The town council shall be designated as the franchising authority for a local franchise for the provision of cable service or video service within the corporate limits.
(Ordinance 22-009 adopted 9/12/2022)
In this article:
Only current out-of-pocket expenses for labor, equipment repair, equipment replacement, and tax expenses directly associated with the labor or the equipment of a service provider that is necessarily and directly used to provide what were, under a superseded franchise, in-kind services, exclusive of any profit or overhead such as depreciation, amortization, or administrative expense.
Is defined as set forth in 47 U.S.C. section 522(6).
A person who provides cable service.
A component or facility that is, wholly or partly, physically located within a public right-of-way and that is used to provide video programming, cable, voice, or data services.
An initial authorization, or renewal of an authorization, issued by a franchising authority, regardless of whether the authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction and operation of a cable or video services network in the public rights-of-way.
All consideration of any kind or nature including without limitation cash, credits, property, and in-kind contributions (services or goods) derived by the holder of a state-issued certificate of franchise authority from the operation of the cable service provider's or the video service provider's network to provide cable service or video service within the town. Gross revenue shall include all consideration paid to the holder of a state-issued certificate of franchise authority and its affiliates (to the extent either is acting as a provider of a cable service or video service as authorized by this chapter), which shall include but not be limited to the following: (A) all fees charged to subscribers for any and all cable service or video service provided by the holder of a state-issued certificate of franchise authority; (B) any fee imposed on the holder of a state-issued certificate of franchise authority by this chapter that is passed through and paid by subscribers (including without limitation the franchise fee set forth in this chapter); and (C) compensation received by the holder of a state-issued certificate of franchise authority or its affiliates that is derived from the operation of the holder of a state-issued certificate of franchise authority's network to provide cable service or video service with respect to commissions that are paid to the holder of a state-issued certificate of franchise authority as compensation for promotion or exhibition of any products or services on the holder of a state-issued certificate of franchise authority's network, such as a "home shopping" or a similar channel, subject to subsection (2)(E) below. Gross revenue includes a pro rata portion of all revenue derived by the holder of a state-issued certificate of franchise authority or its affiliates pursuant to compensation arrangements for advertising derived from the operation of the holder of a state-issued certificate of franchise authority's network to provide cable service or the video service within the town, subject to subsection (2)(C) below. The allocation shall be based on the number of subscribers in the town divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement. Advertising commissions paid to third parties shall not be netted against advertising revenue included in gross revenue. Revenue of an affiliate derived from the affiliate's provision of cable service or the video service shall be gross revenue to the extent the treatment of such revenue as revenue of the affiliate and not of the holder of a state-issued certificate of franchise authority has the effect (whether intentional or unintentional) of evading the payment of fees which would otherwise be paid to the town. In no event shall revenue of an affiliate be gross revenue to the holder of a state-issued certificate of franchise authority if such revenue is otherwise subject to fees to be paid to the town.
For purposes of this section, "gross revenues" does not include:
Any revenue not actually received, even if billed, such as bad debt;
Non-cable services or non-video services revenues received by any affiliate or any other person in exchange for supplying goods or services used by the holder of a state-issued certificate of franchise authority to provide cable service or video service;
Refunds, rebates, or discounts made to subscribers, leased access providers, advertisers, or the town;
Any revenues from services classified as non-cable service or non-video service under federal law including without limitation revenue received from telecommunications services; revenue received from information services (but not excluding cable services or video services); and any other revenues attributed by the holder of a state-issued certificate of franchise authority to non-cable service or non-video service in accordance with Federal Communications Commission or commission rules, regulations, standards, or orders;
Any revenue paid by subscribers to home shopping programmers directly from the sale of merchandise through any home shopping channel offered as part of the cable services or the holder of a state-issued certificate of franchise authority as compensation for promotion or exhibition of any products or services on the holder of a state-issued certificate of franchise authority's network, such as a "home shopping" or a similar channel;
The sale of cable services or video services for resale in which the purchaser is required to collect this chapter's fees from the purchaser's customer. Nothing under this chapter is intended to limit state's rights pursuant to 47 U.S.C. section 542(h);
The provision of cable services or video services to customers at no charge, as required or allowed by this chapter, including without limitation the provision of cable services or video services to public institutions, as required or permitted in this chapter, including without limitation public schools or governmental entities, as required or permitted in this chapter;
Any tax of general applicability imposed upon the holder of a state-issued certificate of franchise authority or upon subscribers by a city, state, federal, or any other governmental entity and required to be collected by the holder of a state-issued certificate of franchise authority and remitted to the taxing entity (including, but not limited to, sales and use tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes, and fees not imposed by this chapter);
Any forgone revenue from the holder of a state-issued certificate of franchise authority's provision of free or reduced cost cable services or video services to any person including without limitation employees of the holder of a state-issued certificate of franchise authority, to the town and other public institutions or other institutions as allowed in this chapter; provided, however, that any forgone revenue which the holder of a state-issued certificate of franchise authority chooses not to receive in exchange for trades, barters, services, or other items of value shall be included in gross revenue;
Sales of capital assets or sales of surplus equipment that is not used by the purchaser to receive cable services or video services from the holder of a state-issued certificate of franchise authority;
Directory or internet advertising revenue including, but not limited to, yellow pages, white pages, banner advertisement, and electronic publishing; and
Reimbursement by programmers of marketing costs incurred by the holder of a state-issued franchise for the introduction of new programming that exceed the actual costs.
For purposes of this definition, a provider's network consists solely of the optical spectrum wavelengths, bandwidth, or other current or future technological capacity used for the transmission of video programming over wireline directly to subscribers within the geographic area within the municipality as designated by the provider in its franchise.
The cable service provider serving the largest number of cable subscribers in a particular municipal franchise area on September 1, 2005.
The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the town has an interest.
Programming provided by, or generally considered comparable to programming provided by, a television broadcast station, as set forth in 47 U.S.C. section 522(20).
Video programming services provided through wireline facilities located at least in part in the public right-of-way without regard to delivery technology, including internet protocol technology. This definition does not include any video service provided by a commercial mobile service provider as defined in 47 U.S.C. section 332(d).
A video programming distributor that distributes video programming services through wireline facilities located at least in part in the public right-of-way without regard to delivery technology. This term does not include a cable service provider.
(Ordinance 22-009 adopted 9/12/2022)
(a)
An entity or person seeking to provide cable service or video service in this town shall file an application for a certificate of franchise authority with the town as required by this section. An entity providing cable service or video service under a franchise agreement with the town is not subject to this state regulation with respect to such municipality until the franchise agreement is terminated under section 13.06.004 or until the franchise agreement expires.
The town council shall notify an applicant for a state-issued certificate of franchise authority whether the applicant's affidavit described by subsection (b) is complete before the 15th business day after the applicant submits the affidavit.
(b)
The town council may issue a certificate of franchise authority to offer cable service or video service before the day after receipt of a completed application submitted by the applicant and signed by an officer or general partner of the applicant affirming:
(1)
That the applicant agrees to comply with all applicable local ordinance statutes and regulations;
(2)
That the applicant agrees to comply with all applicable municipal regulations regarding the use and occupation of public rights-of-way in the delivery of the cable service or video service, including the police powers of the municipalities in which the service is delivered;
(3)
A description of the service area footprint to be served within the municipality, if applicable, otherwise the municipality to be served by the applicant, which may include certain designations of unincorporated areas, which description shall be updated by the applicant prior to the expansion of cable service or video service to a previously undesignated service area and, upon such expansion, notice to the commission of the service area to be served by the applicant; and
(4)
The location of the applicant's principal place of business and the names of the applicant's principal executive officers.
(c)
The certificate of franchise authority issued by the town administrator in accordance with this article shall contain:
(1)
A grant of authority to provide cable service or video service as requested in the application;
(2)
A grant of authority to use and occupy the public rights-of-way in the delivery of that service, subject to the laws of this state, including the police powers of the town in which the service is delivered; and
(3)
A statement that the grant of authority is subject to lawful operation of the cable service or video service by the applicant or its successor in interest.
(d)
The certificate of franchise authority issued by the commission is fully transferable to any successor in interest to the applicant to which it is initially granted. A notice of transfer shall be filed with the commission and the relevant municipality within 14 business days of the completion of such transfer.
(e)
The certificate of franchise authority issued by the town may be terminated by the cable service provider or video service provider by submitting notice to the commission.
(Ordinance 22-009 adopted 9/12/2022)
(a)
The holder of a town certificate of franchise authority shall pay to the town cable service or video service a franchise fee of five percent based upon the definition of gross revenues as set forth in this chapter. That same franchise fee structure shall apply to any unincorporated areas that are annexed by a municipality after the effective date of the state-issued certificate of franchise authority.
(b)
The franchise fee payable under this section is to be paid quarterly, within 45 days after the end of the quarter for the preceding calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the fee. A municipality may review the business records of the cable service provider or video service provider to the extent necessary to ensure compensation in accordance with subsection (a), provided that the municipality may only review records that relate to the 48-month period preceding the date of the last franchise fee payment. Each party shall bear the party's own costs of the examination. A municipality may, in the event of a dispute concerning compensation under this section, bring an action in a court of competent jurisdiction.
(c)
The holder of a state-issued certificate of franchise authority may recover from the provider's customers any fee imposed by this chapter.
(Ordinance 22-009 adopted 9/12/2022)
(a)
Until the expiration or termination of the incumbent cable service provider's agreement, the holder of a state-issued certificate of franchise authority shall pay the town in which it is offering cable service or video service the same cash payments on a per subscriber basis as required by the incumbent cable service provider's franchise agreement. All cable service providers and all video service providers shall report quarterly to the municipality the total number of subscribers served within the municipality. The amount paid by the holder of a state-issued certificate of franchise authority shall be calculated quarterly by the municipality by multiplying the amount of cash payment under the incumbent cable service provider's franchise agreement by a number derived by dividing the number of subscribers served by a video service provider or cable service provider by the total number of video or cable service subscribers in the municipality. Such pro rata payments are to be paid quarterly to the municipality within 45 days after the end of the quarter for the preceding calendar quarter.
(b)
All fees paid to the town under this section are paid in accordance with 47 U.S.C. sections 531 and 541(a)(4)(B) and may be used by the town as allowed by federal law and chapter 283 of the Texas Local Government; further, these payments are not chargeable as a credit against the franchise fee payments authorized under this article.
(Ordinance 22-009 adopted 9/12/2022)
Not later than 120 days after a request by a municipality, the holder of a state-issued certificate of franchise authority shall provide the municipality with capacity in its communications network to allow public, educational, and governmental (PEG) access channels for noncommercial programming.
(Ordinance 22-009 adopted 9/12/2022)
(a)
The town shall allow the holder of a state-issued certificate of franchise authority to install, construct, and maintain a communications network within a public right-of-way and shall provide the holder of a state-issued certificate of franchise authority with open, comparable, nondiscriminatory, and competitively neutral access to the public right-of-way. All use of a public right-of-way by the holder of a state-issued certificate of franchise authority is nonexclusive and subject to section 13.06.011.
(Ordinance 22-009 adopted 9/12/2022)
(a)
The town may enforce police power-based regulations in the management of a public right-of-way that apply to the holder of a state-issued certificate of franchise authority within the town. The town may enforce police power-based regulations in the management of the activities of the holder of a state-issued certificate of franchise authority to the extent that they are reasonably necessary to protect the health, safety, and welfare of the public. Police power-based regulation of the holder of a state-issued certificate of franchise authority's use of the public right-of-way must be competitively neutral and may not be unreasonable or discriminatory. The town may not impose on activities of the holder of a state-issued certificate of franchise authority a requirement:
(1)
That particular business offices be located in the town;
(2)
Regarding the filing of reports and documents with the town that are not required by state or federal law and that are not related to the use of the public right-of-way except that the town may request maps and records maintained in the ordinary course of business for purposes of locating the portions of a communications network that occupy public rights-of-way. Any maps or records of the location of a communications network received by the town shall be confidential and exempt from disclosure under chapter 552, Government Code, and may be used by the town only for the purpose of planning and managing construction activity in the public right-of-way. The town may not request information concerning the capacity or technical configuration of the holder of a state-issued certificate of franchise authority's facilities;
(3)
For the inspection of the holder of a state-issued certificate of franchise authority's business records except to extent permitted under section 13.06.005(b);
(4)
For the approval of transfers of ownership or control of the holder of a state-issued certificate of franchise authority's business, except that the town may require that the holder of a state-issued certificate of franchise authority maintain a current point of contact and provide notice of a transfer within a reasonable time; or
(5)
That the holder of a state-issued certificate of franchise authority that is self-insured under the provisions of state law obtain insurance or bonding for any activities within the town, except that a self-insured provider shall provide substantially the same defense and claims processing as an insured provider. A bond may not be required from a provider for any work consisting of aerial construction except that a reasonable bond may be required of a provider that cannot demonstrate a record of at least four years' performance of work in any municipal public right-of-way free of currently unsatisfied claims by the town for damage to the right-of-way.
(b)
Notwithstanding any other law, the town may require the issuance of a construction permit, without cost, to the holder of a state-issued certificate of franchise authority that is locating facilities in or on a public right-of-way in the town. The terms of the permit shall be consistent with construction permits issued to other persons excavating in a public right-of-way.
(c)
In the exercise of its lawful regulatory authority, the town shall promptly process all valid and administratively complete applications of the holder of a state-issued certificate of franchise authority for a permit, license, or consent to excavate, set poles, locate lines, construct facilities, make repairs, affect traffic flow, or obtain zoning or subdivision regulation approvals or other similar approvals. The town shall make every reasonable effort not to delay or unduly burden the provider in the timely conduct of the provider's business.
(d)
If there is an emergency necessitating response work or repair, the holder of a state-issued certificate of franchise authority may begin the repair or emergency response work or take any action required under the circumstances without prior approval from the affected the town [sic], if the holder of a state-issued certificate of franchise authority notifies the town as promptly as possible after beginning the work and later obtains any approval required by a municipal ordinance applicable to emergency response work.
(e)
The commission shall have no jurisdiction to review such police power-based regulations and ordinances adopted by the town to manage the public rights-of-way.
(Ordinance 22-009 adopted 9/12/2022)
The holder of a state-issued certificate of franchise authority shall indemnify and hold the town and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought, that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the holder of a state-issued certificate of franchise authority or any agent, officer, director, representative, employee, affiliate, or subcontractor of the holder of a state-issued certificate of franchise authority or their respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining facilities in a public right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the town or its officers, employees, contractors, or subcontractors. If the holder of a state-issued certificate of franchise authority and the town are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the town under state law and without waiving any defenses of the parties under state law. This subsection is solely for the benefit of the town and the holder of a state-issued certificate of franchise authority and does not create or grant any rights, contractual or otherwise, for or to any other person or entity.
(Ordinance 22-009 adopted 9/12/2022)
In addition to the town's authority to exercise its nondiscriminatory police power with respect to public rights-of-way under current law, the town's authority to regulate the holder of state-issued certificate of franchise authority is limited to:
(1)
A requirement that the holder of a state-issued certificate of the franchise authority who is providing cable service or video service within the town register with the town and maintain a point of contact;
(2)
The establishment of reasonable guidelines regarding the use of public, educational, and governmental access channels; and
(3)
Submitting reports within 30 days on the customer service standards referenced in section 13.06.008 if the provider is subject to those standards and has continued and unresolved customer service complaints indicating a clear failure on the part of the holder of a state-issued certificate of franchise authority to comply with the standards.
(Ordinance 22-009 adopted 9/12/2022)
(a)
The purpose of this section is to prevent discrimination among potential residential subscribers.
(b)
A cable service provider or video service provider that has been granted a state-issued certificate of franchise authority may not deny access to service to any group of potential residential subscribers because of the income of the residents in the local area in which such group resides.
(c)
An affected person may seek enforcement of the requirements described by subsection (b) by initiating a proceeding with the commission. The town within which the potential residential cable service or video service subscribers referenced in subsection (b) may be considered an affected person for purposes of this section.
(d)
The holder of a state-issued certificate of franchise authority shall have a reasonable period of time to become capable of providing cable service or video service to all households within the designated franchise area as defined in section 13.06.003(b)(4) and may satisfy the requirements of this section through the use of an alternative technology that provides comparable content, service, and functionality.
(e)
Notwithstanding any provision of this article, the commission has the authority to make the determination regarding the comparability of the technology and the service provided. Notwithstanding any provision of this article, the commission has the authority to monitor the deployment of cable services, video services, or alternate technology.
(Ordinance 22-009 adopted 9/12/2022)
(a)
Should the holder of a state-issued certificate of franchise authority be found by a court of competent jurisdiction to be in noncompliance with the requirements of this article, the court shall order the holder a state-issued certificate of franchise authority, within a specified reasonable period of time, to cure such noncompliance. Failure to comply shall subject the holder of the state-issued franchise of franchise authority to penalties as the court shall reasonably impose, up to and including revocation of the state-issued certificate of franchise authority granted under this chapter.
(b)
The town within which the provider offers cable service or video service shall be an appropriate party in any such litigation.
(Ordinance 22-009 adopted 9/12/2022)
(a)
Nothing in this article shall be interpreted to prevent a voice provider, cable service provider or video service provider, or the town from seeking clarification of its rights and obligations under federal law or to exercise any right or authority under federal or state law.
(b)
Nothing in this article shall limit the ability of the town under existing law to receive compensation for use of the public rights-of-way from entities determined not to be subject to all or part of this article, including but not limited to provider of Internet protocol cable or video services, unless such payments are expressly prohibited by federal law.
(Ordinance 22-009 adopted 9/12/2022)