HBA-JRA, ALS C.S.H.B. 1777 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1777
By: Wolens
State Affairs
5/6/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, there is no statutory provision specifying the method and level
of compensation that a municipality may collect from a telecommunications
provider (provider) for the use of the  public rights-of-way and the right
to provide services within that municipality.  The purpose of this bill is
to provide policies and guidelines relating to compensation that a
municipality may receive from a provider within the municipality.  C.S.H.B.
1777 provides for municipalities to be compensated by certificated
telecommunications providers through franchise fees. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Public Utility Commission of Texas
in SECTION 1 (Sections 283.003 and 283.056, Local Government Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle A, Title 9, Local Government Code, by adding
Chapter 283, as follows: 

CHAPTER 283.  SUPERVISION OF PUBLIC RIGHT-OF-WAY USED BY TELECOMMUNICATIONS
PROVIDER IN MUNICIPALITY 

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 283.001.  STATE POLICY; PURPOSE.  Sets forth the policy of this state.
Sets forth the purpose of this chapter. 

Sec. 283.002.  DEFINITIONS.  Defines "access line," "certificated
telecommunications provider,"  "commission," "consumer price index," and
"public right-of-way" in this chapter. 

Sec. 283.003.  COMMISSION REVIEW OF DEFINITION OF "ACCESS LINE."  Requires
the Public Utility Commission of Texas (PUC) to determine by September 1,
2003, whether changes in technology or facilities  justify adoption of a
definition of "access line" provided by this section.  Authorizes PUC, by
rule, to define "access line" in the manner necessary to maintain
consistent levels of revenues, as annually increased, to the municipalities
to ensure that the municipalities are not affected by changes in technology
or facilities.  Requires PUC to make the determination at least once every
three years after September 1, 2003. 


Sec. 283.004.  APPLICATION.  Provides that this chapter applies only to
municipal regulations and fees imposed on and collected from certificated
telecommunications providers. 

Sec. 283.005.  INFORMATION.  Authorizes PUC to collect and compile
information from certificated telecommunications providers and
municipalities to implement this chapter. Requires PUC to maintain the
confidentiality of that information. 

SUBCHAPTER B.  FRANCHISE FEES
 
Sec. 283.051.  FRANCHISE REQUIREMENT.  Prohibits a person from operating in
a municipality without a franchise if the provider is a certificated
telecommunications provider who uses a public right-of-way in the
municipality and fails to pay franchise fees in accordance with this
chapter or a noncertificated telecommunications provider who locates
facilities in a public right-of-way in the municipality. 

Sec. 283.052.  FRANCHISE FEE.  Requires a certificated telecommunications
provider to pay only the compensation amount determined by PUC under
Section 283.056 as franchise fees to a municipality for use of the public
right-of-way in the municipality.  Provides that this section does not
affect the right of a municipality to initiate legal action against a
certificated telecommunications provider that has not compensated the
municipality in accordance with this chapter. 

Sec. 283.053.  EFFECT OF PAYMENT OF FRANCHISE FEES TO MUNICIPALITY.
Authorizes a certificated telecommunications provider to erect poles or
construct conduit, cable, switches, and related appurtenances and
facilities and excavate within a public rightof-way to provide
telecommunications service if the certificated telecommunications provider
makes timely payments of the franchise fee for the use of the public
right-of-way, subject to the requirements of Sections 283.058 and 283.059.
Provides that all use of a public right-of-way is nonexclusive and subject
to the rights of the municipality. 

Sec. 283.054.  BASE AMOUNT.  Prohibits pole rental fees, special
assessments, and taxes of any kind from being included as revenue received
by a municipality in determining a municipality's "base amount."  Sets
forth the base amount for a municipality not described by another provision
of this section or Section 283.055; a municipality located in a county with
a population of less than 75,000; a municipality that does not have an
effective franchise agreement on September 1, 1999, but that did during
1997 or 1998; a municipality that has a population of less than 15,000 or
that has not had an effective franchise agreement since January 1, 1997; a
municipality that did not have a franchise agreement in 1998 or a
municipality that did not have a franchise agreement in 1997 or 1998; and a
municipality that was involved in litigation relating to franchise fees
during any part of 1998 and that elects or agrees to withdraw from or
otherwise voluntarily terminate that litigation. 

Sec. 283.055.  TREATMENT OF NEW ENTRANT OR PROVIDER SEEKING RENEWAL.  (a)
Sets forth the base amount for a municipality that has entered into one or
more franchise agreements or has adopted a right-of-way ordinance before
January 12, 1999. 

(b)  Requires a provider subject to an agreement that expires before PUC
has determined the amounts to be paid to the municipality under Section
283.056 to continue paying at the same rate until PUC determines the
appropriate rate.  Requires the provider to pay the excess amount within 30
days of PUC's determination if PUC determines that the provider would have
paid more money during that period if PUC had determined the rate on the
expiration date.  

(c)  Authorizes the municipality, during the period in which a franchise
agreement or right-of-way ordinance entered into before January 12, 1999,
is in effect, to require a new entrant, as a condition of beginning
construction of facilities, or an existing provider that wants to renew an
agreement or ordinance, to comply with any applicable terms of the most
recent agreement or ordinance entered into between the municipality and a
certificated telecommunications provider for the duration of that agreement
or ordinance. 

Sec. 283.056.  DETERMINATION OF FRANCHISE FEE.  (a)  Requires PUC, by rule,
to prescribe categories of various access lines considering the type, use,
and function of the lines.  Requires PUC, at a minimum, to prescribe
categories that subdivide residential, business, and point-to-point
services. 

(b)  Requires PUC to establish for each municipality monthly rates for each
category of access lines so that the sum of the rates for each category of
access lines multiplied by the  total number of access lines a municipality
for the first month, multiplied by 12, approximately equals the
municipality's base amount, plus the value of in-kind services and
facilities.  Requires PUC to assume that the value  of in-kind services and
facilities is equal to one percent of the base amount unless the
municipality can establish that it received a greater amount during 1998. 

(c)  Requires PUC to ensure that rates imposed under this section and the
allocation among telecommunications providers are competitively neutral, do
not unduly impair competition, are nondiscriminatory, and comply with state
and federal law. 

(d)  Authorizes a municipality to annually establish the relationship
between fees on access line categories. 

(e)  Requires PUC to adjust access line rates on an annual basis to reflect
the percentage increase in the consumer price index.  Requires PUC, at that
time, to provide each municipality with adjusted monthly rates for each
category of access line. 

Sec. 283.057.  PAYMENT OF FRANCHISE FEE.  (a)  Requires each certificated
telecommunications provider within a municipality to pay the municipality
according to the actual number of access lines by access line category as
of the last day of the preceding calendar month.  Provides that each
monthly payment must reflect any change in the number of access lines.
Requires the provider to reduce the  payment due every 13th month by an
amount equal to the statewide average annual percentage of local service
revenues that are not paid by consumers, as determined by PUC, multiplied b
the sum of the payments for the previous 12 months. 

(b)  Sets forth the deadlines by which the certificated telecommunications
provider is required to make the payment.  Requires the provider to make
the payment by electronic funds transfer or by another method that provides
availability of the funds on the day the payment is due. 

(c)  Requires the certificated telecommunications provider to file a report
with each payment that shows the number of access lines, including access
lines by category, that the provider has within the municipality at the end
of the month.  Requires the provider to include a certified statement from
an authorized officer or duly authorized representative of the provider
stating that the information contained in the report is true and correct to
the best of the officer's or representative's knowledge and belief after
inquiry. 

(d)  Provides that the report must specifically identify access lines
owned, operated, or maintained by the provider that are leased or used by a
person who is not an end-use customer.  Prohibits a provider from including
in its monthly count of access lines a franchise fee on access lines that
are resold, leased, or otherwise provided to another certificated
telecommunications provider if the provider receives adequate proof that
the provider leasing or purchasing the access lines will include and remit
payment on those access lines in its monthly count. 

(e)  Authorizes a municipality to use a report only to verify the number of
access lines that serve premises within the municipality. 

(f)  Provides that a payment by a certificated telecommunications provider
that complies with the terms of an unexpired franchise agreement or
right-of-way ordinance that applies to the provider satisfies the payment
attributable to the provider required by this chapter, notwithstanding any
other provision of this chapter. 

Sec. 283.058.  MUNICIPAL AUTHORIZATIONS.  Authorizes a municipality, for
use of the public right-of-way, to require a certificated
telecommunications provider locating facilities in or on a public
right-of-way within the municipality to obtain a permit without cost;
exercise any police power-based regulations that are not specifically
precluded by this  chapter and that are not inconsistent with state or
federal law; and determine and order, at the telecommunication provider's
expense, relocation, removal, colocation, maintenance, or placement of the
provider's facilities. 

Sec. 283.059.  INDEMNIFICATION.  (a)  Requires a certificated
telecommunications provider to indemnify and hold harmless the municipality
and its officers and employees for or against any claim, lawsuit, judgment,
cost, lien, loss, expense, fee, including reasonable attorney's fees and
costs of defense, proceeding, action, demand, cause of action, liability,
suit of any kind and nature, including personal or bodily injury or death,
property damage or other harm arising out of a negligent act, error, or
omission of the provider incurred while installing, repairing, or
maintaining facilities in the public right-of-way within the municipality.

(b)  Provides that this indemnity does not apply to liability that results
from the negligence of  the municipality or of a municipal officer or
employee that causes personal or bodily injury, death, or property damage.

(c)  Requires liability to be apportioned comparatively if the certificated
telecommunications provider and the municipality are found to be jointly
liable by a court, without waiving any governmental immunity available to
the municipality under state law and without waiving any defenses of the
parties under state law.   

(d)  Provides that this section is solely for the benefit of the
certificated telecommunications provider and the municipality and is not
intended to create or grant any rights, contractual or otherwise, to any
other person. 

(e)  Requires the certificated telecommunications provider to promptly
advise the municipality in writing of any claim or demand against the
municipality or the provider that the provider knows is related to or
arises out of the provider's activities in the public right-of-way within
the municipality. 

SECTION 2.  (a)  Provides that this Act does not affect the validity of a
franchise agreement or rightof-way ordinance with a certificated
telecommunications provider executed before January 12, 1999. Authorizes a
municipality to continue to enforce that agreement or ordinance and to
collect franchise fees and other charges under that agreement or ordinance
until the date on which the agreement or ordinance expires on its own
terms. 

(b)  Requires each certificated telecommunications provider in a
municipality that was involved in litigation relating to franchise fees
during any part of 1998 and that elects or agrees to withdraw from or
otherwise voluntarily terminate that litigation that does not have a
franchise agreement with the municipality to begin paying franchise fees to
the municipality in accordance with Chapter 283, Local Government Code, as
added by this Act, at the time PUC determines the amount the municipality
is entitled to receive under Section 283.056, Local Government Code.
Requires a certificated telecommunications provider whose franchise
agreement expires after PUC makes that determination to begin paying
franchise fees in accordance with Chapter 283 on the earlier of the date
the agreement expires on its own terms or the date the agreement expires on
mutual agreement of the parties. 

SECTION 3.  (a)  Requires PUC to determine the monthly rates for a
municipality described by Section 283.056, Local Government Code, as added
by this Act, as soon as possible after the effective date of Chapter 283,
Local Government Code, but not later than 180 days after that date. 

(b)  Requires PUC to determine the monthly rates for a municipality
described by Section 283.055(a), Local Government Code, as added by this
Act, by the 60th day after the date the last franchise agreement or
right-of-way ordinance executed by the municipality under Section
283.055(c) expires. 

SECTION 4.  Provides that SECTION 1 of this Act takes effect September 1,
1999, and that the  other SECTIONS take effect 90 days after adjournment. 

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in SECTION 1 by amending Subtitle A,
Title 9, Local Government Code, by adding Chapter 283 (Supervision of
Public Right-of-Way Used by Telecommunications Provider in Municipality),
rather than amending Chapter 311, Transportation Code, by adding Subchapter
F (Compensation For Right to Provide Telecommunications Services And to Use
Public Rights-of-Way). 

Proposed Chapter 311 would have authorized a municipality, by ordinance, to
require communications services providers (providers) who own facilities
located within public rights-of-way within the municipality to pay
reasonable compensation to use those rights-of way.  It would have
authorized a municipality, by ordinance, to require all providers who do
not use public rights-of-ways within the municipality to pay reasonable
compensation for the right to provide services within the municipality and
to require providers within the municipality to pay reasonable compensation
for the municipality's cost of exercising police power regulation over the
providers.  It also would have set limits on such compensation and required
the municipality to impose the charges in a manner that is competitively
neutral and nondiscriminatory. 

Please see the Section-by-Section Analysis in this document with respect to
the new Chapter 283. 

The substitute modifies the original in SECTION 2 to provide that this Act
does not affect the validity of a franchise agreement with a certificated
provider that is executed before January 12, 1999, rather than before the
effective date of this Act.  The substitute also adds Subsection (b)
relating to the franchise fees of a municipality that was involved in
litigation relating to franchise fees during any part of 1998 and that
elects or agrees to withdraw from or otherwise voluntarily terminate that
litigation. 

The substitute adds a new SECTION 3 to require PUC to determine the monthly
rates for a municipality described by Section 283.056, Local Government
Code, as added by this Act, as soon as possible after the effective date of
Chapter 283, Local Government Code, but not later than 180 days after that
date and to require PUC to determine the monthly rates for a municipality
described by Section 283.055(a), Local Government Code, as added by this
Act, by the 60th day after the date the last franchise agreement or
right-of-way ordinance executed by the municipality under Section
283.055(c) expires. 

The substitute redesignates SECTION 3 of the original to SECTION 4 and
modifies it to make conforming changes. 

The substitute redesignates SECTION 4 (emergency clause) of the original to
SECTION 5.