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OVERVIEW. Section 253 impact on ROW managementHot Topic: Relocation IssuesNext Steps. 2. Section 253 and the ROW. Section 253 impact on ROW managementPreempts local regulations that may prohibit or have the effect of prohibiting" the provision of telecommunications servicesSafe Harbor for RO
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1. 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.
2. OVERVIEW
Section 253 impact on ROW management
Hot Topic: Relocation Issues
Next Steps 2
3. 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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4. 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 Circuit’s lead
1st, 2nd and10th
“Applying our Auburn standard, federal district courts have invalidated local regulations in tens of cases across this nation’s towns and cities.” 4
5. 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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6. 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
City’s contractor to perform work, utilities to reimburse City for proportionate share of cost
Verizon sued City under Section 253 6
7. 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?
City’s actions are discriminatory because they impose different costs on different entities
Assumes “discriminatory” acts violate § 253(a)
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8. 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. 2:02-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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9. 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: “[S]ome 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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10. 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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11. Questions?
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12. Contact Information
Nancy Werner, Esq.
Beery, Elsner & Hammond LLP
1750 SW Harbor Way, Suite 380
Portland, Oregon 97201-5106
503.226.7191
nancy@gov-law.com
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