The purpose of this article is to:
(1)
Assist in the management of the rights-of-way;
(2)
Govern the grantees’ use and occupancy of the rights-of-way;
(3)
Secure fair and reasonable compensation for the use and occupancy
of the rights-of-way in a nondiscriminatory and competitively neutral
manner; and
(4)
Assist the city in its efforts to protect the public health, safety
and welfare.
(Ordinance 98-01-19-1, sec. 1.0,
adopted 1/19/98)
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:
Each access line consisting of the grantee’s transmission
media that connect to the end user customer’s premises network
interface within the city and the grantee’s local serving facilities
(these serving facilities include central office facilities, distribution
frame facilities or other similar facilities) and allowing delivery
of telecommunications services within the city; and
Each termination point or points within the city of a non-switched
telephone circuit consisting of the grantee’s transmission media
dedicated for use between specific locations identified by an end
user customer.
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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.
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The Cable Communications Policy Act of 1984, 47 U.S.C. section
532 et seq., as now and hereafter amended.
A person providing or offering to provide cable service within
the city as that term is defined in the Cable Act.
“Cable service” as defined in the Cable Communications
Policy Act of 1984, as amended, 47 U.S.C. section 532 et seq.
A “telecommunications utility” as used in the
Public Utility Regulatory Act of 1995, V.T.C.A., Utilities Code, section
51.002(11).
All ordinances, laws, rules, 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 the grantee’s duct spaces, manholes,
poles, conduits, underground and overhead passageways, and other equipment,
structures, plant, and appurtenances and all associated transmission
media.
The federal administrative agency, or lawful successor, authorized
to regulate and oversee telecommunications carriers, services and
providers on a national level.
The mayor and city council of the city.
The person to whom or for which a municipal consent is granted
under this article, and the lawful successor, transferee, or assignee
of said person.
A monthly fee assessed on each access line owned by the grantee
and paid by the grantee to the city as compensation for the use and
occupancy of the rights-of-way.
The individual agreement between the city and an individual
grantee, as expressed in an ordinance of the governing body, whereby
the city grants the right to a grantee, who serves or wants to serve
customers within the city, to use and occupy the rights-of-way for
the acquisition, installation, maintenance, repair, construction,
reconstruction and/or operation of telecommunications facilities.
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 non-switched telephone circuit dedicated for use between
specific locations identified by an end-user customer.
The channel termination point or points within the city of
a private line service.
A public utility as that term is used in the Public Utility
Regulatory Act of 1995, V.T.C.A., Utilities Code, section 11.004,
including municipally owned and/or operated utilities.
The state administrative agency, or lawful successor, authorized
to regulate and oversee telecommunications carriers, services and
providers in the state.
All present and future public streets, avenues, highways,
alleys, sidewalks, boulevards, drives, tunnels, easements, bridges,
and other such similar passageways, thoroughfares, and public ways.
Every person who provides telecommunications service over
telecommunication facilities without any ownership or management control
of the facilities.
The providing or offering for rent, sale or lease, whether
in exchange for money or other value, of the transmittal of or of
plant, equipment, facilities, or other property for the transmittal
of voice, data, images, 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). Notwithstanding
this definition, however, a grantee 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 or authorized by law.
Any and all of the grantee’s cables, fibers, wires
or other physical devices used to provide telecommunications services
and to transmit and/or receive communication signals, whether analog,
digital or of other characteristics, and whether for voice, data or
other purposes.
Any line fee passed on by the grantee and charged by the
grantee to an end user customer that has not been paid after the grantee
has undertaken all reasonable efforts to collect the passed-through
line fee.
The grantee’s acquisition, construction, reconstruction,
maintenance or operation of any facilities in, over, under, along,
through or across the rights-of-way for any purpose whatsoever.
(Ordinance 98-01-19-1, sec. 2.0,
adopted 1/19/98)
(a)
A municipal consent shall first be obtained by a person before commencing
to use and occupy the rights-of-way for the purpose of acquiring,
installing, maintaining, repairing, constructing, reconstructing,
and/or operating his, her or its telecommunications facilities.
(b)
Any person wanting to use the rights-of-way for the installation
of facilities shall apply to the city for a municipal consent.
(c)
Within 90 days after receiving a complete application, the governing
body shall issue a written determination granting or denying the application
in whole or in part. If the application is denied, the written determination
shall include the reasons for denial.
(d)
All municipal consents shall take the form of an ordinance duly passed
by the governing body and accepted by the grantee. Each municipal
consent shall incorporate all applicable provisions of this article
and shall follow a standardized format insofar as practical. Any special
terms or conditions included within a grantee’s municipal consent
shall be nondiscriminatory and competitively neutral.
(e)
No municipal consent granted under this article shall confer any
exclusive right, privilege, license or franchise to use or occupy
the rights-of-way for the acquisition, installation, maintenance,
repair, construction, reconstruction, and operation of telecommunications
facilities or for any other purpose.
(f)
An initial municipal consent granted hereunder shall be valid for
a term of not more than ten (10) years. At the expiration of the initial
period, the term of the municipal consent shall be automatically extended
for successive periods of one year, unless written notice of intent
to terminate the municipal consent is given not less than ninety days
prior to the termination of the then-current period by either the
city or the grantee. When such notice is given, the municipal consent
shall terminate at the expiration of the then-current period. Regardless
of the right of automatic renewal, the total number of years of a
municipal consent shall not exceed eighteen years.
(g)
No municipal consent granted under this article shall convey any
right, title or interest in city property or rights-of-way, but shall
be deemed a municipal consent to use and occupy rights-of-way to the
limited extent and for the limited purposes and terms stated in the
municipal consent. Further, no municipal consent shall be construed
as any warranty of title. The applicant retains full responsibility
for the adequacy of the design of the telecommunications facilities.
(h)
Each municipal consent granted under this article is subject to the
city’s right to fair and reasonable compensation, on a nondiscriminatory
and competitively neutral basis, for the grantee’s use and occupancy
of rights-of-way.
(i)
If a grantee desires to renew its municipal consent under this article,
the grantee shall, not more than 180 days nor less than 90 days before
expiration of the then-current municipal consent, apply to the city
for renewal of its municipal consent.
(j)
Within thirty (30) days after receiving an application under subsection (i) of this section, the governing body shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.
(Ordinance 98-01-19-1, sec. 3.0,
adopted 1/19/98)
(a)
No rights agreed to in any municipal consent 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)
The rights granted by a municipal consent inure to the benefit of
the grantee. The ordinance and the rights granted by it shall not
be assigned, transferred, or sold to another by the grantee without
the express written consent of the city, as approved by adoption of
an ordinance by the city council. The city may determine in any municipal
consent that, for the purposes of this section, assignment, transfer
or sale means a change of operating control of the grantee, expressly
excepting an assignment or transfer to entities that control, are
controlled by or are under common control with the grantee; provided
that no such assignment or transfer of rights granted by the applicable
municipal consent to an entity that controls, is controlled, or is
under common control with the grantee shall either act to relieve
the grantee of any obligation hereunder or confer any right on such
transferee until the city has been notified of such transfer, such
transferee has executed a writing agreeing to be bound by the terms
of this article in exchange for the city’s recognition of such
transferee’s rights under the municipal consent, and such transfer
has been approved by any governmental authority, other than the city,
that is required by applicable law to approve such transfer. Any consent
that may be required pursuant to this subsection to give effect to
a transfer shall not be withheld unreasonably by the city.
(Ordinance 98-01-19-1, sec. 4.0,
adopted 1/19/98)
(a)
Line fee imposed.
To compensate the city for the use
and occupancy of the rights-of-way, each grantee shall pay the city
during the life of the grantee’s municipal consent a monthly
line fee for each access line owned by the grantee, calculated at
month-end, that is activated for use by an end use customer. For calendar
year 1998, the monthly municipal telecommunication line fee shall
be fixed in the following amounts:
(1)
Per residential access line: $0.35.
(2)
Per nonresidential access line: $0.70.
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Line fees payable pursuant to this article and any municipal
consent shall be reviewed periodically by the city council. No increase
in line fees payable by any grantee pursuant to this article and any
municipal consent shall be effective until such grantee has been provided
with 90 days’ advance written notice of such an increase.
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(b)
Collection of line fee by grantee.
Pursuant to Tex.
Utilities Code section 54.206, a grantee 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 telecommunications
providers who are leasing, reselling or otherwise using the grantee’s
access lines to provide telecommunications services. With respect
to a telecommunications provider leasing, reselling, or otherwise
using a grantee’s access line, if a grantee 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 telecommunications provider certifies in writing to the grantee
sufficient information to determine the correct line fee. If a telecommunications
provider certifies in writing information for the application of a
line fee, the grantee may bill the telecommunications provider on
the basis of the information provided. To the extent allowed by applicable
law, if a grantee obtains evidence of misrepresentation or other misreporting
by a telecommunications provider, the grantee shall supply such evidence
to the city; however, any other provision of this article notwithstanding,
a grantee shall not be liable for underpayment of line fees resulting
from the grantee’s reliance upon the written certification provided
by a telecommunications provider.
(c)
Report of number of access lines.
A grantee shall provide
to the city, within a reasonable time after receipt of the city’s
written request therefor, a report showing the number of access lines
owned by such grantee that are serving end use customers’ premises
within the city. The city agrees that the report shall be used solely
for the purpose of verifying the number of the grantee’s access
lines serving end use customers’ premises within the city. Upon
written request, the grantee 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. Except as otherwise
provided by applicable law, the city shall not disclose to the public
any proprietary information included in any report or record made
available to the city pursuant to this section.
(d)
Annexation and disannexation.
Within thirty 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 shall furnish to each grantee 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 grantee
shall start including access lines within the affected area in the
grantee’s count of access lines on the effective date designated
by the comptroller of public accounts of the state for the imposition
of state local sales and use taxes, but in no case less than 30 days
from the date the grantee is notified by the city of the annexation.
(e)
Confidential records.
If the grantee 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.
(f)
No other fees.
The line fees due pursuant to this article
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 grantee.
(g)
Timing of payment.
The grantee 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.
(h)
Uncollectibles.
A grantee 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, the grantee shall not be obligated to
pay the city any uncollectible line fees.
(i)
Leased facilities.
Other provisions of this article
notwithstanding, the grantee shall not include in its monthly count
of access lines and shall not remit a line fee to the city for access
lines that are leased or otherwise provided to another person for
consideration if:
(1)
Such person is a certificated telecommunications utility by the state;
(2)
Such person has a municipal consent from the city governing the person’s
use and occupancy of the rights-of-way for the purpose of erecting,
constructing, maintaining and/or operating a telecommunications system;
and
(3)
Such person has furnished the grantee adequate proof:
(A)
That the person has obtained a municipal consent;
(B)
That the person intends to include the leased access lines in its
monthly count of such facilities to the city;
(C)
That the person intends to remit to the city a line fee on those
lines and points; and
(D)
That the city has approved of this arrangement and has agreed not
to seek from the grantee the line fees attributable to the leased
facilities.
(Ordinance 98-01-19-1, sec. 5, adopted 1/19/98)
(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 a grantee’s facilities
of any electric light or power wires or communications facilities
or other systems not owned by the grantee. 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 grantee’s
facilities, then a further separate, noncontingent agreement with
the grantee shall be required. Nothing contained in this article or
any municipal consent shall obligate a grantee to exercise or restrict
the grantee 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. Notwithstanding any other provision herein, the city
retains all rights the city has or may have to regulate the location,
routing, placement and/or installation of facilities by any person
within the rights-of-way.
(c)
The surface of the rights-of-way disturbed by a grantee 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. Should the city
reasonably determine, within one year from the date of any restoration
performed pursuant to this subsection, that the surface of the rights-of-way
required additional work to restore the surface to as good a condition
as before the commencement of the work, then the grantee shall perform
such additional work to the reasonable satisfaction of the city. The
grantee 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 grantee 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 grantee
may require payment in advance. The grantee shall be given not less
than forty-eight hours’ advance notice to arrange for such temporary
rearrangements.
(e)
The grantee, 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 grantee’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 98-01-19-1, sec. 6, adopted 1/19/98)
(a)
In accordance with Texas Utilities Code, section 54.203(c), upon
thirty days’ notice by the city, the grantee 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 grantee’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 grantee in
such instances to assure continuity of service and to afford to the
grantee the opportunity to make such relocation itself.
(Ordinance 98-01-19-1, sec. 7, adopted 1/19/98)
The grantee 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 grantee’s facilities located within the rights-of-way
found to be caused solely by the negligence of the grantee. Expenses
shall include any reasonable and necessary attorney’s fees and
court costs. The city shall give the grantee prompt written notice
of any claim for which the city seeks indemnification. The grantee
shall have the right to investigate and compromise any such claim.
The grantee may, at the city’s option, provide a defense on
behalf of the city to 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
grantee and the city.
(Ordinance 98-01-19-1, sec. 8, adopted 1/19/98)
(a)
The city may, at any time, make reasonable inquiries pertaining to
the terms, conditions, rights and obligations of this article, and
the grantee shall respond to such inquiries on a timely basis.
(b)
Copies of petitions, applications, and reports submitted by the grantee
to the Federal Communications Commission or the public utility commission
of the state shall be provided to the city upon request.
(c)
After reasonable notice to the grantee, the city may establish, to
the extent permitted by law, such rules and regulations as may be
appropriate for the administration of this article and the construction
of the grantee’s facilities in the rights-of-way.
(Ordinance 98-01-19-1, sec. 9, adopted 1/19/98)
In the event this article or any tariff that authorizes the
grantee to recover the fee provided for in this article or any procedure
provided in this article or any compensation due the city under 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
shall either adopt amendments to this article or shall adopt a new
ordinance to conform to the decision of the authority, and the city
and the grantee shall meet and negotiate a new municipal consent that
is in compliance with the authority’s decision. In the event
that the state legislature, or any other governmental entity with
jurisdiction, expressly excepting the city, shall enact a method or
formula for determining line fees or shall prescribe a rate or an
amount of such line fees that is inconsistent with this article, then
the city and the grantee shall meet and negotiate a new municipal
consent that is in compliance with any such new applicable law. Unless
explicitly prohibited, the new municipal consent shall provide the
city with a level of compensation comparable to that set forth in
this article, as long as the agreed-to compensation is recoverable
by the grantee in a manner permitted by law for the unexpired portion
of the term of the municipal consent.
(Ordinance 98-01-19-1, sec. 10,
adopted 1/19/98)
This article shall be construed in accordance with the city
charter and all applicable ordinances in effect on the date of passage
of this article to the extent that they are not in conflict with or
in violation of the constitution and laws of the United States or
the state.
(Ordinance 98-01-19-1, sec. 11,
adopted 1/19/98)
Within fourteen working days of its final passage, the city
shall deliver to the grantee a properly certified copy of the ordinance
granting the grantee a municipal consent. The grantee shall have thirty
days, or a shorter time if agreed to by and between the city and a
grantee in a municipal consent, from and after the delivery of that
copy of that ordinance to file its written acceptance of that ordinance
with the city secretary. Upon the filing of that acceptance, that
ordinance shall take effect and be in force beginning on the effective
date agreed to by the city and the grantee and set forth in the individual
municipal consent.
(Ordinance 98-01-19-1, sec. 12,
adopted 1/19/98)
