79R4619 CBH-F
By: Crabb H.B. No. 1923
A BILL TO BE ENTITLED
AN ACT
relating to nondiscriminatory and competitively neutral treatment
of operators of competitive broadband networks by municipalities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 60, Utilities Code, is amended by adding
Subchapter J to read as follows:
SUBCHAPTER J. NONDISCRIMINATORY AND COMPETITIVELY NEUTRAL
TREATMENT OF OPERATORS OF COMPETITIVE BROADBAND NETWORKS BY
MUNICIPALITIES TO PROMOTE INTERMODAL COMPETITION
Sec. 60.201. STATE POLICY; APPLICATION OF SUBCHAPTER. (a)
It is the policy of this state to promote facilities-based
intermodal competition and ensure that providers of competing
voice, data, and video services do not have an unfair advantage
based on the application of governmental policies, practices, or
assessments.
(b) Except to the extent, if any, expressly provided by this
subchapter, this subchapter may not be construed as granting
authority to the commission or to a municipality to regulate:
(1) the price, service offerings, or terms and
conditions of service of a broadband network; or
(2) the voice, data, information, or video service
offerings of a broadband network operator.
(c) This subchapter applies only to a broadband network
located wholly or partly within a public right-of-way.
Sec. 60.202. DEFINITIONS. In this subchapter:
(1) "Access line" has the meaning assigned by Section
283.002, Local Government Code.
(2) "Broadband network" means a network that is:
(A) capable of transmitting two-way data at
speeds of at least 1.5 megabits a second; and
(B) used to offer voice, video, or data services.
(3) "Broadband network operator" means an entity that
owns or operates a broadband network.
(4) "Certificated telecommunications provider" has
the meaning assigned by Section 283.002, Local Government Code.
(5) "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. The term does not include the airwaves above a
right-of-way with regard to wireless communications.
Sec. 60.203. OFFSET FOR PAYMENT OF DOUBLE ASSESSMENT. (a)
A broadband network operator may use this section to ensure fair
competition between providers of voice services and providers of
video services to the extent parity does not exist between the
right-of-way fees applied to the voice and video services of
competing broadband network operators.
(b) If a certificated telecommunications provider provides
access lines using a broadband network owned by an affiliated
broadband network operator that is not a certificated
telecommunications provider, the broadband operator may deduct
from any franchise or license fees the operator pays to a
municipality an amount equal to the amount of fees paid to that
municipality by the affiliated certificated telecommunications
provider under Chapter 283, Local Government Code.
(c) If a broadband network operator is a certificated
telecommunications provider and has a municipal franchise or
license under which the provider pays the municipality for use of
the public rights-of-way and the broadband network is used to
provide access lines within the municipality in addition to the
franchised or licensed services, the operator may deduct from the
operator's franchise or license fees an amount equal to the amount
of the fees the operator paid to the municipality under Chapter 283,
Local Government Code.
Sec. 60.204. PROHIBITION ON DISCRIMINATION BY
MUNICIPALITY. (a) A municipality may not, directly or indirectly,
prefer or provide an advantage to a broadband network operator.
(b) A municipality shall provide a broadband network
operator with open, comparable, nondiscriminatory, and
competitively neutral access to the municipality's public
rights-of-way.
(c) To ensure competitive neutrality in the treatment of the
services of competing broadband network operators, a municipality
may apply to all video service providers that lease or otherwise use
a broadband network to deliver video services to an end-use
customer's premises within the municipality the same contract and
fee requirements that the municipality may require of a cable
operator under federal law.
(d) If a municipality enters into or grants, or has entered
into or granted, a franchise, permit, license, or other agreement
of any kind with a broadband network operator that contains a
provision that differs from a provision contained in an existing
franchise, permit, license, or other agreement between the
municipality and another broadband network operator, the broadband
network operator to which the more burdensome obligation applies
has the right to accept the different provision and incorporate
that provision into the operator's franchise, permit, license, or
other agreement. A broadband network operator that intends to
exercise that right shall deliver to the municipality written
notice of that intent. The notice must state each provision the
operator intends to accept and incorporate.
(e) If a municipality enters into or grants, or has entered
into or granted, a franchise, permit, license, or other agreement
of any kind with a broadband network operator that contains a
provision imposing an obligation that is less burdensome than an
existing obligation imposed by the municipality on another
broadband network operator, the broadband network operator to which
the more burdensome obligation applies has the right to reasonably
quantify the difference in the value of those obligations and
deduct that amount from payments made to the municipality under the
franchise, permit, license, or other obligation. A broadband
network operator that intends to exercise that right shall deliver
to the municipality written notice of that intent. The notice must
state the amount the operator intends to deduct. If the
municipality does not agree with the amount of the deduction, the
municipality shall notify the operator of that disagreement in
writing not later than the 10th business day after the date the
municipality receives the notice from the operator.
(f) If a municipality exempts a broadband network operator
or video service provider from a duty to obtain a franchise,
license, or permit or to enter into an agreement to provide service
in the municipality, the municipality may not impose that duty on
any other broadband network operator or video service provider.
(g) A municipality shall require a broadband network
operator offering video service or a video service provider subject
to municipal franchise authority to serve the same geographical
area within a reasonable period as any existing broadband network
operator is required to serve.
(h) A municipality may not discriminate against a broadband
network operator regarding:
(1) the authorization or placement of a facility in a
public right-of-way;
(2) access to a building; or
(3) a municipal utility pole attachment rate or term.
(i) A municipality or municipally owned utility may not
charge a pole attachment rate or underground conduit rate that
exceeds the rate the utility would be permitted to charge if the
utility's rates were regulated under federal law and the rules of
the Federal Communications Commission.
Sec. 60.205. PROHIBITION ON OTHER FEES AND NONMONETARY
COMPENSATION. (a) A municipality may not require a broadband
network operator to provide free service or any nonmonetary
compensation for the right or privilege to occupy or use the public
right-of-way.
(b) If a municipality receives free service or other
nonmonetary compensation under an existing franchise or other
agreement between the municipality and a broadband network
operator, the municipality shall grant the broadband network
operator a credit, offset, or deduction against a franchise fee or
similar charge in an amount comparable to the value of the free
service or other nonmonetary compensation.
(c) If a broadband network operator pays a franchise or
license fee or otherwise compensates a municipality for the right
or privilege of using the public right-of-way, the municipality may
not require the broadband network operator to pay the municipality
any other fee, including an application, permit, excavation, or
inspection fee. This subsection does not exempt a broadband
network operator that is also a certificated telecommunications
provider from the obligation to pay fees under Chapter 283, Local
Government Code.
(d) A municipality may not require a broadband network
operator to pay any compensation for the right or privilege to use
the public right-of-way in an amount that is greater than the amount
expressly authorized by federal law.
Sec. 60.206. REGULATORY AUTHORITY OF MUNICIPALITY. (a) A
municipality may enforce police-power-based regulations in the
management of a public right-of-way only to the extent that the
regulations apply to all persons within the municipality. A
municipality may enforce police-power-based regulations in the
management of the activities of a broadband network operator only
to the extent that the regulations are:
(1) reasonably necessary to protect the health,
safety, and welfare of the public; and
(2) competitively neutral and not unreasonable or
discriminatory.
(b) A municipality may not impose a regulation on an
activity that is within the sole business discretion of the
broadband network operator, including a requirement that:
(1) the broadband network meet or be upgraded to meet
certain technical specifications or standards;
(2) particular business offices be located in the
municipality;
(3) the operator file a report or document with the
municipality unless:
(A) federal or state law requires the operator to
file the report or document with the municipality; and
(B) the report or document is related to the use
of the public right-of-way;
(4) the operator allow the municipality to inspect the
operator's business records except to the extent necessary to
conduct a review to ensure compliance with fee obligations; or
(5) the operator obtain the municipality's approval of
a transfer of ownership or control of the business.
(c) Notwithstanding Subsection (b)(5), a municipality may
require a broadband network operator to:
(1) maintain a current point of contact; and
(2) provide notice of a transfer of ownership or
control of the business within a reasonable time.
Sec. 60.207. RELOCATION OF BROADBAND NETWORK. (a) It is
the policy of this state to design public improvement projects in a
manner that minimizes the relocation of a broadband network. If,
during the design of a public improvement project, a municipality
determines, based on information then available, that it may be
necessary to relocate any portion of a broadband network, the
municipality shall provide:
(1) the owner of the broadband network written notice
of the planned public improvement project;
(2) plans and drawings of the project that are
sufficient to enable the owner of the broadband network to develop
plans for the necessary relocation and to determine the cost of that
relocation; and
(3) the owner of the broadband network with an
opportunity to discuss potential design alternatives that could
avoid facility relocation.
(b) If, after discussing design alternatives as required by
Subsection (a)(3), the municipality determines, in the exercise of
sound engineering judgment, that a broadband network must be
relocated to accomplish a public improvement project, the
municipality and owner of the broadband network shall negotiate in
good faith to establish reasonable terms and conditions concerning
relocation of the broadband network.
(c) The owner of the broadband network shall bear the
expense of relocating the broadband network, except that if any
part of the public improvement project is financed with federal
funds, those funds, to the extent allowed by federal law, shall be
used to pay for the relocation of the broadband network in the same
proportion as those funds are used to finance the public
improvement project.
(d) A municipality may not request that the owner of a
broadband network relocate the same portion of a broadband network
before the fifth anniversary of the date that portion was last
relocated unless the municipality pays in advance for that
relocation.
(e) For purposes of this section, a beautification project
or the relocation of aerial facilities underground are not
considered to be a municipal public improvement project.
SECTION 2. This Act applies only to a franchise, permit,
license, or agreement that is entered into or granted on or after
the effective date of this Act. A franchise, permit, license, or
agreement that is entered into or granted before the effective date
of this Act is governed by the law in effect on the date it was
entered into or granted, and that law is continued in effect for
that purpose.
SECTION 3. This Act takes effect September 1, 2005.