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 received by the municipality pursuant to
9-12 Chapter 321, Tax Code. The amount does not include sales and use
9-13 taxes collected under:
9-14 (A) Chapter 451, 452, 453, or 454,
9-15 Transportation Code, for a mass transit authority;
9-16 (B) the Development Corporation Act of 1979
9-17 (Article 5190.6, Vernon's Texas Civil Statutes), for a 4A or 4B
9-18 Development Corporation;
9-19 (C) Chapters 334 and 335, Local Government Code;
9-20 or
9-21 (D) Chapters 321, 322, and 323, Tax Code, for a
9-22 special district, including health service, crime control,
9-23 hospital, and emergency service districts.
9-24 (e) A litigating municipality electing to dismiss with
9-25 prejudice its claims in the litigation and repealing any ordinance
9-26 subject to dispute in the litigation does not, by making the
9-27 election, waive any defenses it may have to claims by other parties
10-1 to the litigation. A municipality in litigation relating to
10-2 franchise fees with one or more certificated telecommunications
10-3 providers during any part of 1998 that does not make an effective
10-4 election under Subsection (d) shall be governed by Subsection (b).
10-5 (f) For the purpose of determining the base amount, in-kind
10-6 services or facilities provided to municipalities under existing
10-7 franchise agreements or ordinances by certificated
10-8 telecommunications providers shall be valued at one percent of the
10-9 total 1998 revenue from franchise, permit, license, and application
10-10 fees paid to the municipality under all applicable
10-11 telecommunications franchise agreements or ordinances, unless a
10-12 municipality can establish before the commission that those
10-13 services or facilities received by the municipality had a greater
10-14 value in 1998.
10-15 Sec. 283.054. EXISTING FRANCHISE AGREEMENTS AND ORDINANCES.
10-16 (a) Except as otherwise provided by this chapter, this chapter
10-17 does not affect the validity of a franchise agreement or ordinance
10-18 with a certificated telecommunications provider executed before
10-19 January 12, 1999. A municipality may continue to enforce a
10-20 franchise agreement or ordinance and to collect franchise fees and
10-21 other charges under that franchise agreement or ordinance until the
10-22 date on which the agreement or ordinance expires by its own terms
10-23 or is terminated in accordance with the terms of this section. A
10-24 provider may elect to terminate a franchise agreement or
10-25 obligations under an existing ordinance as of the effective date of
10-26 the right-of-way fee rates adopted in accordance with the
10-27 commission's rules adopted under this chapter. A provider
11-1 terminating a franchise agreement or obligations under an existing
11-2 ordinance under this section shall become governed by this chapter
11-3 on the date of termination. A termination under this subsection
11-4 does not affect the calculation of the municipality's base amount
11-5 under Section 283.053. A certificated telecommunications provider
11-6 electing to terminate an existing franchise agreement or
11-7 obligations under an ordinance under this section shall provide
11-8 notice to the commission and the affected municipality not later
11-9 than December 1, 1999.
11-10 (b) If a franchise agreement or obligations under an
11-11 ordinance in a municipality expire or are terminated under
11-12 Subsection (a) before the commission has determined the amounts to
11-13 be paid to a municipality, the affected certificated
11-14 telecommunications providers operating in the municipality shall
11-15 continue paying at the rates required under the terms of the
11-16 expired agreement or ordinance until the commission's determination
11-17 and the certificated telecommunications provider's implementation
11-18 of appropriate rates under this chapter.
11-19 (c) During the period in which a franchise agreement or
11-20 ordinance described by Subsection (a) is in effect, a certificated
11-21 telecommunications provider not subject to an existing franchise
11-22 agreement or ordinance that wants to construct facilities to offer
11-23 telecommunications services in the municipality shall pay
11-24 right-of-way fees that are competitively neutral and
11-25 non-discriminatory, consistent with the charges of the most recent
11-26 agreement or ordinance between the municipality and the
11-27 certificated telecommunications provider serving the largest number
12-1 of access lines within the municipality. The provider shall pay
12-2 those fees for the duration of that agreement or ordinance or until
12-3 the right-of-way fees established by commission rule take effect.
12-4 If the existing franchise agreement or ordinance contains a
12-5 provision requiring in-kind services or facilities, the
12-6 certificated telecommunications provider not subject to an existing
12-7 franchise agreement or ordinance shall pay an amount equal to an
12-8 additional one percent of its total fees under the applicable
12-9 agreement or ordinance in lieu of any in-kind services or
12-10 facilities, if any, that otherwise are required under the terms of
12-11 the existing franchise agreement or ordinance. However, the
12-12 municipality may not require a certificated telecommunications
12-13 provider to provide any services or facilities without compensation
12-14 or at below-market rates for the right to use a public right-of-way
12-15 or to provide telecommunications services in the municipality. On
12-16 request of the certificated telecommunications provider not subject
12-17 to an existing franchise agreement or ordinance, the commission
12-18 shall convert the compensation under the existing franchise
12-19 agreement or ordinance to a fee per access line on a competitively
12-20 neutral and non-discriminatory basis, and the certificated
12-21 telecommunications provider may elect to pay the municipality on a
12-22 fee per access line basis rather than the manner of compensation
12-23 provided under the existing franchise agreement or ordinance.
12-24 Sec. 283.055. DETERMINATION OF FEES BY COMMISSION. (a) Not
12-25 later than November 1, 1999, the commission shall establish not
12-26 more than three categories of access lines for statewide use.
12-27 (b) Not later than March 1, 2000, the commission shall
13-1 establish:
13-2 (1) for each municipality, rates per access line by
13-3 category for the use of the rights-of-way in that municipality;
13-4 and
13-5 (2) the statewide average of those rates per access
13-6 line by category for each certificated telecommunications provider,
13-7 if necessary.
13-8 (c) The rates when applied to the total number of access
13-9 lines by category in the municipality shall be equal to the base
13-10 amount.
13-11 (d) Not later than December 1, 1999, a municipality that
13-12 wants to effect an allocation of the base amount over specific
13-13 access line categories to be assessed rates shall notify the
13-14 commission of the desired allocation. The commission shall
13-15 establish an allocation of the base amount over the categories of
13-16 access lines if a municipality does not file its proposed
13-17 allocation by December 1, 1999. A municipality may request a
13-18 modification of the commission's allocation not more than once
13-19 every 24 months by notifying the commission and all affected
13-20 certificated telecommunications providers in September of that year
13-21 that the municipality wants to change the allocation for the next
13-22 calendar year. A municipality's allocation shall be implemented
13-23 unless, on complaint by an affected certificated telecommunications
13-24 provider, the commission determines that the allocation is not just
13-25 and reasonable, is not competitively neutral, or is discriminatory.
13-26 (e) Rates imposed under this section and the allocation
13-27 among certificated telecommunications providers must be exercised
14-1 in a competitively neutral manner, may not unduly impair
14-2 competition, must be non-discriminatory, and must comply with state
14-3 and federal law. The commission shall determine the applicable
14-4 rates for each municipality for each category, taking into account
14-5 the allocation under Subsection (d) and the type, use, and function
14-6 of access lines.
14-7 (f) Certificated telecommunications providers shall pay to
14-8 the municipality a quarterly amount calculated monthly based on the
14-9 access line rates established by the commission under this section
14-10 and the number of access lines as reflected in the reports filed
14-11 under Subsection (j). The providers shall make the quarterly
14-12 payment not later than 45 days after the end of the quarter.
14-13 (g) Beginning 24 months after the date the commission
14-14 establishes rates per access line, the commission shall annually
14-15 adjust the rates per access line for each municipality by an amount
14-16 equal to one-half the annual change, if any, in the consumer price
14-17 index. At that time, the commission shall provide each
14-18 certificated telecommunications provider and municipality with the
14-19 adjusted monthly rates for each category of access line.
14-20 (h) On an annual basis, an affected municipality may provide
14-21 notice to the commission to decline all or any portion of any
14-22 increase in the per category access line rates.
14-23 (i) A certificated telecommunications provider may not be
14-24 required to remit a right-of-way fee to a municipality on those
14-25 access lines that have been resold, leased, or otherwise provided
14-26 to another certificated telecommunications provider, if the
14-27 underlying certificated telecommunications provider supplying those
15-1 services or facilities has been furnished with adequate proof that
15-2 the provider of services to the end-use customer will directly
15-3 remit to the municipality a right-of-way fee based on those access
15-4 lines.
15-5 (j) On a quarterly basis, each certificated
15-6 telecommunications provider shall file a report with the commission
15-7 that shows the number of access lines, including access lines by
15-8 category, that the provider has within each municipality at the end
15-9 of each month of the quarter. The provider shall include with the
15-10 report a certified statement from an authorized officer or duly
15-11 authorized representative of the provider stating that the
15-12 information contained in the report is true and correct to the best
15-13 of the officer's or representative's knowledge and belief after
15-14 inquiry. On request and subject to the confidentiality protections
15-15 of Section 283.005, each certificated telecommunications provider
15-16 shall provide each affected municipality with a copy of the report
15-17 required by this subsection.
15-18 (k) On request of the commission and to the extent
15-19 available, the report required by Subsection (j) shall specifically
15-20 identify access lines that are provided by means of resold
15-21 services or unbundled facilities to another certificated
15-22 telecommunications provider who is not an end-use customer and the
15-23 identity of the certificated telecommunications providers obtaining
15-24 the resold services or unbundled facilities to provide services to
15-25 end-use customers. A provider may not include in its monthly count
15-26 of access lines and is not required to remit a right-of-way fee to
15-27 the municipality on access lines that are resold, leased, or
16-1 otherwise provided to another certificated telecommunications
16-2 provider if the provider receives adequate proof that the provider
16-3 leasing or purchasing the access lines will include the access
16-4 lines in its monthly count and remit payment on those access lines
16-5 to the municipality.
16-6 (l) The commission may use a report required under
16-7 Subsection (j) only to verify the number of access lines that serve
16-8 premises within the municipality.
16-9 (m) Notwithstanding any other provision of this chapter,
16-10 payment by a certificated telecommunications provider that complies
16-11 with the terms of an unexpired franchise agreement or right-of-way
16-12 ordinance that applies to the provider satisfies the payment
16-13 attributable to the provider required by this chapter.
16-14 (n) A municipality may not demand or require from a
16-15 certificated telecommunications provider services, facilities, or
16-16 goods without compensation or at below-market rates.
16-17 (o) A certificated telecommunications provider shall, to the
16-18 extent required, implement commission established access line rates
16-19 not later than the 90th day after the date the commission
16-20 establishes the access line rates under this chapter.
16-21 Sec. 283.056. MUNICIPAL AUTHORIZATIONS; PROHIBITION ON OTHER
16-22 FEES AND CHARGES. (a) A municipality may not require a
16-23 certificated telecommunications provider to:
16-24 (1) pay any compensation other than the fee authorized
16-25 by Section 283.055, including an application, permit, excavation,
16-26 or inspection fee, for the right to use a public right-of-way to
16-27 provide telecommunications services in the municipality; or
17-1 (2) provide any services or facilities for the right
17-2 to use a public right-of-way or to provide telecommunications
17-3 services in the municipality.
17-4 (b) Notwithstanding any other law or any other provision of
17-5 this chapter, a municipality may require the issuance of a
17-6 construction permit without cost to a certificated
17-7 telecommunications provider locating facilities in or on public
17-8 rights-of-way within the municipality. The terms of the permit
17-9 shall be consistent with construction permits issued to other
17-10 persons excavating in a public right-of-way.
17-11 (c) A municipality may exercise those police power-based
17-12 regulations in the management of a public right-of-way that apply
17-13 to all persons within the municipality. A municipality may
17-14 exercise police power-based regulations in the management of the
17-15 activities of certificated telecommunications providers within a
17-16 public right-of-way only to the extent that they are reasonably
17-17 necessary to protect the health, safety, and welfare of the public.
17-18 Police power-based regulation of certificated telecommunications
17-19 providers may not include activities that are governed by this
17-20 chapter or are within the sole business discretion of the
17-21 certificated telecommunications provider. In addition, any police
17-22 power-based regulation must be competitively neutral and may not be
17-23 unreasonable or discriminatory. A municipality specifically may not
17-24 impose regulations on certificated telecommunications providers
17-25 that are not authorized by this chapter, including:
17-26 (1) requirements that particular business offices be
17-27 located in the municipality;
18-1 (2) requirements for filing reports and documents with
18-2 the municipality that are not required by state law to be filed
18-3 with the municipality and that are not related to the use of a
18-4 public right-of-way;
18-5 (3) inspection of a provider's business records except
18-6 to the extent necessary to conduct an authorized review of the
18-7 provider to ensure compliance with the access line reporting
18-8 requirements of this chapter if commenced within 90 days after the
18-9 filing of a certificated telecommunications provider's report of
18-10 access lines; and
18-11 (4) approval of transfers of ownership or control of a
18-12 provider's business, except that a municipality may require that a
18-13 provider maintain current point of contact information and provide
18-14 notice of a transfer within a reasonable time.
18-15 (d) In the exercise of its lawful regulatory authority, a
18-16 municipality shall promptly process each valid and administratively
18-17 complete application of a certificated telecommunications provider
18-18 for any permit, license, or consent to excavate, set poles, locate
18-19 lines, construct facilities, make repairs, affect traffic flow,
18-20 obtain zoning or subdivision regulation approvals, or for other
18-21 similar approvals, and shall make every reasonable effort to not
18-22 delay or unduly burden that provider in the timely conduct of its
18-23 business.
18-24 (e) If there is an emergency necessitating response work or
18-25 repair, a certificated telecommunications provider may begin that
18-26 repair or emergency response work or take any action required under
18-27 the circumstances, provided that the certificated
19-1 telecommunications provider notifies the affected municipality as
19-2 promptly as possible after beginning the work and later acquires
19-3 any approval required by a municipal ordinance applicable to
19-4 emergency response work.
19-5 (f) The compensation paid under this chapter is in lieu of
19-6 any permit, license, approval, inspection, or other similar fee or
19-7 charge, including all general business license fees customarily
19-8 assessed by a municipality for the use of a public right-of-way
19-9 against persons operating telecommunications-related businesses.
19-10 The compensation paid under this chapter constitutes full
19-11 compensation to a municipality for all of a certificated
19-12 telecommunications provider's facilities located within a public
19-13 right-of-way, including interoffice transport and other
19-14 transmission media that do not terminate at an end-use customer's
19-15 premises, even though those types of lines are not used in the
19-16 calculation of the compensation. This chapter may not be construed
19-17 to affect the ad valorem taxation of a certificated
19-18 telecommunications provider's facilities or to permit the ad
19-19 valorem taxation of a certificated telecommunication provider's
19-20 occupancy of a public right-of-way.
19-21 Sec. 283.057. INDEMNITY. (a) Certificated
19-22 telecommunications providers shall indemnify and hold the
19-23 municipality and its officers and employees harmless against any
19-24 and all claims, lawsuits, judgments, costs, liens, losses,
19-25 expenses, fees (including reasonable attorney's fees and costs of
19-26 defense), proceedings, actions, demands, causes of action,
19-27 liability, and suits of any kind and nature, including personal or
20-1 bodily injury (including death), property damage, or other harm for
20-2 which recovery of damages is sought that is found by a court of
20-3 competent jurisdiction to be caused solely by the negligent act,
20-4 error, or omission of the certificated telecommunications provider,
20-5 any agent, officer, director, representative, employee, affiliate,
20-6 or subcontractor of the certificated telecommunications provider,
20-7 or their respective officers, agents, employees, directors, or
20-8 representatives, while installing, repairing, or maintaining
20-9 facilities in a public right-of-way. The indemnity provided by
20-10 this subsection does not apply to any liability resulting from the
20-11 negligence of the municipality, its officers, employees,
20-12 contractors, or subcontractors. If a certificated
20-13 telecommunications provider and the municipality are found jointly
20-14 liable by a court of competent jurisdiction, liability shall be
20-15 apportioned comparatively in accordance with the laws of this state
20-16 without, however, waiving any governmental immunity available to
20-17 the municipality under state law and without waiving any defenses
20-18 of the parties under state law. This section is solely for the
20-19 benefit of the municipality and certificated telecommunications
20-20 provider and does not create or grant any rights, contractual or
20-21 otherwise, to any other person or entity.
20-22 (b) A certificated telecommunications provider or
20-23 municipality shall promptly advise the other in writing of any
20-24 known claim or demand against the certificated telecommunications
20-25 provider or the municipality related to or arising out of the
20-26 certificated telecommunications provider's activities in a public
20-27 right-of-way.
21-1 (c) Municipalities with franchise agreements or ordinances
21-2 applicable to certificated telecommunications providers in effect
21-3 under a general-use ordinance adopted before January 12, 1999, and
21-4 after July 1, 1998, and having 1.3 million access lines or more
21-5 within the municipality on September 1, 1999, may continue to
21-6 enforce the indemnity provision contained in those franchise
21-7 agreements or ordinances until the earlier of the date the
21-8 franchise agreements or ordinances expire or December 31, 2003. A
21-9 certificated telecommunications provider providing access lines in
21-10 a municipality described by this subsection is also subject to the
21-11 indemnity provided by this section.
21-12 Sec. 283.058. ADDITIONAL COMMISSION JURISDICTION. The
21-13 commission shall have the jurisdiction over municipalities and
21-14 certificated telecommunications providers necessary to enforce this
21-15 chapter and to ensure that all other legal requirements are
21-16 enforced in a competitively neutral, non-discriminatory, and
21-17 reasonable manner.
21-18 SECTION 2. The Public Utility Commission of Texas shall
21-19 determine the access line rates by category for a municipality
21-20 described by Section 283.055, Local Government Code, as added by
21-21 this Act, as soon as possible after the effective date of this Act
21-22 but not later than 180 days after that date.
21-23 SECTION 3. (a) Notwithstanding any provision of Chapter
21-24 283, Local Government Code, as added by this Act, to the extent a
21-25 municipal regulation, ordinance, resolution, or charter provision
21-26 is applicable to certificated telecommunications providers, the
21-27 municipal regulation, ordinance, resolution, or charter provision
22-1 is preempted to the extent it:
22-2 (1) conflicts with Chapter 283, Local Government Code,
22-3 as added by this Act; or
22-4 (2) is not specifically authorized by Section 283.056,
22-5 Local Government Code, as added by this Act.
22-6 (b) A city charter provision in effect on January 12, 1999,
22-7 that does not conflict with Chapter 283, Local Government Code, as
22-8 added by this Act, may be specifically re-adopted in accordance
22-9 with Chapter 9, Local Government Code.
22-10 SECTION 4. This Act takes effect September 1, 1999.
22-11 SECTION 5. The importance of this legislation and the
22-12 crowded condition of the calendars in both houses create an
22-13 emergency and an imperative public necessity that the
22-14 constitutional rule requiring bills to be read on three several
22-15 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1777 was passed by the House on May
11, 1999, by the following vote: Yeas 147, Nays 0, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1777 on May 20, 1999, by a non-record vote; and that the House
adopted H.C.R. No. 296 authorizing certain corrections in H.B. No.
1777 on May 24, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1777 was passed by the Senate, with
amendments, on May 18, 1999, by a viva-voce vote; and that the
Senate adopted H.C.R. No. 296 authorizing certain corrections in
H.B. No. 1777 on May 25, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor