GRANT OF PRIVILEGES TO TELECOMMUNICATIONS PROVIDERS TO PLACE TELECOMMUNICATIONS FACILITIES ACROSS, ALONG OR UNDER PUBLIC WAYS

Houston Code of Ordinances ch. 40, art. XIV

in effect

Houston Code of Ordinances § 40-331 Definitions.

Sec. 40-331. - Definitions. As used in this article, the following words and terms shall have the meanings provided below, unless the context of their usage clearly indicates another meaning: Cable service shall have the meaning defined for such term in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended. City engineer means the city engineer for the city or a designee thereof. CPI-U means the Consumer Price Index for All Urban Consumers (U.S. City Average, all items). Director means the director of the city's department of administration and regulatory affairs, or its successor department, including the director's designee. Director of Houston Public Works means the Director of the Houston Public Works, or its successor department, including the director's designee. Fee means the fees payable to the city by a telecommunications provider subject to this article. Network facilities means conduits, ducts, manholes, vaults, tanks, towers, wave guides, optic fiber, microwave, dishes, and any associated converters, electrical lines, communications lines, transmission lines, cables, wires, amplifiers, switches, utility equipment, or other such object, device or facilities, including attachments and encasements containing such facilities, whether underground or overhead that are designed, installed and constructed within the public way for the purpose of producing, receiving, amplifying, switching, transmitting or distributing audio, video, or other forms of electronic or optical signals to or from customers, subscribers or locations within the city limits of the city. Network facilities do not include such facilities to the extent that they are solely used to provide services under Chapter 283 of the Texas Local Government Code or services under Chapter 66 of the Utilities Code or respective successor laws. Network facilities franchise means an ordinance adopted pursuant to this article granting a telecommunications provider authority to use the public way as provided therein. Payment date means January 1 of each year during the term of a network facilities franchise. Public way means any public street right-of-way located in the city, including the entire area between the boundary lines of every right-of-way (including but not limited to roads, streets, alleys, highways, boulevards, bridges, tunnels or similar thoroughfares, and public utility easements), whether acquired by purchase, grant or dedication and acceptance by the city or by the public, that has been opened to the use of the public for purposes of vehicular travel; and shall include any designated state or federal highway or road or any designated county road under the administrative control of the city for maintenance, repair, or vehicular traffic control purposes. Services means telecommunication services provided through network facilities located wholly or partially in the public way without regard to technology. This definition does not include services provided under Chapter 283 of the Texas Local Government Code or under Chapter 66 of the Texas Utilities Code or any respective successor law. Private or commercial purposes means any purposes, other than public purposes. Telecommunications provider means a person who offers or provides services through network facilities located wholly or partially in the public way. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 08-52, § 74, 1-16-08, eff. 1-26-08; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010; Ord. No. 2018-11, §§ 49, 50, 1-10-2018)

Houston Code of Ordinances § 40-332 Declaration of policy.

Sec. 40-332. - Declaration of policy. (a) It shall be the policy of the city to grant to any person the right to lay, construct, operate, lease or make any use whatsoever of any network facility for private or commercial purposes, across, along, over, above or under any public way within the city in accordance with this article. Except as otherwise specifically provided, this article shall be administered by the director. (b) It is not the policy or intention of this article to prohibit, regulate, license or franchise the provision of any services within the city, and no provision of this article shall be so construed. Any terms or conditions contained in this article or any network facilities franchise relate to the right of a person to make use of the public way, not in limitation of any rights granted by the Public Utility Commission of Texas, the Federal Communications Commission, or respective successor agency. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Houston Code of Ordinances § 40-333 Rights to be granted by franchise.

Sec. 40-333. - Rights to be granted by franchise. As provided by sections 17 and 18 of article II of the City Charter, the rights to be granted under this article shall only be granted by a network facilities franchise in the manner, with the formalities, and subject to all of the applicable terms and conditions stated in those sections of the Charter. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Houston Code of Ordinances § 40-334 Network facilities required to be authorized.

Sec. 40-334. - Network facilities required to be authorized. (a) It shall be unlawful for any telecommunications provider to lay, construct, operate, offer for lease or make available for any use whatsoever any network facilities across, along, over, above, or under any public way within the limits of the city for any private or commercial purpose unless the right to do so has been granted to the telecommunications provider by a network facilities franchise in accordance with this article. (b) A telecommunications provider desiring a network facilities franchise shall make written application upon a form promulgated by the director on which shall be set forth a detailed description of existing or proposed network facilities, including the proposed number of linear feet and location thereof, the nature of the business or use to be transacted in the public way and such other information as may be required by the director, under the charter or any other city ordinance, sufficient to enable the director to determine the advisability of granting a network facilities franchise and to establish the applicant's capacity to meet its financial or other obligations thereunder. (c) A network facilities franchise shall authorize the specific use that the telecommunications provider shall be permitted to make of the public way. No facility shall be located, operated or used in any public way in a manner not expressly stated in the network facilities franchise. No network facilities franchise shall be construed to grant access to city land owned in fee simple, other than the public way, unless specifically included therein. No telecommunications provider shall make any use of a public way or allow any other person to make use of its network facilities located in a public way, unless stated in the network facilities franchise. A telecommunications provider shall not permit any other person to locate, operate or use the provider's network facilities in the public way without proof that the person holds authorization for the contemplated location, operation, or use under any required network facilities franchise duly granted pursuant to this section by the city and that the person holds a permit for the construction issued in accordance with this article. Notwithstanding the foregoing, a network facilities franchise is not required for any person engaging solely in resale of a telecommunications provider's services or the provision of service by unbundled network elements obtained from a telecommunications provider, provided that the applicable network facilities franchise covers the network facilities involved and the person does not own or operate any network facilities in the public way. (d) This article shall not apply to any telecommunications provider already specifically franchised by the city on the effective date of this ordinance; provided that upon the termination of such franchise, the telecommunications provider shall be subject to this article. Nothing in this article shall be construed to diminish the right or authority of the city to require any other user of the public way to secure appropriate city authorization for such use. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Houston Code of Ordinances § 40-335 Network facilities franchise fees.

Sec. 40-335. - Network facilities franchise fees. (a) The fee to be paid by a telecommunications provider subject to this article under any network facilities franchise shall be determined in accordance with applicable law in a competitively neutral manner by the director and set forth in a network facilities franchise approved by city council. (b) With each annual fee remittance, a telecommunications provider shall file a report with the city secretary and the director on a form promulgated by the director showing in detail the calculation of the fee for the preceding calendar year. An officer or authorized representative of the telecommunications provider shall certify that the information contained in the report is true and correct (to the best of the officer's or representative's knowledge and belief) after due inquiry. The report shall be treated as confidential information to the extent permitted by law. Upon written request by the director, a telecommunications provider shall verify the information contained in its report, and upon 30 days advance written notice, all non-customer specific records and other documents required for verification shall be subject to inspection by the director, expressly excluding any records, documents, or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. Sec. 2701, et seq. Upon receipt of any such request, the telecommunications provider shall promptly designate or identify the specific information proposed to be withheld and the law supporting or authorizing its non-disclosure. (c) Payment due date. Each telecommunications provider shall remit fees on an annual basis. Payment shall be made on or before the payment date. Fees that are not received by the city by the payment date shall incur interest beginning on the date the payment is due at the rate of twelve percent per annum, compounded daily. (d) Circumvention of fee prohibited. A telecommunications provider shall not underpay fees due to the city, circumvent payment of the fee for use of the public way or evade payment of fees by barter, transfer of rights, or any other means that results in undercounting of the telecommunications providers' linear feet of network facilities in the public way within the city. (e) Leased network facilities. (1) A telecommunications provider may lease its network facilities or otherwise make its network facilities available, in whole or in part, to its customers in the ordinary provision of services, if the telecommunications provider retains the responsibility for servicing and repairing the network facilities. This shall not be construed to provide any person, other than an affiliate, with authority to place any facilities in the public way without a valid franchise granted by the city, if one is required. The director shall determine whether a franchise is required in accordance with applicable law, and such determination shall be made as if the third party were the owner of the network facilities used by the third party, rather than the telecommunications provider. A telecommunications provider shall notify the city within 30 days of any lease of its network facilities. (2) A telecommunications provider's acceptance of a network facilities franchise constitutes its agreement to notify its customers or subscribers making sales of telecommunications services through the use of its network facilities of the possible need for a certificate from the Public Utility Commission of Texas, an FCC license, other state or federal authorization, or city franchise. A telecommunications provider shall notify its existing customers or subscribers of the requirement of this provision within 30 days of the acquisition of each customer or subscriber. (f) Fees paid pursuant to this section shall constitute the sole compensation to the city for a telecommunications provider's use of the public way. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Houston Code of Ordinances § 40-336 Conditions of network facilities franchise.

Sec. 40-336. - Conditions of network facilities franchise. A network facilities franchise that is granted to any telecommunications provider under this article shall incorporate the terms of this article and be further subject to the following specific provisions, whether or not such terms are specifically included in such network facilities franchise: (1) Enforcement. The city attorney, or the city attorney's designee, shall have the right to enforce all legal rights and obligations under the network facilities franchise without further authorization. The telecommunications provider shall provide the city access to all documents and records the city attorney deems reasonably necessary to assist in determining the telecommunications provider's compliance with the network facilities franchise. (2) Interference with public use prohibited. The obligation and duty of a telecommunications provider to lay, construct, operate, lease, maintain, repair and replace the network facilities shall not interfere with the public use of the public way. Insofar as it is practical to do so, the telecommunications provider shall use existing network facilities in the provision of the services. The telecommunications provider shall provide and maintain current any information reasonably related to location or operation of the network facilities or services determined to be necessary by the city engineer or the director. The telecommunications provider shall maintain the network facilities in good order and condition, subject to ordinary wear and tear. (3) Permit fees included in fee. A portion of the fee due to the city under a network facilities franchise constitutes payment to the city for the cost of permits and inspections, or other similar approvals or submissions that a telecommunications provider is required to obtain for its work in the public way under a network facilities franchise. As a result, no additional fees shall be charged to the telecommunications provider. This subsection shall not be construed to waive any requirement relating to permitting, inspections or similar approvals or submissions other than the payment of separate fees. (4) Permitting and plan approval. a. New construction permit. Before commencing any work in the public way other than routine maintenance or emergency work (as described in subsections b. and c. below), a telecommunications provider shall apply for and obtain a new construction permit. The application shall include a written work description, including scale drawings with plan and profile, showing the network facilities' location (or proposed location) and estimated depth of the network facilities (existing and proposed) in the immediate area of the proposed new construction. Such drawings and specifications shall be prepared, executed and sealed by a registered professional engineer, as may be required by the Texas Engineering Practice Act or by the city engineer. Such drawings and specifications will be reviewed by the city engineer and any comments will be provided to the telecommunications provider as soon as practicable. The telecommunications provider shall make any changes to the drawings and specifications requested by the city engineer. b. Routine maintenance. The Director of Houston Public Works may promulgate rules and procedures for routine maintenance of existing network facilities located in the public way, including but not limited to required notices by the telecommunications provider that the telecommunications provider shall provide, standards for street and curb repairs, and inspection of facilities and street repairs necessitated by such maintenance. Routine maintenance or repair performed on existing network facilities located in the public way shall be performed in a manner consistent with city standards promulgated by the Director of Houston Public Works. c. Emergency repairs. Emergency repairs requiring immediate work may be performed by the telecommunications provider and notice shall be given in writing to the Director of Houston Public Works within 24 hours following the commencement of such repairs. The notice shall state the nature of the emergency, the repairs required and an estimate of the time necessary to complete the repairs. The telecommunications provider shall apply for all required approvals, including those required under article XVII of this chapter as soon as reasonably practicable. Any work performed that is not consistent with city standards shall be corrected upon notice from the Director of Houston Public Works. d. Payment of fees required. The city is not required to grant any permit or approval to the telecommunications provider unless and until all fees due and payable pursuant to the network facilities franchise have been paid in full. e. Other licenses and fees. The telecommunications provider shall obtain and pay the cost of all licenses, permits, and certificates required by any statute, ordinance, rule or regulation of any state or federal regulatory body having jurisdiction over the conduct of its operations hereunder. The telecommunications provider shall give notice to the director of any revocation or failure to obtain any such license, permit or certificate affecting its performance hereunder within 15 days of such revocation or of the day upon which the telecommunications provider received actual or constructive notice of its failure to obtain such license, permit or certificate. f. City engineer's procedures. Notwithstanding the above, the city engineer may promulgate procedures, applicable to all similarly situated telecommunications providers, regarding pre-approval of work in the public way by a telecommunications provider in circumstances that do not require detailed review of the proposed work. (5) Work standards. All work in the public way shall be performed in accordance with the city's Standard Construction Specifications and Standard Construction Details, as such may be amended from time to time, and shall be subject to the regulation, control and direction of the Director of Houston Public Works. All work done in connection with the laying, construction, operation, maintenance, repair and replacement of the network facilities shall be in compliance with all applicable laws, ordinances, rules and regulations of city, the applicable county, the state, and the United States. (6) Work in the public way. Any work that constitutes an obstruction of a street for which a permit is required under section 40-362 of this Code shall only be performed in accordance with a permit issued under article XVII of this chapter. (7) Restoration. A telecommunications provider shall repair, clean up and restore the public way disturbed or affected during the maintenance, construction, repair, replacement or removal of the network facilities in accordance with article V of this chapter. (8) Relocation or removal. A telecommunications provider may be required to relocate its network facilities in any public way in accordance with article XVIII of this chapter. (9) Subsequent rules and regulations. The city council or the Director of Houston Public Works may make such other reasonable rules and regulations for the placement and manner of the network facilities as they may deem appropriate for the protection of the public and the public way and to avoid unreasonable interference with other uses or contemplated uses of the public way. Without limitation of the above, the city council may amend the rules or regulations to require that all network facilities constructed after the effective date of such amended rules be placed underground. (10) Inspections. The city engineer may perform inspections, upon 24 hour written notice from the city, of any network facilities located in the public way from time to time as deemed appropriate. A telecommunications provider may have a representative present during such inspection. (11) Abandonment of obsolete network facilities. Upon request by the city engineer, a telecommunications provider shall remove aerial facilities and/or facilities in conduits when such facilities are obsolete and no longer in service. When a telecommunications provider removes or abandons permanent structures in the public way, the telecommunications provider shall notify the city engineer in writing of such removal or abandonment and shall file with the city engineer the location and description of each facility removed or abandoned. The city engineer may additionally direct remedial measures as the city engineer may determine necessary for the public safety and the integrity of the public way. (12) Bonding. The telecommunications provider shall comply with all applicable requirements relating to the provision of bonds or other security to the city in connection with its work in the public way. (13) Tree trimming. A telecommunications provider, its contractors and agents may trim trees that are upon and overhanging the public way and public places of the city so as to prevent the branches of such trees from coming in contact with the telecommunications provider's fiber or cables. At the option of the city, said trimming shall be done under the supervision and direction of the city or of any city official to whom said duties have been or may be delegated. (14) Indemnification and insurance. The network facilities franchise shall contain indemnity and insurance provisions in a form acceptable to the city attorney. (15) Default and termination; valuation. A network facilities franchise shall contain provisions relating to default and termination. For purposes of compliance with article II, section 17 of the charter of the city, unless the network facilities franchise provides otherwise, there shall be no requirement that the network facilities be purchased by the city upon termination of a network facilities franchise. (16) Other terms and conditions. The network facilities franchise may contain such other terms and conditions as the director and the city attorney may prescribe and city council may approve that are not inconsistent with the terms of this article. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 02-974, § 8, 10-30-02; Ord. No. 04-498, § 6, 5-26-04; Ord. No. 08-52, § 75, 1-16-08, eff. 1-26-08; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010; Ord. No. 2018-11, § 49, 1-10-2018)

Houston Code of Ordinances § 40-337 Penalty for unauthorized use of the public way.

Sec. 40-337. - Penalty for unauthorized use of the public way. It shall be unlawful to make use of the public ways in violation of the terms of this article. Without limitation of other remedies available to the city, persons making use of the public way in violation of this article, or otherwise without valid consent of the city, shall be liable for all fees authorized by this article dating back to the inception of such use. (Ord. No. 98-593, § 1, 7-22-98; Ord. No. 2010-831, § 2(Exh. A), 10-27-2010)

Source: City of Houston, Code of Ordinances and City Charter (Municode Library, library.municode.com)URL: https://library.municode.com/tx/houston/codes/code_of_ordinances?nodeId=COOR_CH40STSI_ARTXIVGRPRTEPRPLTEFAACALUNPUWAFetched: 10/26/2026