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A BILL TO BE ENTITLED
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AN ACT
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relating to the deployment of network nodes in public |
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rights-of-way; authorizing fees. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle A, Title 9, Local Government Code, is |
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amended by adding Chapter 284 to read as follows: |
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CHAPTER 284. DEPLOYMENT OF NETWORK NODES IN PUBLIC RIGHTS-OF-WAY |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 284.001. FINDINGS AND POLICY. (a) The legislature |
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finds that: |
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(1) the design, engineering, permitting, |
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construction, modification, maintenance, and operation of network |
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nodes are instrumental to increasing access to advanced technology |
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and information for the citizens of this state; |
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(2) this state has delegated to each municipality the |
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fiduciary duty, as a trustee, to manage the public rights-of-way |
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for the health, safety, and welfare of the public, subject to state |
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law; |
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(3) network nodes often may be deployed most |
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effectively in the public rights-of-way; |
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(4) network providers' access to public rights-of-way |
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and the ability to attach network nodes to poles and structures in |
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those public rights-of-way allow network providers to densify their |
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networks and provide next-generation services; |
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(5) expeditious processes and reasonable and |
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nondiscriminatory compensation for use of the public rights-of-way |
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for network node deployments are essential to the construction and |
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operation of robust broadband communications networks; |
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(6) network nodes help ensure that this state remains |
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competitive in the global economy; |
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(7) the timely permitting of network nodes in public |
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rights-of-way is a matter of statewide concern and interest; and |
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(8) requirements of this chapter regarding fees, |
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charges, rates, and public rights-of-way management, when |
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considered with fees charged to other public rights-of-way users |
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under this code, are fair and reasonable and in compliance with 47 |
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U.S.C. Section 253. |
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(b) It is the policy of this state to promote the adoption of |
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and encourage competition in the provision of telecommunications |
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services, including wireless services, by reducing the barriers to |
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entry for providers of services so that the number and types of |
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services offered by providers continue to increase through |
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competition. |
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(c) It is the policy of this state that municipalities: |
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(1) retain the authority to manage the public |
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rights-of-way to ensure the health, safety, and welfare of the |
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public; and |
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(2) receive from telecommunications providers, |
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including network providers, fair and reasonable compensation for |
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use of the public rights-of-way. |
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Sec. 284.002. DEFINITIONS. In this chapter: |
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(1) "Antenna" means communications equipment that |
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transmits or receives electromagnetic radio frequency signals. |
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(2) "Applicable codes" means: |
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(A) uniform building, fire, electrical, |
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plumbing, or mechanical codes adopted by a recognized national code |
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organization; and |
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(B) local amendments to those codes enacted |
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solely to address imminent threats of destruction of property or |
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injury to persons to the extent not inconsistent with this chapter. |
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(3) "Collocate" and "collocation" mean the |
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installation, mounting, maintenance, modification, operation, or |
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replacement of network nodes in a public right-of-way on or |
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adjacent to an existing pole with the express, discretionary, and |
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written permission of the pole's owner. |
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(4) "Fee" means a one-time cost-recovery charge for |
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services performed. The term includes a charge for reviewing and |
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processing an application for a permit. |
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(5) "Law" means common law or a federal, state, or |
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local law, statute, code, rule, regulation, order, or ordinance. |
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(6) "Municipal pole" means: |
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(A) a pole, other than a municipally owned |
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utility pole, owned or operated by a municipality and located in a |
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public right-of-way, including a pole that supports lighting or |
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traffic control functions or a structure for signage; and |
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(B) a pole or similar structure owned or operated |
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by a municipality, located in a public right-of-way, and supporting |
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only network nodes. |
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(7) "Municipally owned utility pole" means a utility |
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pole owned or operated by a municipally owned utility, as defined by |
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Section 11.003, Utilities Code, and located in a public |
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right-of-way. |
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(8) "Network node" means equipment at a fixed location |
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that enables wireless communications between user equipment and a |
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communications network. The term: |
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(A) includes: |
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(i) equipment associated with wireless |
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communications; |
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(ii) a radio transceiver, an antenna, a |
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battery-only backup power supply, and comparable equipment, |
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regardless of technological configuration; and |
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(iii) coaxial or fiber-optic cable |
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necessary to serve the location, including such cable connecting |
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the network node to the fiber network at a length not to exceed 528 |
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feet; and |
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(B) does not include: |
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(i) an electric generator; or |
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(ii) a pole. |
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(9) "Network provider" means: |
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(A) a person granted a certificate of convenience |
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and necessity, certificate of authority, or service provider |
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certificate of authority by the Public Utility Commission of Texas |
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to provide telecommunications service in this state; and |
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(B) a person authorized and licensed by the |
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Federal Communications Commission to provide services classified |
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as "mobile services" by 47 C.F.R. Section 20.7. |
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(10) "Node support pole" means a pole installed by a |
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network provider for the primary purpose of supporting a network |
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node. |
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(11) "Permit" means a written authorization required |
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from a municipality before a network provider may perform an action |
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or initiate, continue, or complete a project over which the |
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municipality has regulatory authority. |
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(12) "Pole" means a municipal pole, municipally owned |
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utility pole, node support pole, or utility pole. |
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(13) "Public right-of-way" means the area on, below, |
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or above a public roadway, highway, street, public sidewalk, alley, |
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waterway, or utility easement in which the municipality has an |
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interest. The term does not include the airwaves above a public |
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right-of-way with regard to wireless telecommunications. |
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(14) "Public right-of-way rate" means an annual rental |
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charge paid by a network operator to a municipality for the use of a |
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public right-of-way in the municipality. |
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(15) "Utility pole" means a pole or similar structure |
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that supports a pole attachment, as defined by Section 252.001, |
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Utilities Code, and that provides: |
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(A) electric distribution with a voltage rating |
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of not more than 34.5 kilovolts; or |
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(B) services of a telecommunications utility, as |
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defined by Section 51.002, Utilities Code. |
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Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES. (a) |
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Except as provided by Section 284.108, a network node to which this |
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chapter applies must conform to the following conditions: |
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(1) each antenna that does not have exposed elements |
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and is attached to an existing structure: |
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(A) must be located inside an enclosure of not |
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more than six cubic feet in volume; |
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(B) may not exceed a height of three feet above |
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the existing structure; and |
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(C) may not protrude from the outer circumference |
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of the existing structure by more than two feet; |
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(2) if an antenna has exposed elements and is attached |
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to an existing structure, the antenna and all of the antenna's |
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exposed elements: |
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(A) must fit within an imaginary enclosure of not |
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more than six cubic feet; |
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(B) may not exceed a height of three feet above |
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the existing structure; and |
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(C) may not protrude from the outer circumference |
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of the existing structure by more than two feet; |
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(3) the cumulative size of other wireless equipment |
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associated with the network node attached to an existing structure |
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may not: |
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(A) be more than 28 cubic feet in volume; |
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(B) exceed a height of three feet above the |
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existing structure; or |
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(C) protrude from the outer circumference of the |
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existing structure by more than two feet; |
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(4) ground-based enclosures may not be higher than |
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four feet from grade, wider than four feet, or deeper than four |
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feet; and |
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(5) pole-mounted enclosures may not be taller than |
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five feet. |
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(b) The following types of associated ancillary equipment |
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are not included in the calculation of equipment volume under |
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Subsection (a): |
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(1) electric meters; |
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(2) concealment elements; |
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(3) telecommunications demarcation boxes; |
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(4) grounding equipment; |
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(5) power transfer switches; |
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(6) cut-off switches; and |
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(7) vertical cable runs for the connection of power |
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and other services. |
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(c) Equipment attached to node support poles may not |
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protrude from the outer circumference of the node support pole by |
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more than three feet. |
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(d) Equipment attached to a utility pole must be installed |
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in accordance with the National Electric Safety Code and the |
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utility pole owner's construction standards. |
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SUBCHAPTER B. USE OF PUBLIC RIGHTS-OF-WAY |
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Sec. 284.051. APPLICABILITY OF SUBCHAPTER. (a) This |
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chapter applies only to activities of a network provider |
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constructing, operating, and maintaining a network node in a public |
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right-of-way and municipal authority in relation to those |
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activities. |
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(b) Use of a public right-of-way for other |
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telecommunications facilities installed by a network provider is |
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governed by Chapter 283. |
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Sec. 284.052. EXCLUSIVE USE PROHIBITED. A municipality may |
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not enter into an exclusive arrangement with any person for use of |
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the public rights-of-way for the construction, operation, |
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marketing, or maintenance of network nodes or node support poles. |
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Sec. 284.053. PUBLIC RIGHT-OF-WAY RATE OR FEE FOR USE OF |
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PUBLIC RIGHTS-OF-WAY. (a) A public right-of-way rate or fee for |
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use of the public rights-of-way may not exceed an annual amount |
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equal to $1,000 multiplied by the number of node support poles and |
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utility poles, other than municipally owned utility poles, inside |
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the municipality's corporate boundaries on which the network |
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provider has installed a network node. |
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(b) At the municipality's discretion, the municipality may |
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charge a network provider a lower rate or fee if the lower rate or |
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fee is: |
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(1) nondiscriminatory; |
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(2) related to the use of the public rights-of-way; |
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and |
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(3) not a prohibited gift of public property. |
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Sec. 284.054. PUBLIC RIGHT-OF-WAY RATE OR FEE ADJUSTMENT. |
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A municipality shall adjust the amount of the public right-of-way |
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rate or fee annually to reflect the previous year's annual rate of |
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inflation as determined by the Public Utility Commission of Texas. |
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The new rate or fee takes effect for the first payment due to the |
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municipality on or after the 60th day after the date the commission |
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makes the determination. |
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Sec. 284.055. PUBLIC RIGHT-OF-WAY RATE OR FEE APPLICABLE TO |
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TELECOMMUNICATIONS NETWORK. (a) The right-of-way fee provisions |
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of Subchapter B, Chapter 283, apply to the use of a public |
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right-of-way for telecommunications network facilities, other than |
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network nodes, installed by a network provider. |
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(b) For the purposes of calculating the right-of-way fee |
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under Subchapter B, Chapter 283: |
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(1) each network node is considered to be an end-use |
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customer termination point as specified in the definition of |
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"access line" in Section 283.002(1)(A)(ii); and |
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(2) the exception provided by Section 283.002(1)(B) |
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does not apply. |
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(c) Notwithstanding Section 283.056, a network provider is |
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responsible for paying both the public right-of-way rate or fee |
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required by this chapter and any applicable right-of-way fee |
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required by Chapter 283. |
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SUBCHAPTER C. ACCESS AND APPROVALS |
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Sec. 284.101. RIGHT OF ACCESS TO PUBLIC RIGHTS-OF-WAY. (a) |
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Except as specifically provided by this chapter and, subject to the |
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requirements of this chapter and the approval of a permit |
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application, if required, a network provider is entitled, as a |
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permitted use that is not subject to zoning review or similar |
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approval, and is not subject to further land use approval in an area |
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that is not zoned, to do the following in the public rights-of-way: |
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(1) construct, modify, maintain, and operate a network |
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node; |
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(2) construct, modify, maintain, and operate a utility |
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pole or network support pole; and |
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(3) collocate on a pole with the discretionary, |
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nondiscriminatory, and express written consent of the pole's owner. |
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(b) A network provider taking an action authorized by |
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Subsection (a) is subject to applicable codes. |
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Sec. 284.102. GENERAL CONSTRUCTION AND MAINTENANCE |
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REQUIREMENTS. A network provider shall construct and maintain |
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structures and facilities described by Section 284.101 in a manner |
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that does not: |
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(1) obstruct, impede, or hinder the usual travel or |
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public safety on a public right-of-way; |
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(2) obstruct the legal use of a public right-of-way by |
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other utility providers; |
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(3) violate applicable codes; |
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(4) violate or conflict with the municipality's |
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publicly disclosed public rights-of-way design specifications; or |
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(5) violate the federal Americans with Disabilities |
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Act of 1990 (42 U.S.C. Section 12101 et seq.). |
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Sec. 284.103. GENERAL LIMITATION ON PLACEMENT OF POLES. A |
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network provider shall ensure that each new, modified, or |
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replacement utility pole or node support pole installed in a public |
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right-of-way in relation to which the network provider received |
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approval of a permit application: |
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(1) does not exceed the greater of: |
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(A) 10 feet in height above the tallest existing |
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utility pole located within 500 linear feet of the new pole in the |
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same public right-of-way; or |
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(B) 50 feet above ground level; and |
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(2) is spaced at least 300 linear feet from the nearest |
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existing pole that is capable of supporting network nodes and is |
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located in a public right-of-way. |
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Sec. 284.104. INSTALLATION IN RESIDENTIAL AREAS. (a) A |
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network provider may not install a new node support pole in a |
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public right-of-way without the municipality's discretionary, |
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nondiscriminatory, and written consent if the public right-of-way |
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is adjacent to a street or thoroughfare: |
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(1) that is not more than 50 feet wide; and |
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(2) both sides of which are adjacent to single-family |
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residential lots or other multifamily residences. |
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(b) In addition to the requirement prescribed by Subsection |
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(a), a network provider installing a network node or node support |
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pole in a public right-of-way described by Subsection (a) shall |
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comply with private deed restrictions and other private |
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restrictions in the area that apply to those facilities. |
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Sec. 284.105. EQUIPMENT CABINETS. A network provider shall |
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ensure that the vertical height of an equipment cabinet installed |
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as part of a network node does not exceed the height limitation |
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prescribed by Section 284.003, subject to approval of the pole's |
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owner if applicable. |
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Sec. 284.106. COMPLIANCE WITH UNDERGROUNDING REQUIREMENT. |
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(a) A network provider shall, in relation to installation for which |
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the municipality approved a permit application, comply with |
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nondiscriminatory undergrounding requirements, including |
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municipal ordinances, zoning regulations, state law, private deed |
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restrictions, and other public or private restrictions, that |
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prohibit installing aboveground structures in a public |
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right-of-way without first obtaining zoning or land use approval. |
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(b) A requirement or restriction described by Subsection |
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(a) may not be interpreted to prohibit a network provider from |
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replacing an existing structure. |
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Sec. 284.107. DESIGN MANUAL. (a) A municipality may adopt |
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a design manual for the installation and construction of network |
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nodes and new node support poles in the public rights-of-way that |
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includes additional installation and construction details that do |
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not conflict with this chapter. |
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(b) A network provider shall comply with the design manual |
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in relation to work for which the municipality approved a permit |
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application. |
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Sec. 284.108. EXCEPTIONS. Subject to Subchapter D, a |
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network provider may construct, modify, or maintain in a public |
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right-of-way a network node or network support pole that exceeds |
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the height or distance limitations prescribed by this chapter only |
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if the municipality approves the construction, modification, or |
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maintenance subject to all applicable zoning or land use |
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regulations and applicable codes. |
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Sec. 284.109. DISCRIMINATION PROHIBITED. A municipality, |
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in the exercise of the municipality's administrative and regulatory |
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authority related to the management of and access to the public |
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rights-of-way, must be competitively neutral with regard to other |
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users of the public rights-of-way. |
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SUBCHAPTER D. APPLICATIONS AND PERMITS |
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Sec. 284.151. PROHIBITION OF CERTAIN MUNICIPAL ACTIONS. |
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(a) Except as otherwise provided by this chapter, a municipality |
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may not prohibit, regulate, or charge for the installation or |
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collocation of network nodes in a public right-of-way. |
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(b) A municipality may not directly or indirectly require, |
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as a condition for issuing a permit required under this chapter, |
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that the applicant perform services unrelated to the installation |
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or collocation for which the permit is sought, including in-kind |
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contributions such as reserving fiber, conduit, or pole space for |
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the municipality. |
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(c) A municipality may not institute an express or de facto |
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moratorium on: |
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(1) filing, receiving, or processing applications; or |
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(2) issuing permits or other approvals, if any, for |
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the installation of network nodes or node support poles. |
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Sec. 284.152. AUTHORITY TO REQUIRE PERMIT. (a) A |
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municipality may require a network provider to obtain one or more |
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permits to install a network node or node support pole in a public |
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right-of-way if the permit: |
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(1) is of general applicability to users of the public |
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rights-of-way; and |
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(2) does not apply exclusively to network nodes. |
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(b) A network provider that wants to install or collocate |
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multiple network nodes inside the territorial jurisdiction of a |
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single municipality is entitled to file a consolidated permit |
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application with the municipality for not more than 30 network |
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nodes and receive a single permit for the installation or |
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collocation of those network nodes. |
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Sec. 284.153. GENERAL PROCESS RELATING TO PERMIT |
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APPLICATION. (a) Except as otherwise provided by this section, a |
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municipality may not require an applicant to provide more |
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information to obtain the permit than a telecommunications utility |
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that is not a network provider is required to provide. |
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(b) As part of the standard form for a permit application, a |
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municipality may require the applicant to include applicable |
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construction and engineering drawings and information to confirm |
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that the applicant will comply with the municipality's publicly |
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disclosed public rights-of-way design specifications and |
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applicable codes. |
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(c) A municipality may require an applicant to provide: |
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(1) information reasonably related to the provider's |
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use of the public rights-of-way under this chapter: |
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(A) to ensure compliance with this chapter; and |
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(B) as reasonably necessary to demonstrate that |
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the proposed network node will comply with applicable regulations |
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of the Federal Communications Commission; and |
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(2) reasonable evidence that the proposed network node |
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will be placed into active commercial service by or for a provider |
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of retail telecommunications service immediately after the date the |
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construction and final testing of the network node is completed. |
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Sec. 284.154. MUNICIPAL REVIEW PROCESS. (a) A |
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municipality shall process each permit application on a |
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nondiscriminatory basis. |
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(b) Not later than the 30th day after the date the |
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municipality receives an application, the municipality shall |
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determine whether the application is complete and notify the |
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applicant of that determination. If the municipality determines |
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that the application is not complete, the municipality shall |
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specifically identify the missing information. |
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(c) A municipality shall approve an application that does |
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not require zoning or land use approval under this chapter unless |
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the application or the corresponding work to be performed under the |
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permit does not comply with the municipality's applicable codes. |
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(d) A municipality must approve or deny a complete |
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application for a new node support pole not later than the 150th day |
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after the date the municipality receives the application. The |
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municipality must approve or deny all other complete applications |
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not later than the 90th day after the date the municipality receives |
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the application. |
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(e) A municipality that denies a complete application must |
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document the basis for the denial, including the specific |
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applicable code provisions on which the denial was based. The |
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municipality shall send the documentation to the applicant on or |
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before the date the authority denies the application. |
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(f) Not later than the 30th day after the date the |
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municipality denies the application, the applicant may cure the |
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deficiencies identified in the denial documentation and resubmit |
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the application without paying an additional application fee, other |
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than a fee for actual costs incurred by the municipality. |
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Notwithstanding Subsection (d), the municipality shall approve or |
|
deny the revised application not later than the 45th day after the |
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date the municipality receives the revised application. The |
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municipality's review of the revised application is limited to the |
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deficiencies cited in the denial documentation. |
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Sec. 284.155. TIME OF INSTALLATION. (a) A network provider |
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shall begin the installation for which a permit is granted not later |
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than the 90th day after the date the permit is approved and shall |
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complete the installation not later than the 180th day after the |
|
date the installation begins. |
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(b) Notwithstanding Subsection (a), the municipality may |
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place a longer time limit on completion or grant reasonable |
|
extensions of time as requested by the network provider. |
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Sec. 284.156. APPLICATION FEES. (a) A municipality may |
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charge an application fee for a permit only if the municipality |
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requires the payment of the fee for similar types of commercial |
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development inside the municipality's territorial jurisdiction |
|
other than a type for which application or permit fees are not |
|
allowed by law. |
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(b) The amount of an application fee charged by a |
|
municipality must be: |
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(1) based on the actual, direct, and reasonable costs |
|
the municipality determines are incurred in granting or processing |
|
an application; and |
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(2) reasonably related in time to the time the costs of |
|
granting or processing an application are incurred. |
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(c) In determining for purposes of Subsection (b) the amount |
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of the actual, direct, and reasonable costs, the municipality: |
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(1) may include reasonable and direct reimbursement of |
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costs incurred by the municipality in relation to third-party legal |
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or engineering review of an application, including reasonable and |
|
necessary travel expenses in this state; and |
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(2) may not include direct payments or reimbursement |
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of third-party public right-of-way rates or fees charged on a |
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contingency basis or under a result-based arrangement. |
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(d) Payment by a network provider of applicable application |
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fees under this chapter does not affect the provisions of Section |
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283.056 that prohibit a municipality from requiring the provider to |
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pay application or permit fees in relation to telecommunications |
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facilities, other than network nodes, that the provider installs in |
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the public rights-of-way. |
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Sec. 284.157. CERTAIN WORK EXEMPTED. (a) A municipality |
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may not require a network provider to submit an application for: |
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(1) routine maintenance that does not require |
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excavation or closing of sidewalks or vehicular lanes in a public |
|
right-of-way; or |
|
(2) replacing or upgrading a network node or pole with |
|
a node or pole that is substantially similar in size or smaller and |
|
that does not require excavation or closing of sidewalks or |
|
vehicular lanes in a public right-of-way. |
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(b) For purposes of Subsection (a)(2): |
|
(1) a pole or network node is considered to be |
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"substantially similar" if: |
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(A) the new or upgraded pole will not be more than |
|
10 percent higher than the existing pole, provided that the |
|
increase may not result in the pole exceeding the applicable height |
|
limitations prescribed by Section 284.103; and |
|
(B) the new or upgraded network node, including |
|
the antenna or other equipment element, will not be more than 10 |
|
percent larger than the existing node, provided that the increase |
|
may not result in the node exceeding the size limitations provided |
|
by Section 284.003; |
|
(2) the replacement or upgrade does not include |
|
replacement of an existing node support pole; and |
|
(3) the replacement or upgrade does not defeat |
|
existing concealment elements of a node support pole. |
|
(c) The determination under Subsection (b)(1) of whether a |
|
replacement or upgrade is substantially similar is made by |
|
measuring from the dimensions of the network node or node support |
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pole as approved by the municipality. |
|
(d) Notwithstanding Subsection (a): |
|
(1) a municipality may require advance notice of work |
|
described by that subsection; and |
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(2) a network provider may replace or upgrade a pole |
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only with the approval of the pole's owner. |
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SUBCHAPTER E. ACCESS TO AUTHORITY STRUCTURES |
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Sec. 284.201. USE NOT MANDATED. This chapter may not be |
|
construed to require that a municipality allow collocation of |
|
network nodes on a municipal pole or a municipally owned utility |
|
pole. |
|
Sec. 284.202. NONDISCRIMINATORY USE OF MUNICIPAL POLES. A |
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municipality that chooses to allow collocation of network nodes on |
|
municipal poles must comply with Section 54.204, Utilities Code. |
|
SUBCHAPTER F. GENERAL CONDITIONS OF ACCESS |
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Sec. 284.251. LOCAL POLICE-POWER-BASED REGULATIONS. (a) |
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Subject to this chapter and applicable federal and state law, a |
|
municipality may continue to exercise zoning, land use, planning, |
|
and permitting authority in the municipality's boundaries, |
|
including with respect to utility poles. |
|
(b) A municipality may exercise that authority to impose |
|
police-power-based regulations for the management of the public |
|
rights-of-way that apply to all persons subject to the |
|
municipality. |
|
(c) A municipality may impose police-power-based |
|
regulations in the management of the activities of network |
|
providers in the public rights-of-way only to the extent that the |
|
regulations are reasonably necessary to protect the health, safety, |
|
and welfare of the public. |
|
Sec. 284.252. INDEMNIFICATION. The indemnification |
|
provisions of Sections 283.057(a) and (b) apply to a network |
|
provider accessing a public right-of-way under this chapter. |
|
Sec. 284.253. RELOCATION. A network provider shall |
|
relocate or adjust network nodes in a timely manner and without cost |
|
to the municipality if the municipality requires the relocation or |
|
adjustment to accommodate public improvements constructed on |
|
behalf of the municipality in a public right-of-way. |
|
Sec. 284.254. INTERFERENCE. (a) A network provider shall |
|
operate all network nodes in accordance with all applicable laws, |
|
including regulations adopted by the Federal Communications |
|
Commission. |
|
(b) A network provider shall ensure that the operation of a |
|
network node does not cause any harmful radio frequency |
|
interference to a Federal Communications Commission-authorized |
|
mobile telecommunications operation of the municipality operating |
|
at the time the network node was initially installed or |
|
constructed. On written notice, a network provider shall take all |
|
steps reasonably necessary to remedy any harmful interference. |
|
SECTION 2. (a) In this section, "collocation," "fee," |
|
"network node," "node support pole," "public right-of-way," and |
|
"public right-of-way rate" have the meanings assigned by Section |
|
284.002, Local Government Code, as added by this Act. |
|
(b) Not later than the first anniversary of the effective |
|
date of this Act, each municipality that charges a public |
|
right-of-way rate or fee to construct, install, mount, maintain, |
|
modify, operate, or replace a network node or node support pole in a |
|
public right-of-way, including collocation in a public |
|
right-of-way, shall: |
|
(1) determine whether the rate or fee complies with |
|
the requirements prescribed by Section 284.053, Local Government |
|
Code, as added by this Act; and |
|
(2) if the rate or fee does not comply, amend the rate |
|
or fee for all persons in any manner necessary for compliance. |
|
SECTION 3. This Act takes effect immediately if it receives |
|
a vote of two-thirds of all the members elected to each house, as |
|
provided by Section 39, Article III, Texas Constitution. If this |
|
Act does not receive the vote necessary for immediate effect, this |
|
Act takes effect September 1, 2017. |