1-1 By: Wolens (Senate Sponsor - Lucio) H.B. No. 1777 1-2 (In the Senate - Received from the House May 12, 1999; 1-3 May 12, 1999, read first time and referred to Committee on Economic 1-4 Development; May 14, 1999, reported favorably by the following 1-5 vote: Yeas 5, Nays 0; May 14, 1999, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the provision of local exchange telephone service in a 1-9 municipality and the management by the municipality of public 1-10 rights-of-way used by providers of that service. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. Subtitle A, Title 9, Local Government Code, is 1-13 amended by adding Chapter 283 to read as follows: 1-14 CHAPTER 283. MANAGEMENT OF PUBLIC RIGHT-OF-WAY USED BY 1-15 TELECOMMUNICATIONS PROVIDER IN MUNICIPALITY 1-16 SUBCHAPTER A. GENERAL PROVISIONS 1-17 Sec. 283.001. STATE POLICY; PURPOSE. (a) It is the policy 1-18 of this state to: 1-19 (1) encourage competition in the provision of 1-20 telecommunications services; 1-21 (2) reduce the barriers to entry for providers of 1-22 services so that the number and types of services offered by 1-23 providers continue to increase through competition; 1-24 (3) ensure that providers of telecommunications 1-25 services do not obtain a competitive advantage or disadvantage in 1-26 their ability to obtain use of a public right-of-way within a 1-27 municipality; and 1-28 (4) fairly reduce the uncertainty and litigation 1-29 concerning franchise fees. 1-30 (b) It is also the policy of this state that municipalities: 1-31 (1) retain the authority to manage a public 1-32 right-of-way within the municipality to ensure the health, safety, 1-33 and welfare of the public; and 1-34 (2) receive from certificated telecommunications 1-35 providers fair and reasonable compensation for the use of a public 1-36 right-of-way within the municipality. 1-37 (c) The purpose of this chapter is to establish a uniform 1-38 method for compensating municipalities for the use of a public 1-39 right-of-way by certificated telecommunications providers that: 1-40 (1) is administratively simple for municipalities and 1-41 telecommunications providers; 1-42 (2) is consistent with state and federal law; 1-43 (3) is competitively neutral; 1-44 (4) is nondiscriminatory; 1-45 (5) is consistent with the burdens on municipalities 1-46 created by the incursion of certificated telecommunications 1-47 providers into a public right-of-way; and 1-48 (6) provides fair and reasonable compensation for the 1-49 use of a public right-of-way. 1-50 Sec. 283.002. DEFINITIONS. In this chapter: 1-51 (1) "Access line": 1-52 (A) means, unless the commission adopts a 1-53 different definition under Section 283.003, a unit of measurement 1-54 representing: 1-55 (i) each switched transmission path of the 1-56 transmission media that is physically within a public right-of-way 1-57 extended to the end-use customer's premises within the 1-58 municipality, that allows the delivery of local exchange telephone 1-59 services within a municipality, and that is provided by means of 1-60 owned facilities, unbundled network elements or leased facilities, 1-61 or resale; 1-62 (ii) each termination point or points of a 1-63 nonswitched telephone or other circuit consisting of transmission 1-64 media located within a public right-of-way connecting specific 2-1 locations identified by, and provided to, the end-use customer for 2-2 delivery of nonswitched telecommunications services within the 2-3 municipality; or 2-4 (iii) each switched transmission path 2-5 within a public right-of-way used to provide central office-based 2-6 PBX-type services for systems of any number of stations within the 2-7 municipality, and in that instance, one path shall be counted for 2-8 every 10 stations served; and 2-9 (B) may not be construed to include interoffice 2-10 transport or other transmission media that do not terminate at an 2-11 end-use customer's premises or to permit duplicate or multiple 2-12 assessment of access line rates on the provision of a single 2-13 service. 2-14 (2) "Certificated telecommunications provider" means a 2-15 person who has been issued a certificate of convenience and 2-16 necessity, certificate of operating authority, or service provider 2-17 certificate of operating authority by the commission to offer local 2-18 exchange telephone service. 2-19 (3) "Commission" means the Public Utility Commission 2-20 of Texas. 2-21 (4) "Consumer price index" means the annual revised 2-22 consumer price index for all urban consumers for Texas, as 2-23 published by the Federal Bureau of Labor Statistics. 2-24 (5) "Local exchange telephone service" has the meaning 2-25 assigned by Section 51.002, Utilities Code. 2-26 (6) "Public right-of-way" means the area on, below, or 2-27 above a public roadway, highway, street, public sidewalk, alley, 2-28 waterway, or utility easement in which the municipality has an 2-29 interest. The term does not include the airwaves above a 2-30 right-of-way with regard to wireless telecommunications. 2-31 Sec. 283.003. COMMISSION REVIEW. (a) Not later than 2-32 September 1, 2002, the commission shall determine whether changes 2-33 in technology, facilities, or competitive or market conditions 2-34 justify a modification in the commission-established categories of 2-35 access lines or, if necessary, the adoption of a definition of 2-36 "access line" provided by this section. The commission may not 2-37 begin a review authorized by this section before March 1, 2002. 2-38 (b) As part of the proceeding described by Subsection (a), 2-39 and as necessary after that proceeding, the commission by rule may 2-40 modify the definition of "access line" and the categories of access 2-41 lines as necessary to ensure competitive neutrality and 2-42 nondiscriminatory application and to maintain consistent levels of 2-43 compensation, as annually increased by growth in access lines and 2-44 consumer price index, as applicable, to the municipalities. 2-45 (c) After September 1, 2002, the commission, on its own 2-46 motion, shall make the determination required by this section at 2-47 least once every three years. 2-48 Sec. 283.004. APPLICATION. This chapter applies only to 2-49 municipal regulations and fees imposed on and collected from 2-50 certificated telecommunications providers. 2-51 Sec. 283.005. INFORMATION. (a) The commission may collect 2-52 and compile any information from certificated telecommunications 2-53 providers and municipalities as is necessary to implement this 2-54 chapter. 2-55 (b) The commission shall maintain the confidentiality of the 2-56 information described by Subsection (a) in accordance with Section 2-57 52.207, Utilities Code. 2-58 (c) Information provided to municipalities under this 2-59 chapter shall be governed by confidentiality procedures established 2-60 by the commission in compliance with Section 52.207, Utilities 2-61 Code. 2-62 Sec. 283.006. FEE REQUIREMENT FOR USE OF RIGHT-OF-WAY. (a) 2-63 Notwithstanding any other law, a certificated telecommunications 2-64 provider that does not use a public right-of-way within the 2-65 municipality may not be required to pay franchise fees, 2-66 right-of-way fees or any other fee or other compensation, other 2-67 than a fee or compensation excluded from the "base amount" under 2-68 Section 283.053(a), directly to the municipality to provide local 2-69 exchange telephone service in the municipality. 3-1 (b) This section does not affect the number of access lines 3-2 counted and reported to the commission under Section 283.055. 3-3 (c) The commission shall adopt rules to determine the method 3-4 of payment and to ensure that access line fees are paid on a 3-5 competitively neutral and non-discriminatory basis by certificated 3-6 telecommunications providers that provide more access lines than 3-7 they purchase from an underlying provider of resold services or 3-8 unbundled network elements. 3-9 (Sections 283.007-283.050 reserved for expansion 3-10 SUBCHAPTER B. RIGHT-OF-WAY FEES 3-11 Sec. 283.051. RIGHT-OF-WAY FEE. (a) Notwithstanding any 3-12 other law, a certificated telecommunications provider that provides 3-13 telecommunications services within a municipality is required to 3-14 pay as compensation to a municipality for use of the public 3-15 rights-of-way in the municipality only the amount determined by the 3-16 commission under Section 283.055. 3-17 (b) This section does not affect the right of a municipality 3-18 to initiate legal action against a certificated telecommunications 3-19 provider that uses a public right-of-way to provide local exchange 3-20 telephone service within a municipality and has not compensated the 3-21 municipality in accordance with this chapter. 3-22 (c) Fees imposed under this chapter shall constitute "a 3-23 municipal fee" or "municipal fees" within the meaning of the 3-24 Utilities Code. 3-25 Sec. 283.052. EFFECT OF PAYMENT OF RIGHT-OF-WAY FEES TO 3-26 MUNICIPALITY. (a) Subject to the requirements of Sections 283.056 3-27 and 283.057, a certificated telecommunications provider that 3-28 complies with this chapter and commission orders issued under this 3-29 chapter: 3-30 (1) may erect poles or construct conduit, cable, 3-31 switches, and related appurtenances and facilities and excavate 3-32 within a public right-of-way to provide telecommunications service; 3-33 and 3-34 (2) is not subject to municipal franchise 3-35 requirements. 3-36 (b) All use of a public right-of-way is nonexclusive and 3-37 subject to Section 283.056. 3-38 Sec. 283.053. BASE AMOUNT. (a) In determining a 3-39 municipality's "base amount" under this section, pole rental fees, 3-40 special assessments, and taxes of any kind, including ad valorem or 3-41 sales and use taxes, or other compensation not related to the use 3-42 of a public right-of-way, are not included. 3-43 (b) For purposes of determining the amount of a 3-44 municipality's right-of-way fee under Section 283.055, the "base 3-45 amount" for a municipality not described by another subsection is 3-46 the total amount of revenue received by the municipality in 3-47 franchise, license, permit, and application fees and in-kind 3-48 services or facilities from certificated telecommunications 3-49 providers in 1998 within the boundaries of the municipality, 3-50 including all newly annexed areas. The base amount prescribed 3-51 under this subsection shall include the municipal fee rate 3-52 escalation provisions and the value of in-kind services or 3-53 facilities received in 1998 in accordance with Subsection (f) 3-54 specifically prescribed in applicable agreements or ordinances 3-55 effective or adopted by January 12, 1999, unless the governing body 3-56 of the municipality elects otherwise. However, that additional 3-57 compensation may not become part of the base amount before it 3-58 becomes effective under the existing franchise agreement or 3-59 ordinance. 3-60 (c) The base amount for a municipality located in a county 3-61 with a population of less than 25,000 or a municipality that either 3-62 did not have an effective franchise agreement or ordinance on 3-63 January 12, 1999, or was not in existence on that date shall be, at 3-64 the election of the governing body of the municipality, equal to: 3-65 (1) an amount not greater than the statewide average 3-66 fee per line for each category of access line of the certificated 3-67 telecommunications provider with the greatest number of access 3-68 lines in that municipality, multiplied by the total number of 3-69 access lines in each category located within the boundaries of the 4-1 municipality on December 31, 1998, for a municipality in existence 4-2 on that date, or on the date of incorporation for a municipality 4-3 incorporated after that date; 4-4 (2) an amount not greater than the base amount 4-5 determined for a similarly sized municipality in the same or an 4-6 adjacent county in which the certificated telecommunications 4-7 provider with the greatest number of access lines in the 4-8 municipality is the same for each municipality; or 4-9 (3) the total amount of revenue received by the 4-10 municipality in franchise, license, permit, and application fees 4-11 from all certificated telecommunications providers in 1998. 4-12 (d) The base amount for a municipality that was involved in 4-13 litigation relating to franchise fees with one or more certificated 4-14 telecommunications providers during any part of 1998 and that, not 4-15 later than December 1, 1999, repeals any ordinance subject to 4-16 dispute in the litigation, voluntarily dismisses with prejudice any 4-17 claims in the litigation for compensation, and agrees to waive any 4-18 potential claim for compensation under any franchise agreement or 4-19 ordinance expired or in existence on September 1, 1999, is equal 4-20 to, at the municipality's election: 4-21 (1) an amount not to exceed the state average access 4-22 line rate on a per category basis for the certificated 4-23 telecommunications provider with the greatest number of access 4-24 lines in that municipality multiplied by the total number of access 4-25 lines located within the boundaries of the municipality on December 4-26 31, 1998, including any newly annexed areas; or 4-27 (2) an amount not to exceed 21 percent of the total 4-28 sales and use tax revenue, excluding any amount received under 4-29 Section 4A or 4B, Development Corporation Act of 1979 (Article 4-30 5190.6, Vernon's Texas Civil Statutes), or that imposed for a 4-31 municipal transit department under Chapter 453, Transportation 4-32 Code, received by the municipality in 1998. 4-33 (e) A litigating municipality electing to dismiss with 4-34 prejudice its claims in the litigation and repealing any ordinance 4-35 subject to dispute in the litigation does not, by making the 4-36 election, waive any defenses it may have to claims by other parties 4-37 to the litigation. A municipality in litigation relating to 4-38 franchise fees with one or more certificated telecommunications 4-39 providers during any part of 1998 that does not make an effective 4-40 election under Subsection (d) shall be governed by Subsection (b). 4-41 (f) For the purpose of determining the base amount, in-kind 4-42 services or facilities provided to municipalities under existing 4-43 franchise agreements or ordinances by certificated 4-44 telecommunications providers shall be valued at one percent of the 4-45 total 1998 revenue from franchise, permit, license, and application 4-46 fees paid to the municipality under all applicable 4-47 telecommunications franchise agreements or ordinances, unless a 4-48 municipality can establish before the commission that those 4-49 services or facilities received by the municipality had a greater 4-50 value in 1998. 4-51 Sec. 283.054. EXISTING FRANCHISE AGREEMENTS AND ORDINANCES. 4-52 (a) Except as otherwise provided by this chapter, this chapter 4-53 does not affect the validity of a franchise agreement or ordinance 4-54 with a certificated telecommunications provider executed before 4-55 January 12, 1999. A municipality may continue to enforce a 4-56 franchise agreement or ordinance and to collect franchise fees and 4-57 other charges under that franchise agreement or ordinance until the 4-58 date on which the agreement or ordinance expires by its own terms 4-59 or is terminated in accordance with the terms of this section. A 4-60 provider may elect to terminate a franchise agreement or 4-61 obligations under an existing ordinance as of the effective date of 4-62 the right-of-way fee rates adopted in accordance with the 4-63 commission's rules adopted under this chapter. A provider 4-64 terminating a franchise agreement or obligations under an existing 4-65 ordinance under this section shall become governed by this chapter 4-66 on the date of termination. A termination under this subsection 4-67 does not affect the calculation of the municipality's base amount 4-68 under Section 283.053. A certificated telecommunications provider 4-69 electing to terminate an existing franchise agreement or 5-1 obligations under an ordinance under this section shall provide 5-2 notice to the commission and the affected municipality not later 5-3 than December 1, 1999. 5-4 (b) If a franchise agreement or obligations under an 5-5 ordinance in a municipality expire or are terminated under 5-6 Subsection (a) before the commission has determined the amounts to 5-7 be paid to a municipality, the affected certificated 5-8 telecommunications providers operating in the municipality shall 5-9 continue paying at the rates required under the terms of the 5-10 expired agreement or ordinance until the commission's determination 5-11 and the certificated telecommunications provider's implementation 5-12 of appropriate rates under this chapter. 5-13 (c) During the period in which a franchise agreement or 5-14 ordinance described by Subsection (a) is in effect, a certificated 5-15 telecommunications provider not subject to an existing franchise 5-16 agreement or ordinance that wants to construct facilities to offer 5-17 telecommunications services in the municipality shall pay 5-18 right-of-way fees that are competitively neutral and 5-19 non-discriminatory, consistent with the charges of the most recent 5-20 agreement or ordinance between the municipality and the 5-21 certificated telecommunications provider serving the largest number 5-22 of access lines within the municipality. The provider shall pay 5-23 those fees for the duration of that agreement or ordinance or until 5-24 the right-of-way fees established by commission rule take effect. 5-25 If the existing franchise agreement or ordinance contains a 5-26 provision requiring in-kind services or facilities, the 5-27 certificated telecommunications provider not subject to an existing 5-28 franchise agreement or ordinance shall pay an amount equal to an 5-29 additional one percent of its total fees under the applicable 5-30 agreement or ordinance in lieu of any in-kind services or 5-31 facilities, if any, that otherwise are required under the terms of 5-32 the existing franchise agreement or ordinance. However, the 5-33 municipality may not require a certificated telecommunications 5-34 provider to provide any services or facilities without compensation 5-35 or at below-market rates for the right to use a public right-of-way 5-36 or to provide telecommunications services in the municipality. On 5-37 request of the certificated telecommunications provider not subject 5-38 to an existing franchise agreement or ordinance, the commission 5-39 shall convert the compensation under the existing franchise 5-40 agreement or ordinance to a fee per access line on a competitively 5-41 neutral and non-discriminatory basis, and the certificated 5-42 telecommunications provider may elect to pay the municipality on a 5-43 fee per access line basis rather than the manner of compensation 5-44 provided under the existing franchise agreement or ordinance. 5-45 Sec. 283.055. DETERMINATION OF FEES BY COMMISSION. (a) Not 5-46 later than November 1, 1999, the commission shall establish not 5-47 more than three categories of access lines for statewide use. 5-48 (b) Not later than March 1, 2000, the commission shall 5-49 establish: 5-50 (1) for each municipality, rates per access line by 5-51 category for the use of the rights-of-way in that municipality; 5-52 and 5-53 (2) the statewide average of those rates per access 5-54 line by category for each certificated telecommunications provider, 5-55 if necessary. 5-56 (c) The rates when applied to the total number of access 5-57 lines by category in the municipality shall be equal to the base 5-58 amount. 5-59 (d) Not later than December 1, 1999, a municipality that 5-60 wants to effect an allocation of the base amount over specific 5-61 access line categories to be assessed rates shall notify the 5-62 commission of the desired allocation. The commission shall 5-63 establish an allocation of the base amount over the categories of 5-64 access lines if a municipality does not file its proposed 5-65 allocation by December 1, 1999. A municipality may request a 5-66 modification of the commission's allocation not more than once 5-67 every 24 months by notifying the commission and all affected 5-68 certificated telecommunications providers in September of that year 5-69 that the municipality wants to change the allocation for the next 6-1 calendar year. A municipality's allocation shall be implemented 6-2 unless, on complaint by an affected certificated telecommunications 6-3 provider, the commission determines that the allocation is not just 6-4 and reasonable, is not competitively neutral, or is discriminatory. 6-5 (e) Rates imposed under this section and the allocation 6-6 among certificated telecommunications providers must be exercised 6-7 in a competitively neutral manner, may not unduly impair 6-8 competition, must be non-discriminatory, and must comply with state 6-9 and federal law. The commission shall determine the applicable 6-10 rates for each municipality for each category, taking into account 6-11 the allocation under Subsection (d) and the type, use, and function 6-12 of access lines. 6-13 (f) Certificated telecommunications providers shall pay to 6-14 the municipality a quarterly amount calculated monthly based on the 6-15 access line rates established by the commission under this section 6-16 and the number of access lines as reflected in the reports filed 6-17 under Subsection (j). The providers shall make the quarterly 6-18 payment not later than 45 days after the end of the quarter. 6-19 (g) Beginning 24 months after the date the commission 6-20 establishes rates per access line, the commission shall annually 6-21 adjust the rates per access line for each municipality by an amount 6-22 equal to one-half the annual change, if any, in the consumer price 6-23 index. At that time, the commission shall provide each 6-24 certificated telecommunications provider and municipality with the 6-25 adjusted monthly rates for each category of access line. 6-26 (h) On an annual basis, an affected municipality may provide 6-27 notice to the commission to decline all or any portion of any 6-28 increase in the per category access line rates. 6-29 (i) A certificated telecommunications provider may not be 6-30 required to remit a right-of-way fee to a municipality on those 6-31 access lines that have been resold, leased, or otherwise provided 6-32 to another certificated telecommunications provider, if the 6-33 underlying certificated telecommunications provider supplying those 6-34 services or facilities has been furnished with adequate proof that 6-35 the provider of services to the end-use customer will directly 6-36 remit to the municipality a right-of-way fee based on those access 6-37 lines. 6-38 (j) On a quarterly basis, each certificated 6-39 telecommunications provider shall file a report with the commission 6-40 that shows the number of access lines, including access lines by 6-41 category, that the provider has within each municipality at the end 6-42 of each month of the quarter. The provider shall include with the 6-43 report a certified statement from an authorized officer or duly 6-44 authorized representative of the provider stating that the 6-45 information contained in the report is true and correct to the best 6-46 of the officer's or representative's knowledge and belief after 6-47 inquiry. On request and subject to the confidentiality protections 6-48 of Section 283.005, each certificated telecommunications provider 6-49 shall provide each affected municipality with a copy of the report 6-50 required by this subsection. 6-51 (k) On request of the commission and to the extent 6-52 available, the report required by Subsection (j) shall specifically 6-53 identify access lines that are provided by means of resold 6-54 services or unbundled facilities to another certificated 6-55 telecommunications provider who is not an end-use customer and the 6-56 identity of the certificated telecommunications providers obtaining 6-57 the resold services or unbundled facilities to provide services to 6-58 end-use customers. A provider may not include in its monthly count 6-59 of access lines and is not required to remit a right-of-way fee to 6-60 the municipality on access lines that are resold, leased, or 6-61 otherwise provided to another certificated telecommunications 6-62 provider if the provider receives adequate proof that the provider 6-63 leasing or purchasing the access lines will include the access 6-64 lines in its monthly count and remit payment on those access lines 6-65 to the municipality. 6-66 (l) The commission may use a report required under 6-67 Subsection (j) only to verify the number of access lines that serve 6-68 premises within the municipality. 6-69 (m) Notwithstanding any other provision of this chapter, 7-1 payment by a certificated telecommunications provider that complies 7-2 with the terms of an unexpired franchise agreement or right-of-way 7-3 ordinance that applies to the provider satisfies the payment 7-4 attributable to the provider required by this chapter. 7-5 (n) A municipality may not demand or require from a 7-6 certificated telecommunications provider services, facilities, or 7-7 goods without compensation or at below-market rates. 7-8 (o) A certificated telecommunications provider shall, to the 7-9 extent required, implement commission established access line rates 7-10 not later than the 90th day after the date the commission 7-11 establishes the access line rates under this chapter. 7-12 Sec. 283.056. MUNICIPAL AUTHORIZATIONS; PROHIBITION ON OTHER 7-13 FEES AND CHARGES. (a) A municipality may not require a 7-14 certificated telecommunications provider to: 7-15 (1) pay any compensation other than the fee authorized 7-16 by Section 283.055, including an application, permit, excavation, 7-17 or inspection fee, for the right to use a public right-of-way to 7-18 provide telecommunications services in the municipality; or 7-19 (2) provide any services or facilities for the right 7-20 to use a public right-of-way or to provide telecommunications 7-21 services in the municipality. 7-22 (b) Notwithstanding any other law or any other provision of 7-23 this chapter, a municipality may require the issuance of a 7-24 construction permit without cost to a certificated 7-25 telecommunications provider locating facilities in or on public 7-26 rights-of-way within the municipality. The terms of the permit 7-27 shall be consistent with construction permits issued to other 7-28 persons excavating in a public right-of-way. 7-29 (c) A municipality may exercise those police power-based 7-30 regulations in the management of a public right-of-way that apply 7-31 to all persons within the municipality. A municipality may 7-32 exercise police power-based regulations in the management of the 7-33 activities of certificated telecommunications providers within a 7-34 public right-of-way only to the extent that they are reasonably 7-35 necessary to protect the health, safety, and welfare of the public. 7-36 Police power-based regulation of certificated telecommunications 7-37 providers may not include activities that are governed by this 7-38 chapter or are within the sole business discretion of the 7-39 certificated telecommunications provider. In addition, any police 7-40 power-based regulation must be competitively neutral and may not be 7-41 unreasonable or discriminatory. A municipality specifically may not 7-42 impose regulations on certificated telecommunications providers 7-43 that are not authorized by this chapter, including: 7-44 (1) requirements that particular business offices be 7-45 located in the municipality; 7-46 (2) requirements for filing reports and documents with 7-47 the municipality that are not required by state law to be filed 7-48 with the municipality and that are not related to the use of a 7-49 public right-of-way; 7-50 (3) inspection of a provider's business records except 7-51 to the extent necessary to conduct an authorized review of the 7-52 provider to ensure compliance with the access line reporting 7-53 requirements of this chapter if commenced within 90 days after the 7-54 filing of a certificated telecommunications provider's report of 7-55 access lines; and 7-56 (4) approval of transfers of ownership or control of a 7-57 provider's business, except that a municipality may require that a 7-58 provider maintain current point of contact information and provide 7-59 notice of a transfer within a reasonable time. 7-60 (d) In the exercise of its lawful regulatory authority, a 7-61 municipality shall promptly process each valid and administratively 7-62 complete application of a certificated telecommunications provider 7-63 for any permit, license, or consent to excavate, set poles, locate 7-64 lines, construct facilities, make repairs, affect traffic flow, 7-65 obtain zoning or subdivision regulation approvals, or for other 7-66 similar approvals, and shall make every reasonable effort to not 7-67 delay or unduly burden that provider in the timely conduct of its 7-68 business. 7-69 (e) If there is an emergency necessitating response work or 8-1 repair, a certificated telecommunications provider may begin that 8-2 repair or emergency response work or take any action required under 8-3 the circumstances, provided that the certificated 8-4 telecommunications provider notifies the affected municipality as 8-5 promptly as possible after beginning the work and later acquires 8-6 any approval required by a municipal ordinance applicable to 8-7 emergency response work. 8-8 (f) The compensation paid under this chapter is in lieu of 8-9 any permit, license, approval, inspection, or other similar fee or 8-10 charge, including all general business license fees customarily 8-11 assessed by a municipality for the use of a public right-of-way 8-12 against persons operating telecommunications-related businesses. 8-13 The compensation paid under this chapter constitutes full 8-14 compensation to a municipality for all of a certificated 8-15 telecommunications provider's facilities located within a public 8-16 right-of-way, including interoffice transport and other 8-17 transmission media that do not terminate at an end-use customer's 8-18 premises, even though those types of lines are not used in the 8-19 calculation of the compensation. This chapter may not be construed 8-20 to affect the ad valorem taxation of a certificated 8-21 telecommunications provider's facilities or to permit the ad 8-22 valorem taxation of a certificated telecommunication provider's 8-23 occupancy of a public right-of-way. 8-24 Sec. 283.057. INDEMNITY. (a) Certificated 8-25 telecommunications providers shall indemnify and hold the 8-26 municipality and its officers and employees harmless against any 8-27 and all claims, lawsuits, judgments, costs, liens, losses, 8-28 expenses, fees (including reasonable attorney's fees and costs of 8-29 defense), proceedings, actions, demands, causes of action, 8-30 liability, and suits of any kind and nature, including personal or 8-31 bodily injury (including death), property damage, or other harm for 8-32 which recovery of damages is sought that is found by a court of 8-33 competent jurisdiction to be caused solely by the negligent act, 8-34 error, or omission of the certificated telecommunications provider, 8-35 any agent, officer, director, representative, employee, affiliate, 8-36 or subcontractor of the certificated telecommunications provider, 8-37 or their respective officers, agents, employees, directors, or 8-38 representatives, while installing, repairing, or maintaining 8-39 facilities in a public right-of-way. The indemnity provided by 8-40 this subsection does not apply to any liability resulting from the 8-41 negligence of the municipality, its officers, employees, 8-42 contractors, or subcontractors. If a certificated 8-43 telecommunications provider and the municipality are found jointly 8-44 liable by a court of competent jurisdiction, liability shall be 8-45 apportioned comparatively in accordance with the laws of this state 8-46 without, however, waiving any governmental immunity available to 8-47 the municipality under state law and without waiving any defenses 8-48 of the parties under state law. This section is solely for the 8-49 benefit of the municipality and certificated telecommunications 8-50 provider and does not create or grant any rights, contractual or 8-51 otherwise, to any other person or entity. 8-52 (b) A certificated telecommunications provider or 8-53 municipality shall promptly advise the other in writing of any 8-54 known claim or demand against the certificated telecommunications 8-55 provider or the municipality related to or arising out of the 8-56 certificated telecommunications provider's activities in a public 8-57 right-of-way. 8-58 (c) Municipalities with franchise agreements or ordinances 8-59 applicable to certificated telecommunications providers in effect 8-60 under a general-use ordinance adopted before January 12, 1999, and 8-61 after July 1, 1998, and having 1.3 million access lines or more 8-62 within the municipality on September 1, 1999, may continue to 8-63 enforce the indemnity provision contained in those franchise 8-64 agreements or ordinances until the earlier of the date the 8-65 franchise agreements or ordinances expire or December 31, 2003. A 8-66 certificated telecommunications provider providing access lines in 8-67 a municipality described by this subsection is also subject to the 8-68 indemnity provided by this section. 8-69 Sec. 283.058. ADDITIONAL COMMISSION JURISDICTION. The 9-1 commission shall have the jurisdiction over municipalities and 9-2 certificated telecommunications providers necessary to enforce this 9-3 chapter and to ensure that all other legal requirements are 9-4 enforced in a competitively neutral, non-discriminatory, and 9-5 reasonable manner. 9-6 SECTION 2. The Public Utility Commission of Texas shall 9-7 determine the access line rates by category for a municipality 9-8 described by Section 283.055, Local Government Code, as added by 9-9 this Act, as soon as possible after the effective date of this Act 9-10 but not later than 180 days after that date. 9-11 SECTION 3. (a) Notwithstanding any provision of Chapter 9-12 283, Local Government Code, as added by this Act, to the extent a 9-13 municipal regulation, ordinance, resolution, or charter provision 9-14 is applicable to certificated telecommunications providers, the 9-15 municipal regulation, ordinance, resolution, or charter provision 9-16 is preempted to the extent it: 9-17 (1) conflicts with Chapter 283, Local Government Code, 9-18 as added by this Act; or 9-19 (2) is not specifically authorized by Section 283.056, 9-20 Local Government Code, as added by this Act. 9-21 (b) A city charter provision in effect on January 12, 1999, 9-22 that does not conflict with Chapter 283, Local Government Code, as 9-23 added by this Act, may be specifically re-adopted in accordance 9-24 with Chapter 9, Local Government Code. 9-25 SECTION 4. This Act takes effect September 1, 1999. 9-26 SECTION 5. The importance of this legislation and the 9-27 crowded condition of the calendars in both houses create an 9-28 emergency and an imperative public necessity that the 9-29 constitutional rule requiring bills to be read on three several 9-30 days in each house be suspended, and this rule is hereby suspended. 9-31 * * * * *