Sec. 4.501 Purpose
The purpose of this article is to:
(1) Provide for the management and governing of the city’s public rights-of-way in connection with their use for telecommunications purposes pursuant to this article; and
(2) Provide compensation to the city from telecommunications service providers for their use and occupancy of the city’s public rights-of-way.
Sec. 4.502 Definitions
The following terms, including their singulars, plurals and possessives, shall have the definitions provided in this article unless the context clearly indicates otherwise.
Access Line.
(1) Each switched transmission path of the transmission media within the city’s public rights-of-way extended to the end-user customer’s premises network interface within the city that allows delivery of telecommunications service;
(2) Each loop provided as an unbundled network element to a person pursuant to an agreement under Section 252 of the Federal Telecommunications Act of 1996; and
(3) Each termination point of a non-switched telephone circuit consisting of transmission media connecting specific locations identified by, and provided to, the end user for the delivery of non-switched telecommunications service within the city.
Cable Service. “Cable service” as defined in the “Cable Communications Policy Act of 1984,” as amended.
City. The City of Oak Leaf, Texas.
City Council. The city council of the City of Oak Leaf, Texas.
Direction of the City. The lawful ordinances, rules, resolutions, and regulations of the city that are not inconsistent with this article, whether now in force or hereafter adopted.
Facilities. All of the duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated transmission media used to provide telecommunications service.
Line Fee. A monthly fee to be applied to each access line for the calculation of the total amount to be paid to the city as compensation for public rights-of-way use.
Permit Holder. Any telecommunications service provider issued or granted a permit under this article.
Person. A natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association or any other entity recognized by law. Such word shall not include the city.
Public Utility. “Public Utility” as the term is defined in the Public Utility Regulatory Act of 1995, Tex. Utilities Code Ann. Β§ 11.004.
Public Right-of-Way. The area on, below or above a public roadway, highway, street, public sidewalk, alley, 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 telecommunications. Nothing in this article shall be construed as the city’s authorizing the use by a telecommunications service provider of any public right-of-way exceeding the scope, right or authority of the city’s rights in and to any such rights-of-way.
Right-of-Way Fee. The total amount paid to the city on a quarterly basis for the use and occupancy of the public rights-of-way.
Telecommunications Service. The transmittal of voice, data, image, graphics, and other communications between or among points by wire, fiber optics or other similar facilities, as well as the rental, lease or furnishing of the facilities to accomplish such transmittal, but does not include transmissions for long distance purposes (interLATA and intraLATA) or any “wireless service” as defined by law.
Telecommunications Service Provider. A person who has been issued a certificate of convenience and necessity, certificate of operating authority or service provider certificate of operating authority to offer local exchange telephone service.
Telecommunications Utility. “Telecommunications utility” as used in the Public Utility Regulatory Act of 1995, Tex. Utilities Code Ann. Β§51.002(11).
Transmission Media. All of the cables, fibers, wires or other physical devices owned, maintained or placed by a permit holder to transmit and/or receive communication signals, whether analog, digital or of other characteristics, and whether for voice, data or other purposes unless expressly prohibited by this article.
Use and Occupancy. A permit holder’s acquisition, installation, construction, reconstruction, maintenance, repair, control or operation of facilities within the city’s public rights-of-way pursuant to this article.
Sec. 4.503 Requirement for Permit and Granting Clause
Any person who owns, places or maintains facilities within the city’s public rights-of-way shall first obtain a permit from the city. The city shall issue permits to telecommunications service providers for the purpose of regulating the use and occupancy of the public rights-of-way for access lines. By acceptance of the permit, a permit holder shall acknowledge its legal obligation to abide by the terms of this article. The city shall, by subsequent ordinance or resolution, provide the format and directions for the submission of permit applications.
Sec. 4.504 General Terms of the Article
(a) Notwithstanding the enactment of this article, the city shall have the power to grant franchises, licenses, easements or permits, to use the city’s public rights-of-way to any person as the city, in its sole discretion, may determine to be in the public interest.
(b) A permit holder shall not be authorized to provide cable service under this article, but must first obtain a franchise from the city.
(c) The initial term of each permit issued under this article shall be one (1) year from the date of issuance. At the expiration of the initial term, the permit term shall be automatically extended for successive periods of one year unless the city gives written notice of its intent to terminate such permit to the permit holder not less than ninety (90) days prior to the end of the then current permit term or unless the permit holder sends notice of its intent to terminate the permit at the expiration of the then current term.
(d) The rights granted by the issuance of a permit shall not be assigned, transferred or sold to another person by a permit holder without the express written consent of the city, which shall not be unreasonably withheld.
Sec. 4.505 Compensation
(a) Right-of-Way Fee. Each permit holder shall pay the city a right-of-way fee on each access line owned, placed, controlled or maintained by each permit holder and which is activated for use by an end-user utilizing a permit holder’s facilities in the city. The line fee shall be applied to each access line on a monthly basis, at month’s end, and shall be as set by resolution of council.
For purposes of payment of fees for use of the public rights-of-way, lines terminating at customer’s premises that are billed as “Lifeline,” “Tel-Assistance,” or other service that is required to be similarly discounted pursuant to state or federal law or regulation for the purpose of advancing universal service to the economically disadvantaged shall not be included in the access lines upon which the fee is calculated.
(b) Number of Access Lines. Each permit holder shall provide annually, on or before September 1st of each calendar year, commencing September 1, 2000, a confidential report disclosing, by number and type the access lines owned, placed, controlled or maintained by the permit holder within the city that have been activated for end-user customers and other telecommunications service providers in each of the preceding twelve (12) calendar months. The city shall not disclose such report to the public and the report shall be used solely for the purpose of verifying the number of each permit holder’s access lines within the city that are activated for end-user customers and telecommunications service providers. Upon written request, a permit holder shall verify such reports.
(c) Annexation and Disannexation. Within thirty (30) days after the date of the final passage of any annexation or disannexation ordinance, the city shall furnish each permit holder written notice of such action and an accurate map of the city’s revised corporate boundaries showing, if available, street names. A permit holder shall commence including, or excluding access lines within the affected area in a permit holder’s count of access lines
(1) on the effective date designated by the Comptroller of Public Accounts of the State of Texas for the imposition of state local sales and use taxes, or
(2) thirty (30) days after the date on which a permit holder is notified by the city of the annexation or disannexation, whichever date is later.
(d) Confidential Records. If a permit holder notifies the city of the confidential nature of any information, reports, documents or writings, the city will maintain the confidentiality of the information, reports, documents, and writings to the extent permitted by law. Furthermore, the requirement of confidentiality shall not apply to data, information or materials within the public domain upon such determination by the city council. Upon receipt by the city of a request for a permit holder’s confidential information, reports, documents or writings, the city shall promptly notify a permit holder of the request in writing and by facsimile transmission. The city shall request and obtain an attorney general’s opinion before disclosing any confidential information, reports, documents or writings and will furnish a permit holder with copies of all attorney general opinion requests it makes pertaining to a permit holder’s confidential information, reports, documents or writings. The city’s reasonable costs and attorney’s fees in connection with the submission to the attorney general (as well as those relating to any mandates or other legal proceeding regarding such request) shall be reimbursed by the permit holder. If more than one permit holders confidential information is requested, the city’s reasonable costs and, attorney’s fees shall reasonably be apportioned to the permit holders by the city council.
(e) No Other Fees. The use and occupancy payments due hereunder shall be in lieu, of any permit, license, approval, inspection, or other similar fees or charges, including, but not limited to, all general business license fees, if any, assessed by the city for the use of the public rights-of-way against persons operating businesses similar to that of a permit holder. Further, such payments shall constitute full compensation to the city for all of a permit holder’s facilities located within the public rights-of-way, including interoffice-transport and other transmission media that do not terminate at and end-user customer’s network interface device, even though those types of lines are not used in the calculation of payment. Notwithstanding anything contained in this article to the contrary, nothing in this article shall be construed as exempting or excusing a permit holder from paying ad valorem, (property) taxes to the city and/or sales tax.
(f) Timing of Payment. Each permit holder shall remit the access line fee to the city, on a quarterly basis. The payment shall be due on the forty-fifth (45th) day following the close of each calendar quarter for which the payment is calculated. Past due payments shall accrue interest at the rate of fifteen (15%) per annum commencing on the first day after the due date.
(g) Uncollectibles. Each permit holder may pass through to its customers, on a pro rata basis, any compensation paid to the city for access to the public rights-of-way. Any other provision of this article notwithstanding, a permit holder, shall not be obligated to pay the city for any access lines for which revenues remain uncollectible.
(h) Facilities Provided to Other Telecommunication Service Providers. To the extent allowed by applicable state and federal law, any telecommunications service provider that purchases from a permit holder any unbundled network elements or other facilities for the purpose of creating telecommunications service for sale to persons within the city shall pay directly to the city a rights-of-way fee as calculated and specified by subsection (a) of this section. Other provisions of this article notwithstanding, a permit holder shall not include in its monthly count of access lines any unbundled network elements or other facilities provided to other telecommunications service providers for the provision of telecommunications services, if the other telecommunications service provider that is providing the telecommunications services to end user customers has provided a signed statement to a permit holder (from whom such unbundled network elements or other facilities were acquired) that the telecommunications service provider is paying the access line fees applicable to those services directly to the city. If a permit holder provides a copy of the signed statement to the city, then such permit holder is absolved of all responsibility for the access line fees payable on the telecommunications service, unbundled network elements, and other facilities used in the provision of those telecommunications services within the city.
(i) Fee Application to Leased Facilities. A permit holder shall collect the access line fee imposed by the city pursuant to this article through a pro rata charge to the customers in the boundaries of the city, including any other persons who are leasing, reselling or otherwise using a permit holder’s access lines to provide telecommunications service. With respect to any person leasing, reselling, or otherwise using a permit holder’s access lines, if a permit holder believes it does not have sufficient information to determine the appropriate rate to apply, then the higher access line fee shall apply until such time as the person using the access lines provides to a permit holder sufficient written information to determine the correct access line fee. If a person provides sufficient written information for the application of the access line fee, a permit holder may bill the person on the basis of the information provided. A permit holder shall provide to the city any information regarding the locations to which it is providing service or facilities for use by another person for the provision of telecommunications service to end-user customers, so long as city first obtains written permission from such other person for a permit holder to provide the information to the city. Any other provision of this article notwithstanding, however, a permit holder shall not be liable for underpayment of access line fees resulting from a permit holder’s reliance upon the written information provided by any person that uses a permit holder’s service or facilities for the provision of telecommunications service to end-user customers.
Sec. 4.506 Construction and Maintenance of Facilities
(a) The location and route of all facilities and transmission media placed, constructed or relocated in the public rights-of-way shall be subject to the lawful police power of the city.
(b) Nothing contained in this article shall be construed to require or permit the attachment on or placement in a permit holder’s facilities of any electric light or power wires or communications facilities or other systems not owned by a permit holder. If the city desires to attach or place electric light or power wires, communications facilities or other similar systems or facilities in or on a permit holder’s facilities, then a further separate, noncontingent agreement with a permit holder shall be required. Nothing contained in this article shall obligate a permit holder to exercise or restrict a permit holder from exercising its right to enter voluntarily into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with any person authorized to operate as a public utility or a telecommunications utility or authorized to offer cable service within the city.
(c) The surface of the public rights-of-way disturbed by a permit holder in the construction, operation, maintenance or replacement of its telecommunications system shall be restored within a reasonable time after completion of the work to as good a condition as before the commencement of the work. The permit holder shall endeavor to minimize disruptions to the efficient use of the public rights-of-way by pedestrian and vehicular traffic, and public rights-of-way shall not be blocked for a longer period than reasonably necessary to properly complete all construction, maintenance or replacement work.
(d) Upon request, a permit holder shall remove or raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses or other bulky structures. A person requesting such action shall pay the expense of such temporary rearrangements, and a permit holder may require reasonable payment in advance. The permit holder shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary raising or lowering.
(e) Permit holders and their respective contractors and agents have the same right, permission and license as the city may have to trim trees upon and overhanging the public rights-of-way to prevent trees from coming in contact with a permit holder’s facilities and transmission media. When directed by the city, tree trimming shall be done under the supervision and direction of the city or under the supervision of, the city’s delegated representative.
Sec. 4.507 Relocation and Removal of Facilities
(a) Upon thirty (30) days notice by the city, a permit holder shall begin relocation of its facilities within the public rights-of-way at its own expense to permit the widening, straightening or improvement of public rights-of-way. The notice by the city shall specify of the new location for a permit holder’s facilities along the public right-of-way.
(b) The city retains the right to move any permit holder’s facilities within the public rights-of-way to cure or otherwise address a public health or safety emergency. The city shall cooperate to the extent possible with a permit holder in such instances to assure continuity of service and to afford to a permit holder the opportunity to make such relocation itself.
Sec. 4.508 Indemnification
(a) Each permit holder shall indemnify and hold the city and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, 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 permit holder, any agent, officer, director, representative, employee, affiliate, or subcontractor of the permit holder, or their respective officers, agents, employees, directors, or representatives while installing, repairing, replacing or maintaining facilities in the public rights-of-way. The indemnity provided by this subsection does not apply to any liability resulting from negligence of the city, its officers, employees, contractors, or subcontractors. If a permit holder and the city 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 city under state law and without waiving any defenses of the parties under state law. This section is solely for the benefit of the city and permit holder and does not create or grant any rights, contractual or otherwise, to any other person or entity.
(b) A permit holder or the city, as the case may be, shall promptly advise the other in writing of any known claim or demand against the permit holder or the city relating to or arising out of the permit holder’s activities in the public rights-of-way.
Sec. 4.509 Administration of Article
(a) The city may, at any time, make reasonable inquiries pertaining to the terms, conditions, rights and obligations of this article, and a permit holder shall respond to such inquiries on a timely basis.
(b) Copies of petitions, applications, and reports submitted by a permit holder to the Federal Communications Commission or the Public Utility Commission of Texas shall be provided to the city upon specific request.
(c) After reasonable notice to a permit holder, the city may establish, to the extent permitted by law, such reasonable and non-discriminatory rules and regulations as may be appropriate for the administration of this article and the construction of a permit holder’s facilities in the public rights-of-way, so long as those rules and regulations are completely neutral.
Sec. 4.510 Governing Law
This article shall be construed in accordance with Texas Law to the extent it is not in conflict with the Constitution of the United States or pre-empted by federal law.
Sec. 4.511 Permit
Any person who owns, operates, manages, or controls facilities already located within the public rights-of-way on the date this article is enacted shall be entitled to a permit hereunder but shall, within thirty (30) days after the effective date of this article, complete and submit to the city the same application form and information required from any other permit applicant. In addition, any such “already located” person shall, within thirty (30) days from the effective date of this article, provide the city a Notice of Pre-existing Facilities. All prospective permit holders shall file a Permit Application Form at least thirty (30) days before placing, using, owning, leasing or controlling any facilities in the public rights-of-way. A Permit Application form will not be accepted and a permit granted unless the applicant provides on that form the name and address of the person to whom notices hereunder are to be sent, the date on which the applicant expects to begin providing service within the city, a 24-hour per day contact number for the applicant, and the certificate number of the applicant’s certificate issued by the Public Utility Commission of Texas or a notarized statement from a principal or officer of the applicant at no certification by the Public Utility Commission is required for the type of service to be offered by applicant. The application shall be signed by an authorized officer of the applicant, who shall agree and bind the applicant to abide by all lawful provisions of this article and any amendments hereto.
Sec. 4.512 Issuance and Effective Date of Permit
The city shall deliver a certified copy of this article to a permit holder, along with a permit hereunder, within fourteen (14) days after receipt of the Notice of Pre-Existing Facilities or the Permit Application Form. The effective date for any permit shall be the date of issuance; however, the assessment of the access line fee shall not begin until the first day in the second calendar month after the date of issuance of the permit. With respect to permit holders with pre-existing facilities, the assessment of access line fees shall commence October 1, 1999.
Sec. 4.513 Effective Date of Article
This article shall be in full force and effect immediately upon its passage by the city council.
(Ordinance 0002 adopted 1/4/01)
