The purpose of this article is to:
(1)
Assist in the management of the public rights-of-way within the city;
(2)
Govern telecommunications service providers' use and occupancy of
the public rights-of-way within the city;
(3)
Secure compensation from telecommunications service providers for
the use and occupancy of the public rights-of-way within the city
in a non-discriminatory and competitively neutral manner.
(Ordinance 1281A adopted 8/9/1999)
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 switched transmission path of the transmission media within
the public 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.
As defined in the Cable Communications Policy Act of 1984,
as amended, 47 U.S.C. section 532 et seq.
The City of Stanton, Texas.
All ordinances, laws, rules, resolutions, 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 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 article.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint
stock company or association, and other such entity.
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. The term does not include the airwaves
above a right-of-way with regard to wireless telecommunications.
A public utility as that term is used in the Public Utility
Regulatory Act of 1995, Texas Utilities Code Ann. section 11.004,
including municipally owned and/or operated utilities.
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, 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.
Any person that supplies telecommunications service to others
within the corporate limits of the city in exchange for money or other
value.
As used in the Public Utility Regulatory Act of 1995, Texas
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.
A permit holder's acquisition, installation, construction,
reconstruction, maintenance, repair, control, or operation of any
facilities within the public rights-of-way for any purpose whatsoever.
(Ordinance 1281A adopted 8/9/1999)
Any person that owns, places, or maintains facilities within the public rights-of-way shall first obtain a permit pursuant to the terms of this article. Subject to the restrictions set forth herein, the city under this article 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, a permit holder acknowledges its legal obligation to abide by the reasonable terms of this article in its use of the public rights-of-way in the provision of access lines 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 10.04.005(c) of this article.
(Ordinance 1281A adopted 8/9/1999)
(a)
No rights agreed to in this article by the city shall be exclusive
and the city reserves the right to grant franchises, licenses, easements
or permissions to use the public 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)
A permit holder 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 by law.
(c)
The initial term of each permit issued under this article shall be
one (1) year from the date of issuance. At the expiration of the initial
permit period, the permit shall be automatically extended for successive
periods of one (1) year, unless the city gives written notice of intent
to terminate the permit to permit holder not less than ninety (90)
days prior to the end of the then-current period or the permit holder
sends notice of its intent to terminate its obligations under the
permit. When such notice is given, the permit shall terminate at the
expiration of the then-current period.
(d)
The rights granted by this article inure to the benefit of a permit
holder licensed hereunder. The rights granted by the issuance of a
permit shall not be assigned, transferred, or sold to another by a
permit holder without the express written consent of the city. Any
such consent by the city shall not be withheld unreasonably.
(Ordinance 1281A adopted 8/9/1999)
(a)
Rights-of-way fee.
A 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 a permit holder that is activated for use by an end-user or for
another telecommunications service provider that uses a 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 as established by the city.
(b)
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 a 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 a permit holder's access lines within the
city that are activated for end-user customers and telecommunications
service providers. Upon written request, a 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 public rights-of-way,
lines terminating at customers' 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 each 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 article, a permit
holder shall start including or excluding access lines within the
affected area in a permit holder's count of access lines (i) on the
effective date designated by the state comptroller of public accounts
for the imposition of state and local sales and use taxes, or (ii)
thirty (30) days after the date on which a permit holder is notified
by the city of the annexation or disannexation, whichever date is
later.
(d)
Confidential records.
If a 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 a permit holder's
confidential information, reports, documents, or writings, the city
shall notify a permit holder of the request in writing by facsimile
transmission. The city shall request and obtain an attorney general's
opinion before disclosing any confidential information, reports, documents
or writings and will furnish a permit holder with copies of attorney
general opinion requests it makes pertaining to a 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 public
rights-of-way against persons operating businesses similar to that
of a permit holder. Further, such rights-of-way fee shall constitute
full compensation to the city for all of a permit holder's facilities
located within the public 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.
A 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.
A 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 public rights-of-way. Any other
provision of this article notwithstanding, a 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 creating 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 provided. Such direct payment to the city is necessary because it is only the person creating the services 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 non-discriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this article notwithstanding, a 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 the provision of telecommunications services, if the telecommunications service provider that is providing the telecommunications services to end user customers has provided a signed statement to a permit holder that the telecommunications service provider is paying the access line fees applicable to those services directly to the city. If a permit holder provides a copy of the signed statement to the city, then a permit holder is absolved of all responsibility for the line fees payable on the telecommunications service, unbundled network elements, and other facilities used in the provision of those telecommunications services within the city.
(i)
Fee application to leased facilities.
Pursuant to Texas
Utilities Code section 54.206, a permit holder 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 other persons who are leasing, reselling or otherwise using a
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 a 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, a permit holder may bill the person on the basis of the
information provided. A 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 city first obtains written
permission of such other person for a permit holder to provide the
information to the city. Any other provision of this article notwithstanding,
however, a permit holder shall not be liable for underpayment of line
fees resulting from a permit holder's reliance upon the written information
provided by any person that uses a permit holder's service or facilities
for the provision of telecommunications service to end-user customers.
(Ordinance 1281A adopted 8/9/1999; Ordinance adopting 2024 Code)
(a)
The location and route of all facilities and transmission media placed
and constructed in the public rights-of-way shall be subject to the
lawful, reasonable, non-discriminatory, 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 permit holder's facilities
of any electric light or power wires or communications facilities
or other systems not owned by a 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 a permit holder's
facilities, then a further separate, noncontingent agreement with
a permit holder shall be required. Nothing contained in this article
shall obligate a permit holder to exercise or restrict a 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 public rights-of-way disturbed by a 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 public rights-of-way by pedestrian and vehicular
traffic, and public 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, a 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 party or parties requesting
them shall pay the expense of such temporary rearrangements, and a
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)
Permit holders and their respective contractors and agents have the
right, permission and license to trim trees upon and overhanging the
public rights-of-way to prevent trees from coming in contact with
a 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 1281A adopted 8/9/1999)
(a)
In accordance with Texas Utilities Code Ann. section 54.203(c),
upon thirty (30) days' notice by the city, a permit holder shall begin
relocation of its facilities within the public 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 a permit holder's facilities along the public rights-of-way.
(b)
The city retains the right to move any facilities within the public
rights-of-way to cure or otherwise address a public health or safety
emergency. The city shall cooperate to the extent possible with a
permit holder in such instances to assure continuity of service and
to afford to a permit holder the opportunity to make such relocation
itself.
(Ordinance 1281A adopted 8/9/1999)
(a)
A permit holder shall indemnify and hold the city 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 permit holder, any agent, officer, director,
representative, employee, affiliate, or subcontractor of the permit
holder, or their respective officers, agents, employees, directors,
or representatives, while installing, repairing, or maintaining facilities
in the public rights-of-way. The indemnity provided by this subsection
does not apply to any liability resulting from the negligence of the
city, its officers, employees, contractors, or subcontractors. If
a permit holder and the city 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 city under state law and
without waiving any defenses of the parties under state law. This
section is solely for the benefit of the city and the permit holder
and does not create or grant any rights, contractual or otherwise,
to any other person or entity.
(b)
A permit holder or the city shall promptly advise the other in writing
of any known claim or demand against the permit holder or the city
related to or arising out of the permit holder's activities in the
public rights-of-way.
(Ordinance 1281A adopted 8/9/1999)
(a)
The city may, at any time, make reasonable inquiries pertaining to
the terms, conditions, rights and obligations of this article, and
a permit holder shall respond to such inquiries on a timely basis.
(b)
Copies of petitions, applications, and reports submitted by a 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 a permit holder, the city may establish,
to the extent permitted by law, such reasonable and non-discriminatory
rules and regulations as may be appropriate for the administration
of this article and the construction of a permit holder's facilities
in the public rights-of-way, so long as those rules and regulations
are competitively neutral.
(Ordinance 1281A adopted 8/9/1999)
This article shall be construed in accordance with the city
code in effect on the date of passage of this article 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 of Texas.
(Ordinance 1281A adopted 8/9/1999)
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 article, including, but not limited
to, the payment of the line fee, and to apply substantively same requirements
governing their use and occupancy of the public rights-of-way.
(Ordinance 1281A adopted 8/9/1999)
Any permit holder that owns facilities already located within
the public rights-of-way on the date this article is enacted is hereby
granted a permit hereunder; however, within thirty (30) days from
the effective date of this article 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 public 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 state public utility
commission 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 applicant.
(Ordinance 1281A adopted 8/9/1999)
(a)
The city shall deliver a properly certified copy of this article
to a 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 1281A adopted 8/9/1999)
