Sunset Commission Proposal that DPS Simplify Many Private Security Licenses for Individuals and Entities that Do Not Provide Services

This is the third part of an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal to simplify private security licenses for individuals and entities that do not provide services. The Sunset Commission proposed that the following different licenses be unified under one license:

  • shareholders,
  • corporate officers,
  • managers,
  • supervisors, and
  • branch offices

Additionally, governmental subdivisions and private businesses with internal security departments currently have to hold licenses to have internal security. The Sunset Commission recommends that these companies simply have to register with DPS, rather than seek full licensure.

These changes would dramatically simplify and reduce the requirements for individuals and entities that do not provide service directly. We will follow the legislative session to see how these proposed changes are received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.

Sunset Commission Proposal that the Texas Legislature Remove the Private Security Board’s Rulemaking Authority

This is the second part of an ongoing series reviewing proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). As we discussed previously, DPS is being reviewed by the Texas Sunset Advisory Commission, which has prepared its report for the Texas Legislature in the 2019 legislative session.

In this post, we look at the proposal to remove the Private Security Board’s (PSB) rulemaking and administrative authority. The PSB is a part of DPS, but it is also a “quasi-independent” Board with direct authority to make rules. The Sunset Commission asserted that the PSB was “industry dominated” and stated that there had been conflicts between the PSB and DPS regarding which rules were appropriate for the private security industry. The Sunset Commission also stated that the PSB’s rulemaking process was more cumbersome and time consuming.

In addition to its rulemaking authority, the PSB currently reviews decisions to grant or deny licenses, such as for licensees with criminal backgrounds. As the Sunset Commission noted, “Private Security Board members exercised considerable discretion in questioning the evidence and respondents, and took action contrary to the administrative law judge’s findings and conclusions.” It is our experience that the PSB is very willing to overturn an administrative law judge’s decision to grant a license. However, if the PSB were made into an advisory board, they would lose the authority to deny licenses, and that authority would instead go to DPS’s Private Security Commission.

We will follow the legislative session to see how this proposed change is received by the Legislature and what changes are made. If you would like to read about the Sunset process, you can do so at the Sunset website.

The Texas Department of Public Safety and Sunset Review

This is the first part of an ongoing series in which we review some proposed changes to the Department of Public Safety (DPS) rules and law by the Texas Sunset Advisory Commission (Sunset Commission). The Sunset process in Texas involves a review of state agencies by the Sunset Commission and Texas Legislature. Approximately 140 Texas state agencies are subject to this process. An agency can expect to undergo Sunset review roughly every 12 years. Sunset starts with the basic question of whether or not the agency’s functions continue to be needed and continues with an analysis of how any necessary functions are performed—and how they should be improved.

DPS is currently under Sunset review, and the Sunset Commission has issued its report to the Legislature. Bills based upon this report will be considered by the Texas Legislature in the 2019 legislative session, which begins this coming January. Further entries in this series will address particular changes proposed by the Sunset Commission that are most likely to affect DPS licensees, such as those represented by FosterLaw. If you would like to read about the Sunset process, you can do so at the Sunset website.

FCC Releases its Anticipated Small Cell Order

On September 27, 2018, the FCC released its much-anticipated order governing small cell deployment. Most significantly, the order set “presumptively reasonable fees” and a presumptively reasonable “shot clock” governing application processing time.

Small Cell Fees

The FCC concluded that small wireless facilities right-of-way (“ROW”) access fees, fees for the use of government property in the ROW, and application fees must meet three requirements:

  • the fees must be a reasonable approximation of the state or local government’s costs,
  • only objectively reasonable costs may be factored into those fees, and
  • the fees may be no higher than the fees charged to similarly-situated competitors in similar situations.

The FCC stated that the following fees are presumptively reasonable:

  • $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole intended to support one or more Small Wireless Facilities; and
  • $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW. ¶79

Small Cell Shot Clock

With regards to the shot clock, the FCC determined that two review periods are acceptable: 60 days for review of an application for collocation of small wireless facilities using a preexisting structure and 90 days for review of an application for attachment of small wireless facilities using a new structure.  The FCC expressly stated that whether or not an application is “batched”—that is, whether the application includes requests for multiple facilities—has no impact on the shot clock. Thus, in the case of an application for 30 small cell facilities using a preexisting structure, the locality must review and act upon the entire application within 60 days—the time does not increase due to batching.

The Fees and Shot Clock Are Presumptive, Not Mandatory

Note that both the rules governing fees and governing the shot clock are presumptive rules. For example, in an action by a small cell provider to force a municipality to use the FCC’s presumptive fees, the municipality can argue that a local variance in costs justifies a higher cost, which could be upheld by a court.

Other Issues

The FCC’s order addresses other topics affecting small cell providers, such as local ordinances governing aesthetics, undergrounding rules, and minimum spacing rules. The FCC’s Order may also preempt existing state and local laws governing ROW use for small cell technology deployment.  Court challenges are expected from state and local governments.

National Verifier for Lifeline Hard Launch on November 2nd

The National Verifier for Lifeline service providers hard launches on November 2nd for Colorado, Mississippi, Montana, New Mexico, Utah, and Wyoming.  There was a soft launch on October 15th for Guam, Hawaii, Idaho, New Hampshire, North Dakota and South Dakota.  Here is a link for the USAC webpage that describes the national verifier:

https://www.usac.org/li/tools/national-verifier/default.aspx

Service providers in these states and territory can initiate eligibility checks using the National Verifier service provider portal or by sending paper forms and supporting eligibility documentation to the Lifeline Support Center. Service providers have the option to continue using their legacy eligibility checking procedures during the soft launch period.