Cohen, Dan. "The Telecommunications Explosion: Protect your Community Through a Strong Right-of-Way Ordinance." Public Management. 2001 Sep; v83( 8):21.

Keywords: right-of-ways, ROW, community, broadband

Abstract:

The dramatic growth in telecommunications is creating new challenges for local government. In order to beat the competition, telecommunications companies are aggressively demanding prompt local approval for access to local property. Cohen recommends the best way to meet this challenge is for local government to enact an effective rights-of-way ordinance based on Section 253 of the Telecommunications Act of 1996.

Localities must be able to respond quickly to telecommunications companies who request the use of rights-of-way. This requires that localities be prepared and have a strong right-of-way ordinance in place to manage such requests and protect the locality.

An effective right-of-way ordinance should include a permitting process which requires telecommunications providers to obtain a right-of-way permit before installing any equipment or services. Permits should be granted only after the requestor provides essential information, such as; descriptions of the intended service, a list of the equipment to be installed, the expected physical burden imposed on the right-of-way and what, if any, public safety issues are involved. If state or federal property is involved, the locality should require proof of authorizations form appropriate federal or state agencies.
A locality can also require the company to comply with local construction safety standards and require notification to nearby residents to before construction activities begin. To protect its citizens, the ordinance must require the telecommunication company to indemnify the locality, its officials and employees against any claims for personal injury or property damage arising from use of the right-of-way and of course the company must maintain sufficient insurance coverage to cover injuries or damages.

None of these requirements amount to anything if the local government doesn’t have the authority to enforce them. Provision violations should be subject to penalties such as; fines, suspension of right-of-way, even termination of permit.

Section 253(c) of the 1996 Act upholds the right to fair and reasonable compensation for the use of state or local government owned rights-of-ways. There are a number of methods communities’ uses for determining fair and reasonable compensation for use of rights-of-ways by telecommunications companies. Some communities choose to base fees on the value of the right-of-way property, others use a rental type fee in which compensation is in the form of a percentage of the gross revenues received from telecommunications services. Some localities choose to base fees on the cost a locality incurs as a result of the activities of telecommunications companies in the rights-of-way
Whatever method is employed the fees must be applied equally to all telecommunications companies, and the amount of the fee must be publicly disclosed.