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(B) Section 52.20 of this chapter applies to a provider that has a property interest in a network.
(1998 Code, § 122-180) (Ord. 99-15, passed 4-7-1999)
A provider shall compensate the city by payment of the fees as provided below.
(A) Access line fee calculation. To compensate the city for the use of the rights-of-way, a provider whose telecommunications network is used to serve persons in the city shall pay the city a monthly fee to be calculated as provided below for each access line owned or used by the provider, as calculated as of month-end, that is activated for use by an end user customer of the provider or of another person as a certificated telecommunications utility, by lease or otherwise, subject to division (F) below or of any other person;
(1) Access line fee calculation amount.
(a) Following the effective date of the municipal consent, a provider shall submit to the Public Works Director or his or her designee on a quarterly basis, a certified statement by a duly authorized representative of the provider, together with the access line fee payment under § 52.12 of this chapter, indicating the number of access lines used to provide telecommunications service at month end, for each month of the quarter and for each customer type identified herein. The statement shall be provided on a form prescribed by the Public Works Director or his or her designee.
(b) For each month of the quarter following the effective date of the municipal consent, a provider shall pay an access line fee which is based upon its number of access lines calculated as follows:
Access Line Fee Calculation Amount | Monthly Amount Per Access Line From Effective Date |
Type (1) or (2): | |
Non-residential | $2.35 - May 1, 1999 |
Residential | $1.00 - May 1, 1999 |
Type (3): | |
Private line termination point(s) | $2.35 - May 1, 1999 |
(c) The City Commission reserves the right to make reasonable adjustments to the access line fee, but not to exceed 10% in any one year, to be effective in no less than 180 days from date of the commission action.
(d) Amounts appearing above are used to calculate the total compensation due the city and are not to be construed as the setting of a charge for end-users.
(e) To the extent allowed by law, and not at the direction or request of the city, pursuant to Tex. Utilities Code § 54.206, a provider has the discretion to collect the access line fee imposed by the city pursuant to this chapter through a pro rata charge to the customers in the boundaries of the city, including from any other persons who are leasing, reselling, rebundling or otherwise using the provider’s access lines to provide telecommunications service.
(f) For purposes of this section only, lines terminating at customers with “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 lines upon which the fee is calculated, but provider shall provide information on the number of such lines upon request by the city.
(2) Number of access lines. Subject to city’s agreement not to disclose this information unless required by law, the provider agrees to provide as requested by the city, but no more than once annually, within a reasonable time after receipt of the city’s written request, a report showing the number of access lines being maintained or operated by provider that are serving premises within the city. The city agrees that the report shall be used solely for the purposes of verifying the number of provider’s access lines serving premises within the city. Upon written request, provider shall verify the information in the report and, upon reasonable advance notice, all non-customer specific records and other documents required for such verification shall be subject to inspection by the city expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 to 2522.
(B) Minimum annual fee. Notwithstanding any other provision in this chapter, for all new installations of facilities placed in, on or under the public rights-of-way from the effective date of the municipal consent, and for each calendar year period thereafter, the provider shall pay the city a minimum annual fee of $250 (“minimum fee”), in the event the annual access line fee does not exceed $250, with a credit against the minimum fee from any access line fee paid to the city during the previous 12 months. Each municipal consent shall provide that the minimum fee above may be adjusted once every three years by the city, but such adjustment shall not exceed $100 in any one three-year period.
(C) Confidential records. If the provider notifies the city by a conspicuous written notation of the confidential nature of any information (including, but not limited to, the information in division (A)(2) above, reports, documents or writings, the city agrees to maintain the confidentiality of the information, reports, documents and writings to the extent permitted by law. Upon receipt by the city of requests for the provider’s confidential information, reports, documents or writings, the city shall notify the provider of the request in writing by facsimile transmission. The city shall furnish the provider with copies of all requests for Attorney General opinions pertaining to the provider’s confidential information, reports, documents or writings. The city shall request an Attorney General’s opinion before disclosing any confidential information, reports, documents or writings, and shall furnish the provider with copies of Attorney General opinion requests as soon as practicable that pertains to the provider’s confidential information, reports, documents or writings. To the extent circumstances allow, the city will in good faith attempt to provide reasonable prior notice to the provider before the release of any such confidential information.
(D) No other fees. The payments due hereunder shall be in lieu of any construction, building or other permit, approval, inspection or other similar fees or charges, including, but not limited to, all general business permit fees customarily assessed by the city for the use of the public rights-of-way against persons operating businesses similar to that of a provider. Further, such access line fee shall constitute full compensation to the city for all provider’s facilities located within the public rights-of-way, including interoffice-transport and other transmission media that do not terminate at an end-user customer’s network interface device, even though those types of lines are not used in the calculation of the public rights-of-way fee. The compensation paid herein is not in lieu of any generally applicable ad valorem taxes, sales taxes or other generally applicable taxes, fees, development impact fees or charges, or other statutory charges or expenses recoverable under the State Public Utility Regulatory Act, or successor statutes.
(E) Uncollectibles. Any other provision of this agreement notwithstanding, provider shall not be obligated to pay the city for any access lines or private line termination points the revenues for which remain uncollectible.
(F) Payments by or use of the network by other telecommunications carriers and providers.
(1) Direct payment-facilities provided to other telecommunications service providers. To the extent allowed by applicable state and federal law, any telecommunications service providers who purchase unbundled network elements or other facilities or services for the purpose of rebundling those facilities and/or services to create telecommunications service for sale to persons within the city (“rebundler”), must pay to the city the access line fee that is calculated as of month-end by applying the appropriate access line fee, as specified herein, to each access line created by rebundling telecommunications service or facilities. Direct payment further ensures that the access line fee imposed herein can be applied on a non-discriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this chapter notwithstanding, the provider shall not include in its monthly count of access lines any facilities or services provided to other telecommunications service providers for rebundling into telecommunications service, if the telecommunications service provider who is rebundling those facilities for resale has provided a signed statement to the provider that the telecommunications service provider is paying the access line fees applicable to those rebundled services directly to the city. If provider provides a copy of the signed statement to the city from the rebundler which is acceptable to the city, then provider is absolved of all responsibility for the access line fees payable on the services, unbundled network facilities and other facilities rebundled for the creation of telecommunications service for sale within the city by each such rebundler.
(2) Indirect payments public rights-of-way fee application to use of network by others. With respect to any person leasing, reselling or otherwise using a provider’s access lines, if a provider believes it does not have sufficient information to determine the appropriate rate to apply, then the higher access line fee may be applied until such time as the person using the access lines provides to the provider 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, the provider may, at its discretion and not at the city’s request, bill the person on the basis of the information provided. The provider 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 of such other person for provider to provide the information to the city. Any other provision of this chapter notwithstanding, however, a provider shall not be liable for underpayment of access line fees resulting from the provider’s reliance upon the written information provided by any person who uses provider’s services or facilities for the provision of telecommunications service to end-user customers.
(G) Restrictions. In no event shall the city be paid by more than one provider for the same access line.
(1998 Code, § 122-181) (Ord. 99-15, passed 4-7-1999)
(A) Network node site fee. Network providers shall pay the city annually $250 per network node site in accordance with Tex. Local Gov’t Code Ch. 284, § 284.053(a) the network node public right-of-way rate for each location for which network providers have obtained permit(s) regardless of whether or not a network provider installs network nodes in the public right-of-way.
(B) Adoption of the design manual for the installation of network nodes and node support poles. The city’s Design Manual for the Installation of Network Nodes and Node Support Poles pursuant to Tex. Local Gov’t Code, Ch. 284, is adopted to ensure that the city meets its fiduciary duty to the citizens of the city, and to give assistance and guidance to wireless telecommunications providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment.
(Ord. 19-12, passed 6-5-2019)
(A) Access line fee. A provider shall remit the access line fee on a quarterly basis together with the certified statement required in § 52.11(A)(1)(a) of this chapter. Payment shall be made on or before the forty-fifth day following the close of each calendar quarter for which the payment is calculated and may be paid by wire transfer to an account designated by the Public Works Director or his or her designee. The city may impose reasonable late fees of up to $100 per day for each day late, and not more than 10% per annum, pro rated on the amount past due.
(B) Minimum fee payment. This fee per § 52.11(B) of this chapter, if applicable, shall be due on January 31 of every year of the consent agreement.
(1998 Code, § 122-182) (Ord. 99-15, passed 4-7-1999)
(A) On 45-days’ notice to a provider, the city may audit a provider for a period of time to the fullest extent allowed by law to ascertain compliance with the municipal consent and/or other provisions of this chapter.
(B) A provider shall keep complete and accurate books of accounts and records of business and operations that cumulatively reflect the monthly count of all access lines for a period of four years. The Public Works Director or his or her designee may require the keeping of additional records or accounts, but only that are reasonably necessary for purposes of identifying, accounting for and reporting the number of access lines used to deliver telecommunication services or for calculation of the payments due hereunder, and only in the event the usual and customary records of the provider do not reasonably provide this information. The city may examine the provider’s books and records referred to above, expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 to 2522, but only to the extent such records reasonably relate to providing information to verify compliance with this chapter and the municipal consent.
(C) A provider shall make available to the city or the city’s designated agent (hereinafter “agent”), for the city or its agent to examine, audit, review and copy, in the city, on the Public Works Director or his or her designee’s written request, its books and records as referred to above that pertain to municipal consent conditions and requirements obtained under this chapter. A provider shall fully cooperate in making records available and otherwise assist the city examiner. The city examiner shall not inspect or copy or otherwise demand production of customer specific information or any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 to 2522.
(D) The Public Works Director or his or her designee may, at any time, make inquiries pertaining to providers’ performance of the terms and conditions of a municipal consent conveyed under this chapter. Providers shall respond to such inquiries on a timely basis.
(E) Upon written request by the Public Works Director or his or her designee, to the extent the documents are reasonably identified, providers shall furnish to the city within 30 business days from the date of the written request copies of all public petitions, applications, written communications and reports submitted by providers, to the FCC and/or to the PUC or their successor agencies, relating to any matters affecting the physical use of city public rights-of-way.
(F) The provisions of this section shall be continuing and shall survive the termination of a municipal consent granted under this chapter and shall extend beyond the term of the municipal consent granted to the provider and the city shall have all the rights described in this section for so long as provider is providing any telecommunications service within the city.
(1998 Code, § 122-183) (Ord. 99-15, passed 4-7-1999)
(A) No municipal consent nor any rights or privileges that a provider has under a municipal consent, or the facilities held by a provider for use under such municipal consent which are in the public rights-of-way, shall be sold, resold, assigned, transferred or conveyed by the provider, either separately or collectively, to any other person, without the prior written approval of the city by ordinance or resolution. The city’s approval shall be based upon the transferee providing adequate information to the city that it has the ability to perform and comply with the obligations and requirements of the municipal consent. Such approval shall not be unreasonably withheld should a provider sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under its municipal consent, including such provider’s telecommunications network, or attempt to do so, without the city’s prior consent, the city may revoke the provider’s municipal consent for default, in which event all rights and interest of the provider under the municipal consent shall cease.
(B) Any transfer of the municipal consent in violation of this section shall be null and void and unenforceable. Any change of control of a provider shall constitute a transfer under this section. However, such a change in control shall not void the municipal consent as to the transferee, unless and until the city has given notice that such a change in control necessitates compliance with this section. If the provider does not initiate compliance with this section by a request for municipal consent within 30 days after the above notice has been given by the city, the municipal consent shall be null and unenforceable as to the transferee.
(C) There shall be a rebuttable presumption of a change of control of a provider upon a change of 25% or greater in the ownership of such provider. Such a change in control shall be deemed a transfer which requires consent of the city.
(D) A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending transaction shall not be considered an assignment or transfer.
(E) Every municipal consent granted under this section shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required access line fees or minimum fees and/or evasion of payment of such fees by failure to accurately count or report the number of access lines by a provider is prohibited.
(F) Notwithstanding anything else in this section, if the city has not approved or denied a request to transfer under this section at the next Commission meeting after the sixtieth day of written notice of such request from the provider to the city, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties.
(G) Notwithstanding any other provision in this section, a provider may transfer, without city approval, the facilities in the public rights-of-way under a municipal consent to another provider who has a municipal consent under this chapter. The provider transferring the facilities remains subject to all applicable obligations and provisions of the municipal consent unless the provider to which the facilities are transferred is also subject to the same, as applicable, obligations and provisions. The provider transferring the facilities must give written notice of the transfer to the Public Works Director or his or her designee.
(1998 Code, § 122-184) (Ord. 99-15, passed 4-7-1999)
(A) The parties shall notify each other, as is provided in the consent agreement.
(C) Prior to City Commission action on amendments to the telecommunications ordinance, the city will provide 30-days’ written prior notice to each provider with a municipal consent, with a general description of such amendments, except as to amendments which addresses safety or emergency circumstances, as reasonably determined by the city.
(1998 Code, § 122-185) (Ord. 99-15, passed 4-7-1999)
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