Telecommunications Services Ordinance
Part 1 of 3

AN ORDINANCE ADDING A NEW CHAPTER 18-8 "TELECOMMUNICATIONS" TO THE CITY CODE TO ESTABLISH RULES GOVERNING THE USE OF CITY RIGHTSOFWAY BY PROVIDERS OF TELECOMMUNICATIONS SERVICES, SETTING FEES FOR THE USE OF CITY RIGHTS-OF-WAY, CREATING OFFENSES AND PROVIDING A PENALTY.

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:

PART 1. The Code is amended to add a new Chapter 18-8, to read as follows:

CHAPTER 18-8 TELECOMMUNICATIONS

§ 18-8-1 FINDINGS AND PURPOSE.

(A) The City Council makes the following findings:

(1) It is in the public interest to promote competition in telecommunications services and the availability of broadband transmission services to all residences and businesses.

(2) It is in the public interest for the City to exercise the historical right to control access of and to manage the City's rightsofway and to obtain reasonable compensation for the use of City property.

(3) This chapter establishing rules governing the use of the City's rights-of-way is authorized by the City Charter, Article 1175, V.A.C.S., and other state and federal law.

(4) The findings in Section 57 l(K) of the City Code are relevant to this Chapter.

(B) The purpose of this chapter is to establish a competitively neutral policy for use of public rightsofway for the provision of telecommunications services and to enable the City:

(1) to permit nondiscriminatory access to the public rightsofway for providers of telecommunications services; and

(2) to manage the public rightsofway to minimize the effects and cost to the public of locating telecommunications facilities within the rightsof-way;

(3) to obtain fair and reasonable compensation for the commercial use of public rights-ofway through collection of fees and charges;

(4) to promote competition among telecommunications service providers and encourage the universal availability of modern telecommunications services to all residents and businesses of Austin;

(5) to minimize congestion, inconvenience, visual blight and other adverse effects on the City's public rightsofway; and

(6) to encourage service providers to implement a plan to promote minority and women contractor participation in procurements related to the provision of telecommunication services.

§18-8-2 AUTHORITY; SCOPE.

(A) This chapter shall be read consistently with Article XI of the Austin City Charter.

(B) This chapter applies to all telecommunications service providers under Title II of the Communications Act of 1934, as amended, (47 U.S.C. 201 et seq.) ("Title II") excluding services provided solely by means of a wireless transmission. No consent granted under this chapter authorizes the provision of any services not covered by Title II. Cable service and open video systems as defined in Title VI of the Communications Act of 1934 and any other content service are expressly excluded.

(C) The right of a person to apply for or to use utility infrastructure shall be governed by Chapter 18-7 of the Code. The grant of a municipal consent under this chapter does not grant attachment rights or authorize the use of utility infrastructure.

§ 18-8-3 DEFINITIONS.

In this chapter:

1. Affiliate means a person who controls, is controlled by, or is under common control with a provider. Affiliate does not include a person who serves end use customers by means of a wireless transmission. There is a rebuttable presumption of control if a provider owns at least 25% of the affiliate's stock or assets.

2. Direct Cost means all expenses of a provider for labor and materials associated with a specific activity or functions excluding overhead.

3. Director means the Director of the Financial Services Department of the City of Austin, or the Director's designee.

4. Director of Public Works means the Director of the Public Works and Transportation Department of the City, or that person's designee.

5. Line means either: Type 1: Each access line consisting of transmission facilities located between the end use customer's premises network interface within the city and the telecommunications provider's serving facilities, (these serving facilities include: central office facilities, distribution frame facilities or other similar facilities) that allow delivery of telecommunication services within the city;or Type 2: Each channel termination point or points of a non-switched telephone circuit dedicated for use between specific locations within the city identified by an end use customer.

Interoffice-transport and other transmission facilities which do not terminate at the end use customer's network interface device are not lines that would be separately identified for calculation of the municipal consent fee.

6. Municipal Consent means the right granted by ordinance to a person to use public rightsofway to provide telecommunications services within the city to the public or to other providers;

7. Payment Year means October 1 through September 30 of a calendar year.

8. Person means an individual, corporation, association, or partnership.

9. Provider means a person that delivers telecommunications services within the city to the public and either:

(A) has been granted a certificate under Art. 1446c-O, Title 3 V.A.C.S. ("PURA 95") or other certificate; or

(B) operates or uses a telecommunications network within the city.

Provider does not include persons who are authorized by the city to occupy the rights-of-way in specifically approved routes within the city, unless they have a consent under this Chapter.

10. Public RightsofWay means the surface, the air space above the surface, and the area below the surface of a public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement or similar property in which the City holds a property interest or exercises rights of management or control.

11. Telecommunications Network or Network means all facilities placed in, the public rightsofway and used to provide telecommunications services to the public.

12. Telecommunications Services means all transmissions between or among points identified by the user, of information of the user' s choosing, including voice, video or data, without change in content of the information as sent and received, if the transmissions are accomplished through a telecommunications network. Telecommunications services includes ancillary or adjunct switching services and signal conversions rendered as a function of underlying transmission services, but excludes long distance transmissions (inter LATA and intra LATA toll transmissions) (local access and transport area). Telecommunications services only includes Title II services and expressly excludes cable services or open video systems as defined in Title VI of the Communications Act of 1934, as amended, and other content services.

13. Utility Infrastructure means the City Electric Utility Department distribution poles, transmission structures, ducts, transmission and distribution conduit, building entry conduit, utility tunnels, manholes, vaults, radio towers, other radio equipment, fiber optic cable capacity and active communications capacity, together with all appurtenant facilities.

§ 18-8-4 MUNICIPAL CONSENT REQUIRED.

(A) A person may not deliver telecommunications services, in the city by means of a network unless the person obtains a municipal consent.

(B) The use of public rights-of-way for the delivery of any service not covered by this chapter are subject to all other applicable city requirements.

§18-8-5 APPLICATION FOR MUNICIPAL CONSENT.

(A) A person must submit an application to the Director to grant, renew, extend, amend, or transfer a municipal consent.

(B) The application must be on a form prescribed by the Director, and it must include the following:

(1) a description of the services to be provided;

(2) an outline of the applicant's proposed network, if any, and

(3) a description of the effect on the public rightsofway, if any.

(C) Each applicant that shall submit a non-refundable application fee of $850 with the application.

§18-8-6 RECOMMENDATION ON APPLICATION.

The Director shall review an application submitted under this chapter and recommend to the City Council that it grant or deny the application. The Director shall make the recommendation to the City Council no later than the 90th day after an application is filed.

§18-8-7 MUNICIPAL CONSENT ORDINANCE.

(A) If the Director finds that the application meets the requirements of this chapter, the Director shall request the City Attorney to prepare a municipal consent ordinance for the City Council's consideration.

(B) In addition to the requirements under Article XI of the City Charter, a municipal consent ordinance submitted to the City Council must include the following provisions:

(1) a term of no less than five years and no more than seven years for the consent agreement, as requested by the applicant in the application.

(2) a requirement that the provider comply with this chapter:

(3) a requirement that the provider's municipal consent is subject to termination by the City Council, after notice and hearing, for the provider's failure to comply with this chapter or on a showing that the provider has breached the terms of the municipal consent,

(4) a provision that incorporates the requirement of section 18-8-14.

(5) a provision that incorporates the requirements of Sections 18-8-17, 18-8-18, and 18-8-19 of this chapter, if applicable.

(6) a provision that allows for adjustments to the municipal consent fee calculation method with the agreement of the provider, if the fees set forth in this chapter are changed by the City Council.

§18-8-8 PETITION FOR RECONSIDERATION.

The act of granting, amending, denying or terminating a municipal consent is a legislative function within the discretion of the City Council. A person whose application for a municipal consent is denied, is not considered by the City Council on or before the 45th day after the Director submits a recommendation under §18-8-6, or whose municipal consent is terminated must petition the City Council for reconsideration before seeking judicial remedies. A petition is considered denied if the City Council does not act within 45 days after the petition is filed with the City Clerk.

§18-8-9 ADMINISTRATION AND ENFORCEMENT.

(A) The Director shall administer this chapter and enforce compliance with a municipal consent granted under this chapter.

(B) A provider shall report information that the Director requires in the form and manner prescribed by the Director relating to the use of public rightsofway for the telecommunications services authorized by a municipal consent granted under this chapter.

(C) The Director shall report to the City Council the Director's determination that a provider has failed to comply with this chapter.

§18-8-10 APPLICABILITY.

(A) Sections 18-8-17, 18-8-18 and 18-8-19 of this chapter apply only to a provider that owns or controls physical facilities in the rights-of-way.

(B) Section 18-8-20 of this chapter applies to a provider that has a property interest in a network.