[HISTORY: Adopted by the Common Council of
the City of Egg Harbor City 12-15-2022 by Ord. No. 16-2022.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. A271,
Cable Television Franchise, adopted 3-23-1995 by Ord. No. 5-1995.
The City 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 City, 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 City of Egg Harbor a cable television and communications system.
This consent is subject to the terms and conditions of this chapter
and upon the condition that the company accepts the provisions of
this chapter and confirms that it shall comply with the commitments
contained herein.
For the purpose of this chapter, 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 CFR 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.
The City of Egg Harbor, County of Atlantic, State of New
Jersey.
The grantee of rights under this chapter and is known as
Comcast of South Jersey, LLC.
The Federal Communications Commission.
The Office of Cable Television of the Board.
Consists of the area of the City currently served with existing
plans as set forth in the map annexed to the company's application
for municipal consent.
Public hearing conducted by the City, 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 hearing,
having been fully open to the public, and the City Committee, having
received at said public hearings all comments regarding the qualifications
of the company to receive this renewal of municipal consent, the City
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 herein shall expire 12
years from the date of expiration of the previous certificate of approval
issued by the Board.
B.Â
In the event that the City shall find that the company has not substantially
complied with the material terms and conditions of this chapter, the
City shall have the right to petition the OCTV, pursuant to N.J.S.A.
48:5A-47, for appropriate action, including modification and/or termination
of the certificate of approval; provided, however, that the City shall
first have give the company written notice of all alleged instances
of noncompliance and an opportunity to cure same within 90 days of
that notification.
Pursuant to the terms and conditions of the Act, N.J.S.A. 48:5A-30,
the company shall, during each year of operation under the consent
granted herein, pay to the City 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 City or any higher amount
permitted by the Act or otherwise allowable by law.
The consent granted under this chapter for the renewal of the
franchise shall apply to the entirety of the City and any property
subsequently annexed hereto.
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. Any extension of plant
beyond the primary service area shall be governed by the company's
line extension policy, as set forth in the company's application,
with a HPM ("homes-per-mile") of 35 dwellings per linear mile from
the nearest active trunk or feeder line from which a usable cable
signal may be obtained. For purposes of this section and the company's
implementation of the LEP, a home shall only be counted as a dwelling
unit if such home is occupied and within 275 feet of the public right-of-way.
A.Â
Restoration: In the event that the company or its agents shall disturb
any pavement, street surface, sidewalk, driveway, 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 reasonably
good a condition as existed prior to the commencement of said work.
Such work shall be completed within 30 calendar days, unless the company
requests an extension of time from the City.
B.Â
Relocation: If at any time during the period of this consent, the
City shall alter or change the grade of any street, alley or other
way or place, the company, upon reasonable notice by the City, shall
remove, re-lay or relocate its equipment, at the expense of the company
prior to approval of the Board.
C.Â
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 City 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. The company agrees
to provide prior notice of trimming to the City if such activity requires
street or sidewalk closures or requires changes to typical vehicle
and/or pedestrian traffic patterns.
D.Â
Temporary removal of cables: The company shall, upon request of the
City, at the company's expense, temporarily raise, lower or remove
its lines in order to facilitate the moving of buildings or machinery
or in other like circumstances, subject to the prior approval of the
Board. The company agrees to promptly investigate and respond to all
requests by City officials to secure or eliminate loose cables upon
notification of unsightly cables and their locations.
E.Â
Installation of equipment: The company shall install equipment in
the same location and manner as existing public utilities whenever
possible, in order to minimize the impact of same on surrounding property.
F.Â
Local ordinances: The company is subject to and shall be governed
by all lawful and applicable provisions of federal laws, state laws,
and generally applicable regulations. This franchise is further subject
to all generally applicable ordinances and resolutions of the City
in the exercise of its inherent police powers. Without either party
waiving any of their rights, the City and company agree that, to the
extent any term of this municipal consent is inconsistent with the
terms of any City ordinance existing prior or subsequent to the effective
date, this municipal consent franchise shall control.
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 City upon written request of the City Clerk.
A.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.
B.Â
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.Â
Nothing herein shall impair the right of any subscriber or the City
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.
The Office of Cable Television is hereby designated as the Complaint
Officer for the City 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 City shall have the right to request copies of records and reports
pertaining to complaints by City customers 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.
During the life of the franchise the company shall give to the
City 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. At the
written request of the City, the company shall provide updated information
pertaining to the performance bond.
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 expanded basic or a similar
tier of cable television service to one outlet at no cost to each
qualified existing and future school in the City, public and private,
elementary, intermediate and secondary, provided the school building
is within 200 feet of an active cable distribution plant or through
a customer-owned conduit. Each additional outlet installed, if any,
shall be paid for on a materials-plus-labor basis by the school requesting
service.
B.Â
The company shall continue to provide expanded basic or a similar
tier of cable television service at no cost to one outlet to each
qualified existing and future municipal building, police, fire, emergency
management facility and public library in the City or other public
instrumentalities, provided the facility is located within 200 feet
of an active cable distribution plant or through a customer-owned
conduit. Each additional outlet installed, if any, shall be paid for
on a materials-plus-labor basis by the City.
C.Â
The company shall continue to provide free basic internet access
service, via high-speed cable modem, to one non-networked personal
computer in each qualified existing and future public school in the
City, elementary, intermediate and secondary, at no charge provided
the facility is located within 200 feet of an active cable distribution
plant. The internet access service shall be installed on a computer
that is accessible to the students and not for administrative use
only.
D.Â
Within six months of the issuance of a renewal certificate of approval
by the BPU, the company shall provide to the City a one-time technology
grant in the amount of $12,000 to meet the technology- and/or cable-related
needs of the community.
A.Â
The company will continue to provide one channel for governmental
access. It will be on the most basic tier of service offered by the
company in accordance with the Cable Act, Section 611 [47 U.S.C. § 531],
and as further set forth below.
B.Â
The company does not relinquish its ownership of or ultimate right
of control over a channel by designating it for governmental access
use. Any access user — whether an educational or government
user — acquires no property or other interest by virtue of the
use of a channel so designated, and may not rely on the continued
use of a particular channel number, no matter how long the same channel
may have been designated for such use.
C.Â
The company shall not exercise editorial control over the use of
any governmental access channel, except the company may refuse to
transmit any governmental access program or portion of any governmental
access program that contains obscenity, indecency, or nudity.
D.Â
Government access. "Government access" shall mean noncommercial use
by the governing bodies of the City for the purpose of showing the
public local government at work.
E.Â
Fallow time. Because blank or underutilized government access channels
are not in the public interest, in the event the City or other PEG
access users elect not to fully program the PEG access channel, the
company may program unused time on those channels subject to reclamation
by the City upon no less than 60 days' written notice.
F.Â
Indemnification. The City shall indemnify company for any liability,
loss, or damage it may suffer due to violation of the intellectual
property rights of third parties on the government access channel
and from claims arising out of the rules for or administration of
government access channel and its programming.
G.Â
Within three months of the issuance of a renewal certificate of approval
by the BPU, the company shall provide to the Township a one-time E/G
access capital grant in the amount of $12,000 to purchase video production
and other PEG-related equipment.
H.Â
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)],
allows the company to itemize and/or identify: 1) the amount on the
subscriber bill assessed as a franchise fee and the identity of the
governmental authority to which the fee is paid; 2) the amount on
the bill assessed to satisfy any requirements imposed on the company
by the cable franchise to support public, education, and/or governmental
access channels or the use of such channels; and 3) any grants or
other fees on the bill or any tax, assessment, or charge of any kind
imposed by any governmental authority on the transaction between the
operator and the subscriber. The company reserves its external cost,
pass-through rights to the full extent permitted by law.
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 City or any other person, during an emergency, if for any reason
the City 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 (or "umbrella")
policy in the amount of $5,000,000.
All of the statements and commitments contained in the application
are annexed thereto and incorporated therein, and any amendment 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.
Should the City grant municipal consent for 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 chapter subject to the provisions of N.J.A.C. 14:17-6.7.
The company agrees to simultaneously provide a courtesy copy of the
petition to the City Clerk in the event that it files such a request
with the BPU under this section of the consent agreement.
If any section, subsection, sentence, clause, phrase or portion
of this chapter 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.
A.Â
The company shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature. The
City agrees to treat any information disclosed by the company as confidential
and only to disclose it to those employees, representatives, and agents
of the City that have a need to know in order to enforce this chapter
agreement and who agree to maintain the confidentiality of all such
information.
B.Â
The company shall not be required to provide customer information
in violation of Section 631 of the Cable Act or any other applicable
federal or state privacy law. For purposes of this section, the terms
"proprietary or confidential" include, but are not limited to, information
relating to the cable system design, customer lists, marketing plans,
financial information unrelated to the calculation of franchise fees
or rates pursuant to FCC rules, or other information that is reasonably
determined by the company to be competitively sensitive. The company
may make proprietary or confidential information available for inspection
but not copying or removal by the Municipality's representative.
In the event that the Municipality has in its possession and receives
a request under a state "sunshine," public records, or similar law
for the disclosure of information the company has designated as confidential,
trade secret or proprietary, the City shall notify the company of
such request and cooperate with company in opposing such request.
The company shall not be liable or responsible for, in whole
or in part, any delay or failure to perform any of its obligations
hereunder which may result from accidents, pandemics, public health
emergencies, floods, fires, earthquakes, tornadoes or other acts of
God; war, acts of war (whether or not a declaration of war is made),
civil disobedience; civil disturbance, sabotage or vandalism, customer
tampering or interference, or act of public enemy; strikes, other
labor or job actions or unavailability of materials or equipment;
or other events or circumstances beyond the reasonable control of
the company.
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 or Franchise.
The Municipality, for its part, shall endeavor to exercise reasonable
efforts to require developers and utility companies to provide the
company with at least 15 days' advance notice of an available
open trench for the placement of necessary cable.
This chapter shall take effect immediately upon issuance of
a Renewal Certificate of Approval from the BPU.
