290 likes | 449 Views
OVERVIEW. Local Government's InterestsWho is Using PROWThe Source of Local AuthorityFederal Law Dispute. Local Government Interests. Unfunded MandatesProperty RightsPlanning and Management of InfrastructurePublic Benefits for Public Resources. Unfunded Mandates--cost transfers from companies
E N D
1. Legal and Regulatory Issues in PROW Management Nicholas P. Miller
University of Wisconsin, Madison
March 4, 2002
www.millervaneaton.com
2. OVERVIEW Local Government’s Interests
Who is Using PROW
The Source of Local Authority
Federal Law Dispute
3. Local Government Interests Unfunded Mandates
Property Rights
Planning and Management of Infrastructure
Public Benefits for Public Resources
4. Unfunded Mandates--cost transfers from companies to taxpayers accelerated deterioration of infrastructure
additional costs imposed on other PROW users
Dallas and Southfield floods
Abandoned bankrupt facilities
DC road disruption
public safety and disaster recovery costs
5. Property rights in ROW PROW is not a “free good”
must be allocated for “highest and best use”
6. Planning and Management of Infrastructure “first come-first served” doesn’t work
Growth and Limited Space
Aesthetics and Congested Facilities
GIS requirements
7. Public Benefits for Public Resources Taxpayer benefit
fair compensation for use of public resource
Community benefit
smart growth
in-kind resources to address
digital divide
universal service
government efficiency
8. Who is Using Rights of Way? CATV-- 5% fees, normal permitting
ILECs-- usually a fee or user tax, normal permitting
CLECs --
“don’t charge us more than ILEC”
speed to market
costs of construction
risks of construction
9. Others Using Rights of Way? Dark fiber providers
Conduit providers
“Pass-through”/”spot” users
Combo companies/consortia
10. What is a Franchise? A Grant of a Special Privilege
A Revocable Personal License to Use PROW
Possibly a Privilege to Offer a Service
Broad Confusion Between These Two
11. State Property Law Controls Same Principles as other Property
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
12. 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
15. 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 and price of use
Exception:
prior State grant of property to company
recent State preemption of local governments
16. 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)
17. Companies Response (Continued) 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
18. Federal Law --47 USC 253(c ); 332(c )(7)) Right to Charge Rent
Right to Manage Behavior in ROW
Right to zone and site antennas and towers
19. SEC. 253. [47 U.S.C. 253] REMOVAL OF BARRIERS TO ENTRY. (a) In General.--No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
(c) State and Local Government Authority.--Nothing in this section affects the authority of a 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.
20. Every Word and Phrase in Sec 253 Still Disputed Auburn v. QWEST--Not “The Last Word”
Qwest v. Portland--Gross revenues OK
21. Title II (Sec. 253) Definitions What is a “prohibition”?
Auburn: combination of requirements
Coral Springs: a factual question
Cases that Permit Exclusion
Omnipoint v. Port Authority of NY (D.Ct. NY): local gov’t can require new entrant to conform to pre-existing standards
Cablevision v. Boston (2d Cir, 2000): local gov’t can impose different terms on new entrant
22. Definitions (con’t) What is “use”?
Dallas II: only physical occupancy
Dearborn: anticipatory and inchoate uses
23. Definitions (con’t) What is “management”?
Troy (FCC): specific list, community burden to prove
Coral Springs: a factual question, safe-harbor analysis
24. Definitions (con’t) What is “fair & reasonable compensation”
Dallas II: Allocated Direct and Indirect costs
Prince Georges I: Only Cost of Regulation
Dearborn: reasonably related to value conveyed
25. Fundamental PROW Dispute is “franchise” a regulatory relationship?
a property interest?
26. Case outcomesdetermined by this question Dearborn; Cablevision of Boston: right to occupy PROW is property interest, subject to state property law.
Auburn; Prince Georges II; Chattanooga: PROW occupancy is a regulatory interest, subject to state and federal regulatory exclusion.
Coral Springs: If govt action prohibits, OK if related to property interests
27. AD HOC AGREEMENTSShort 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
28. AN ORDINANCEShort 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
29. CONCLUSION Management should not be the fight
Every Provider becomes an Incumbent
Huge private investment
Compensation is the issue--Is PROW a “free good”?
Short-sighted by industry lobbyists
Long-term taxpayer costs
Electeds Must Be Told the Taxpayers’ Interest