[HISTORY: Adopted by the City Council of the City of Paterson 6-30-2004 by Ord. No. 04-082. Amendments noted where applicable.]
Telephone franchise — See Ch. A513.
Editor's Note: This ordinance also superseded former Ch. A495, Cable Television Franchise, adopted 3-18-1986 by Ord. No. 86-013.
For the purpose of this ordinance the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
- 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.
- Cablevision's application for renewal of municipal consent, which application is on file in the City Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The City of Paterson in the County of Passaic and the State of New Jersey.
- Cablevision of Paterson, LLC ("Cablevision"), the grantee of rights under this ordinance.
- 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. and the Telecommunications Act of 1996, or as those statutes may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television services, 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.
- The State of New Jersey.
- STATE REGULATIONS
- 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.
Editor's Note: The "terms defined above" refers to the definitions of "City" and "company" in the preamble to this ordinance. Said terms are also defined below.
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 City 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 City 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 City 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 15 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 a time that a decision is made by the City and the Board relative to the renewal of said consent.
The consent granted under this ordinance to Cablevision shall apply to the entirety of the City 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. Cablevision shall extend service to businesses in accordance with the line extension policy attached to the application for municipal consent.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision shall pay to the City, 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 City. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the City and Cablevision shall negotiate in good faith with respect to the amount thereof.
Cablevision shall, upon written request, provide free of charge one standard installation and monthly cable television reception service to all state or locally accredited public and private elementary and secondary schools and all municipal public libraries, as well as municipal buildings located within the City that are used for municipal governmental purposes.
The company shall, upon written request, provide one standard installation, one cable modem and monthly Internet access to all state or locally accredited public and private elementary and secondary schools and the municipal public libraries. Faith school or municipal library shall be permitted, at its own cost, to network up to 25 personal computer terminals to the cable modem provided by Cablevision. Upon request, the company shall provide each public elementary and secondary school and the municipal public libraries with a basic router at no additional charge.
The company shall provide, free of charge, one standard installation, one cable modem and monthly Internet access to one municipal location upon written request by the City. The City shall be permitted to network up to three additional personal computer terminals in the designated building (four computers in total) to the cable modem provided by Cablevision. At the City's request, Cablevision shall pay the costs to network the four computer terminals to the cable modem provided by the company.
Cablevision shall perform construction and installation of its plant and facilities in accordance with applicable state and federal law. The company shall be subject to the following additional construction requirements with respect to the installation of its plant and facilities in the City:
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.
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 City, shall remove or relocate its equipment, at its own expense.
Upon request of a person holding a building or moving permit issued by the City, 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.
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 City 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.
In any areas in the City where all utility services, including telephone and power, are required to be underground, Cablevision shall also place its cable underground.
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. With the exception of holidays, 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, and shall include some night and/or weekend hours.
The Office of Cable Television is hereby designated as the complaint officer for the City 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 City as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $1,000,000 for property damage or bodily injury or death to one person and $2,000,000 for property damage or 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. In addition, the company will provide a five-million-dollar umbrella liability policy over and above the above stated coverage amounts. Cablevision shall provide to the City Clerk copies of the certificates of insurance setting forth the coverage amounts specified herein.
Cablevision shall continue to host the City of Paterson's traffic system on its broadband network and shall continually maintain the network consistent with those technical standards established for the cable television industry under applicable law so as to be capable of supporting the City's traffic system. The City of Paterson shall be responsible for the acquisition, maintenance and operation of all component parts and ancillary software and equipment needed to operate the traffic system and for ensuring that its traffic system, inclusive of all of its component parts, not interfere with the use, operation or maintenance of the broadband network, including but not limited to the quality of any signals carried thereon. Cablevision shall provide the City with written notice of any interference problems caused by the traffic system or any of its components, and the City shall take prompt action to rectify the problem.
In the event that the City fails to cure any interference by the traffic system or any of its component parts within 20 days of the City's receipt of written notice by Cablevision, Cablevision shall have the right, in its sole discretion, in addition to any other remedies which Cablevision may possess under law to elect to shut down that portion of the traffic system or part causing the interference or to correct, repair or replace the interfering portion of the traffic system or component part at the sole cost and expense of the City of Paterson. Cablevision shall be permitted to recoup any costs or expenses which it may incur in correcting, repairing or replacing any portion of the traffic system or component part hereunder by deducting any such sums from any franchise fees or other payments due the City from Cablevision.
The City shall indemnify and save harmless Cablevision and each of its respective officers, directors, employees, representatives and agents against any and all claims, actions and suits at law or in equity for all losses, damages, liabilities, costs and expenses, including reasonable attorney fees, arising from, directly or indirectly, the City's management, operation, maintenance and control of the traffic control system, regardless of whether the City's management, operation, maintenance and control thereof is exercised directly by the City, its employees, agents or representatives or indirectly by some other entity operating the City's traffic control system on the City's behalf
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 $50,000. Such bond shall be to insure the faithful performance of its obligations as provided in this franchise.
The rates of the company for cable television services shall be subject to regulation to the extent permitted by federal and state law.
Cablevision shall implement a senior citizen discount in the amount of l0% 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:
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,
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,
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,
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 by the City pursuant to state and federal requirements. 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 municipality is unable to make full use of the cable television system as contemplated herein. The City shall utilize the state-approved procedures for such emergency uses.
In the event that another multi-channel video program provider's service within the City creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the City 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 City 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.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the City 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 City shall be under no obligation to support Cablevision's request for such relief from the Board.
Cablevision represents and acknowledges that, as of the date of its acceptance of this municipal consent, competition within the City 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 ordinance, 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.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access as described in the application for municipal consent.
The company shall provide one public access channel, one educational access channel and one government access channel on its cable system, which channels shall be used exclusively for noncommercial programming. The government access channel and educational access channel shall be under the exclusive control of the City. Cablevision shall administer the public access channel and may establish reasonable rules governing access to and use of the public access studio.
The City 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 City 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 City's provision of PEG access programming on such channel.
Cablevision shall continue to provide throughout the duration of this ordinance one access return feed at each of the following locations to provide for upstream transmission of noncommercial programming from these facilities to the company's customers using the cable system:
City Hall located at 155 Market Street, Paterson, New Jersey;
John F. Kennedy High School located at 61-127 Preakness Avenue, Paterson, New Jersey; and
Public access studio located at 100 Hamilton Plaza, Paterson, New Jersey or such future site for public access as designated by the City.
In consideration for the rights granted in this ordinance and upon written request of the City, Cablevision will provide a one-time grant of $150,000 to assist the City in the purchase of new equipment for the production and promotion of noncommercial public access programming on the cable system from the public access studio located within the City. Cablevision shall not be responsible for making this payment until the City has decided upon and designated a new public access studio location within the City, secured its use and readied the building for occupancy. Upon receipt of a written request from the City and sufficient proof that the conditions for payment have been met, Cablevision will provide the production equipment grant within 90 days.
Cablevision shall provide training at its public access studio in the production of programming for the City, its public schools and residents. These training sessions shall be conducted upon the reasonable request of the City, its public schools and residents; provided, however, each training session shall take place at the public access studio and require a minimum of five participants. The company shall not be obligated to provide more than 20 hours of training per month.
Upon request, Cablevision will cablecast six Paterson specific community events per year for the benefit of the company's cable customers in the City. Cablevision's total commitment for all six events shall be a minimum of 12 cablecast hours in each calendar year. The cablecasts will be produced by Cablevision and aired on its cable system. The City shall have the right to choose which events Cablevision covers, provided it shall give the company, on or before December 15 of each year, a list of those events it would like covered for the following calendar year.
Within 60 days following the effective date of the franchise, Cablevision shall provide a one-time grant to the City of $100,000. The City agrees that the grant money will be used exclusively for the purpose of funding City personnel or a third party entity to produce and air City Council meetings on Cablevision's government access channel. Upon making this payment to the City, Cablevision will no longer be responsible for such productions and will turn over these duties exclusively to the City's control.
Cablevision shall pay the City of Paterson $340,000 in annual compensation for the duration of this franchise for the continued use of the City's real property at 76-80 North Barclay Street and to help fund the acquisition, construction, equipping and operation of a new public access studio/technology center for use by the residents of the City at 75-81 Ellison Street or other designated location during the term of this franchise. This sum shall continue to be passed through as a line item on customer bills in the same manner that Cablevision's current lease payments are reflected, or as otherwise permitted under law. Concomitant with this ordinance, the City and Cablevision shall enter into a modified site lease for the North Barclay Street location and subsequently may enter into a lease for the new public access studio/technology center in lieu of or in addition to the lease for the North Barclay Street location.
No transfer of this franchise may be exercised without the consent of the Board. With Board consent, the rights granted to Cablevision by this ordinance may be exercised by a successor, provided such transferee or assignee remains bound by all the lawful provisions, terms, conditions and limitations prescribed in this ordinance.
All of the commitments contained in the application and any amendment thereto submitted in writing to the City 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 ordinance by reference and made a part hereof, except as specifically modified, changed, limited or altered by this ordinance, 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. Should any state or federal agency or body modify, change or alter any of its provisions with respect to cable television generally, such modifications, changes or alterations shall be incorporated into this consent consistent with the applicable dates specified in the change.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance 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 ordinance shall take effect upon passage, approval and publication as required by law and the issuance of a certificate of approval as issued by the Board of Public Utilities.