LOCAL GOVERNMENT AUTHORITY OVER COMMUNICATIONS NETWORKS IN THE PUBLIC RIGHTSOFWAY

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LOCAL GOVERNMENT AUTHORITY OVER COMMUNICATIONS
NETWORKS IN THE PUBLIC RIGHTS-OF-WAY

• Nicholas P. Miller
• Miller Van Eaton, PLLC
• NATOA Regional Seminar
• April/May, 2000
• www.millervaneaton.com

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OVERVIEW

• Types of Users of Rights of Way
• Types of Local Grants to Use Rights of Way
• The Continued Evolution of Federal Law
• Some Issues Challenging Local Governments

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Federal Law Anticipated

• CATV only companies.
• Telecommunications only companies.
• OVS only companies
• Private networks

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Who Else is Using Rights of Way?

• Non-telecommunications/non cable cos.
• Dark fiber providers
• Conduit providers
• Pass-through/spot users
• Combo companies/consortia

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Local Governments Response

• Government Property
• normal state property law controls right to use
• local governments own or control right to use
• local governments can set terms of rent
• Exception
• prior State grant of property to company
• recent State reclaim of property from local
  governments

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State Property Law

• Company must acquire a property right (right to
  Use) from the owner of the property
• Estate in Fee/Lease/Easement/ Franchise/or
  License (explicit or implicit) required
• Fifth Amendment Federal Law may NOT Preempt
  State Property Law

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Federal Law Preserves--(47 USC 253(c)

• right to charge Rent
• right to manage behavior in ROW

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Companies Response

• Telecomm Regulation in the Guise of Property
  Rights
• State PUCs, not Locals, Retain Authority to
  Regulate--253(b)
• Local regulation preempted--253(a)
• Taxation in the Guise of Rent
• No New Property Interest
• States/Locals gave RBOCs easements long ago
• new companies have right to partition the same
  easements
• e.g. 47 USC 224
• Compensation limited to impact fees

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If State Law Controls

• State legislation controls
• Usual rule cities are creatures of state and
  state can pull back
• property
• police power authority
• Local Government may have independent right of
  ownership

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Every Word and Phrase in Sec 253 Still Disputed

• Auburn v. QWEST
• poorly reasoned
• no citation of TCG v. Dearborn
• no discussion of property interests of localities
• no recognition of information required to manage
  PROW
• e.g. Are drivers licenses freely transferable?
• No recognition of costs to taxpayers

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What is a PROHIBITION?

• Is control over entry permitted at all?
• Most courts yes
• Several courts limited discretion to deny
  entry
• E.G. Wireless Services and Networks
• NO authority over service offerings
• Limited authority to restrict use of PROW
• Primeco v. Chicago (Ill. S. Ct.) Mar 30, 2001
• Auburn v. QWEST (9th Cir.) May, 2001

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Cases that Permit Exclusion

• Omnipoint v. Port Authority of NY (D.Ct. NY)
  local govt can require new entrant to conform to
  pre-existing standards
• Cablevision v. Boston (2d Cir, 2000) local govt
  can impose different terms on new entrant

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What is use of the ROW?

• Austin/Dallas Only new physical occupation in
  specific locations
• Dallas v. FCC (5th Cir) Any inchoate burden on
  the property warrants rent
• Dearborn (6th Cir) Rent can be tied to gross
  revenues
• FCC in MinnDOT no unfair competitive advantage
  (?)

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What is permitted Management?

• TCG v. White Plains (12/20/00)/Coral Springs No
  duplication of State PUC regulation
• Dallas/Prince Georges Same rules must apply to
  all
• Auburn only the FCC list in Troy decision

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What is Fair and Reasonable Compensation?
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NOT limited to recovery of costs and Gross
revenues OK

• TCG v. Dearborn (6th Cir)
• Omnipoint Communications Inc. v. Port Authority
  of New York (1st Cir)
• Bell South v. Orangeburg (S.Car. S. Ct.)
• White Plains

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IS limited to recovery of impact costs

• Bell Atlantic v. Prince George's County, Md.
  (Fed. D.Ct. of Md--since vacated)
• ATT v. City of Dallas (Fed. D. Ct. of Tx)
• ATT v. City of Austin (Fed. D. Ct. of Tx)
• PECO Energy Co. v. Haverford (Fed. D. Ct. of Pa)
• Grant County NM v. USWest (unreported 6/00)

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Court Cases turn on state property and state
regulatory law

• Dearborn
• Prince Georges County, Md
• Coral Springs, Fl
• White Plains
• Denver v. Qwest (3/13/01), Colo S. Ct.
• Auburn

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AD HOC AGREEMENTS --short term relief, long term
pain

• avoids immediate litigation
• risks least restrictive terms in each agreement
  will apply to all
• risks granting free and unlimited property
  interests
• imposes contractual limits on future regulations
• most vulnerable to claims of discrimination

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A RIGHT-0F-WAY ORDINANCE--short term pain, long
term control

• Companies Uniformly Join to Intimidate
• Tell the Courts What You are Trying to Do
• Define
• Scope of Your Authority to Control Entry
• Right-of-Way Management Authority
• Compensation Mechanisms
• Enforcement Authority

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CONCLUSION

• Management SHOULD NOT be the fight
• Every Provider becomes an Incumbent
• Huge private investment
• Compensation Fight is Real
• Short-sighted by industry lobbyists
• Long-term taxpayer costs
• Electeds Must Be Told the Taxpayers Interest