[HISTORY: Adopted by the Mayor and Borough Council of the Borough of Berlin 3-4-2004 by Ord. No. 2004-02. Amendments noted where applicable.]
Editor's Note: This chapter authorized the renewal of a franchise agreement which had been codified as former Chapter A365, adopted 9-20-1993 by Ord. No. 93-21.
The municipality hereby grants to Comcast Cablevision of Garden State, LP. 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 systems.
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 C.F.R. 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:
- ACT OR CABLE TELEVISION ACT
- 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.
- BASIC CABLE SERVICE
- Any service tier which includes the retransmission of local television broadcast signals as defined by the FCC.
- BOARD OR BPU
- The Board of Public Utilities, State of New Jersey.
- BOROUGH OR MUNICIPALITY
- The Borough of Berlin, County of Camden, State of New Jersey.
- The grantee of rights under this chapter and is known as Comcast Cablevision of Garden State, LP.
- The Federal Communications Commission.
- OFFICE OR OCTV
- The Office of Cable Television of the Board.
Public hearings conducted by the municipality, 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 hearings, having been fully open to the public, and the municipality, having received at said public 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.
The nonexclusive municipal consent granted herein shall expire 15 years from the date of expiration of the previous certificate of approval issued by the Board (with a five-year automatic renewal as provided by N.J.S.A. 48:5A-19 and 25, and N.J.A.C. 14:18-13.6).
In the event that the municipality shall find that the company has not substantially complied with the material terms and conditions of this chapter, the municipality 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 municipality shall first have given the company written notice of all alleged instances of non-compliance and an opportunity to cure same within 90 days of that notification.
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 Borough 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 Borough or any amount permitted by the New Jersey Cable Television Act or otherwise allowed by law.
The consent granted under this chapter to the renewal of the franchise shall apply to the entirety of the municipality 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. The company will offer service to any resident within the Borough at no charge for facilities constructed on the public right-of-way other than installation charges. The company will provide service to commercial establishments on a material, cost and labor basis.
Restoration. 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. Prior to disturbing any pavement, street surface, sidewalk, driveway or other surfaces, the company shall first obtain a road-opening permit or any other appropriate permit required by the Borough.
If, at any time during the period of this consent, the Borough 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, re-lay and relocate its equipment, at the expense of the company.
The company shall temporarily move or remove appropriate parts of its facilities to allow moving of buildings, machinery or in any other similar circumstances. The expense shall be borne by the party requesting such action except when requested by the municipality, in which case the company shall bear the cost.
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 and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities.
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 municipality upon written request of the municipality's Administrator or Clerk.
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.
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.
The company shall use every commercially reasonable effort to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA).
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.
The Office of Cable Television 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 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. Such a business office shall have a publicly listed toll-free telephone number and be open during standard business hours, and in no event (excepting 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 give to the municipality a bond in the amount of $50,000. 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 and as otherwise set forth herein.
The rates of the company shall be subject to regulation as permitted by federal and state law.
The company shall provide total preferred cable television service on one outlet at no cost to each school in the municipality, public and private, elementary, intermediate and secondary, provided the school is within 175 feet of 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 be waived on all additional outlets.
The company shall provide total preferred cable television service at no cost on one outlet to each police, fire, emergency management facility and public library in the municipality, provided the facility is located within 175 feet of 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 be waived on all additional outlets.
Within 12 months of adoption of this chapter by the municipality and its approval by the company, the company shall construct and activate a dedicated fiber-optic line to the Borough Hall for the purpose of cable casting programming of interest to Borough residents on the education/government access channel, as determined by Berlin Borough.
The company will provide and maintain the cable, modulators and equipment necessary for the Borough's education-government access channel to send a signal to the company, and to receive the return feed of signal. The company will not be responsible for the maintenance of any studio equipment used for the access channel, including but not limited to cameras, editing decks, monitors, and character generators, etc. The company shall also install at the Borough Hall a signal origination switch to enable the Borough to switch live transmissions between Eastern High School and other locations determined by the Borough for broadcast within Berlin Borough only.
Within six months of the adoption of this chapter by the municipality and its approval by the company, the company shall provide the Borough with a one-time technology grant in the amount of $20,000 for purchase of video production equipment in association with the government access channel or for any other purpose the Borough deems appropriate.
In the event that the municipality determines that it is necessary and feasible for it to contract with the company for the purpose of providing two-way or interconnection services, the company shall be required to apply to the BPU for approval to enter into and establish the terms and conditions of such contract. All costs for such application to the BPU shall be borne by the municipality.
The company will comply with the Emergency Alert System (EAS) rules in accordance with applicable state and federal statutes and regulations.
The company shall in no way be held liable for any injury 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 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 commitments and statements contained in the application and any amendment thereto submitted in writing to the municipality by the company, except as modified herein, are binding upon the company as terms and conditions of this municipal consent. The application and any other relevant writing submitted by the company shall be annexed hereto and made a part hereof by reference as long as it does not conflict with state or federal law. All ordinances or parts of ordinances or other agreements between the municipality and the company that are in conflict with the provisions of this agreement are hereby declared invalid and superseded.
The company agrees to hold the Borough harmless from any liability arising out of the company's operation and construction of its cable television system and further agrees to indemnify the Borough for any damages, costs, or legal fees incurred by the Borough as a result of the company's operation and maintenance of its cable television system.
Any portion of the application which is in conflict with the provisions of the Cable Television Act, N.J.S.A. 48:5A-1 et seq., the Cable Communications Policy Act, 47 U.S.C. 521 et seq. and/or FCC Rules and Regulations, 76.1 et seq., as amended, is not to be construed as effective under the terms of this chapter.
Should the municipality grant 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.
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.
This chapter shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.