Texas 2011 - 82nd Regular

Texas House Bill HB256 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	82R20598 JXC-F
2	2	By: Hilderbran H.B. No. 256
3	3	Substitute the following for H.B. No. 256:
4	4	By: Cook C.S.H.B. No. 256
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to state-issued certificates of franchise authority to
10	10	provide cable service and video service.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 66.003(a), Utilities Code, is amended to
13	13	read as follows:
14	14	(a) An entity or person seeking to provide cable service or
15	15	video service in this state [after September 1, 2005,] shall file an
16	16	application for a state-issued certificate of franchise authority
17	17	with the commission as required by this section. An entity
18	18	providing cable service or video service under a franchise
19	19	agreement with a municipality is not subject to this subsection
20	20	with respect to such municipality until the franchise agreement is
21	21	terminated under Section 66.004 or until the franchise agreement
22	22	expires[, except as provided by Section 66.004].
23	23	SECTION 2. Section 66.004, Utilities Code, is amended by
24	24	amending Subsections (a), (c), and (f) and adding Subsection (b-1)
25	25	to read as follows:
26	26	(a) A cable service provider or a video service provider
27	27	that currently has or had previously received a franchise to
28	28	provide cable service or video service with respect to a
29	29	municipality may [such municipalities is not eligible to] seek a
30	30	state-issued certificate of franchise authority to provide service
31	31	to the municipality under this section [chapter as to those
32	32	municipalities until the expiration date of the existing franchise
33	33	agreement, except as provided by Subsections (b) and (c)].
34	34	(b-1) Beginning September 1, 2011, a cable service provider
35	35	or video service provider that was not allowed to or did not
36	36	terminate a municipal franchise under Subsection (b) may elect to
37	37	terminate all unexpired municipal franchises and seek a
38	38	state-issued certificate of franchise authority for each area
39	39	served under a terminated municipal franchise by providing written
40	40	notice to the commission and each affected municipality before
41	41	January 1, 2012. A municipal franchise is terminated on the date
42	42	the commission issues a state-issued certificate of franchise
43	43	authority to the provider for the area served under that terminated
44	44	franchise.
45	45	(c) A cable service provider [that serves fewer than 40
46	46	percent of the total cable customers in a municipal franchise area
47	47	and] that elects under Subsection (b) or (b-1) to terminate an
48	48	existing municipal franchise is responsible for remitting to the
49	49	affected municipality before the 91st day after the date the
50	50	municipal franchise is terminated any accrued but unpaid franchise
51	51	fees due under the terminated franchise. If the cable service
52	52	provider has credit remaining from prepaid franchise fees, the
53	53	provider may deduct the amount of the remaining credit from any
54	54	future fees or taxes it must pay to the municipality, either
55	55	directly or through the comptroller.
56	56	(f) Except as provided in this chapter, nothing in this
57	57	chapter is intended to abrogate, nullify, or adversely affect in
58	58	any way the contractual rights, duties, and obligations existing
59	59	and incurred by a cable service provider or a video service provider
60	60	before the date a franchise expires or the date a provider
61	61	terminates a franchise under Subsection (b-1), as applicable,
62	62	[enactment of this chapter,] and owed or owing to any private
63	63	person, firm, partnership, corporation, or other entity including
64	64	without limitation those obligations measured by and related to the
65	65	gross revenue hereafter received by the holder of a state-issued
66	66	certificate of franchise authority for services provided in the
67	67	geographic area to which such prior franchise or permit applies.
68	68	All liens, security interests, royalties, and other contracts,
69	69	rights, and interests in effect on September 1, 2005, or the date a
70	70	franchise is terminated under Subsection (b-1) shall continue in
71	71	full force and effect, without the necessity for renewal,
72	72	extension, or continuance, and shall be paid and performed by the
73	73	holder of a state-issued certificate of franchise authority, and
74	74	shall apply as though the revenue generated by the holder of a
75	75	state-issued certificate of franchise authority continued to be
76	76	generated pursuant to the permit or franchise issued by the prior
77	77	local franchising authority or municipality within the geographic
78	78	area to which the prior permit or franchise applies. It shall be a
79	79	condition to the issuance and continuance of a state-issued
80	80	certificate of franchise authority that the private contractual
81	81	rights and obligations herein described continue to be honored,
82	82	paid, or performed to the same extent as though the cable service
83	83	provider continued to operate under its prior franchise or permit,
84	84	for the duration of such state-issued certificate of franchise
85	85	authority and any renewals or extensions thereof, and that the
86	86	applicant so agrees. Any person, firm, partnership, corporation,
87	87	or other entity holding or claiming rights herein reserved may
88	88	enforce same by an action brought in a court of competent
89	89	jurisdiction.
90	90	SECTION 3. Section 66.005(b), Utilities Code, is amended to
91	91	read as follows:
92	92	(b) The franchise fee payable under this section is to be
93	93	paid quarterly, within 45 days after the end of the quarter for the
94	94	preceding calendar quarter. Each payment shall be accompanied by a
95	95	summary explaining the basis for the calculation of the fee. A
96	96	municipality may review the business records of the cable service
97	97	provider or video service provider to the extent necessary to
98	98	ensure compensation in accordance with Subsection (a), provided
99	99	that the municipality may only review records that relate to the
100	100	48-month period preceding the date of the last franchise fee
101	101	payment. Each party shall bear the party's own costs of the
102	102	examination. A municipality may, in the event of a dispute
103	103	concerning compensation under this section, bring an action in a
104	104	court of competent jurisdiction.
105	105	SECTION 4. Section 66.006, Utilities Code, is amended to
106	106	read as follows:
107	107	Sec. 66.006. IN-KIND CONTRIBUTIONS TO MUNICIPALITY. (a)
108	108	Until the expiration or termination of the incumbent cable service
109	109	provider's agreement, the holder of a state-issued certificate of
110	110	franchise authority shall pay a municipality in which it is
111	111	offering cable service or video service the same cash payments on a
112	112	per subscriber basis as required by the incumbent cable service
113	113	provider's franchise agreement. All cable service providers and
114	114	all video service providers shall report quarterly to the
115	115	municipality the total number of subscribers served within the
116	116	municipality. The amount paid by the holder of a state-issued
117	117	certificate of franchise authority shall be calculated quarterly by
118	118	the municipality by multiplying the amount of cash payment under
119	119	the incumbent cable service provider's franchise agreement by a
120	120	number derived by dividing the number of subscribers served by a
121	121	video service provider or cable service provider by the total
122	122	number of video or cable service subscribers in the municipality.
123	123	Such pro rata payments are to be paid quarterly to the municipality
124	124	within 45 days after the end of the quarter for the preceding
125	125	calendar quarter.
126	126	(b) On the expiration or termination of the incumbent cable
127	127	service provider's agreement, the holder of a state-issued
128	128	certificate of franchise authority shall pay a municipality in
129	129	which it is offering cable service or video service one percent of
130	130	the provider's gross revenues, as defined by this chapter, or at the
131	131	municipality's election, the per subscriber fee that was paid to
132	132	the municipality under the expired or terminated incumbent cable
133	133	service provider's agreement, in lieu of in-kind compensation and
134	134	grants. Payments under this subsection shall be paid in the same
135	135	manner as outlined in Section 66.005(b).
136	136	(c) All fees paid to municipalities under this section are
137	137	paid in accordance with 47 U.S.C. Sections 531 and 541(a)(4)(B) and
138	138	may be used by the municipality as allowed by federal law.
139	139	(c-1) The holder of a state-issued certificate of franchise
140	140	authority shall include with a fee paid to a municipality under this
141	141	section a statement identifying the fee.
142	142	(c-2) If a municipality uses fees paid to the municipality
143	143	under this section for a purpose described by 47 U.S.C. Section
144	144	542(g)(2)(C), the fees[; further, these payments] are not
145	145	chargeable as a credit against the franchise fee payments
146	146	authorized under this chapter. If the municipality uses the fees
147	147	for another purpose, the fees are chargeable as a credit against the
148	148	franchise fee payments authorized under this chapter.
149	149	(c-3) A municipality that receives fees under this section:
150	150	(1) shall maintain revenue from the fees in a separate
151	151	account established for that purpose;
152	152	(2) may not commingle revenue from the fees with any
153	153	other money;
154	154	(3) shall maintain a record of each deposit to and
155	155	disbursement from the separate account, including a record of the
156	156	payee and purpose of each disbursement; and
157	157	(4) not later than January 31 of each year, shall
158	158	provide to each certificate holder that pays a fee to the
159	159	municipality under this section, on the request of that certificate
160	160	holder, a detailed accounting of the deposits to and disbursements
161	161	from the separate account made in the preceding calendar year.
162	162	(d) Cable services to community public buildings, such as
163	163	municipal buildings and public schools, [The following services]
164	164	shall continue to be provided by the cable provider that was
165	165	furnishing services pursuant to its municipal cable franchise
166	166	[until January 1, 2008, or] until the expiration or termination
167	167	[term] of the franchise. For a municipality with a population of
168	168	more than one million, [was to expire, whichever is later, and
169	169	thereafter as provided in Subdivisions (1) and (2) below:
170	170	[(1)] institutional network capacity, however defined
171	171	or referred to in the municipal cable franchise but generally
172	172	referring to a private line data network capacity for use by the
173	173	municipality for noncommercial purposes, shall continue to be
174	174	provided at the same capacity as was provided by the cable provider
175	175	that was furnishing services pursuant to its municipal cable
176	176	franchise until the expiration or termination of the franchise
177	177	agreement, whichever is later [to the municipality prior to the
178	178	date of the termination, provided that the municipality will
179	179	compensate the provider for the actual incremental cost of the
180	180	capacity; and
181	181	[(2) cable services to community public buildings,
182	182	such as municipal buildings and public schools, shall continue to
183	183	be provided to the same extent provided immediately prior to the
184	184	date of the termination]. On [Beginning on January 1, 2008, or] the
185	185	expiration or termination of the franchise agreement, [whichever is
186	186	later,] a provider that provides cable [the] services described by
187	187	this section may deduct from the franchise fee to be paid to the
188	188	municipality an amount equal to the actual incremental cost of the
189	189	cable services if the municipality requires cable [the] services
190	190	after that date. Such cable service generally refers to the
191	191	existing cable drop connections to such facilities and the tier of
192	192	cable service provided pursuant to the franchise at the time of the
193	193	expiration or termination.
194	194	SECTION 5. Sections 66.009(c) and (h), Utilities Code, are
195	195	amended to read as follows:
196	196	(c) If a municipality did not have the maximum number of PEG
197	197	access channels as of September 1, 2005, as provided by
198	198	Subdivisions (1) and (2) based on the municipality's population on
199	199	that date, the cable service provider or video service provider
200	200	shall furnish at the request of the municipality:
201	201	(1) up to three PEG channels for a municipality with a
202	202	population of at least 50,000; and
203	203	(2) up to two PEG channels for a municipality with a
204	204	population of less than 50,000.
205	205	(h) Where technically feasible, the holder of a
206	206	state-issued certificate of franchise authority that is not an
207	207	incumbent cable service provider and an incumbent cable service
208	208	provider, including an incumbent cable service provider that holds
209	209	a state-issued certificate of franchise authority issued under
210	210	Section 66.004(b-1), shall use reasonable efforts to interconnect
211	211	their cable or video systems for the purpose of providing PEG
212	212	programming. Interconnection may be accomplished by direct cable,
213	213	microwave link, satellite, or other reasonable method of
214	214	connection. The holder [Holders] of a state-issued certificate of
215	215	franchise authority and the incumbent cable service provider
216	216	[providers] shall negotiate in good faith, and the incumbent cable
217	217	service provider [providers] may not withhold interconnection of
218	218	PEG channels.
219	219	SECTION 6. (a) A municipality that received fees described
220	220	by Section 66.006(c), Utilities Code, as amended by this Act,
221	221	before September 1, 2011, shall, on September 1, 2011, transfer any
222	222	fees that have not been disbursed to a separate account as required
223	223	by Section 66.006(c-3), Utilities Code, as added by this Act.
224	224	(b) The change in law made by this Act in adding Sections
225	225	66.006(c-3)(3) and (4), Utilities Code, applies only to transfers,
226	226	deposits, and disbursements made on or after the effective date of
227	227	this Act. A transfer, deposit, or disbursement made before the
228	228	effective date of this Act is governed by the law in effect on the
229	229	date the transfer, deposit, or disbursement was made, and the
230	230	former law is continued in effect for that purpose.
231	231	SECTION 7. This Act takes effect September 1, 2011.