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SUMMIT COVERAGE Municipal officials should track state and federal efforts to preempt local authority in management of publicly owned rights-of-way. preempts any state or local regulation of PROWs that in intent or in effect bars or discriminates against any telecommuni- cations provider in accessing and using them. Tus, a local government retains broad regulatory authority over PROWs as long as it exercises that authority in a way that does not erect barriers to entry and is competitively neutral. Te FCC specifically identified the following PROW management prac- tices 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 construc- tion-damaged streets • Keeping track of various systems us- ing PROWs to prevent interference among facilities.2 In addition, the FCC stated that Section 253(c) [of the Tele- communications Act of 1996] preserves the authority of state and cities to manage public rights-of-way but requires such regulations to be both competi- tively neutral and nondiscrimina- tory. 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.3 Tus, basic responsibility for manag- ing PROWs rests with local governments. Acting within the authority granted them under state law, municipalities may regulate the manner in which commu- nications service providers use PROWs as long as providers are treated equally and the PROW application and approval process is transparent in accordance with public disclosure laws.4 EFFORTS TO PREEMPT LOCAL MANAGEMENT With the advent of competition in tele- phone, cable television and data commu- nications markets, access to PROWs has become increasingly 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 competi- tion from new entrants, including com- munities seeking to provision their own broadband communications networks. In addition, entrenched service provid- ers have petitioned courts to preempt local PROW ordinances on the grounds that the ordinances conflict with Sec- tion 253 of the 1996 Telecommunica- tions Act, which is aimed at removing state and local barriers to entry into tele- communications markets. For example, 20 states have enacted laws that enable a cable system to ob- tain a single, statewide franchise in lieu of negotiating separate franchise agreements with local franchising au- thorities.5 Although the statewide cable franchise laws differ from state to state, overall, they 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. Tere is similar pressure at the state and federal levels to preempt or limit the authority of local governments and state public utility commissions over telecommunications franchises. Ac- cording to a recent report from the Na- tional Regulatory Institute, "Between 2010 and April 30, 2012, 21 state leg- islatures enacted laws that limit what public utility commissions can regulate. Nine of these states severely limited or completely eliminated company of last resort obligations and the requirement that carriers provide a tariffed basic lo- cal service product. ... As of the end of April 2012, deregulation legislation was pending in an additional 14 states."6 At the federal level, in April 2011, the FCC announced its intention to re- view regulations and processes for the management of publicly owned local rights-of-way.7 Although the proceed- ing has not yet reached a rulemaking stage, the commission is contemplating measures that would override local con- trol and undermine locally imposed fee structures. Te commission itself would either preempt local regulations or re- quire 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 legisla- tors will be much less likely to defer to industry lobbyists if they are made aware that their constituents, including coun- ties and towns, consider local PROW management to be a priority issue. MUNICIPAL STRATEGIES Because an advanced, well-managed broadband communications infrastruc- ture is essential to economic develop- ment, including investment and job creation, municipal officials in any com- munity must be aware of and use the tools in their possession for managing PROWs to produce predictable, positive outcomes. Municipal governments' mecha- nisms to address PROW management include municipal codes, administra- tive policies, development agreements, subdivision/public works design manu- als, mapping of PROW infrastructure installations and usage, and franchise agreements. Governments should de- ploy these tools in combination to en- sure that any development project that uses public resources complies with a 66 | BROADBAND COMMUNITIES | www.broadbandcommunities.com | OCTOBER 2012