Bill Text: TX SB1004 | 2017-2018 | 85th Legislature | Enrolled

---

Bill Title: Relating to the deployment of network nodes in public right-of-way; authorizing fees.

Sponsorship: Partisan Bill (Republican 3)

Status: (Passed) 2017-06-09 - Effective on 9/1/17 [SB1004 Detail]

Download: Texas-2017-SB1004-Enrolled.html

---

S.B. No. 1004

AN ACT
relating to the deployment of network nodes in public right-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 RIGHT-OF-WAY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 284.001. FINDINGS AND POLICY. (a) The legislature
finds that:
(1) network nodes are instrumental to increasing
access to advanced technology and information for the citizens of
this state and thereby further an important public policy of having
reliable wireless networks and services;
(2) this state has delegated to each municipality the
fiduciary duty, as a trustee, to manage the public right-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 right-of-way;
(4) network providers' access to the public
right-of-way and the ability to attach network nodes to poles and
structures in the public right-of-way allow network providers to
densify their networks and provide next-generation services;
(5) expeditious processes and reasonable and
nondiscriminatory terms, conditions, and compensation for use of
the public right-of-way for network node deployments are essential
to state-of-the-art wireless services and thereby further an
important public policy of having reliable wireless networks and
services;
(6) network nodes help ensure that this state remains
competitive in the global economy;
(7) the timely permitting of network nodes in the
public right-of-way is a matter of statewide concern and interest;
(8) requirements of this chapter regarding fees,
charges, rates, and public right-of-way management, when
considered with fees charged to other public right-of-way users
under this code, are fair and reasonable and in compliance with 47
U.S.C. Section 253;
(9) to the extent this state has delegated its
fiduciary responsibility to municipalities as managers of a
valuable public asset, the public right-of-way, this state is
acting in its role as a landowner in balancing the needs of the
public and the needs of the network providers by allowing access to
the public right-of-way to place network nodes in the public
right-of-way strictly within the terms of this chapter; and
(10) as to each municipality, including home-rule
municipalities, this state has determined that it is reasonable and
necessary to allow access to the public right-of-way for the
purposes of deploying network nodes to protect and safeguard the
health, safety, and welfare of the public as provided by this
chapter.
(b) In order to safeguard the health, safety, and welfare of
the public, it is the policy of this state to promote the adoption
of and encourage competition in the provision of 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, subject to state law and
strictly within the requirements and limitations prescribed by this
chapter, that municipalities:
(1) retain the authority to manage the public
right-of-way to ensure the health, safety, and welfare of the
public; and
(2) receive from network providers fair and reasonable
compensation for use of the public right-of-way and for collocation
on poles.
Sec. 284.002. DEFINITIONS. In this chapter:
(1) "Antenna" means communications equipment that
transmits or receives electromagnetic radio frequency signals used
in the provision of wireless services.
(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 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 a pole.
(4) "Decorative pole" means a streetlight pole
specially designed and placed for aesthetic purposes and on which
no appurtenances or attachments, other than specially designed
informational or directional signage or temporary holiday or
special event attachments, have been placed or are permitted to be
placed according to nondiscriminatory municipal codes.
(5) "Design district" means an area that is zoned, or
otherwise designated by municipal code, and for which the city
maintains and enforces unique design and aesthetic standards on a
uniform and nondiscriminatory basis.
(6) "Historic district" means an area that is zoned or
otherwise designated as a historic district under municipal, state,
or federal law.
(7) "Law" means common law or a federal, state, or
local law, statute, code, rule, regulation, order, or ordinance.
(8) "Macro tower" means a guyed or self-supported pole
or monopole greater than the height parameters prescribed by
Section 284.103 and that supports or is capable of supporting
antennas.
(9) "Micro network node" means a network node that is
not larger in dimension than 24 inches in length, 15 inches in
width, and 12 inches in height, and that has an exterior antenna, if
any, not longer than 11 inches.
(10) "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.
(11) "Municipal park" means an area that is zoned or
otherwise designated by municipal code as a public park for the
purpose of recreational activity.
(12) "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 that is
immediately adjacent to and directly associated with a particular
collocation; and
(B) does not include:
(i) an electric generator;
(ii) a pole; or
(iii) a macro tower.
(13) "Network provider" means:
(A) a wireless service provider; or
(B) a person that does not provide wireless
services and that is not an electric utility but builds or installs
on behalf of a wireless service provider:
(i) network nodes; or
(ii) node support poles or any other
structure that supports or is capable of supporting a network node.
(14) "Node support pole" means a pole installed by a
network provider for the primary purpose of supporting a network
node.
(15) "Permit" means a written authorization for the
use of the public right-of-way or collocation on a service pole
required from a municipality before a network provider may perform
an action or initiate, continue, or complete a project over which
the municipality has police power authority.
(16) "Pole" means a service pole, municipally owned
utility pole, node support pole, or utility pole.
(17) "Private easement" means an easement or other
real property right that is only for the benefit of the grantor and
grantee and their successors and assigns.
(18) "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:
(A) a private easement; or
(B) the airwaves above a public right-of-way with
regard to wireless telecommunications.
(19) "Public right-of-way management ordinance" means
an ordinance that complies with Subchapter C.
(20) "Public right-of-way rate" means an annual rental
charge paid by a network provider to a municipality related to the
construction, maintenance, or operation of network nodes within a
public right-of-way in the municipality.
(21) "Service pole" means 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) a pole that supports traffic control
functions;
(B) a structure for signage;
(C) a pole that supports lighting, other than a
decorative pole; and
(D) a pole or similar structure owned or operated
by a municipality and supporting only network nodes.
(22) "Transport facility" means each transmission
path physically within a public right-of-way, extending with a
physical line from a network node directly to the network, for the
purpose of providing backhaul for network nodes.
(23) "Utility pole" means a pole that provides:
(A) electric distribution with a voltage rating
of not more than 34.5 kilovolts; or
(B) services of a telecommunications provider,
as defined by Section 51.002, Utilities Code.
(24) "Wireless service" means any service, using
licensed or unlicensed wireless spectrum, including the use of
Wi-Fi, whether at a fixed location or mobile, provided to the public
using a network node.
(25) "Wireless service provider" means a person that
provides wireless service to the public.
Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES.
(a) Except as provided by Section 284.109, 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 or pole:
(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 or pole; and
(C) may not protrude from the outer circumference
of the existing structure or pole by more than two feet;
(2) if an antenna has exposed elements and is attached
to an existing structure or pole, 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 or pole; and
(C) may not protrude from the outer circumference
of the existing structure or pole by more than two feet;
(3) the cumulative size of other wireless equipment
associated with the network node attached to an existing structure
or pole may not:
(A) be more than 28 cubic feet in volume; or
(B) protrude from the outer circumference of the
existing structure or pole by more than two feet;
(4) ground-based enclosures, separate from the pole,
may not be higher than three feet six inches from grade, wider than
three feet six inches, or deeper than three feet six inches; 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 edge of the node support pole by more than
two feet.
(d) Equipment attached to a utility pole must be installed
in accordance with the National Electrical Safety Code, subject to
applicable codes, and the utility pole owner's construction
standards.
SUBCHAPTER B. USE OF PUBLIC RIGHT-OF-WAY
Sec. 284.051. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to activities related to transport facilities for
network nodes, activities of a network provider collocating network
nodes in the public right-of-way or installing, constructing,
operating, modifying, replacing, and maintaining node support
poles in a public right-of-way, and municipal authority in relation
to those activities.
Sec. 284.052. EXCLUSIVE USE PROHIBITED. A municipality may
not enter into an exclusive arrangement with any person for use of
the public right-of-way for the construction, operation,
marketing, or maintenance of network nodes or node support poles.
Sec. 284.053. ANNUAL PUBLIC RIGHT-OF-WAY RATE. (a) A
public right-of-way rate for use of the public right-of-way may not
exceed an annual amount equal to $250 multiplied by the number of
network nodes installed in the public right-of-way in the
municipality's corporate boundaries.
(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 right-of-way; and
(3) not a prohibited gift of public property.
Sec. 284.054. PUBLIC RIGHT-OF-WAY RATE ADJUSTMENT. (a) In
this section, "consumer price index" means the annual revised
Consumer Price Index for All Urban Consumers for Texas, as
published by the federal Bureau of Labor Statistics.
(b) A municipality may adjust the amount of the public
right-of-way rate not more often than annually by an amount equal to
one-half the annual change, if any, in the consumer price index.
The municipality shall provide written notice to each network
provider of the new rate, and the rate shall apply to the first
payment due to the municipality on or after the 60th day following
that notice.
Sec. 284.055. USE OF PUBLIC RIGHT-OF-WAY AND APPLICABLE
RATE. (a) A network provider that wants to connect a network node
to the network using the public right-of-way may:
(1) install its own transport facilities subject to
Subsection (b); or
(2) obtain transport service from a person that is
paying municipal fees to occupy the public right-of-way that are
the equivalent of not less than $28 per node per month.
(b) A network provider may not install its own transport
facilities unless the provider:
(1) has a permit to use the public right-of-way; and
(2) pays to the municipality a monthly public
right-of-way rate for transport facilities in an amount equal to
$28 multiplied by the number of the network provider's network
nodes located in the public right-of-way for which the installed
transport facilities provide backhaul unless or until the time the
network provider's payment of municipal fees to the municipality
exceeds its monthly aggregate per-node compensation to the
municipality.
(c) A public right-of-way rate required by Subsection (b) is
in addition to any public right-of-way rate required by Section
284.053.
Sec. 284.056. COLLOCATION OF NETWORK NODES ON SERVICE
POLES. A municipality, subject to an agreement with the
municipality that does not conflict with this chapter, shall allow
collocation of network nodes on service poles on nondiscriminatory
terms and conditions and at a rate not greater than $20 per year per
service pole.
Sec. 284.057. PROHIBITION ON OTHER COMPENSATION. A
municipality may not require a network provider to pay any
compensation other than the compensation authorized by this chapter
for the right to use a public right-of-way for network nodes, node
support poles, or transport facilities for network nodes.
SUBCHAPTER C. ACCESS AND APPROVALS
Sec. 284.101. RIGHT OF ACCESS TO PUBLIC RIGHT-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 authorized, as a
permitted use, without need for a special use permit or similar
zoning review and not subject to further land use approval, to do
the following in the public right-of-way:
(1) construct, modify, maintain, operate, relocate,
and remove a network node or node support pole;
(2) modify or replace a utility pole or node support
pole; and
(3) collocate on a pole, subject to an agreement with
the municipality that does not conflict with this chapter.
(b) A network provider taking an action authorized by
Subsection (a) is subject to applicable codes, including applicable
public right-of-way management ordinances.
Sec. 284.102. GENERAL CONSTRUCTION AND MAINTENANCE
REQUIREMENTS. A network provider shall construct and maintain
network nodes and node support poles 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 nondiscriminatory applicable codes;
(4) violate or conflict with the municipality's
publicly disclosed public right-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 does not exceed the lesser of:
(1) 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
(2) 55 feet above ground level.
Sec. 284.104. INSTALLATION IN MUNICIPAL PARKS AND
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 in a municipal park or is
adjacent to a street or thoroughfare that is:
(1) not more than 50 feet wide; and
(2) adjacent to single-family residential lots or
other multifamily residences or undeveloped land that is designated
for residential use by zoning or deed restrictions.
(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. INSTALLATION IN HISTORIC OR DESIGN DISTRICTS.
(a) A network provider must obtain advance approval from a
municipality before collocating new network nodes or installing new
node support poles in an area of the municipality zoned or otherwise
designated as a historic district or as a design district if the
district has decorative poles. As a condition for approval of new
network nodes or new node support poles in a historic district or a
design district with decorative poles, a municipality may require
reasonable design or concealment measures for the new network nodes
or new node support poles. A municipality may request that a
network provider comply with the design and aesthetic standards of
the historic or design district and explore the feasibility of
using certain camouflage measures to improve the aesthetics of the
new network nodes, new node support poles, or related ground
equipment, or any portion of the nodes, poles, or equipment, to
minimize the impact to the aesthetics in a historic district or on a
design district's decorative poles.
(b) This section may not be construed to limit a
municipality's authority to enforce historic preservation zoning
regulations consistent with the preservation of local zoning
authority under 47 U.S.C. Section 332(c)(7), the requirements for
facility modifications under 47 U.S.C. Section 1455(a), or the
National Historic Preservation Act of 1966 (54 U.S.C. Section
300101 et seq.), and the regulations adopted to implement those
laws.
Sec. 284.106. 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. 284.107. 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. 284.108. 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 right-of-way that
includes additional installation and construction details that do
not conflict with this chapter. The design manual may include:
(1) a requirement that an industry standard pole load
analysis be completed and submitted to the municipality indicating
that the service pole to which the network node is to be attached
will safely support the load; and
(2) a requirement that network node equipment placed
on new and existing poles be placed more than eight feet above
ground level.
(b) A network provider shall comply with a design manual, if
any, in place on the date a permit application is filed in relation
to work for which the municipality approved the permit application.
A municipality's obligations under Section 284.154 may not be
tolled or extended pending the adoption or modification of a design
manual.
Sec. 284.109. EXCEPTIONS. Subject to Subchapter D, a
network provider may construct, modify, or maintain in a public
right-of-way a network node or node 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. 284.110. 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
right-of-way, must be competitively neutral with regard to other
users of the public right-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 a moratorium, in whole
or in part, express or de facto, 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) Except as
otherwise provided by this chapter, a municipality may require a
network provider to obtain one or more permits to install a network
node, node support pole, or transport facility in a public
right-of-way if the permit:
(1) is of general applicability to users of the public
right-of-way;
(2) does not apply exclusively to network nodes; and
(3) is processed on nondiscriminatory terms and
conditions regardless of the type of entity submitting the
application for the permit.
(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 permits 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 unless the
information directly relates to the requirements of this chapter.
(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 right-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 right-of-way under this chapter to ensure
compliance with this chapter;
(2) a certificate that the network node complies with
applicable regulations of the Federal Communications Commission;
and
(3) certification that the proposed network node will
be placed into active commercial service by or for a network
provider not later than the 60th day 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 for a permit for a network
node or node support pole, or the 10th day after the date the
municipality receives an application for a permit for a transport
facility, 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 or
other municipal rules, regulations, or other law that is consistent
with this chapter.
(d) A municipality must approve or deny an application for a
node support pole not later than the 150th day after the date the
municipality receives the complete application. A municipality
must approve or deny an application for a network node not later
than the 60th day after the date the municipality receives the
complete application. A municipality must approve or deny an
application for a transport facility not later than the 21st day
after the date the municipality receives a complete application.
An application for a permit for a node support pole, network node,
or transport facility shall be deemed approved if the application
is not approved or denied on or before the applicable date for
approval or denial prescribed by this subsection.
(e) A municipality that denies a complete application must
document the basis for the denial, including the specific
applicable code provisions or other municipal rules, regulations,
or other law on which the denial was based. The municipality shall
send the documentation by electronic mail to the applicant on or
before the date the municipality 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 completed application after a denial not later
than the 90th day after the date the municipality receives the
completed 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 six months after final approval and shall diligently
pursue the installation to completion.
(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 may not exceed the lesser of:
(1) the actual, direct, and reasonable costs the
municipality determines are incurred in granting or processing an
application that are reasonably related in time to the time the
costs of granting or processing an application are incurred; or
(2) $500 per application covering up to five network
nodes, $250 for each additional network node per application, and
$1,000 per application for each pole.
(c) In determining for purposes of Subsection (b)(1) the
amount of the actual, direct, and reasonable costs, the
municipality may not:
(1) include costs incurred by the municipality in
relation to third-party legal or engineering review of an
application; or
(2) 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.
Sec. 284.157. CERTAIN WORK EXEMPTED. (a) Notwithstanding
any other provision of this chapter, a municipality may not require
a network provider to submit an application, obtain a permit, or pay
a rate for:
(1) routine maintenance that does not require
excavation or closing of sidewalks or vehicular lanes in a public
right-of-way;
(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; or
(3) the installation, placement, maintenance,
operation, or replacement of micro network nodes that are strung on
cables between existing poles or node support poles, in compliance
with the National Electrical Safety Code.
(b) For purposes of Subsection (a)(2):
(1) a network node or pole is considered to be
"substantially similar" if:
(A) 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; and
(B) 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;
(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;
(2) a network provider may replace or upgrade a pole
only with the approval of the pole's owner; and
(3) the size limitations may not in any event exceed
the parameters prescribed by Section 284.003 without the
municipality's approval in accordance with Section 284.109, with
the municipality acting on behalf of this state as the fiduciary
trustee of public property.
SUBCHAPTER E. ACCESS TO MUNICIPALLY OWNED UTILITY POLES
Sec. 284.201. USE OF MUNICIPALLY OWNED UTILITY POLES.
(a) The governing body of a municipally owned utility shall allow
collocation of network nodes on municipally owned utility poles on
nondiscriminatory terms and conditions and pursuant to a negotiated
pole attachment agreement, including any applicable permitting
requirements of the municipally owned utility.
(b) The annual pole attachment rate for the collocation of a
network node supported by or installed on a municipally owned
utility pole shall be based on a pole attachment rate consistent
with Section 54.204, Utilities Code, applied on a per-foot basis.
(c) The requirements of Subchapters B, C, and D applicable
to the installation of a network node supported by or installed on a
pole do not apply to a network node supported by or installed on a
municipally owned utility pole.
SUBCHAPTER F. EFFECT ON OTHER UTILITIES AND PROVIDERS
Sec. 284.251. DEFINITIONS. In this subchapter:
(1) "Cable service" and "video service" have the
meanings assigned by Section 66.002, Utilities Code.
(2) "Electric cooperative" has the meaning assigned by
Section 11.003, Utilities Code.
(3) "Electric utility" has the meaning assigned by
Section 31.002, Utilities Code.
(4) "Telecommunications provider" has the meaning
assigned by Section 51.002, Utilities Code.
(5) "Telephone cooperative" has the meaning assigned
by Section 162.003, Utilities Code.
Sec. 284.252. EFFECT ON INVESTOR-OWNED ELECTRIC UTILITIES,
ELECTRIC COOPERATIVES, TELEPHONE COOPERATIVES, AND
TELECOMMUNICATIONS PROVIDERS. Nothing in this chapter shall govern
attachment of network nodes on poles and other structures owned or
operated by investor-owned electric utilities, electric
cooperatives, telephone cooperatives, or telecommunications
providers. This chapter does not confer on municipalities any new
authority over those utilities, cooperatives, or providers.
Sec. 284.253. EFFECT ON PROVIDERS OF CABLE SERVICES OR
VIDEO SERVICES. (a) An approval for the installation, placement,
maintenance, or operation of a network node or transport facility
under this chapter may not be construed to confer authorization to
provide:
(1) cable service or video service without complying
with all terms of Chapter 66, Utilities Code; or
(2) information service as defined by 47 U.S.C.
Section 153(24), or telecommunications service as defined by 47
U.S.C. Section 153(53), in the public right-of-way.
(b) Except as provided by this chapter, a municipality may
not adopt or enforce any regulations or requirements that would
require a wireless service provider, or its affiliate, that holds a
cable or video franchise under Chapter 66, Utilities Code, to
obtain any additional authorization or to pay any fees based on the
provider's provision of wireless service over its network nodes.
SUBCHAPTER G. GENERAL CONDITIONS OF ACCESS
Sec. 284.301. 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
right-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 right-of-way only to the extent that the
regulations are reasonably necessary to protect the health, safety,
and welfare of the public.
Sec. 284.302. 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. 284.303. RELOCATION. Except as provided in existing
state and federal law, a network provider shall relocate or adjust
network nodes in a public right-of-way in a timely manner and
without cost to the municipality managing the public right-of-way.
Sec. 284.304. 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," "network
node," "network provider," and "public right-of-way" have the
meanings assigned by Section 284.002, Local Government Code, as
added by this Act.
(b) Public/private agreements between a municipality and a
network provider for the deployment of network nodes in the public
right-of-way on fair and reasonable terms as provided by Chapter
284, Local Government Code, as added by this Act, and corresponding
ordinances governing that deployment, are necessary to protect the
health, safety, and welfare of the public by facilitating robust
and dependable wireless networks. Accordingly, those agreements
and ordinances shall be conformed as provided by this section.
(c) Subject to Subsection (d) of this section, the rates,
terms, and conditions of agreements and ordinances entered into or
enacted before the effective date of this Act shall apply to all
network nodes installed and operational before the effective date
of this Act.
(d) For all network nodes installed and operational on or
after the effective date of this Act:
(1) if a rate, term, or condition of an agreement or
ordinance related to the construction, collocation, operation,
modification, or maintenance of network nodes does not comply with
the requirements of Chapter 284, Local Government Code, as added by
this Act, a municipality shall amend the agreement or ordinance to
comply with the requirements of Chapter 284, Local Government Code,
as added by this Act, and the amended rates, terms, or conditions
shall take effect for those network nodes on the six-month
anniversary of the effective date of this Act; and
(2) the rates, terms, and conditions of each agreement
executed, and each ordinance enacted, on or after the effective
date of this Act shall comply with the requirements of Chapter 284,
Local Government Code, as added by this Act.
SECTION 3. This Act takes effect September 1, 2017.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1004 passed the Senate on
April 6, 2017, by the following vote: Yeas 29, Nays 0, two present
not voting; and that the Senate concurred in House amendment on
May 25, 2017, by the following vote: Yeas 29, Nays 0, two present
not voting.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1004 passed the House, with
amendment, on May 18, 2017, by the following vote: Yeas 140,
Nays 6, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor