Local Management of Public Rights-of-Way

Public rights-of-way are too valuable to be assigned haphazardly. Municipal officials should use all the tools at their disposal to manage these assets carefully, ensuring that their cities will have the broadband capacity they need for years to come.

By Carl E. Kandutsch, Stephen Mayo, Kate McMahon and Tom Garrison

Editor’s Note: Four leading experts on broadband planning and development spoke at Broadband Communities Summit 2012 about modern right-of-way management, or how municipalities can derive maximum public benefit from the use of their assets for telecommunications networks. Afterwards, the four collaborated on this article, which expands on their presentations.

Public rights-of-way (PROWs) in any community are generally owned by local government in fee or as easements that are dedicated to the general public and administered by local authorities as trustees for the benefit of the entire community. Traditionally, local governments manage access to and use of PROWs by private parties pursuant to state law.

Local governments grant private parties, such as communications providers, the right to use and occupy PROWs. PROWs are used by public utilities, pursuant to franchise agreements with local governments, to provide essential services such as water, transportation, gas, electric and telephone services. In this article we are concerned with management of PROWs with respect to telephone, cable television and Internet service providers.

For many years, when telephone services were provided on a monopoly basis, management of PROWs was relatively simple: The local telephone company was granted a long-term telecommunications franchise, including the right to install wire and other facilities under, across and over public streets as the company saw fit. However, with the advent of competition in broadband communications markets, the demand for access to PROWs has increased dramatically, and so has the complexity of the challenges facing local governments in managing such access. As voice and television services merge with data services and use the Internet as the primary transport system, how access to and use of PROWs by broadband communications providers can best be managed for the benefit of the public remains unclear.

Legal Framework

In general, a PROW consists of a public street with a 10-foot-wide strip on either side, as well as space over and under the street. Communications service providers install conduit and copper, coaxial and/or fiber optic cables both under streets (in trenches) and over streets (via pole attachments); homes and businesses are connected to this backbone by means of drop cables that lead from the PROW onto private property.

Although federal law gives telecommunications and cable television providers a paramount legal right to access PROWs in certain circumstances[i], primary responsibility for regulating the use of PROWs by communications service providers remains with local municipal or county governments, pursuant to authority granted under state statutes. However, there are limits to local governments’ discretion in regulating PROW usage. In particular, Section 253 of the Telecommunications Act of 1996 preempts any state or local regulation of PROWs that in intent or in effect bars or discriminates against any telecommunications provider in accessing and utilizing the PROW. Thus, local government retains broad regulatory authority over PROWs so long as that authority is exercised in a way that does not erect barriers to entry and is competitively neutral.

The FCC specifically identified the following PROW management practices as within the proper jurisdiction of local government:

--Ensuring public safety in the use of PROWs by gas, telephone, electric, cable and similar service providers;

--Scheduling common trenching and street cuts;

--Repairing and resurfacing construction-damaged streets; and

--Keeping track of various systems using PROWs to prevent interference among facilities.[ii]           

In addition, the FCC stated:

Section 253(c) [of the Telecommunications Act of 1996] preserves the authority of state and cities to manage public rights-of-way but requires such regulations to be both competitively neutral and nondiscriminatory. In addition, Section 253(c) permits state and cities to impose compensation requirements for the use of public rights-of-way so long as such compensation is fair and reasonable, competitively neutral, non-discriminatory, and is publicly disclosed.[iii]

Thus, basic responsibility for managing PROWs rests with local governments, and municipalities, acting within the authority granted them under state law, may regulate the manner in which communications service providers utilize PROWs, as long as providers are treated equally and the PROW application and approval process is transparent in accordance with public disclosure laws.[iv]

A.   Efforts to Preempt Local Management

With the advent of competition in telephone, cable television and data communications markets, access to PROWs has become increasingly more valuable to service providers. Not surprisingly, incumbent telephone and cable carriers, each with a long history of local monopoly service, have in recent years devoted significant resources to lobbying state and federal officials to preempt or otherwise limit local authority over PROWs, sometimes for the purpose of suppressing competition from new entrants, including communities seeking to provision their own broadband communications networks. In addition, entrenched service providers have petitioned courts to preempt local PROW ordinances on the grounds that the ordinances conflict with Section 253 of the 1996 Telecommunications Act, which is aimed at removing state and local barriers to entry into telecommunications markets.

For example, 20 states have now enacted laws enabling cable systems to obtain a single, statewide franchise in lieu of negotiating separate franchise agreements with local franchising authorities.[v] Although the statewide cable franchise laws differ from state to state, overall, these laws preserve the jurisdiction of local governments over PROWs but streamline the permitting process and in some cases limit local discretion in managing rights-of-way.

There is similar pressure on the state and Federal levels to preempt or limit the authority of local governments and/or state public utility commissions over telecommunications franchises. According to a recent report from the National Regulatory Institute:

"Between 2010 and April 30, 2012, 21 state legislatures enacted laws that limit what Public Utility Commissions (PUCs) can regulate. Nine of these states severely limited or completely eliminated Company of Last Resort (COLR) obligations and the requirement that carriers provide a tariffed basic local service product ... As of the end of April 2012, deregulation legislation was pending in an additional 14 states."[vi]

At the federal level, in April 2011, the FCC announced its intention to review regulations and processes for the management of publicly owned local rights-of-way.[vii] Although the proceeding has not yet reached a rulemaking stage, the commission is contemplating measures that would override local control and undermine locally imposed fee structures. The commission itself would either preempt local regulations or require that they be standardized at the federal level.

It is therefore important that local government officials make efforts to keep current on preemption efforts in state legislatures, and become actively involved when appropriate. State legislators will be much less likely to defer to industry lobbyists if they are made aware that their constituents, including counties and towns, consider local PROW management to be a priority issue.

B.    Municipal Strategies

Because an advanced, well-managed broadband communications infrastructure is essential to economic development, including investment and job creation, in any community, municipal officials must be aware of and use the tools in their possession for managing PROWs to produce predictable, positive outcomes.

Municipal governments’ mechanisms to address PROW management include municipal codes, administrative policies, development agreements, subdivision/public works design manuals, mapping of PROW infrastructure installations and usage, and franchise agreements. They should deploy these tools together to ensure that any development project that uses public resources complies with a comprehensive plan that includes technical, economic/financial and regulatory components designed to address the infrastructure needs of a wired community offering ubiquitous connectivity to broadband networks.

The following list provides a few examples of local governments that have taken a broad, forward-looking, unified approach to comprehensive broadband planning:

• Humboldt County, Calif., adopted a comprehensive plan whose “Telecommunications Element” articulates policies designed to promote broadband access, reliability and capacity, including “dig once” policies (http://co.humboldt.ca.us/gpu/documentsplan.aspx).
• The city of Portland, Ore., adopted a broadband strategic plan that establishes a comprehensive municipal policy on enhancing broadband infrastructure (http://www.portlandonline.com/shared/cfm/image.cfm?id=354243).
• Ordinances adopted by the city of Poulsbo, Wash., require private real estate developers to install additional conduit in newly dedicated PROWs to accommodate future telecommunications needs, and require telecommunications service providers to use previously installed conduit whenever possible.
• The City of Loma Linda, Calif., adopted a comprehensive broadband plan known as the Connected Community Program, which includes policies promoting the deployment of an advanced citywide fiber optic network as well as modifications to building regulations to ensure that development will be designed to meet the needs of future communications technologies.

As the foregoing examples show, broadband policies should address, at a minimum, the following issues:

First, what kind of future connectivity will the community need in order to bring the greatest opportunities and benefits to the public, including investment incentives, job creation, quality of life enhancements, as well as health, educational and economic benefits? Planning for future connectivity needs means ensuring sufficient capacity in the present.

Second, how can these future benefits best be ensured while minimizing costs over time? It is important to realize that a measure taken to save costs now may actually increase costs in the long run. For example, installing insufficient capacity to save money today may result in greater expense tomorrow, when infrastructure must be upgraded to accommodate demand. Cooperative sharing of trenches and of installed conduit and other infrastructure, together with “dig once” policies, should be strongly encouraged if not required by local PROW plans, policies and ordinances.

Third, is a mechanism in place to allow municipal officials to monitor the use of PROWs to ensure the efficient utilization of public resources? PROW mapping is essential. To avoid redundancy and waste, local governments must have the capability of determining which companies are using each segment of each street, as well as which facilities are installed at any given location.

To illustrate how intelligent, comprehensive planning can avoid the waste of valuable public resources, consider the issue of trenching. In any new development, the developer is responsible for providing a utility easement to each home and an open trench for installation of services, including electric power, telephone, cable television and data communications. Installing all utilities in the ground at the initial phase of construction is much cheaper in the long run than digging up a road a second time in order to bury additional utilities later. In fact, the FederalHighway Administration estimates that digging up and repairing an existing road to bury fiber optic cable is about 10 times more expensive than installing the infrastructure at the outset.

Forward-looking planning in this circumstance will include several components, including a “dig once” policy and a requirement that private companies deriving revenue from the use of PROWs make public-interest commitments in return for being granted access. The “dig once” policy requires that companies using the PROW agree to share trenching, conduit and other joint-use infrastructure before new, invasive uses are approved. For example, Dakota County in Minnesota is working toward implementing a “dig once” policy to be incorporated into the County’s one-stop PROW online permitting process (https://services.co.dakota.mn.us/OneStopRoadwayPermit/Login.aspx).

In addition, private users of PROWs may be required to finance the installation of additional, spare conduit capacity that will be owned and managed by the municipality and made available for future use as the need arises, both by private service providers and by the city itself for the provision of essential services such as traffic signals, water and sewer facilities and city administration – without the need to dig up streets a second time.

C. Cooperation With Real Estate Developers

It is vitally important for municipal officials to work in partnership with, and not against, the private sector to ensure the intelligent management of PROWs.

To illustrate, consider the following example:

During the initial phases of construction, the developer of a master-planned community installs conduit pipes underground beneath a pathway that will later be dedicated to the city as a PROW. The developer holds discussions with city officials to ensure that a sufficient number of conduits, of sufficient capacity, are installed at the outset for the joint use of all utilities serving the planned community.

In addition, both the developer and the city official in charge of the PROW application rely on the existence of a municipal ordinance that requires any utility installing facilities in a PROW to use existing infrastructure such as conduit before installing new infrastructure. Calculation of the number of conduit pipes installed in trenches is based on the developer’s assumption that the city will enforce its ordinance.

However, after the conduit has been installed and the trenches filled in and paved over, the local franchised telephone utility makes a separate deal with the city to install its own conduit in the PROW rather than share the developer’s preinstalled conduit with other providers. The telephone company’s separate deal is based on its desire to maintain absolute and exclusive control over any infrastructure it uses to provide network services.

The result, despite the joint efforts and good intentions of the developer and the local official, is a waste of time, money and resources – a result that might have been averted had the city either established a comprehensive development plan or policy relating to the mapping and efficient use of PROWsor take appropriate legal measures, in coordination with the developer, to ensure that the ordinance would be properly enforced in this particular case. Such measures might have included, among others, the following:

1.              Reservations in public dedication of rights-of-way. Just as a private easement is often conveyed subject to express conditions, so a public dedication may be limited by specific conditions enumerated in the certificate of dedication. The dedicator may explicitly reserve particular rights or attach to a public dedication any conditions that are desired, as long as the conditions are not repugnant to the grant or contrary to public policy, and consistent with local rules. Similarly, a public dedication may be made revocable, such that the easement is automatically terminated if conditions specified in the grant are ignored or breached.

In the example we are considering, the developer’s public dedication could have been explicitly conditioned on the city’s enforcement of the ordinance requiring the joint use of infrastructure constructed in the PROWs. The city’s subsequent failure to enforce the ordinance would have resulted in an automatic revocation of the public dedication.

2.              Use of a development agreement. Another useful measure in this context would have been the use of a legally enforceable development agreement between the developer and the city.

A development agreement is a contract between a property owner/developer and a municipality, executed as part of the development approval process. The municipality promises not to change the planning/zoning regulations and policies applicable to the planned development, or to enforce the existing regulations and policies, in exchange for the developer’s promise to abide by a defined set of conditions restricting use of the property and requiring a contribution of land, public facilities and/or money.

In this case, during the planning stage, the developer might have signed a development agreement with the city requiring that the joint use ordinance be enforced in a way that is consistent with a comprehensive plan mandating the efficient use of PROWs, such that the city’s subsequent side deal with the telephone company would amount to a breach of the development agreement.

The use of either or both of these measures in combination might have preempted the side deal between the telephone company and the city and averted the wasteful use of precious public resources.

Author Contact Information

Carl E. Kandutsch, Kandutsch Law Office ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).

                        Stephen Mayo, Inteleconnect, Inc. ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

                        Kate McMahon, Applied Communications ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

Tom Garrison, Communications Director, City of Eagan, Minnesota ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )