[HISTORY: Adopted by the City Council of the City of East Orange 12-3-2018 by Ord. No. 43-2018. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. A300, Cable Television Franchise, adopted 2-28-2005 by Ord. No. 5-2005.
The municipality 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 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 system, provided that Comcast accepts, in writing, all of the terms and conditions set forth herein.
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.
For the purpose of this ordinance, 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:
- 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 OR NJBPU
- The Board of Public Utilities of the State of New Jersey or any successor agency.
- CITY OR MUNICIPALITY
- The City of East Orange, County of Essex, State of New Jersey.
- The grantee of rights under this ordinance and is known as Comcast of New Jersey II, LLC.
- The Federal Communications Commission.
- OFFICE OR OCTV
- The Office of Cable Television of the Board.
- PRIMARY SERVICE AREA OR PSA
- Consists of the area of the municipality currently served with existing plant as set forth in the map annexed to the company's application for municipal consent.
The nonexclusive municipal consent granted herein shall expire 10 years from the date of expiration of the previous certificate of approval issued by the Board. Said consent shall therefore expire on December 31, 2027.
In the event that the municipality shall find that the company has not complied with the material terms and conditions of this ordinance, 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 noncompliance and an opportunity to cure same within 90 days of that notification.
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. 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 municipality 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 municipality or any higher amount required by the Act or otherwise allowable by law, whichever is greater.
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 gross revenues from all recurring subscription fees paid by subscribers in the City. 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.
The consent granted under this ordinance 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. The company's line extension policy, as set forth in the company's application, shall govern any extension of plant beyond the primary service area.
The company's installation and line extension policy must comply with all federal and state laws, regulations or other pronouncements.
In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, or other surface in the natural topography, the company shall, at its sole expense and in compliance with all applicable regulations, restore and replace such places or things so disturbed in as good a condition as existed prior to the commencement of said work.
If, in connection with said work, Comcast disturbs any underground condition or damages underground real or personal property, Comcast shall, at its sole expense, restore such condition or real property to as good of condition as existed before the commencement of said work.
Relocation. 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 municipality, shall remove, re-lay or relocate its equipment, at the expense of the company.
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 franchise, the company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks or other public places of the municipality 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.
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 be construed to prevent Comcast from trimming trees without a permit in emergency situations.
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 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 designated as the complaint officer for the municipality pursuant to N.J.S.A. 48:5A-26b. 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 be located no more than 10 square miles outside of the City of East Orange, 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. Such local office shall be designated to receive payments on behalf of Comcast.
The telephone number and address of the local office shall be listed in applicable telephone directories and in correspondence from Comcast to City subscribers. The telephone number for the local office shall utilize an exchange, which is a non-toll call for City residents.
During the life of the franchise, the company shall give to the municipality 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.
The rates of the company shall be subject to regulation as permitted by federal and state law.
Public access. The company shall provide residents with a system-wide public access channel maintained by the company. Qualified individuals and organizations may utilize public access for the purpose of cablecasting noncommercial access programming in conformance with the company's published public access rules.
Leased access. The company shall provide a system-wide leased access channel maintained by the company for the purpose of cablecasting commercial access programming in conformance with the company's guideline and applicable state and federal statutes and regulations.
Local access. Comcast shall make available two channels for use and access by the City and one channel for use and access by the East Orange Public School District for the cablecasting of noncommercial governmental and/or educational programming.
The company shall take any steps that are necessary to ensure that the signals originated on the access channels are carried, without material degradation, to all subscribing residents of the City of East Orange, and with a signal whose quality is equal to that of the other standard channels that the company transmits.
The company shall take all steps necessary to ensure that the City's two public access channels are viewable to all Comcast subscribers in the City, including residential and business customers in the Ampere section of the City, on the basic level service offered by the company.
The Communications Act of 1934, as amended [47 U.S.C. § 543(b)(4)], allows the company to itemize and/or identify the amount on the monthly bill assessed to satisfy any requirements imposed on the company by the cable franchise to support public, educational, and governmental channels, or the use of such channels or any other services required under the franchise. The company reserves its external cost, pass-through rights to the extent permitted by law.
The company shall provide standard installation and basic cable television service on one outlet at no cost to each existing and future school in the municipality, public and private, elementary, intermediate and secondary, provided the school is within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a material-plus-labor basis by the school requesting service. Monthly service charges shall be waived on all additional outlets except for equipment.
The company shall provide standard installation and basic cable television service at no cost on one outlet to each of the City's existing and future municipal buildings, including but not limited to City Hall, police, fire and emergency management facilities, first aid squad facilities, public libraries, and community and senior centers in the municipality, provided that each facility is located within 200 feet of active cable distribution plant. Each additional outlet installed, if any, shall be paid for on a material plus labor basis by the municipality. Monthly service charges shall be waived on all additional outlets except for equipment.
The company shall provide free basic Internet service, via high-speed cable modern, to one nonnetworked computer in each school, public and private, elementary, intermediate and secondary, and public library facilities, provided that the schools and library facilities are located within 200 feet of active cable distribution plant. The Internet connections shall be installed on a computer that is accessible to student and library patron use, as applicable, and may not be installed on a computer that is restricted to administrative use.
Comcast shall 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.
Within six months of the issuance of a renewal certificate of approval from the Board, the company will provide a one-time access and technology related grant in the amount of $150,000 to the City. This amount shall be borne solely by Comcast and will not be passed onto the City's residents.
The company shall provide an additional grant of $60,000 in support of community-related events, activities and programs as determined by the City, and such grant shall be payable in annual installments, in the amount of $6,000 per year for the term of the ten-year franchise. Comcast shall be recognized as a supporter/sponsor of any event, activity or program that is the beneficiary of such grant or any part thereof. The first payment of the grant shall be shall be due on April 1, 2019, and each additional payment due on April 1 of each succeeding year for the term of the franchise.
The company shall, within six months of the issuance of the renewal certificate of approval by the Board, make the City's two public access channels viewable to all Comcast subscribers in the City, including residential and business customers in the Ampere section of the City, on the basic level service offered by the company.
Two-way services and interconnection. If the City deems the provision of two-way or 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 application costs.
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 City shall in no way be held liable if the company's failure to adequately maintain, replace or renew its equipment is the cause of damage to any person or property.
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 this ordinance and the application, or 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.
If any section, subsection, sentence, clause, phrase or portion of this ordinance 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.
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.
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 and/or approval of the City and the BPU.
Every direction, notice or other communication to be served upon the City shall be 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.
Should any of the federal or state statutes or regulations concerning cable television be modified in any way, such modification shall be incorporated into this ordinance to the extent it 1) encompasses any required term or condition and 2) 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, Section 19 of this ordinance shall apply.
It is understood by Comcast and the City that should the FCC or BPU modify, change or alter any of their regulations in a manner that may impact this municipal consent, such modifications, changes or alterations shall be incorporated into this municipal consent ordinance consistent with the applicable dates specified in the change.
This ordinance shall take effect immediately upon issuance of a renewal certificate of approval from the BPU.