Right of Way Management and Section 253 of the Telecom Act

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Right of Way Management and Section 253 of the
Telecom Act

• Recent Developments and Next Steps
• Presented at the NATOA Annual Conference
• on September 19, 2008
• By
• Nancy L. Werner, Esq.

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OVERVIEW

• Section 253 impact on ROW management
• Hot Topic Relocation Issues
• Next Steps

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Section 253 and the ROW

• Section 253 impact on ROW management
• Preempts local regulations that may prohibit or
  have the effect of prohibiting the provision of
  telecommunications services
• Safe Harbor for ROW management in 253(c)
• Nothing in this Section 253 affects the
  authority of State or local government to manage
  the public rights-of-way or to require fair and
  reasonable compensation from telecommunications
  providers, on a competitively neutral and
  nondiscriminatory basis, for use of public
  rights-of-way on a nondiscriminatory basis, if
  the compensation required is publicly disclosed
  by such government.

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Section 253 and the ROW

• Response to Telecom Act Telecom Ordinances
• Challenged as a prohibition of services
• Auburn v. Qwest 9th Circuit (mis)interpreted
  Section 253(a), held that burdensome ordinances
  may prohibit services and are preempted
• Other Circuits followed the 9th Circuits lead
• 1st, 2nd and10th
• Applying our Auburn standard, federal district
  courts have invalidated local regulations in tens
  of cases across this nations towns and cities.

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Section 253 and the ROW

• Sprint v. County of San Diego Overrules Auburn
  in favor of 8th Circuit analysis
• A plaintiff suing a municipality under Section
  253(a) must show actual or effective prohibition,
  rather than the mere possibility of prohibition.
• Analysis of an effective prohibition
• Discretion not enough
• Detailed application and public hearings not
  enough
• What may be enough? Evidence the company could
  not provide services if it complied with the
  regulations
• Caveat Sprint made a facial challenge to a
  wireless zoning ordinance

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Hot Topic Relocation

• Verizon v. City of Sandy, filed May 2008
• Disclaimer Pending case analysis/summary for
  illustrative purposes only
• City of Sandy required aerial facilities to be
  relocated underground in the downtown core in
  conjunction with other City improvements
• Urban renewal effort
• Citys contractor to perform work, utilities to
  reimburse City for proportionate share of cost
• Verizon sued City under Section 253

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Hot Topic Relocation

• Verizon Allegations 3 Separate Violations
• Prohibits Verizon from providing service using
  its existing facilities in ROW
• Assumes 253 guarantees telecoms not only access
  to ROW, but a specific location in the ROW
• Cost of relocating may have the effect of
  prohibiting
• Is cost an effective prohibition after San
  Diego?
• Citys actions are discriminatory because they
  impose different costs on different entities
• Assumes discriminatory acts violate 253(a)

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Hot Topic Relocation

• Relocation Cases Under Section 253
• Southwestern Bell Telephone v. City of Houston,
  529 F.3d 257 (5th Cir. May 20, 2008) affirms
  dismissal of complaint because relocation
  ordinance protected by Section 253(c)
• No discussion of 253(a)
• Qwest Corporation v. Central Puget Sound Regional
  Transit Authority et al., No. 202-cv-00155-MJP
  (W. Dist. Wa. 2002) (unreported decision) grants
  summary judgment to cities and transit authority
  relocation is a valid exercise of police powers
  not preempted by 253(a) and in any case would be
  saved by 253(c)

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Hot Topic Relocation

• What about the Safe Harbor?
• Is differential treatment permitted?
• City of Houston requiring only facility owners
  to bear relocation costs is competitively neutral
  and nondiscriminatory
• Puget Sound Some telecommunications provider
  was going to be impacted more than another this
  vicissitude does not render the decision
  discriminatory.
• Cablevision of Boston,184 F.3d 88 (1st Cir.
  1999) As long as the City makes distinctions
  based on valid considerations, it cannot be said
  to have discriminated for purposes of Section
  253(c)
• Consider treatment of non-telecoms?

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Next Steps

• Review ROW Management Ordinances
• Do they exist?
• Telecom specific vs. utility neutral?
• Watch for Litigation on Effective Prohibition
• CTIA Petition Impact on ROW
• Applies to wireless, but
• Cites Alliance for Community Media v. FCC as
  affirming FCC authority to interpret the Telecom
  Act and establish time frames for local
  government decisions under the Telecom Act

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Questions?
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Contact Information

• Nancy Werner, Esq.
• Beery, Elsner Hammond LLP
• 1750 SW Harbor Way, Suite 380
• Portland, Oregon 97201-5106
• 503.226.7191
• nancy_at_gov-law.com