City of Brookshire, TX TELECOMMUNICATIONS AND WIRELESS FACILITIES

A network provider is not required to obtain a construction permit, or pay a rate to the city for:

Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

Replacing or upgrading a network node or network pole with a node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way; or

The installation, placement, maintenance, operation, or replacement of micro network nodes that are strung on cables between existing poles or node support poles in compliance with the National Electrical Safety Code.

At least a 24-hour advance written notice to the city of work performed under this section is required, including proof that the network provider is acting with approval of a pole's owner; and proof that the size limitations may not in any event exceed the parameters prescribed by this chapter and the city's design manual set forth in article IV of this chapter.

(Ordinance of adopted 8/24/2017, § II(49-12))

§ 45-53 General terms.

Permit rights apply to permit holder only.

The rights granted by this chapter inure to the benefit of the permit holder only. The rights granted by permit may not be assigned, transferred, or sold to another by the permit holder. 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 permit holder.

Not exclusive.

No rights agreed to in this chapter 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.

Deed restrictions.

A provider installing facilities in a public right-of-way shall comply with private deed restrictions and other private restrictions in the area.

Cable service not authorized by permit.

A permit holder is not authorized to provide cable service as a cable operator in the city under this chapter, but must first obtain a franchise agreement from the city for that purpose, under such terms and conditions as may be required by law. A permit for the installation, placement, maintenance, or operation of a network node or transport facility under this chapter shall not confer authorization to provide cable service or video service, as defined by V.T.C.A., Utilities Code § 66.002, or information service as defined by 47 USC 153(24), or wireless service as defined by 47 USC 153(53), in the public right-of-way.

(e)

Interference not permitted; notice and time for correction of interference.

A network provider shall ensure that the operation of a network node does not cause any harmful radio frequency interference to a Federal Communications Commission-authorized mobile wireless operation of the municipality operating at the time the network node was initially installed or constructed. On written notice, a network provider shall take all steps reasonably necessary to remedy any harmful interference. If a network provider fails to correct any harmful interference within 60 days of written notice, the city may upon 14-day advance written notice revoke any and all permits for the network node.

(f)

Permit limited.

A permit provided under this chapter does not provide authorization for attachment of network nodes on poles and other structures owned or operated by investor-owned electric utilities, as defined by V.T.C.A., Utilities Code § 31.002, electric cooperatives and telephone cooperatives, as defined by V.T.C.A., Utilities Code § 162.003, or wireless providers, as defined by V.T.C.A., Utilities Code § 51.002.

(g)

Other requirements.

The city may impose additional requirements on the activities of providers in the public right-of-way to the extent that the regulations are reasonably necessary to protect the health, safety, and welfare of the public.

(Ordinance of adopted 8/24/2017, § II(49-13))

§ 45-54 Compensation.

Construction permit fee.

The applicant shall pay to the city a construction permit fee that is calculated as of the date of application for permit by applying the appropriate permit fee to each of the facilities included in the application, in accordance with the city's design manual pursuant to article IV of this chapter, not to exceed the values provided in the table in subsection (b) of this section.

Rights-of-way fee.

The permit holder shall pay to the city a rights-of-way fee that is calculated as of month-end for access lines and as of year-end for all other facilities by applying the appropriate fee to each facility type owned, placed, or maintained by the permit holder. The rights-of-way fee for access lines shall be as proscribed by the state public utilities commission. Rights-of-way fees for all facilities other than access lines shall be prorated for the first year in which a construction permit fee is paid, and shall be paid at the time of the permit application.

Equipment Type	Construction Permit Fee	Rights-of-Way Fee
Transport facilities	$500.00 for first 5 nodes, $250.00 for each additional node	$28.00 per month per node^{1, 4}
Network nodes	$500.00 for first 5 nodes, $250.00 for each additional node	$250.00 per year per node^{2, 3}
Node support poles	$1,000.00 per pole	$250.00 per year per pole²

Notes:
¹	Unless equal or greater amount is paid under V.T.C.A., Local Government Code ch. 283 or V.T.C.A., Utilities Code ch. 66.
²	As adjusted by an amount equal to one-half the annual change, if any, in the consumer price index. The city shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the city on or after the 60th day following the written notice.
³	Collocated network nodes on city service poles shall also pay an annual collocation fee at a rate not greater than $20.00 per year per service pole.
⁴	A network provider may not install its own transport facilities unless the provider: (i) Has a permit to use the public right-of-way; and (ii) Pays to the city a monthly public right-of-way rate for transport facilities in an amount equal to $28.00 multiplied by the number of the network provider's network nodes located in the public right-of-way for which the installed transport facilities provide backhaul unless or until the time the network provider's payment of fees to the city exceeds its monthly aggregate per-node compensation to the city. A network provider that wants to connect a network node to the network using the public right-of-way may: (i) Install its own transport facilities as provided in this section; or (ii) Obtain transport service from a person that is paying municipal fees to occupy the public right-of-way that are the equivalent of not less than $28.00 per node per month. A public right-of-way rate required by this section is in addition to any other public right-of-way rate required by the city.

Annexation and disannexation.

Within 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 user 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 chapter, a permit holder shall start including or excluding facilities within the affected area in the permit holder's count of facilities within 30 days of notice of the annexation or disannexation.

Telecommunication service provider's uncollectibles.

The city and telecommunications service provider understand and agree that the telecommunications service provider 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 chapter notwithstanding, the telecommunications service provider shall not be obligated to pay the city for any access lines for which revenues remain uncollectible.

(e)

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 (b) 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 chapter 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 permit holder provides a copy of the signed statement to the city, then permit holder is absolved of all responsibility for the line fees payable on the services, unbundled network facilities, and other facilities rebundled for the creation of telecommunications service for sale within the city.

(f)

Fee application to leased facilities.

Pursuant to V.T.C.A., Utilities Code § 54.206, a telecommunications service provider may collect the line fee imposed by the city pursuant to this chapter 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. 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 permit holder to provide the information to the city. Any other provision of this chapter notwithstanding, however, a telecommunications service provider 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 permit holder's service or facilities for the provision of telecommunications service to end-user customers.

(Ordinance of adopted 8/24/2017, § II(49-14))

§ 45-55 Construction and maintenance of facilities.

Construction requirements.

Except where otherwise provided by state law, a provider shall construct and maintain facilities in accordance with the design manual to ensure facilities do not:

Obstruct, impede, or hinder the usual travel or public safety on a public right-of-way;

Obstruct the legal use of a public right-of-way by other utility providers;

Violate nondiscriminatory applicable codes;

(4)

Violate or conflict with the city's publicly disclosed public right-of-way design specifications; or

(5)

Violate the federal Americans with Disabilities Act of 1990 (ADA).

Design manual; separate agreements.

Facilities to which this chapter applies must conform to the specifications required by the design manual. 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 chapter 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 wireless utility or authorized to offer cable service within the city.

Requests for temporary moves.

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 48 hours advance notice to arrange for such temporary rearrangements.

Tree trimming.

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 of adopted 8/24/2017, § II(49-15))

§ 45-56 Administration.

Reasonable inquiries.

The city may, at any time, make reasonable inquiries pertaining to the terms, conditions, rights and obligations of this chapter, and the permit holder shall respond to such inquiries on a timely basis.

FCC/PUC documents.

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.

Consolidated permit application.

A network provider that wants to install or collocate multiple network nodes inside the limits of the city is entitled to file a consolidated permit application with the city for not more than 30 network nodes.

Documents required for application.

The provider shall provide the following information in its permit applications:

The name and address of the person to whom notices are to be sent, a 24-hour per day contact number for the applicant in case of emergency;

Location map that includes all other structures within 300 feet of the proposed location;

Applicable construction and engineering drawings and information to confirm that the applicant will comply with the city's design manual and applicable codes;

(4)

A certificate that the network node complies with applicable regulations of the Federal Communications Commission;

(5)

Certification that the proposed network node will be placed into active commercial service by or for the network provider not later than the 60th day after the date of construction and final testing of each network node is completed;

(6)

A certificate of insurance that provides that the provider and its contractor has at least $1,000,000.00 in general liability coverage;

(7)

An industry standard pole load analysis certified by a licensed engineer;

(8)

Geotechnical survey for any proposed new pole;

(9)

Specific location information, including geographic positioning system coordinates;

(10)

A complete application and supporting documents for conditional use permit or other land use approval where required by the design manual;

(11)

Proof of payment of the construction permit fee and prorated rights-of-way fee for the remaining portion of the current calendar year; and

(12)

Any additional information reasonably related to the provider's use of the public rights-of-way to ensure compliance with the design manual and this chapter.

(e)

Determination of application completeness.

The city shall determine whether the permit application is complete and notify the applicant of that determination:

For network nodes and node support poles: No later than 30 days after the date the city receives the permit application.

For a transport facility: No later than ten days after the date the city receives the permit application.

(f)

Approval or denial of application.

The city shall approve or deny a completed application after the date it is submitted to the city:

For network nodes: No later than 60 days after the date the mayor receives the complete application.

For network support poles: No later than 150 days after the date the city receives the complete application.

For transport facilities: No later than 21 days after the city receives the complete application.

(g)

Basis for denial of application.

If an application is denied by the city, it shall document the basis for the denial, including the specific applicable city code provisions or other city rules, regulations, or other law on which the denial is based. The documentation for the denial must be sent by electronic mail to the applicant on or before the date that the mayor denies the application.

(h)

Resubmission of denied application.

The permit holder may cure the deficiencies identified in the denial application.

The permit holder has 30 days from the date the city denies the completed application to cure the deficiencies identified in the denial documentation without paying an additional application fee, other than any fee for actual costs incurred by the city.

The city shall approve or deny the revised completed application after a denial not later than the 90th day after the mayor receives the revised completed application. The city's review shall be limited to the deficiencies cited in the denial documentation.

(Ordinance of adopted 8/24/2017, § II(49-16))

§ 45-57 Indemnification.

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 city.

(Ordinance of adopted 8/24/2017, § II(49-17))

§ 45-58 Relocation and removal of facilities.

Street widening or straightening.

In accordance with V.T.C.A., Utilities Code § 54.203(c), upon 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.

City's right to relocate.

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.