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1. Miller & Van Eaton Public Rights of Way and Telecommunications in New Jersey Nicholas P. Miller
November 21, 2002
Atlantic City, New Jersey
2. Miller & Van Eaton PROW Issues at the Federal and State Level Federal limits on PROW compensation and management
Review of N.J. Law
Efforts to Change the Rules:
Courts, Congress, FCC, NJBPU
3. Miller & Van Eaton Local Government Interests in PROW Property Rights
Planning and Management of Infrastructure
PROW is not a “free good”
Dedicate to “highest and best use.”
4. Miller & Van Eaton What is a Franchise? A Grant of a Special Privilege
A Revocable Personal License to Use PROW
Not a Privilege to Offer a Service
Broad Confusion Between These Two
5. Miller & Van Eaton Federal Law Respects Local Authority Federal law reserves for state and local government:
Property Rights -- 5th Amendment
Right to Charge Rent-- Section 253/Title VI
Right to Manage Access and Entry in ROW --(253)
Right to zone and site antennas and towers
332(c )(7))
6. Miller & Van Eaton New Jersey Constitution Article IV, Section VII, paragraph 11 states: “The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary ..., or incident to powers expressly conferred, ..., and not inconsistent with or prohibited by this Constitution or by law.”
7. Miller & Van Eaton New Jersey Home Rule Act, N.J.S.A. 40:42-1 et seq “In construing the provisions of this subtitle, all courts shall construe the same most favorably to municipalities, it being the intention to give all municipalities to which this subtitle applies the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government.” N.J.S.A. 40:42 - 4
8. Miller & Van Eaton Local Government v. Utilities N.J.S.A. 48:7-2 provides utilities the right to “lay pipes or conduits and wires therein beneath such public highways, streets and alleys as it may deem necessary.” But goes on to state that “[n]o public streets shall be opened in any municipality for the purpose of laying any such pipes, conduits or wires without the permission of thTe municipality.”
9. Miller & Van Eaton Limitation on Fees Section 54:30 A-124 prohibits a municipality from imposing “any fees, taxes, levies or assessment in the nature of a franchise, right-of-way or gross receipts fee, tax, levy or assessment against … telecommunication companies [except recovery of] reasonable fee for an actual service.”
10. Miller & Van Eaton Cable Television NJ Franchise Fee limited to 3% of Basic Subscriber Revenues
= about 1.5% of Cable Operators’ Gross Revenues
Most local governments in other states collect
5% of Total Gross Revenue
11. Miller & Van Eaton Unfunded Mandates--Costs transfer 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
12. Miller & Van Eaton Supreme Court St. Louis v. Western Union Tel., 148 U.S. 92, 98-99, 13 S. Ct. 485, 487-88 (1823).
Public utilities use the rights-of-way in a way that is an "absolute, permanent and exclusive appropriation.”
“[W]ho would question the right of the city to charge for the use of the ground thus occupied, or call such charge a tax, or anything else except rental?
13. Miller & Van Eaton The NJ Problem Unfettered Tcom PROW entry and free occupation of PROW
Growing restrictions on cable franchise fees I thought it might make sense before getting into detail to just outline the macro challenge. You might let folks know that all the issues you are going to discuss in the presentation may also be found in the Street Law handout.I thought it might make sense before getting into detail to just outline the macro challenge. You might let folks know that all the issues you are going to discuss in the presentation may also be found in the Street Law handout.
14. Miller & Van Eaton Section 253: History as a target Local Government Wins
Federal legislation 1996
FCC action 1997
Federal Appellate Courts: 6 of 7
1st; 2d; 4th; 5th; 6th ; 9th; 11th
E.g, White Plains (2d) This comes right out of your former presentationThis comes right out of your former presentation
15. Miller & Van Eaton PROW in Congress McCAIN (S. 2863): a "regulatory free zone" for residential broadband services; limits recovery of rights-of-way access fees to costs.
BREAUX-NICKLES (S. 2430): regulation must be “equal or none” for all broadband providers, i.e. cable modem, ISDN or satellite
TAUZIN-DINGELL (H.R. 1542): broad exemption to broadband from regulation, but claims to preserve local governments’ right to regulate “cable”. The * reflects the rumors that Senator McCain is considering just such a bill.The * reflects the rumors that Senator McCain is considering just such a bill.
16. Miller & Van Eaton New Jersey Proposal Ford Foundation Study: Right of Way Franchise Fees and Excise Taxes are Uneven
Imposing 5% franchise fee and 3% excise tax on ALL providers (Cable and Telecomm) would equalize
Extra $ should be used to support deployment of advanced local government services
17. Miller & Van Eaton FCC Declares Cable Modem Service “an Information Service” Still subject to franchise fees, if state and local law permits
In New Jersey:
state law did not permit franchise fees as “cable service”
state law may permit franchise fees now--neither a cable service nor a telecommunications service
18. Miller & Van Eaton Cable Modem NPRM: FCC“Tentatively Concludes” No ISP rights to demand access to cable modem networks.
Cable franchises authorize use of PROW for cable modem services.
No additional permission required to provide cable modem service.
Cable Modem Service falls outside cable franchise fee.
19. Miller & Van Eaton Questions
20. Miller & Van Eaton Contact Information
