Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Carter H.B. No. 3321
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provision of telecommunication service within
1-3 municipalities; prohibiting discrimination in the use of public
1-4 rights-of-way; establishing the requirements for use of public
1-5 right-of-way; and relating to permissible fees and charges for
1-6 engaging in business and using public rights-of-way and pole
1-7 attachments within municipalities.
1-8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-9 SECTION 1. This Act shall be known as the Telecommunications
1-10 Access to Right-of-Way Act of 1997.
1-11 SECTION 2. Subtitle A, Title III, Public Utility Regulatory
1-12 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes), is
1-13 amended by adding new Subsections 3.002(1), 3.002(9) and 3.002(11)
1-14 as follow and renumbering all succeeding Subsections of 3.002
1-15 accordingly:
1-16 (1) "Access line" means:
1-17 (A) each access line consisting of transmission
1-18 facilities located between the end user customer's premises network
1-19 interface within the municipality and the telecommunications
1-20 utility's serving facilities (including central office facilities,
1-21 distribution frame facilities or other similar facilities) that
1-22 allow delivery of telecommunications services wholly within the
1-23 municipality;
1-24 (B) each private line channel termination point
2-1 or points of a non-switched telephone circuit dedicated for use
2-2 between specific locations wholly within the municipality
2-3 identified by an end user customer; and
2-4 (C) each local loop, or any part there of
2-5 provided to a telecommunications utility.
2-6 (9) "Municipality" means all general law, special law
2-7 and home-rule municipalities, any other municipalities identified
2-8 in the Texas Local Government Code, and all other municipal
2-9 corporations, regardless of how organized or chartered, in the
2-10 state.
2-11 (11) "Public right-of-way" includes all types of
2-12 public highway, roads, and street, public cartways, alleyways,
2-13 easements; conduits, pathways, means of ingress or egress, and
2-14 other dedicated rights-of-way and utility easements of the state or
2-15 any municipalities.
2-16 SECTION 3. Subtitle F, Title III, Public Utility Regulatory
2-17 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes), is
2-18 amended by adding Sections 3.270 through 3.278 as follows:
2-19 Sec. 3.270. POLICY; PUBLIC RIGHT-OF-WAY. (a) The
2-20 legislature declares that it is the policy of the state of Texas to
2-21 encourage competition among various telecommunication utilities, to
2-22 reduce the barriers to entry for such telecommunications utilities,
2-23 to encourage competition in the local exchange telecommunications
2-24 market within municipalities and to ensure that consumers benefit
2-25 from such competition and expansion.
2-26 (b) The legislature finds that to require telecommunications
2-27 utilities to seek authority on an individual basis from every
2-28 municipality within the state for access to or use of public
2-29 right-of-way or to otherwise provide telecommunications service
2-30 within such subdivision is unreasonable, impractical and unduly
3-1 burdensome. In addition the legislature further finds and declares
3-2 that, since the public rights-of-way are dedicated to and held on a
3-3 nonproprietary basis in trust for the use of the public, their use
3-4 by telecommunications utilities is consistent with that policy and
3-5 appropriate for the public good.
3-6 (c) The legislature further finds, determines, and declares
3-7 that this act alters the authority of municipalities of the state
3-8 to lawfully exercise their powers, including police powers, with
3-9 respect to activities of telecommunications utilities within their
3-10 boundaries to the extent that:
3-11 (1) access to public rights-of-way and oversight of
3-12 that access must be competitively neutral; and
3-13 (2) no telecommunications utility should enjoy a
3-14 competitive advantage or suffer a competitive disadvantage by
3-15 virtue of a selective or discriminatory exercise of the police
3-16 power by a municipality; and
3-17 (3) no telecommunications utility should suffer a
3-18 barrier to entry or be impaired in its ability to offer a
3-19 telecommunications service as a result of a municipality's use of
3-20 its position to impose unjust, discriminatory or unreasonable terms
3-21 of service, compensation, taxes, franchise or permit fees or other
3-22 forms of remuneration for the provision of telecommunications
3-23 service or access or use of public right-of-way within the
3-24 municipality.
3-25 Sec. 3.271. USE OF PUBLIC RIGHTS-OF-WAY, DISCRIMINATION
3-26 PROHIBITED, CONTENT REGULATION PROHIBITED. (a) A
3-27 telecommunications utility authorized to do business under the laws
3-28 of this state may construct, maintain, and operate conduit, cable,
3-29 switches, and related appurtenances and other facilities along,
3-30 across, upon, above and under any public right-of-way of the state
4-1 and the municipalities as permitted by the terms of this Act.
4-2 (b) No municipality shall discriminate among or grant a
4-3 preference to competing telecommunications utilities when issuing a
4-4 permit or enacting an ordinance or regulation for the use of public
4-5 rights-of-way implementing the terms of this Act, nor create or
4-6 erect any requirement which is unreasonable or inconsistent with
4-7 the terms of this Act for the provision of telecommunications
4-8 service or access to or use of the public rights-of-way by
4-9 telecommunications utilities.
4-10 (c) No municipality shall regulate telecommunications
4-11 utilities based upon the content or type of signals that are
4-12 carried or capable of being carried over the utility's facilities,
4-13 nor shall any municipality regulate telecommunications utilities as
4-14 to rates or terms of service to customers.
4-15 (d) This Act does not grant to or create in any municipality
4-16 any administrative, regulatory or police power or other authority
4-17 over any telecommunications utility which has not heretofore
4-18 existed.
4-19 Sec. 3.272. PUBLIC RIGHT-OF-WAY ACROSS STATE LANDS. A
4-20 telecommunications utility authorized to do business under the laws
4-21 of this state may construct, maintain, and operate lines of
4-22 communication, switches, and related facilities and obtain
4-23 permanent rights-of-way for these facilities over, upon, above,
4-24 under and across all public lands owned by or under the control of
4-25 the state, upon compliance with such reasonable conditions as may
4-26 be required by the State.
4-27 Sec. 3.273. CONSENT NECESSARY TO USE RIGHT-OF-WAY OF
4-28 MUNICIPALITIES. (a) Telecommunications utilities may erect poles
4-29 or construct conduit, cable, switches, or related appurtenances and
4-30 facilities along, through, in, on, above, under, or over a public
5-1 right-of-way and otherwise access and use public right-of-way
5-2 within a municipality for the provision of telecommunications
5-3 services wholly within the municipality and begin providing such
5-4 services upon execution of a standardized agreement consistent with
5-5 the terms of this act for the municipality. The standardized
5-6 agreement is to be developed and utilized on a statewide basis by
5-7 interested municipalities in concert with affected
5-8 telecommunications utilities. Disputes by such parties regarding
5-9 the standardized terms shall be resolved by the commission.
5-10 (b) Telecommunications utilities that do not utilize poles
5-11 or construct conduit, cable, switches, or related appurtenances and
5-12 facilities along, through, in, on, above, under, or over a public
5-13 right-of-way within a municipality for the provision of
5-14 telecommunications services wholly within the municipality may
5-15 begin providing such services without the need to execute a
5-16 standardized agreement with the municipality. Notwithstanding any
5-17 other provision of law, a municipality shall not subject such
5-18 utility to any registration, permit or consent requirement or to
5-19 any requirement to pay compensation, franchise or permit fee or
5-20 other form of remuneration for the right to provide service in the
5-21 municipality.
5-22 (c) Terms of the standardized agreement conditioning or
5-23 limiting the use of a public right-of-way within a municipality
5-24 must be based upon a lawful exercise of the police power of the
5-25 municipalities, must be exercised in a competitively neutral
5-26 manner, must not unduly impair competition and must not be
5-27 unreasonably restrictive. The standardized agreement and
5-28 registration must be consistent with the requirements of the
5-29 federal Telecommunications Act of 1996.
5-30 Sec. 3.274. PERMISSIBLE FEE. (a) No municipality shall
6-1 levy a fee, expense, tax or other charge for any right or privilege
6-2 or providing telecommunications service within the municipality
6-3 other than a per access line fee calculated on the following terms
6-4 and imposed on individual telecommunications utilities which have
6-5 executed a standardized agreement with the municipality imposing
6-6 the fee, expense or tax:
6-7 (1) the aggregate access line fee from all
6-8 telecommunications utilities which have executed standardized
6-9 agreements with a municipality shall provide no more revenue to the
6-10 municipality on an annual basis than was provided by the fees,
6-11 including franchise, permit, licenses or other fees, received by
6-12 the municipality from certificated providers of local exchange
6-13 telecommunications services for calendar year 1996;
6-14 (2) the amount of the access line fee paid by each
6-15 telecommunications utility to a municipality shall be based on the
6-16 percentage of access lines served by the telecommunications utility
6-17 relative to the total number of access lines served by all
6-18 telecommunications utilities within the boundaries of that
6-19 municipality.
6-20 (3) Whenever a reseller telecommunications utility
6-21 that resells the service and facilities of an underlying
6-22 telecommunications utility executes a standardized agreement with a
6-23 municipality, then the reseller telecommunications utility shall
6-24 provide a copy of that standardized agreement to the underlying
6-25 telecommunications utility from which it purchases services and
6-26 facilities for resale. On the beginning of the next billing period
6-27 after the effective date of that standardized agreement, the
6-28 underlying telecommunications utility shall cease applying the per
6-29 line access line fee to the services and facilities provided to the
6-30 reseller telecommunications utility for resale purposes; on the
7-1 beginning of the next billing period after the effective date of
7-2 that standardized agreement, the reseller telecommunications
7-3 utility shall pay the per line access line fee directly to the
7-4 municipality in accordance with "(2)" above for each of the access
7-5 lines that it provides via resale of services of facilities, as
7-6 well as for each of the access lines that it provides via its own
7-7 facilities.
7-8 (b) A telecommunications utility shall provide for repair
7-9 and restoration of public right-of-way to its original condition if
7-10 necessitated by the installation or operation of telecommunications
7-11 facilities.
7-12 (c) The fee imposed by a municipality must be competitively
7-13 neutral among telecommunications utilities.
7-14 (d) The fee imposed may not be collected through the
7-15 provision of in-kind services by telecommunications utilities, nor
7-16 may any municipality require the provision of in-kind services as a
7-17 condition of consent to use a public right-of-way.
7-18 (e) The fee imposed by the municipality may not be based on
7-19 revenues received by the telecommunications utility.
7-20 (f) The terms of all agreements between municipalities and
7-21 telecommunications utilities regarding use of public rights-of-way
7-22 by telecommunications utilities are matters of public record and
7-23 must be made available upon request.
7-24 Sec. 3.275. POLE ATTACHMENT AGREEMENTS, LIMITATION ON
7-25 REQUIRED PAYMENTS. (a) No utility owned by or affiliated with a
7-26 municipality may request or receive from a telecommunications
7-27 utility, in exchange for a permission to attach telecommunications
7-28 devices to poles, conduits, or other municipal facilities, any
7-29 payment in excess of the amount that would be authorized if the
7-30 municipality's owned or affiliated utility were regulated pursuant
8-1 to United States Codes, Title 47, Section 224, as amended.
8-2 (b) No municipality may request or receive from a
8-3 telecommunications utility any in-kind payment in exchange for or
8-4 as a condition for granting permission to attach or incorporate
8-5 telecommunications facilities to or within municipal poles,
8-6 conduits or other municipal facilities. Any compensation requested
8-7 or received to attach or incorporate telecommunications facilities
8-8 to poles, conduits or other municipal facilities shall be
8-9 non-discriminatory and competitively neutral.
8-10 Sec. 3.276. APPEAL OF DISPUTES. The commission shall have
8-11 exclusive, original jurisdiction to enforce the terms of this Act
8-12 and to resolve all disputes between municipalities and
8-13 telecommunications utilities, including disputes related to the fee
8-14 to be imposed, pursuant to this Act.
8-15 Sec. 3.277. RECOVERY OF FEE. Telecommunications utilities
8-16 shall not recover the fee imposed by a municipality from customers
8-17 other than customers which reside within the boundaries of the
8-18 municipality. Such recovery may not be discriminatory as between
8-19 customer classes and may be shown as a separate line item on the
8-20 bill.
8-21 Sec. 3.278. CONFLICTS. This Act is intended to effectuate
8-22 substantive changes in existing law regarding the provision of
8-23 telecommunications service within municipalities and access to and
8-24 use of public right-of-way in municipalities. As such, in the
8-25 event of any express or implicit conflict or inconsistency between
8-26 this Act and existing law, this Act prevails and shall be
8-27 considered to amend such conflicting or inconsistent law.
8-28 SECTION 4. This Act takes effect on September 1, 1997.
8-29 SECTION 5. This Act expires on September 1, 2001.
8-30 SECTION 6. The importance of this legislation and the
9-1 crowded condition of the calendars in both houses create an
9-2 emergency and an imperative public necessity that the
9-3 constitutional rule requiring bills to be read on three several
9-4 days in each house be suspended, and this rule is hereby suspended.