85R6449 CBH-F     By: Hancock S.B. No. 1004       A BILL TO BE ENTITLED   AN ACT   relating to the deployment of network nodes in public   rights-of-way; authorizing fees.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle A, Title 9, Local Government Code, is   amended by adding Chapter 284 to read as follows:   CHAPTER 284. DEPLOYMENT OF NETWORK NODES IN PUBLIC RIGHTS-OF-WAY   SUBCHAPTER A. GENERAL PROVISIONS          Sec. 284.001.  FINDINGS AND POLICY. (a) The legislature   finds that:                (1)  the design, engineering, permitting,   construction, modification, maintenance, and operation of network   nodes are instrumental to increasing access to advanced technology   and information for the citizens of this state;                (2)  this state has delegated to each municipality the   fiduciary duty, as a trustee, to manage the public rights-of-way   for the health, safety, and welfare of the public, subject to state   law;                (3)  network nodes often may be deployed most   effectively in the public rights-of-way;                (4)  network providers' access to public rights-of-way   and the ability to attach network nodes to poles and structures in   those public rights-of-way allow network providers to densify their   networks and provide next-generation services;                (5)  expeditious processes and reasonable and   nondiscriminatory compensation for use of the public rights-of-way   for network node deployments are essential to the construction and   operation of robust broadband communications networks;                (6)  network nodes help ensure that this state remains   competitive in the global economy;                (7)  the timely permitting of network nodes in public   rights-of-way is a matter of statewide concern and interest; and                (8)  requirements of this chapter regarding fees,   charges, rates, and public rights-of-way management, when   considered with fees charged to other public rights-of-way users   under this code, are fair and reasonable and in compliance with 47   U.S.C. Section 253.          (b)  It is the policy of this state to promote the adoption of   and encourage competition in the provision of telecommunications   services, including wireless services, by reducing the barriers to   entry for providers of services so that the number and types of   services offered by providers continue to increase through   competition.          (c)  It is the policy of this state that municipalities:                (1)  retain the authority to manage the public   rights-of-way to ensure the health, safety, and welfare of the   public; and                (2)  receive from telecommunications providers,   including network providers, fair and reasonable compensation for   use of the public rights-of-way.          Sec. 284.002.  DEFINITIONS. In this chapter:                (1)  "Antenna" means communications equipment that   transmits or receives electromagnetic radio frequency signals.                (2)  "Applicable codes" means:                      (A)  uniform building, fire, electrical,   plumbing, or mechanical codes adopted by a recognized national code   organization; and                      (B)  local amendments to those codes enacted   solely to address imminent threats of destruction of property or   injury to persons to the extent not inconsistent with this chapter.                (3)  "Collocate" and "collocation" mean the   installation, mounting, maintenance, modification, operation, or   replacement of network nodes in a public right-of-way on or   adjacent to an existing pole with the express, discretionary, and   written permission of the pole's owner.                (4)  "Fee" means a one-time cost-recovery charge for   services performed. The term includes a charge for reviewing and   processing an application for a permit.                (5)  "Law" means common law or a federal, state, or   local law, statute, code, rule, regulation, order, or ordinance.                (6)  "Municipal pole" means:                      (A)  a pole, other than a municipally owned   utility pole, owned or operated by a municipality and located in a   public right-of-way, including a pole that supports lighting or   traffic control functions or a structure for signage; and                       (B)  a pole or similar structure owned or operated   by a municipality, located in a public right-of-way, and supporting   only network nodes.                (7)  "Municipally owned utility pole" means a utility   pole owned or operated by a municipally owned utility, as defined by   Section 11.003, Utilities Code, and located in a public   right-of-way.                (8)  "Network node" means equipment at a fixed location   that enables wireless communications between user equipment and a   communications network. The term:                      (A)  includes:                            (i)  equipment associated with wireless   communications;                            (ii)  a radio transceiver, an antenna, a   battery-only backup power supply, and comparable equipment,   regardless of technological configuration; and                            (iii)  coaxial or fiber-optic cable   necessary to serve the location, including such cable connecting   the network node to the fiber network at a length not to exceed 528   feet; and                      (B)  does not include:                            (i)  an electric generator; or                            (ii)  a pole.                (9)  "Network provider" means:                      (A)  a person granted a certificate of convenience   and necessity, certificate of authority, or service provider   certificate of authority by the Public Utility Commission of Texas   to provide telecommunications service in this state; and                      (B)  a person authorized and licensed by the   Federal Communications Commission to provide services classified   as "mobile services" by 47 C.F.R. Section 20.7.                (10)  "Node support pole" means a pole installed by a   network provider for the primary purpose of supporting a network   node.                (11)  "Permit" means a written authorization required   from a municipality before a network provider may perform an action   or initiate, continue, or complete a project over which the   municipality has regulatory authority.                (12)  "Pole" means a municipal pole, municipally owned   utility pole, node support pole, or utility pole.                (13)  "Public right-of-way" means 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 public   right-of-way with regard to wireless telecommunications.                (14)  "Public right-of-way rate" means an annual rental   charge paid by a network operator to a municipality for the use of a   public right-of-way in the municipality.                (15)  "Utility pole" means a pole or similar structure   that supports a pole attachment, as defined by Section 252.001,   Utilities Code, and that provides:                       (A)  electric distribution with a voltage rating   of not more than 34.5 kilovolts; or                      (B)  services of a telecommunications utility, as   defined by Section 51.002, Utilities Code.          Sec. 284.003.  LIMITATION ON SIZE OF NETWORK NODES. (a)   Except as provided by Section 284.108, a network node to which this   chapter applies must conform to the following conditions:                (1)  each antenna that does not have exposed elements   and is attached to an existing structure:                      (A)  must be located inside an enclosure of not   more than six cubic feet in volume;                      (B)  may not exceed a height of three feet above   the existing structure; and                      (C)  may not protrude from the outer circumference   of the existing structure by more than two feet;                 (2)  if an antenna has exposed elements and is attached   to an existing structure, the antenna and all of the antenna's   exposed elements:                      (A)  must fit within an imaginary enclosure of not   more than six cubic feet;                      (B)  may not exceed a height of three feet above   the existing structure; and                      (C)  may not protrude from the outer circumference   of the existing structure by more than two feet;                (3)  the cumulative size of other wireless equipment   associated with the network node attached to an existing structure   may not:                      (A)  be more than 28 cubic feet in volume;                      (B)  exceed a height of three feet above the   existing structure; or                      (C)  protrude from the outer circumference of the   existing structure by more than two feet;                (4)  ground-based enclosures may not be higher than   four feet from grade, wider than four feet, or deeper than four   feet; and                (5)  pole-mounted enclosures may not be taller than   five feet.          (b)  The following types of associated ancillary equipment   are not included in the calculation of equipment volume under   Subsection (a):                (1)  electric meters;                (2)  concealment elements;                (3)  telecommunications demarcation boxes;                (4)  grounding equipment;                (5)  power transfer switches;                (6)  cut-off switches; and                (7)  vertical cable runs for the connection of power   and other services.          (c)  Equipment attached to node support poles may not   protrude from the outer circumference of the node support pole by   more than three feet.          (d)  Equipment attached to a utility pole must be installed   in accordance with the National Electric Safety Code and the   utility pole owner's construction standards.   SUBCHAPTER B. USE OF PUBLIC RIGHTS-OF-WAY          Sec. 284.051.  APPLICABILITY OF SUBCHAPTER. (a) This   chapter applies only to activities of a network provider   constructing, operating, and maintaining a network node in a public   right-of-way and municipal authority in relation to those   activities.          (b)  Use of a public right-of-way for other   telecommunications facilities installed by a network provider is   governed by Chapter 283.          Sec. 284.052.  EXCLUSIVE USE PROHIBITED. A municipality may   not enter into an exclusive arrangement with any person for use of   the public rights-of-way for the construction, operation,   marketing, or maintenance of network nodes or node support poles.          Sec. 284.053.  PUBLIC RIGHT-OF-WAY RATE OR FEE FOR USE OF   PUBLIC RIGHTS-OF-WAY. (a) A public right-of-way rate or fee for   use of the public rights-of-way may not exceed an annual amount   equal to $1,000 multiplied by the number of node support poles and   utility poles, other than municipally owned utility poles, inside   the municipality's corporate boundaries on which the network   provider has installed a network node.           (b)  At the municipality's discretion, the municipality may   charge a network provider a lower rate or fee if the lower rate or   fee is:                (1)  nondiscriminatory;                (2)  related to the use of the public rights-of-way;   and                (3)  not a prohibited gift of public property.          Sec. 284.054.  PUBLIC RIGHT-OF-WAY RATE OR FEE ADJUSTMENT.   A municipality shall adjust the amount of the public right-of-way   rate or fee annually to reflect the previous year's annual rate of   inflation as determined by the Public Utility Commission of Texas.   The new rate or fee takes effect for the first payment due to the   municipality on or after the 60th day after the date the commission   makes the determination.          Sec. 284.055.  PUBLIC RIGHT-OF-WAY RATE OR FEE APPLICABLE TO   TELECOMMUNICATIONS NETWORK. (a) The right-of-way fee provisions   of Subchapter B, Chapter 283, apply to the use of a public   right-of-way for telecommunications network facilities, other than   network nodes, installed by a network provider.          (b)  For the purposes of calculating the right-of-way fee   under Subchapter B, Chapter 283:                (1)  each network node is considered to be an end-use   customer termination point as specified in the definition of   "access line" in Section 283.002(1)(A)(ii); and                (2)  the exception provided by Section 283.002(1)(B)   does not apply.          (c)  Notwithstanding Section 283.056, a network provider is   responsible for paying both the public right-of-way rate or fee   required by this chapter and any applicable right-of-way fee   required by Chapter 283.   SUBCHAPTER C. ACCESS AND APPROVALS          Sec. 284.101.  RIGHT OF ACCESS TO PUBLIC RIGHTS-OF-WAY. (a)   Except as specifically provided by this chapter and, subject to the   requirements of this chapter and the approval of a permit   application, if required, a network provider is entitled, as a   permitted use that is not subject to zoning review or similar   approval, and is not subject to further land use approval in an area   that is not zoned, to do the following in the public rights-of-way:                (1)  construct, modify, maintain, and operate a network   node;                (2)  construct, modify, maintain, and operate a utility   pole or network support pole; and                (3)  collocate on a pole with the discretionary,   nondiscriminatory, and express written consent of the pole's owner.          (b)  A network provider taking an action authorized by   Subsection (a) is subject to applicable codes.          Sec. 284.102.  GENERAL CONSTRUCTION AND MAINTENANCE   REQUIREMENTS. A network provider shall construct and maintain   structures and facilities described by Section 284.101 in a manner   that does not:                (1)  obstruct, impede, or hinder the usual travel or   public safety on a public right-of-way;                (2)  obstruct the legal use of a public right-of-way by   other utility providers;                (3)  violate applicable codes;                (4)  violate or conflict with the municipality's   publicly disclosed public rights-of-way design specifications; or                (5)  violate the federal Americans with Disabilities   Act of 1990 (42 U.S.C. Section 12101 et seq.).          Sec. 284.103.  GENERAL LIMITATION ON PLACEMENT OF POLES. A   network provider shall ensure that each new, modified, or   replacement utility pole or node support pole installed in a public   right-of-way in relation to which the network provider received   approval of a permit application:                (1)  does not exceed the greater of:                      (A)  10 feet in height above the tallest existing   utility pole located within 500 linear feet of the new pole in the   same public right-of-way; or                      (B)  50 feet above ground level; and                (2)  is spaced at least 300 linear feet from the nearest   existing pole that is capable of supporting network nodes and is   located in a public right-of-way.          Sec. 284.104.  INSTALLATION IN RESIDENTIAL AREAS. (a) A   network provider may not install a new node support pole in a   public right-of-way without the municipality's discretionary,   nondiscriminatory, and written consent if the public right-of-way   is adjacent to a street or thoroughfare:                (1)  that is not more than 50 feet wide; and                (2)  both sides of which are adjacent to single-family   residential lots or other multifamily residences.          (b)  In addition to the requirement prescribed by Subsection   (a), a network provider installing a network node or node support   pole in a public right-of-way described by Subsection (a) shall   comply with private deed restrictions and other private   restrictions in the area that apply to those facilities.          Sec. 284.105.  EQUIPMENT CABINETS. A network provider shall   ensure that the vertical height of an equipment cabinet installed   as part of a network node does not exceed the height limitation   prescribed by Section 284.003, subject to approval of the pole's   owner if applicable.          Sec. 284.106.  COMPLIANCE WITH UNDERGROUNDING REQUIREMENT.   (a) A network provider shall, in relation to installation for which   the municipality approved a permit application, comply with   nondiscriminatory undergrounding requirements, including   municipal ordinances, zoning regulations, state law, private deed   restrictions, and other public or private restrictions, that   prohibit installing aboveground structures in a public   right-of-way without first obtaining zoning or land use approval.          (b)  A requirement or restriction described by Subsection   (a) may not be interpreted to prohibit a network provider from   replacing an existing structure.          Sec. 284.107.  DESIGN MANUAL. (a) A municipality may adopt   a design manual for the installation and construction of network   nodes and new node support poles in the public rights-of-way that   includes additional installation and construction details that do   not conflict with this chapter.          (b)  A network provider shall comply with the design manual   in relation to work for which the municipality approved a permit   application.          Sec. 284.108.  EXCEPTIONS. Subject to Subchapter D, a   network provider may construct, modify, or maintain in a public   right-of-way a network node or network support pole that exceeds   the height or distance limitations prescribed by this chapter only   if the municipality approves the construction, modification, or   maintenance subject to all applicable zoning or land use   regulations and applicable codes.          Sec. 284.109.  DISCRIMINATION PROHIBITED. A municipality,   in the exercise of the municipality's administrative and regulatory   authority related to the management of and access to the public   rights-of-way, must be competitively neutral with regard to other   users of the public rights-of-way.   SUBCHAPTER D. APPLICATIONS AND PERMITS          Sec. 284.151.  PROHIBITION OF CERTAIN MUNICIPAL ACTIONS.   (a) Except as otherwise provided by this chapter, a municipality   may not prohibit, regulate, or charge for the installation or   collocation of network nodes in a public right-of-way.          (b)  A municipality may not directly or indirectly require,   as a condition for issuing a permit required under this chapter,   that the applicant perform services unrelated to the installation   or collocation for which the permit is sought, including in-kind   contributions such as reserving fiber, conduit, or pole space for   the municipality.          (c)  A municipality may not institute an express or de facto   moratorium on:                (1)  filing, receiving, or processing applications; or                (2)  issuing permits or other approvals, if any, for   the installation of network nodes or node support poles.          Sec. 284.152.  AUTHORITY TO REQUIRE PERMIT. (a) A   municipality may require a network provider to obtain one or more   permits to install a network node or node support pole in a public   right-of-way if the permit:                (1)  is of general applicability to users of the public   rights-of-way; and                (2)  does not apply exclusively to network nodes.          (b)  A network provider that wants to install or collocate   multiple network nodes inside the territorial jurisdiction of a   single municipality is entitled to file a consolidated permit   application with the municipality for not more than 30 network   nodes and receive a single permit for the installation or   collocation of those network nodes.          Sec. 284.153.  GENERAL PROCESS RELATING TO PERMIT   APPLICATION. (a) Except as otherwise provided by this section, a   municipality may not require an applicant to provide more   information to obtain the permit than a telecommunications utility   that is not a network provider is required to provide.          (b)  As part of the standard form for a permit application, a   municipality may require the applicant to include applicable   construction and engineering drawings and information to confirm   that the applicant will comply with the municipality's publicly   disclosed public rights-of-way design specifications and   applicable codes.          (c)  A municipality may require an applicant to provide:                (1)  information reasonably related to the provider's   use of the public rights-of-way under this chapter:                      (A)  to ensure compliance with this chapter; and                      (B)  as reasonably necessary to demonstrate that   the proposed network node will comply with applicable regulations   of the Federal Communications Commission; and                (2)  reasonable evidence that the proposed network node   will be placed into active commercial service by or for a provider   of retail telecommunications service immediately after the date the   construction and final testing of the network node is completed.          Sec. 284.154.  MUNICIPAL REVIEW PROCESS. (a) A   municipality shall process each permit application on a   nondiscriminatory basis.          (b)  Not later than the 30th day after the date the   municipality receives an application, the municipality shall   determine whether the application is complete and notify the   applicant of that determination. If the municipality determines   that the application is not complete, the municipality shall   specifically identify the missing information.          (c)  A municipality shall approve an application that does   not require zoning or land use approval under this chapter unless   the application or the corresponding work to be performed under the   permit does not comply with the municipality's applicable codes.          (d)  A municipality must approve or deny a complete   application for a new node support pole not later than the 150th day   after the date the municipality receives the application. The   municipality must approve or deny all other complete applications   not later than the 90th day after the date the municipality receives   the application.          (e)  A municipality that denies a complete application must   document the basis for the denial, including the specific   applicable code provisions on which the denial was based. The   municipality shall send the documentation to the applicant on or   before the date the authority denies the application.          (f)  Not later than the 30th day after the date the   municipality denies the application, the applicant may cure the   deficiencies identified in the denial documentation and resubmit   the application without paying an additional application fee, other   than a fee for actual costs incurred by the municipality.   Notwithstanding Subsection (d), the municipality shall approve or   deny the revised application not later than the 45th day after the   date the municipality receives the revised application. The   municipality's review of the revised application is limited to the   deficiencies cited in the denial documentation.          Sec. 284.155.  TIME OF INSTALLATION. (a) A network provider   shall begin the installation for which a permit is granted not later   than the 90th day after the date the permit is approved and shall   complete the installation not later than the 180th day after the   date the installation begins.          (b)  Notwithstanding Subsection (a), the municipality may   place a longer time limit on completion or grant reasonable   extensions of time as requested by the network provider.          Sec. 284.156.  APPLICATION FEES. (a) A municipality may   charge an application fee for a permit only if the municipality   requires the payment of the fee for similar types of commercial   development inside the municipality's territorial jurisdiction   other than a type for which application or permit fees are not   allowed by law.          (b)  The amount of an application fee charged by a   municipality must be:                (1)  based on the actual, direct, and reasonable costs   the municipality determines are incurred in granting or processing   an application; and                (2)  reasonably related in time to the time the costs of   granting or processing an application are incurred.          (c)  In determining for purposes of Subsection (b) the amount   of the actual, direct, and reasonable costs, the municipality:                (1)  may include reasonable and direct reimbursement of   costs incurred by the municipality in relation to third-party legal   or engineering review of an application, including reasonable and   necessary travel expenses in this state; and                (2)  may not include direct payments or reimbursement   of third-party public right-of-way rates or fees charged on a   contingency basis or under a result-based arrangement.          (d)  Payment by a network provider of applicable application   fees under this chapter does not affect the provisions of Section   283.056 that prohibit a municipality from requiring the provider to   pay application or permit fees in relation to telecommunications   facilities, other than network nodes, that the provider installs in   the public rights-of-way.          Sec. 284.157.   CERTAIN WORK EXEMPTED. (a) A municipality   may not require a network provider to submit an application for:                (1)  routine maintenance that does not require   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.          (b)  For purposes of Subsection (a)(2):                (1)  a pole or network node is considered to be   "substantially similar" if:                      (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   pole as approved by the municipality.          (d)  Notwithstanding Subsection (a):                (1)  a municipality may require advance notice of work   described by that subsection; and                (2)  a network provider may replace or upgrade a pole   only with the approval of the pole's owner.   SUBCHAPTER E. ACCESS TO AUTHORITY STRUCTURES          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   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          Sec. 284.251.  LOCAL POLICE-POWER-BASED REGULATIONS. (a)   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.