[HISTORY: Adopted by the Mayor and Borough Council of the Borough
of Berlin 3-4-2004 by Ord. No. 2004-02.[1] Amendments noted where applicable.]
[1]
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:
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 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.
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.
A.
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).
B.
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.
A.
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.
B.
Relocation.
(1)
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.
(2)
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.
C.
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.
A.
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.
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.
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).
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
The company will comply with the Emergency Alert System
(EAS) rules in accordance with applicable state and federal statutes and regulations.
B.
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.
A.
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.
B.
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.
