CHAPTER 66. STATE-ISSUED CABLE AND VIDEO FRANCHISE
UTILITIES CODE
TITLE 2. PUBLIC UTILITY REGULATORY ACT
SUBTITLE C. TELECOMMUNICATIONS UTILITIES
CHAPTER 66. STATE-ISSUED CABLE AND VIDEO FRANCHISE
Sec. 66.001. FRANCHISING AUTHORITY. The commission shall be
designated as the franchising authority for a state-issued
franchise for the provision of cable service or video service.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.002. DEFINITIONS. In this chapter:
(1) "Actual incremental cost" means only current out-of-pocket
expenses for labor, equipment repair, equipment replacement, and
tax expenses directly associated with the labor or the equipment
of a service provider that is necessarily and directly used to
provide what were, under a superseded franchise, in-kind
services, exclusive of any profit or overhead such as
depreciation, amortization, or administrative expense.
(2) "Cable service" is defined as set forth in 47 U.S.C. Section
522(6).
(3) "Cable service provider" means a person who provides cable
service.
(4) "Communications network" means a component or facility that
is, wholly or partly, physically located within a public
right-of-way and that is used to provide video programming,
cable, voice, or data services.
(5) "Franchise" means an initial authorization, or renewal of an
authorization, issued by a franchising authority, regardless of
whether the authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or
otherwise, that authorizes the construction and operation of a
cable or video services network in the public rights-of-way.
(6)(A) "Gross revenues" means all consideration of any kind or
nature including without limitation cash, credits, property, and
in-kind contributions (services or goods) derived by the holder
of a state-issued certificate of franchise authority from the
operation of the cable service provider's or the video service
provider's network to provide cable service or video service
within the municipality. Gross revenue shall include all
consideration paid to the holder of a state-issued certificate of
franchise authority and its affiliates (to the extent either is
acting as a provider of a cable service or video service as
authorized by this chapter), which shall include but not be
limited to the following: (i) all fees charged to subscribers
for any and all cable service or video service provided by the
holder of a state-issued certificate of franchise authority; (ii)
any fee imposed on the holder of a state-issued certificate of
franchise authority by this chapter that is passed through and
paid by subscribers (including without limitation the franchise
fee set forth in this chapter); and (iii) compensation received
by the holder of a state-issued certificate of franchise
authority or its affiliates that is derived from the operation of
the holder of a state-issued certificate of franchise authority's
network to provide cable service or video service with respect to
commissions that are paid to the holder of a state-issued
certificate of franchise authority as compensation for promotion
or exhibition of any products or services on the holder of a
state-issued certificate of franchise authority's network, such
as a "home shopping" or a similar channel, subject to Paragraph
(B)(v). Gross revenue includes a pro rata portion of all revenue
derived by the holder of a state-issued certificate of franchise
authority or its affiliates pursuant to compensation arrangements
for advertising derived from the operation of the holder of a
state-issued certificate of franchise authority's network to
provide cable service or the video service within a municipality,
subject to Paragraph (B)(iii). The allocation shall be based on
the number of subscribers in the municipality divided by the
total number of subscribers in relation to the relevant regional
or national compensation arrangement. Advertising commissions
paid to third parties shall not be netted against advertising
revenue included in gross revenue. Revenue of an affiliate
derived from the affiliate's provision of cable service or the
video service shall be gross revenue to the extent the treatment
of such revenue as revenue of the affiliate and not of the holder
of a state-issued certificate of franchise authority has the
effect (whether intentional or unintentional) of evading the
payment of fees which would otherwise be paid to the
municipality. In no event shall revenue of an affiliate be gross
revenue to the holder of a state-issued certificate of franchise
authority if such revenue is otherwise subject to fees to be paid
to the municipality.
(B) For purposes of this section, "gross revenues" does not
include:
(i) any revenue not actually received, even if billed, such as
bad debt;
(ii) non-cable services or non-video services revenues received
by any affiliate or any other person in exchange for supplying
goods or services used by the holder of a state-issued
certificate of franchise authority to provide cable service or
video service;
(iii) refunds, rebates, or discounts made to subscribers, leased
access providers, advertisers, or a municipality;
(iv) any revenues from services classified as non-cable service
or non-video service under federal law including without
limitation revenue received from telecommunications services;
revenue received from information services (but not excluding
cable services or video services); and any other revenues
attributed by the holder of a state-issued certificate of
franchise authority to non-cable service or non-video service in
accordance with Federal Communications Commission or commission
rules, regulations, standards, or orders;
(v) any revenue paid by subscribers to home shopping programmers
directly from the sale of merchandise through any home shopping
channel offered as part of the cable services or video services,
but not excluding any commissions that are paid to the holder of
a state-issued certificate of franchise authority as compensation
for promotion or exhibition of any products or services on the
holder of a state-issued certificate of franchise authority's
network, such as a "home shopping" or a similar channel;
(vi) the sale of cable services or video services for resale in
which the purchaser is required to collect this chapter's fees
from the purchaser's customer. Nothing under this chapter is
intended to limit state's rights pursuant to 47 U.S.C. Section
542(h);
(vii) the provision of cable services or video services to
customers at no charge, as required or allowed by this chapter,
including without limitation the provision of cable services or
video services to public institutions, as required or permitted
in this chapter, including without limitation public schools or
governmental entities, as required or permitted in this chapter;
(viii) any tax of general applicability imposed upon the holder
of a state-issued certificate of franchise authority or upon
subscribers by a city, state, federal, or any other governmental
entity and required to be collected by the holder of a
state-issued certificate of franchise authority and remitted to
the taxing entity (including, but not limited to, sales and use
tax, gross receipts tax, excise tax, utility users tax, public
service tax, communication taxes, and fees not imposed by this
chapter);
(ix) any forgone revenue from the holder of a state-issued
certificate of franchise authority's provision of free or reduced
cost cable services or video services to any person including
without limitation employees of the holder of a state-issued
certificate of franchise authority, to the municipality and other
public institutions or other institutions as allowed in this
chapter; provided, however, that any forgone revenue which the
holder of a state-issued certificate of franchise authority
chooses not to receive in exchange for trades, barters, services,
or other items of value shall be included in gross revenue;
(x) sales of capital assets or sales of surplus equipment that
is not used by the purchaser to receive cable services or video
services from the holder of a state-issued certificate of
franchise authority;
(xi) directory or Internet advertising revenue including, but
not limited to, yellow pages, white pages, banner advertisement,
and electronic publishing; and
(xii) reimbursement by programmers of marketing costs incurred
by the holder of a state-issued franchise for the introduction of
new programming that exceed the actual costs.
(C) For purposes of this definition, a provider's network
consists solely of the optical spectrum wavelengths, bandwidth,
or other current or future technological capacity used for the
transmission of video programming over wireline directly to
subscribers within the geographic area within the municipality as
designated by the provider in its franchise.
(7) "Incumbent cable service provider" means the cable service
provider serving the largest number of cable subscribers in a
particular municipal franchise area on September 1, 2005.
(8) "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 a municipality has an
interest.
(9) "Video programming" means programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station, as set forth in 47 U.S.C. Section
522(20).
(10) "Video service" means video programming services provided
through wireline facilities located at least in part in the
public right-of-way without regard to delivery technology,
including Internet protocol technology. This definition does not
include any video service provided by a commercial mobile service
provider as defined in 47 U.S.C. Section 332(d).
(11) "Video service provider" means a video programming
distributor that distributes video programming services through
wireline facilities located at least in part in the public
right-of-way without regard to delivery technology. This term
does not include a cable service provider.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.003. STATE AUTHORIZATION TO PROVIDE CABLE SERVICE OR
VIDEO SERVICE. (a) An entity or person seeking to provide cable
service or video service in this state after September 1, 2005,
shall file an application for a state-issued certificate of
franchise authority with the commission as required by this
section. An entity providing cable service or video service
under a franchise agreement with a municipality is not subject to
this subsection with respect to such municipality until the
franchise agreement expires, except as provided by Section
66.004.
(a-1) The commission shall notify an applicant for a
state-issued certificate of franchise authority whether the
applicant's affidavit described by Subsection (b) is complete
before the 15th business day after the applicant submits the
affidavit.
(b) The commission shall issue a certificate of franchise
authority to offer cable service or video service before the 17th
business day after receipt of a completed affidavit submitted by
the applicant and signed by an officer or general partner of the
applicant affirming:
(1) that the applicant has filed or will timely file with the
Federal Communications Commission all forms required by that
agency in advance of offering cable service or video service in
this state;
(2) that the applicant agrees to comply with all applicable
federal and state statutes and regulations;
(3) that the applicant agrees to comply with all applicable
municipal regulations regarding the use and occupation of public
rights-of-way in the delivery of the cable service or video
service, including the police powers of the municipalities in
which the service is delivered;
(4) a description of the service area footprint to be served
within the municipality, if applicable, otherwise the
municipality to be served by the applicant, which may include
certain designations of unincorporated areas, which description
shall be updated by the applicant prior to the expansion of cable
service or video service to a previously undesignated service
area and, upon such expansion, notice to the commission of the
service area to be served by the applicant; and
(5) the location of the applicant's principal place of business
and the names of the applicant's principal executive officers.
(c) The certificate of franchise authority issued by the
commission shall contain:
(1) a grant of authority to provide cable service or video
service as requested in the application;
(2) a grant of authority to use and occupy the public
rights-of-way in the delivery of that service, subject to the
laws of this state, including the police powers of the
municipalities in which the service is delivered; and
(3) a statement that the grant of authority is subject to lawful
operation of the cable service or video service by the applicant
or its successor in interest.
(d) The certificate of franchise authority issued by the
commission is fully transferable to any successor in interest to
the applicant to which it is initially granted. A notice of
transfer shall be filed with the commission and the relevant
municipality within 14 business days of the completion of such
transfer.
(e) The certificate of franchise authority issued by the
commission may be terminated by the cable service provider or
video service provider by submitting notice to the commission.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.004. ELIGIBILITY FOR COMMISSION-ISSUED FRANCHISE. (a)
A cable service provider or a video service provider that
currently has or had previously received a franchise to provide
cable service or video service with respect to such
municipalities is not eligible to seek a state-issued certificate
of franchise authority under this chapter as to those
municipalities until the expiration date of the existing
franchise agreement, except as provided by Subsections (b) and
(c).
(b) Beginning September 1, 2005, a cable service provider or
video service provider that is not the incumbent cable service
provider and serves fewer than 40 percent of the total cable
customers in a particular municipal franchise area may elect to
terminate that municipal franchise and seek a state-issued
certificate of franchise authority by providing written notice to
the commission and the affected municipality before January 1,
2006. The municipal franchise is terminated on the date the
commission issues the state-issued certificate of franchise
authority.
(c) A cable service provider that serves fewer than 40 percent
of the total cable customers in a municipal franchise area and
that elects under Subsection (b) to terminate an existing
municipal franchise is responsible for remitting to the affected
municipality before the 91st day after the date the municipal
franchise is terminated any accrued but unpaid franchise fees due
under the terminated franchise. If the cable service provider
has credit remaining from prepaid franchise fees, the provider
may deduct the amount of the remaining credit from any future
fees or taxes it must pay to the municipality, either directly or
through the comptroller.
(d) For purposes of this section, a cable service provider or
video service provider will be deemed to have or have had a
franchise to provide cable service or video service in a specific
municipality if any affiliates or successor entity of the cable
or video provider has or had a franchise agreement granted by
that specific municipality.
(e) The terms "affiliates or successor entity" in this section
shall include but not be limited to any entity receiving,
obtaining, or operating under a municipal cable or video
franchise through merger, sale, assignment, restructuring, or any
other type of transaction.
(f) Except as provided in this chapter, nothing in this chapter
is intended to abrogate, nullify, or adversely affect in any way
the contractual rights, duties, and obligations existing and
incurred by a cable service provider or a video service provider
before the enactment of this chapter, and owed or owing to any
private person, firm, partnership, corporation, or other entity
including without limitation those obligations measured by and
related to the gross revenue hereafter received by the holder of
a state-issued certificate of franchise authority for services
provided in the geographic area to which such prior franchise or
permit applies. All liens, security interests, royalties, and
other contracts, rights, and interests in effect on September 1,
2005, shall continue in full force and effect, without the
necessity for renewal, extension, or continuance, and shall be
paid and performed by the holder of a state-issued certificate of
franchise authority, and shall apply as though the revenue
generated by the holder of a state-issued certificate of
franchise authority continued to be generated pursuant to the
permit or franchise issued by the prior local franchising
authority or municipality within the geographic area to which the
prior permit or franchise applies. It shall be a condition to
the issuance and continuance of a state-issued certificate of
franchise authority that the private contractual rights and
obligations herein described continue to be honored, paid, or
performed to the same extent as though the cable service provider
continued to operate under its prior franchise or permit, for the
duration of such state-issued certificate of franchise authority
and any renewals or extensions thereof, and that the applicant so
agrees. Any person, firm, partnership, corporation, or other
entity holding or claiming rights herein reserved may enforce
same by an action brought in a court of competent jurisdiction.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.005. FRANCHISE FEE. (a) The holder of a state-issued
certificate of franchise authority shall pay each municipality in
which it provides cable service or video service a franchise fee
of five percent based upon the definition of gross revenues as
set forth in this chapter. That same franchise fee structure
shall apply to any unincorporated areas that are annexed by a
municipality after the effective date of the state-issued
certificate of franchise authority.
(b) The franchise fee payable under this section is to be paid
quarterly, within 45 days after the end of the quarter for the
preceding calendar quarter. Each payment shall be accompanied by
a summary explaining the basis for the calculation of the fee. A
municipality may review the business records of the cable service
provider or video service provider to the extent necessary to
ensure compensation in accordance with Subsection (a). Each
party shall bear the party's own costs of the examination. A
municipality may, in the event of a dispute concerning
compensation under this section, bring an action in a court of
competent jurisdiction.
(c) The holder of a state-issued certificate of franchise
authority may recover from the provider's customers any fee
imposed by this chapter.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.006. IN-KIND CONTRIBUTIONS TO MUNICIPALITY. (a) Until
the expiration of the incumbent cable service provider's
agreement, the holder of a state-issued certificate of franchise
authority shall pay a municipality in which it is offering cable
service or video service the same cash payments on a per
subscriber basis as required by the incumbent cable service
provider's franchise agreement. All cable service providers and
all video service providers shall report quarterly to the
municipality the total number of subscribers served within the
municipality. The amount paid by the holder of a state-issued
certificate of franchise authority shall be calculated quarterly
by the municipality by multiplying the amount of cash payment
under the incumbent cable service provider's franchise agreement
by a number derived by dividing the number of subscribers served
by a video service provider or cable service provider by the
total number of video or cable service subscribers in the
municipality. Such pro rata payments are to be paid quarterly to
the municipality within 45 days after the end of the quarter for
the preceding calendar quarter.
(b) On the expiration of the incumbent cable service provider's
agreement, the holder of a state-issued certificate of franchise
authority shall pay a municipality in which it is offering cable
service or video service one percent of the provider's gross
revenues, as defined by this chapter, or at the municipality's
election, the per subscriber fee that was paid to the
municipality under the expired incumbent cable service provider's
agreement, in lieu of in-kind compensation and grants. Payments
under this subsection shall be paid in the same manner as
outlined in Section 66.005(b).
(c) All fees paid to municipalities under this section are paid
in accordance with 47 U.S.C. Sections 531 and 541(a)(4)(B) and
may be used by the municipality as allowed by federal law;
further, these payments are not chargeable as a credit against
the franchise fee payments authorized under this chapter.
(d) The following services shall continue to be provided by the
cable provider that was furnishing services pursuant to its
municipal cable franchise until January 1, 2008, or until the
term of the franchise was to expire, whichever is later, and
thereafter as provided in Subdivisions (1) and (2) below:
(1) institutional network capacity, however defined or referred
to in the municipal cable franchise but generally referring to a
private line data network capacity for use by the municipality
for noncommercial purposes, shall continue to be provided at the
same capacity as was provided to the municipality prior to the
date of the termination, provided that the municipality will
compensate the provider for the actual incremental cost of the
capacity; and
(2) cable services to community public buildings, such as
municipal buildings and public schools, shall continue to be
provided to the same extent provided immediately prior to the
date of the termination. Beginning on January 1, 2008, or the
expiration of the franchise agreement, whichever is later, a
provider that provides the services may deduct from the franchise
fee to be paid to the municipality an amount equal to the actual
incremental cost of the services if the municipality requires the
services after that date. Such cable service generally refers to
the existing cable drop connections to such facilities and the
tier of cable service provided pursuant to the franchise at the
time of the termination.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.007. BUILD-OUT. The holder of a state-issued
certificate of franchise authority shall not be required to
comply with mandatory build-out provisions.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.008. CUSTOMER SERVICE STANDARDS. The holder of a
state-issued certificate of franchise authority shall comply with
customer service requirements consistent with 47 C.F.R. Section
76.309(c) until there are two or more providers offering service,
excluding direct-to-home satellite service, in the relevant
municipality.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.009. PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS
CHANNELS. (a) Not later than 120 days after a request by a
municipality, the holder of a state-issued certificate of
franchise authority shall provide the municipality with capacity
in its communications network to allow public, educational, and
governmental (PEG) access channels for noncommercial programming.
(b) The holder of a state-issued certificate of franchise
authority shall provide no fewer than the number of PEG access
channels a municipality has activated under the incumbent cable
service provider's franchise agreement as of September 1, 2005.
(c) If a municipality did not have PEG access channels as of
September 1, 2005, the cable service provider or video service
provider shall furnish:
(1) up to three PEG channels for a municipality with a
population of at least 50,000; and
(2) up to two PEG channels for a municipality with a population
of less than 50,000.
(d) Any PEG channel provided pursuant to this section that is
not utilized by the municipality for at least eight hours a day
shall no longer be made available to the municipality, but may be
programmed at the cable service provider's or video service
provider's discretion. At such time as the municipality can
certify to the cable service provider or video service provider a
schedule for at least eight hours of daily programming, the cable
service provider or video service provider shall restore the
previously lost channel but shall be under no obligation to carry
that channel on a basic or analog tier.
(e) In the event a municipality has not utilized the minimum
number of access channels as permitted by Subsection (c), access
to the additional channel capacity allowed in Subsection (c)
shall be provided upon 90 days' written notice if the
municipality meets the following standard: if a municipality has
one active PEG channel and wishes to activate an additional PEG
channel, the initial channel shall be considered to be
substantially utilized when 12 hours are programmed on that
channel each calendar day. In addition, at least 40 percent of
the 12 hours of programming for each business day on average over
each calendar quarter must be nonrepeat programming. Nonrepeat
programming shall include the first three video-castings of a
program. If a municipality is entitled to three PEG channels
under Subsection (c) and has in service two active PEG channels,
each of the two active channels shall be considered to be
substantially utilized when 12 hours are programmed on each
channel each calendar day and at least 50 percent of the 12 hours
of programming for each business day on average over each
calendar quarter is nonrepeat programming for three consecutive
calendar quarters.
(f) The operation of any PEG access channel provided pursuant to
this section shall be the responsibility of the municipality
receiving the benefit of such channel, and the holder of a
state-issued certificate of franchise authority bears only the
responsibility for the transmission of such channel. The holder
of a state-issued certificate of franchise authority shall be
responsible for providing the connectivity to each PEG access
channel distribution point up to the first 200 feet.
(g) The municipality must ensure that all transmissions,
content, or programming to be transmitted over a channel or
facility by a holder of a state-issued certificate of franchise
authority are provided or submitted to the cable service provider
or video service provider in a manner or form that is capable of
being accepted and transmitted by a provider, without requirement
for additional alteration or change in the content by the
provider, over the particular network of the cable service
provider or video service provider, which is compatible with the
technology or protocol utilized by the cable service provider or
video service provider to deliver services.
(h) Where technically feasible, the holder of a state-issued
certificate of franchise authority and an incumbent cable service
provider shall use reasonable efforts to interconnect their cable
or video systems for the purpose of providing PEG programming.
Interconnection may be accomplished by direct cable, microwave
link, satellite, or other reasonable method of connection.
Holders of a state-issued certificate of franchise authority and
incumbent cable service providers shall negotiate in good faith
and incumbent cable service providers may not withhold
interconnection of PEG channels.
(i) A court of competent jurisdiction shall have exclusive
jurisdiction to enforce any requirement under this section.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.010. NONDISCRIMINATION BY MUNICIPALITY. (a) A
municipality shall allow the holder of a state-issued certificate
of franchise authority to install, construct, and maintain a
communications network within a public right-of-way and shall
provide the holder of a state-issued certificate of franchise
authority with open, comparable, nondiscriminatory, and
competitively neutral access to the public right-of-way. All use
of a public right-of-way by the holder of a state-issued
certificate of franchise authority is nonexclusive and subject to
Section 66.011.
(b) A municipality may not discriminate against the holder of a
state-issued certificate of franchise authority regarding:
(1) the authorization or placement of a communications network
in a public right-of-way;
(2) access to a building; or
(3) a municipal utility pole attachment term.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.011. MUNICIPAL POLICE POWER; OTHER AUTHORITY. (a) A
municipality may enforce police power-based regulations in the
management of a public right-of-way that apply to the holder of a
state-issued certificate of franchise authority within the
municipality. A municipality may enforce police power-based
regulations in the management of the activities of the holder of
a state-issued certificate of franchise authority to the extent
that they are reasonably necessary to protect the health, safety,
and welfare of the public. Police power-based regulation of the
holder of a state-issued certificate of franchise authority's use
of the public right-of-way must be competitively neutral and may
not be unreasonable or discriminatory. A municipality may not
impose on activities of the holder of a state-issued certificate
of franchise authority a requirement:
(1) that particular business offices be located in the
municipality;
(2) regarding the filing of reports and documents with the
municipality that are not required by state or federal law and
that are not related to the use of the public right-of-way except
that a municipality may request maps and records maintained in
the ordinary course of business for purposes of locating the
portions of a communications network that occupy public
rights-of-way. Any maps or records of the location of a
communications network received by a municipality shall be
confidential and exempt from disclosure under Chapter 552,
Government Code, and may be used by a municipality only for the
purpose of planning and managing construction activity in the
public right-of-way. A municipality may not request information
concerning the capacity or technical configuration of the holder
of a state-issued certificate of franchise authority's
facilities;
(3) for the inspection of the holder of a state-issued
certificate of franchise authority's business records except to
extent permitted under Section 66.005(b);
(4) for the approval of transfers of ownership or control of the
holder of a state-issued certificate of franchise authority's
business, except that a municipality may require that the holder
of a state-issued certificate of franchise authority maintain a
current point of contact and provide notice of a transfer within
a reasonable time; or
(5) that the holder of a state-issued certificate of franchise
authority that is self-insured under the provisions of state law
obtain insurance or bonding for any activities within the
municipality, except that a self-insured provider shall provide
substantially the same defense and claims processing as an
insured provider. A bond may not be required from a provider for
any work consisting of aerial construction except that a
reasonable bond may be required of a provider that cannot
demonstrate a record of at least four years' performance of work
in any municipal public right-of-way free of currently
unsatisfied claims by a municipality for damage to the
right-of-way.
(b) Notwithstanding any other law, a municipality may require
the issuance of a construction permit, without cost, to the
holder of a state-issued certificate of franchise authority that
is locating facilities in or on a public right-of-way in the
municipality. The terms of the permit shall be consistent with
construction permits issued to other persons excavating in a
public right-of-way.
(c) In the exercise of its lawful regulatory authority, a
municipality shall promptly process all valid and
administratively complete applications of the holder of a
state-issued certificate of franchise authority for a permit,
license, or consent to excavate, set poles, locate lines,
construct facilities, make repairs, affect traffic flow, or
obtain zoning or subdivision regulation approvals or other
similar approvals. A municipality shall make every reasonable
effort not to delay or unduly burden the provider in the timely
conduct of the provider's business.
(d) If there is an emergency necessitating response work or
repair, the holder of a state-issued certificate of franchise
authority may begin the repair or emergency response work or take
any action required under the circumstances without prior
approval from the affected municipality, if the holder of a
state-issued certificate of franchise authority notifies the
municipality as promptly as possible after beginning the work and
later obtains any approval required by a municipal ordinance
applicable to emergency response work.
(e) The commission shall have no jurisdiction to review such
police power-based regulations and ordinances adopted by a
municipality to manage the public rights-of-way.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.012. INDEMNITY IN CONNECTION WITH RIGHT-OF-WAY; NOTICE
OF LIABILITY. (a) The holder of a state-issued certificate of
franchise authority shall indemnify and hold a municipality 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 solely by the negligent act,
error, or omission of the holder of a state-issued certificate of
franchise authority or any agent, officer, director,
representative, employee, affiliate, or subcontractor of the
holder of a state-issued certificate of franchise authority or
their respective officers, agents, employees, directors, or
representatives, while installing, repairing, or maintaining
facilities in a public right-of-way. The indemnity provided by
this subsection does not apply to any liability resulting from
the negligence of the municipality or its officers, employees,
contractors, or subcontractors. If the holder of a state-issued
certificate of franchise authority and the municipality 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 municipality under state law and without waiving
any defenses of the parties under state law. This subsection is
solely for the benefit of the municipality and the holder of a
state-issued certificate of franchise authority and does not
create or grant any rights, contractual or otherwise, for or to
any other person or entity.
(b) The holder of a state-issued certificate of franchise
authority and a municipality shall promptly advise the other in
writing of any known claim or demand against the holder of a
state-issued certificate of franchise authority or the
municipality related to or arising out of the holder of a
state-issued certificate of franchise authority's activities in a
public right-of-way.
(c) The commission shall have no jurisdiction to review such
police power-based regulations and ordinances adopted by a
municipality to manage the public rights-of-way.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.013. MUNICIPAL AUTHORITY. In addition to a
municipality's authority to exercise its nondiscriminatory police
power with respect to public rights-of-way under current law, a
municipality's authority to regulate the holder of state-issued
certificate of franchise authority is limited to:
(1) a requirement that the holder of a state-issued certificate
of franchise authority who is providing cable service or video
service within the municipality register with the municipality
and maintain a point of contact;
(2) the establishment of reasonable guidelines regarding the use
of public, educational, and governmental access channels; and
(3) submitting reports within 30 days on the customer service
standards referenced in Section 66.008 if the provider is subject
to those standards and has continued and unresolved customer
service complaints indicating a clear failure on the part of the
holder of a state-issued certificate of franchise authority to
comply with the standards.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.014. DISCRIMINATION PROHIBITED. (a) The purpose of
this section is to prevent discrimination among potential
residential subscribers.
(b) A cable service provider or video service provider that has
been granted a state-issued certificate of franchise authority
may not deny access to service to any group of potential
residential subscribers because of the income of the residents in
the local area in which such group resides.
(c) An affected person may seek enforcement of the requirements
described by Subsection (b) by initiating a proceeding with the
commission. A municipality within which the potential
residential cable service or video service subscribers referenced
in Subsection (b) may be considered an affected person for
purposes of this section.
(d) The holder of a state-issued certificate of franchise
authority shall have a reasonable period of time to become
capable of providing cable service or video service to all
households within the designated franchise area as defined in
Section 66.003(b)(4) and may satisfy the requirements of this
section through the use of an alternative technology that
provides comparable content, service, and functionality.
(e) Notwithstanding any provision of this chapter, the
commission has the authority to make the determination regarding
the comparability of the technology and the service provided.
Notwithstanding any provision of this chapter, the commission has
the authority to monitor the deployment of cable services, video
services, or alternate technology.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.015. COMPLIANCE. (a) Should the holder of a
state-issued certificate of franchise authority be found by a
court of competent jurisdiction to be in noncompliance with the
requirements of this chapter, the court shall order the holder a
state-issued certificate of franchise authority, within a
specified reasonable period of time, to cure such noncompliance.
Failure to comply shall subject the holder of the state-issued
franchise of franchise authority to penalties as the court shall
reasonably impose, up to and including revocation of the
state-issued certificate of franchise authority granted under
this chapter.
(b) A municipality within which the provider offers cable
service or video service shall be an appropriate party in any
such litigation.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.
Sec. 66.016. APPLICABILITY OF OTHER LAWS. (a) Nothing in this
chapter shall be interpreted to prevent a voice provider, cable
service provider or video service provider, or municipality from
seeking clarification of its rights and obligations under federal
law or to exercise any right or authority under federal or state
law.
(b) Nothing in this chapter shall limit the ability of a
municipality under existing law to receive compensation for use
of the public rights-of-way from entities determined not to be
subject to all or part of this chapter, including but not limited
to provider of Internet protocol cable or video services, unless
such payments are expressly prohibited by federal law.
Added by Acts 2005, 79th Leg., 2nd C.S., Ch.
2, Sec. 27, eff. September 7, 2005.