HomeMy WebLinkAboutContract 26107 CITY
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PUBLIC RIGHT-OF-WAY USE AGREEMENT
This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made
and entered into by and between the CITY OF FORT WORTH, a home rule municipal
corporation organized under the laws of the State of Texas and acting by and through Charles
Boswell, its duly authorized Assistant City Manager, and ADELPHIA BUSINESS
SOLUTIONS OF TEXAS, L.P., a foreign limited partnership acting by and through John
Glicksman, its duly authorized Representative.
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a Certificated Telecommunications Provider. A copy of Company's
certificate of convenience and necessity, certificate of operating authority or special provider
certificate of operating authority is attached hereto as Exhibit "A" and hereby made a part of
this Agreement for all purposes.
B. In accordance with Chapter 283 of the Texas Local Government Code, a
Certificated Telecommunications Provider is entitled to erect poles or construct conduit, cable,
switches and related appurtenances and facilities and excavate within the Public Rights-of-Way
in order to provide telecommunications services other than Cable Services. Company wishes to
excavate in the Public Rights-of-Way in order to provide telecommunications services other than
Cable Services in the City.
C. In accordance with Chapter 283 of the Texas Local Government Code, a
municipality may exercise police power-based regulations in the management of the use of its
public rights-of-way by a Certificated Telecommunications Provider in order to protect the
health, safety and welfare of the public. The City wishes to set forth reasonable regulations and
requirements in this Agreement for the use of the Public Rights-of-Way by Company and
Company is willing to abide by such regulations.
Agreement
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Access Line shall mean, unless the PUC adopts a different definition pursuant to Section
283.003 of the Texas Local Government Code, a, unit of measurement
representing (i) each switched transmission path of the Transmission Media (u)
that is physically within a Public Right-of-Way extended to the end-use
customer's premises within the City; (b) that allows the delivery of local exchange
telephone services within the City; and (c) that is provided by means of owned
Facilities, unbundled network elements or leased Facilities, or resale; or (ii) each
termination point or points of a nonswitched telephone or other circuit consisting
of Transmission Media located within a Public Right-of-Way connecting specific
locations identified by, and provided to, the end-use customer for delivery of
nonswitched telecommunications services within the City; or (iii) each switched
transmission path within a Public Right-of-Way used to provide central office-
based PBX-type services for systems of any number of stations within the City
(and in that instance, one path shall be counted for every ten (10) stations served).
"Access Line" shall not mean and shall not include (i) interoffice transport or
other Transmission Media that do not terminate at an end-use customer's premises
or(ii) duplicate or multiple assessments of Access Line rates on the provision of a
single service.
Act shall mean the federal Communications Act of 1934, as amended by the
Telecommunications Act of 1996.
Affiliate shall mean any individual, partnership, association,joint stock company, limited
liability company, trust, corporation, or other person or entity who owns or
controls, or is owned or controlled by, or is under common ownership or control
with, the entity in question.
Cable Services shall mean only:
• The one-way transmission to subscribers of (i) Video Programming or (ii) other
programming services, such as digital audio, by which is meant information
which Company makes available generally to all subscribers of Company's Cable
Services, such as digital cable radio service; and
• Subscriber interaction, if any, including, but not limited to, that which is used for
the selection or use of(i) Video Programming or other programming services; (ii)
various on-screen options; (iii) game channels; and (iv) interactive services, such
as the ordering of merchandise and the downloading of programs or data access
Cable Television System shall mean a facility consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is
designed to provide Cable Services which are provided to multiple subscribers
within the City, but shall not include (i) a facility that serves only to re-transmit
the television signals of one or more television broadcast stations; (ii) a facility
that serves subscribers without occupying any portion of the Public right-of-way;
(iii) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Act, except that, other than for purposes of Section
621(c) of the Act, such a facility shall be considered a Cable Television System to
the extent that such facility is used in the transmission of Video Programming
directly to subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (iv) an open video system that complies with
Section 653 of the Act; or (v) any facilities of any electric utility used solely for
operating its electric utility systems.
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Certificated Telecommunications Provider shall mean a Person to whom the PUC has
issued a (i) certificate of convenience and necessity; (ii) certificate of operating
authority or (iii) service provider certificate of operating authority, as those terms
are defined in Title 2, Subtitle C of the Texas Utilities Code.
Company shall mean Adelphia Business Solutions of Texas, L.P.
City shall mean the area within the corporate limits of the City of Fort Worth, Texas.
Director shall mean the Director of the City's Transport ati on/P ub I ic Works Department
or authorized representative.
Facilities shall mean all facilities placed in, on, under or above the Public Rights-of-Way
by or on behalf of Company, including, but not limited to, duct spaces, manholes,
poles, conduits, underground and overhead passageways, and other equipment,
structures and appurtenances and all associated Transmission Media in the Public
Rights-of-Way used by Company for purposes other than the provision of Cable
Services or Open Video System Services.
FCC shall mean the Federal Communications Commission.
Open Video System shall mean a facility consisting of a set of transmission paths and
associated signal generation, reception and control equipment that is designed to
provide cable service which includes video programming and which is provided
to multiple subscribers within the City and that has been certified by the FCC as
an Open Video System in accordance with 47 C.F.R. §§ 76.1500 et seq.
Person shall mean an individual, a corporation, a limited liability company, a general or
limited partnership, a sole proprietorship, a joint venture, a business trust or any
other form or business entity or association.
Public Right-of-Way shall mean the area on, below or above a public roadway,
highway, street, public sidewalk, alley, waterway or utility easement in which the
City has an interest, but shall not include (i) the airwaves above such Public
Rights-of-Way with regard to wireless telecommunications or (ii) any other
property of the City.
PUC shall mean the Public Utility Commission of Texas.
Supervisor shall mean the City's Public Utilities Supervisor.
Video Programming shall mean programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
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2. PERMIT.
Company shall not initiate or have initiated any kind of construction, installation,
maintenance, repairs or other work that requires the excavation, lane closure, or other physical
use of the Public Rights-of-Way unless Company first obtains a respective permit ("Permit")
from the Director. The City will provide the Permit to Company free of charge following (i) full
compliance with the prerequisites set forth in Section 3 of this Agreement and (ii) the Director's
review of Company's Permit application within a reasonable time following its submission to the
Director.
3. PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT.
3.1. Registration.
In order for the City to know which Certificated Telecommunications Providers
own Facilities in the City's Public Rights-of-Way, Company shall register with the
Supervisor and provide the following information at a minimum: (i) Company's name;
(ii) the current name, address and telephone number(s) of a contact employed by and with
binding and decision-making authority for the Company and who is available twenty-four
(24) hours per day; and (iii) proof of insurance in accordance with this Agreement.
Company shall update and keep current its registration with the City at all times.
3.2. Application.
Company shall submit an application for a Permit to the Director at least ten (10)
working days prior to the commencement of the respective use of the Public Right-of-
Way except (i) where waived by the Director in writing or (ii) in the event of an
emergency response related to an existing Facility owned by Company. The Permit
application shall include the following information at a minimum: (i) the name of
Company; (ii) the current name, address and telephone number(s) of a contact employed
by and with binding and decision-making authority for the Company and who is available
twenty-four (24) hours per day; (iii) the name, address and telephone number of any
contractor or subcontractor that will be performing work in, on or above the Public Right-
of-Way; (iv) the proposed location of any construction and route of all Facilities that
Company intends to install in, on or above the Public Right-of-Way; (v) the construction
and/or installation methods that Company intends to employ in order to protect existing
structures, fixtures and facilities within or adjacent to the portions of the Public Right-of-
Way that will be affected by Company's respective project; and (vi) the dates and times
that Company wishes to use the Public Right-of-Way.
3.3. Executed Public Right-of-Way Use Agreement.
Company shall provide the Director with a fully executed copy of this Agreement
upon submission of Company's Permit application.
3.4. Bond.
Prior to the commencement of any work in the Public Rights-of-Way in the City
that requires a cut, opening or other excavation, Company shall deliver to the City a bond
executed by a corporate surety authorized to do business in the State of Texas and
acceptable to the City in the amount of Twenty-five Thousand Dollars ($25,000.00) or an
amount sufficient to restore the Public Rights-of-Way affected by the cut, opening or
other excavation if such amount is readily discernible and acceptable to the Director. The
bond shall guarantee that Company shall (i) restore the Public Rights-of-Way affected by
such cut, opening or other excavation in a satisfactory and workmanlike manner (ii)
complete any repairs directly caused by Company's failure to have properly restored such
Public Rights-of-Way for a period of two (2) years following the date of restoration; and
(iii) fully comply with the terms and conditions of the Permit and the City's ordinances
governing excavations in the Public Rights-of-Way.
4. AS-BUILT PLANS AND DRAWINGS.
Company shall provide the Director with as-built plans and drawings of Company's
Facilities within ten (10) calendar days following the completion of such Facilities and annually
thereafter. As-built plans and drawings shall be new drawings or red-lined changes to drawings
previously provided to the Director. Company shall supply the textual documentation of such
as-built plans and drawings in computer format as requested by the City.
5. MUNICIPAL FEE.
Company shall pay the City a quarterly Public Right-of-Way use fee ("Fee") calculated
monthly and based on the then-current Access Line rates for the City adopted by the PUC in
accordance with Section 283.055 of the Texas Local Government Code. Company shall pay the
Fee on a calendar quarterly basis to the Supervisor at the address provided in Section 12 of this
Agreement. The Fee shall be due within forty-five (45) days following the last day of each
quarter.
6. TERM
This Agreement shall become effective on the date of its execution ("Effective Date")
and shall terminate upon the effectiveness of a City ordinance governing the use of the Public
Rights-of-Way by Certificated Telecommunications Providers and other public utilities.
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7. USE OF PUBLIC RIGHTS-OF-WAY.
7.1. No Undue Burden.
Company's Facilities shall not be erected, installed, constructed, repaired,
replaced or maintained in any manner that places an undue burden on the present or
future use of the Public Rights-of-Way by the City and the public. If the City, in its sole
and reasonable judgment, determines that any portion of Company's Facilities do place an
undue burden on a portion of the Public Rights-of-Way, Company, at Company's sole
cost and expense and within a reasonable time period specified by the City, shall modify
its Facilities or take other actions reasonably determined by the City to be in the public
interest to remove or alleviate the burden.
7.2. Minimal Interference.
Company's Facilities shall be erected and maintained in a manner that causes
minimal interference with the public's use of the Public Rights-of-Way and with the
rights or reasonable convenience of the owners of property which adjoins any of the
Public Rights-of-Way. Prior to the undertaking of any kind of construction, installation,
maintenance, repairs or other work that requires the excavation, lane closure, or other
physical use of the Public Rights-of-Way, Company shall provide at least twenty-four
(24) hours' advance written notice to the occupants of property adjacent to those portions
of the Public Rights-of-Way that will be affected. Company shall comply with all
applicable rules, regulations and requirements of the City, including, but not limited to,
those related to permissible hours of construction, operations during peak traffic hours,
barricading requirements and any other construction rules or regulations that may be
promulgated from time to time. In addition, during any such work, Company shall
provide construction and maintenance signs and sufficient barricades at work sites to
protect the public. The application of such traffic control devices shall be consistent with
the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control
Devices. Company shall utilize appropriate warning lights at all construction and
maintenance sites where one or more traffic lanes are obstructed during nighttime
conditions.
7.3. Underground Facilities.
Company shall bury or have buried any of its underground Facilities at least three
(3) feet below the surface of the Public Rights-of-Way and shall place signs at intervals
reasonably requested by the City that alert the general public of the presence of such
Facilities. In any area designated by the City where the City currently or may in the
future require public utilities to place their Facilities underground, Company shall, when
initially installing its Facilities, also place those Facilities underground.
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7.4. Joint Use.
In order to avoid an undue burden on the infrastructure of the Public Right-of-
Way and an unnecessary proliferation of Facilities above the Public Rights-of-Way
Company shall permit the joint use or co-location of its poles, conduits and Facilities
located in the Public Rights-of-Way by other utilities and entities, provided that
Company may require any such users to pay a reasonable fee and enter into a reasonable
agreement with Company for such use or co-location.
7.5. Relocation of Facilities.
Subject to the conditions set forth herein, the City reserves the right to lay, and
permit to be laid, sewer, gas, water and other pipelines or cables and conduits; to change
and permit to be changed any curb, sidewalk or grade of any street; and to do and permit
to be done any underground, ground level or overhead installation or improvement that
may be deemed necessary or proper by the City, in, across, along, over or under any
Public Right-of-Way, including those occupied or used by Company. In connection with
such work, the City shall have the right to require Company to protect, support,
disconnect, relocate or remove from the Public Rights-of-Way any portion of its
Facilities, and Company, at Company's sole cost and expense, shall take such steps in
accordance with and promptly following receipt of written instructions from the City. If
the City's requirements impose a financial hardship upon Company, Company may
present alternative proposals for the City's consideration. The City shall in no way be
liable for any damage to Company's Facilities that may be caused on account of any such
work, except to the extent directly caused by the negligence or intentional misconduct of
the City, its officers or employees in the course of the performance of a proprietary, and
not a governmental, function. However, nothing herein shall relieve any other person or
corporation from liability for damage to Company's Facilities caused by such person or
corporation.
7.6. Temporary Relocation of Facilities.
Upon advance notice of at least forty-eight (48) hours, Company shall temporarily
raise or lower its wires, cables or other similar Facilities upon the reasonable request of
any person or entity, including, but not limited to, a person or entity with a building
moving permit issued by the City. Company may charge a reasonable fee for this
service, but such fee shall not exceed the actual and direct costs incurred by Company in
the temporary relocation of such Facilities.
7.7. Compliance with Master Thoroughfare Plan.
Before Company constructs, installs or locates any of its Facilities along or
adjacent to any existing or proposed Public Right-of-Way, Company shall contact the
Director and obtain verification from the Director that Company's proposed construction,
installation or location of its Facilities will not conflict or interfere with a proposed
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expansion of an existing Public Right-of-Way or construction of a new Public Right-of-
Way as shown on a then-current master thoroughfare plan. If the Director determines
that Company's proposed construction, installation or location of its Facilities will
constitute a conflict or interference with such a plan, the Director shall notify Company
of the conflict or interference and Company shall work with the City in good faith to
resolve the conflict or interference.
8. CABLE AND OPEN VIDEO SYSTEM SERVICES PROHIBITED.
Unless otherwise specifically allowed by law, Company shall not provide Cable Services
through its Facilities or initiate construction of a Cable System or Open Video System in the
Public Rights-of-Way without a franchise awarded by the City in accordance with the Act.
9. INSURANCE.
9.1. Required of Company.
Company shall provide the Director with proof of insurance of the types and limits
as follows:
• Commercial General Liability:
$5,000,000 per occurrence;
• Property Damage Liability:
$1,000,000 per occurrence;
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all owned, hired or non-owned motor vehicles used in
conjunction with Company's use of the Public Rights-of-Way
Company's insurance shall be underwritten by entities authorized to do business in the State
of Texas and who are acceptable to the City in terms of solvency and financial strength.
Company's insurance policy or policies shall name the City as an additional insured and
cover all public risks related to Company's use the Public Rights-of-Way. Deductible or
self-insured retention limits on any line of coverage required herein shall not exceed
$25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or
aggregate is otherwise approved by the City.
9.2. Required of Company's Contractors.
Company shall require any contractors who undertake construction, installation,
maintenance, repairs or other work that requires the excavation, lane closure or her
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physical use of the Public Rights-of-Way to maintain insurance of the same types and
limits and on the same conditions as provided by Section 9.1 of this Agreement.
10. INDEMNITY.
In accordance with Section 283.057 of the Texas Local Government Code, Company
shall indemnify and hold the City and its officers and employees harmless against any and all
claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorneys'
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 Company or any agent,
officer, director, representative, employee, affiliate or subcontractor of Company, or their
respective officers, agents, employees, directors or representatives, while installing, repairing or
maintaining Facilities in a Public Right-of-Way. The indemnity provided under Section 283.057
of the Texas Local Government Code and this Section 10 does not apply to any liability resulting
from the negligence of the City, its officers, employees, contractors or subcontractors. If
Company and the City are found jointly liable by a court of competent jurisdiction, liability shall
be apportioned comparatively in accordance with the laws of the State of Texas without,
however, waiving any governmental immunity available to the City under Texas law and without
waiving any defenses of the parties under Texas law. This Section 10 is solely for the benefit of
the City and Company and does not create or grant any rights, contractual or otherwise, to any
other Person or entity. Company and the City shall promptly advise the other in writing of any
known claim or demand against Company or the City related to or arising out of the Company's
activities in the Public Rights-of-Way.
11. COMPANY AS INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an independent
contractor as to all rights and privileges granted by this Agreement, and not as an agent,
representative or employee of the City. Company acknowledges that the doctrine of respondeat
superior shall not apply as between the City and Company, its officers, agents, employees,
contractors and subcontractors. Company further agrees that nothing herein shall be construed as
the creation of a partnership or joint enterprise between the City and Company.
12. NOTICES.
Any notices required pursuant to the provisions of this Agreement or provided by the City or
Company to the other shall be (i) hand-delivered to the other party or (ii) mailed through the United
States Postal Service, postage prepaid, return receipt requested, addressed as follows:
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To THE CITY: To COMPANY:
City of Fort Worth Adelphia Business Solutions of Texas, L.P.
Attn: Public Utilities Supervisor One North Main Street
1000 Throckmorton Coudersport, PA 16915
Fort Worth, TX 76102 Attn: John Glicksman
with a copy to:
City of Fort Worth
Department of Law
Attn: Attorney for Telecommunications
1000 Throckmorton
Fort Worth, TX 76102
13. COMPLIANCE WITH LAWS.
Company agrees to comply with all federal, state and local laws; all ordinances, rules and
regulations of the City; and all rules and regulations established by the Director in order to protect
the public health, safety and welfare. Company agrees that if the PUC adopts any kind of order,
rule or regulation that excepts all or any portion of Company's Facilities from governance by
Chapter 283 of the Texas Local Government Code ("Excepted Facilities"), Company shall obtain
a separate written agreement, consent or franchise from the City and pay the City reasonable and
non-discriminatory compensation for Company's use of the Public Rights-of-Way with respect to
the Excepted Facilities.
14. NO WAIVER.
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the law,
shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert
any such right on any future occasion.
15. GOVERNING LAW AND VENUE.
This Agreement shall be construed pursuant to and in accordance with the laws of the
United States of America and the State of Texas. Unless the PUC asserts jurisdiction pursuant to
and in accordance with § 283.058 of the Texas Local Government Code, venue for any action,
whether real or asserted, at law or in equity, that arises out of the terms of this Agreement shall lie
exclusively in state courts located in Tarrant County, Texas or the United States District Court for
the Northern District of Texas, Fort Worth Division.
16. CONFERENCES.
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement or Company's
use of Public Rights-of-Way.
17. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final
order entered by a court of competent jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement,
a court order shall be final only to the extent that all available legal rights and remedies pertaining to
such order, including, without limitation all available appeals, have been exhausted.
18. HEADINGS NOT CONTROLLING.
Headings and titles that are used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
19. ENTIRETY OF AGREEMENT.
This Agreement contains the entire understanding and agreement between the City and
Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions of
this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties.
CITY OF FORT WORTH: Adelphia Business Solutions of Texas, L.P.
By: Adelphia Business Solutions General
Holdings, Inc. as General Partner
By: Ojes
_G -&Al2�f By: 7/1^0
Charles Boswell
Assistant City Manager John Glicksman
213 1 /b v Vice President
ATTEST: AS.
By: - 'L�i✓ B .
City Secretary
GPP[M,��C)�JV
APPROVED AS TO FORM AND LEGALITY:
By:_
Assistant City Attor
M & C: C- /S!� 7 ZS 111
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Exhibit "A"
§ PUBLIC L"iILiTY COMMISSiON
CONSOLIDATED ORDER fg
§ OF TEXAS
§
DOCKET NO. 11896 Application of Te.rtu Stairwide Telephone Cooperative, Inc.
for Approvai of 800 Data Base Access Service in the Intrastate
Access Service Tariff, Pursuant to P.U.C. SUBST. 8. :3.26
DOCKET NO. 11900 Application of United Telephone Company of Teras for
.-Approval of 800 Data Base Access Service in the Intrastate
Access Service Tariff,Pursuant to P.U.C. SUBST. R. 23.26
DOCKET NO. 11905 Application of Central Telephone Company of Texas for
Approval of 800 Data Base Access Service in the Intrastate
Access Service Tariff, Pursuant to P.U.C. SUBSTT, R. 23.26
DOCKET NO. 11923 Application of Century Telephone of San Marcos, Inc. for-'
Approval of 900 Data Base Access Service in the Intrastate
Access Service rarV,Parsuom to P.U.C. SEWST. R. 23.26
DOCKET NO. 11949 Application of Southwestern Bell Telephone Company, Inc. for
Approval of 800 Data Base access Service in the Intrastore
Access Service Tariff,Pursuant to P.U.C. SUBST. R. 23.26
DOCKET NO. 11950 Joint Application of GTE Southwest, Inc. and Contel of Texas,
Inc. for Approval of 160 Data Base Query Service In the
Intrastate Access Tariff,Pwsuaat to P.U.C.SUBST. R. 23,26
DOCKET NO. 16986 Application of Brazos Telecommunications, Inc. to Revise
Customer-Owned Pay Telephone Service (COPTS) Tariff in
Compliance with Federal Communications Commission (FCC/
Orders
DOCKET NO. 17170 Application of Central Teras Telephone Cooperative, Inc, to
Revise Customer-Owned Pay 1 elephone Service (COPTS)
Tariff is Compliance with Federai Communications
Commission (FCC) Orders
DOCKET NO. 17175 Application of Guadalupe Valley Telephone Cooperative, Inc.
to Revise Customer-Owned Pay Telephone Service (COPTS)
Tariff in Compliance With Federal Communication
Commission (FCC) Orden
DOCKET NO. 17181 Application of Coleman Count' Telephone Cooperative, Inc. to
Revise Customer-Owned avy Telephone Service (COPTS)
Tariff in Compliance with federal Communications
Commission (FCC) Orders
CONSOLID-kTED ORDER
PAGE
DOCKET NO. 17 t82 -yplicatior of Fort Bend Telephone Company to Revise
Customer-Owned Pay Teiephone Service (COPTS) Tariff in
C'omplioncs with Federal Communications Commission (FCC)
Orders
DOCKET NO. 17196 application of Colorado Valley Telephone Cooperative, inc. to
Revise Customer-Owned Pay Telephone Service (COPTS;
Tariff in Compliance with Federal Communications
Commission(FCC) Orders
DOCKET NO. 17197 Application of Yaylor Telephone Cooperative, Ime. to Revise
Cusio ner-Owned Pay Telepkene Service (COPTS) Tariff in
Compliance with Federal Communications Commission (FCC)
Orden
DOCKET NO. 17204 4pplication of Etex Telephone Cooperative, lac. to Revise
Customer-Owned Pay Telephone Service (COPTS) Tariff In
Compliance with Federal Communications Commission(FCC)
Orders =
DOCKET NO. 19596 Application of GTE Southwest, Inc. to Revise General
Exchange Tari to StreamUne Pricing Structures for Manual
Trunk and Automatic Trunk EAS Additives for E4S Rate
Band I-8, Resumcture DID Rates, Restructure CentraNet
Rates it EAS Rate Bands 4-8,cad to Introduce the CeniraNet
.Kultiline Variety Package in Exchairges with E4S Rate Bands
�-8
DOCKET NO. 19604 Application of Kerrville Telephone Company for An Increase
in Certain Depreciation Rates
DOCKET NO, 19788 .-Application for Sale, Transfer or Aferjer of Lower Colorado
River Authvrtry
DOCKET NO. 19835 Joint Application of Air Touch Paging of Texas and GTE
Southwest, Inc— for Approval of Interconnection Agreement
Under PURA 1995 and lhe Telecommunications Act of 1996
DOCKET NO. 19852 Joint Application of Southwestern Bell Telephone Company
and Communications Pearl, L.L.C. for Approval of
Interconnection A:reement Under PVRA 1995 and the
Telecomrnunlcadotts Act of 1996
DOCKET NO. 19880 roint Applieotion of Frontier 7'elemanageament, Inc., and GTE
Southwest, Inc. for Approval of Interconnection Agreement
Under PURA 1995 and the Telecommunications Act of 1996
CONSOLIDATED ORDER
PAGE 3
DOCKET NO. 19898 loins .application of United Telephone Company of Texas,
inc.. d/b/a Sprint and Central Telephone Company of Teras,
&Va Sprint and Tele-One Communications, Inc..for Approval
of Resale Agreement Under PUX4 1995 and the
Telecommunications Act of 1996
DOCKET NO. 19899 ' Joint Application of Fronrler Local Services incorporated and
GTE Southwest, Inc. for Approval of Interconnection and
Unbundling Agreement Under PURA 1995 and the
Telecommunications Act of 1996
DOCKET NO. 19905 Application of Texas-,'Vew Mexico Power Company to Amend
Cenificated Servke Area Boundaries(Service Area Ftception)
within Bratorie Counry
DOCKET NO. 19916 Joint Application of LuAim-Conroe Telephone Company and
,9 TS Telephone Systems, IAc.for Approval of Interconnection
Agreement Under PURA 1995 and the Telecommunications
Act of 1996
DOCKET\O. 19936 Joint Application of United Telephone Company of Texds,
Inc., d/Wgr Sprint and Central Telephone Company of Texpi,
d/b/a Sprint and Quick-Tel for Approval of Resale Agreement
Under PUM 1995 and the Telecommunkations Act of 1996
DOCKET NO. 19938 Application of Tech Telephone, Ltd for an Amendment to its
Service Provider Certif7cate of Operating Authority
DOCKET NO. 19960 Application of Stats Communications, Inc for a Servict
Provider Certlfreate of Operadmg Aalkariry
DOCKET NO. 1963 Joint Application of Southwestern Bell Telephone Company
and Morris Communications for approval of Interconnection
Agreement Under PURA 1995 and the Telecommunications
Act of 1996
DOCKET NO. 19969 Application of Gioba/Com; Inc., d/b✓a GCI GlobalCom, Inc.
for a Service Provider Certifleate of Operating Authority•
DOCKET NO, 19976 Joint Application of Southwestern Bell Telephone .Company
and Texas Communications, Inc. d/b/a Met for Approval of
Interconnection Agreement Under PUP-4 and the
Telecommunications Act of 1996
DOCKET NO. 19984 Joint Application of Southwestern Bell Telephone Company
and Trans,Vational Telecommanicadons, Inc.for Approval of
Interconnection Agreenwxt Under PURA and the
Telecommunications Act of 1996
202-12• .i *2
D1./'1I r72v .. .
CONSOLIDATED ORDER
P.-kGE i
DOCKET NO. 19985 Joint Application of Sowhwesttrn Bell Telephone Company
and (Vextel of Texas, inc. for Approval of Interconnection
Agreement Under PURA and the Telecommunications Act of
1996
DOCKET NO. 19992 Application of CSW/ICG ChoiceCom, LP.for an Amendment
to its Service Provider Certificate of Operating Authority
DOCKET NO. 19995 .application of Hyperion Communications of Texas, L.P.for a
Service Provider Certificate of Operating,1 athority
DOCKET,ti0. 20013 application of Shalt Telecom of Texas, Ltd. L.L.P. for a
Certificate of Operating Authority
CONSOLIDATED ORDER
The Commission adopts the attached irdings of fact and concluiions of law and issues the
orders set out therein.
SIGNED AT AUSTIN,TEXAS oa the�_day of i 1998.
PU LTILITY COMMISSION OF TEXAS
1k
PAT WqOD, M.CHAIRMAN
I C� ,L-6 /'
JUD SH,C SIONER
q -.ttatt'Aoelcropenm:asko•fnt1 doe
DOCKET NO. 19995
APPLIC.ATION OF HYPERION § PUBLIC UTILITY COMMISSION
CONIMUN1CATIONS OF TEXAS. L.P. FOR A §
SERVICE PROVIDER CERTIFICATE OF § OF TE?C4S
OPER.4,TING AUTHORITY §
ORDER
This Order grants Hyptrion Co-nmunications of Texas, L.P. a service provider certificate of operating
authority (SPCOA) to provide facilities-based telecernmunications st-vices in the geographic area of the entire
stare of Texas. The docket was processed in accordance with applicable statutes and Commission rules. The
Commission provided notice cf the application to interested parties. No protests, motions to intervene, cr
requests for hearing were f lad. The Applicant and the Commission's General Counsel are the only parties to the
proceeding. General Counsel and Commission Staff recommend approval of the application. as amended. The
application, as amended, is hereby approved.
I. Findings of Fact '
Procedural Hist_ea
1. On October 19, 1998, Hyperion Communications of Texas, L.P. (the Applicant) filed with the Public
Utility Commission of Texas (Commission) an application to obtain an SPCOA. An amendment to the
application was filed on November 17, 1998.
2. On October 21, :998. the Commission issued an Order establishing a procedural schedule, entering a
Frotecn%a order, and determining filing and service procedures.
3. On October 30, 1998, consistent with the General Counsel's recommendation, :he Commission found
that the Applicant, together with affiliates, had less than six percent of the total intrastate switched access
minutes of use, as measured by the most recent twelve-month period for which data is available preceding the
tiling of the application;and certified the Applicant eligible to obtain an SPCOA.
4. On Uctober 30, 1998,the Commission provided adequate notice of this proceeding in the Texas Pegisrtr
and thrcuoh a posting cn the Internet.
5. On November :S, 1998,General Counsel filed a recommendation stating that the Applicant is financially
and technically qualified to receive the SPCOA requested, and recommending that the application be approved,
as amendod.
3-�.I i)9j&A_=7- ace 8. 2
DOCKET NO. 19Q95 ORDER PAGE : of6
Apphranr's Request'
6. The Applicant is a DeiaMare iirrited pain.-ship fo-ried or ;j'y 16, 1948. .-.1h authority to t ars3ct
business ;1l the ita:e of Texas.
7 The Applicant's parent company is Hype--or, Teiexmmun:cat;oris. Inc. t:-4T]!. F?T1, which 99
percent of the Appi:cant, is a hold:nz company that dies not provide :eiecorrmunicat:ons service except though
its operating company affiliates. Hyperion Ccimmur.tcalion,s Genera; Holdings, Inc., wnich is wholly o'•-ned
HTi, the rerra:ning one perc;rt.
8. The Applicant has 20 aFiiates= that are public utilities cr that are prosiding telecommunications
services.
9 The Applicant proposes to serve the geographic area of:he emirs state of Tcxas(proposed service a-c!).
10. The Applicant proposes :o act both as a facilities-based provider and a reseller of telecommunications
services.
11. The Applicant proposes :o provide resold and 'acilitirs-b sed iocaJ exchange telecom muni.ations
services, including basic dial tore tints, private branch exchange (PBX) t-unks. direct inward dialing (DID)
trunks, digital PBX and DID trunks, and ccntrex-type system lints. The Applicant will also provide direct-dial
calling, operator assisted calling. directory assistance servi;e, access to telecommunications relay service and
emergency 9-1-1 service(proposed services).
1, The Applicant proposes tc provide service to customers hither than itself and ils affiliates.
13. The Applicant filed a sxom statement :hat it has applied for ar;v necessan municipal consents.
franchises or permits required for the proposed ser ices.
i; The Applicant is not a municipality, nor wi;l the Applicant enable a municipality or municipal electric
system to offer for sale to the public, directh or indirectiy, local exchange :elephone service. basic Iota;
1 Hipenon C✓r_-nunieseions internuonal,L L.0, Enterp rekeomr..unica:tons 3f Waist:. nc,Hi,perian of
FlxdL Inc.; Hyponon retecanwyom ees,oas of Louisville, Inc., Hyperion Tc:etonuoar."vx m of Leiingwn. lk. 1•11perion Tcicucnv"%In cations of
L-'Lu:aria Inc.; EnLcrr Hyperion Tc1ccamm.uikWkxu of Lot vhra trig.; F-mvay Hyperwn Tebcommt.n;:z:ors of Mississippi, L-%,-. Hypcnon
TekwmrnuniCatians of Central N" rersn. '1,e_; Hyf.rr.on Te;c+ .-nuaicwow of 80rt$o. Inc.: Hhpenon %ccoirimunicau,;% or S;recuse. Inc:
hyperon TeIFot MtMK9,OM Oi PeansylrtatL IDC;Hyperion Tcicwnun Lr waon.of P.ribur&ire.H),xnon Tr.eeommtintcations of Marmburq. Inc.:
HyXIMon Suttlumanv :ciccommutuCatians.A2CVKny Hyperoa TekArrxnieationr.L.L C.,PECO Hypenor 7decommw6c+ttiOiw AV"K L.P. dfb.a
Hypcnoa of Tennessa.-P.Hyperon Utcor m"ieattow at Vvrruu Inc..tnd Hyperon Telctosnmunicaticrs o:Virymirl Inc.
Je;FDA d 214
DOCKET NO. 19995 ORDER PAGE 3 of 6
teleccmmunication> service, 5,,-itched access service, er any non-sv%itched telecommunicat:ons service use: to
provide connections between customers' premises within an exchange or between a customer's premises and a
long-distance provider serving the CCCh1lsC.
IS. he Applicant does r.ot currently hold a certificate of operating author,ty or ee;,ificate of convenierce
and necessity for any pan of the proposed service area.
16. The Applicant is authorized to provide local exchange and intrastate interexchange telecommunicat•er.s
services in Arkansas. Florida, Kansas, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, New York,
Pennsylvania,Tennessee. Vermont and Virginia.
17, The Applicant's affiliates have applications pending for authority to provide telecommunications
services in Alatama, Delaware. the Distrlct.of Columbia, Georgia, North Carclina, Ohic, South Carolina and
West Virginia.
18. The Applicant has never had a permit, license or certificate to provide telecommunications seivices
denied or revoked by any state.
19. The Applicant has never provided telecommunications in Texas or any other state.
20. h-n currently serves 46 cities with approximately 5,363 miles of fiber-optic cable. HT1 has 22 networks
with four more currently under constructicn.
21. The Commission's Office of Customer Protection and the Office of the Texas Attorney General reported
no complaints registered against the Applicant or its affiliates.
?2. Of the stases that responded to the Commission's complaint check, none reported any complaints
registered against the Appiic uit or its affiliates.
23. The Texas Comptroller's Office stated that the Applicant is in compliance with its statutes and rules. -
24 The Applicant has the requisite technical qualifications to pre�.ide the proposed iervices within 1�c
proposed service area.
FF ==..=ECkIAN 2022
I 'i1 g� :3 JP-L&&_1 7 24
0 12
DOCK.ET.NO. 19995 ORDER PAGE 4 of 6
:5. Becaust tke'Aolicant will rely on its parent company. it has the requisite --inarcial qualiFcationi to
Drovide the proposed serv.ces withir. the proposed scr;ice aria.
fn orn^.a!Disposition
20. More than 33 days have passcd since completion of the notice crovided in this docket.
27. No protests. motions to intervene or requests for hearing have been filed. No issues of fact or lak are
disputed by any parry. No hearing ;s necessary.
Il. Conclusions of Law
1. The Applicant is a telecommunications provider as defined in §51.402(10) of the Public l,'Wiry
Regulatory Act, T£X. LJIL. CODE ANS. (Vernon 1998)(PURA).
Z. The Commission has jurisdiction and authority over the application pursuant to §§ 54.154(a) and 54.155
of PURA. -
3. The appiica:ion complies with§ 54.154(b)of PURA_
4. The Commission proridcd notice of the application in compliance with§ 54.005(a)ofPURA.
5. The Applicant is e!igibie to obtain an SPCOA under the criterion established by PURA § 54.153.
6. The Applicant is not precluded from providing service under an SPCOA by §§ 34.201 or 54.152 of PLRA.
7. The Applicant is entitled to approval of this application, having demonstrated 6e financial and technical
qualifications to previde the proposed services, and the ability to provide the necessary quality of service,ta its
customers, as required by §§ 54.154(b)and 54.155(6)of PURA.
8 The Commission does not, as a result of the entry or an order granting the application. :mpose an%'
additional or different service quality obligations on :he incumbent local exchange companies that provide
sen ice to resellers.
a. The Commission lacks the jurisdiction or authority to determine the necessity of a franchise between a
.municipality and the holder of&,i SPCOA.
10. This application does not constitute a major rate proceeding as defined by P.U.C. PROC. R. 22.2.
_ - - c
V
DOCKET NO. 19945 ORDER PACE 5 orb
II The requirements for infcrmal disposition under P.U.C. PROC. R. 23.35 hart been met i-1 this
prxeeding.
W. Ordering Paragraphs
In accordance with these findings of fact and ccr.clusicns of law, the Commission ;slues the following
Order-
1 The application of Hyperion Communications of Texas. L.P. for a servi;e provider
certificau of operating authority (SPCOA) is approved, Hyperion Communications of
Texas, L.P. is granted SPCOA No. 60219 for the geographic area of the entire state of
Texas.
2. The Applicant shall compl. ti%;tlt pertinent provisions of the federal Telecommunications
Act of 1996,= including the procedural requirements of § 251(FK I XB), Nhen seeking:
interconnection,services,or network clemerts frcm a rural telephone company.
3. As a condition of this SPCOA,the Applicant shall identify an agent for service of process
within the st$te of Texu. The Applicant shall file this information with the Commission
within 30 days of the date of this Order.
4. The Applicant shall file any future changes in address, contact represerutive and/or
telephone numbers in Project Number 19421, Notificatiar of Changes in Address. Contact
Representative=.d/or Telephone!Numbers. Pursuant to P.U.C. SU85T R. 23.61.
S. The Applicant's provision of local telephone service to end-users, whether by its own
facilities, flat-rate resale, ar usage sensitive loop, must also include "9-1-1" emergency
telephone service at a level required by the applicable regional pian follov.-ed by local
telephone service providers under Chapters 771 and 772 of the Texas Heath and Safety
Code, M. HF-ALTH A SAFETY CODE ANN § 771.001 et seq. (Vernon 1999)(;he Code)or
other applicable law, and any applica5le rules and regulations implementing t'ose
chapters. The Appliant shall diligently work with the Advisory Commission on State
Emergency Communications, local "9-1-1" entities, and any other agencies or entities
WCCOMMMics6ahs Act of t9K 47 U.S c.;f 151.cwq.
SJ aE F FP:E •da,t 20242473a3 724'7 Fagc
M
DOCKS? NO. 19995 ORDER PAGE 6 of 6
authorized by Chapters 7'' and 772 of :he Code :o tnsure that all "9-t-!" emergency
services, whether provided mraugh the certificate h6cler's own facilities, flat-rate resale.
or usage iensiti-e loop. are provided in a mirner consistent with the applizable regional
plan followed by local telephone service pro�:ders under Chapters 771 or 772 of:he Code
or other applicable law and any applicable ales and regulations implementing those
chapters The Applicant shall diligently work with the "9-1.1" entities to pursue, in good
fait:t, the mutually agreed goal that the :-cal "9-1-I" entities and ernereency service
providers experience no increase in their c-urrent level of rates and, :o the extent
technically feasible, no degradation in sertitces as a resuit of the certification granted
herein and the involvement of the certificate holder in the provision of-9-1-I" emergency
service.
6. The Applicant has committed to and is bound by the quality of service regjirements set
forth in the Quality of Service Questionnaire. The underlying incumbent local exchange
companies(!LECs) continue to be bound by the at:aliy of service requirements contained .
in P.U.C. SUBST, R. 23.61. Approval of the SPCOA application does not expand the
scope of the underlying ILEC's obligation to its own customers.
7. All other motions, requests for entry of sp-cific findings of fact and conclusions of law,
and tory other requests for general or specific relief, if not expressly granted herein, are
hereby denied for want of merit.
a+-iAurCoclstWro•pr�pu999spo aoc
DOCKET NO. 21773
APPLICATION OF HYPERION § PUBLIC UTILITY COMMISSION
COMMUNICATIONS OF TEXAS,L.P.FOR AN §
AMENDMENT TO ITS SERVICE PROVIDER § OF TEXAS
CERTIFICATE OF OPERATING AUTHORITY §
ORDER NO.3
GRAN'T'ING ADMINISTRATIVE APPROVAL
On December 9, 1999,' Hyperion Communications of Texas, LP. (the Applicant), filed an application
for admin strative approval of an amendment to its Service Provider Certificate of Operating Authority.
(SPCOA)No. 602191,requesting a name change to Adelphia Business Solutions of Texas,LP.
On December 21, 1999, the Office of Regulatory Affairs (ORA) filed its recorranendation, stating that
the Applicant registered its name change with the Secretary of State on September 24, 1999. No conflict or
duplication was found with the requested name change. The Officc of the Texas Attorney General, and the
Texas Comptroller's Office reported no complaints or infractions registered against either name. The
Commission's Office of Customer Protection (OCP) reported no complaints $gainst the Applicant in Fiscal
Year 1998. However, OCP reported one complaint against the Applicant in Fiscal Year 1999. Since this
customer service complaint from a Pennsylvania customer was outside the jurisdiction of the Commission, it
was forwarded by OCP to the Pennsylvania Public Utility Commission for investigation. ORA finds that the
Applicant has ;octet the criteria for changing its name pursuant to §§ 54.151 — 54.159 of the Public Utility
Regulatory Act, Tex. Util. Code Ann. (Vernon 1998)(PURA), recommending that the Applicant's request for a
name change be approved.
1 The Applicant originally tiled an application for an amendment to its SPCOA on December 3, 1999. Because the filing was
substantially incomplete,a new filing was required. Therefore,December 9, 1999, is considered the date of tiling, although the record
contains filings that are prior to December 9, 1999.
2 Granted in.Application of Hyperion Communications of Teras, L.P.for a Service Proyider Certificate of Operatiag Authority,
Docket No 19995(Dec. 14, 1998).
DOCKET NO. 21773 ORDER NO. 3 PAGE 2 OF 2
Consistent with that recommendation, the application of Hyperion Communications of Texas, LY. to
amend its SPCOA No. 60219 is approved. Hyperion Communications of Texas, L.Vs SPCOA No. 60219 is
amended to reflect a name change to Adelphia Business Solutions of Texas, LP.
SIGNED AT AUSTIN,TEXAS the�`� day of December, 1999.
PUBLIC UTILITY COMMISSION OF TEXAS
L��_ T
MELENE R.DODSON
ADMNISTRATM LAW JUDGE
OFFICE OF POLICY DEVELOPMENT
q:sharc\docket%kA>aspcoal21773-3.doc
City of Fort Worth, Texas
"agor and Council (:owwunication
DATE REFERENCE NUMBER I LOG NAMEE
7/25/00 **C-18154 02ADELPHIAPAG1 of 1
SUBJECT PUBLIC RIGHT-OF-WAY USE AGREEMENT WITH ADELPHIA BUSINESS
SOLUTIONS OF TEXAS, L.P.
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Public Right-of-Way
Use Agreement with Adelphia Business Solutions of Texas, L.P.
DISCUSSION:
As of September 1, 1999, any provider of local telephone services (Provider) who receives one of three
types of certificates from the Texas Public Utility Commission (PUC) has the statutory right to use the
City of Fort Worth's public rights-of-way. The City does not have the authority to require a franchise for that
use or to impose requirements on the Provider except those that are directly related to the municipality's
management of the public right-of-way for the benefit of the public health, safety, and welfare. The
PUC has established levels of compensation that are payable by each Provider to the City.
The City has traditionally managed the use of public rights-of-way by public utilities through the terms and
provisions of its franchises. Because the City now cannot govern Providers of local telephone services in
that manner, City staff is drafting a comprehensive Public Right-of-Way Use Ordinance. Until the City
Council adopts such an Ordinance, the City needs to have an interim instrument to govern the use of the
public rights-of-way by these Providers. This Public Right-of-Way Use Agreement will fulfill that need.
The Agreement sets forth essentially the same terms and conditions related to the City's management
of the public rights-of-way as those historically contained in the City's franchise agreements. The
Agreement will become effective on the date of its execution and terminate on the date that a
comprehensive Public Right-of-Way Use Ordinance becomes effective. Adelphia Business Solutions of
Texas, L.P. will pay the City a quarterly fee calculated monthly and based on (1) $1.09 for each
residential access line that it has in the public rights-of-way and (2) $3.52 for each non-residential
access line that it has in the public rights-of-way.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Revenue Office will be responsible for the collection and deposit
of funds due the City under this agreement.
CB:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to) APPROVED
Charles Boswell 8511 GG01 421342 0134010 CITY COUNCIL
Originating Department Head:
JUL 25 2000
Charles Boswell 8511 (from)
�.17t"r4�i
Additional Information Contact: City secretary of the
City of Fort worth,Texas
Danny Reed 6145