Principles of Right of Way Use
Presented at the "Local Government and the Telecommunications
Act of 1996"
by the City of Dallas, January 31, 1997
1. The rights of way must continue to serve their primary transportation
purpose.
Transportation of goods and services has a distinctly local component.
The rights of way are assets that the public relies upon not only
for convenience, but also necessity. These investments and the
dependence of local citizens and economies on their use must remain
paramount in the development of the legislation. Local governments
must have adequate oversight of the use and hence, any disruption,
of the public rights of ways by telecommunications providers.
The transportation use of the right of way must be preserved and
not subordinated to telecommunications providers.
Traditionally, wires, whether fiber optics, coaxial cables or
otherwise, have been laid in the public rightofway along with
the facilities of other utilities and public service providers.
Local exchange telephone companies have one set of lines, long
distance companies another, cable companies others and fiber optic
providers still others. As the information superhighway is developed,
it is anticipated that more telecommunications providers will
lay still more lines in the public rightof-way. Local governments
must have some ability to manage this expected invasion.
The provision of franchising authority in the Cable Act recognizes
the burden placed on the public right of way by cable companies.
Likewise, the new telecommunications legislation contemplates
the use of the public right of way and addresses the same concerns,
although not nearly so neatly.
2. Fees for the use of the right of way are compensation for
the use of the public right of way
A license, franchise, right of way agreement or similar agreement
allows or gives permission to a private company to use the public
right of way for private economic gain. Compensation is provided
to the local government for the use of those public streets. Like
any business, telecommunications providers should have to pay
for the property they use. Congress does not require landowners
to grant the use of their property without compensation in drilling
and producing petroleum and natural gas. Certainly, just as with
telecommunications, these property rights pose a burden to the
production of oil and gas which is of national interest. Similarly,
Congress should not attempt to appropriate public property without
compensation. Indeed, Congress auctioned off parts of the public
spectrum, taking in literally billions of dollars, for property
it never had to acquire or maintain.
Franchise fees are sometimes described as simply another tax but
that description is absolutely erroneous. The fees are street
rentals in essence. The U.S. and Texas Supreme Courts have characterized
them as such. The streets represent valuable real estate essential
to carrying on the telecommunications business. The use of public
rightofway by telecommunications providers, utilities and other
service providers increases the administrative burden, raises
the cost of street maintenance and repair and reduces the useful
life of the street. Fees are assessed to help the cities defray
those costs incurred because that rightofway is shared.
Local governments have invested substantial sums in the purchase
and maintenance of the rights of way. To allow the use of the
right of way without compensation for its use is to ask local
taxpayers who footed the bill for the original acquisition and
maintenance to subsidize the operations of the telecommunications
provider.
3. There is a risk for elected and nonelected officials who
turn over the use of the right of way with little control over
the telecommunications providers.
To the extent that the authority of local governments is eliminated
and destruction or hindrance of the right of way takes place by
the operations of the telecommunications providers, it is likely
that the public could be upset by the resulting inconvenience
and reduced facility life.
Local government officials are the ones directly responsible to
the citizens for the right of way and assume their duties with
that obligation. Telecommunications providers have no obligation
to the electorate with regard to maintenance and acquisition of
the rightofway. The interest of the telecommunications provider
is to deliver their service and minimize the cost in doing so.
This differing perspective has the potential to establish a conflict
which some may choose to characterize as being a barrier. Instead,
on the part of local governments, it is simply a desire to protect
and preserve the assets of the public.
