the view from olympia: right of way usage fees as revenue replacement mechanism for future of...

The View From Olympia:Right of Way usage fees as revenue replacement mechanism for future of declining cable franchise fees

April 29, 2105Kenneth S. Fellman, Esq.Kissinger & Fellman, P.C.

[email protected]

http://www.kandf.com/

mailto:[email protected]

Kissinger & Fellman, P.C. www.kandf.com

How do we ensure that local governments are fairly compensated for use of the ROW?

Significant public funds have been invested to place and maintain landscaping within public rights of way


My Assumptions

Many of your jurisdictions already have some form of ROW management requirements in your codes

Local codes may also provide for adoption of administrative regulations addressing ROW management

Impacts of state law affect local authority to require compensation


NATOA Blueprint for Localism in Communications

Principle 5— Compensation for Use of Public Property

Local governments should retain the authority to determine the appropriate level of compensation to

be paid for the use of public property by communications providers, as they do with all

other private users of public resources.



Challenge 4— Dwindling Compensation for Communities’ Property

Laws and regulations have been changed to reduce the compensation received by local communities for the use of their property. Local governments have a fiduciary duty to

manage the multiple uses of the public assets that communications firms use for their private operations, and to do that, communications firms, like all other users of public

property, should pay a reasonable amount as determined by the local government, and not receive special, subsidized

treatment that is not afforded to any other private entity.



Strategy 3— Compensation for Rights-of-Way Sound communications policy should relegate provisions such as 47

U.S.C. § 253 to its proper role of eliminating legal prohibitions against market entry and cut off its misuse by industry to seize local

property without reasonable compensation and usage conditions. Companies that use the public rights-of-way for any

communications purpose must adhere to the same set of laws governing the rights-of-way, including compensation, as do other

private users of this public property. Local governments must to be able to charge users for the use of the rights-of-way without regard to the regulatory category within which certain services may fall. Such compensation may include a percentage of all gross revenue received by all owners of facilities occupying public rights-of-way,

a linear foot calculation, or other methods used by local governments to calculate the value of their assets.


What authority do you have other than police power regulations?

RCW 35.99


Objectives of the Ordinance

Establish a public policy for enabling the City to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development

Promote cooperation among permittees and the City in the occupation of the public rights-of-way, and work therein, in order to (i) eliminate duplication that is wasteful, unnecessary or unsightly, (ii) lower a permittee’s and the City’s costs of providing services to the public, and (iii) minimize street cuts


Key Elements You’ll Want in Your Ordinance Definitions Recognition of City’s Police Powers

Permits – When Required Permits – Application/Contents Permit Fees

Cost recovery – staff time Cost recovery – degradation fee


Key Elements You’ll Want in Your Ordinance

Insurance Indemnification Bonds/Letters of Credit Warranties Inspections

Number Timing


Key Elements You’ll Want in Your Ordinance Traffic Control Provisions Relocations Standards for Repairs and Restoration Standards for Newly Constructed/Overlayed

Streets Exemptions – Emergencies Exemptions – Non-emergencies


Key Elements You’ll Want in Your Ordinance ROW Construction: Open Trench/Dig Once

Coordination meetings/Joint Planning Policy to install conduit and/or fiber when trench

opened?

Undergrounding/Use of Poles Common Users Locates



Abandonment

Removal Revocations of Permits/Stop Work Orders Appeals Penalties



Wireless Facilities Small Cells/DAS

Administrative Approval?

Criteria?



Emergency Procedures


CONCLUSION Acknowledge and describe scope of police

power Determine what needs to be in the code, what

should be adopted through administrative regulations

Determine how, if at all, state law impacts the scope of your authority

Make it clear; make it easy for the permittees to follow; make it easy for the City to administer


Kenneth S. FellmanKissinger & Fellman, [email protected] www.kandf.com

Questions?

mailto:[email protected]

http://www.kandf.com/

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