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