The purpose of this article is to:
(1) Assist
the city in the management of the rights-of-way;
(2) Govern
the use and occupancy of the rights-of-way by telecommunications and
network providers;
(3) Secure
fair and reasonable compensation for the use and occupancy of the
rights-of-way by providers in a nondiscriminatory and competitively
neutral manner; and
(4) Assist
the city in its efforts to protect the public health, safety and welfare.
(Ordinance of adopted 8/24/2017, § II(49-11))
(a) A network
provider is not required to obtain a construction permit, or pay a
rate to the city for:
(1) Routine
maintenance that does not require excavation or closing of sidewalks
or vehicular lanes in a public right-of-way;
(2) 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
(3) 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.
(b) 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))
(a) 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.
(b) 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.
(c) 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.
(d) 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))
(a) 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.
(b) 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 node1, 4
|
Network nodes
|
$500.00 for first 5 nodes, $250.00 for each additional node
|
$250.00 per year per node2, 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.
|
(c) 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.
(d) 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))
(a) 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:
(1) Obstruct,
impede, or hinder the usual travel or public safety on a public right-of-way;
(2) Obstruct
the legal use of a public right-of-way by other utility providers;
(3) 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).
(b) 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.
(c) 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.
(d) 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))
(a) 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.
(b) 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.
(c) 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.
(d) Documents
required for application.
The provider shall provide
the following information in its permit applications:
(1) 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;
(2) Location
map that includes all other structures within 300 feet of the proposed
location;
(3) 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:
(1) For
network nodes and node support poles: No later than 30 days after
the date the city receives the permit application.
(2) 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:
(1) For
network nodes: No later than 60 days after the date the mayor receives
the complete application.
(2) For
network support poles: No later than 150 days after the date the city
receives the complete application.
(3) 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.
(1) 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.
(2) 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))
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))
(a) 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.
(b) 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.
(c) Expense
and timelines for relocation.
Except as otherwise provided
in existing state and federal law, upon notice from the city, a network
provider shall relocate or adjust network nodes in a public right-of-way
in a timely manner and without cost to the municipality managing the
public right-of-way.
(Ordinance of adopted 8/24/2017, § II(49-18))
In the event this chapter, or any tariff or other provision
that authorizes permit holders to recover the fee provided for in
this chapter 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.
(Ordinance of adopted 8/24/2017, § II(49-19))
Where this article conflicts with any other provision of this
Code, this article shall control.
(Ordinance of adopted 8/24/2017, § II(49-20))