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SUMMIT COVERAGE as a PROW. Te developer holds discus- sions with city officials to ensure that a sufficient number of conduits, of suffi- cient capacity, are installed at the outset for the joint use of all utilities that will serve the planned community. In addition, both the developer and the city official in charge of the public right-of-way application rely on the ex- istence of a municipal ordinance that requires any utility installing facilities in a right-of-way to use existing infrastruc- ture such as conduit before installing new infrastructure. Calculation of the num- ber of conduit pipes installed in trenches is based on the developer's assumption that the city will enforce its ordinance. However, after the conduit has been installed and the trenches filled in and paved over, the local franchised telephone utility makes a separate deal with the city to install its own conduit rather than share the developer's preinstalled con- duit with other providers. Te telephone company's separate deal is based on its desire to maintain absolute and exclusive control over any infrastructure it uses to provide network services. Te result, despite the joint efforts and good intentions of the developer and the local official, is a waste of time, money and resources – which might have been averted had the city estab- lished a comprehensive development plan or policy relating to the mapping and efficient use of PROWs or taken appropriate legal measures, in coordina- tion with the developer, to ensure that the ordinance would be properly en- forced in this case. Such measures might have included, among others, the following: • Reservations in public dedication of rights-of-way. Just as a private easement is often conveyed subject to express conditions, so a public dedication may be limited by spe- cific conditions enumerated in the certificate of dedication. Te dedica- tor may explicitly reserve particular rights or attach to a public dedica- tion any conditions that are desired, as long as the conditions are not re- pugnant to the grant or contrary to public policy and are consistent with Development agreements and other legal measures can help ensure that municipalities avoid wasteful use of public rights-of-way. local rules. Similarly, a public dedi- cation may be made revocable, such that the easement is automatically terminated if conditions specified in the grant are ignored or breached. In the example given, the devel- oper's public dedication could have been explicitly conditioned on the city's enforcement of the ordinance requiring the joint use of infrastruc- ture constructed in PROWs. Te city's subsequent failure to enforce the ordinance would have resulted in an automatic revocation of the pub- lic dedication. • Use of a development agreement. An- other useful measure in this context would have been the use of a legally enforceable development agreement between the developer and the city. A development agreement is a contract between a property owner or developer and a municipality, ex- ecuted as part of the development approval process. Te municipality promises not to change the planning and zoning regulations and policies applicable to the planned develop- ment, or to enforce the existing regu- lations and policies, in exchange for the developer's promise to abide by a defined set of conditions restricting use of the property and requiring a contribution of land, public facilities and/or money. In this case, during the planning stage, the developer might have signed a development agreement with the city requiring that the joint use ordinance be enforced in a way that is consistent with a comprehensive plan mandating the efficient use of PROWs, such that the city's subsequent side deal with the telephone company would amount to a breach of the development agreement. Te use of either or both of these measures in combination might have preempted the side deal between the tele- phone company and the city and averted the waste of precious public resources. Y ENDNOTES 1 Section 621(a)(2) of the Federal Commu- nications Act states, "any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which are within the area served by the cable system and which have been dedicated for compatible uses. …" Section 224(a) requires utilities to provide telecommunications and cable carriers with nondiscriminatory access to poles, ducts, conduits and rights-of-way controlled by the utility. 2 In the Matter of Implementation of Section 302 of the Telecommunications Act of 1996, Second Report and Order, CS Docket No. 96-46, FCC 96-249, 61 Fed. Reg. 28698 at ¶ 210 (adopted May 31, 1996). 3 In re Classic Telephone, Inc., FCC 96-397, 11 F.C.C.R. 13082 at ¶ 39 (adopted Sept. 18, 1997). Courts have upheld local author- ity over PROWs in BellSouth Telecommu- nications, Inc. v. City of Coral Springs, 42 F.Supp.2d 1304(S.D. Fla. 1999) and Bell- South Telecommunications, Inc. v. Te Town of Palm Beach, 1999 U.S. Dist. Lexis 16904 (S.D.Fla 1999). 4 Te National Telecommunications Industry Association has published a helpful summary of State PROW laws, online at www.ntia. doc.gov/legacy/ntiahome/staterow/rowtable. pdf. 5 Currently, states with statewide cable fran- chising systems include Texas, Virginia, Indiana, Kansas, North Carolina, South Carolina, New Jersey, California, Michigan, Missouri, Florida, Iowa, Georgia, Nevada, Ohio, Illinois, Wisconsin, Connecticut, Tennessee and Louisiana. See "State Cable Franchise Laws at a Glance, current as of 8/23/2011," prepared by the Alliance for Community Media, Best Best & Krieger and TeleCommUnity, dia.org/wp-content/uploads/2011/08/States- at-a-Glance-Franchise-Rules.pdf. 6 www.nrri.org/documents/317330/0179150e- ef83-4e94-bf94-80c7af830ab6?version=1.0. 7 WC Docket No. 11-59, http://hraunfoss. fcc.gov/edocs_public/attachmatch/FCC-11- 51A1.pdf. 68 | BROADBAND COMMUNITIES | www.broadbandcommunities.com | OCTOBER 2012 www.allcommunityme-