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What is Rights-of-Way?
Rights-of-way are a scarce and valuable resource that local
governments manage in trust for their constituents. Federal
law must not limit a local government's:
- Authority to manage the use and occupation of the rights-of-way;
or
- Ability to charge fair compensation for the use of these
public assets.
Existing Law and Challenges
In Section 253(c) of the Telecommunications Act, Congress
made clear its intent not to jeopardize local governments'
authority "to manage the public rights of way or to require
fair and reasonable compensation" for their use. Despite
the clear intent of the Congress, the industry, the FCC and
some courts have challenged local governments' authority over
their rights-of-way.
TeleCommUnity's Recommendations
Congress could restore local governments' rights-of -way rights
by:
- Clarifying that Section 253(c) of the Act is not limited
to fair and reasonable compensation to the recover of costs,
but can also include a fair market rental fee.
- Permitting states and local government to take a fresh
look at statewide access grants to rights-of-way bestowed
in an era of monopoly regulation.
- Clarifying that a cable modem service is a service subject
to Title VI of the Act.
For More Information
Property Rights, Federalism
the Public Rights-of-Way
Frederick E. Elrod III & Nicholas P. Miller
Seattle Law Article
April 14, 2004
Improving Rights-of-Way
Management Across Federal Lands: A Roadmap for Greater Broadband
Deployment
National Telecommunications and Information Administration
May
2004
Analysis of Nixon v. Missouri: Supreme Court Decision
Will Embolden Industry Efforts to Seek State Legislation to
Ban or Severly Limit Municipal Provisioning of Telecommunications
TeleCommUnity, April 6, 2004
HTML
A Narrative Walk through the Legislative History of Section
253
TeleCommUnity, October 2002
HTML | PDF
Myth Busters: the truth about rights-of-way management
and compensation
TeleCommUnity, October 2002
HTML | PDF
The Case for Rights-of-Way Management:
A collection of illustrative incidents arising from street
cuts
TeleCommUnity, October 2002
HTML | PDF
Valuation of the Public Rights-of-Way Asset
TeleCommUnity, March 2002
HTML | Word
| PDF
Rights of Way Management
American Public Works Association, October 2001
PDF
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Latest
News on
Rights of Way
NTIA Releases
Rights-of-Way Study
The National Telecommunications and Information Administration
has released "Improving Rights-of-Way Management Across
Federal Lands: A Roadmap for Greater Broadband Deployment."
The executive summary appears at first glance to embrace the
conclusions of the President's Council of Advisors on Science
and Technology (PCAST) regarding recovery of costs. PCAST
highlighted rights-of-way management as a critical component
of broadband deployment, saying the administration should
ensure that rights-of-way issues "are dealt with in a
balanced manner that facilitates prompt access for broadband
networks while preserving legitimate government interests
to protect public health, safety and welfare, and ensuring
that government entities are fairly compensated for the costs
of managing their rights-of-way and that disruption of rights-of-way
is minimal."
NTIA
report, May 7, 2004
White House Issues Broadband Rights-of-Way Memorandum:
Improving Rights-of-Way Management Across Federal Lands
to Spur Greater Broadband Deployment
April
26, 2004
Judge Gives Sprint Right To Sue County
Municipalities have suffered a blow in their fight to control
or limit wireless service distribution and tower placements
in their communities. In a published opinion, a district judge
in southern California held recently that carriers have the
right to sue and seek damages from counties that are trying
to prohibit service rollouts. Judge Judith Keep ruled that,
in the case involving Sprint and the county of San Diego,
Sprint has the right to sue the county and can move ahead
with its suit that alleges violations of the federal Civil
Rights Act. The county argued that Sprint had no right to
sue because wireless carriers were not protected under the
47 U.S.C Section 253 of the Telecommunications Act, which
prohibits states or local bodies from prohibiting a telecom
company from delivering services to a community. Wireless
Week, April 20, 2004
Supreme Court Deals Blow to Municipal Telecom Services
The U.S. Supreme Court has dealt a blow to municipalities
offering telecom services by leaving the door open for state
law to prohibit the practice. The case decided March 24 questions
the validity of a 1997 Missouri state law that forbids municipalities
from providing telecommunications services. On behalf of the
state's 63 municipal electric utilities, the Missouri Municipal
League asked the FCC to intervene and declare the statute
unlawful in light of the Telecom Act of 1996, which states
that no state or local government "may prohibit …
the ability of any entity to provide any interstate or intrastate
telecommunications service." Much of the Missouri case
centers around whether the phrase "any entity" includes
municipalities, given the natural advantage cities could enjoy
(regarding taxes, etc.) while competing with private telecom
firms and the precedent it could set in allowing the FCC to
interfere with a state’s sovereignty. Supreme Court
Justice John Paul Stevens argued that "any entity"
included cities because the Telecom Act clearly included utility
companies, and many utility companies are owned by municipalities,
a fact that Congress was probably aware of when it passed
the act. — Telephony
Online, March 24, 2004
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