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Right of Way Management and Section 253 of the Telecom Act

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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Right of Way Management and Section 253 of the Telecom Act

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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.” 3

    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 5

    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) 7

    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) 8

    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? 9

    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 10

    11. Questions? 11

    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 12

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