Broadband Communities

OCT 2012

BROADBAND COMMUNITIES is the leading source of information on digital and broadband technologies for buildings and communities. Our editorial aims to accelerate the deployment of Fiber-To-The-Home and Fiber-To-The-Premises.

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SUMMIT COVERAGE 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 the Broadband Communities Summit in April about modern right-of- way management, or how municipalities can derive maximum public benefit from the use of their assets for telecommunica- tions networks. Afterward, the four col- laborated on this article, which expands on their presentations. P ublic rights-of-way (PROWs) in any community are gener- ally owned by local government in fee or as easements dedicated to the general public and administered by local authorities as trustees for the benefit of the entire community. Traditionally, lo- cal governments manage private parties' access to and use of PROWs pursuant to state law. Local governments grant private parties, such as communications provid- ers, the right to use and occupy PROWs. Tey are used by public utilities, pursu- ant to franchise agreements with local governments, to provide essential ser- vices such as water, transportation, gas, electricity and telephone services. Tis article concerns management of PROWs with respect to telephone, cable televi- sion and Internet service providers. For many years, when telephone ser- vices were provided on a monopoly basis, management of PROWs was relatively simple: A local telephone company was granted a long-term telecommunications franchise, including the right to install Local governments have primary responsibility for regulating access to public rights-of-way, but they must remain competitively neutral. wire and other facilities under, across and over public streets as the company saw fit. However, with the advent of competition in broadband communi- cations markets, the demand for access to PROWs has increased dramatically and so has the complexity of the chal- lenges local governments face in manag- ing such access. As voice and television services merge with data services and use the Internet as the primary transport system, how best to manage broadband communications providers' access to and use of PROWs for the benefit of the pub- lic remains unclear. LEGAL FRAMEWORK In general, a public right-of-way consists of a public street with a 10-foot-wide strip on either side, as well as space over and under the street. Communications Author Contact Information Carl E. Kandutsch, Kandutsch Law Office ( Stephen Mayo, Inteleconnect, Inc. ( Kate McMahon, Applied Communications ( Tom Garrison, Communications Director, City of Eagan, Minn. ( OCTOBER 2012 | | BROADBAND COMMUNITIES | 65 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 these backbones by means of drop cables that lead from PROWs onto private property. Although federal law gives telecom- munications and cable television pro- viders a paramount legal right to ac- cess PROWs in certain circumstances,1 primary responsibility for regulating the use of PROWs by communications service providers remains with local mu- nicipal or county governments, pursu- ant to authority granted under state stat- utes. However, there are limits to local governments' discretion in regulating PROW usage. In particular, Section 253 of the Telecommunications Act of 1996

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