shall be subject to
regulation as permitted by federal and state law.
A.Â
The company shall continue to provide a system-wide
public access channel maintained by the company. Qualified individuals
and organizations may utilize public access for the purpose of cablecasting
noncommercial access programming in conformance with the company's
published public access rules.
B.Â
The company shall continue to provide a system-wide
leased access channel maintained by the company for the purpose of
cablecasting commercial access programming in conformance with the
company's guideline and applicable state and federal statutes and
regulations.
C.Â
The company shall continue to provide the Township
with a dedicated local (governmental) access channel maintained by
the company for use by the Township or its designee for the purpose
of cablecasting noncommercial access programming in conformance with
the Township's guidelines and applicable state and federal statutes
and regulations.
D.Â
The company shall take any steps that are necessary
to ensure that the signals originated on the all access channels are
carried without material degradation, and with a signal whose quality
is equal to or better than that of the other standard channels that
the company transmits.
A.Â
The company shall continue to provide standard installation
and basic cable television service on one outlet, and all other authorized
existing outlets, at no cost, to each school in the municipality,
public and private, elementary, intermediate and secondary. In addition,
the company shall provide additional outlets, provided that the additional
outlets are located in a school located within 200 feet of an 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 also be waived on all such
additional outlets. Conversion of noncompany authorized outlets to
company standards, including wiring, equipment and installation charges,
shall be paid by the affected location, entity or school.
B.Â
The company shall continue to provide standard installation
and basic cable television service at no cost on one outlet each,
and on all other company authorized existing outlets, at each police,
fire, emergency management facility and public library in the municipality.
In addition, the company shall provide additional outlets to police,
fire, emergency management facility and public libraries in the municipality,
provided that the additional outlets are located in a facility located
within 200 feet of an 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 also be waived
on all such additional outlets. Conversion of noncompany authorized
outlets to company standards, including wiring, equipment and installation
charges, shall be paid by the municipality.
C.Â
The company shall continue to provide one free nonnetworked
high-speed Internet connection and service (one outlet at each location)
at all public library buildings and all public and private schools.
Connections are to be located in areas accessible to student and community
use, and cannot be restricted to administrative use. All facilities
must be located within 200 feet of active cable plant.
D.Â
The company shall continue to provide and maintain
existing local access returns at the Montclair Municipal Building,
presently located at 205 Claremont Avenue, and to Montclair High School
located at 100 Chestnut Street.
E.Â
The company shall provide an additional fiber optic
local access return with transmitter, receiver and monitor outlet
(monitor not provided by company) at a location designated by the
Township within one year of the Township's written request. The location
of said return must be within 200 feet of an active cable plant.
F.Â
Within three months after the issuance of a renewal
certificate of approval (COA) by the OCTV, the company shall provide
to the municipality a one-time grant in the amount of $90,000 for
local access-related and communication needs.
G.Â
The company shall continue to make available to the
Township, on an availability and scheduled basis, a mobile production
vehicle for the purpose of producing noncommercial community governmental
or educational access programming, consistent with the company's written
rules and regulations governing the use of said vehicle. The company
shall provide basic training to users of the production vehicle and
will provide other technical assistance and training upon written
request for local residents for the purpose of producing PEG access
programming, to the same extent and on the same terms as the company
offers such technical assistance and training to other municipalities.
H.Â
The company shall provide the Township with a second
dedicated digital local (governmental) access channel and return,
for use by the Township or its designee, if and when the Township
demonstrates that programming on the Township's original local access
channel has reached 20 hours of unduplicated original programming
per week for a period of 13 consecutive weeks (the demonstration period),
exclusive of regularly scheduled statutory meetings of official municipal
bodies, i.e., the Township Council, Planning Board, Zoning Board of
Adjustment and Board of Education. The second digital local access
channel shall be completed and operational within one year after the
end of the demonstration period. Origination of the channel must be
within 200 feet of active cable plant. Upon request of the Township,
and at the Township's option, the second dedicated access channel
may be transferred or converted to a public (P) access channel.
I.Â
The company shall provide an additional grant of $75,000
in support of cable-related and communications programs, or as otherwise
determined by the Township, which grant shall be payable in 15 annual
installments, in the amount of $5,000 per year, with the first payment
due on March 1, 2009, and each additional payment due on March 1 of
each succeeding year. This grant shall be payable by the company regardless
of whether the franchise granted pursuant to this ordinance is cancelled
or terminated, by agreement or otherwise, or whether the franchise
is superseded or nullified by virtue of any law, rule or regulation
enacted subsequent to the date of this ordinance or by any other act
or event which occurs after the date of this ordinance.
J.Â
The company will provide no cost digital video monitor
service and installation at access origination site(s) and future
origination sites, if any.
A.Â
The company will comply with the Emergency Alert System
(EAS) rules in accordance with applicable state and federal statutes
and regulations.
B.Â
The company shall in no way be held liable for any
injury suffered by the municipality or any 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 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 (umbrella) policy
in the amount of $5,000,000.
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.
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.
Nothing in this ordinance or in any prior agreement
is or intended to confer third-party beneficiary status on any member
of the public to enforce the terms of such agreements or ordinance.
This ordinance shall take effect upon final
adoption and immediately upon issuance of a renewal certificate of
approval by the BPU.
