The purpose of this article is to:
(1) 
Assist the city in the competitively neutral and nondiscriminatory management of the physical use, occupancy and maintenance of its public rights-of-way by wireless network providers;
(2) 
Secure fair and reasonable compensation for the physical use and occupancy of the public rights-of-way by wireless network providers in a nondiscriminatory and competitively neutral manner; and
(3) 
Assist the city in protecting the public health, safety, and welfare.
(Ordinance 2084 adopted 8/31/17)
This article shall be construed in accordance with chapter 284 of the Texas Local Government Code (“the code”) to the extent it is not in conflict with the Constitution and laws of the United States or of the state.
(Ordinance 2084 adopted 8/31/17)
For the purposes of 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:
Abandon (and its Derivatives).
The facilities installed in the right-of-way (including by way of example but not limited to: poles, wires, conduit, manholes, handholes, cuts, network nodes and node support poles, or portion thereof) that have been left by provider in an unused or nonfunctioning condition for more than 120 consecutive calendar days unless, after notice to provider, provider has established to the reasonable satisfaction of the city that the applicable facilities, or portion thereof, is still in active use.
Access Line.
(1) The transmission media within the rights-of-way extended to the end-user customer’s premises network interface within the city that allows delivery of telecommunications service within the city; and (2) Each termination point of a nonswitched telephone circuit consisting of transmission media connecting specific locations identified by, and provided to, the end user for the delivery of nonswitched telecommunications service 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 purposes of assessing the monthly line fee.
Antenna.
Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
Applicable Codes.
(1) 
The city building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and
(2) 
Local amendments to those codes to the extent not inconsistent with chapter 284.
Chapter 284.
Texas Local Government Code, chapter 284.
City Council.
The municipal governing body of the City of Brownfield, Texas.
City Manager.
The city manager of the City of Brownfield or his designee.
City.
The City of Brownfield, Texas or its lawful successor.
Code.
The Texas Local Government Code.
Collocate and Collocation.
The installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right-of-way on or adjacent to a pole.
Concealment.
Any wireless facility that is covered, blended, painted, disguised, camouflaged, or otherwise concealed such that the wireless facility blends into the surrounding environment and is visually unobtrusive. Concealment includes but is not limited to covering with a facade, designs that blend with the surrounding character of an area, paint that matches surrounding poles, disguising with landscaping, or locating underground.
Consumer Price Index.
The annual revised consumer price index for all urban consumers for the state, as published by the Federal Bureau of Labor Statistics.
Decorative Pole.
A streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory city codes and ordinances.
Design District.
An area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis.
Design Manual.
The design requirements for specific types of facilities, including any adopted design manuals, adopted construction codes and any other city requirements including the “Design Manual of the City of Brownfield, Texas for the Installation of Network Nodes and Node Support Poles pursuant to Tex. Loc. Gov. Code, chapter 284.”
Direction of the City.
All ordinances, laws, rules, resolutions, and regulations of the city that are now in force or may hereafter be passed and adopted.
Easement.
Shall include any public easement or other compatible use created by dedication, or by other means, to the city for public utility purposes or any other purpose whatsoever. “Easement” shall include a private easement used for the provision of utilities.
Federal Communications Commission or FCC.
The federal administrative agency, or lawful successor, authorized to oversee cable television and other multi-channel regulation on a national level.
Highway Right-of-Way.
Right-of-way adjacent to a state or federal highway.
Law.
Common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance.
Line Fee.
A monthly fee to be applied to each access line for the calculation of the total amount to be paid to the city as a rights-of-way fee.
Local.
Within the geographical boundaries of the city.
Location.
The city approved and lawfully permitted location for the network node.
Macro Tower.
A guyed or self-supported pole or monopole greater than the lesser of:
(1) 
55 feet; or
(2) 
10 feet higher than the tallest existing utility pole located within 300 linear feet of the new pole in the same public right-of-way and that supports or is capable of supporting antennas.
Mayor.
The mayor of the City of Brownfield, Texas, or designee.
Micro Network Node.
A network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches.
Municipally Owned Utility Pole.
A utility pole owned or operated by a municipally owned utility, as defined by section 11.003, Utilities Code, and located in a public right-of-way.
Municipal Park.
An area that is zoned or otherwise designated as a public park for the purpose of recreational activity by any governmental entity including the city.
Network Node.
Equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term:
(1) 
Includes:
(A) 
Equipment associated with wireless communications;
(B) 
A radio transceiver, an antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and
(C) 
Coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation; and
(2) 
Does not include:
(A) 
An electric generator;
(B) 
A pole; or
(C) 
A macro tower.
Network Provider.
(1) 
A wireless service provider; or
(2) 
A person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider:
(A) 
Network nodes; or
(B) 
Node support poles or any other structure that supports or is capable of supporting a network node.
Node Support Pole.
A pole installed by a network provider for the primary purpose of supporting a network node.
Permit.
A written authorization for the use of the public right-of-way or collocation on a service pole required from the city before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority.
Pole.
A service pole, city-owned utility pole, node support pole, or utility pole.
Private Easement.
An easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns.
Provider.
The same meaning as “network provider.”
Public Right-of-Way.
The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the city has an interest. The term does not include:
(1) 
A private easement; or
(2) 
The airwaves above a public right-of-way with regard to wireless telecommunications.
This includes but is not limited to all present and future public streets, avenues, highways, alleys, sidewalks, boulevards, drives, tunnels, easements, bridges, and other such similar passageways, thoroughfares, and public ways within the city.
Service Pole.
A pole, other than a city-owned utility pole, owned or operated by the city and located in a public right-of-way, including:
(1) 
A pole that supports traffic-control functions;
(2) 
A structure for signage;
(3) 
A pole that supports lighting, other than a decorative pole; and
(4) 
A pole or similar structure owned or operated by a municipality and supporting only network nodes.
Street.
Only the paved portion of the right-of-way used for vehicular travel, being the area between the inside of the curb to the inside of the opposite curb, or the area between the two parallel edges of the paved roadway for vehicular travel where there is no curb. A “street” is generally part of, but smaller in width than the width of the entire right-of-way, while a right-of-way may include sidewalks and utility easements. A “street” does not include the curb or the sidewalk, if either are present at the time of a permit application or if added later.
Telecommunications Service.
The transmittal of voice, data, image, graphics and other communications between or among points by wire, fiber optics, or other similar facilities, as well as the rental, lease, or furnishing of the facilities to accomplish such transmittal, but does not include transmissions for long distance purposes (interLATA and intraLATA) or any “wireless service” as defined by law.
Telecommunications Service Provider.
Any person that supplies telecommunications service to others within the corporate limits of the city in exchange for money or other value.
Telecommunications Utility.
“Telecommunications utility” as used in the Public Utility Regulatory Act, V.T.C.A., Utilities Code sec. 51.002(11).
Traffic Signal.
Any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed.
Transmission Media.
Any and all of the cables, fibers, wires or other physical devices owned, maintained or placed by a user to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes.
Transport Facility.
Each transmission path physically within a public right-of-way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes.
Use and Occupancy.
Acquisition, installation, construction, reconstruction, maintenance, repair, control, or operation of any facilities within the rights-of-way for any purpose whatsoever.
User.
A person or organization which conducts a business over facilities occupying the whole or a part of a public street or right-of-way, depending on the context.
Utility Pole.
A pole that provides:
(1) 
Electric distribution with a voltage rating of not more than 34.5 kilovolts; or
(2) 
Services of a telecommunications provider, as defined by chapter 284, section 51.002, Utilities Code.
Wireless Facilities.
“Micro network nodes,” “network nodes,” and “node support poles” as defined in Texas Local Government Code, chapter 284.
Wireless Service.
Any service, using licensed or unlicensed wireless spectrum, including the use of wi-fi, whether at a fixed location or mobile, provided to the public using a network node.
Wireless Service Provider.
A person that provides wireless service to the public.
(Ordinance 2084 adopted 8/31/17)
(a) 
Generally.
No person shall commence or continue with the construction or installation of any structure within the rights-of-way of the city except as provided by this article, or as provided by other city permits or written agreements with the city. A wireless network provider has the nonexclusive right to use and occupy the public rights-of-way in the city for the purpose of constructing, maintaining, and operating its facilities used in the provision of wireless facilities in conformity with this article of the city code:
(b) 
Registration Required.
All users of the right-of-way must register annually with the city. Registration and permits will be issued in the name of the person who will own the facilities. Registration shall include:
(1) 
The name of the user of the right-of-way;
(2) 
The name, address, and telephone number of people who will be contact person(s) for the user;
(3) 
The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day;
(4) 
The location, including exact coordinates, of all structures located in the rights-of-way; and
(5) 
A description of each structure located in the rights-of-way.
(Ordinance 2084 adopted 8/31/17)
(a) 
A network provider shall construct and maintain network nodes and network support poles described in the code in a manner that does not:
(1) 
Obstruct, impede, or hinder the usual travel or public safety on a public right-of-way;
(2) 
Obstruct the legal use of a public right-of-way by other utility providers;
(3) 
Violate nondiscriminatory applicable codes;
(4) 
Violate or conflict with the city’s publicly disclosed public right-of-way design specifications; or
(5) 
Violate the federal Americans with Disabilities Act of 1990 (ADA).
(b) 
Design Manual; Separate Agreements.
Facilities to which this article applies must conform to the specifications required by the design manual. 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 permit holder’s facilities, then a further separate, noncontingent agreement with the permit holder shall be required. Nothing contained in this article shall obligate the permit holder to exercise or restrict the permit holder 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 wireless utility or authorized to offer cable service within the city.
(c) 
Requests for Temporary Moves.
Upon request, the permit holder 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 permit holder may require payment in advance. The permit holder shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary rearrangements.
(d) 
Tree Trimming.
The permit holder, 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 permit holder’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.
(Ordinance 2084 adopted 8/31/17)
(a) 
Reasonable Inquiries.
The city may, at any time, make reasonable inquiries pertaining to the terms, conditions, rights and obligations of this article, and the permit holder shall respond to such inquiries on a timely basis.
(b) 
FCC/PUC Documents.
Copies of petitions, applications, and reports submitted by the permit holder to the Federal Communications Commission or the Public Utility Commission of Texas shall be provided to the city upon specific request.
(c) 
Consolidated Permit Application.
A network provider that wants to install or collocate multiple network nodes inside the limits of the city is entitled to file a consolidated permit application with the city for not more than 30 network nodes.
(d) 
Documents Required for Application.
The provider shall provide the following information in its permit applications:
(1) 
The name and address of the person to whom notices are to be sent, a 24-hour per day contact number for the applicant in case of emergency;
(2) 
Location map that includes all other structures within 300 feet of the proposed location;
(3) 
Applicable construction and engineering drawings and information to confirm that the applicant will comply with the city’s design manual and applicable codes;
(4) 
A certificate that the network node(s) complies with applicable regulations of the Federal Communications Commission;
(5) 
Certification that the proposed network node(s) will be placed into active commercial service by or for the network provider not later than the 60th day after the date of construction and final testing of each network node is completed;
(6) 
A certificate of insurance that provides that the provider and its contractor has at least $1,000,000.00 in general liability coverage;
(7) 
An industry standard pole load analysis certified by a licensed engineer;
(8) 
Geotechnical survey for any proposed new pole;
(9) 
Specific location information, including geographic positioning system coordinates;
(10) 
A complete application and supporting documents for conditional use permit or other land use approval where required by the design manual;
(11) 
Proof of payment of the construction permit fee and prorated rights-of-way fee for the remaining portion of the current calendar year; and
(12) 
Any additional information reasonably related to the provider’s use of the public rights-of-way to ensure compliance with the design manual and this article.
(e) 
Determination of Application Completeness.
The city shall determine whether the permit application is complete and notify the applicant of that determination:
(1) 
For network nodes and node support poles: No later than 30 days after the date the city receives the permit application.
(2) 
For a transport facility: No later than 10 days after the date the city receives the permit application.
(f) 
Approval or Denial of Application.
The city shall approve or deny a completed application after the date it is submitted to the city:
(1) 
For network nodes: No later than 60 days after the date the city manager receives the complete application.
(2) 
For network support poles: No later than 150 days after the date the city receives the complete application.
(3) 
For transport facilities: No later than 21 days after the city receives the complete application.
(g) 
Basis for Denial of Application.
If an application is denied by the city, it shall document the basis for the denial, including the specific applicable city code provisions or other city rules, regulations, or other law on which the denial is based. The documentation for the denial must be sent by electronic mail to the applicant on or before the date that the city manager denies the application.
(h) 
Resubmission of Denied Application.
The permit holder may cure the deficiencies identified in the denial application:
(1) 
The permit holder has 30 days from the date the city denies the completed application to cure the deficiencies identified in the denial documentation without paying an additional application fee, other than any fee for actual costs incurred by the city.
(2) 
The city shall approve or deny the revised completed application after a denial not later than the 90th day after the city manager receives the revised completed application. The city’s review shall be limited to the deficiencies cited in the denial documentation.
(i) 
Exception.
As provided in section 284.157 of the code, a network provider is not required to apply, obtain a permit, or pay a rate to the city for:
(1) 
Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;
(2) 
Replacing or upgrading a network node or network pole with a node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way; or
(3) 
The installation, placement, maintenance, operation, or replacement of micro network nodes that are strung on cables between existing poles or node support poles in compliance with the National Electrical Safety Code;
(4) 
Notwithstanding section 3.1604 above, the network provider or its contractors shall notify the city at least 24 hours in advance of work described in this section 3.1604.
(Ordinance 2084 adopted 8/31/17)
A network provider must obtain advance written consent from the city manager before collocating new network nodes or installing new node support poles in an area of the city that has been zoned or otherwise designated as a design district if the district has decorative poles. The network provider shall be required to comply with the general aesthetic requirements described in the city’s design manual. The city has the authority to designate new historic districts and design districts at a future date.
(Ordinance 2084 adopted 8/31/17)
A network provider may not install a new node support pole in a public right-of-way without the city council’s discretionary, nondiscriminatory and written consent if the public right-of way:
(1) 
Is in a municipal park; or
(2) 
Is adjacent to a street or thoroughfare that is:
(A) 
Not more than 50 feet wide; and
(B) 
Adjacent to single-family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions.
(3) 
In addition to the above, a network provider installing a network node or node support pole in a public right-of-way shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities.
(4) 
The network provider shall be further required to comply with guidelines set out in the city’s design manual.
(Ordinance 2084 adopted 8/31/17)
A network provider shall begin installation for which a permit is granted not later than six months after final approval of the application and shall diligently pursue installation to completion. The city mayor may in his/her sole discretion grant reasonable extensions of time as requested by the network provider.
(Ordinance 2084 adopted 8/31/17)
(a) 
Street Widening or Straightening.
In accordance with V.T.C.A., Utilities Code sec. 54.203(c), upon thirty (30) days’ notice by the city, permit holder 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 permit holder’s facilities along the rights-of-way.
(b) 
City’s Right to Relocate.
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 permit holder in such instances to assure continuity of service and to afford to the permit holder the opportunity to make such relocation itself.
(c) 
Expense and Timelines for Relocation.
Except as otherwise provided in existing state and federal law, upon notice from the city, a network provider shall relocate or adjust network nodes in a public right-of-way in a timely manner and without cost to the municipality managing the public right-of-way.
(Ordinance 2084 adopted 8/31/17)
(a) 
Construction Permit and Rights-of-Way Fees.
(1) 
Construction permit fee.
The applicant shall pay to the city a construction permit fee that is calculated as of the date of application for permit by applying the appropriate permit fee to each of the facilities included in the application, in accordance with the city’s design manual, not to exceed the values provided below.
(2) 
Rights-of-Way Fee.
The permit holder shall pay to the city a rights-of-way fee that is calculated as of month-end for access lines and as of year-end for all other facilities by applying the appropriate fee to each facility type owned, placed, or maintained by the permit holder. The rights-of-way fee for access lines shall be as proscribed by the Texas Public Utilities Commission. Rights-of-way fees for all facilities other than access lines shall be prorated for the first year in which a construction permit fee is paid, and shall be paid at the time of the permit application.
(b) 
Network Nodes.
(1) 
Construction Permit Fee.
The construction permit fee shall be $500.00 for the first five nodes, $250.00 for each additions node, not to exceed thirty nodes.
(2) 
Annual Public Right-of-Way Rate Fee.
The annual public right-of-way rate shall be $250.00 per network node site installed in the city public rights-of-way.
(3) 
Public Right-of-Way Rate Adjustment.
As provided in section 284.054 of the Code, the city may adjust the amount of the annual public right-of-way rate not more than annually by an amount equal to one-half the annual change, if any, in the Consumer Price Index (CPI). The city shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the city on or after the 60th day following the written notice.
(4) 
Collocation Fee.
Collocated network nodes on city service poles shall also pay an annual collocation fee at a rate not greater than $20.00 per year per service pole.
(c) 
Node Support Poles.
(1) 
Construction Permit Fee.
The construction permit fee for each node support pole shall be $1,000.00.
(2) 
Annual Public Right-of-Way Rate Fee.
The annual public right-of-way rate shall be $250.00 per pole installed in the city public rights-of-way.
(3) 
Public Right-of-Way Rate Fee.
As provided in section 284.054 of the code, this amount will be adjusted by an amount equal to one-half the annual change, if any, in the consumer price index. The city shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the city on or after the 60th day following the written notice.
(d) 
Transport Facilities.
(1) 
Construction Permit Fee.
The construction permit fee for transport facilities shall be $500.00 for the first five nodes and $250.00 for each additional node.
(2) 
Public Right-of-Way Rate Fee.
The public right-of-way rate fee shall be $28.00 per month per node.
(3) 
Public Right-of-Way Fee.
As provided in section 284.054 of the code, this amount will be adjusted by an amount equal to one-half the annual change, if any, in the consumer price index. The city shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the city on or after the 60th day following the written notice.
(e) 
Micro Network Nodes.
No application fee is required for a micro network node if the installation is attached on lines between poles or node support poles.
(f) 
Collocation of Network Nodes on Service Poles.
Subject to the city’s pole service agreement, the collocation of network nodes on city service poles shall be at a rate of $20.00 per year per service pole.
(g) 
City-Owned Municipal Utility Poles.
A network provider shall pay an annual pole attachment rate for the collocation of a network node supported by or installed on a city-owned utility pole based upon the pole attachment rate consistent with section 54.024 of the Texas Utilities Code, applied on a per-foot basis.
(h) 
The city shall not seek or accept in-kind services in lieu of or as additional payment or consideration from any user of the public rights-of-way for use of the public rights-of-way.
(Ordinance 2084 adopted 8/31/17)
The permit holder 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 permit holder’s facilities located within the rights-of-way found to be caused solely by the negligence of the permit holder. Expenses shall include any reasonable and necessary attorney’s fees and court costs. The city shall give the permit holder prompt written notice of any claim for which the city seeks indemnification. The permit holder 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 city.
(Ordinance 2084 adopted 8/31/17)
In the event this article or any tariff or other provision that authorizes permit holders 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 permit holders shall negotiate a new compensation arrangement that is in compliance with the authority’s decision.
(Ordinance 2084 adopted 8/31/17)