The purpose and intent of this article is to:
(1) Establish
clear local guidelines, standards and time frames for the exercise
of local authority with respect to the use of city property and public
rights-of-way to provide telecommunications services within the city
by certificated telecommunications providers and by non-certificated
telecommunications providers;
(2) Permit
and manage reasonable access to the property and public rights-of-way
of the city for telecommunications purposes on a nondiscriminatory
and competitively neutral basis;
(3) Conserve
the limited physical capacity of the public rights-of-way held in
public trust by the city;
(4) Secure
fair and reasonable compensation on a nondiscriminatory and competitively
neutral basis to the city and the residents of the city for permitting
private use of city property and public rights-of-way by non-certificated
telecommunications providers;
(5) Assure
that all telecommunications carriers providing facilities or services
within the city comply with the police power based ordinances, rules
and regulations of the city intended to protect the health, safety
and welfare of the public; and
(6) Enable
the city to discharge its public trust consistent with rapidly evolving
federal and state regulatory policies, industry competition and technological
development.
(Ordinance 139, art. 1, sec. 1,
adopted 10/16/00)
For the purpose of this article, and the interpretation and
enforcement thereof, the following words and phrases shall have the
following meanings, unless the context of the sentence in which they
are used shall indicate otherwise:
Access line.
(1)
Category 1, which shall include both analog and digital residential
switched access lines. It shall also include point-to-point private
lines, whether residential or nonresidential, only to the extent such
lines provide burglar alarm or other similar security service;
(2)
Category 2, which shall include all analog and digital nonresidential
switched access lines; or
(3)
Category 3, which shall include all other point-to-point private
lines, whether residential or nonresidential, not otherwise included
within category 1.
Affiliate.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
Cable Act.
The Cable Communications Policy Act of 1984, 47 U.S.C. section
532 et seq., as now and hereafter amended.
Cable operator.
A telecommunications carrier providing or offering to provide
cable service within the city as that term is defined in the Cable
Act.
Certificated telecommunications provider.
A person who has been issued a certificate of convenience
and necessity (CCN), certificate of operating authority (COA), or
service provider certificate of operating authority (SPCOA) by the
public utility commission to offer local exchange telephone service.
City property.
All real property owned by the city, other than public right-of-way
as defined herein, and all property held in a proprietary capacity
by the city.
Commission.
The public utility commission of the state.
Excess capacity.
The volume or capacity in any existing or future duct, conduit,
manhole, hand-hole or other utility facility within the public right-of-way
that is or will be available for use for additional telecommunications
facilities.
FCC or Federal Communications Commission.
The federal administrative agency, or lawful successor, authorized
to regulate and oversee telecommunications carriers, services and
providers on a national level.
Grantee.
The person to whom or which a telecommunications franchise
is granted under this article, and the lawful successor, transferee,
or assignee of said person.
Law.
Any and all applicable laws, including but not limited to
the Communications Act of 1934, as amended by the Telecommunications
Act of 1996, Pub. L. No. 104-104 section 100 Stat. 70, codified at
47 U.S.C., and subsequent amendments, and all orders, rules, tariffs,
guidelines, and regulations issued by the Federal Communications Commission
or the governing state authority pursuant thereto, as well as all
applicable state and city law. The term “law” encompasses
statutory law, administrative regulations, and case law.
Overhead facilities.
Utility poles, utility facilities and telecommunications
facilities located above the surface of the ground, including the
underground supports and foundations for such facilities.
Person.
Corporations, companies, associations, joint stock companies
or associations, firms, partnerships, limited liability companies
and individuals, and includes their lessors, trustees and receivers.
Private line service.
A non-switched telephone circuit dedicated for use between
specific locations identified by an end-user customer.
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
municipality has an interest, and does not include the airwaves above
a right-of-way with regard to wireless telecommunications.
Public street or public roadway.
Any highway, street, bridge, tunnel, alley, parkway or walkway
for vehicular or pedestrian travel under the jurisdiction and control
of the city which has been acquired, established, dedicated or devoted
to purposes not inconsistent with telecommunications facilities.
Surplus space.
That portion of the usable space on a utility pole which
has the necessary clearance from other pole users to allow its use
by a telecommunications carrier for a pole attachment.
Telecommunications carrier.
Every telecommunications services provider that directly
or indirectly owns, controls, operates or manages plant, equipment
or property within the city, used or to be used for the purpose of
offering telecommunications service.
Telecommunications facilities.
The plant, equipment and property, including but not limited
to cables, wires, conduits, ducts, pedestals, poles, antennae, electronics
and other appurtenances, used or to be used to transmit, receive,
distribute, provide or offer telecommunications service.
Telecommunications service.
The providing or offering for rent, sale or lease, or in
exchange for other value received, of the transmittal of, or of telecommunications
facilities for the transmittal of, voice, data, images, graphics and
other communications between or among points by wire, fiber optics
or similar facilities, but does not include the provision to the public
of any service expressly found by law not to constitute a “telecommunications”
service. Telecommunications service may be provided by both certificated
telecommunications providers and non-certificated telecommunications
providers.
Telecommunications services provider or provider.
Every person who provides telecommunications services, regardless
of whether certificated or not certificated by the public utility
commission of the state and regardless of whether such person owns,
controls, operates or manages plant, equipment or property within
the city used or to be used for the purpose of offering telecommunications
service.
Underground facilities.
Utility facilities and telecommunications facilities located
under the surface of the ground, excluding the underground foundations
or supports for overhead facilities.
Usable space.
The total distance between the top of a utility pole and
the lowest possible attachment point that provides the minimum necessary
vertical clearance.
Utility easement.
Any easement owned by the city and acquired, established,
dedicated or devoted for public utility purposes not inconsistent
with telecommunications facilities.
Utility facilities.
The plant, equipment and property, including but not limited
to the poles, pipes, mains, conduits, ducts, cables, wires, plant
and equipment, located under, on or above the surface of the ground
within city property or public rights-of-way and used or to be used
for the purpose of providing utility or telecommunications services.
(Ordinance 139, art. 1, sec. 2,
adopted 10/16/00)
Except as otherwise provided herein, all telecommunications
carriers and providers engaged in the business of transmitting, supplying
or furnishing of telecommunications services originating and/or terminating
in the city shall register with the city pursuant to division 2 of
this article.
(Ordinance 139, art. 1, sec. 3,
adopted 10/16/00)
Any telecommunications carrier who is not a certificated telecommunications
provider desiring to construct, install, operate, maintain or otherwise
locate telecommunications facilities in, under, over or across any
city property or public rights-of-way for the purpose of providing
telecommunications services within the city shall first obtain a franchise
authorizing and regulating the use of such city property and public
rights-of-way pursuant to division 3 of this article.
(Ordinance 139, art. 1, sec. 4,
adopted 10/16/00)
Except as otherwise provided herein, any telecommunications
carrier who desires to construct, install, operate, maintain or locate
telecommunications facilities on city property or in any public right-of-way
for the purpose of providing cable service to persons in the city
shall first obtain a cable service franchise from the city as provided
in the city’s current cable franchise ordinances in effect at
the time the cable service franchise is sought.
(Ordinance 139, art. 1, sec. 5,
adopted 10/16/00)
This article shall have no effect on any existing franchise
ordinance or franchise agreement with a non-certificated telecommunications
provider or with a telecommunications provider who has opted to leave
its existing franchise in place pursuant to section 283.054, Local
Government Code, until the expiration of said franchise ordinance
or agreement.
(Ordinance 139, art. 1, sec. 6,
adopted 10/16/00)
Any person found guilty of violating, disobeying, omitting,
neglecting or refusing to comply with any of the provisions of this
article after receiving written notice of same from the mayor or his
or her designated representative shall be fined not less than one
hundred dollars ($100.00) nor more than five hundred dollars ($500.00)
for each offense. A separate and distinct offense shall be deemed
committed each day on which a violation occurs or continues.
(Ordinance 139, art. 1, sec. 7,
adopted 10/16/00)
A grantee shall not be excused from complying with any of the
terms and conditions of this article or the grantee’s franchise
agreement by any failure or omission of the city upon any one or more
occasions to insist upon, enforce, or otherwise seek compliance with
any such terms and conditions.
(Ordinance 139, art. 1, sec. 8,
adopted 10/16/00)
Nothing in this article shall be construed as limiting any remedies
that the city or a grantee may have, under the law, for enforcement
of this article.
(Ordinance 139, art. 1, sec. 9,
adopted 10/16/00)