FCC RIGHT-OF-WAY AUTHORITY REVIEW CONTINUES
Last April, the Federal Communications Commission (FCC) released a “Notice of Inquiry (NOI)” regarding local right-of-way regulations and franchise fees and how the agency can “work with” cities “to improve policies for access to rights-of-way and for wireless facility siting.” The NOI could result in federal rules that preempt city right-of-way management authority and/or franchise fees, and could further limit municipal regulations relating to cell towers.
The Texas Municipal League, along with the National League of Cities, the National Association of Counties, the National Association of Telecommunications Officers and Advisors, the U.S. Conference of Mayors, the International Municipal Lawyers Association, and a number of individual Texas cities, submitted detailed comments to protect municipal interests.
In fact, over 160 local governments across the nation submitted comments. Only about 10 broadband providers did so. Based solely on the numbers, one would presume that the FCC would issue a city-friendly order. However, similar NOIs in the past relating to cable franchising and wireless tower siting have resulted in severe curtailment of municipal authority.
Rather than focusing on right-of-way authority, it appears that some industry commenters directed their comments to wireless tower siting issues. (A previous FCC order that is being challenged in court by the City of Arlington already addresses several wireless tower issues, such as the time in which a city must approve an application for a tower.) PCIA – the wireless infrastructure association – cites nine Texas cities with “onerous” requirements. The allegedly “onerous” requirements in those cities include simple setback and screening requirements for facilities and hearings prior to the placement of facilities (e.g., conditional use permit requirements). Such requirements are designed to protect the health, safety, and welfare of city residents.
More alarming are industry comments relating to right-of-way compensation. One commenter suggests that the FCC “should declare that right-of-way fees are unreasonable when they exceed the municipal expenses incurred because of a carrier’s deployment of facilities in public rights-of-way.” In Texas, the fees are a value-based rental for the use of public property, and such “cost-based” fees are prohibited by the Texas Constitution. One provider, Centurylink, uses a quote from a previous edition of the Legislative Update stating that Texas cities get close to ten percent of their revenue from franchise fees. Of course, that number includes electric, telecommunications, and cable revenues. The actual amount of the state-set telecommunications fee is much lower.
The League is working in conjunction with other state and national associations, as well as the cities that are expressly mentioned in industry comments, and will file reply comments refuting the industry claims.