The purpose of this division 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.
(Ordinance 98-09-01, sec. 1.0, adopted 9/1/98)
Whenever used in this division, 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 switched transmission path of 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;
Each loop provided as an unbundled network element to a person pursuant to an agreement under section 252 of the Federal Telecommunications Act of 1996; and
Each termination point of a non-switched telephone circuit consisting
of transmission media connecting specific locations identified by,
and provided to, the end user for the delivery of non-switched telecommunications
service within the city.
“Cable service” as defined in the Cable Communications
Policy Act of 1984, as amended, 47 U.S.C. section 532 et seq.
All ordinances, laws, rules, resolutions, and regulations
of the city that are not inconsistent with this division and that
are now in force or may hereafter be passed and adopted.
Any and all of the duct spaces, manholes, poles, conduits,
underground and overhead passageways, and other equipment, structures,
plant, and appurtenances and all associated transmission media used
for the provision of telecommunications service.
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.
Any telecommunications service provider issued a permit pursuant
to the terms of this division.
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. section 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
within the city.
The total amount paid to the city on a quarterly basis for
the use and occupancy of the rights-of-way.
The transmittal of voice, data, images, 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.
Any person that supplies telecommunications service to others
within the corporate limits of the city in exchange for money or other
value.
“Telecommunications utility” as used in the Public
Utility Regulatory Act of 1995, Tex. Utilities Code Ann. section 51.002(11).
Any and all of the cables, fibers, wires or other physical
devices owned, maintained or placed by a permit holder to transmit
and/or receive communication signals, whether analog, digital or of
other characteristics, and whether for voice, data or other purposes.
The permit holder’s acquisition, installation, construction,
reconstruction, maintenance, repair, control, or operation of any
facilities within the rights-of-way for any purpose whatsoever.
(Ordinance 98-09-01, sec. 2.0, adopted 9/1/98)
Any person that owns, places, or maintains facilities within the rights-of-way shall first obtain a permit pursuant to the terms of this division. Subject to the restrictions set forth herein, the city under this division shall issue permits to telecommunications service providers for the purpose of regulating the use and occupancy of the public rights-of-way in the city for the provision of access lines. By acceptance of the permit, the permit holder agrees to abide by the reasonable terms of this division 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 4.05.035(c) of this division.
(Ordinance 98-09-01, sec. 3.0, adopted 9/1/98)
(a)
Rights not exclusive.
No rights agreed to in this division
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)
Cable service providers.
A permit holder is not authorized
to provide cable service as a cable operator in the city under this
division, but must first obtain a franchise from the city for that
purpose, under such terms and conditions as may be required by law.
(c)
Initial term of permit.
The initial term of each permit
issued under this division shall be two (2) years from the date of
issuance, unless terminated earlier by mutual written agreement of
the city and the permit holder or pursuant to law.
(d)
Transfer of rights.
The rights granted by this division
inure to the benefit of the permit holder licensed hereunder. The
rights granted by permit shall not be assigned, transferred, or sold
to another by the permit holder without the express written consent
of the city. For the purposes of this section, assignment, transfer
or sale means a change of operating control of the permit holder,
expressly excepting an assignment or transfer to entities that control,
are controlled by or are under common control with the permit holder.
Any such consent by the city shall not be withheld unreasonably.
(Ordinance 98-09-01, sec. 4.0, adopted 9/1/98)
(a)
Rights-of-way fee established.
The permit holder 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, placed,
or maintained by the permit holder that is activated for use by an
end-user or for another telecommunications service provider that uses
the permit holder’s services or facilities for the provision
of telecommunications service within the city. The line fee to be
applied to each access line on a monthly basis shall be the amount
authorized by city council.
(b)
Report of number of access lines.
Subject to the city’s
agreement not to disclose this information, each permit holder 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 the permit holder within the
city that are activated for end-user customers and other telecommunications
service providers at month’s end 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 permit holder’s
access lines within the city that are activated for end-user customers
and telecommunications service providers. Upon written request, the
permit holder 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,” “Tel-Assistance,”
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 the permit holder
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 division,
a permit holder shall start including or excluding access lines within
the affected area in the permit holder’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 permit holder
is notified by the city of the annexation or disannexation.
(d)
Confidential records.
If the permit holder 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 permit holder’s
confidential information, reports, documents, or writings, the city
shall notify the permit holder 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 permit holder with copies of attorney
general opinion requests it makes pertaining to the permit holder’s
confidential information, reports, documents or writings.
(e)
No 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 permit
holder. Further, such rights-of-way fee shall constitute full compensation
to the city for all of the permit holder’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.
The permit holder shall remit the
line fee on a quarterly basis. The payment shall be due on the forty-fifth
(45th) day following the close of each calendar quarter for which
the payment is calculated.
(g)
Uncollectibles.
The permit holder 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 division notwithstanding, the permit holder shall not be obligated
to pay the city for any access lines for which revenues remain uncollectible.
(h)
Facilities provided to other telecommunications service providers.
To the extent allowed by applicable state and federal law, any telecommunications service providers that purchase unbundled network elements or other facilities for the purpose of rebundling those facilities to create telecommunications service for sale to persons within the city shall pay to the city a rights-of-way fee that is calculated as of month-end by applying the appropriate line fee, as specified in subsection (a) of this section, to each access line created by rebundling services or facilities. Such direct payment to the city is necessary because it is only the person creating the services for resale that will be able to determine the number of access lines being provided, so that the rights-of-way fee imposed herein can be applied on a nondiscriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this division notwithstanding, the permit holder shall not include in its monthly count of access lines any unbundled network elements or other facilities provided to other telecommunications service providers for rebundling into telecommunications services, if the telecommunications service provider that is rebundling those facilities for resale has provided a signed statement to the permit holder that the telecommunications service provider is paying the access line fees applicable to those rebundled services directly to the city. If the permit holder provides a copy of the signed statement to the city, then the permit holder is absolved of all responsibility for the line fees payable on the telecommunications service, unbundled network elements, and other facilities rebundled for the creation of telecommunications service for sale within the city.
(i)
Applicability of fee to leased facilities.
Pursuant
to Tex. Utilities Code section 54.206, a permit holder may collect
the line fee imposed by the city pursuant to this division 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 permit holder’s access lines to provide telecommunications
service. With respect to any person leasing, reselling, or otherwise
using a permit holder’s access lines, if a permit holder 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 permit holder
sufficient written information to determine the correct line fee.
If a person provides sufficient written information for the application
of the line fee, permit holders may bill the person on the basis of
the information provided. The permit holder 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 the city first obtains written
permission of such other person for the permit holder to provide the
information to the city. Any other provision of this division notwithstanding,
however, a permit holder shall not be liable for underpayment of line
fees resulting from the permit holder’s reliance upon the written
information provided by any person that uses the permit holder’s
service or facilities for the provision of telecommunications service
to end-user customers.
(Ordinance 98-09-01, sec. 5.0, adopted 9/1/98)
(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 division shall be construed to require or permit
the attachment on or placement in the permit holder’s facilities
of any electric light or power wires or communications facilities
or other systems not owned by the permit holder. 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 division
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 telecommunications
utility or authorized to offer cable service within the city.
(c)
The
surface of the rights-of-way disturbed by the permit holder 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
permit holder 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 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.
(e)
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 98-09-01, sec. 6.0, adopted 9/1/98)
(a)
In
accordance with Tex. Utilities Code Ann. section 54.203(c), upon thirty
(30) days’ notice by the city, the 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)
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.
(Ordinance 98-09-01, sec. 7.0, adopted 9/1/98)
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
permit holder and the city.
(Ordinance 98-09-01, sec. 8.0, adopted 9/1/98)
(a)
The
city may, at any time, make reasonable inquiries pertaining to the
terms, conditions, rights and obligations of this division, and the
permit holder shall respond to such inquiries on a timely basis.
(b)
Copies
of petitions, applications, and reports submitted by the permit holder
to the Federal Communications Commission or the state public utility
commission shall be provided to the city upon specific request.
(c)
After
reasonable notice to the permit holder, 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 division and the construction of the permit holder’s
facilities in the rights-of-way, so long as those rules and regulations
are competitively neutral.
(Ordinance 98-09-01, sec. 9.0, adopted 9/1/98)
In the event this division or any tariff or other provision
that authorizes permit holders to recover the fee provided for in
this division 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. Unless
explicitly prohibited, the new compensation arrangement shall provide
the city with a level of compensation comparable to that set forth
in this division, as long as that compensation is recoverable by the
permit holders in a manner permitted by law for the unexpired portion
of the term of this division.
(Ordinance 98-09-01, sec. 10.0,
adopted 9/1/98)
This division shall be construed in accordance with the city
code in effect on the date of passage of this division 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.
(Ordinance 98-09-01, sec. 11.0,
adopted 9/1/98)
The city hereby recognizes that it has the legal duty to obligate,
on a going-forward basis, all permit holders to abide by the same
terms and conditions imposed by this division, 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.
(Ordinance 98-09-01, sec. 12.0,
adopted 9/1/98)
Any permit holder that owns facilities already located within
the rights-of-way on the date this division is enacted is hereby granted
a permit hereunder; however, within thirty (30) days from the effective
date of this division all such permit holders shall provide to the
city a notice of pre-existing facilities. All prospective permit holders
shall file a permit application form at least thirty (30) days before
placing any facilities in the rights-of-way. A permit application
form will not be accepted and a permit 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 the applicant.
(Ordinance 98-09-01, sec. 13, adopted 9/1/98)
(a)
The
city shall deliver a properly certified copy of this division to the
permit holder, along with a permit hereunder, within fourteen (14)
days after receipt of the notice of pre-existing facilities or the
permit application form.
(b)
The
effective date for any permit 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 permit. Permit
holders with pre-existing facilities may continue the pre-existing
compensation arrangement until the first day of the second month following
the issuance of the permit.
(Ordinance 98-09-01, sec. 14.0,
adopted 9/1/98)
