The purpose of this article is to:
(1)
Assist in the management of the rights-of-way;
(2)
Govern the use and occupancy of the rights-of-way by telecommunications
service providers;
(3)
Secure fair and reasonable compensation for the use and occupancy
of the rights-of-way by telecommunications service providers in a
nondiscriminatory and competitively neutral manner; and
(4)
Assist the city in its efforts to protect the public health, safety
and welfare.
(1991 Code, sec. 10.901)
Whenever used in this article, the following terms, as well
as their singulars, plurals and possessives, shall have the following
definitions and meanings, unless the context of the sentence in which
they are used indicates otherwise:
The transmission media within the rights-of-way extended to
the end-user customers premises network interface within the city
that allows delivery of telecommunication services within the city;
and
Each termination point or points of a nonswitched telephone
circuit consisting of transmission media dedicated for use between
specific locations identified by an end-user customer for the delivery
of telecommunication services within the city.
|
Interoffice-transport and other transmission media that do not
terminate at an end-user customer’s network interface device
are not access lines that would be separately identified and counted
for the purpose of assessing the monthly line fee.
|
“Cable service” as defined in the Cable Communications
Policy Act of 1984, as amended, 47 U.S.C. 532 et seq.
All ordinances, laws, rules, resolutions, and regulations
of the city that are not inconsistent with this article and that are
now in force or may hereafter be passed and adopted.
Any and all of a licensee’s duct spaces, manholes,
poles, conduits, underground and overhead passageways, and other equipment,
structures, plant, and appurtenances and all associated transmission
media.
Any telecommunications service provider issued a license
pursuant to the terms of this article that owns or places and maintains
plant, equipment, facilities, or other property within the rights-of-way
that is used, by the licensee or others, for the purpose of offering
telecommunication services and any person that desires to own plant,
equipment, facilities, or other property within the rights-of-way
for the purpose of offering telecommunication services.
A monthly fee to be applied to each residential or nonresidential
access line owned or placed and maintained by a licensee for the calculation
of the rights-of-way fee to be paid by the licensee to the city as
compensation for the use and occupancy of the rights-of-way.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint
stock company or association, and other such entity.
A public utility as that term is used in the Public Utility
Regulatory Act of 1995, Tex. Utilities Code Ann. 11.004, including
municipally owned and/or operated utilities.
All present and future public streets, avenues, highways,
alleys, sidewalks, boulevards, drives, tunnels, easements, bridges,
and other such similar passageways, thoroughfares, and public ways.
The total amount paid to the city on a quarterly basis by
licensee for use and occupancy of the rights-of-way.
The providing or offering for rent, sale or lease, whether
in exchange for money or other value, of plant, equipment, facilities,
or other property for the transmittal of voice, data, image, graphics
and other communications between or among points by wire, fiber optics,
or other similar facilities, but does not include the provision to
the public of any “wireless service,” as defined by law,
and does not include long distance transmissions (interLATA and intraLATA
toll transmissions).
Any person providing telecommunications services within the
corporate limits of the city.
“Telecommunications utility” as used in the Public
Utility Regulatory Act of 1995, Tex. Utilities Code Ann. 51.002(11).
Any and all of the licensee’s cables, fibers, wires
or other physical devices used to transmit and/or receive communication
signals, whether analog, digital or of other characteristics, and
whether for voice, data or other purposes.
The licensee’s acquisition, installation, construction,
reconstruction, maintenance, repair, utilization, or operation of
any facilities within the rights-of-way for any purpose whatsoever.
(1991 Code, sec. 10.902)
Subject to the restrictions set forth herein, the city under this article shall issue licenses to telecommunications service providers that grant the nonexclusive right and privilege to use and occupy the public rights-of-way in the city for the operation of a telecommunications system for the provision of access lines, consisting of both telecommunications facilities and transmission media. By acceptance of the license, the licensee agrees to abide by the terms of this article in all its operations within the city, including all operations and facilities and transmission media used in whole or in part in the provision of access lines in any newly annexed areas as specified in section 13.10.005(c) of this article.
(1991 Code, sec. 10.903)
(a)
No rights agreed to in this article by the city shall be exclusive,
and the city reserves the right to grant franchises, licenses, easements
or permissions to use the rights-of-way within the city to any person
as the city, in its sole discretion, may determine to be in the public
interest.
(b)
A licensee is not authorized to provide cable service as a cable
operator in the city under this article, but must first obtain a franchise
from the city for that purpose, under such terms and conditions as
may be required by law.
(c)
The initial term of each license issued under this article shall
be one year from the date of issuance, unless terminated earlier by
mutual written agreement of the city and the licensee or pursuant
to law. At the expiration of the initial license period, the license
shall be automatically extended for successive periods of one year,
unless written notice of intent to terminate the license is given
not less than ninety days prior to the termination of the then-current
period by the city to licensee. When such notice is given, the license
shall terminate at the expiration of the then-current period.
(d)
The rights granted by this article inure to the benefit of the licensee
licensed hereunder. The article rights granted by license shall not
be assigned, transferred, or sold to another by the licensee without
the express written consent of the city. For the purposes of this
subsection, assignment, transfer or sale means a change of operating
control of the licensee, expressly excepting an assignment or transfer
to entities that control, are controlled by or are under common control
with licensee. Any such consent by the city shall not be withheld
unreasonably.
(1991 Code, sec. 10.904)
(a)
Rights-of-way fee.
The licensee shall pay to the city
a rights-of-way fee that is calculated as of month-end by applying
the appropriate line fee to each access line owned or placed and maintained
by licensee that is activated for use by an end-user or activated
for another telecommunications service provider that uses licensee’s
facilities for the provision of telecommunications services within
the city. The line fee to be applied to each access line for each
month of the first year following the effective date of the license
granted hereunder shall be:
|
Access Line
|
Monthly Fee Per Access Line
|
|---|---|
|
Residential
|
$0.45
|
|
Nonresidential
|
$1.15
|
(b)
Number of access lines.
Subject to city’s agreement
not to disclose this information, each licensee must provide annually,
within a reasonable time after receipt of the city’s written
request, a report showing the number of each type of access line owned
or placed and maintained by licensee that are serving end-user customer’s
premises at month’s end within the city for each of the preceding
twelve (12) months. The city agrees that the report shall be used
solely for the purpose of verifying the number of the licensee’s
access lines serving end-use customer’s premises within the
city. Upon written request, the licensee shall verify the information
in the report and, upon reasonable advance notice, produce to the
city and permit inspection by the city of all non-customer-specific
records and documents reasonably calculated to verify the information.
For purposes of payment of fees for use of the rights-of-way, lines
terminating at customer’s premises that are billed as “Lifeline,”
“TelAssistance,” or other service that is required to
be similarly discounted pursuant to state or federal law or regulation
for the purpose of advancing universal service to the economically
disadvantaged shall not be included in the lines upon which the fee
is calculated.
(c)
Annexation and disannexation.
Within thirty (30) days
following the date of the passage of any action effecting the annexation
of any property to or the disannexation of any property from the city’s
corporate boundaries, the city agrees to furnish licensee written
notice of the action and an accurate map of the city’s corporate
boundaries showing, if available, street names and number details.
For the purpose of compensating the city under this article, a licensee
shall start including or excluding access lines within the affected
area in the licensee’s count of access lines on the effective
date designated by the state comptroller of public accounts for the
imposition of state local sales and use taxes, but in no case less
than thirty (30) days from the date the licensee is notified by the
city of the annexation or disannexation.
(d)
Confidential records.
If the licensee notifies the city
of the confidential nature of any information, reports, documents,
or writings, the city agrees to maintain the confidentiality of the
information, reports, documents, and writings to the extent permitted
by law. Upon receipt by the city of requests for the licensee’s
confidential information, reports, documents, or writings, the city
shall notify the licensee of the request in writing by facsimile transmission.
The city shall request an attorney general’s opinion before
disclosing any confidential information, reports, documents or writings
and will furnish the licensee with copies of attorney general opinion
requests it makes pertaining to the licensee’s confidential
information, reports, documents or writings.
(e)
Other fees.
The payments due hereunder shall be in lieu
of any permit, license, approval, inspection, or other similar fees
or charges, including, but not limited to, all general business license
fees customarily assessed by the city for the use of the rights-of-way
against persons operating businesses similar to that of the licensee.
Further, such rights-of-way fee shall constitute full compensation
to the city for all of licensee’s facilities located within
the rights-of-way, including interoffice-transport and other transmission
media that do not terminate at an end-user customer’s network
interface device, even though those types of lines are not used in
the calculation of the rights-of-way fee.
(f)
Timing of payment.
Licensee shall remit the line fee
on a quarterly basis. The payment shall be due on the forty-fifth
day following the close of each calendar quarter for which the payment
is calculated.
(g)
Uncollectibles.
City and licensee understand and agree
that licensee has a statutory right to pass through to its customers
on a pro rata basis any compensation paid to the city for access to
the rights-of-way. Any other provision of this article notwithstanding,
licensee shall not be obligated to pay the city for any access lines
for which revenues remain uncollectible.
(h)
Leased facilities.
Other provisions of this article
notwithstanding, the licensee shall not include in its monthly count
of access lines, and shall not remit a line fee to the city on such
access lines, those access lines that are leased or otherwise provided
to another person for consideration if:
(1)
The person has a license from the city under this article governing
the person’s use and occupancy of the rights-of-way for the
purpose of erecting, constructing, maintaining and/or operating a
telecommunications service system; and
(2)
The person has furnished the licensee adequate proof that the person
intends to include the leased access lines in its monthly count of
such facilities to the city, that the person intends to remit the
line fee on those lines and points to the city, and that the city
has approved of this arrangement.
|
If these two conditions are met, then licensee is absolved of
all responsibility for the line fees payable on the leased facilities.
|
(i)
Fee application to leased facilities.
Pursuant to Tex.
Utilities Code 54.206, a licensee may collect the line fee imposed
by the city pursuant to this article through a pro rata charge to
the customers in the boundaries of the city, including any other persons
who are leasing, reselling or otherwise using the licensee’s
access lines to provide telecommunications service. With respect to
any person leasing, reselling, or otherwise using a licensee’s
access lines, if a licensee believes it does not have sufficient information
to determine the appropriate rate to apply, then the higher line fee
shall apply until such time as the person using the access lines provides
to the licensee sufficient written information to determine the correct
line fee; if a person provides sufficient written information for
the application of the line fee, licensees may bill the person on
the basis of the information provided. Licensee shall provide to the
city any information regarding the locations to which it is providing
service or facilities for use by another person for the provision
of telecommunications service to end-user customers, so long as city
first obtains written permission of such other person for licensee
to provide the information to the city. Any other provision of this
article notwithstanding, however, a licensee shall not be liable for
underpayment of line fees resulting from the licensee’s reliance
upon the written information provided by any person that uses licensee’s
service or facilities for the provision of telecommunications service
to end-user customers.
(1991 Code, sec. 10.905)
(a)
The location and route of all facilities and transmission media placed
and constructed in the rights-of-way shall be subject to the lawful,
reasonable and proper control and direction of the city.
(b)
Nothing contained in this article shall be construed to require or
permit the attachment on or placement in the licensee’s facilities
of any electric light or power wires or communications facilities
or other systems not owned by the licensee. If the city desires to
attach or place electric light or power wires, communications facilities
or other similar systems or facilities in or on the licensee’s
facilities, then a further separate, noncontingent agreement with
the licensee shall be required. Nothing contained in this article
shall obligate the licensee to exercise or restrict the licensee from
exercising its right to enter voluntarily into pole attachment, pole
usage, joint ownership or other wire space or facilities agreements
with any person authorized to operate as a public utility or a telecommunications
utility or authorized to offer cable service within the city.
(c)
The surface of the rights-of-way disturbed by the licensee in the
construction or maintenance of its telecommunications system shall
be restored within a reasonable time after the completion of the work
to as good a condition as before the commencement of the work. The
licensee shall endeavor to minimize disruptions to the efficient use
of the rights-of-way by pedestrian and vehicular traffic, and rights-of-way
shall not be blocked for a longer period than shall be reasonably
necessary to execute all construction, maintenance and/or repair work.
(d)
Upon request, the licensee shall remove or raise or lower its aerial
wires, fiber or cables temporarily to permit the moving of houses
or other bulky structures. The expense of such temporary rearrangements
shall be paid by the party or parties requesting them, and the licensee
may require payment in advance. The licensee shall be given not less
than forty-eight (48) hours’ advance notice to arrange for such
temporary rearrangements.
(e)
The licensee, its contractors and agents have the right, permission
and license to trim trees upon and overhanging the rights-of-way to
prevent trees from coming in contact with the licensee’s facilities
and transmission media. When directed by the city, tree trimming shall
be done under the supervision and direction of the city or under the
supervision of the city’s delegated representative.
(1991 Code, sec. 10.906)
(a)
In accordance with Tex. Utilities Code Ann. sec. 54.203(c), upon
thirty (30) days’ notice by the city, licensee shall begin relocation
of its facilities within the rights-of-way at its own expense to permit
the widening or straightening of streets. The notice by the city shall
include a specification of the new location for the licensee’s
facilities along the rights-of-way.
(b)
The city retains the right to move any facilities within the rights-of-way
to cure or otherwise address a public health or safety emergency.
The city shall cooperate to the extent possible with the licensee
in such instances to assure continuity of service and to afford to
the licensee the opportunity to make such relocation itself.
(1991 Code, sec. 10.907)
The licensee shall indemnify and hold the city harmless from
all costs, expenses, and damages to persons or property arising directly
or indirectly from the construction, maintenance, repair, or operation
of the licensee’s facilities located within the rights-of-way
found to be caused solely by the negligence of the licensee. Expenses
shall include any reasonable and necessary attorney’s fees and
court costs. The city shall give the licensee prompt written notice
of any claim for which the city seeks indemnification. The licensee
shall have the right to investigate, defend and compromise any such
claim. This provision is not intended to create a cause of action
or liability for the benefit of third parties, but rather this provision
is solely for the benefit of the licensee and the city.
(1991 Code, sec. 10.908)
(a)
The city may, at any time, make reasonable inquiries pertaining to
the terms, conditions, rights and obligations of this article, and
the licensee shall respond to such inquiries on a timely basis.
(b)
Copies of petitions, applications, and reports submitted by the licensee
to the Federal Communications Commission or the public utility commission
of the state shall be provided to the city upon specific request.
(c)
After reasonable notice to the licensee, the city may establish,
to the extent permitted by law, such reasonable and nondiscriminatory
rules and regulations as may be appropriate for the administration
of this article and the construction of the licensee’s facilities
in the rights-of-way, so long as those rules and regulations are competitively
neutral.
(1991 Code, sec. 10.909)
In the event this article or any tariff or other provision that
authorizes licensees to recover the fee provided for in this article
becomes unlawful or is declared or determined by a judicial or administrative
authority exercising its jurisdiction to be excessive, unenforceable,
void, or illegal, in whole or in part, then the city and all licensees
shall negotiate a new compensation arrangement that is in compliance
with the authority’s decision. Unless explicitly prohibited,
the new compensation arrangement shall provide the city with a level
of compensation comparable to that set forth in this article, as long
as that compensation is recoverable by licensees in a manner permitted
by law for the unexpired portion of the term of this article.
(1991 Code, sec. 10.910)
This article shall be construed in accordance with the city
code in effect on the date of passage of this article (June 2, 1998)
to the extent that such code is not in conflict with or in violation
of the Constitution and laws of the United States or the state.
(1991 Code, sec. 10.911)
The city hereby recognizes that it has the legal duty to obligate,
on a going-forward basis, all licensees to abide by the same terms
and conditions imposed by this article, including, but not limited
to, the payment of the line fee, and to apply substantively same requirements
governing their use and occupancy of the rights-of-way.
(1991 Code, sec. 10.912)
Any licensee that owns facilities already located within the
rights-of-way on the date this article is enacted (June 2, 1998) is
hereby granted a license hereunder; however, within thirty (30) days
from the effective date of this article all such licensees shall provide
to the city a notice of preexisting facilities. All prospective licensees
shall file a license application form at least thirty (30) days before
placing any facilities in the rights-of-way. A license application
form will not be accepted and a license granted unless the applicant
provides on that form the name and address of the person to whom notices
hereunder are to be sent, the date on which the applicant expects
to begin providing service within the city, a 24-hour per day contact
number for the applicant, and the certificate number of the applicant’s
certificate issued by the public utility commission of the state or
a notarized statement from a principal or officer of the applicant
that no certification by the public utility commission is required
for the type of service to be offered by applicant.
(1991 Code, sec. 10.913)
(a)
The city shall deliver a properly certified copy of this article
to the licensee, along with a license hereunder, within fourteen (14)
days after receipt of the notice of preexisting facilities or the
license application form.
(b)
The effective date for any license shall be the date of issuance;
however, the assessment of the line fee shall not begin until the
first day of the second month after the date of issuance of the license.
Licensees with preexisting facilities may continue the preexisting
compensation arrangement until the first day of the second month following
the issuance of the license.
(1991 Code, sec. 10.914)
