New FCC Proposal Would Undermine Local Government Property Rights and Limit Authority Over Public Rights-of-Way
The Federal Communications Commission (FCC) approved a Notice of Proposed Rulemaking (NPRM) that, if adopted, will dramatically impact local governments’ ability to manage their public rights-of-way.
The NPRM proposes to unconstitutionally deprive local governments’ property rights by capping rental fees for a telecommunications providers’ occupation of the public right-of-way to “a reasonable approximation of the government’s actual, direct costs of managing the rights-of-way,” not market value or just compensation as is the current standard in most communities. Limiting rent to below market rates could prove to be a significant blow to many local government budgets.
The NPRM would also extend the below market rental rate and impose new shot clocks, limiting the time for local governments to respond to broadband providers’ permitting and other requests, including those entities seeking to serve only large data centers and not the general public.
Without delegated authority from Congress to do so, the FCC proposes to impose a 120-day shot clock for local government action on wireline deployment applications in the public rights-of-way. The proposed timeline also fails to recognize the real-world right-of-way management challenges local governments face in ensuring the safety of the travelling public while at the same time protecting existing water, power and other communications and cable infrastructure, and accommodating new users in already crowded streets.
By contrast, there are no shot clocks for broadband provider access to federal property, nor is the federal property used by communications providers subject to rate caps, as the FCC’s recent success in securing above-market rates for the lease of AWS spectrum shows.
Comments on the NPRM will be due 45 days after its publication in the Federal Register. Reply comments will be due 90 days after Federal Register publication.
BBK represented a coalition of local governments in the Notice of Inquiry on which the NPRM is based.
For more information, contact a member of BBK’s Telecom team.
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation, or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.
