Current through Reg. 50, No. 13; March 28, 2025
(a) Purpose. The
purpose of this section is to implement Public Utility Regulatory Act (PURA)
§§54.259, 54.260, and 54.261 regarding the non-discriminatory
treatment of a telecommunications utility by the property owner upon a tenant's
request for telecommunications services.
(b) Application.
(1) This section applies to the following
entities:
(A) "Telecommunications utilities"
or "telecommunications utility" as defined in PURA §51.002(11), that hold
a consent, franchise, or permit as determined to be the appropriate grants of
authority by the municipality and hold a certificate if required by
PURA;
(B) Public or private
property owners of commercial property and the property owner's authorized
representative(s); and
(C) Public
or private property owners of commercially operated residential property with
four or more dwelling units and the property owner's authorized
representative(s).
(2)
This section does not apply to institutions of higher education as set forth by
PURA §54.259(b).
(c) Definitions. The following words and
terms, when used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1)
Conduit - A pipe installed on the property, in a building between floors,
attached to walls, between buildings, located in the ceiling or floor space of
a building, located on a customer's premise, or from a public right of way into
a property for the purposes of containing and protecting cable.
(2) Property - A building or buildings that
are under common ownership and which are located on a single tract of land or
tracts of land that are adjoining or would be in the absence of streets or
other public rights-of-ways.
(3)
Property owner - The owner of the property or its authorized
representative(s).
(4) Requesting
carrier - A telecommunications utility seeking access to space on the property
for the purpose of providing telecommunications services to one or more tenants
who have requested such services.
(5) Space - Area of the property for which
access is being requested by the requesting carrier, which will be used to
install the telecommunications equipment needed to provide telecommunications
services to a requesting tenant on the property. Space includes conduit and may
be located in or on the rooftop of a building or buildings on the
property.
(6) Telecommunications
equipment - The equipment installed or used by the requesting carrier to
provide telecommunications services to a requesting tenant.
(7) Tenant - Any occupant of a building or
buildings on the property under the terms of a lease with the property owner
which has a remaining term of more than six months and who is not subject to
filed bona fide eviction proceedings under such lease with the property owner,
or an authorized subtenant of such occupant whose occupancy is subject to the
terms of the primary lease which has a remaining term of more than six
months.
(d) Rights of
parties.
(1) Tenant's right to choose
requesting carrier. A tenant is entitled to choose the provider of its
telecommunications services.
(2)
Property owner's rights to manage access. The requirements of this subsection
are not intended to eliminate or restrict the property owner's rights to manage
access to public or private property pursuant to PURA §§54.259,
54.260, and 54.261.
(A) A property owner may:
(i) impose a condition on the requesting
carrier that is reasonably necessary to protect:
(I) the safety, security, appearance, and
condition of the property; and
(II)
the safety and convenience of other persons;
(ii) impose a reasonable limitation on the
time at which the requesting carrier may have access to the property to install
telecommunications equipment;
(iii)
impose a reasonable limitation on the number of such requesting carriers that
have access to the property, if the property owner can demonstrate a space
constraint that requires the limitation;
(iv) require a requesting carrier to agree to
indemnify the property owner for damage caused installing, operating, or
removing telecommunications equipment;
(v) require a tenant or requesting carrier to
bear the entire cost of installing, operating, or removing telecommunications
equipment; and
(vi) require
requesting carrier to pay compensation that is reasonable and nondiscriminatory
among such telecommunications utilities.
(B) A property owner may not:
(i) prevent the requesting carrier from
installing telecommunications equipment on the property upon a tenant
request;
(ii) interfere with the
requesting carrier's installation of telecommunications equipment on the
property upon a tenant request;
(iii) discriminate against such requesting
carrier regarding installation, terms, or compensation of telecommunications
equipment to a tenant on the property;
(iv) demand or accept an unreasonable payment
of any kind from a tenant or the requesting carrier for allowing the requesting
carrier on or in the property; or
(v) discriminate in favor of or against a
tenant in any manner, including rental charge discrimination, based on the
identity of a telecommunications utility from which a tenant receives
telecommunications services.
(3) Requesting carrier's right to access.
(A) Upon a tenant request, the requesting
carrier has the right to install telecommunications equipment on the property
in order to provide telecommunications services to the requesting tenant:
(i) for a period no longer than the remaining
term of the requesting tenant's lease unless otherwise agreed to by the
requesting carrier and the property owner. Should the requesting tenant's lease
renew, the agreement between the requesting carrier and the property owner
automatically continues, without the need for renegotiation, for the term of
the requesting tenant's renewal;
(ii) without interference from the property
owner, except as provided in this subsection; and
(iii) at terms, conditions, and compensation
rates which are non- discriminatory.
(B) The requesting carrier shall comply with
all applicable federal, state, and local codes and standards,
e.g., fire codes, electrical codes, safety codes, building
codes, elevator codes.
(4) Restriction on exclusive agreement. A
telecommunications utility shall not enter into an agreement, contract, pact,
understanding or other like arrangement with the property owner to be the sole
or exclusive provider of telecommunications services to actual or prospective
tenants on the property.
(e) Procedures upon tenant request.
(1) Tour of property.
(A) Upon receiving a request for
telecommunications services from a tenant, but prior to or concurrently with
providing the property owner with notice of intent to install
telecommunications equipment as described in paragraph (3) of this subsection,
the requesting carrier may request, in writing, a tour of the property to
determine an appropriate location for the telecommunications equipment needed
to provide the telecommunications services requested by such tenant. This
request shall identify the requesting tenant and be sent by certified mail,
return receipt requested to the property's on-site manager, or designee, and to
the person identified in the tenant's lease to receive notices.
(B) The property owner shall provide such
property tour within ten business days of receipt of the requesting carrier's
written request.
(C) The requesting
carrier and the property owner may agree, in writing, to extend the timelines
prescribed by this subsection.
(2) Request for technical drawings.
(A) In its written request for a tour of the
property, the requesting carrier may request that the property owner provide
computer aided design (CAD) drawings or similarly detailed drawings of the
mechanical room(s), risers and other common spaces, if available, in order to
assist the requesting carrier in developing plans and specifications for
placement of telecommunications equipment.
(B) Such drawings should be provided to the
requesting carrier, within ten business days of the property owner's receipt of
the requesting carrier's written request. The requesting carrier will bear the
reasonable actual cost of providing the requested drawings.
(C) The requesting carrier and the property
owner may agree, in writing, to extend the timelines prescribed by this
subsection.
(3) Notice
of intent to install telecommunications equipment.
(A) Upon receiving a request for
telecommunications services from a tenant, the requesting carrier shall notify
the property owner not fewer than 30 calendar days before the proposed date on
which installation of telecommunications equipment needed to provide the
telecommunications services requested by a tenant is to commence.
(B) Such notice shall be sent by certified
mail, return receipt requested, to the property's on-site manager, or designee,
and to the person identified in the tenant's lease to receive
notices.
(C) The requesting carrier
shall include, but is not limited to, the following in its notice of intent:
(i) the identity of the requesting
tenant;
(ii) the property address
and building number (if applicable);
(iii) the proposed timeline for the
installation of telecommunications equipment;
(iv) the type of telecommunications equipment
to be installed;
(v) the proposed
location, space requirements, proposed engineering drawings, and other
specifications of the telecommunications equipment;
(vi) the conduit requirements, if any;
and
(vii) a copy of PURA
§§54.259, 54.260, and 54.261 and this section (Substantive Rule
§26.129).
(D) The
requesting carrier and the property owner may agree, in writing, to extend the
timelines prescribed by this subsection.
(f) Requirement to negotiate for 30 days.
(1) Upon receipt of the requesting carrier's
notice of intent to install telecommunications equipment, the property owner
and the requesting carrier shall attempt to reach a mutually acceptable
agreement regarding the installation of the requesting carrier's
telecommunications equipment and reasonable compensation due the property owner
as a result of such installation.
(2) If such an agreement is not reached
within 30 calendar days of the property owner's receipt of the requesting
carrier's notice of intent, either party may file for resolution pursuant to
subsection (i) of this section.
(3)
The requesting carrier and the property owner may agree, in writing, to extend
the period of negotiation prescribed by this subsection.
(g) Parameters for installation of
telecommunications equipment. The property owner shall not deny the requesting
carrier access to space, except due to inadequate space or safety concerns.
(1) Inadequate space.
(A) Property owner's denial due to inadequate
space. The property owner may deny access to space if it does so within ten
business days of its receipt of the requesting carrier's notice of intent to
install telecommunications equipment, where the space and/or conduit required
for installation is not sufficient to accommodate the requesting carrier's
request.
(B) Demonstration of
inadequate space.
(i) In the event the
property owner denies access to space, the property owner shall demonstrate
that there is insufficient space and/or conduit to accommodate the requesting
carrier's request for space. The property owner shall allow the requesting
carrier to inspect the space and/or conduit to which it is denied access; or it
may utilize any other method of proof mutually agreed upon by the property
owner and the requesting carrier.
(ii) Such demonstration shall be completed
within ten business days of the requesting carrier's receipt of the property
owner's denial.
(iii) Following
such demonstration or other agreed upon method of proof, the requesting carrier
shall have ten business days to dispute the property owner's assertion that a
space limitation exists by pursuing resolution pursuant to subsection (i) of
this section.
(C) The
requesting carrier and the property owner may agree, in writing, to extend the
timelines prescribed by this subsection.
(2) Safety concerns.
(A) Property owner's denial due to safety
concern. The property owner may deny access to space if it does so within ten
business days of its receipt of the requesting carrier's notice of intent to
install telecommunications equipment, where the installation of the requesting
carrier's telecommunications equipment would cause an unreasonable circumstance
that would compromise the safety of the property and/or persons on the
property.
(B) Demonstration of
safety concern.
(i) In the event the property
owner denies access to space, the property owner shall demonstrate that an
unreasonable safety hazard that requires the denial of access to space exists.
The property owner shall specify the alleged safety hazard and cite any
applicable codes and/or standards. The property owner shall allow the
requesting carrier to inspect the space and/or conduit to which it is denied
access, or it may utilize any other method of proof mutually agreed upon by the
property owner and the requesting carrier.
(ii) Such demonstration shall be completed
within ten business days of the requesting carrier's receipt of the property
owner's denial.
(iii) Following
such demonstration or other agreed upon method of proof, the requesting carrier
shall have ten business days to dispute the property owner's assertion that a
safety hazard exists by pursuing resolution pursuant to subsection (i) of this
section.
(C) The
requesting carrier and the property owner may agree, in writing, to extend the
timelines prescribed by this subsection.
(h) Parameters for determining reasonable
compensation for access.
(1) The property
owner and the requesting carrier shall attempt to reach a mutually acceptable
agreement regarding reasonable and non-discriminatory compensation due the
property owner as a result of the requesting carrier's installation of
telecommunications equipment required to provide telecommunications services to
a requesting tenant.
(2) The
property owner shall not impose a fee on the requesting carrier unrelated to
the requesting carrier's usage of space and/or provision of telecommunications
services to a requesting tenant, except as provided by agreement of the
property owner and the requesting carrier.
(3) The property owner and the requesting
carrier shall negotiate terms and conditions concerning the removal of the
requesting carrier's telecommunications equipment upon the departure of a
tenant served by such requesting carrier or the end of the service agreement
between a tenant and the requesting carrier.
(4) The property owner may require a security
deposit not to exceed an amount equal to one month of fees or rents as
determined by the agreement between the requesting carrier and the property
owner. The requesting carrier and property owner may agree, in writing, to a
security deposit of a differing amount than prescribed by this
subsection.
(i) Failure
to reach negotiated agreement.
(1)
Alternative Dispute Resolution. As an alternative to petitioning the commission
for resolution of a dispute, upon agreement of both parties, parties may
voluntarily submit any controversy or claim under this section to settlement by
alternative dispute resolution. This alternative dispute resolution shall be
conducted under the alternative dispute resolution procedures of the Texas
Government Code, Administrative Procedure Act, Chapter 2009, and the Texas
Civil Practice and Remedies Code, Chapter 154.
(2) Petition to commission for resolution of
dispute. If a mutually acceptable agreement regarding the installation of the
requesting carrier's telecommunications equipment, the reasonable compensation
due the property owner as a result of such installation, or other disputed
issues is not reached within 30 calendar days of the property owner's receipt
of the requesting carrier's notice of intent to install telecommunications
equipment, either the property owner or the requesting carrier may petition the
commission for resolution. The petition shall include proof of the requesting
carrier's proper service of notice of intent to the property owner in the form
of an affidavit and attached copy of return receipt.
(3) Types of disputes and information
required for each.
(A) Installation dispute.
(i) The property owner may deny access
consistent with subsection (g) of this section.
(ii) The property owner and the requesting
carrier shall each provide the commission with information specifying the space
or safety related installation dispute(s) that is preventing a negotiated
agreement.
(iii) The property owner
and the requesting carrier shall each provide the commission with information
supporting its position in the dispute(s).
(B) Reasonable compensation dispute.
(i) The property owner shall provide the
commission with the amount of compensation being sought and the basis for such
claim, including information supporting the factors listed in clause (iii) of
this subparagraph.
(ii) The
requesting carrier shall provide the commission with information supporting the
amount of compensation it deems reasonable to compensate the property owner for
installation of its telecommunications equipment.
(iii) In determining a reasonable amount of
compensation due the property owner for installation of the requesting
carrier's telecommunications equipment, the commission may consider, but is not
limited to, the following:
(I) the location
and amount of space occupied by installation of the requesting carrier's
telecommunications equipment;
(II)
evidence that the property owner has a specific alternative use for any space
which would be occupied by the requesting carrier's telecommunications
equipment and which would result in a specific quantifiable loss to the
property owner;
(III) the value of
the property before and after the installation of the requesting carrier's
telecommunications equipment and the methods used to determine such
values;
(IV) possible interference
of the requesting carrier's telecommunications equipment with the use and
occupancy of the property which would cause a decrease in the rental or resale
value of the property;
(V) actual
costs incurred by the property owner directly related to installation of the
requesting carrier's telecommunications equipment;
(VI) the market rate for similar space used
for installation of telecommunications equipment in a similar property;
and
(VII) the market rate for
tenant leaseable space in the property or a similar property.
(C) Other disputed
issues.
(i) The property owner and the
requesting carrier shall each provide the commission with information
specifying any other dispute(s) preventing a negotiated agreement.
(ii) The property owner and the requesting
carrier shall each provide the commission with information supporting its
position regarding these other dispute(s).
(4) Procedure.
(A) Upon the proper filing of a petition, as
set forth in paragraph (1) of this subsection, the commission may proceed to
resolution of a dispute pursuant to the commission's procedural rules as set
forth in Chapter 22 of this title (relating to Practice and
Procedure).
(B) In addition to the
requirements set forth in paragraph (1) of this subsection, all petitions shall
comply with the requirements of Chapter 22, Subchapter D of this title
(relating to Notice) and Chapter 22, Subchapter E of this title (relating to
Pleadings and Other Documents).
(C)
The commission may grant interim relief, subject to true-up, so as not to
impair or delay, the right of the requesting carrier to install, maintain, and
remove its telecommunications equipment, or to provide telecommunications
services to a requesting tenant, during the pendency of the
proceeding.
(j) Administrative penalties. The provisions
set forth in §
22.246 of this title (relating to
Administrative Penalties) shall apply to any violation of this section whether
by a property owner, property manager, or telecommunications utility.