By Wolens H.B. No. 1777 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the provision of local exchange telephone service in a 1-3 municipality and the management by the municipality of public 1-4 rights-of-way used by providers of that service. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Subtitle A, Title 9, Local Government Code, is 1-7 amended by adding Chapter 283 to read as follows: 1-8 CHAPTER 283. MANAGEMENT OF PUBLIC RIGHT-OF-WAY USED BY 1-9 TELECOMMUNICATIONS PROVIDER IN MUNICIPALITY 1-10 SUBCHAPTER A. GENERAL PROVISIONS 1-11 Sec. 283.001. STATE POLICY; PURPOSE. (a) It is the policy 1-12 of this state to: 1-13 (1) encourage competition in the provision of 1-14 telecommunications services; 1-15 (2) reduce the barriers to entry for providers of 1-16 services so that the number and types of services offered by 1-17 providers continue to increase through competition; 1-18 (3) ensure that providers of telecommunications 1-19 services do not obtain a competitive advantage or disadvantage in 1-20 their ability to obtain use of a public right-of-way within a 1-21 municipality; and 1-22 (4) fairly reduce the uncertainty and litigation 1-23 concerning franchise fees. 1-24 (b) It is also the policy of this state that municipalities: 2-1 (1) retain the authority to manage a public 2-2 right-of-way within the municipality to ensure the health, safety, 2-3 and welfare of the public; and 2-4 (2) receive from certificated telecommunications 2-5 providers fair and reasonable compensation for the use of a public 2-6 right-of-way within the municipality. 2-7 (c) The purpose of this chapter is to establish a uniform 2-8 method for compensating municipalities for the use of a public 2-9 right-of-way by certificated telecommunications providers that: 2-10 (1) is administratively simple for municipalities and 2-11 telecommunications providers; 2-12 (2) is consistent with state and federal law; 2-13 (3) is competitively neutral; 2-14 (4) is nondiscriminatory; 2-15 (5) is consistent with the burdens on municipalities 2-16 created by the incursion of certificated telecommunications 2-17 providers into a public right-of-way; and 2-18 (6) provides fair and reasonable compensation for the 2-19 use of a public right-of-way. 2-20 Sec. 283.002. DEFINITIONS. In this chapter: 2-21 (1) "Access line": 2-22 (A) means, unless the commission adopts a 2-23 different definition under Section 283.003, a unit of measurement 2-24 representing: 2-25 (i) each switched transmission path of the 2-26 transmission media that is physically within a public right-of-way 2-27 extended to the end-use customer's premises within the 3-1 municipality, that allows the delivery of local exchange telephone 3-2 services within a municipality, and that is provided by means of 3-3 owned facilities, unbundled network elements or leased facilities, 3-4 or resale; 3-5 (ii) each termination point or points of a 3-6 nonswitched telephone or other circuit consisting of transmission 3-7 media located within a public right-of-way connecting specific 3-8 locations identified by, and provided to, the end-use customer for 3-9 delivery of nonswitched telecommunications services within the 3-10 municipality; or 3-11 (iii) each switched transmission path 3-12 within a public right-of-way used to provide central office-based 3-13 PBX-type services for systems of any number of stations within the 3-14 municipality, and in that instance, one path shall be counted for 3-15 every 10 stations served; and 3-16 (B) may not be construed to include interoffice 3-17 transport or other transmission media that do not terminate at an 3-18 end-use customer's premises or to permit duplicate or multiple 3-19 assessment of access line rates on the provision of a single 3-20 service. 3-21 (2) "Certificated telecommunications provider" means a 3-22 person who has been issued a certificate of convenience and 3-23 necessity, certificate of operating authority, or service provider 3-24 certificate of operating authority by the commission to offer local 3-25 exchange telephone service. 3-26 (3) "Commission" means the Public Utility Commission 3-27 of Texas. 4-1 (4) "Consumer price index" means the annual revised 4-2 consumer price index for all urban consumers for Texas, as 4-3 published by the Federal Bureau of Labor Statistics. 4-4 (5) "Local exchange telephone service" has the meaning 4-5 assigned by Section 51.002, Utilities Code. 4-6 (6) "Public right-of-way" means the area on, below, or 4-7 above a public roadway, highway, street, public sidewalk, alley, 4-8 waterway, or utility easement in which the municipality has an 4-9 interest. The term does not include the airwaves above a 4-10 right-of-way with regard to wireless telecommunications. 4-11 Sec. 283.003. COMMISSION REVIEW. (a) Not later than 4-12 September 1, 2002, the commission shall determine whether changes 4-13 in technology, facilities, or competitive or market conditions 4-14 justify a modification in the commission-established categories of 4-15 access lines or, if necessary, the adoption of a definition of 4-16 "access line" provided by this section. The commission may not 4-17 begin a review authorized by this section before March 1, 2002. 4-18 (b) As part of the proceeding described by Subsection (a), 4-19 and as necessary after that proceeding, the commission by rule may 4-20 modify the definition of "access line" and the categories of access 4-21 lines as necessary to ensure competitive neutrality and 4-22 nondiscriminatory application and to maintain consistent levels of 4-23 compensation, as annually increased by growth in access lines and 4-24 consumer price index, as applicable, to the municipalities. 4-25 (c) After September 1, 2002, the commission, on its own 4-26 motion, shall make the determination required by this section at 4-27 least once every three years. 5-1 Sec. 283.004. APPLICATION. This chapter applies only to 5-2 municipal regulations and fees imposed on and collected from 5-3 certificated telecommunications providers. 5-4 Sec. 283.005. INFORMATION. (a) The commission may collect 5-5 and compile any information from certificated telecommunications 5-6 providers and municipalities as is necessary to implement this 5-7 chapter. 5-8 (b) The commission shall maintain the confidentiality of the 5-9 information described by Subsection (a) in accordance with Section 5-10 52.207, Utilities Code. 5-11 (c) Information provided to municipalities under this 5-12 chapter shall be governed by confidentiality procedures established 5-13 by the commission in compliance with Section 52.207, Utilities 5-14 Code. 5-15 Sec. 283.006. FEE REQUIREMENT FOR USE OF RIGHT-OF-WAY. (a) 5-16 Notwithstanding any other law, a certificated telecommunications 5-17 provider that does not use a public right-of-way within the 5-18 municipality may not be required to pay franchise fees, 5-19 right-of-way fees or any other fee or other compensation, other 5-20 than a fee or compensation excluded from the "base amount" under 5-21 Section 283.053(a), directly to the municipality to provide local 5-22 exchange telephone service in the municipality. 5-23 (b) This section does not affect the number of access lines 5-24 counted and reported to the commission under Section 283.055. 5-25 (c) The commission shall adopt rules to determine the method 5-26 of payment and to ensure that access line fees are paid on a 5-27 competitively neutral and non-discriminatory basis by certificated 6-1 telecommunications providers that provide more access lines than 6-2 they purchase from an underlying provider of resold services or 6-3 unbundled network elements. 6-4 (Sections 283.007-283.050 reserved for expansion 6-5 SUBCHAPTER B. RIGHT-OF-WAY FEES 6-6 Sec. 283.051. RIGHT-OF-WAY FEE. (a) Notwithstanding any 6-7 other law, a certificated telecommunications provider that provides 6-8 telecommunications services within a municipality is required to 6-9 pay as compensation to a municipality for use of the public 6-10 rights-of-way in the municipality only the amount determined by the 6-11 commission under Section 283.055. 6-12 (b) This section does not affect the right of a municipality 6-13 to initiate legal action against a certificated telecommunications 6-14 provider that uses a public right-of-way to provide local exchange 6-15 telephone service within a municipality and has not compensated the 6-16 municipality in accordance with this chapter. 6-17 (c) Fees imposed under this chapter shall constitute "a 6-18 municipal fee" or "municipal fees" within the meaning of the 6-19 Utilities Code. 6-20 Sec. 283.052. EFFECT OF PAYMENT OF RIGHT-OF-WAY FEES TO 6-21 MUNICIPALITY. (a) Subject to the requirements of Sections 283.056 6-22 and 283.057, a certificated telecommunications provider that 6-23 complies with this chapter and commission orders issued under this 6-24 chapter: 6-25 (1) may erect poles or construct conduit, cable, 6-26 switches, and related appurtenances and facilities and excavate 6-27 within a public right-of-way to provide telecommunications service; 7-1 and 7-2 (2) is not subject to municipal franchise 7-3 requirements. 7-4 (b) All use of a public right-of-way is nonexclusive and 7-5 subject to Section 283.056. 7-6 Sec. 283.053. BASE AMOUNT. (a) In determining a 7-7 municipality's "base amount" under this section, pole rental fees, 7-8 special assessments, and taxes of any kind, including ad valorem or 7-9 sales and use taxes, or other compensation not related to the use 7-10 of a public right-of-way, are not included. 7-11 (b) For purposes of determining the amount of a 7-12 municipality's right-of-way fee under Section 283.055, the "base 7-13 amount" for a municipality not described by another subsection is 7-14 the total amount of revenue received by the municipality in 7-15 franchise, license, permit, and application fees and in-kind 7-16 services or facilities from certificated telecommunications 7-17 providers in 1998 within the boundaries of the municipality, 7-18 including all newly annexed areas. The base amount prescribed 7-19 under this subsection shall include the municipal fee rate 7-20 escalation provisions and the value of in-kind services or 7-21 facilities received in 1998 in accordance with Subsection (f) 7-22 specifically prescribed in applicable agreements or ordinances 7-23 effective or adopted by January 12, 1999, unless the governing body 7-24 of the municipality elects otherwise. However, that additional 7-25 compensation may not become part of the base amount before it 7-26 becomes effective under the existing franchise agreement or 7-27 ordinance. 8-1 (c) The base amount for a municipality located in a county 8-2 with a population of less than 25,000 or a municipality that either 8-3 did not have an effective franchise agreement or ordinance on 8-4 January 12, 1999, or was not in existence on that date shall be, at 8-5 the election of the governing body of the municipality, equal to: 8-6 (1) an amount not greater than the statewide average 8-7 fee per line for each category of access line of the certificated 8-8 telecommunications provider with the greatest number of access 8-9 lines in that municipality, multiplied by the total number of 8-10 access lines in each category located within the boundaries of the 8-11 municipality on December 31, 1998, for a municipality in existence 8-12 on that date, or on the date of incorporation for a municipality 8-13 incorporated after that date; 8-14 (2) an amount not greater than the base amount 8-15 determined for a similarly sized municipality in the same or an 8-16 adjacent county in which the certificated telecommunications 8-17 provider with the greatest number of access lines in the 8-18 municipality is the same for each municipality; or 8-19 (3) the total amount of revenue received by the 8-20 municipality in franchise, license, permit, and application fees 8-21 from all certificated telecommunications providers in 1998. 8-22 (d) The base amount for a municipality that was involved in 8-23 litigation relating to franchise fees with one or more certificated 8-24 telecommunications providers during any part of 1998 and that, not 8-25 later than December 1, 1999, repeals any ordinance subject to 8-26 dispute in the litigation, voluntarily dismisses with prejudice any 8-27 claims in the litigation for compensation, and agrees to waive any 9-1 potential claim for compensation under any franchise agreement or 9-2 ordinance expired or in existence on September 1, 1999, is equal 9-3 to, at the municipality's election: 9-4 (1) an amount not to exceed the state average access 9-5 line rate on a per category basis for the certificated 9-6 telecommunications provider with the greatest number of access 9-7 lines in that municipality multiplied by the total number of access 9-8 lines located within the boundaries of the municipality on December 9-9 31, 1998, including any newly annexed areas; or 9-10 (2) an amount not to exceed 21 percent of the total 9-11 sales and use tax revenue, excluding any amount received under 9-12 Section 4A or 4B, Development Corporation Act of 1979 (Article 9-13 5190.6, Vernon's Texas Civil Statutes), or that imposed for a 9-14 municipal transit department under Chapter 453, Transportation 9-15 Code, received by the municipality in 1998. 9-16 (e) A litigating municipality electing to dismiss with 9-17 prejudice its claims in the litigation and repealing any ordinance 9-18 subject to dispute in the litigation does not, by making the 9-19 election, waive any defenses it may have to claims by other parties 9-20 to the litigation. A municipality in litigation relating to 9-21 franchise fees with one or more certificated telecommunications 9-22 providers during any part of 1998 that does not make an effective 9-23 election under Subsection (d) shall be governed by Subsection (b). 9-24 (f) For the purpose of determining the base amount, in-kind 9-25 services or facilities provided to municipalities under existing 9-26 franchise agreements or ordinances by certificated 9-27 telecommunications providers shall be valued at one percent of the 10-1 total 1998 revenue from franchise, permit, license, and application 10-2 fees paid to the municipality under all applicable 10-3 telecommunications franchise agreements or ordinances, unless a 10-4 municipality can establish before the commission that those 10-5 services or facilities received by the municipality had a greater 10-6 value in 1998. 10-7 Sec. 283.054. EXISTING FRANCHISE AGREEMENTS AND ORDINANCES. 10-8 (a) Except as otherwise provided by this chapter, this chapter 10-9 does not affect the validity of a franchise agreement or ordinance 10-10 with a certificated telecommunications provider executed before 10-11 January 12, 1999. A municipality may continue to enforce a 10-12 franchise agreement or ordinance and to collect franchise fees and 10-13 other charges under that franchise agreement or ordinance until the 10-14 date on which the agreement or ordinance expires by its own terms 10-15 or is terminated in accordance with the terms of this section. A 10-16 provider may elect to terminate a franchise agreement or 10-17 obligations under an existing ordinance as of the effective date of 10-18 the right-of-way fee rates adopted in accordance with the 10-19 commission's rules adopted under this chapter. A provider 10-20 terminating a franchise agreement or obligations under an existing 10-21 ordinance under this section shall become governed by this chapter 10-22 on the date of termination. A termination under this subsection 10-23 does not affect the calculation of the municipality's base amount 10-24 under Section 283.053. A certificated telecommunications provider 10-25 electing to terminate an existing franchise agreement or 10-26 obligations under an ordinance under this section shall provide 10-27 notice to the commission and the affected municipality not later 11-1 than December 1, 1999. 11-2 (b) If a franchise agreement or obligations under an 11-3 ordinance in a municipality expire or are terminated under 11-4 Subsection (a) before the commission has determined the amounts to 11-5 be paid to a municipality, the affected certificated 11-6 telecommunications providers operating in the municipality shall 11-7 continue paying at the rates required under the terms of the 11-8 expired agreement or ordinance until the commission's determination 11-9 and the certificated telecommunications provider's implementation 11-10 of appropriate rates under this chapter. 11-11 (c) During the period in which a franchise agreement or 11-12 ordinance described by Subsection (a) is in effect, a certificated 11-13 telecommunications provider not subject to an existing franchise 11-14 agreement or ordinance that wants to construct facilities to offer 11-15 telecommunications services in the municipality shall pay 11-16 right-of-way fees that are competitively neutral and 11-17 non-discriminatory, consistent with the charges of the most recent 11-18 agreement or ordinance between the municipality and the 11-19 certificated telecommunications provider serving the largest number 11-20 of access lines within the municipality. The provider shall pay 11-21 those fees for the duration of that agreement or ordinance or until 11-22 the right-of-way fees established by commission rule take effect. 11-23 If the existing franchise agreement or ordinance contains a 11-24 provision requiring in-kind services or facilities, the 11-25 certificated telecommunications provider not subject to an existing 11-26 franchise agreement or ordinance shall pay an amount equal to an 11-27 additional one percent of its total fees under the applicable 12-1 agreement or ordinance in lieu of any in-kind services or 12-2 facilities, if any, that otherwise are required under the terms of 12-3 the existing franchise agreement or ordinance. However, the 12-4 municipality may not require a certificated telecommunications 12-5 provider to provide any services or facilities without compensation 12-6 or at below-market rates for the right to use a public right-of-way 12-7 or to provide telecommunications services in the municipality. On 12-8 request of the certificated telecommunications provider not subject 12-9 to an existing franchise agreement or ordinance, the commission 12-10 shall convert the compensation under the existing franchise 12-11 agreement or ordinance to a fee per access line on a competitively 12-12 neutral and non-discriminatory basis, and the certificated 12-13 telecommunications provider may elect to pay the municipality on a 12-14 fee per access line basis rather than the manner of compensation 12-15 provided under the existing franchise agreement or ordinance. 12-16 Sec. 283.055. DETERMINATION OF FEES BY COMMISSION. (a) Not 12-17 later than November 1, 1999, the commission shall establish not 12-18 more than three categories of access lines for statewide use. 12-19 (b) Not later than March 1, 2000, the commission shall 12-20 establish: 12-21 (1) for each municipality, rates per access line by 12-22 category for the use of the rights-of-way in that municipality; 12-23 and 12-24 (2) the statewide average of those rates per access 12-25 line by category for each certificated telecommunications provider, 12-26 if necessary. 12-27 (c) The rates when applied to the total number of access 13-1 lines by category in the municipality shall be equal to the base 13-2 amount. 13-3 (d) Not later than December 1, 1999, a municipality that 13-4 wants to effect an allocation of the base amount over specific 13-5 access line categories to be assessed rates shall notify the 13-6 commission of the desired allocation. The commission shall 13-7 establish an allocation of the base amount over the categories of 13-8 access lines if a municipality does not file its proposed 13-9 allocation by December 1, 1999. A municipality may request a 13-10 modification of the commission's allocation not more than once 13-11 every 24 months by notifying the commission and all affected 13-12 certificated telecommunications providers in September of that year 13-13 that the municipality wants to change the allocation for the next 13-14 calendar year. A municipality's allocation shall be implemented 13-15 unless, on complaint by an affected certificated telecommunications 13-16 provider, the commission determines that the allocation is not just 13-17 and reasonable, is not competitively neutral, or is discriminatory. 13-18 (e) Rates imposed under this section and the allocation 13-19 among certificated telecommunications providers must be exercised 13-20 in a competitively neutral manner, may not unduly impair 13-21 competition, must be non-discriminatory, and must comply with state 13-22 and federal law. The commission shall determine the applicable 13-23 rates for each municipality for each category, taking into account 13-24 the allocation under Subsection (d) and the type, use, and function 13-25 of access lines. 13-26 (f) Certificated telecommunications providers shall pay to 13-27 the municipality a quarterly amount calculated monthly based on the 14-1 access line rates established by the commission under this section 14-2 and the number of access lines as reflected in the reports filed 14-3 under Subsection (j). The providers shall make the quarterly 14-4 payment not later than 45 days after the end of the quarter. 14-5 (g) Beginning 24 months after the date the commission 14-6 establishes rates per access line, the commission shall annually 14-7 adjust the rates per access line for each municipality by an amount 14-8 equal to one-half the annual change, if any, in the consumer price 14-9 index. At that time, the commission shall provide each 14-10 certificated telecommunications provider and municipality with the 14-11 adjusted monthly rates for each category of access line. 14-12 (h) On an annual basis, an affected municipality may provide 14-13 notice to the commission to decline all or any portion of any 14-14 increase in the per category access line rates. 14-15 (i) A certificated telecommunications provider may not be 14-16 required to remit a right-of-way fee to a municipality on those 14-17 access lines that have been resold, leased, or otherwise provided 14-18 to another certificated telecommunications provider, if the 14-19 underlying certificated telecommunications provider supplying those 14-20 services or facilities has been furnished with adequate proof that 14-21 the provider of services to the end-use customer will directly 14-22 remit to the municipality a right-of-way fee based on those access 14-23 lines. 14-24 (j) On a quarterly basis, each certificated 14-25 telecommunications provider shall file a report with the commission 14-26 that shows the number of access lines, including access lines by 14-27 category, that the provider has within each municipality at the end 15-1 of each month of the quarter. The provider shall include with the 15-2 report a certified statement from an authorized officer or duly 15-3 authorized representative of the provider stating that the 15-4 information contained in the report is true and correct to the best 15-5 of the officer's or representative's knowledge and belief after 15-6 inquiry. On request and subject to the confidentiality protections 15-7 of Section 283.005, each certificated telecommunications provider 15-8 shall provide each affected municipality with a copy of the report 15-9 required by this subsection. 15-10 (k) On request of the commission and to the extent 15-11 available, the report required by Subsection (j) shall specifically 15-12 identify access lines that are provided by means of resold 15-13 services or unbundled facilities to another certificated 15-14 telecommunications provider who is not an end-use customer and the 15-15 identity of the certificated telecommunications providers obtaining 15-16 the resold services or unbundled facilities to provide services to 15-17 end-use customers. A provider may not include in its monthly count 15-18 of access lines and is not required to remit a right-of-way fee to 15-19 the municipality on access lines that are resold, leased, or 15-20 otherwise provided to another certificated telecommunications 15-21 provider if the provider receives adequate proof that the provider 15-22 leasing or purchasing the access lines will include the access 15-23 lines in its monthly count and remit payment on those access lines 15-24 to the municipality. 15-25 (l) The commission may use a report required under 15-26 Subsection (j) only to verify the number of access lines that serve 15-27 premises within the municipality. 16-1 (m) Notwithstanding any other provision of this chapter, 16-2 payment by a certificated telecommunications provider that complies 16-3 with the terms of an unexpired franchise agreement or right-of-way 16-4 ordinance that applies to the provider satisfies the payment 16-5 attributable to the provider required by this chapter. 16-6 (n) A municipality may not demand or require from a 16-7 certificated telecommunications provider services, facilities, or 16-8 goods without compensation or at below-market rates. 16-9 (o) A certificated telecommunications provider shall, to the 16-10 extent required, implement commission established access line rates 16-11 not later than the 90th day after the date the commission 16-12 establishes the access line rates under this chapter. 16-13 Sec. 283.056. MUNICIPAL AUTHORIZATIONS; PROHIBITION ON OTHER 16-14 FEES AND CHARGES. (a) A municipality may not require a 16-15 certificated telecommunications provider to: 16-16 (1) pay any compensation other than the fee authorized 16-17 by Section 283.055, including an application, permit, excavation, 16-18 or inspection fee, for the right to use a public right-of-way to 16-19 provide telecommunications services in the municipality; or 16-20 (2) provide any services or facilities for the right 16-21 to use a public right-of-way or to provide telecommunications 16-22 services in the municipality. 16-23 (b) Notwithstanding any other law or any other provision of 16-24 this chapter, a municipality may require the issuance of a 16-25 construction permit without cost to a certificated 16-26 telecommunications provider locating facilities in or on public 16-27 rights-of-way within the municipality. The terms of the permit 17-1 shall be consistent with construction permits issued to other 17-2 persons excavating in a public right-of-way. 17-3 (c) A municipality may exercise those police power-based 17-4 regulations in the management of a public right-of-way that apply 17-5 to all persons within the municipality. A municipality may 17-6 exercise police power-based regulations in the management of the 17-7 activities of certificated telecommunications providers within a 17-8 public right-of-way only to the extent that they are reasonably 17-9 necessary to protect the health, safety, and welfare of the public. 17-10 Police power-based regulation of certificated telecommunications 17-11 providers may not include activities that are governed by this 17-12 chapter or are within the sole business discretion of the 17-13 certificated telecommunications provider. In addition, any police 17-14 power-based regulation must be competitively neutral and may not be 17-15 unreasonable or discriminatory. A municipality specifically may not 17-16 impose regulations on certificated telecommunications providers 17-17 that are not authorized by this chapter, including: 17-18 (1) requirements that particular business offices be 17-19 located in the municipality; 17-20 (2) requirements for filing reports and documents with 17-21 the municipality that are not required by state law to be filed 17-22 with the municipality and that are not related to the use of a 17-23 public right-of-way; 17-24 (3) inspection of a provider's business records except 17-25 to the extent necessary to conduct an authorized review of the 17-26 provider to ensure compliance with the access line reporting 17-27 requirements of this chapter if commenced within 90 days after the 18-1 filing of a certificated telecommunications provider's report of 18-2 access lines; and 18-3 (4) approval of transfers of ownership or control of a 18-4 provider's business, except that a municipality may require that a 18-5 provider maintain current point of contact information and provide 18-6 notice of a transfer within a reasonable time. 18-7 (d) In the exercise of its lawful regulatory authority, a 18-8 municipality shall promptly process each valid and administratively 18-9 complete application of a certificated telecommunications provider 18-10 for any permit, license, or consent to excavate, set poles, locate 18-11 lines, construct facilities, make repairs, affect traffic flow, 18-12 obtain zoning or subdivision regulation approvals, or for other 18-13 similar approvals, and shall make every reasonable effort to not 18-14 delay or unduly burden that provider in the timely conduct of its 18-15 business. 18-16 (e) If there is an emergency necessitating response work or 18-17 repair, a certificated telecommunications provider may begin that 18-18 repair or emergency response work or take any action required under 18-19 the circumstances, provided that the certificated 18-20 telecommunications provider notifies the affected municipality as 18-21 promptly as possible after beginning the work and later acquires 18-22 any approval required by a municipal ordinance applicable to 18-23 emergency response work. 18-24 (f) The compensation paid under this chapter is in lieu of 18-25 any permit, license, approval, inspection, or other similar fee or 18-26 charge, including all general business license fees customarily 18-27 assessed by a municipality for the use of a public right-of-way 19-1 against persons operating telecommunications-related businesses. 19-2 The compensation paid under this chapter constitutes full 19-3 compensation to a municipality for all of a certificated 19-4 telecommunications provider's facilities located within a public 19-5 right-of-way, including interoffice transport and other 19-6 transmission media that do not terminate at an end-use customer's 19-7 premises, even though those types of lines are not used in the 19-8 calculation of the compensation. This chapter may not be construed 19-9 to affect the ad valorem taxation of a certificated 19-10 telecommunications provider's facilities or to permit the ad 19-11 valorem taxation of a certificated telecommunication provider's 19-12 occupancy of a public right-of-way. 19-13 Sec. 283.057. INDEMNITY. (a) Certificated 19-14 telecommunications providers shall indemnify and hold the 19-15 municipality and its officers and employees harmless against any 19-16 and all claims, lawsuits, judgments, costs, liens, losses, 19-17 expenses, fees (including reasonable attorney's fees and costs of 19-18 defense), proceedings, actions, demands, causes of action, 19-19 liability, and suits of any kind and nature, including personal or 19-20 bodily injury (including death), property damage, or other harm for 19-21 which recovery of damages is sought that is found by a court of 19-22 competent jurisdiction to be caused solely by the negligent act, 19-23 error, or omission of the certificated telecommunications provider, 19-24 any agent, officer, director, representative, employee, affiliate, 19-25 or subcontractor of the certificated telecommunications provider, 19-26 or their respective officers, agents, employees, directors, or 19-27 representatives, while installing, repairing, or maintaining 20-1 facilities in a public right-of-way. The indemnity provided by 20-2 this subsection does not apply to any liability resulting from the 20-3 negligence of the municipality, its officers, employees, 20-4 contractors, or subcontractors. If a certificated 20-5 telecommunications provider and the municipality are found jointly 20-6 liable by a court of competent jurisdiction, liability shall be 20-7 apportioned comparatively in accordance with the laws of this state 20-8 without, however, waiving any governmental immunity available to 20-9 the municipality under state law and without waiving any defenses 20-10 of the parties under state law. This section is solely for the 20-11 benefit of the municipality and certificated telecommunications 20-12 provider and does not create or grant any rights, contractual or 20-13 otherwise, to any other person or entity. 20-14 (b) A certificated telecommunications provider or 20-15 municipality shall promptly advise the other in writing of any 20-16 known claim or demand against the certificated telecommunications 20-17 provider or the municipality related to or arising out of the 20-18 certificated telecommunications provider's activities in a public 20-19 right-of-way. 20-20 (c) Municipalities with franchise agreements or ordinances 20-21 applicable to certificated telecommunications providers in effect 20-22 under a general-use ordinance adopted before January 12, 1999, and 20-23 after July 1, 1998, and having 1.3 million access lines or more 20-24 within the municipality on September 1, 1999, may continue to 20-25 enforce the indemnity provision contained in those franchise 20-26 agreements or ordinances until the earlier of the date the 20-27 franchise agreements or ordinances expire or December 31, 2003. A 21-1 certificated telecommunications provider providing access lines in 21-2 a municipality described by this subsection is also subject to the 21-3 indemnity provided by this section. 21-4 Sec. 283.058. ADDITIONAL COMMISSION JURISDICTION. The 21-5 commission shall have the jurisdiction over municipalities and 21-6 certificated telecommunications providers necessary to enforce this 21-7 chapter and to ensure that all other legal requirements are 21-8 enforced in a competitively neutral, non-discriminatory, and 21-9 reasonable manner. 21-10 SECTION 2. The Public Utility Commission of Texas shall 21-11 determine the access line rates by category for a municipality 21-12 described by Section 283.055, Local Government Code, as added by 21-13 this Act, as soon as possible after the effective date of this Act 21-14 but not later than 180 days after that date. 21-15 SECTION 3. (a) Notwithstanding any provision of Chapter 21-16 283, Local Government Code, as added by this Act, to the extent a 21-17 municipal regulation, ordinance, resolution, or charter provision 21-18 is applicable to certificated telecommunications providers, the 21-19 municipal regulation, ordinance, resolution, or charter provision 21-20 is preempted to the extent it: 21-21 (1) conflicts with Chapter 283, Local Government Code, 21-22 as added by this Act; or 21-23 (2) is not specifically authorized by Section 283.056, 21-24 Local Government Code, as added by this Act. 21-25 (b) A city charter provision in effect on January 12, 1999, 21-26 that does not conflict with Chapter 283, Local Government Code, as 21-27 added by this Act, may be specifically re-adopted in accordance 22-1 with Chapter 9, Local Government Code. 22-2 SECTION 4. This Act takes effect September 1, 1999. 22-3 SECTION 5. The importance of this legislation and the 22-4 crowded condition of the calendars in both houses create an 22-5 emergency and an imperative public necessity that the 22-6 constitutional rule requiring bills to be read on three several 22-7 days in each house be suspended, and this rule is hereby suspended.