[HISTORY: Adopted by the City Council of the City of East Orange 2-28-2005 by Ord. No. 5-2005. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. A300, Cable Television Franchise, adopted 10-14-1975 by Ord. No. 6-1975, as amended in its entirety 12-23-1996 by Ord. No. 19-1996.
The City having held a hearing fully open to the public, after proper public notice, pursuant to the requirements of law and having received and considered all comments relating to its consent to a renewal of the franchise agreement, herein finds that:
Since Comcast has substantially performed its obligations under its previous franchise agreement and under applicable law, the City has no reason to believe that in the future Comcast will fail to comply with its obligations under a renewal franchise agreement or under applicable law.
If Comcast undertakes all commitments set forth in this ordinance and performs its obligations pursuant to the terms and conditions hereunder, the City will have reasonable assurance that Comcast will meet the City's future cable-related needs.
The City hereby consents to a renewal of its franchise agreement with Comcast, subject to the terms and conditions set forth in this ordinance and provided that Comcast accepts in writing all of the terms and conditions set forth herein.
Except where, by the context, it is clear that a different meaning is intended, the following words and expressions shall have the meanings given herein. Said meanings are intended to supplement the definitions provided in the following: Federal Communications Commission (FCC) rules and regulations at 47 CFR 76.1 et seq. as amended; the Communications Act of 1934 at 47 U.S.C. § 521 et seq., as amended; and the Cable Television Act, N.J.S.A. 48:5A-1 et seq., as amended, and shall in no way be construed to broaden, alter or conflict with federal and state definitions:
- BASIC CABLE SERVICE
- Any service tier, which includes the retransmission of local television broadcast signals as defined by the FCC.
- BPU or NJBPU
- The Board of Public Utilities of the State of New Jersey or any successor agency.
- CABLE TELEVISION SYSTEM or CATV SYSTEM
- As defined by appropriate FCC regulations
- The City of East Orange, New Jersey.
- CITY COUNSEL
- The City's Corporation Counsel or his or her authorized representative.
- CITY ENGINEER or ENGINEER
- The City's Engineer or his or her authorized representative.
- The grantee of rights under this ordinance and is known as Comcast of New Jersey II, LLC, located at 800 Rahway Avenue, Union, New Jersey 07083.
- The City Council of the City of East Orange, County of Essex, State of New Jersey.
- The Federal Communications Commission, as presently constituted by the United States Congress, or any successor agency.
- FRANCHISE TERRITORY
- Geographical scope of the license created by the ordinance.
- GROSS REVENUE
- Revenues as defined N.J.S.A. 48:5A-30 et seq.
- All municipal libraries located in the City.
- MUNICIPAL CONSENT or THIS CONSENT
- The legal authorization given under this ordinance in accordance with N.J.S.A. 48:5A-1 et seq., to construct, operate and maintain a CATV system in the City. This consent is intended to supply Comcast with full and complete authorization to permit Comcast to apply for its approvals by the BPU.
- OFFICE or OCTV
- The Office of Cable Television within the BPU.
- Any person, firm, partnership, corporation, association or any other legal entity.
- SCHOOL SYSTEM
- All public schools in the City.
- Includes any public right-of-way, including a highway, road, avenue, court, public lane or alley, and any sidewalk or footpath open for public use. Also included are those lands or properties over which the City has an easement or right-of-way.
- The specific CATV system, as defined above, that is ultimately constructed, operated and maintained pursuant to this consent in the City of East Orange.
Any term that is defined in the rules and regulations of the Federal Communications Commission, at 47 CFR 76.5, the Communications Act of 1934 at 47 U.S.C. § 521 et seq., or in the New Jersey Cable Television Act, N.J.S.A. 48:5A-1 et seq., which is not mentioned in the above definitions shall be incorporated herein by reference and shall be defined precisely as it appears therein.
Subject to the terms and conditions of this ordinance, the City hereby grants Comcast a renewal of its nonexclusive municipal consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the City such poles, wires, cables and fixtures as are necessary for the maintenance and operation in the City of a cable television and cable communications system. Comcast shall use its best efforts to refrain from placing its wires and plant over thoroughfares in the City. Comcast may only place its wire and plant over City thoroughfares where existing telephone and electric utility wires and plant currently exist.
The consent granted by this ordinance is not exclusive. The City expressly reserves the right to grant additional franchises on similar or identical terms to other persons at any time, provided that no such additional franchise shall materially impair the rights or affect the obligations of Comcast under this ordinance or under any rule or regulation promulgated by the BPU.
At the time this municipal consent becomes effective (as provided in § A300-25 below), and for and throughout the renewal term (as defined in § A300-6 below), the City shall renew and continue its consent for Comcast to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places in the City poles, wires, cables, underground conduits, manholes and other television conductors and fixtures as are necessary for the maintenance and operation in the City of a cable television and cable communications system.
Unless otherwise terminated pursuant to this ordinance, the renewal term granted by this ordinance shall expire 15 years after the date of expiration of the previous COA granted by the BPU.
The City may conduct a review of Comcast's compliance under this ordinance. Said review shall commence 18 months from the issuance of a renewal COA and shall be completed no later than six months from that date. The City shall notify Comcast and the OCTV of the commencement of said review in writing and shall also notify Comcast and OCTV in writing within 30 days after completion of said review. Said notification shall contain the City's complete findings in this matter.
If the City, in its sole discretion, finds that Comcast has failed substantially to comply with any term and condition of this ordinance, the City may petition the OCTV for appropriate action, including modification or termination of the renewal COA; provided, however, that the City gives Comcast prior written notice of the alleged instances of noncompliance and an opportunity to cure same within 90 days of said notification.
The franchise territory includes the City in its entirety and any property hereinafter annexed thereto.
Comcast shall, during each year of operation under the consent granted herein, pay to the City the maximum franchise fee allowable by law and any other legally permissible amount. The franchise fee shall equal 2% of Comcast's gross revenues from all recurring charges in the nature of subscription fees paid by subscribers to its cable television reception service in the City. The City reserves the right to increase the franchise fee to take advantage of increases in the maximum franchise allowable by law or changes in the legal definition of gross revenues and, if legally permissible, to petition the BPU for permission to charge a rate higher than the maximum. On or before January 25 of each year, Comcast shall file with the City's Chief Financial Officer a verified statement indicating the amount of its gross revenues from such charges. Simultaneously with the filing of its verified statement of gross revenues, Comcast shall pay to the City's Chief Financial Officer the yearly fee and amount imposed by this section.
Comcast shall proffer service to any person's residence or business located in the City in accordance with an OCTV-approved line extension policy and Comcast's stated installation charges and line extension policy as set forth in the application or as the same hereafter may be amended. Comcast's installation charges and line extension policy must comply with all federal or state laws, regulations or other pronouncements.
The City's consent to renewal is subject to and expressly contingent upon Comcast's written acceptance of the conditions set forth in this section. The City may withdraw its consent if, in its discretion, the CTAC finds that Comcast has failed to satisfy any of the following terms and conditions:
Acceptance of the consent ordinance. Pursuant to N.J.A.C. 14:18-11.19, Comcast must notify the City Clerk in writing of its acceptance of all terms and conditions set forth in this consent ordinance.
Facilities and equipment.
In transmitting its television signals to subscribers, Comcast shall provide a quality signal. In addition, Comcast has an ongoing maintenance obligation to replace improperly functioning systems, parts or components, whether or not the malfunction began to occur before or after the recent upgrades.
Comcast has completed an upgrade of its system insofar as it delivers television signals to the City. The upgrade entails the deployment of fiber optic technology in a hybrid fiber optic/coaxial cable architecture with fiber to digital nodes. This fiber-to-the-node architecture brings fiber deep into individual neighborhoods, with each node serving approximately 500 households. The upgrade increased the band width or channel capacity of the system from 550 MHz to 750 MHz, for the upgrade resulted in additional channels and enhanced picture quality and greater system reliability. In addition, the return capacity of the system has been activated, allowing introduction of interactive, two-way services such as high-speed Internet services. Nothing in these requirements shall relieve Comcast of its responsibility as part of its ongoing maintenance obligations to replace systems, parts or components thereof which are not properly functioning before or after the upgrade.
Comcast shall cause any and all construction plans relating to work on any extensions of Comcast's plant or work which could have significant impact on public works within the City to be filed with the City Clerk. Nothing herein shall create any rights or obligations with respect to construction work which are inconsistent with any regulations or regulatory authority of the OCTV or the Board.
To maintain or improve its level of telephone accessibility for calls relating to maintenance and repairs, installation, the addition or deletion of programming services and other customer inquiries, Comcast shall do the following:
In providing services to its customers, Comcast shall comply with all applicable state and federal statutes and regulations with respect to customer service.
Comcast shall use reasonable efforts to meet or exceed voluntary standards for telephone accessibility developed by the National Cable Television Association (NCTA). Those standards shall include, but not be limited to, the goal of answering 90% of incoming telephone calls within 30 seconds.
Written report; rights of subscriber or City.
Annually, Comcast shall provide the City with a written report on:
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 which is appropriate under law.
Comcast shall make available to the City the results of any customer survey that Comcast plans to make available to the general public or does not otherwise deem to be sensitive or proprietary. Additionally, Comcast shall use its best efforts to take into account the concerns of the City of East Orange when developing such surveys.
In the event of a complaint, a letter will then be forwarded, within 30 days of the receipt of said complaint, to all parties, reflecting the results, if any, of the processing of the informal complaint.
Local office. During the term of this franchise agreement, and any renewal thereof, Comcast shall maintain a local business office or agent for the purpose of receiving, investigating and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters. Such local business office shall be designated to receive payments on behalf of Comcast. Such local business office shall be open during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday. Comcast shall provide daily, twenty-four-hour telephone service for purposes of this subsection. The telephone number and address of the local office shall be listed in applicable telephone directories and in correspondence from Comcast to the customer. The telephone number for the local office shall utilize an exchange which is a non-toll call for City residents.
Discount service. Comcast agrees to provide a discount to qualifying senior citizens and disabled persons within the meaning of N.J.S.A. 48:5A-11.1. Comcast will offer senior citizens and disabled persons who meet the criteria of the New Jersey Pharmaceutical Assistance Program a ten-percent discount on basic and preferred service, as set forth in the Comcast's tariff on file with the BPU.
Public, educational and governmental access.
Comcast shall make available channels for the purpose of public, educational and governmental (PEG) access as well as leased access to the City or the City's designees (the PEG designee) in the following manner:
Public access. Comcast shall make available one dedicated, system-wide community access channel to be administered by Comcast within 12 months of the issuance of a certificate of approval by the BPU.
Leased access. Comcast shall continue to make available system-wide leased access channel(s) in conformance with applicable federal statute and regulations.
Local access. Comcast shall make available two channels available for the use and access by the City and one channel for use and access by the East Orange Public School District for the cable-casting of noncommercial governmental and/or educational programming within 12 months of the issuance of a renewal certificate of approval by the BPU.
Comcast shall take any steps that are necessary to ensure that the signals originated on the access channels are carried without material degradation and with a signal whose quality is equal to that of the other channels that Comcast transmits within 12 months of the issuance of a certificate of approval by the BPU.
Comcast shall provide to the City a grant of $200,000 for the establishment of a studio and support of an access channel. In addition, prior to disposing of any unusable video production equipment, Comcast shall inform the City of said equipment's availability and the price (if any) to be received by Comcast therefor. If practicable, Comcast shall offer said equipment for PEG purposes. Nothing herein shall be deemed a right of first refusal or any other legal right or claim to obtain such equipment.
Upon reasonable request, Comcast shall offer the City assistance or advice on the production of television programming for the training of personnel who will assist in productions originated by the City or by PEG designees. Comcast shall offer the same assistance to the East Orange Public School District.
Comcast shall provide free standard cable television installation and free basic service monthly to one outlet in each of the City's existing and future municipal buildings, including but not limited to, City Hall; police and fire facilities; facilities used by first aid squads; emergency management facilities; public libraries; and community or senior centers. Comcast shall not be required to provide such service to any municipal building which is not located within 200 feet of an active cable distribution plant.
Comcast shall provide free standard installation and expanded basic service monthly to one instructional space in each school in the East Orange Public School District, public and private, elementary, intermediate and secondary. Comcast shall not be required to provide such service to any school which is not located within 200 feet of an active cable distribution plant.
Comcast shall provide free basic Internet access service, via high-speed cable modem, on one nonnetworked personal computer in each school in the City, public, private, elementary, intermediate and secondary, at no charge. Comcast shall not be required to provide such service to any school which is not located within 200 feet of an active cable distribution plant.
Comcast shall provide free basic Internet access, via high-speed cable modem, on one nonnetworked personal computer in the East Orange Public Library System at no charge. The Internet service shall be installed on a computer that is accessible to the public and not for administrative use.
Two-way services and interconnection. If the City deems the provision of two-way of interconnection services necessary and feasible, Comcast shall be required to apply to the BPU for approval to enter into and establish the terms and conditions of a contract for the provision of such services. The City shall bear all such application costs.
Other commitments. Comcast agrees to do the following:
Provide a high-speed Internet access, including standard installation (within 200 feet of a cable plant), any necessary modems, routers or other equipment (except the computers), and monthly service on up to eight computers each in five technology centers to be established and operated by the City. If the City desires, it may transfer this commitment to municipal libraries. Comcast shall fulfill this obligation within 12 months of the issuance of a renewal certificate of approval by the BPU.
Establish a payment center for the purpose of receiving payments from customers at a mutually acceptable site within the City.
[Amended 11-28-2005 by Ord. No. 27-2005]
Continue to provide a dedicated access channel for use of East Orange High School and provide a second dedicated access channel for use of the municipality. Comcast shall construct a return for the latter from a site of the City's choosing and provide the necessary equipment (including modulators and demodulators, but not including cameras, editing decks and other production equipment) for transmission of signals from the return site to Comcast's head end, and from there to City residents.
Provide support of $3,500 annually, for the life of the franchise, for events of the City's choosing.
Restoration. If Comcast or its agents disturb the condition of any pavement, street surface, sidewalk, driveway or other surface in the natural topography, Comcast shall, at its sole expense and in compliance with all applicable regulations, restore such pavement, street surface, sidewalk, driveway or other surface so disturbed to as good a condition as existed prior to the commencement of said work. If in connection with said work Comcast disturbs an underground condition or damages underground real or personal property, Comcast shall, at its sole expense, restore such condition or real or personal property to as good a condition as existed before the commencement of said work.
Relocation. If at any time during the period of the renewal term the City alters or changes the grade of any street, alley or other way or place, Comcast, after reasonable notice from the City, shall, at its own expense, remove, relay and relocate its equipment.
Temporary removal of cables. Comcast shall temporarily raise, lower or remove its cables and appropriate parts of its facilities to permit the moving of buildings, machinery or other similar circumstances. If the requesting party is a private party, that party shall bear the expense. If the requesting party is the City, Comcast shall bear the expense.
Removal or trimming of trees. During the exercise of its rights and privileges under this ordinance, Comcast may 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 Comcast's wires and cables. Such trimming shall be performed only to the extent necessary to maintain proper clearance for Comcast's wires and cables. No trees shall be trimmed, removed or destroyed unless Comcast first obtains all necessary municipal permits. Comcast shall make reasonable efforts to notify property owners before trimming trees on private property. In addition, any removal shall be done in accordance with all applicable laws and regulations. Nothing in this section shall prevent Comcast from trimming trees without a permit in emergency situations or where Comcast must comply with other regulating requirements.
The OCTV 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.
To secure its faithful performance of its obligations under this ordinance, Comcast shall provide a performance bond in the penal sum of $25,000. Said bond shall specifically secure the faithful performance of all Comcast's undertakings as represented in its application and in this ordinance. The City expressly reserves the right to require by resolution a reasonable increase in the amount of said bond, subject to review by the OCTV and approval by the Board.
Unless otherwise authorized by federal or state law, the City shall not regulate the rates which Comcast may charge its subscribers for its service, provided that, in the event the federal Act and other applicable law hereafter is amended to permit the exercise of regulatory power over rates by municipalities, the City reserves the right to exercise the maximum power permitted by law.
Unless otherwise provided by law, Comcast shall maintain the capability at the head end to participate in the Emergency Alert System operated by the New Jersey State Police in order to permit the broadcasting of emergency messages in the City. Comcast shall in no way be held liable for any injuries 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.
Comcast shall maintain, at its sole expense and at all times during the term of this consent, a comprehensive general liability insurance policy with a single limit amount of $1,000,000 coverage 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. The City shall be named as an additional insured under said policy.
All of the commitments and statements contained in the application and any amendment thereto submitted in writing to the City by Comcast, except as modified herein, are binding upon Comcast as terms and conditions of this consent. The application and any other relevant writings submitted by Comcast shall be annexed hereto and made a part hereof by reference thereto to the extent that they do not conflict with state or federal law.
Comcast shall be bound by the terms and provisions of this ordinance irrespective of the number of subscribers to its system.
This consent shall not be assigned or transferred without prior notice to the City and the prior approval of the BPU, if required by law.
Every direction, notice or other communication to be served upon Comcast shall be sent to its office. Every notice to be served upon the City shall be delivered or sent by certified mail to the office of the City Clerk. The delivery or mailing of such notice, direction or order shall be equivalent to direct personal notice and shall be deemed to have been given at the time of delivery.
If the City finds that Comcast has failed to comply substantially with any term or condition of this ordinance, the City may petition the OCTV for appropriate action, including modification or termination of the renewal certificate of approval. Before exercising its rights hereunder, the City shall give Comcast written notice of any noncompliance and an opportunity to cure the alleged noncompliance within 90 days of the date of said notification.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid, preempted or unconstitutional by any court or federal or state agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision of this ordinance, and such holding shall not affect the validity of the remaining portions thereof.
Should any of the federal or state statutes or regulation concerning cable television be modified in any way, such modification shall be incorporated into this ordinance to the extent it encompasses any required term or condition and can meaningfully be so incorporated. Any such modification shall become effective on the effective date specified in the modification. To the extent that any such modification restricts any permissible term or condition and thereby renders any provision of this ordinance invalid, § A300-22 of this municipal consent ordinance shall apply.
It is understood that should the FCC or BPU modify, change or alter any of its regulations as they may impact upon this municipal consent, such modifications, changes or alterations shall be incorporated into this municipal consent ordinance consistently with the applicable dates specified in the change.
This municipal consent will become effective immediately upon the issuance of a renewal COA by the BPU.