Ord 120-99 11/16/1999ORDINANCE NO. I 'CiO
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WICHITA FALLS, TEXAS, GOVERNING THE USE AND
OCCUPANCY OF THE PUBLIC RIGHTS -OF -WAY WITHIN THE CITY
FOR THE PROVISION OF TELECOMMUNICATIONS SERVICES,
INCLUDING THE ESTABLISHMENT OF COMPENSATION FOR
THAT USE AND OCCUPANCY; PROVIDING FOR A SEVERABILITY
CLAUSE; PROVIDING FOR AN EFFECTIVE DATE; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE
WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY
LAW.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS,
TEXAS, THAT:
SECTION 1.0 - PURPOSE
The purpose of this Ordinance is to:
(a) Assist in the management of the Public Rights -of -Way within the City;
(b) Govern Telecommunications Service Providers' use and occupancy of the
Public Rights -of -Way within the City;
(c) Secure compensation from Telecommunications Service Providers for the
use and occupancy of the Public Rights -of -Way within the City in a non - discriminatory
and competitively neutral manner.
SECTION 2.0 - DEFINITIONS
Whenever used in this Ordinance, the following terms, as well as their singulars,
plurals and possessives, shall have the following definitions and meanings, unless the
context of the sentence in which they are used indicates otherwise:
2.01 Access Line: (1) each switched transmission path of the transmission
media within the 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.
2.02 Cable Service: "cable service" as defined in the "Cable Communications
Policy Act of 1984 ", as amended, 47 U.S.C. §532 et seq.
2.03 City: the City of Wichita Falls, Texas.
2.04 Direction of the City: all ordinances, laws, rules, resolutions, and
regulations of the City that are not inconsistent with this Ordinance and that are now in
force or may hereafter be passed and adopted.
2.05 Facilities: any and all of the duct spaces, manholes, poles, conduits,
underground and overhead passageways, and other equipment, structures, plant, and
appurtenances and all associated Transmission Media used for the provision of
Telecommunications Service.
2.06 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 a Rights -of -Way Fee.
2.07 Permit Holder: any Telecommunications Service Provider issued a Permit
pursuant to the terms of this Ordinance.
2.08 Person: a natural person (an individual), corporation, company,
association, partnership, firm, limited liability company, joint venture, joint stock
company or association, and other such entity.
2.09 Public Utility: a Public Utility as that term is used in the Public Utility
Regulatory Act of 1995, Tex. Utilities Code Ann. §11.004, including municipally owned
and /or operated utilities.
2.10 Public Rights -of -Way: the area on, below, or above a public
roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which
the municipality has an interest. The term does not include the airwaves above a
right -of -way with regard to wireless telecommunications.
2.11 Rights -of -Way Fee: the total amount paid to the City on a monthly basis
for the Use and Occupancy of the Rights -of -Way.
2.12 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 (interl-ATA and intral -ATA) or any "wireless service" as defined by law.
2.13 Telecommunications Service Provider: any Person that supplies
Telecommunications Service to others within the corporate limits of the City in exchange
for money or other value.
2.14 Telecommunications Utility: "Telecommunications Utility" as used in the
Public Utility Regulatory Act of 1995, Tex. Utilities Code Ann. §51.002(11).
2.15 Transmission Media: any and 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.
2.16 Use and Occupancy_ a Permit Holder's acquisition, installation,
construction, reconstruction, maintenance, repair, control, or operation of any Facilities
within the Public Rights -of -Way for telecommunication purposes.
SECTION 3.0 - REQUIREMENT FOR PERMIT AND GRANTING CLAUSE
Any Person that owns, places, or maintains Facilities within the Public Rights -of-
Way shall first obtain a permit pursuant to the terms of this Ordinance. Subject to the
restrictions set forth herein, the City under this Ordinance shall issue permits to
Telecommunications Service Providers for the purpose of regulating the Use and
Occupancy of the Public Rights -of -Way in the City for the provision of Access Lines. By
acceptance of the permit, a Permit Holder acknowledges its legal obligation to abide by
the terms of this Ordinance in its use of the Public Rights -of -Way in the provision of
Access Lines within the City, including all operations and facilities and Transmission
Media used in whole or in part in the provision of Access Lines in any newly annexed
areas as specified in Subsection 5.03 of this Ordinance.
SECTION 4.0 - GENERAL TERMS OF THE ORDINANCE
4.01 No rights agreed to in this Ordinance by the City shall be exclusive and
the City reserves the right to grant franchises, licenses, easements or permissions to
use the Public Rights -of -Way within the City to any Person as the City, in its sole
discretion, may determine to be in the public interest.
4.02 A Permit Holder is not authorized to provide Cable Service as a cable
operator in the City under this Ordinance, but must first obtain a franchise from the City
for that purpose, under such terms and conditions as may be required by law.
4.03 The initial term of each Permit issued under this Ordinance shall be one
(1) year from the date of issuance. At the expiration of the initial permit period, the
permit shall be automatically extended for successive periods of one (1) year, unless
the City gives written notice of intent to terminate the permit to Permit Holder not less
than ninety (90) days prior to the end of the then - current period or Permit Holder sends
notice of its intent to terminate its obligations under the permit. When such notice is
given, the Permit shall terminate at the expiration of the then - current period.
4.04 The rights granted by this Ordinance inure to the benefit of a Permit
Holder licensed hereunder. The rights granted by the issuance of a permit shall not be
assigned, transferred, or sold to another by a Permit Holder without the express written
consent of the City. Any such consent by the City shall not be withheld unreasonably.
SECTION 5.0 - COMPENSATION
5.01 Rights -of -Way Fee: A Permit Holder shall pay to the City a Rights -of -Way
Fee that is calculated as of month -end by applying the appropriate Line Fee to each
Access Line owned, placed, or maintained by a Permit Holder that is activated for use
by an end -user or for another Telecommunications Service Provider that uses a Permit
Holder's services or Facilities for the provision of Telecommunications Service within
the City. The Line Fee to be applied to each Access Line on a monthly basis shall be:
Access Line Monthly Fee per Access Line
Residential $ 1.15
Non - Residential $ 2.75
High Capacity Non - Residential $
5.02 Number of Access Lines: Subject to City's agreement not to disclose this
information, each Permit Holder must provide annually, within a reasonable time after
receipt of the City's written request, a report showing the number of each type of
Access Line owned or placed and maintained by a Permit Holder within the City that are
activated for end -user customers and other Telecommunications Service Providers at
month's end for each of the preceding twelve (12) months. The City agrees that the
report shall be used solely for the purpose of verifying the number of a 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 the information in the report and, upon reasonable advance notice, produce to the
City and permit inspection by the City of all non - customer - specific records and
documents reasonably calculated to verify the information. 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 lines
upon which the fee is calculated.
5.03 Annexation and Disannexation: Within thirty (30) days following the date
of the passage of any action effecting the annexation of any property to or the
disannexation of any property from the City's corporate boundaries, the City agrees to
furnish each Permit Holder written notice of the action and an accurate map of the
City's corporate boundaries showing, if available, street names and number details. For
the purpose of compensating the City under this Ordinance, a Permit Holder shall start
including or excluding Access Lines within the affected area in a Permit Holder's count
of Access Lines (a) on the effective date designated by the Comptroller of Public
Accounts of Texas for the imposition of State local sales and use taxes; or (b) 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.
5.04 Confidential Records: If a Permit Holder notifies the City of the
confidential nature of any information, 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 a Permit Holder's
confidential information, reports, documents, or writings, the City shall notify a Permit
Holder of the request in writing by facsimile transmission. The City shall determine if
the Texas Public Information Act, codified as Chapter 552 of the GOVERNMENT CODE,
requires disclosure. The City may request and obtain an Attorney General's Opinion if it
believes the requested information is excepted from disclosure.
5.05 No Other Fees:
The 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 customarily 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 Rights -of -Way Fee 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 an
end -user customer's network interface device, even though those types of lines are not
used in the calculation of the Rights -of -Way Fee.
5.06 Timing of Payment: A Permit Holder shall remit the Rights -of -Way Fee on
a monthly basis. The payment shall be due on the fifteenth (15th) day following the
close of each calendar month for which the payment is calculated.
5.07 Uncollectibles: A Permit Holder has a statutory right to 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 Ordinance notwithstanding, a Permit
Holder shall not be obligated to pay the City for any Access Lines for which revenues
remain uncollectible.
5.08 Facilities Provided to Other Telecommunications Service Providers: To
the extent allowed by applicable state and federal law, any Telecommunications
Service Providers that purchase unbundled network elements or other Facilities for the
purpose of creating Telecommunications Service for sale to persons within the City
shall pay to the City a Rights -of -Way Fee that is calculated as of month -end by applying
the appropriate Line Fee, as specified in Section 5.01 above, to each Access Line
provided. Such direct payment to the City is necessary because it is only the Person
creating the services that will be able to determine the number of Access Lines being
provided, so that the Rights -of -Way 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 Ordinance
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 Telecommunications Service Provider that is providing the
Telecommunications Services to end user customers has provided a signed statement
to a Permit Holder 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 a Permit Holder is absolved of all
responsibility for the Line Fees payable on the Telecommunications Service, unbundled
network elements, and other Facilities used in the provision of those
Telecommunications Services within the City.
5.09 Fee Application to Leased Facilities: Pursuant to Tex. Utilities Code
§54.206, a Permit Holder may collect the Line Fee imposed by the City pursuant to this
Ordinance 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 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 Line Fee. If a Person provides sufficient written information for the application
of the 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 of such other Person for a Permit Holder to provide the
information to the City. Any other provision of this Ordinance notwithstanding, however,
a Permit Holder shall not be liable for underpayment of 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.
SECTION 6.0 - CONSTRUCTION AND MAINTENANCE OF FACILITIES
6.01 The location and route of all Facilities and Transmission Media placed and
constructed in the Public Rights -of -Way shall be subject to the lawful, reasonable, non-
discriminatory, and proper control and direction of the City.
6.02 Nothing contained in this Ordinance 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, non - contingent agreement with a Permit Holder shall
be required. Nothing contained in this Ordinance 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
1_7
with any Person authorized to operate as a Public Utility or a Telecommunications
Utility or authorized to offer Cable Service within the City.
6.03 The surface of the Public Rights -of -Way disturbed by a Permit Holder in
the construction or maintenance of its telecommunications system shall be restored
within a reasonable time after the 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 shall be
reasonably necessary to execute all construction, maintenance and /or repair work.
6.04 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. The party or parties requesting them shall pay the expense of such
temporary rearrangements, and a Permit Holder may require payment in advance. The
Permit Holder shall be given not less than forty -eight (48) hours advance notice to
arrange for such temporary rearrangements.
6.05 Permit Holders and their respective contractors and agents have the right,
permission and license 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.
SECTION 7.0 - INSTALLATION, REPAIR, RELOCATION AND REMOVAL OF
FACILITIES
7.01 If during the installation of Permit Holder's facilities or any subsequent
repairs thereof by Permit Holder, its agents or authorized contractors, any City -owned
utility Facilities are damaged for any reason other than by the negligent acts or
omissions of the City or its agents and authorized contractors, then Permit Holder shall
be liable for the cost to repair such damage to City Facilities, such damages to include
the cost of labor, equipment, and materials; and in the case of damaged City water
mains, Permit Holder shall reimburse City the value of the estimated amount of water
lost by the City. The City will remain responsible for any damages caused or contributed
by the negligent acts or omissions of the City, its agents and authorized contractors.
7.02 In accordance with Tex. Utilities Code Ann. §54.203(c), upon thirty (30)
days notice by the City, Permit Holder shall begin relocation of its Facilities within the
Public Rights -of -Way at its own expense to permit the widening or straightening of
streets or relocation and /or installation of City utilities. The notice by the City shall
include a specification of the new location for a Permit Holder's Facilities along the
Public Rights -of -Way.
7.03 The City retains the right to move any 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.
SECTION 8.0 - INDEMNIFICATION
8.01 A Permit Holder shall indemnify and hold the City and its officers and
employees harmless against any and all claims, lawsuits, judgments, costs, liens,
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 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, or maintaining facilities in the Public
Rights -of -Way. The indemnity provided by this subsection does not apply to any liability
resulting from the 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.
8.02 A Permit Holder or the City shall promptly advise the other in writing of
any known claim or demand against the Permit Holder or the City related to or arising
out of the Permit Holder's activities in the Public Rights -of -Way.
SECTION 9.0 - ADMINISTRATION OF ORDINANCE
9.01 The City may, at any time, make reasonable inquiries pertaining to the
terms, conditions, rights and obligations of this Ordinance, and a Permit Holder shall
respond to such inquiries on a timely basis.
9.02 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.
9.03 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 Ordinance and the construction of a
Permit Holder's Facilities in the Public Rights -of -Way, so long as those rules and
regulations are competitively neutral.
SECTION 10.0 - GOVERNING LAW
This Ordinance shall be construed in accordance with the City Code in effect on
the date of passage of this Ordinance to the extent that such Code is not in conflict with
or in violation of the Constitution and laws of the United States or the State of Texas.
SECTION 11.0 - NON - DISCRIMINATION AND COMPETITIVE NEUTRALITY
The City hereby recognizes that it has the legal duty to obligate, on a going-
forward basis, all Permit Holders to abide by the same terms and conditions imposed by
this Ordinance, including, but not limited to, the payment of the Line Fee, and to apply
substantively same requirements governing their use and occupancy of the Public
Rights -of -Way.
SECTION 12.0 - PERMIT
Any Permit Holder that owns facilities already located within the Public Rights -of-
Way on the date this Ordinance is enacted is hereby granted a Permit hereunder;
however, within thirty (30) days from the effective date of this Ordinance all such Permit
Holders shall provide to 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 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 that no certification by the Public Utility
Commission is required for the type of service to be offered by Applicant.
SECTION 13.0 - ISSUANCE AND EFFECTIVE DATE OF PERMIT
The City shall deliver a properly certified copy of this Ordinance 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 Line Fee shall not begin until the first day of the following month
after the date of issuance of the Permit. Permit Holders with pre- existing facilities may
continue the pre- existing compensation arrangement until the first day of the month
following the issuance of the Permit.
SECTION 14.0 - SEVERABILITY
If any section, paragraph, clause, or provision of this ordinance shall for any
reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
section, paragraph, clause, or provision shall not affect any of the remaining provisions
of this ordinance.
SECTION 15.0 - EFFECTIVE DATE OF ORDINANCE
The fact that present franchises and ordinances regulating Telecommunication
Service Providers have been superseded by State law creates an emergency to protect
the public rights -of -way and ensure that orderly regulation of Telecommunication
services be maintained, therefore, this ordinance shall take effect and be in force
immediately upon final passage by the City.
PASSED AND APPROVED this the 16th day of November 1999.
M A Y O R
ATTEST:
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16
following the issuance of the Permit.
SECTION 14.0 - SEVERABILITY
If any section, paragraph, clause, or provision of this ordinance shall for any
reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
section, paragraph, clause, or provision shall not affect any of the remainin- 3ions
of this ordinance.
'
SECTION 15.0 - EFFECTIVE DAT E OF ORDINAK
The fact that present franchises and ordinances r l �? -" on
00
Service Providers have been superseded by State law crez 1 �✓ �. -I I Icrgency to protect
the public rights -of -way and ensure that orderly regulation of Telecommunication
services be maintained, therefore, this ordinance shall take effect and be in force
immediately upon final passage by the City.
PASSED AND APPROVED this the 16th day of November, 1999.
MAY /O
ATTEST:
Affidavit of Publication
THE STATE OF TEXAS 1061529
COUNTY OF WICHITA
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