     OFFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

     JOHN     CORNYN




                                                  January 12,200l



The Honorable J.E. “Buster” Brown                           Opinion No. JC-033 1
Chair, Committee on Natural Resources
Texas State Senate                                          Re: Whether chapter 283 of the Local Govern-
P.O. Box 12068                                              ment Code requires a municipality to apply a
Austin, Texas 7871 l-2068                                   certificated    telecommunications   provider
                                                            excavation permit ordinance to entities other
                                                            than certificated telecommunication  providers
                                                            (RQ-0277-JC)


Dear Senator Brown:

          Chapter 283 of the Local Government Code governs management ofmunicipal public right-
of-way use by certificated telecommunications       providers. It allows a municipality to require a
certificated telecommunications    provider to obtain a construction permit before locating facilities
in or on a public right-of-way, but directs that “[tlhe terms of the permit shall be consistent with
construction permits issued to other persons excavating in a public right-of-way.” TEX. Lot. GOV’T
CODE ANN. 5 283.056(b) (Vernon Supp. 2000). The statute further provides that a “municipality
may exercise those police power-based regulations in the management of a public right-of-way that
apply to all persons within the municipality.” Id. 5 283.056(c). You ask us whether these provisions
require a municipality to apply a certificated telecommunications         provider excavation permit
ordinance to entities other than certificated telecommunications      providers. We conclude in the
negative. We also conclude that these provisions in chapter 283 do not require identical permits or
regulations for certificated telecommunication    providers and all other entities that excavate in the
municipal rights-of-way.

          Chapter 283 of the Local Government Code was enacted to encourage competition among
telecommunication     providers by ensuring access to municipal rights-of-way in a reasonable,
nondiscriminatory,   and competitively neutral manner. See id. 5 283.001. It does this by imposing
a statewide, uniform compensation scheme for the use of municipal public rights-of-way by
certificated telecommunication    providers’ (“CTP” or “CTPs”) and generally restricting municipal
regulation of that use to that reasonably necessary to ensure the health, safety, and welfare of the



         ‘A “certificated telecommunications provider”is “a person who has been issued a certificate of convenience
and necessity, certificate of operating authority, or service provider certificate of operating authority by the [Public
Utility Commission] to offer local exchange telephone service.” TEX.LK. GOV’T          CODE ANN.$ 283.002(2) (Vernon
supp. 2000).
The Honorable       J.E. “Buster” Brown   - Page 2        (X-0331)




public. See id. $283.001(b),(c); seegenerally id. $5 283.001-,058 (chapter 283, Local Government
Code). A CTP is required to compensate a municipality for the use of a public right-of-way only
in the amount determined by the Public Utility Commission in accordance with the statute. See id.
5 283.051(a); see also id. 5 283.056(a)-(f) (“Prohibition on Other Fees and Charges”). A CTP that
complies with the requirements of chapter 283 “may erect poles or construct conduit, cable,
switches      and excavate within a public right-of-way to provide telecommunications    service,” id.
9 283.052(a)(l), and is not subject to any municipal franchise requirements. See id. 5 283,052(a)(2).

          A municipality may require a construction permit for locating telecommunications       service
facilities in the public rights-of-way, but the municipality is constrained in the terms it may impose.
With respect to construction permits, section 283.056 provides in pertinent part:

                          (b) Notwithstanding any other law or any other provision of
                 this chapter, a municipality may require the issuance of a construction
                 permit without cost to a certificated telecommunications       provider
                 locating facilities in or on public rights-of-way           within the
                 municipality.    The terms of the permit shall be consistent with
                 construction permits issued to other persons excavating in a public
                 right-of-way.

                           (c) A municipality may exercise those police power-based
                 regulations in the management of a public right-of-way that apply to
                 all persons within the municipality.    A municipality may exercise
                 police power-based regulations in the management of the activities of
                 certificated telecommunications   providers within a public right-of-
                 way only to the extent that they are reasonably necessary to protect
                 the health, safety, and welfare of the public.

Id. 5 283.056(b),    (c) (emphasis added).

         It has been suggested, you tell us, that subsections (b) and(c) require municipalities to issue
identical permits to CTPs and to all other entities that use municipal rights-of-way regardless of the
nature of the entity utilizing the right-of-way.2 You specifically ask us:

                 Does Chapter 283       require a municipality that adopts an ordinance
                 requiring a permit for excavation in the public right-of-way by a
                 certified telecommunications     provider, to apply the ordinance to
                 entities other than those regulated by Chapter 283, such as a utility
                 company that has a franchise with the municipality relating to the



        ‘SeeLetter from HonorableJ. E. “Buster”Brown, Chair,Committee on NaturalResources,Texas State Senate,
to Honorable John Comyn, Texas Attorney General at 1 (Aug. 17,200O)(on tile with Opinion Committee) [hereinafter
Request Letter].
The Honorable J.E. “Buster” Brown            - Page 3          (JC-0331)




                  utility’s use of the right-of-way       or to the municipality’s      own water
                  and sewer operations?

Request Letter, note 2, at 2. You do not provide a copy of such ordinance or describe its contents.
Based on your concern with subsections (b) and (c), we assume that such an ordinance not only
requires a CTP to obtain an excavation permit, but also sets forth conditions that apply to CTP
excavations in a public right-of-way within a municipality.3

        We conclude that chapter 283 does not require a municipality to apply a CTP excavation
permit ordinance to entities other than CTPs. No provision in chapter 283 expressly so requires.
Nor does chapter 283 implicitly require such application. All the briefs submitted to this office agree
that chapter 283 does not apply to entities other than CTPS.~

         The statute by its terms applies “only to municipal regulations and fees imposed on and
collected from certificated telecommunications    providers.” TEX. Lot. GOV’TCODEANN. 5 283.004
(Vernon Supp. 2000). The stated policy of the legislation is to “encourage competition in the
provision of telecommunications     services” and to allow municipalities to be fairly compensated for
the use of municipal rights-of-way while retaining the authority to manage those rights-of-way to
“ensure the health, safety, and welfare ofthe public.” Id. 4 283.001(a), (b). Its stated purpose is to
establish an administratively simple, competitively neutral, and uniform method for compensating
municipalities for the use of rights-of-way by CTPs. See id. 5 283.001(c).

       Consistent with its stated scope, policy, and purpose, the substance ofchapter 283 deals only
with CTPs. Seegenerally id. $5 283.001-.058 (chapter 283, Local Government Code). It provides


         ‘Weunderstand thatpolicepower-basedregulations as appliedtomanagement ofpublicrights-of-waytypically
include provisions regarding restrictions on excavations,proceduresfor cutting streets,procedures for detouring traffic,
procedures for erecting barricades,requirements for street and right-of-wayrestoration, requirementsfor tree-trimming
around overhead lines, inspection, and other similar provisions in addition to the requirement of an excavation permit.
See Brief from Mr. Monte Akers, Director of Legal Services,Texas Municipal League, to Ms. Susan D. Gusky, Chair,
Opinion Committee, Office of the Attorney General, at 4-5 (Oct.6,200O)(on tile with Opinion Committee) [hereinafter
TML BriefJ.

          ‘See id.; Brief from Honorable Steven D. Wolens, Chair, State Affairs Committee, Texas State House of
Representatives,to Honorable John Comyn, Texas Attorney General(Sept. 29,200O);Brief from Deborah F. McAbee,
Senior Assistant City Attorney, City of Houston, to Honorable John Comyn, Texas Attorney General (Oct.
6, 2000); Brief on behalf of Reliant Energy, Inc., from C. Brian Cassidy, Locke, Liddell & Sapp, L.L.P., to Honorable
John Comyn, Texas Attorney General (Oct. 9,200O);Briefonbehalfof SouthwesternBell Telephone Company, AT&T
Communications ofTexas, L.P., CaprockTelecommunications Corp., E-Spire Communications, Inc., Global Crossing
T&management, Inc., Metromedia Fiber NehworkServices, Inc., Allegiance Telecom, Inc., Intermedia Communica-
tions, Inc., Time Warner T&corn of Texas, L.P., Verizon Communications, and Texas Telephone Ass’n, from David
F. Brown, Attorney, MichaelJewell,Attorney, Diane M. Barlow,Attorney, Thomas A. Clarke, Assistant Vice President
of Govemmental Affairs, Verizon Communications, and Brook Bennett Brown, Attorney, McGinnis, Lochridge &
Kilgore, L.P., to Honorable John Comyn, Texas Attorney General(Oct. 20,200O);Brief from W.D. Arnold, President,
Texas Cable &Telecommunications Ass’& to Honorable John Comyn, Texas Attorney General (Oct. 20,200O) (all
briefs on file with Opinion Committee).
The Honorable      J.E. “Buster” Brown         - Page 4         (JC-0331)




that a CTP must pay a municipality only the fee set out in the statute as compensation for the use of
public rights-of-way, see id. 3 283.05 l(a); that a CTP complying with the statute “may erect poles
or construct conduit, cable, switches, and related appurtenances and facilities and excavate within
a public right-of-way to provide telecommunications     service,” id. 5 283.052(a)(l); that a CTP which
complies with chapter 283 “is not subject to municipal franchise requirements,” id. § 283,052(a)(2);
see also id. 5 283.054(a) (dealing with existing CTP franchise agreements or ordinances); and for
CTP indemnification of amunicipality against any claims, costs, or damages resulting from a CTP’s
actions or omissions while installing or maintaining facilities in the public rights-of-way, see id.
5 283.057. In short, chapter 283 contains detailed and comprehensive provisions governing only
CTPs. It does not govern other entities. Ifthe legislature had intended chapter 283 to apply to other
entities’ use of the public rights-of-way, it would have so expressly provided.

        The more significant question raised by your request is whether subsections (b) and (c) of
section 283.056 require identical permits or regulations for CTPs and all other entities that excavate
in the municipal rights-of-way.   We conclude in the negative.

         Section 283.056(b) requires the terms of a CTP excavation permit to be “consistent” with
construction permits issued to other persons excavating in a public right-of-way.             See id.
3 283.056(b). While not defined in chapter 283, the ordinary meaning of the term “consistent,” in
this context, is “[algreeing or according in substance or form; congruous, compatible.” III OXFORD
ENGLISH DICTIONARY 773 (2d ed. 1989); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865
S.W.2d 937, 939 (Tex. 1993) (stating that when legislature fails to define a word, it is to be given
its ordinary meaning); see also TEX. GOV’T CODE ANN. 5 311 ,011 (Vernon 1998) (directing that
words and phrases shall be read in context and construed according to rules of grammar and common
usage). Thus the CTP excavation permit terms must be congruent to or compatible with those in
other municipal right-of-way excavation permits; they do not have to be identical. Construed in light
of the stated purpose and policy of chapter 283 to provide a competitively               neutral and
nondiscriminatory     method for regulating CTPs’ use of municipal rights-of-way, see TEX. Lot.
GOV’T CODE ANN. § 283.001 (Vernon Supp. 2000), we believe section 283.056(b) simply requires
a city to treat CTPs excavating in the public rights-of-way as the city would treat other entities
undertaking similar excavations in the city’s rights-of-way.

          In a similar vein, section 283.056(c) authorizes a municipality to exercise those police power-
based regulations’ in the management of a public right-of-way that apply to all persons within the
municipality. See id. 5 283.056(c). Subsection (c)viewed in isolation could be read to allow a city
to impose regulations on CTPs only ifthey are also imposed on other entities. But under established
principles of statutory construction, that provision’s meaning cannot be determined by looking at
it in isolation and outside the context ofthe remainder ofthe statute. See BridgestonelFirestone,     Inc.



         ‘Police power regulations are regulations reasonably necessaryto protect the health, safety, and welfare of the
public. See, eg., City ofCoUege Station V. Turtle Rock Cm-p., 680 S.W.2d 802, 804 (Tex. 1984) (city may enact
reasonable regulations to promok health, safety, and general welfare of its people in valid exercise of its police power);
see generally 52 TEX.JUR.3~ Municipal Corporations 5 305 (1999).
The Honorable   J.E. “Buster” Brown     - Page 5      (JC-0331)




v. Glyn-Jones, 878 S.W.2d 132,133 (Tex. 1994); Sharp v. House oflloyd, Inc., 815 S.W.2d 245,
249 (Tex. 1991); Sayre v. Mullins, 681 S.W.2d 25,27 (Tex. 1984); see also Barr v. Bernhard, 562
S.W.2d 844, 849 (Tex. 1978) (court must look to entire act, not just one provision, to determine
legislative intent; one provision cannot be given meaning out of harmony or inconsistent with other
provisions even though susceptible of such construction standing alone). We must consider the
entire statute, its nature and object, and the consequences that would follow from a proposed
construction. SeeBridgestone/Firestone,    Inc., 878 S.W.2d at 133; Sharp, 815 S.W.2d at 249; Sayre,
681 S.W.2d at 27; see also TEX. GOV’T CODE ANN. § 311.023 (Vernon 1998) (providing that in
construing statute, court may consider legislative objective, circumstances under which statute was
enacted, legislative history, and consequences of particular construction).

         Looking at the statute as a whole, the more reasonable reading is that it authorizes a city to
impose on CTPs’ excavations only those regulations that are necessary to protect the health, safety,
and welfare of the public and provided that it does so in a nondiscriminatory        and competitively
neutral manner.      This construction comports with the legislative objective set forth in other
provisions of subsection (c) and chapter 283 generally: to allow municipalities to exercise their
police powers as reasonably necessary for the protection of the public in the management of public
right-of-way use by CTPs ~ and only CTPs - in a nondiscriminatory             and competitively neutral
manner. See, e.g., TEX. Lot. GOV’T CODE ANN. 5 283.001(b)(l) (Vernon Supp. 2000) (providing
that state policy is that cities retain authority to manage public right-of-way within municipality to
ensure health, safety, and welfare of public), (c) (purpose of chapter 283 to provide competitively
neutral and nondiscriminatory       method for regulating CTPs’ use of municipal rights-of-way); id.
5 283.004 (providing that application of chapter limited to municipal regulations and fees imposed
on and collected from CTPs); id. 5 283.056(c) (stating that city may exercise police power-based
regulations only to extent reasonably necessary to protect the health, safety, and welfare of public
and that any such regulation must be competitively neutral and may not be unreasonable or
discriminatory).

         In contrast, a construction of section 283.056(c) that allowed a city to impose only those
regulations that actually apply to all persons in the city would undermine the legislative objective
because it would require either discrimination in favor of a CTP to the detriment of the public or
extension ofthe regulatory effect ofchapter 283 to entities other than CTPs. Under this construction
of subsection (c), a city could apply only the most general regulations - those imposed on all
entities ~ to CTP excavations irrespective of what is reasonably necessary to protect the health,
safety, and welfare ofthe public in the circumstances. Alternatively, a city would have to apply the
CTP excavation regulations necessary to protect the health, safety, and welfare of the public with
respect to excavations for telecommunications    purposes to all other types of excavations irrespective
of whether the CTP regulations are relevant to those excavation activities. We do not believe that
the legislature intended such results. See TEX. GOV’T CODE ANN. 5 311.021(3) (Vernon 1998)
(providing that in enacting statute, it is presumed that just and reasonable result is intended); id.
5 311.021(5) (providing that in enacting statute, it is presumed that public interest is favored over
any private interest); see also Bridgestone/Firestone,       Inc., 878 S.W.2d at 135 (“[IIn some
The Honorable J.E. “Buster” Brown      - Page 6       (JC-0331)




circumstances, words, no matter how plain, will not be construed to cause a result the Legislature
almost certainly could not have intended.“) (Hecht, .J. concurring).

                                        SUMMARY

                       Chapter 283 of the Local Government Code does not require
               a municipality to apply a certificated telecommunications        provider
               excavation permit ordinance to entities other than certificated
               telecommunications    providers. Additionally, chapter 283 does not
               require    identical   permits    or regulations        for certificated
               telecommunicationproviders      and all other entities that excavateinthe
               municipal rights-of-way.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
