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Amend CSHB 1779 by adding the following appropriately
numbered sections to read as follows and renumbering subsequent
sections accordingly:
SECTION ___. Subtitle C, Title 2, Utilities Code, is
amended by adding Chapter 65 to read as follows:
CHAPTER 65. STATEWIDE CABLE AND VIDEO FRANCHISE
Sec. 65.001. DEFINITIONS. In this chapter:
(1) "Cable service" is defined as set forth in 47
U.S.C. Section 522(6).
(2) "Cable service provider" means a person who
provides cable service.
(3) "Certificated provider" means a person who has
been issued a certificate under Chapter 54.
(4) "Communications facility" means the equipment and
components of a communications network provider, and includes the
property owned, operated, or controlled in connection with the
provider's business operations.
(5) "Communications network" means a component or
facility that is, in whole or in part, physically located within a
public right-of-way and that is used to provide video programming,
cable, voice, or data services.
(6) "Communications service" means the transmission,
conveyance, or routing of a cable service or video programming as
defined in this chapter, voice service, or data service by or
through any communications network regardless of the protocol used
for such transmission or conveyance.
(7) "Communications service provider" means a person
or group of persons engaged in the provision of communications
services, without regard to ownership of a communications network.
(8) "Franchise" means an initial authorization, or
renewal of an authorization, issued by a franchising authority,
regardless of whether the authorization is designated as a
franchise, permit, license, resolution, contract, certificate,
agreement, or otherwise, that authorizes the construction and
operation of a communications network in the public rights-of-way.
(9) "Franchise fee" means the amount of compensation
paid to a franchising authority by a franchisee under the terms of
the franchise.
(10) "Franchisee" means a communications service
provider that has been granted a franchise.
(11) "Public right-of-way" means the area on, below,
or above a public roadway, highway, street, public sidewalk, alley,
waterway, or utility easement in which a municipality has an
interest.
(12) "Video programming" means programming provided
by, or generally considered comparable to programming provided by,
a television broadcast station, as set forth in 47 U.S.C. Section
522(20).
(13) "Video service" means video programming services
provided through wireline facilities located at least in part in
the public right-of-way without regard to delivery technology,
including Internet protocol technology. This definition does not
include any video service provided by a commercial mobile service
provider as defined in 47 U.S.C. Section 332(d).
(14) "Video service provider" means a video
programming distributor that distributes video programming
services through wireline facilities located at least in part in
the public right-of-way without regard to delivery technology.
This term does not include a cable service provider.
(15) "Voice service" means voice communications
services provided through wireline facilities located at least in
part in the public right-of-way, without regard to the delivery
technology, including Internet protocol technology.
Sec. 65.002. STATE AUTHORIZATION TO PROVIDE CABLE OR VIDEO
SERVICE. (a) Any entity or person seeking to provide cable or
video service in this state shall file an application for a state
franchise with the commission as required by this section.
(b) The commission shall issue a certificate of franchise
authority to offer cable or video service within this state upon
receiving from the applicant an affidavit signed by an officer or
general partner of the applicant entity affirming the following
representations and information:
(1) that, if applicable, the applicant has filed or
will timely file with the Federal Communications Commission all
forms required by that agency in advance of offering cable service;
(2) that the applicant agrees to comply with all
applicable federal and state statutes and regulations;
(3) a description of the geographic areas to be served
by the applicant, which may include unincorporated areas, which
description shall be promptly updated by the applicant if service
is expanded to a previously undesignated geographic area; and
(4) the location of the principal place of business
and the names of the principal executive officers of the applicant.
(c) The certificate of franchise authority issued by the
commission shall contain the following:
(1) a grant of authority to provide cable or video
service as requested in the application;
(2) a grant of authority to use and occupy the public
rights-of-way in the delivery of that service, subject to the laws
of this state, including the police powers of the municipalities in
which the service is delivered; and
(3) a statement that the grant of authority is subject
to lawful operation of the cable or video service by the applicant
or its successor in interest.
(d) The certificate of franchise authority issued by the
commission is fully transferable to any successor in interest to
the applicant to which it is initially granted. A notice of
transfer shall be promptly filed with the commission upon the
completion of such transfer.
Sec. 65.003. TERMINATION OF MUNICIPAL FRANCHISE BY CABLE
SERVICE PROVIDER. (a) Beginning September 1, 2005, a cable service
provider may elect to terminate any municipal franchise existing on
the date this chapter takes effect by providing written notice to
the affected municipality. The termination shall be effective as
of the date the municipality receives the notice.
(b) A cable service provider electing to terminate an
existing municipal franchise shall be responsible for remitting to
the affected municipality within 90 days of the effective date of
termination any accrued but unpaid franchise fees due under the
franchise being terminated. If the cable service provider has
credit remaining from prepaid franchise fees, the provider may
deduct the amount of the remaining credit from any future fees or
taxes it must pay to the municipality, either directly or through
the comptroller. Any municipality receiving notice of a terminated
franchise under this chapter shall retain for one year following
termination the right to audit the accuracy of any payments that
were made to the municipality under the terminated franchise during
a period not to exceed four years prior to the termination.
Sec. 65.004. REQUIREMENTS APPLICABLE TO CABLE SERVICE
PROVIDERS AND VIDEO SERVICE PROVIDERS. (a) Pursuant to 47 U.S.C.
Section 531, a cable or video service provider that owns a
communications network or that leases or otherwise uses a
third-party communications network, including that of an
affiliate, to deliver cable or video service within the
municipality shall, not later than 120 days after a request by a
municipality served by the cable or video service provider as
specified in the certificate, provide where technically capable the
municipality with capacity in its communications network to allow
public, educational, and governmental (PEG) access channels for
noncommercial programming as follows. If a municipality did not
have any public, educational, and governmental access channels as
of September 1, 2005, then the cable or video service provider shall
furnish:
(1) up to three PEG channels for a municipality with a
population of at least 50,000; and
(2) up to two PEG channels for a municipality with a
population of less than 50,000.
(b) Notwithstanding Subsection (a), the number of PEG
channels required to be provided by each cable or video service
provider shall not be less than the number of PEG channels a
municipality has activated under the terms of any franchise,
contract, or other agreement, including any channels received as of
September 1, 2005, in lieu of public, educational, or governmental
channels, regardless of whether the municipal franchise is
terminated under this chapter. The following conditions shall
apply to the provision of any PEG channels carried in accordance
with this subsection or Subsection (a):
(1) the cable or video service provider may, at its
sole discretion, place any channel utilized by a municipality on
any tier of service following September 1, 2005, except that the
municipality may, at its sole discretion, designate up to three PEG
channels (or, in the case of a municipality with a population of
less than 50,000, up to two PEG channels) utilized by the
municipality, which shall remain on the lowest service tier for
which no equipment is required to receive the channel; provided,
however, if service is provided only in digital format, the PEG
channels shall be made available in that format;
(2) after a cable or video service provider has
commenced commercial delivery of cable or video services in a
municipality and no later than 120 days after a written request from
a municipality, a cable or video service provider shall, as
applicable, either provide the initial access channel allowed in
Subsection (a) if a municipality did not have any PEG channels as of
September 1, 2005, or shall continue to provide the channels in
service as of September 1, 2005, subject to the terms of this
section. In the event a municipality has not utilized the minimum
number of access channels as permitted in Subsection (a), access to
the additional channel capacity allowed in Subsection (a) shall be
provided upon 90 days' written notice if the municipality meets the
following standard. If a municipality has one active PEG channel
and wishes to activate an additional PEG channel, the initial
channel shall be considered to be substantially utilized when 12
hours are programmed on that channel each calendar day. In
addition, at least 40 percent of the 12 hours of programming for
each business day on average over each calendar quarter must be
nonrepeat programming. Nonrepeat programming shall include the
first three video-castings of a program. If a municipality is
entitled to three PEG channels under Subsection (a) and has in
service two active PEG channels, each of the two active channels
shall be considered to be substantially utilized when 12 hours are
programmed on each channel each calendar day and at least 50 percent
of the 12 hours of programming for each business day on average over
each calendar quarter is nonrepeat programming for three
consecutive calendar quarters;
(3) a municipality shall bear the cost of any
construction required to establish a connection between a
municipality's origination point and the cable or video service
provider's communication network;
(4) the operation of any PEG channel provided pursuant
to this section shall be the responsibility of the municipality
receiving the benefit of such channel, and the cable or video
service provider shall have no obligation to operate such channel
other than the transmission of such channel; and
(5) any PEG channel provided pursuant to this section
that is not utilized by the municipality for at least eight hours a
day shall no longer be made available to the municipality, but may
be programmed at the cable or video service provider's discretion.
At such time as the municipality can certify to the cable or video
service provider a schedule for at least eight hours of daily
programming, the cable or video service provider shall restore the
previously lost channel but shall be under no obligation to carry
that channel on a basic or analog tier.
(c) The requirements of Subsections (a) and (b) shall apply
equally to all cable or video service providers that own a
communications network or lease or otherwise use a third-party
communications network, including that of an affiliate, to deliver
cable or video service within a municipality.
(d) Only a municipality may seek enforcement of the
requirements of Subsections (a), (b), and (c) by initiating a
proceeding with a court of competent jurisdiction.
(e) It is the sole responsibility of the municipality to
ensure that any and all transmissions, content, or programming to
be transmitted over a channel or facility are provided or submitted
to the cable or video service provider in a manner or form that is
capable of being accepted and transmitted by a provider, without
requirement for additional alteration or change in content by the
provider, over the particular network of the cable or video service
provider, which is compatible with the technology or protocol
utilized by the cable or video service provider to deliver
services.
(f) Consistent with 47 U.S.C. Section 541(a)(3), a cable or
video service provider may not deny access to service to any group
of potential residential subscribers because of the income of the
residents of the local area in which such group resides. A provider
may satisfy the requirements of this subsection through the use of
an alternative technology notwithstanding differences in the
specific content or functionality provided.
(g) An affected person may seek enforcement of the
requirement described in Subsection (f) by initiating a proceeding
with a court of competent jurisdiction. A municipality within
which the potential residential video subscribers referenced in
Subsection (f) reside shall be an affected person for purposes of
this section.
(h) A cable or video service provider shall comply with
customer service requirements consistent with 47 C.F.R. Section
76.309(c) until there are more than two providers offering service
including direct-to-home satellite service in the affected area.
(i) This state or a political subdivision shall not require
a mandatory build out on either a cable or video service provider
except as specifically required by federal law.
(j) Should a cable or video service provider be found by a
court of competent jurisdiction to be in noncompliance with the
requirements of this section, the court shall order such provider,
within a reasonable period of time, to cure such noncompliance.
Failure to comply shall subject the provider to such penalties as
the court shall reasonably impose, up to and including revocation
of any state franchise granted under this chapter. A municipality
within which the provider offers video service shall be an
appropriate party in any such litigation.
(k) A municipality may not prefer or give advantage to any
cable or video service provider operating under a state franchise
or discriminate against any cable or video service provider
operating under a state franchise in any manner in the requirements
provided in this subsection. Any requirements shall be uniformly
applied, by ordinance, to all cable or video service providers
operating under a state franchise within the municipality. A
municipality's authority to regulate the activities of a cable or
video service provider is limited to the requirements imposed on a
cable or video service provider operating under a state franchise
by this subsection. Specifically, a municipality is authorized to
impose by ordinance a requirement:
(1) to require that a communications service provider
that is providing cable or video service within the municipality
register with the municipality and maintain a point of contact;
(2) to establish reasonable guidelines regarding the
use of the public, educational, and governmental access channels;
and
(3) to submit reports within 30 days on the customer
service standards referenced in Subsection (h) if the provider is
subject to those standards and has continued and unresolved
customer service complaints indicating a clear failure on the part
of the provider to comply with the standards. If the reports are
not provided or are incomplete, or if they verify noncompliance,
then the municipality, after providing appropriate due process and
a right to be heard, may file an appropriate proceeding in the
municipal court.
(l) Nothing in this section prohibits a municipality from
exercising its nondiscriminatory police power under Section 66.003
with respect to a communications service provider's use of the
public rights-of-way. A court of competent jurisdiction shall have
jurisdiction to enforce and determine the lawfulness of any
ordinance adopted by a municipality under this section.
(m) Except as provided in this chapter, a municipality may
not require any monetary compensation, nonmonetary compensation,
facilities, value, in-kind support, free service, or other thing of
value for the right or privilege of a cable provider or video
service provider to provide service or to occupy or use a public
right-of-way.
(n) A cable or video service provider electing to terminate
an existing municipal franchise or initiating service after
September 1, 2005, shall pay each municipality in which it provides
service a fee equal to five percent of the provider's gross
revenues.
(o) For purposes of this section, "gross revenues" means:
(1) all consideration of any kind or nature, including
without limitation cash, credits, property, and in-kind
contributions (services or goods) derived by the provider from the
operation of the provider's system to provide cable or video
service within the municipality;
(2) all fees charged to subscribers for any and all
cable or video service provided by the provider, and compensation
received by the provider or its affiliates that is derived from the
operation of the provider's system to provide cable or video
service with respect to commissions that are paid to the provider as
compensation for promotion or exhibition of any products or
services on its system, such as a "home shopping" or a similar
channel, subject to Subsection (p)(5); and
(3) a pro rata portion of all revenue derived by the
cable or video provider or its affiliates pursuant to compensation
arrangements for advertising derived from the operation of the
provider's system to provide cable or video service within the
municipality, subject to Subsection (p)(3). The allocation shall
be based on the number of subscribers in the municipality divided by
the total number of subscribers in relation to the relevant
regional or national compensation arrangement.
(p) For purposes of this section, "gross revenues" does not
include:
(1) revenues not actually received, even if billed,
such as bad debt;
(2) revenues received by any affiliate or any other
person in exchange for supplying goods or services used by the
provider to provide cable or video service;
(3) refunds, rebates, or discounts made to
subscribers, leased access providers, advertisers, or the
municipality;
(4) any revenues from services classified as non-cable
or non-video service under federal or state law, including without
limitation revenue received from telecommunications services,
revenue received from information services, and any other revenues
attributed by the provider to non-cable or non-video service in
accordance with commission or Federal Communications Commission
rules, regulations, standards, or orders;
(5) any revenue paid by subscribers to home shopping
programmers directly from the sale of merchandise through any home
shopping channel offered as part of the cable or video service;
(6) the sale of cable or video service for resale in
which the purchaser is required to collect the five percent fee from
the purchaser's customer;
(7) any tax of general applicability imposed upon the
provider or upon subscribers by a city, state, federal, or any other
governmental entity and required to be collected by the provider
and remitted to the taxing entity, including, but not limited to,
sales and use tax, gross receipts tax, excise tax, utility users
tax, public service tax, and communication taxes;
(8) the provision of cable service to customers at no
charge as required or allowed by a municipality, including without
limitation the provision of cable service to public institutions,
public schools, or governmental entities;
(9) any foregone revenue from the provider's provision
of free or reduced-cost cable service to any person, including
without limitation the municipality and other public institutions
or other institutions;
(10) sales of capital assets or sales of surplus
equipment;
(11) reimbursement by programmers of marketing costs
incurred by the provider for the introduction of new programming;
or
(12) directory or Internet advertising revenue
including, but not limited to, yellow page, white page, banner
advertisement, and electronic publishing.
(q) The fee payable under this section is to be paid to the
municipality quarterly, 45 days after the end of the quarter. Each
payment shall be accompanied by a summary as to the basis for the
calculation of the fee. A municipality may review the business
records of the cable provider or video service provider to the
extent necessary to ensure compensation in accordance with this
chapter. Each party shall bear the party's own costs of the
examination. The municipality may, in the event of a dispute as to
proper compensation under this chapter, bring an action in a court
of competent jurisdiction.
(r) For purposes of this section, a provider's system shall
consist solely of the optical spectrum wavelength(s), bandwidth, or
other current or future technological capacity used for the
transmission of video programming over wireline directly to
subscribers within the geographic area within the municipality as
designated by the provider in its franchise.
(s) A municipality may not require a cable service provider
or video service provider to pay the municipality any fee or
assessment, including any application, permit, excavation, or
inspection fee or any fee for the support of public, educational, or
governmental access channels. This subsection does not preclude
the assessment of generally applicable taxes or fees.
(t) A cable service provider or a video service provider may
recover from the provider's customers the fee imposed by this
chapter.
(u) Notwithstanding that a municipal cable franchise may be
terminated pursuant to Section 65.003, the following services shall
continue to be provided by the cable provider that was furnishing
services pursuant to its terminated franchise until 2008 or until
the term of the franchise was to expire, whichever is sooner:
(1) institutional network capacity, however defined
or referred to in the municipal cable franchise, but generally
referring to a private line data network capacity for use by the
municipality for noncommercial purposes, shall continue to be
provided at the same capacity as was provided to the municipality
prior to the date of the termination, provided that the
municipality will compensate the provider at its actual incremental
cost for such capacity. For purposes of this section, "actual
incremental cost" shall mean only current out-of-pocket expenses
for labor, equipment repair or replacement, or any tax expenses
directly associated with such labor or equipment of the video
service provider necessarily and directly used for the provision of
what, under a superseded franchise, were in-kind services,
exclusive of any profit or overhead such as, without limitation,
any depreciation, amortization, or administrative expenses; and
(2) cable services to community public buildings, such
as municipal buildings and public schools, shall continue to be
provided to the same extent provided immediately prior to the date
of the termination. Such cable service generally refers to the
existing cable drop connections to such facilities and the tier of
cable service provided pursuant to the franchise at the time of the
termination.
Sec. 65.005. APPLICABILITY OF OTHER LAWS. Nothing herein
shall be interpreted to prevent a voice provider, cable service
provider or video service provider, or municipality from seeking
clarification of its rights and obligations under federal law or to
exercise any right or authority under federal or state law.
SECTION ___. Subtitle C, Title 2, Utilities Code, is
amended by adding Chapter 66 to read as follows:
CHAPTER 66. MUNICIPAL POWERS AND DUTIES
Sec. 66.001. DEFINITIONS. The definitions contained in
Chapter 65 apply to this chapter.
Sec. 66.002. NONDISCRIMINATION BY MUNICIPALITY. (a) A
municipality shall allow a communications service provider to
install, construct, and maintain a communications network within a
public right-of-way and shall provide the communications service
provider with open, comparable, nondiscriminatory, and
competitively neutral access to the public right-of-way. All use
of a public right-of-way by the communications service provider is
nonexclusive and subject to Section 66.003.
(b) A municipality may not discriminate against a
communications service provider regarding:
(1) the authorization or placement of a communications
network in a public right-of-way;
(2) access to a building; or
(3) a municipal utility pole attachment term.
(c) A municipally owned utility may not charge a pole
attachment rate or underground conduit rate that exceeds the fee
the utility would be permitted to charge if the utility's rates were
regulated under 47 U.S.C. Section 224(e) and the rules of the
Federal Communications Commission adopted thereunder; provided,
further, that such municipally owned utility shall charge a single,
uniform pole attachment fee to all attaching entities not owned by
the municipality or municipally owned utility regardless of the
services carried over the networks attached to the poles or
underground conduit.
Sec. 66.003. MUNICIPAL POLICE POWER; OTHER AUTHORITY. (a)
A municipality may enforce police power-based regulations in the
management of a public right-of-way that apply to all persons
within the municipality. A municipality may enforce police
power-based regulations in the management of the activities of a
communications service provider to the extent that they are
reasonably necessary to protect the health, safety, and welfare of
the public. Police power-based regulation of a communications
service provider's use of the public right-of-way must be
competitively neutral and may not be unreasonable or
discriminatory. A municipality may not impose the following
regulations on activities of a communications service provider,
including:
(1) requirements that particular business offices be
located in the municipality;
(2) requirements for the filing of reports and
documents with the municipality that are not required by state or
federal law and that are not related to the use of the public
right-of-way; provided, however, that a municipality may request
maps and records maintained in the ordinary course of business for
purposes of locating the portions of a communications network that
occupy public rights-of-way. Any maps or records of the location of
a communications network received by a municipality shall be
confidential and exempt from disclosure under Chapter 552,
Government Code, and may be used by a municipality only for the
purpose of planning and managing construction activity in the
public right-of-way; however, in no event shall a municipality
request information as to the capacity or technical configuration
of the provider's facilities;
(3) the inspection of a communications service
provider's business records;
(4) the approval of transfers of ownership or control
of a communications service provider's business, except that a
municipality may require that a communications service provider
maintain a current point of contact and provide notice of a transfer
within a reasonable time; or
(5) requirements that a provider that is self-insured
under the provisions of state law obtain insurance or bonding for
any activities within the municipality, except that such providers
are required to provide substantially the same defense and claims
processing as an insured provider; further, no bond shall be
required from a provider for any work consisting of aerial
construction; however, reasonable bonds may be required of
providers that cannot demonstrate a record of at least four years'
performance of work in any municipal public right-of-way free of
currently unsatisfied claims by a municipality for damage to the
right-of-way.
(b) Notwithstanding any other law, a municipality may
require the issuance of a construction permit, without cost, to a
communications service provider that is locating facilities in or
on a public right-of-way within the municipality. The terms of the
permit shall be consistent with construction permits issued to
other persons excavating in a public right-of-way.
(c) In the exercise of its lawful regulatory authority, a
municipality shall promptly process all valid and administratively
complete applications of a communications service provider for a
permit, license, or consent to excavate, set poles, locate lines,
construct facilities, make repairs, affect traffic flow, or obtain
zoning or subdivision regulation approvals or other similar
approvals and shall make every reasonable effort to not delay or
unduly burden the provider in the timely conduct of its business.
(d) If there is an emergency necessitating response work or
repair, a communications service provider may begin the repair or
emergency response work or take any action required under the
circumstances without prior approval from the affected
municipality, if the communications service provider notifies the
municipality as promptly as possible after beginning the work and
later obtains any approval required by a municipal ordinance
applicable to emergency response work.
Sec. 66.004. INDEMNITY IN CONNECTION WITH RIGHT-OF-WAY;
NOTICE OF LIABILITY. (a) A communications service provider shall
indemnify and hold a municipality and its officers and employees
harmless against any and all claims, lawsuits, judgments, costs,
liens, losses, expenses, fees (including reasonable attorney's
fees and costs of defense), proceedings, actions, demands, causes
of action, liability, and suits of any kind and nature, including
personal or bodily injury (including death), property damage, or
other harm for which recovery of damages is sought, that is found by
a court of competent jurisdiction to be caused solely by the
negligent act, error, or omission of the communications service
provider, any agent, officer, director, representative, employee,
affiliate, or subcontractor of the communications service
provider, or their respective officers, agents, employees,
directors, or representatives, while installing, repairing, or
maintaining facilities in a public right-of-way. The indemnity
provided by this subsection does not apply to any liability
resulting from the negligence of the municipality or its officers,
employees, contractors, or subcontractors. If a communications
service provider and the municipality are found jointly liable by a
court of competent jurisdiction, liability shall be apportioned
comparatively in accordance with the laws of this state without,
however, waiving any governmental immunity available to the
municipality under state law and without waiving any defenses of
the parties under state law. This subsection is solely for the
benefit of the municipality and the communications service provider
and does not create or grant any rights, contractual or otherwise,
for or to any other person or entity.
(b) A communications service provider and a municipality
shall promptly advise the other in writing of any known claim or
demand against the communications service provider or the
municipality related to or arising out of the communications
service provider's activities in a public right-of-way.
SECTION ___. Subtitle C, Title 2, Utilities Code, is
amended by adding Chapter 68 to read as follows:
CHAPTER 68. PLACEMENT AND MOVEMENT OF COMMUNICATIONS FACILITIES
AND COMPENSATION FOR USE OF THE PUBLIC RIGHT-OF-WAY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 68.001. POLICY. (a) Convergence of technologies in
the communications industry requires that existing compensation
structures be conformed to ensure that communication providers and
municipalities are treated fairly with respect to placing and
maintaining facilities in the right-of-way.
(b) It is the policy of this state to:
(1) ensure that communication providers have
reasonable access to the public rights-of-way;
(2) ensure that improvements in municipal
infrastructure are made in a timely and efficient manner;
(3) provide a funding mechanism for facility
relocations that is cost-based, uniform, consistent, and
efficient; and
(4) ensure that municipalities are fairly compensated
for use of public rights-of-way.
SUBCHAPTER B. LOCAL AUTHORITY TO ENSURE TIMELY INFRASTRUCTURE
IMPROVEMENT AND RELOCATION OF FACILITIES
Sec. 68.101. RELOCATION OF COMMUNICATIONS FACILITY LOCATED
IN PUBLIC RIGHT-OF-WAY. (a) In this chapter:
(1) "Communications facility" means the equipment and
components of a communications network provider and includes the
property owned, operated, or controlled in connection with the
provider's business operations.
(2) "Communications network provider" means any
entity that provides voice, video, telephone, telegraph,
communications, cable, information, broadband, or another form of
advanced telecommunications services using communications
facilities in the public right-of-way.
(3) "Public improvement project" means a construction
or improvement activity in a public right-of-way undertaken by or
on behalf of a municipality or in conjunction with another entity
for any public purpose, other than a construction or improvement
activity undertaken solely for beautification purposes.
(4) "Public right-of-way" means the area on, below, or
above a public roadway, highway, street, public sidewalk, alley,
waterway, or utility easement in which the municipality has an
interest.
(b) A municipality must consider in its design of public
improvement projects a design that minimizes the relocation of any
communications facility. If a municipality determines during the
design of a public improvement project that, based on available
information, the relocation of any portion of a communications
facility may be necessary, the municipality shall provide the
communications network provider:
(1) written notice of the planned public improvement
project at a point in the design stage that allows the
communications network provider sufficient time to offer planning
and design alternatives; and
(2) plans and drawings of the project that are
sufficient to enable the communications network provider to develop
plans for and determine the cost of the necessary relocation.
(c) After providing information pursuant to Sections (b)(1)
and (2), a municipality may request a communications network
provider to provide the municipality information concerning the
provider's facility location. The communications network provider
shall provide the information requested within a reasonable time,
not to exceed 15 business days. After the municipality and the
provider have exchanged information regarding the design and
facility location, the municipality shall convene a meeting to give
the provider an opportunity to discuss potential design
alternatives that may avoid facility relocation or minimize
relocation costs. This meeting shall be held in person unless both
parties mutually agree to conduct the meeting telephonically. A
municipality shall consider all reasonable and economically
feasible alternatives and shall provide, in writing, reasons for a
decision to reject such alternatives.
(d)(1) Notwithstanding any other provision of law, the
governing body of a municipality may require a communications
network provider to relocate the provider's facility that is
located in a public right-of-way to accommodate a public
improvement project. Costs related to such relocation, including
the cost of installing the facilities in a new location, or new
locations, and the cost of any lands, or any rights or interests in
lands, and any other rights acquired to accomplish the relocation
or removal, shall be at the municipality's sole expense, except
that a communications network provider shall bear the cost and
expense of relocating its communications facilities when the
relocation is caused by the widening or straightening of a public
roadway.
(2) A municipality may recover the costs of all
relocations not paid by the communications network provider in
accordance with Section 68.205.
(e) If a municipality has complied with Subsections (b)
through (d), a communications network provider shall relocate its
facility as required by the municipality if the municipality:
(1) gives the provider 30 days' written notice of the
municipality's determination that the facility must be relocated;
(2) specifies the new suitable location for the
facility along another area of the public right-of-way; and
(3) reaches an agreement with the communications
network provider for a reasonable time for relocating the facility,
based on information presented by the affected providers regarding
the length of time that is necessary to complete the relocation,
that is at a minimum and not earlier than the 90th day after the date
the provider receives the information required by Subdivisions (1)
and (2), provided that the 90 days shall be calculated only after
the 30-day notice period in Subdivision (1) has expired. The
provider and the municipality shall negotiate the agreement in good
faith.
(f) If the provider fails to comply with the requirements in
Subsection (e), the municipality may relocate the facility at the
sole cost and expense of the provider. A relocation by the
municipality under this section shall be conducted in full
compliance with applicable law, using standard equipment and
construction practices compatible with the provider's existing
facilities, and in a manner that minimizes disruption of provider
service.
(g) The time for relocation established under Subsection
(e)(3) shall be extended:
(1) by mutual agreement of the municipality and the
communications network provider; or
(2) for any reasonable period of time that is
warranted based upon generally acceptable industry standards or
practices.
(h) The notification requirements and time limitations
provided by this chapter do not apply to the relocation of a
communications facility the necessity of which is discovered during
the construction process of a public improvement project if the
relocation is directly caused by inaccurate or insufficient
information provided to a municipality by a communications network
provider and if the requirements of this section were met
initially. In such instance, the communications network provider
and the municipality shall reach an agreement to relocate such
facility within a reasonable period of time based upon generally
accepted industry standards or practices.
(i) A municipality shall make a good faith effort to obtain
available third-party funding for a communications facility
relocation. If any part of the public improvement project is
financed with federal funds, the funds specifically allocated for
communications facility relocations shall be used to pay for the
relocation of the communications facility.
(j) If a relocation of a portion of a communications
facility is necessary before the third anniversary of the certified
completion date, the municipality shall pay the cost of the
relocation, regardless of whether the relocation is caused by
widening or straightening of a public roadway. The cost of a
relocation addressed in this section shall be collected by the
municipality in accordance with Section 68.205.
(k) This section does not limit the authority of a
municipality and a communications network provider to enter into an
agreement that establishes the terms for relocating a
communications facility, including terms that preempt a provision
of this section.
(l) For purposes of this section, a requirement to bury an
existing aerial communications facility owned by a communications
network provider may not be considered to be a municipal public
improvement project.
(m) A municipality's exercise of authority under this
section must be competitively neutral, reasonable, and
nondiscriminatory.
(n) This section supersedes any inconsistent local
ordinances but does not affect a municipality's authority under an
agreement, ordinance, or statute to require the relocation of
another type of facility not subject to this chapter located in a
public right-of-way.
(o) Upon completion of a project addressed by this section,
the provider may submit an invoice of its costs for the relocation
to the municipality. A municipality shall tender payment to the
provider not later than 60 days after receiving an invoice for a
project addressed by this section. The foregoing notwithstanding,
the provider shall not be entitled to reimbursement for relocations
caused by the widening or straightening of public roadways.
(p) To the extent a conflict exists between this chapter and
another law relating to the relocation of a communications network
provider, this chapter controls. A communications network provider
operating under a municipal franchise shall be subject to the
provisions of this chapter.
SUBCHAPTER C. ASSESSMENTS FOR RELOCATION OF FACILITIES
Sec. 68.201. DEFINITION. In this chapter, "linear foot"
means the entire width of the right-of-way regardless of the number
of aerial or underground ducts, subducts, conduits, cables, wires,
cabinets, pedestals, appurtenances, or other communications
facilities included within the entire width of the public
right-of-way, except public utility easements not adjacent to a
public roadway.
Sec. 68.202. REQUIRED MUNICIPAL PROCEEDINGS. Within 90
days of the effective date of this section and thereafter on or
before September 1 of each year, each municipality that has a public
improvement project planned for the next calendar year for which a
communications network provider may be entitled to compensation for
relocation of its facilities shall initiate a planning proceeding,
in order to meet the requirements of this chapter. As part of such
proceeding, the municipality shall require each communications
network provider to submit the following information supported by
an affidavit:
(1) calculations for the total amount of linear feet
of public right-of-way within the municipality in which a
communications facility owned or controlled by the communications
network provider exists;
(2) forecasts for the communications network
provider's costs associated with relocation, which may be based on
historical data, of its communications facilities, including
overhead allocation, within the municipality for the next calendar
year; and
(3) route maps showing the general location of the
communications network provider's communications facilities,
provided that such information is not required to detail the exact
placement of facilities, including depth, breadth, or location
within the right-of-way of its communications facilities.
Sec. 68.203. FINDINGS OF THE MUNICIPALITY. (a) After
holding the initial proceedings under Section 68.202, within a
reasonable period of time, the municipality shall issue its
findings detailing the following:
(1) the total amount of linear feet currently occupied
or maintained by all communications network providers operating in
the municipality;
(2) the total amount of linear feet currently occupied
or maintained by each communications network provider operating in
the municipality;
(3) the total average amount of relocation costs
projected for all communications network providers operating in the
municipality for the next calendar year based on the forecasts
provided by each provider, excluding widening or straightening
projects;
(4) the per linear foot cost of facility relocation
for the municipality, calculated as the total projected costs for
all reimbursable facility relocations of all communications
network providers for the next calendar year, divided by the total
amount of linear feet occupied by all communications network
providers; and
(5) certify the amount of actual costs expended and
the variance from the fees collected for purposes of setting a fee
in the next fiscal year.
(b) Information received by a municipality under this
subchapter may only be used for the purpose set forth in this
subchapter and shall be exempt from public disclosure requirements
under Chapter 552, Government Code.
Sec. 68.204. APPEAL OF MUNICIPALITY'S FINDINGS. Any
communications network provider which alleges that a municipality
has not followed the requirements of this chapter shall be entitled
to seek enforcement in a court of competent jurisdiction.
Sec. 68.205. ASSESSMENTS FOR RELOCATION OF FACILITIES IN
THE PUBLIC RIGHT-OF-WAY. (a) After January 1, 2006, a municipality
is authorized to enact an ordinance for the collection of facility
relocation fees consistent with Section 68.101(d) from each
communications network provider operating in the municipality.
(b) A communications network provider that utilizes the
public right-of-way shall pay an annual relocation fee if set by the
municipality consistent with Subsection (a), based on the amount of
linear feet of public right-of-way occupied by the provider's
communications facilities within the municipality.
(c) The fee required under this chapter is based on the
linear feet occupied or maintained by the provider regardless of
the quantity or type of the provider's communications facilities
utilizing the public right-of-way, whether the communications
facilities are leased to another provider or whether the
communications facilities are underground or aboveground.
(d) On or before September 1 of each year, a municipality
shall determine its per linear foot fee for the next fiscal year by
updating its calculations by dividing the total forecasted costs of
all communications network providers, by the total amount of linear
feet occupied by all communications network providers.
(e) A municipality may only assess a fee under this chapter
if it has one or more public improvement projects budgeted for the
next fiscal year, excluding those related to widening or
straightening of public roadways.
Sec. 68.206. PUBLIC RIGHT-OF-WAY COMPENSATION AND
MANAGEMENT. (a) A municipality may elect to adopt an ordinance
under this section.
(b) Pursuant to its adoption of an ordinance under this
section, a municipality may set an annual rate not to exceed $100
for each communications network provider entity possessing,
owning, or controlling communications network facilities located
within the municipality's public right-of-way.
(c) Money collected under this section shall compensate
municipalities for their use and management of public right-of-way.
Sec. 68.207. REMITTANCE OF FEES. (a) A communications
network provider shall remit quarterly to the municipality the fees
assessed by the municipality under this chapter. The provider
shall remit such fee no later than 45 days after the end of a
quarter.
(b) Notwithstanding any other provision of this title, a
communications network provider may recover from the provider's
retail and wholesale customers an assessment imposed on the
provider under this chapter. This may be accomplished by either a
separate or existing line item on a customer bill or through
contract.
(c) A provider may apportion the recovery of such costs in a
reasonable manner between business and residential customers, with
business customers receiving a higher pro rata apportionment.
(d) The sales price of services provided by a communications
network provider shall not include any charge to recover the
assessment to the extent imposed under Subsection (c).
Sec. 68.208. PENALTIES. If after notice and hearing the
municipality finds that a person has violated this subchapter, the
municipality may assess the following penalties:
(1) for failure to pay an undisputed fee assessed by
the municipality under this title, order the provider to pay a fine
of not more than two times the amount of the fee owed; and
(2) for failure to submit information or for material
underreporting of the amount of linear feet to the municipality,
order a fine of not more than two times the amount of the fee that
would have been paid if the information was properly provided.
SECTION ___. The Public Utility Commission of Texas shall
conduct a study and shall file a report with the legislature not
later than September 1, 2006, containing the commission's
revenue-neutral, technology-neutral, and competitive-neutral
recommendations concerning compensation flowing to the cities from
voice, video, and cable providers. The report shall identify the
following:
(1) all sources of compensation that have been
received by the cities historically from providers of voice, video,
and cable;
(2) the providers of voice, video, and cable services
available to consumers within municipalities without regard to the
technology used to deliver such services;
(3) alternative funding mechanisms, including an
additional municipal sales tax or any other additional municipally
imposed alternatives, which would be revenue-neutral to the
municipalities, and technology-neutral and competitive-neutral in
application to providers, their services, and their customers; and
(4) the payment mechanism of the fees, including all
municipal fees and franchise fees.
SECTION ___. Chapter 62, Utilities Code, is repealed.