| The following is a survey
of all 50 states and the District of Columbia on
key rights-of-way laws. The matrix includes citations
to relevant state statutes and provides a brief
description of key statutory provisions relating
to jurisdiction, compensation, timelines, nondiscrimination,
mediation, remediation and maintenance concerning
access to public rights-of-way. The information
in this survey was compiled through original research
by NTIA, with reliance on existing research by NARUC
and NATOA. Special thanks to NTIA interns Anne
Mitchell, Sara Meadows Tolleson, and Alan Dobson
for creating this matrix. |
| Go to: [Alabama]
[Alaska] [Arizona]
[Arkansas] [California]
[Colorado] [Connecticut]
[Delaware] [District
of Columbia] [Florida] [Georgia]
[Hawaii] [Idaho]
[Illinois] [Indiana]
[Iowa] [Kansas]
[Kentucky] [Louisiana]
[Maine] [Maryland]
[Massachusetts] [Michigan]
[Minnesota] [Mississippi]
[Missouri] [Montana]
[Nebraska] [Nevada]
[New Hampshire] [New
Jersey] [New Mexico] [New
York] [North Carolina] [North
Dakota] [Ohio] [Oregon]
[Pennsylvania] [Rhode
Island] [South Carolina] [South
Dakota] [Tennessee] [Texas]
[Utah] [Vermont]
[Virginia] [Washington]
[West Virginia] [Wisconsin]
[Wyoming] |
| State |
Jurisdiction,
Terms of Agreement (except fees) |
Compensation |
Timelines |
Nondiscrimination |
Mediation |
Condemnation |
Remediation
& Maintenance |
| Alabama |
Ala.
Code § 11-49-1 (2002): Requires consent from city
or town authorities before using public lands for
the construction or operation of any private utility
or private enterprise. |
Ala.
Code § 11-50-B-3 (2002): Fair and reasonable compensation
to municipalities for use of ROW is allowed. |
|
Ala.
Code § 11-50B-3 (2002): ROW usage fees must be assessed
on a competitively neutral and nondiscriminatory
basis. |
On
appeal, the right to condemn is to be determined
by the court. Nicrosi v. City
of Montgomery, 406 So.
2d (Ala. Civ. App. 1981). |
Ala.
Code § 11-50B-10 (2002): Public providers may exercise
all powers of eminent domain as they are conferred
on Alabama municipalities. However, no public provider
may acquire any other person's or entity's cable
system, telecommunications equipment, or telecommunications
system, or any part or equipment of any other person's
or entity's system, including, but not limited to,
poles, wires, conduits, transmitters, receivers,
towers, appliances, or rights-of-way, through the
exercise of the power of eminent domain. |
|
| Ala.
Code § 11-50-B-3 (2002): Government agencies at
the state and local level have the authority to
manage public rights-of-way, and to require fair
and reasonable compensation from telecommunications
providers for the use of such rights-of-way. |
Ala.
Code § 40-21-50 (2002): Telecommunications providers
subject to 2.2% state gross receipts tax. |
| Ala.
Code § 37-1-35 (2002): Reserves power of municipalities
to maintain or require maintenance of their streets
and other highways and public places. Statute protects
any power of any municipality to adopt and enforce
reasonable police regulations and ordinances in
the interest of the public safety, morals and convenience,
or to protect the public and also protect any right
or power, by contract or otherwise, of any municipality
to require utilities to pave and maintain the portions
of highways used and occupied by them. |
Ala.
Code § 40-21-64 (2002): Counties prohibited from
levying privilege/license tax. |
| Ala.
Code § 10-5-14 (2002): This statute maintains the
municipalities' power to regulate construction in
public rights of way and to make ordinances accordingly. |
| Ala.
Code § 11-43-62 (2002): County or municipal councils
are in charge of regulating the use of streets for
above-ground wire systems as they are used for telecommunications
or electric utility purposes. A council may require
that such systems be placed underground, if necessary,
to ensure public convenience and safety. A council
may sell or lease their franchise in any manner
as it deems advisable, and the money raised is payable
to the city treasury. |
| Alaska |
Alaska
Stat. § 29.35.010 (2002): Municipalities granted
the power to regulate rights of way. |
Alaska
Stat. § 42.05.251 (2002): Fee not to exceed actual
cost to the municipality of the utility's use of
the public way and of administering the permit program.
Utilities may recover fee costs by applying them
to customers' utility bills as a surcharge. |
|
|
Alaska
Stat. § 42.05.251 (2002): Disputes regarding fees,
terms, conditions or exceptions imposed by municipalities
mediated by the Commission. |
Alaska
Stat. § 42.05.631 (2002): "A public utility
may exercise the power of eminent domain for public
utility uses. This section does not authorize the
use of a declaration of taking." |
|
| Alaska
Stat. § 38.05.810(e) (2002): The Director of the
Mining, Land and Water Division may negotiate with
licensed public utilities or common carriers for
the lease, sale, or other disposal of state land.
Such negotiations must have the approval of the
commissioner, and may only be entered into if the
utility or carrier reasonably requires the land
to conduct its business. |
| Alaska
Stat. § 38.05.850 (2002): The Division of Mining,
Land, and Water Director may issue permits, rights-of-way,
or easements on state land for roads, trails, ditches,
field gathering lines or transmission and distribution
pipelines not subject to AS 38.35, telephone or
electric transmission and distribution lines, log
storage, oil well drilling sites and production
facilities for the purposes of recovering minerals
from adjacent land under valid lease, and other
similar uses or improvements, or revocable, nonexclusive
permits for the personal or commercial use or removal
of resources that the director has determined to
be of limited value. These permits may be issued
without prior approval from the Commissioner of
the Department of Natural Resources. |
| Arizona |
Ariz.
Rev. Stat. §§ 9-581 - 9-583; Ariz. Rev. Stat. §
9-583(A) (2001): A political subdivision (city,
county, municipality, etc.) has the authority to
manage its public highways and exercise its police
powers, but may not exercise such power to prohibit
the ability of any telecommunications company to
provide its service. |
Ariz.
Rev. Stat. § 9-582(B) (2001): Any application or
permit fees must be related to the costs incurred
by processing the application, and must also be
assessed within a reasonable amount of time after
those costs are incurred. |
|
Ariz.
Rev. Stat. § 9-583(B ) (2001): Licenses or franchises
must be issued on a competitively-neutral basis,
and within a reasonable time after application.
The requirements for such licenses or permits are
limited to: 1. Proof that the applicant has received
a certificate of convenience and necessity from
the AZ Corporation Commission; 2. Public highway
use requirements; 3. Mapping requirements; 4. Insurance,
performance bonds, or similar requirements; and
5. Enforcement and administrative provisions. |
Ariz.
Rev. Stat. § 9-582(A)(3) (2001): ... ."Political
subdivisions shall establish a nonbinding outside
arbitration procedure to attempt to resolve disputes
over recovery of reasonable, proportionate and attributable
costs of construction permit fees pursuant to this
paragraph and other fees pursuant to this article
before the disputes are submitted to a court for
resolution." |
|
|
Ariz.
Rev. Stat. § 9-582(D) (2001): Arizona permits a
political subdivision and a telecommunications licensee
or franchisee to agree to an in-kind arrangement,
but the costs of the in-kind facilities offset the
provider's obligation to pay local transaction privilege
taxes or linear foot
charges (applicable to interstate services) and
must be equal to or less than the taxes or charges. |
Ariz.
Rev. Stat. § 9-581, para. 4. (2001): Cable companies
are exempt from regulatory statutes relating to
rights-of-way because they are excluded from the
definition of "telecommunications." However,
A.R.S. § 9-582 (G). "A municipality may not
discriminate against a cable operator in its provision
of telecommunications systems if that cable operator
complies with the requirements applicable to telecommunications
corporations." |
Ariz.
Rev. Stat.§ 9-582(D) (2001): "The in-kind facilities
. . . shall remain in possession and ownership of
the political subdivision after the term of the
existing license or franchise expires."
|
Ariz.
Rev. Stat. § 9-582 (A), (E) (2001): Any telecommunications
company that was granted its franchise prior to
November 1, 1997 is exempt from paying any additional
fees. |
| Ariz.
Rev. Stat. § 9-582(D) (2001): "... [A] political
subdivision shall not require a telecommunications
corporation to provide in-kind services, make in-kind
payments or pay a fee in addition to the fees [authorized
in the act] as a condition of consent to use a highway
to provide telecommunications services." |
Ariz.
Rev. Stat. § 9-582(D) (2001): "Notwithstanding
subsections A and B of this section, in a license
or franchise, a political subdivision and a telecommunications
corporation may agree to in-kind payments for use
of the public highways different from those specified
in subsection A or B of this section."
|
| Ariz.
Rev. Stat. § 9-582(E) (2001): "... .The license
or franchise shall be structured so that the in-kind
payments made for use of the public highways to
provide interstate telecommunications services under
the license or franchise are less than or equal
to and are offset against any linear foot charge
owed pursuant to section 9-583, subsection C, paragraphs
2 and 3." |
| Arkansas |
Ark.
Code Ann. § 14-200-101(a)(2) (2002): Cities and
towns have jurisdiction to assess franchise fees
and other terms and conditions of franchise agreement. |
Ark.
Code Ann. § 14-200-101(a)(1)(A) (2002): Local franchise
fees not to exceed 4.25% of gross receipts from
local service or higher amount agreed to by affected
provider OR the voters. |
|
|
Ark.
Code Ann. § 14-200-101(b)(1) (2002): A public utility
may appeal an ordinance within 20 days of receipt
of notice before the Arkansas Public Service Commission. |
|
|
| Ark.
Code Ann. § 14-200-110 (2002): Municipalities may
require from the provider, as a condition of the
franchise agreement, all books, records, and other
information as to any matter pertaining to its business
or organization. Utilities shall provide verified
itemized and detailed inventory and valuation of
any or all of its property as to which the municipal
council or city commission should properly have
knowledge in order to enable it to perform its duties. |
Ark.
Code Ann. § 14-200-101(a)(1)(D) (2002): Affected
utilities may recover fee costs by charging customers
an amount equal to the right-of-way fee. |
| Ark.
Code Ann. § 27-67-304(a) (2002): "The rights-of-way
provided for all state highways shall be held inviolate
for state highway purposes, except as provided in
subsections (b) and (c) of this section. No physical
or functional encroachments, installations, signs
other than traffic signs or signals, posters, billboards,
roadside stands, gasoline pumps, or other structures
or uses shall be permitted within the right-of-way
limits of state highways." |
| Ark.
Code Ann. § 27-67-304(b) (2002): As long as
it does not interfere with public use of the highways,
any political subdivision, rural electric cooperative,
rural telephone cooperative, private cable company
or public utility may use State Highway Commission
lands under existing permits, or under subsequent
permits approved by the Commission. |
| California |
Cal.
Pub. Util. Code § 1004 (2002): Providers must obtain
a local franchise, license, or permit before applying
for a certificate of public convenience and necessity
from the state. Construction may not begin until
a certificate of public convenience and necessity
is granted by the Public Utility Commission. However,
a provider may be exempted from certification requirements
by the Commission and be granted registration status
instead. |
Cal.
Pub. Util. Code § 7901.1 (2001): Statutes reserve
right of municipalities to impose fees and "exercise
reasonable control" over right of way access. |
|
|
Cal.
Pub. Util. Comm., Dec. No. 98-10-058, No. R.95-04-043
(Filed April 26, 1995), No. I.95-04-044 (Filed April
26, 1995); 1998: "Parties to a dispute involving
access to utility rights of way and support structures
may invoke the Commission's dispute resolution procedures,
but must first attempt in good faith to resolve
the dispute. Disputes involving initial access to
utility rights of way and support structures shall
be heard and resolved through the following expedited
dispute resolution procedure. ..." |
Cal.
Gov. Code § 53066 (2001): Any cable television franchise
or license awarded by municipality pursuant to this
section may authorize the grantee to place wires,
conduits and appurtenances for the community antenna
television system along or across such public streets,
highways, alleys, public properties, or public easements
of the granting municipality. Public easements,
as used in this section, shall include but shall
not be limited to any easement created by dedication
to municipality for public utility purposes or any
other purpose whatsoever. |
Cal.
Pub. Util. Code § 10102 (2002): A municipal corporation
exercising its rights under this article shall restore
the road, street, alley, avenue, highway, canal,
ditch, or flume so used to its former state of usefulness
as nearly as may be, and shall locate its use so
as to interfere as little as possible with other
existing uses of a road, street, alley, avenue,
highway, canal, ditch, or flume. |
| Cal.
Pub. Util. Code § 1007.5 (2002): Commission rules
pre-empt local ordinances. |
Cal.
Gov. Code § 50030 (2001): "Any permit fee.shall
not exceed the reasonable costs of providing the
service for which the fee is charged." |
Cal.
Pub. Util. Comm., Dec. No. 98-10-058, No. R.95-04-043
(Filed April 26, 1995), No. I.95-04-044 (Filed April
26, 1995); 1998: "In the event that such an
application is granted, and the local governmental
body refuses to grant access in accordance with
the Commission order, the carrier's recourse shall
be to file a lawsuit in the appropriate court of
civil jurisdiction for resolution." ... |
| Cal.
Pub. Util. Comm., Dec. No. 98-10-058, No. R.95-04-043
(Filed April 26, 1995), No. I.95-04-044 (Filed April
26, 1995); 1998 APPENDIX A COMMISSION-ADOPTED RULES
GOVERNING ACCESS TO RIGHTS-OF-WAY AND SUPPORT STRUCTURES
OF INCUMBENT TELEPHONE AND ELECTRIC UTILITIES: I.
PURPOSE AND SCOPE OF RULES A. These rules govern
access to public utility rights-of-way and support
structures by telecommunications carriers and cable
TV companies in California, and are issued pursuant
to the Commission's jurisdiction over access to
utility rights of way and support structures under
the Federal Communications Act, 47 U.S.C. § 224(c)(1)
and subject to California Public Utilities Code
§§ 767, 767.5, 767.7, 768, 768.5 and 8001 through
8057. These rules are to be applied as guidelines
by parties in negotiating rights of way access agreements. |
| Colorado |
Colo.
Rev. Stat. §§ 38-5.5-101 - 38-5.5-108; 38-5.5-104
(2002): Any telecommunications provider authorized
to do business in Colorado may construct facilities
on state public lands upon payment of just compensation
and compliance with the requirements set by the
State Board of Land Commissioners. |
Colo.
Rev. Stat. § 38-5.5-107(1)(b) (2002): Any application
or permit fees must be related to the costs incurred
by processing the application, and must also be
assessed within a reasonable amount of time after
those costs are incurred. |
|
Colo.
Rev. Stat. § 38.5.5.107 (2) (a) (2002): "Any
tax, fee, or charge imposed by a political subdivision
shall be competitively neutral among telecommunications
providers." |
|
|
|
| Colo.
Rev. Stat. §38-5.5-107(3) (2002): In-kind fee provisions
are not allowed, nor may a municipality require
one as a condition of consent to use a highway. |
Colo.
Rev. Stat. § 38-5.5-103(2) (2002): Municipalities
cannot discriminate among or grant a preference
to competing telecommunications providers in the
issuance of permits or the passage of any ordinance
for the use of its rights-of-way, nor create or
erect any unreasonable requirements for entry to
the rights-of-way for such providers. |
| Colo.
Rev. Stat. § 38.5.5.102(3) (2002): Cable companies
are excluded from the definition of "telecommunications
service," and are therefore exempt from right-of-way
regulation. |
| Colo.
Rev. Stat. § 38.5.5.101(2)(d) (2002): "Access
to rights-of-way and oversight of that access must
be competitively neutral, and no telecommunications
provider should enjoy any competitive advantage
or suffer a competitive disadvantage by virtue of
a selective or discriminatory exercise of the police
power by a local government." |
| Connecticut |
Conn.
Gen. Stat. § 7-130d (2001). Municipalities are granted
authority to regulate right-of-way. |
Conn.
Gen. Stat. § 7-130 (2001). Municipalities are granted
authority to charge fees. |
|
|
Conn.
Gen. Stat. § 16-235 (2001): Carriers may appeal
to the Department of Public Utility Control within
30 days after the order is issued from the local
government stipulating the terms and conditions
of the permit. The Department shall process the
appeal as speedily as possible. |
|
|
| Conn.
Gen. Stat. § 7-148 (2001). Municipalities may regulate
installation of facilities and control excavation
procedures. |
| Conn.
Gen. Stat. § 16-11 (2001): The Department of Public
Utility Control will be kept informed as to the
condition of all utility facilities, and may order
improvements or repairs on these facilities as needed. |
| Conn.
Gen. Stat. § 16-18 (2001): The Department of Public
Utility Control may require a telecommunications
company to move its lines or for multiple telecommunications
companies to string their lines together. |
| Conn.
Gen. Stat. § 16-228 (2001): Telecommunications
companies may construct their lines along public
roads or navigable waters, as long as such construction
does not obstruct the roads or waters. |
| Delaware |
Del.
Code Ann. tit. 26, § 901 (2002): Local authorities
are explicitly granted authority over right-of-way
management. |
Del.
Code Ann. tit. 30, § 5501 (2002): 4.25% Gross Receipts
Tax assessed by PSC on intrastate telecommunications
services, including cellular service. Providers
may pass through to customers. |
|
|
|
Del.
Code Ann. tit. 10, § 61 (2002): Condemnation: "This
chapter shall govern the procedure for all condemnations
of real and personal property within this State
under the power of eminent domain exercised by any
authority whatsoever, governmental or otherwise." |
Del.
Code Ann. tit. 26, § 902(c)(1) (2002): If a telecom
or other company alters the street surface in order
to place or repair its underground facilities, the
company must immediately restore the street surface
to its pre-existing condition. |
| Del.
Code Ann. tit. 22, § 103 (2002): "Street openings.
No person shall open or excavate the bed of any
street or highway of any city, town or village in
this State for the purpose of laying or placing
pipes, wires or other conductors therein without
first obtaining the consent of the duly constituted
authorities of such city, town or village. Nothing
in this section shall require such consent before
opening or excavating the bed of any such street
or highway for the purpose of repairing any pipes,
wires or other conductors theretofore lawfully laid
or placed in such street or highway." |
Del.
Code Ann. tit. 30, § 5502(4) (2002): "A tax
is imposed upon any distributor of cable television
communications commodities and services which tax
shall be at the rate of 2.125% of the gross receipts
or tariff charges received by the distributor for
such commodities or services distributed within
this State." |
Del.
Code Ann. tit. 26, § 902(c)(2) (2002): If a company
fails to restore the street surface, then the municipality
may perform the task and recover its costs from
the company. |
| Del.
Code Ann. tit. 26, § 115 (2002): Gross revenues
assessment on all public utilities for cost of regulation. |
| Del.
Code Ann. tit. 8, § 501-518 (2002): Corporate Franchise
Tax: "Every telegraph, telephone or cable company
. . . to be incorporated under the laws of this
State, shall pay an annual tax, for the use of the
State, by way of license for the corporate franchise
as prescribed in this chapter." |
| DC |
D.C.
Code Ann. § 10-1141.03 (2002). The Mayor may issue
permits to occupy or otherwise use public rights-of-way,
public space, and public structures for any purpose.
He may do so without regard to whether the permittee
owns the property abutting the public areas, and
he may revoke the permit at any time. Any leasing
or subleasing of the public areas must be with the
express consent of the mayor. When a permit is
revoked or expires, the Mayor may require the permittee
to remove any apparatus constructed in the public
areas. |
D.C.
Code Ann. § 10-1141.04 (2002): Right-of-way access
permit fees to cover costs of reviewing permit applications.
"The Mayor may allow a permittee to pay a fixed
charge for a set period of time, pay an amount based
upon the amount of the public right-of-way or public
space used or occupied, pay an amount based upon
a revenue sharing formula, or provide in-kind services
to the District in lieu of a monetary payment, or
the Mayor may require a permittee to pay a combination
of these items." |
|
D.C.
Code Ann. § 34-2004 (2002): Terms and conditions
of franchise agreement must be competitively neutral
and fees must be nondiscriminatory. |
|
D.C.
Code Ann. § 34-1921.08 (2002). Rights to build and
lay conduits not compensable in event of condemnation
[Formerly '43-1417] |
D.C.
Code Ann. § 34-2004(c) (2002):"The Mayor shall
issue rules to establish and regulate the process
through which any alteration or damage to public
rights of way in the District of Columbia shall
be compensated by the telecommunications service
provider whose construction or repair work has altered
or damaged public rights of way. The rules shall
require the telecommunications service provider
to repair any alteration or damage pursuant to specifications
and inspection by the District of Columbia Department
of Public Works, or require that the telecommunications
service provider compensate the District of Columbia
for the cost of repair to a public right of way." |
| D.C.
Code Ann. § 43-1454(a) (2002): "Any telecommunications
provider in the District shall have the right to
utilize the public right-of-ways of the District
for installation, maintenance, repair, replacement,
and operation of its telecommunications system..." |
D.C.
Code Ann. § 47-2501(3) (2002): "After May 31,
1994, pay to the Mayor 10% of these gross receipts
from sales included in bills rendered after May
31, 1994, for a telephone company. . ." |
D.C.
Code Ann. § 16-1311 (2002) If the Mayor needs District
lands for an authorized municipal use, and the property
cannot be purchased at a price acceptable to District
representatives, then a complaint may be filed in
Superior Court for the condemnation of the property
and the ascertainment of its value. |
| D.C.
Code Ann. § 34-2004(b) (2002): "Prior to constructing
each portion of its telecommunications system located
within the public ways, a telecommunications service
provider shall obtain all necessary construction
permits and licenses from the appropriate agency.
All such construction shall be performed in compliance
with applicable codes and regulations, and all facilities
so constructed shall be maintained in compliance
with applicable codes and regulations." |
D.C.
Code Ann. § 16-1301 (2002): "Jurisdiction of
District Court. The United States
District Court for the District of Columbia has
exclusive jurisdiction of all proceedings for the
condemnation of real property authorized by subchapters
IV and V of this chapter, with full power to hear
and determine all issues of law and fact that may
arise in the proceedings." |
| D.C.
Code Ann.§ 2-1219.19. The District may acquire
land, property, easements, or other interests in
real property through condemnation through eminent
domain in furtherance of public purposes. Any exercise
of eminent domain powers must be approved by a 2/3
vote of the District Board. Under this section,
the Board must determine that any property to be
acquired by this process is one of four types of
condemnable land. Any exercise of eminent domain
powers must be submitted to the Council for final
approval or disapproval within 30 days of submission. |
| Florida |
Fla.
Stat. Ch. 202.10-202.41 (2002) COMMUNICATIONS SERVICES
TAX SIMPLIFICATION LAW Prohibits municipalities
and counties from requiring a telecommunications
company to enter franchise, license or other agreements.
Municipal and county right-of-way rules and regulations
may only address placement and maintenance of facilities.
Requires local governments to provide notice of
proposed right-of-way ordinances to FL Department
of State. |
Fla.
Stat. Ch. 202.10-202.41 (2002) COMMUNICATIONS SERVICES
TAX SIMPLIFICATION LAW Municipalities & counties
may charge permit fees to recover actual costs (not
to exceed $100) and tax rate reduced by .12%. If
no permits, may increase tax rate by .12%. |
|
Fla.
Stat. Sec. 202.19. Tax collection scheme applies
explicitly to wireless telecommunications providers. |
|
Fla.
Stat. Ch. 73.161 Right-of-Way for Telephone and
Telegraph over Railroad Right-of-Way. If a telecom
fails to successfully negotiate with a railroad
company for the construction of lines along its
right-of-way, then this access may be acquired through
eminent domain. The judgment will authorize the
petitioner telecom company to enter upon the railroad
right-of-way and construct lines. The lines may
not be constructed in any way as to interfere with
the railroad's business, and the railroad may require
the telecom company to move its lines at any time. |
|
| Fla.
Stat. Ch. 202.10-202.41 (2002) Florida enacted a
harmonized state and local communications services
tax system, which functions as a sales or use tax
assessed on the retail price of telecommunications
services. Fla. Stat. Ch. 337.401(3)(c), (2002).
The local tax component varies by locality. Of the
combined state and local tax rate (which can exceed
10%), 0.24% is earmarked to replace permit fees
foregone by local governments that opt to participate
in the tax collection system instead of collecting
fees. |
Fla.
Stat. Ch. 337.401 (3)(a)(2). Cable companies are
exempt from the statutory right-of-way access provisions,
but do have to pay communications services tax (in
lieu of permitting municipalities to negotiate and
collect franchise fees.) |
| Fla.
Stat. Ch. 202.24(2) (2002). Prohibits in kind compensation. |
| Georgia |
Ga.
Code Ann. § 32-4-92 (2002). Authorizes permitting
authority of local governments. Locals may establish
reasonable regulations for the installation and
construction of facilities in right-of-way, but
the regulations may not be more stringent than those
enforced by the Dept of Transportation to regulate
state highway right-of-way. The locality may require
a written application specifying the nature, extent
and location of the facilities in the area. They
may also require the applicant to furnish indemnification
bond or other acceptable security to pay for any
damage to public road or member of the public. |
Ga.
Code Ann. § 46-5-1(a) (2002): A telecom company
may have right-of-way access to construct and maintain
its lines over any state lands, railroads, or private
lands as long as it pays due compensation for such
use. |
|
|
|
Ga.
Code Ann. § 48-5-420 (2002): Telecommunications
companies are granted special franchise by the state,
granting them the power to exercise right of eminent
domain, use any public highway in the state and
use land above or below public highways. For these
privileges, the telecom must remit to the state
a special franchise tax. |
|
| Ga.
Code Ann. § 46-5-1(a) (2002): Any telecom company
has the right to construct, maintain, or operate
its lines along the state public highways, as long
as the local municipal authorities approve. |
Ga.
Code Ann. § 48-5-423 (2002): "Ascertainment
of valuations of special franchises; levy and collection
of tax. (a) In arriving at a proposed assessment,
the commissioner shall not be bound to accept the
valuation fixed for a special franchise in the return
made but shall review the return and valuation.
When the commissioner refuses to accept the return,
the subsequent proceedings shall be in all particulars
the same procedures as are provided by law in the
case of refusal to accept the returns made by public
utilities of their tangible property. (b) Special
franchises shall be taxed at the same rate as other
property upon the value of the special franchise
as returned or upon the value determined by the
county board of tax assessors. The tax on special
franchises shall be levied and collected in the
same manner as is provided by law in the case of
the tangible property of public utilities." |
Ga.
Code Ann. §22-3-1 (2002). If a telecom company needs
to condemn part of a railroad right-of-way in order
to construct, maintain, or operate its lines, notice
shall be given to the railroad company, and such
notice should include: 1. The manner in which
the telecom company proposes to construct its lines
on the railroad right-of-way; 2. Give the time
of the hearing; 3. Give the name of the assessor
chosen by the telecom company; and 4. Instruct
the railroad company to select their own assessor. |
| Ga.
Code Ann. § 36-34-2(7) (2002): Municipalities have
the authority to make contracts with or grant franchises
to telegraph and telephone companies, as well as
other public utilities. |
| Hawaii |
Haw.
Rev. Stat. § 264-13 (2002). The governor or the
director of transportation may dispose of easements
or rights-of-way along state highways under any
terms that are within the public interest. |
Haw.
Rev. Stat. § 264-7(b) (2002): The director of transportation
established the fee schedule for permits. The fee
schedule should be calculated to recover any costs
spent on issuing the permit. The applicant shall
pay the fee, but the director may waive the fee
where he determines that the work to be done will
improve the highway or otherwise benefit the state.
No fee is required where the only work to be done
is the setting of poles to carry overhead wires. |
|
|
|
Haw.
Rev. Stat. § 101-4 (2002): The right of eminent
domain is granted to telecommunications companies,
as well as other public utility companies, and public
transportation companies. |
|
| Haw.
Rev. Stat. § 264-6 (2002). State highways may not
be disturbed without a permit. |
| Idaho |
Idaho
Code § 62-618 (2002): Municipalities are not permitted
to regulate telecommunications companies. |
Idaho
Code § 50-329A (2002). Municipal franchise fees
may be levied on providers, but levy may not exceed
3% of gross operating revenues; providers may pass
through to customers. This franchise fee is in lieu
of any other tax or fee imposed by the municipality
related to easements, franchises, rights of way,
utility lines and equipment installation. |
|
|
|
|
|
| Idaho
Code § 62-701 (2002): Telecommunications providers
may erect facilities and structures on any public
lands, including along public roads, waterways,
or other lands, as long as those facilities don't
disrupt the use of such roads, etc. |
Idaho
Code §§ 61-1001 & 1004 (2002). Utilities pay
yearly gross revenue fee to Public Utilities Commission
to reimburse for cost of regulation. This fee is
based upon a consideration of the time and expense
devoted to the supervision and regulation of each
class of . . . public utilities during the preceding
calendar year, including salaries and wages of the
commissioners and employees and all other necessary
and lawful expenditures of the commission. |
| Idaho
Code § 62-701A(2) (2002): "With respect to
the installation of its facilities within public
rights-of-way, the telecommunications provider shall
at all times be subject to the authority of a city,
county or highway district. No grant of authority
pursuant to this section shall be deemed to waive
other rights or requirements of the codes, ordinances
or resolutions of a city, county or highway district
regarding permits, reasonable fees to be paid, manner
of construction, or the like, nor to grant any property
interest in the public rights-of-way." |
| Illinois |
|
35 Ill.
Comp. Stat. 635/5 (2002): Recognizing that telecommunications
providers were becoming more competitive, the Illinois
General Assembly abolished municipal franchise fees
and established a uniform municipal infrastructure
maintenance fee. Although this fee is meant to
replace the revenue that municipalities lost from
the franchise fees, the statute provides that the
fee may not be related to the use of public rights-of-way
or to the costs of maintaining and regulating such
use. |
|
35
Ill. Comp. Stat. 625/10(b). Cable companies are
excluded from the definition of "telecommunications
service," and are therefore exempt from right-of-way
regulation. |
|
220
Ill. Comp. Stat. 65/4 (2002): Every telecommunications
provider has a right of entry on private lands when
necessary to maintain, alter, or extend its system.
Compensation for such condemnation must be calculated
according to provisions of the Telegraph Act. (220
ILCS 55/0.01 et. seq.) |
|
| 35
Ill. Comp. Stat. 636/5-60 (2002): With the implementation
of the municipal infrastructure maintenance fee,
municipalities were deemed to have waived their
rights to any compensation that might subsequently
accrue under a franchise agreement executed before
January 1, 1998, if: 1) the municipality imposes
a tax at a rate exceeding 5%; 2) the municipality
affirmatively waives such fees; or 3) the municipality
has a municipal infrastructure maintenance fee in
place. |
| 35
Ill. Comp. Stat. 635/15 (2002): The state fee portion
of the municipal infrastructure maintenance fee
is .05% of the gross retail revenues. |
| 35
Ill. Comp. Stat. § 635/20 (a), (b) (2002): The
municipality's portion of the municipal infrastructure
maintenance fee may not exceed 1% of gross retail
revenues in areas with a population of 500,000 or
less, or 2% in areas with a population of 500,000
or more. |
| 35
Ill. Comp. Stat. 635/30 (2002): With the implementation
of the municipal infrastructure maintenance fee,
municipalities may no longer assess franchise fees
or other charges on telecommunications providers. |
| Indiana |
Ind.
Code § 8-1-2-101(b) (2002): Municipalities or county
executives may operate and maintain the public roads
and other lands for the benefit of public safety.
They may also manage the rights-of-way associated
with the public roads or other lands, and may require
compensation for their use. Such compensation must
be competitively neutral and non-discriminatory. |
Ind.
Code § 8-1-2-101(b) (2002): Compensation may not
exceed the municipality's direct and actual costs
of managing the right-of-way for the public utility.
These costs shall be assigned individually to the
public utility creating the costs. |
Ind.
Code § 8-1-2-101(a)(4) (2002). A municipality has
30 days in which to approve construction on a right-of-way.
After 30 days of inaction, may petition the public
utility commission for a hearing. |
Ind.
Code § 8-1-2-101(b)(2002) The assessment of compensation
for the use of public rights-of-way must be competitively
neutral and nondiscriminatory. |
|
|
Ind.
Code § 8-1-2-101(b) (2002): Management costs may
include the costs of: . . .4. Restoring work inadequately
performed; 5. Administering a restoration ordinance
that ensures the right-of-way will be returned to
its original condition . . . |
| Ind.
Code § 8-1-2-101(b) (2002): Management costs may
include the costs of: 1. Registering occupants;
2. Verifying occupation; 3. Inspecting job sites
and restoration projects; 4. Restoring work inadequately
performed; 5. Administering a restoration ordinance
that ensures the right-of-way will be returned to
its original condition; and 6. any management costs
associated with the implementation of any other
ordinance associated with rights-of-way. These
costs may not include rents, franchise fees, or
any other fee paid by a public utility for occupation
of the right-of-way. |
Ind.
Code § 8-1-2-101(b)(2002) This section specifically
defines "right-of-way" as excluding airwaves
above the streets (so not including wireless communications.)
However, it does not deal with the issue of wireless
transmitters. |
| Ind.
Code § 8-1-2-101(d)(2002) None of the right-of-way
statutes affect franchise agreements between a municipality
and a cable company. |
| Iowa |
Iowa
Code § 364.2(4)(a) (2002): "A city may grant
to any person a franchise to erect, maintain, or
operate plants and systems [for telecommunications
systems and other utilities] . . .within the city
for a term of not more than 25 years. When considering
whether to grant, amend, extend, or renew a franchise,
a city shall hold a hearing . . . The franchise
may be granted, extended, or renewed only by an
ordinance, but no exclusive franchise shall be granted
. . .
|
Iowa
Code § 480A.3 (2002): The only fee that a municipality
can recover from a utility are those management
costs caused by the utility's occupation of the
right-of-way. If the management costs are attributed
to more than one entity, the costs shall be allocated
proportionately to the users of the right-of-way.
Any other obligations must be imposed on a competitively
neutral basis. |
|
Iowa
Code § 480A.2 (2002): This section specifically
defines "right-of-way" as excluding airwaves
above the streets (so not including wireless communications.)
However, it does not deal with the issue of wireless
transmitters. |
Iowa
Code § 480A.5 (2002). Arbitration upon completion
of administrative review. |
Iowa
Code § 364.2(4)(e) (2002): "The franchise ordinance
may regulate the conditions required and the manner
of use of the streets and public grounds of the
city, and it may, for the purpose of providing electrical,
gas, heating, or water service, confer the power
to appropriate and condemn private property upon
the person franchised." |
|
| Iowa
Code § 364.2(4)(e) (2002): "The franchise ordinance
may regulate the conditions required and the manner
of use of the streets and public grounds of the
city, and it may, for the purpose of providing electrical,
gas, heating, or water service, confer the power
to appropriate and condemn private property upon
the person franchised." |
Iowa
Code § 480A.4 (2002): A municipality may not allow
in-kind services in lieu of fees, nor may it require
in-kind services as a condition for use of the right-of-way. |
Iowa
Code § 480A.2 (2002): Cable companies are excluded
from the definition of "public utility,"
and are therefore exempt from right-of-way regulation.
(Other telecommunications providers are included.) |
| Iowa
Code § 477.1 (2002): Any telecommunications provider
may construct its system along the public roads,
along public waterways, or through public or private
lands. However, construction along a primary road
is subject to rules adopted by the state department
of transportation. |
| Iowa
Code § 480A.1- § 480A.6 (2002). § 480A.1: "Purpose.
The general assembly finds that it is in the public
interest to define the right of local governments
to charge public utilities for the location and
operation of public utility facilities in local
government rights-of-way." |
| Kansas |
Kan.
Stat. Ann. § 17-1902(B) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002): Any provider has
the right to construct systems and related facilities
along the state's public rights-of-way. The systems
and facilities must be constructed so as not to
obstruct other entities' use of the rights-of-way. |
Kan.
Stat. Ann. § 17-1902(N) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002). A city may charge
for the reasonable, actual, and verifiable costs
of managing the city right-of-way. Fees may include:
a permit fee, excavation fee, inspection fee, repair
and restoration costs, performance bond. |
Kan.
Stat. Ann. § 17-1201(h) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002). Franchise applications
must be processed within 90 days of receipt. |
Kan.
Stat. Ann. § 17-1902(D) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002). The ability of
a provider to use a right-of-way is subject to public
health and safety considerations. A city may regulate
the use of a right-of-way provided that such exercise
is competitively neutral and nondiscriminatory. |
Kan.
Stat. Ann. § 17-1902(F). (2002) (Amended by Senate
Bill 397, effective July 1, 2002) Before the city
government can deny a provider access to a right-of-way,
it must give the provider notice and an opportunity
for public hearing. The subsequent denial may be
appealed to district court. |
|
Kan.
Stat. Ann. § 17-1902(k) (2002) (Amended by Senate
Bill 397, effective July 1, 2002): A city may require
a telecommunications provider to repair all damage
to a right-of-way cause by the use of that right-of-way.
If the provider fails to make such repairs, the
city may effect the repairs and charge the provider
for their cost. |
| Kan.
Stat. Ann. § 17-1902(k) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002): A city may require
a telecommunications provider to repair all damage
to a right-of-way cause by the use of that right-of-way.
If the provider fails to make such repairs, the
city may effect the repairs and charge the provider
for their cost. |
Kan.
Stat. Ann. § 17-1902(h) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002): A city may not
require a telecommunications company to provide
it with in-kind services. |
Kan.
Stat. Ann. § 17-1902(I) (2002) (Amended by Senate
Bill 397, effective Jul 1, 2002). A city must process
a valid construction application with 30 days. |
Kan
Stat. Ann. § 17-1902(a)(1) (2002): This section
specifically defines "right-of-way" as
excluding airwaves above the streets (so not including
wireless communications.) However, it does not
deal with the issue of wireless transmitters. |
Kan.
Stat. Ann. § 17-1902(N) (2002) (Amended by Senate
Bill 397, effective July 1, 2002). A city may charge
for the reasonable, actual, and verifiable costs
of managing the city right-of-way. Fees may include:
. . . repair and restoration costs . . . |
| Kan.
Stat. Ann. § 12-2001(g), (j). Each city may assess
a one-time franchise application fee to cover the
costs of reviewing the application. It may also
impose either an access line fee of up to $2.00
per access line per month, or a gross receipts fee
of up to 5% on local services. |
| Kentucky |
Ky.
Rev. Stat. Ann. § 278.540 (2002): Once just compensation
has been made, the provider gains the right to construct,
maintain and operate its lines through any public
lands of this state and across and along any public
road. |
Ky.
Rev. Stat. Ann. § 278.540(1) (2002): Just compensation
for right-of-way access is authorized. |
|
|
|
Ky.
Rev. Stat. Ann. § 278.540(1) (2002): As long as
just compensation is paid, telecommunications companies
have the right to construct and maintain its lines
on any public lands, public roads, or navigable
waters. |
|
| Ky.
Rev. Stat. Ann. § 278.130 (2002): Cities are prohibited
from assessing occupational license tax on public
utilities. Instead, PSC assesses annual license
tax on utilities. |
Ky.
Rev. Stat. Ann. § 278.540(2) (2002): A telecommunications
company may contract with a private property owner
for right-of-way over private lands, or if they
are unable to reach an agreement by contract, the
telecommunications company may condemn the private
land under the Eminent Domain Act of Kentucky.
(Ky. Rev. Stat. Ann. § 416.450 - 416.680). |
| Louisiana |
La.
Rev. Stat. Ann. § 48:381.1(C) (2002). Providers
requesting access to state highways must apply for
a right-of-way access permit with the PSC chief
engineer. |
La.
Rev. Stat. Ann. § 48:381.2 (A)(2), (2002): When
fiber optic cable providers apply for permits, their
application commits them to a one-time permit fee. |
|
La.
Rev. Stat. Ann. § 48:381.2(A)(1)(2002): "The
chief engineer or his duly authorized representative
may issue nonexclusive permits, on a competitively
neutral and nondiscriminatory basis for use of public
rights-of-way, to utility operators for the purpose
of installation of fiber-optic cable facilities
within controlled-access highway rights-of-way." |
|
|
|
| La.
Rev. Stat. Ann. § 48:381.3(A)(2) (2002). Providers
seeking access to locally controlled right-of-way
are subject to the ordinances and resolutions of
the locality where they are located. |
La.
Rev. Stat. Ann. § 48:381.2(F) (2002): In-kind services
(shared resources) may help defray permit fee costs
for providers. "F. The fee for fiber-optic
telecommunication installations placed within a
controlled access highway right-of-way shall not
exceed the actual cost of the administration of
the program. The department may reduce fees in exchange
for shared resources. The department is authorized
to reduce fees for its agents, defined for the purposes
of this Subsection as those applicants who erect
facilities on behalf of the department in order
to conduct department work." |
| La.
Rev. Stat. Ann. § 33:4401(2002): Municipalities
may grant franchises to telecommunications companies
or other public utilities, allowing them to use
public streets, sewers, alleys, etc. for their wire
system. These franchises may not be exclusive,
and may not extend beyond 60 years. |
| Maine |
Me.
Rev. Stat. Ann. tit. 35-A § 2502 (2001): Statutes
specifically designate licensing authority among
municipal, county, and state governments, based
on the location of the right-of-way. |
Me.
Rev. Stat. Ann. tit. 35-A §§ 2503, 2510 (2001):
There are two permits, the right-of-way location
permit and the right-of-way excavation permit.
Each one has its own fee. |
|
|
Me.
Rev. Stat. Ann. tit. 35-A § 2503-13 (2001). Appeals
may be filed within 2 weeks of the decision and
must be heard within 30 days of the filing of such
appeal. |
Me.
Rev. Stat. Ann. tit. 35-A § 7904 (2001): Telecommunications
companies may purchase or take land as needed for
the public use of constructing lines, poles, etc.
If land is taken damages must be estimated and paid
in accordance with sections 6502-6512. |
Me.
Rev. Stat. Ann. tit. 35-A § 2512 (2001): If the
provider does not properly restore the excavated
right-of-way, the local government may restore the
right-of-way and charge the provider the cost of
redoing the work plus 50%. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2507 (2001): No provider
may begin construction without a permit from the
proper licensing authority. |
Me.
Rev. Stat. Ann. tit. 35-A § 2510-1 (2001): Local
excavation fees may not exceed the reasonable cost
of replacing the excavated pavement. |
| Me.
Rev. Stat. Ann. tit. 35-A §§ 2503-2505 (2001): Permits
may require description of facilities. Terms and
conditions of permits may specify other requirements
determined necessary in the best interests of the
public safety and use of the right-of-way so as
not to obstruct use for public travel. |
| Me.
Rev. Stat. Ann. tit. 35-A §§ 2503 - 2506 (2001):
Providers are liable only for acts of negligence
in the installation or maintenance of the facility. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2503-8,9 (2001): Additional
permits are not required for replacing or maintaining
facilities. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2503-14 (2001): Permit
required for installing underground facilities. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2312-1,2 (2001): If
a provider owns facilities in a municipally designated
historic district, the municipality may require
the provider to offer services to buildings located
therein, but the municipality is required to bear
the cost of relocating or constructing facilities
to those buildings. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2522 (2001): Providers
must provide written notice to local government
and interested area residents before cutting, trimming
or removing trees in order to access right-of-way. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2301, 2307 (2001): Except
as limited, every corporation organized under section
2101 for the purpose of operating telephones and
every corporation organized for the purpose of transmitting
television signals by wire may construct, maintain
and operate its lines upon and along the route or
routes and between the points stated in its certificate
of incorporation; and may construct its lines and
necessary erections and fixtures for them along,
over, under and across any of the roads and streets
and across or under any of the waters upon and along
the route or routes subject to the conditions and
under the restrictions provided in this chapter. |
| Me.
Rev. Stat. Ann. tit. 35-A § 2307 (2001): Telecommunications
companies and public utilities may place their systems
under streets and highways as long as they obtain
a written permit from the licensing authority.
The permit may be subject to additional rules concerning
the location and construction of such systems. |
| Maryland |
Md.
Ann. Code art. 23A, § 2(13) (2002): Municipalities
have the express power to grant exclusive or non-exclusive
franchises to a community antenna system or cable
systems that use rights-of-way. The municipality
may impose franchise fees and establish rates, rules
and regulations for the franchises. |
|
|
Md.
Code Ann., Public Utility Companies § 5-410 (4)(b)
(2002): Telecommunications companies have the power
to construct their systems on any authorized route,
and acquire by condemnation any property deemed
necessary for their purposes. |
|
| Mass. |
Mass.
Gen. Laws Ann. ch. 166 § 25 (2002): Municipalities
may permit construction of telecommunications systems
in public areas, and they may also establish reasonable
regulations for the construction and maintenance
of telecommunications systems, as well as other
public utility systems. |
Mass.
Gen. Laws Ann. ch. 166 § 25A (2002): The telecommunications
and energy department has the authority to set rates
for right-of-way use, and in setting those rates
the department must consider consumer interests. |
|
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|
|
|
| Mass.
Gen. Laws Ann. ch. 166 § 22 (2002): Providers must
provide written notice of intent to access right-of-way
for construction purposes. The municipality must
hold a hearing and issue written notice of the hearing.
After the hearing, the municipality may grant to
the provider a location for the lines and allowances
for the number and height of the lines to be installed. |
Mass.
Gen. Laws Ann. ch. 166 §25A (2002): The telecommunications
and energy department shall set reasonable rates
for telecommunications attachments to existing right-of-way.
The rates shall not be lower than the cost to the
utility providing the existing facility, nor more
than the proportional cost of the attachment. |
| Mass.
Gen. Laws Ann. ch. 166 § 25A (2002): Any municipal
regulations pertaining to the installation or construction
of telecom lines must be approved by the state Department
of Telecommunications and Energy. |
| Mass.
Gen. Laws Ann. ch. 166 § 38 (2002): Penalties for
intentional or malicious injury of telecom facilities
in right-of-way. |
| Michigan |
Mich.
Comp. Laws Ann. §§ 484.3101-484.3120 (2002) Metropolitan
extension telecommunications rights-of-way oversight
act. § 484.3103: "(1) Pursuant to section
27 of article VII of the state constitution of 1963
and any other applicable law, the metropolitan extension
telecommunications rights-of-way oversight authority
is established as an autonomous agency within the
department of consumer and industry services." |
Mich.
Comp. Laws Ann. § 484.3108 (2002) Maintenance fee.
"...(3) Except as otherwise provided under
subsection (6), for the period of November 1, 2002
to March 31, 2003, a provider shall pay an initial
annual maintenance fee to the authority on April
29, 2003 of 2 cents per each linear foot of public
right-of-way occupied by the provider's facilities
within a metropolitan area, prorated for the period
specified in this subsection. (4) Except as otherwise
provided under subsection (6), for each year after
the initial period provided for under subsection
(3), a provider shall pay the authority an annual
maintenance fee of 5 cents per each linear foot
of public right-of-way occupied by the provider's
facilities within a metropolitan area. (5) The fee
required under this section is based on the linear
feet occupied by the provider regardless of the
quantity or type of the provider's facilities utilizing
the public right-of-way or whether the facilities
are leased to another provider. (6) In recognition
of the need to provide nondiscriminatory compensation
to municipalities for management of their rights-of-way,
the fees required under this section shall be the
lesser of the amounts prescribed under subsections
(3) and (4) or 1 of the following: (a) For a provider
that was an incumbent local exchange carrier in
this state on January 1, 2002, the fees within the
exchange in which that provider was providing basic
local exchange service on January 1, 2002, when
restated by the authority on a per access line per
year basis, shall not exceed the statewide per access
line per year fee of the provider with the highest
number of access lines in this state. The authority
shall annually determine the statewide per access
line per year fee by dividing the amount of the
total annual fees the provider is required to pay
under subsections (3) and (4) by the provider's
total number of access lines in this state. (b)
For all other providers in an exchange, the fee
per linear foot for the provider's facilities located
in the public rights-of-way in that exchange shall
be the same as that of the incumbent local exchange
carrier. |
Mich.
Comp. Laws Ann. § 484.3106 (2002): The commission
website has information regarding the length of
time each municipality requires to grant an application. |
Mich.
Comp. Laws Ann. § 484.3115(3) (2002): "...
.A provider's right to access and use of a public
right-of-way shall not be unreasonably denied by
a municipality. ." |
Mich.
Comp. Laws Ann. § 484.3117 (2002). If requested,
the Commission may review an Oversight Authority
decision de novo. The Commission's decision or
order is reviewable pursuant to section 26 of 1901
PA 300, MCL 462.26. |
|
|
| Mich.
Comp. Laws Ann. § 484.3115 (2002): Municipalities
shall grant providers a permit to use any public
rights-of-way located within the municipal jurisdiction.
If an application involves an easement or public
place, then the municipality should act promptly
in granting the permit. |
Mich.
Comp. Laws Ann. § 484.3106 (2002): When applying
for a municipal permit, a provider must pay a $500
application fee. This fee must be paid to each
municipality where the provider needs access to
a right-of-way. |
Mich.
Comp. Laws Ann. § 484.3115 (2002): "(3) A municipality
shall approve or deny access under this section
within 45 days from the date a provider files an
application for a permit for access to a public
right-of-way." |
Mich.
Comp. Laws Ann. § 484.3107 (2002). If irresolvable
disputes arise between a municipality and a provider,...
"the commission shall appoint a mediator within
7 days from the date of the notice to make recommendations
within 30 days from the date of the appointment
for a resolution of the dispute. If any of the parties
are unwilling to comply with the mediator's recommendations,
any party to the dispute may within 30 days of receipt
of the recommendation request the commission for
a review and determination of a resolution of the
dispute. ..." |
| Mich.
Comp. Laws Ann. §484.3114 (2002): "(1)(a) Before
the passage of any ordinance or resolution authorizing
a county or municipality to either construct telecommunication
facilities or provide a telecommunication or cable
modem service provided through a broadband internet
access transport service, a county or municipality
shall conduct at least one public hearing. A notice
of the public hearing shall be provided as required
by law." |
| Mich.
Comp. Laws Ann. § 484.3115 (2002): If in constructing
its facilities a provider damages or causes damage
to the street or highway adjacent to the right-of-way,
the provider must return the street or highway to
its preexisting condition. |
| Minnesota |
Minn.
Stat. § 237.04 (2002): The Minn. Department of Commerce
has the authority to establish rules for the use
of right-of-way by public utilities. These rules
shall include regulations for construction, maintenance,
and operation of facilities along right-of-ways. |
Minn.
Stat. § 237.163(6)(a) (2002): "A local government
unit may recover its right-of-way management costs
by imposing a fee for registration, a fee for each
right-of-way permit, or, when appropriate, a fee
applicable to a particular telecommunications right-of-way
user when that user causes the local government
unit to incur costs as a result of actions or inactions
of that user. A local government unit may not recover
from a telecommunications right-of-way user costs
caused by another entity's activity in the right-of-way." |
|
Minn.
R. 7819.1000(2) (2002) "Permit fees must be
allocated in a competitively neutral manner and
must be imposed in a manner so that aboveground
uses of public rights-of-way do not bear costs incurred
by the local government unit to regulate underground
uses of public rights-of-way."
|
|
|
|
| Minn.
R. 7819.4000 (2002) Municipalities may establish
a right-of-way mapping system to facilitate right-of-way
management, enhance public safety, improve right-of-way
design, and encourage cooperation between municipalities. |
Minn.
Stat. § 237.163(6)(b) (2002): "Fees, or other
right-of-way obligations, imposed by a local government
unit on telecommunications right-of-way users under
this section must be: (1) based on the actual costs
incurred by the local government unit in managing
the public right-of-way; (2) based on an allocation
among all users of the public right-of-way, including
the local government unit itself, which shall reflect
the proportionate costs imposed on the local government
unit by each of the various types of uses of the
public rights-of-way; (3) imposed on a competitively
neutral basis; and (4) imposed in a manner so that
aboveground uses of public rights-of-way do not
bear costs incurred by the local government unit
to regulate underground uses of public rights-of-way." |
Minn.
Stat. § 237.162 (2002): This section specifically
defines "right-of-way" as excluding airwaves
above the streets (so not including wireless communications.)
However, it does not deal with the issue of wireless
transmitters. |
MINNESOTA
ADMINISTRATIVE CODE, PUBLIC UTILITIES COMMISSION,
CHAPTER 7819 PUBLIC RIGHTS-OF-WAY STANDARDS ---->>> |
Minn.
Stat. § 237.163(7)(d) (2002): "A local government
unit may not collect a fee imposed under this section
through the provision of in-kind services by a telecommunications
right-of-way user, nor may a local government unit
require the provision of in-kind services as a condition
of consent to use the local government unit's public
right-of-way." |
Minn.
Stat. § 237.162 (2002): Cable systems are exempted
from the definition of "telecommunications
right-of-way user." |
| Minn.
R. 7819.1100(3) (2002): "Degradation fee. A
right-of-way user may elect to pay a degradation
fee in lieu of restoration. However, the right-of-way
user shall remain responsible for replacing and
compacting the subgrade and aggregate base material
in the excavation and the degradation fee must not
include the cost to accomplish these responsibilities." |
| Minn.
R. 7819.1000(1) (2002): "Permit fee. A local
government unit that requires a permit for excavation
in or obstruction of the public right-of-way shall
make its permit fee schedule available to the public.
The permit fee schedule must be established in advance
and designed to recover the local government unit's
actual costs incurred in managing the public right-of-way." |
| Minn.
R. 7819.1000(2) (2002): "Allocation of permit
fees. Permit fees must be based on an allocation
among all users of the public right-of-way, which
shall include the local government unit itself,
so as to reflect the proportionate costs imposed
on the local government unit by each of the various
types of users of the public rights-of-way. Although
the local government unit must be allocated its
proportionate share of permit fees, the local government
unit need not transfer funds to pay permit fees.
Permit fees must be allocated in a competitively
neutral manner and must be imposed in a manner so
that aboveground uses of public rights-of-way do
not bear costs incurred by the local government
unit to regulate underground uses of public rights-of-way." |
| Minn.
R. 7819.1000(3) (2002): "Delay penalty. A local
government unit may establish and impose a reasonable
penalty for unreasonable delays in right-of-way
excavation, obstruction, patching, or restoration.
The delay penalty must be established from time
to time by resolution of the local government unit's
governing body. A delay penalty must not be imposed
if the delay in project completion is due to circumstances
beyond the control of the applicant, including without
limitation inclement weather, acts of God, or civil
strife." |
| Mississippi |
Miss.
Code Ann. § 21-27-1 (2002): Municipalities do not
have the right to grant exclusive use of rights-of-way,
nor may they grant a franchise without compensation,
or for a period of more than 25 years. |
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| Miss.
Code Ann. § 21-37-3 (2002): " . . . Municipalities
shall have the power to exercise full jurisdiction
in the matter of streets, sidewalks, sewers, and
parks; to open and lay out and construct the same;
and to repair, maintain, pave, sprinkle, adorn,
and light the same." |
| Missouri |
Mo.
Rev. Stat. § 67.1832 (2001): Municipalities shall
permit telecommunication companies and other public
utilities to construct, maintain and operate their
systems on public rights-of-way. |
Mo.
Rev. Stat. § 67.1840.2(1) (2001): "Right-of-way
permit fees . . . shall be: [b]ased on the
actual, substantiated costs reasonably incurred
by the political subdivision in managing
the public right-of-way." |
Mo.
Rev. Stat. § 67.1836.3 (2001): 31 day deadline for
right-of-way applications relating to a specific
excavation. |
Mo.
Rev. Stat. § 67.1836 (2001): Municipalities may
deny right-of-way permits if they provide the applicant
with a competitively-neutral and nondiscriminatory
reason for denial, or if they provide an reasonable
alternative. |
Mo.
Rev. Stat. § 67.1838 (2001): Disputes to be reviewed
by governing body of the political subdivision --
mediation or binding arbitration permitted upon
completion of administrative review. |
|
Mo.
Rev. Stat. § 67.1834 (2001): The right-of-way
user is obligated to restore the right-of-way and
any adjacent streets or highways to their preexisting
condition. If they do not make the necessary repairs,
the municipality is authorized to make the repairs
and require the user to provide reimbursement for
the costs. |
| Mo.
Rev. Stat. § 67.1830(5) (2001): ""Management
costs" or "rights-of-way management costs",
the actual costs a political subdivision reasonably
incurs in managing its public rights-of-way, including
such costs, if incurred, as those associated with
the following: (a) Issuing, processing and verifying
right-of-way permit applications; (b) Inspecting
job sites and restoration projects; (c) Protecting
or moving public utility right-of-way user construction
equipment after reasonable notification to the public
utility right-of-way user during public right-of-way
work; (d) Determining the adequacy of public right-of-way
restoration; (e) Restoring work inadequately performed
after providing notice and the opportunity to correct
the work; and (f) Revoking right-of-way permits." |
Mo.
Rev. Stat. § 67.1830 (2001): This section specifically
defines "right-of-way" as excluding airwaves
above the streets (so not including wireless communications.)
However, it does not deal with the issue of wireless
transmitters. |
| Mo.
Rev. Stat. § 67.1842.3 (2001): Prohibits in-kind
compensation. |
| Montana |
Mont.
Code Ann. § 7-13-2220 (2002): "Right-of-way
across state lands. The right-of-way is given, dedicated,
and set apart to locate, construct, and maintain
district works over and through any lands which
are the property of this state, and the district
has the same rights and privileges relating to the
right-of-way as are granted to municipalities." |
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Mont.
Code Ann. § 70-30-102 (2002): Eminent domain may
be exercised over private lands for the erection
of telecommunications facilities, among other uses. |
|
| Mont.
Code Ann. § 7-3-4449 (2002): "The commission
shall have all powers to grant rights to occupy
or use the streets, highways, bridges, or public
places in the municipality that now are or hereafter
may be granted to municipalities by the constitution
or laws of Montana. Every ordinance or resolution
passed by the commission granting the right to occupy
or use streets, highways, or public places of municipalities
shall be complete in the form in which it is finally
passed and remain on file with the commission for
inspection by the public for at least 1 week before
the final adoption or passage thereof." |
| Mont.
Code Ann. § 7-14-4102 (2002): Local government may
regulate and prevent the use or obstruction of streets,
sidewalks and public grounds by signs, poles, wires,
or any obstruction. |
| Mont.
Code Ann. § 69-4-101 (2002): A telecommunications
company or other public utility may construct its
system facilities along the public state roads.
The construction of this system may not impede road
use, nor may it threaten public safety. |
| Nebraska |
Neb.
Rev. Stat. Ann. § 86-704(1) (2002): A telecommunications
company or other public utility may construct its
system facilities along the public state roads,
public lands, or private lands if necessary. The
construction of this system may not impede road
use, and any wires or cables must be at least 18
feet above highway crossings. |
Neb.
Rev. Stat. Ann. § 86-704 (4)(a) (2002): "A
municipality shall not levy a tax, fee, or charge
for any right or privilege of engaging in a telecommunications
business or for the use by a telecommunications
company of a public highway other than: (i) An
occupation tax authorized under section 14-109,
15-202, 15-203, 16-205, or 17-525; and (ii) A public
highway construction permit fee or charge to the
extent that the fee or charge applies to all persons
seeking use of the public highway in a substantially
similar manner. All public highway construction
permit fees or charges shall be directly related
to the costs incurred by the municipality in providing
services relating to the granting or administration
of permits."
|
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Neb.
Rev. Stat. Ann. § 86-704(4)(b) (2002): "Any
tax, fee, or charge imposed by a municipality shall
be competitively neutral."
|
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Neb.
Rev. Stat. Ann. § 86-705 (2002): "Right-of-way;
condemnation; procedure. Any telecommunications
company may enter upon private lands to survey the
lands for the purpose of obtaining a right-of-way.
Every owner of an interest in private lands to be
occupied by any telecommunications lines shall be
compensated for any right-of-way appropriated pursuant
to sections 86-701 to 86-707. The procedure
to condemn property shall be exercised in the manner
set forth in sections 76-704 to 76-724." |
|
| Neb.
Rev. Stat. Ann. § 86-704 (2002): (4)(a)(ii): Any
highway construction permit fee or charge shall
also be reasonably related in time to the
occurrence of such costs. "(6) Taxes or fees
shall not be collected by a municipality through
the provision of in-kind services by a telecommunications
company, and a municipality shall not require the
provision of in-kind services as a condition of
consent to the use of a public highway." |
|
| Nevada |
Nev.
Rev. Stat. § 707.280 (2002): Anyone constructing
a telecommunications line has the right-of-way for
that line and any other lands, public or private,
that may be necessary to construct and operate that
line. |
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| Nev.
Rev. Stat. § 707.250 (2002): A telecommunications
company registered in the state of Nevada may construct
and maintain their lines through any public or private
lands, along public roads, or along navigable waters,
provided the lines do not cause an obstruction. |
| Nev.
Rev. Stat. § 268.088 (2002): "Municipalities
are not authorized to impose any terms or conditions
on a franchise for the provision of telecommunications
service other than terms or conditions concerning
the placement and location of the telephone lines
and fees imposed for a business license or the franchise,
right or privilege to construct, install or operate
such lines." |
| New
Hampshire |
N.H.
Rev. Stat. Ann. § 231:161, I. (a)-(c) (2002): Permits
to access state-maintained right-of-way must be
acquired from the NH Transportation Commission.
Local right-of-way access must be obtained from
local governments. |
N.H.
Rev. Stat. Ann. § 231:165 (2002): Payment for the
town clerk's services and fees should be made by
the provider. A minimum $10 fee is authorized by
state statutes. |
N.H.
Rev. Stat. Ann. § 231:164 (2002): The proper right-of-way
authorities must process the permit within six months
after the permit application is made. |
|
N.H.
Rev. Stat. Ann. § 231:166 (2002): The provider,
if dissatisfied with the decision of the local government
or Transportation Commission, may appeal to the
Superior Court within 60 days after the respective
governmental authority has delivered their decision. |
|
N.H.
Rev. Stat. Ann. § 231:185 (2002): Providers must
restore right-of-way to original condition as soon
as possible after construction is complete. |
| N.H.
Rev. Stat. Ann. §2 31:161 II (2002): Permits may
not last longer than one year or two years if the
governing authority is petitioned for an extension. |
| N.H.
Rev. Stat. Ann. § 231:184 (2002): Providers may
not begin right-of-way construction until they also
obtain the consent of the proper authorities. |
| N.H.
Rev. Stat. Ann. § 231:186 (2002): Providers are
liable for all damages to the right-of-way or anyone
injured due to the excavation. |
| N.H.
Rev. Stat. Ann. § 231:189 (2002): Willful damage
to conduits within right-of-way will result in the
liability of the guilty party for three times the
damages sustained and he/she shall be guilty of
a misdemeanor or a felony, depending on the nature
of the case. |
| N.H.
Rev. Stat. Ann. § 48:17-10 (2002): Municipal or
county government consent must be obtained before
accessing right-of-way under their jurisdiction. |
| New
Jersey |
N.J.
Stat. Ann. § 48:17-11 (2002): "The municipal
or county government may regulate the use of all
right-of-way with police and other regulations and
restrictions." |
|
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N.J.
Stat. Ann. § 48:17-9.1 (2002): A telecommunications
company may condemn private lands as is reasonably
necessary for the purpose of serving the public. |
|
| N.J.
Stat. Ann. § 48:5A-20(a) (2002): "Upon obtaining
the prior approval of the board, a CATV company
may construct and maintain the wires, cables, and
conduits necessary to its business upon, under or
over any highway, and may erect and maintain the
necessary fixtures, including poles and posts, for
sustaining such wires and cables; provided, however,
that such wires, cables and fixtures shall be so
placed or constructed as not to unreasonably inconvenience
public travel on the highway or the use thereof
by public utilities or other persons or organizations
having rights therein." |
| New
Mexico |
N.M.
Stat. Ann. §3-42-1 (2002): Franchise ordinances
must be published twice during the 30-day period
following their adoption. If opposed by a number
of residents equal to 20% of the voters in the last
regular municipal election, the ordinance must be
approved by a public vote. |
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| N.M.
Stat. Ann. §3-42-2A (2002): "If previous to
the incorporation of a municipality, the board of
county commissioners has granted to any person right-of-way
over, upon, in and about the streets of the municipality
for the erection, construction, maintenance or operation
of a public utility, and such person has erected,
constructed, or in good faith commenced the erection
or construction of such a utility, the governing
body shall, without a vote by the electorate: (1)
authorize the completion of the system; (2) authorize
the continued or subsequent operation and maintenance
of the system; (3) recognize the rights acquired
by the person erecting or constructing such a system;
and (4) grant such a person a franchise for the
maximum term of years allowed by law upon such terms
as are fair, just and equitable to all parties concerned.
State ROW rules governing state administration of
ROW for telecoms." |
| N.M.
Stat. Ann. § 19-7-57(2002): The Commissioner may
grant rights-of-way and easements to telecommunications
providers and other public utilities. The grantee
shall pay the price set by the Commissioner, and
this price will be at least the minimum price for
the lands. |
| New
York |
N.Y.
Const. Art. IX, § 2 (c)(6): Local governments have
authority over the management of its streets and
property. |
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| N.Y.
Gen City Law § 20 (Consol. 2002): Cities have the
right to grant franchises or rights to use public
waters, streets, or lands located within the city. |
| N.Y.
Gen City Law § 20 (Consol. 2002): Cities have the
power to purchase, lease, and regulate the lands
inside its jurisdiction. |
| N.Y.
Village Law § 4-412 (Consol. 2002): Villages have
the right to grant franchises or rights to use public
waters, streets or lands located within its jurisdiction. |
| N.Y.
Town Law § 64 (Consol. 2002): Towns have the right
to grant franchises or rights to use public waters,
streets or lands located within its jurisdiction. |
| N.Y.
Transp. Corp. Law § 27 (Consol. 2002): Telecommunications
companies may construct their lines along public
roads, navigable waters, or other public lands,
provided that the lines do not impede the use of
such roads, etc. |
| North
Carolina |
N.C.
Gen. Stat. § 62-39 (2002) Public Utility Commission
has the power to regulate crossings of telephone,
telegraph, electric power lines and pipelines and
rights-of-way of railroads and other utilities by
another utility |
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N.C.
Gen. Stat. § 62-183 (2002): Telecommunications companies
and other public utilities have a right to condemn
private lands for the construction, maintenance,
and operation of the telecommunications system,
as long as just compensation is paid for the use
of the land. |
|
| N.C.
Gen. Stat. § 62-182 (2002): Telecommunications
companies and other public utilities have the right
to contract with private land owners for rights-of-way. |
| North
Dakota |
N.D.
Cent. Code § 49-09-16 (2002): Municipalities may
grant rights-of-way, on the public lands and roads
under their jurisdiction, for the construction of
a telecommunications system or other public utility
system. The municipality granting the right of
way may also specify the rules and conditions attached
to the right-of-way. |
N.D.
Cent. Code § 49-21-26 (2002): After December 31,
1998, all telecommunications recovery fees must
be approved by the municipality electorate. |
|
N.D.
Cent. Code, § 49-21-01 (2002): This section specifically
defines "right-of-way" as excluding airwaves
above the streets (so not including wireless communications).
However, it does not deal with the issue of wireless
transmitters. |
N.D.
Cent. Code § 49-21-28 (2002). Arbitration upon completion
of administrative review. |
|
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| N.D.
Cent. Code § 49-21-26 (2002): A municipality may
request that a telecommunications company move its
facilities from the public right of way, and the
telecommunications company must pay for such removal. |
| N.D.
Cent. Code § 49-21-26 (2002): Recovery fess may
only include the municipality's costs of managing
the right of way; any other fees must be assessed
on a competitively neutral basis. If the management
costs are attributable to more than one entity,
the recovery fee must be assessed to all parties
on a proportional basis. |
| N.D.
Cent. Code § 49-21-27 (2002): Municipalities may
not require in kind services in lieu of a fee or
as a pre-requisite to right-of-way use. |
| Ohio |
Ohio
Rev. Code Ann. § 4939.01 - 4939.09 (Anderson 2002);
§ 4939.02: Ohio's policy regarding rights-of-way
grants authority to municipalities to manage rights-of-way,
ensures lawful fee recovery, and promotes municipal
coordination and standardization. |
Ohio
Rev. Code Ann. § 4939.05 (B) (Banks-Baldwin 2002):
Municipalities may charge different fees for the
use of their rights-of-way, based on the amount
of public land used, the type of public utility,
or any other different treatment justified by public
health and safety concerns. This includes a complete
waiver of the fee. |
Ohio
Rev. Code Ann. § 4939.03(C) (Anderson 2002): Municipalities
must approve or deny applications within 60 days
of receipt. |
Ohio
Rev. Code Ann. § 4939.04 (Anderson 2002): Municipalities
shall provide access to rights-of-way on a competitively
neutral and nondiscriminatory basis. |
Ohio
Rev. Code Ann. § 4939.06 (Anderson 2002) "Public
utility may appeal fee. (A) If a public utility
does not accept a public way fee levied against
it pursuant to the enactment of an ordinance by
a municipal corporation, the public utility may
appeal the public way fee to the public utilities
commission." |
|
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| Ohio
Rev. Code Ann. § 5571.16 (Anderson 2002): Municipalities
may require a permit to excavate below local roads
except where such excavation is necessary to repair
a facility already in place. |
Ohio
Rev. Code Ann. § 4939.05 (C) (Banks-Baldwin 2002):
Fees charged may only reflect actual costs of managing
the rights-of-way, plus any demonstrable future
costs. |
Ohio
Rev. Code Ann. §4939.04 (Anderson 2002): "(2)
Nothing in division (A)(1) of this section prohibits
a municipal corporation from establishing priorities
for access to or occupancy or use of a public way
by a public utility or cable operator when the public
way cannot accommodate all public way occupants
or users, which priorities as applied to public
utilities or cable operators shall not be unduly
discriminatory and shall be competitively neutral." |
| Ohio
Rev. Code Ann. § 4939.05 (A) (Banks-Baldwin 2002):
Ohio prohibits the use of in-kind services in lieu
of fees. |
| Oklahoma |
Okla.
Const. Art. IX, § 2: Telecommunications companies
and other public utilities have a right to construct
their lines within the state, and to connect with
like lines at the state border. |
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Okla.
Stat. Tit.18 § 601 (2003): Telecommunications companies
have a right to condemn railroad property in order
to build their systems. |
|
| Okla.
Stat. Tit.11 § 36-101(2003): Municipal governments
are authorized to regulate and control use of ROW
in the municipality. |
| Okla.
Stat. Tit.18 § 601 (2003): Telecommunications companies
are granted a right of way over public and private
lands and roads, subject to the local authorities. |
| Oregon |
Or.
Rev. Stat. § 221.515 (2001): Municipalities have
the authority to regulate and collect taxes for
the use of rights-of-way within their jurisdiction. |
Or.
Rev. Stat. § 221.515 (2001): Municipalities may
collect a privilege tax for the use of rights-of-way,
not to exceed 7% of the gross revenues (earned within
the municipality) of a telecommunications provider. |
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| Or.
Rev. Stat. § 758.010 (2001): Any telecommunications
company or other public utility company has the
right to construct and operate its system along
public roadways, navigable waters, or other public
lands, so long as it does not obstruct the use of
such roads, waters, or lands. |
Or.
Rev. Stat. § 221.515 (2001): If a telecommunications
company is paying the privilege tax, then it does
not have to pay any other compensation. To the
extent that any other fees are levied, they will
be deducted from the privilege tax. |
| Pennsylvania |
71 PA.
Cons. Stat. § 194 (2002) (Adm. Code § 514): Municipalities
may not grant easements or rights-of-way without
the express authority from the General Assembly.
However, municipalities may grant licenses to public
service companies to construct lines if those lines
will give State buildings better service, or if
such line is necessary to serve the public. |
72
PA. Cons. Stat. § 6164 (2002): If a fee dispute
is heard in court, the court will determine the
license fee necessary to compensate the municipality
for its services performed in regulating the license,
and the amount determined will be the maximum amount
charged to the licensee. |
|
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| 71
PA. Cons. Stat. § 194 (2002): (Adm. Code § 514):
Licenses are revocable for cause, as long as the
licensee is provided with at least six months notice. |
71
PA. Cons. Stat. § 194 (2002): (Adm. Code § 514):
Licenses shall provide the amount of compensation
due to the Commonwealth for the use of its property. |
| Rhode
Island |
R.I.
Gen Laws § 39-17-1 (2002): Municipalities are granted
franchising authority to regulate access to ROW. |
R.I.
Gen Laws § 39-17-3 (2002): Franchise holders must
pay franchise tax up to 3% of gross earnings in
that locality, on a quarterly basis. |
|
|
R.I.
Gen Laws § 39-17-7 (2002): Providers may, within
30 days of the municipality's decision, appeal to
the Division of Public Utilities and Carriers, if
they feel local regulations are unreasonable. |
|
|
| R.I.
Gen Laws § 39-17-7 (2002): Providers are subject
to reasonable rules and regulations and orders,
controlling the extent and quality of construction
and service to be maintained by the corporation
and prescribing the location and arrangement of
its tracks, poles, wires or conduits and their appurtenances
enacted by local governments. |
R.I.
Gen Laws § 39-17-8 (2002): Cities and towns may
not charge for use of streets, except as provided
through the franchise tax authorization. |
| R.I.
Gen. Laws § 37-7-8 (2002): "Grant of easements
and rights of way over acquired lands. Whenever,
in the opinion of the acquiring authority, an easement
or right of way may be granted in land owned or
held by the state without thereby jeopardizing the
interests of the state, and the granting of the
easement or right of way will be for the public
good, the acquiring authority, with the approval
of the state properties committee, is hereby authorized
and empowered to grant the easement or right of
way by proper instrument, approved as to substance
by the director of administration and as to form
by the attorney general, for such consideration,
and in such manner and upon such terms and conditions
as may, in the judgment of the state purchasing
agent, be most advantageous to the public interest." |
| R.I.
Gen. Laws § 34-7-5 (2002). "Utility rights-of-way
not acquired by enjoyment. No enjoyment by any persons,
companies or corporations, for any length of time,
of the privilege of maintaining telegraph, telephone,
electric, or other posts, wires or apparatus in,
upon or over any lands or buildings of other persons
or corporations, shall thereby confer any right
to the continued enjoyment of the easement or raise
any presumption of a grant thereof." |
| South
Carolina |
S.C.
Code Ann. § 58-9-2240. A municipality may not use
its authority to regulate rights-of-way as a means
to impose additional regulations on telecommunications
companies or public utilities. |
S.C.
Code Ann. § 58-9-2220 (2002). South Carolina authorizes
municipalities to implement a two-tiered tax system.
(A). A business license tax of up to 0.75% of retail
telecommunications gross income. A franchise or
consent fee for the installation or construction
of physical facilities in public rights-of-ways.
The maximum permissible fee is based on municipal
population and ranges from $100 for a population
of 1,000 or less to $1,000 for a population of more
than 25,000. |
|
S.C.
Code Ann. § 58-9-2230(B) (2002): A municipality
must manage its public rights-of-way on a competitively
neutral and nondiscriminatory basis. |
|
|
|
| S.C.
Code Ann. § 58-12-10 (2002): Public cable companies
may place their cables anywhere on state lands,
roads, or navigable waters, provided that the cable
company contracts with the telephone company or
electric utility to attach on their pre-existing
poles or in their tunnels. Any cable installation
shall not interfere with the use of lands, roads,
or waters. |
S.C.
Code Ann. § 58-9-2230(D) (2002): Mobile telecommunications
companies are not deemed to use rights-of-way unless
they build physical facilities on public property. |
| S.C.
Code Ann. § 58-12-10 (2002): Before a cable company
may place its lines, it must get permission from
the agency in charge of the lands, roads, and public
waters. If the cable must traverse public lands,
the cable company must get permission from the public
landowner. |
| South
Dakota |
S.D.
Codified Laws § 49-32-1 (2002): Telecommunications
companies are granted rights-of-way over public
lands and along public roads, subject to control
by the proper authorities. |
|
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| S.D.
Codified Laws § 49-7-22 (2002): Telecommunications
companies are granted rights-of-way across public
school lands. |
| S.D.
Codified Laws § 31-26-1 (2002): Localities have
franchising authority, but no exclusive franchises
may be granted and no franchise may last more than
20 years. |
| S.D.
Codified Laws § 9-35-1 (2002): Municipalities have
the right to determine charges for local telephone
service, subject to the PUC's powers, and to regulate
the placement of telephone poles, lines, and other
facilities. |
| Tennessee |
Tenn.
Code Ann. § 65-21-201 (2002): Telecommunications
companies or their equivalent are granted rights-of-way
along public roads, over public lands, along navigable
waters, and on private lands. |
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Tenn.
Code Ann. § 65-21-204 (2002): If a telecommunications
provider is unsuccessful in contracting for a right-of-way
over private land, then the company may condemn
the land for its own purpose. |
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| Tenn.
Code Ann. § 65-21-103 (2002): Telecommunications
companies do not have the right to contract for
exclusive rights to rights-of-way in this state. |
| Tenn.
Code Ann. § 6-54-109 (2002): Municipalities have
the exclusive right to franchise utilities within
their jurisdiction. |
| Tenn.
Code Ann. §13-24-303 (2002): Protects authority
of locals to exercise reasonable municipal and county
police powers. |
| Texas |
Tex.
Loc. Gov't. Code Ann. § 283.001 (2002): "(b)
It is also the policy of this state that municipalities:
(1) retain the authority to manage a public right-of-way
within the municipality to ensure the health, safety,
and welfare of the public;" |
Tex.
Loc. Gov't. Code Ann. § 283.001 (2002): "(b)
It is also the policy of this state that municipalities:
(2) receive from certificated telecommunications
providers fair and reasonable compensation for the
use of a public right-of-way within the municipality." |
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Tex.
Loc. Gov't. Code Ann. § 283.001 (2002): "(c)
The purpose of this chapter is to establish a uniform
method for compensating municipalities for the use
of a public right-of-way by certificated telecommunications
providers that: (1) is administratively simple for
municipalities and telecommunications providers;
(2) is consistent with state and federal law; (3)
is competitively neutral; (4) is nondiscriminatory;" |
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| Tex.
Loc. Gov't. Code Ann. § 282.002 (2002): "General
Authority of General-Law Municipality. (a) A general-law
municipality has exclusive control over the public
grounds of the municipality." |
Tex.
Loc. Gov't. Code Ann. § 283.051 (2002): "Right-Of-Way
Fee. (a) Notwithstanding any other law, a certificated
telecommunications provider that provides telecommunications
services within a municipality is required to pay
as compensation to a municipality for use of the
public rights-of-way in the municipality only the
amount determined by the commission under Section
283.055." |
Tex.
Loc. Gov't. Code Ann. § 283.002 (2002): This section
specifically defines "right-of-way" as
excluding airwaves above the streets (so does not
include wireless communications.) However, it does
not deal with the issue of wireless transmitters. |
| Tex.
Loc. Gov't. Code Ann. § 283.052 (2002): Telecommunications
companies do not have exclusive rights to rights-of-way. |
Tex.
Loc. Gov't. Code Ann.. § 283.055 (2002): The Texas
Public Utilities Commission shall set the per-line
rate that a municipality can charge for use of its
rights-of-way. |
| Tex.
Loc. Gov't. Code Ann. § 283.055 (2002): Municipalities
are prohibited from receiving services without compensation
or at below market prices. |
| Utah |
Utah
Code Ann. § 54-4-25 (2003): Telecommunications
companies and other utilities must obtain certification
from the PUC that construction is required before
they may begin construction on a right-of-way. |
Utah
Code Ann. § 72-7-102 (4) (2003): The Highway Authority
may require compensation from utilities for use
of their rights-of-way, but such compensation may
only include those management costs caused by the
utilities' activity. |
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Utah
Code Ann. § 78-34-1 (2003): The right of eminent
domain is extended to telecommunications companies. |
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| Utah
Code Ann. § 72-7-102 (2003): Local highway authorities
(county or municipal) may allow excavating, installation
of utilities and other facilities or access under
rules made by the [local] highway authority[ies]
and in compliance with federal, state and local
law as applicable. |
Utah
Code Ann. § 72-7-102 (4) (2003): The Highway Authority's
fees must be charged on a competitively neutral
basis. If more than one utility is responsible
for the management costs incurred, the fees must
be allocated to each company or entity proportionately. |
| Utah
Code Ann. § 72-7-109 (2003): "Telecommunications
Advisory Council. ...(5) The council shall: (a)
provide information, suggestions, strategic plans,
priorities, and recommendations to assist the department
in administering telecommunications access to interstate
highway rights-of-way for statewide telecommunications
purposes;..." |
Utah
Code Ann. § 72-7-102 (4)(e) (2003): Providers are
entitled to recover ROW access fee costs from their
customers. |
| Utah
Code Ann. § 72-3-109 (2003): "(1) Except as
provided in Subsection (3), the jurisdiction and
responsibility of the department and the municipalities
for state highways within municipalities is as follows:
... (c) (i) A municipality has jurisdiction over
all other portions of the right-of-way and is responsible
for construction and maintenance of the right-of-way." |
| Utah
Code Ann. § 72-5-203 (2003): "(d) A grant of
a permanent easement or right of entry across state
lands other than sovereign and trust lands shall
be made upon a showing to the managing unit of state
government that the continued use will provide a
public benefit commensurate with the value of the
easement and will not unreasonably interfere with
the purposes for which the land was obtained or
is now held." |
| Vermont |
VT.
Stat. Ann. tit. 19 § 1111(a) (2002): "Permits.
-- Permits must be obtained by anyone or any corporation
wishing to use as described in this section any
part of the highway right-of-way on either the state
or town system. Notwithstanding any other statutory
requirement, a permit shall be required for any
use of any highway right-of-way, consistent with
the provisions of this section. The authority given
to the board, the secretary and the attorney general
under this section shall also apply to the legislative
bodies of towns." |
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Vt.
Const., Ch. 1, Art 2d. "That private property
ought to be subservient to public uses when necessity
requires it, nevertheless, whenever any person's
property is taken for the use
of the public,
the owner ought to receive an equivalent in money." |
VT.
Stat. Ann. tit. 19 § 1111(c) (2002): Permitted use
of the right-of-way. "The permit shall include
any conditions imposed by the issuing party....
Failure of any person, corporation or municipality
to perform the work or to restore the highways in
a satisfactory and timely manner to the agency or
the town may result in either the agency or the
town completing the work at the expense of the permit
holder;..." |
| VT.
Stat. Ann. tit. 30 § 2513 (2002): Telecommunications
companies may construct facilities along railroad
tracks, so long as they render reasonable compensation
to the railroad owner. |
VT.
Stat. Ann. tit. 30 § 2502 (2002). "Lines of
wires along highways; wireless telecommunications
facilities; construction; restriction. Lines of
telegraph, telephone and electric wires, as well
as two-way wireless telecommunications facilities,
may, subject to the provisions of section 1111 of
Title 19, be constructed and maintained by a person
or corporation upon or under a highway, in such
manner as not to interfere with repairs of such
highway or the public convenience in traveling upon
or using the same."
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| Virginia |
VA.
Code Ann. § 56-458 (2002): Telecommunications companies
have the right to build its system along public
roads and railroads, on public lands, and along
navigable waterways. |
VA.
Code Ann. § 56-468.1 (2002): In Virginia, the state
Department of Transportation annually calculates
the Public Rights-of-Way Use Fee as an annual average
rate per access line. The average weights public
highway miles at $425 per mile and new installations
at $1 per linear foot. |
VA.
Code Ann. § 56-458(D)(2002) Transportation Board
has 45 days to grant or deny approval for use of
right-of-way, and if denied it must provide a written
explanation of the reasons the permit was denied
and the actions required to cure the denial. |
VA.
Code Ann. § 56-458(C) (2002): Municipalities and
the Commonwealth Transportation Board are prohibited
from unreasonably or discriminatorily restricting
right-of-way use. |
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VA.
Code Ann. § 56-467 (2002): Utility must restore
the right-of-way to a good condition, and if it
does not, the municipality may complete the restoration
and recover costs from the utility. |
| VA.
Code Ann. § 56-462 (2002): "A. No incorporated
city or town shall grant to any such telegraph or
telephone corporation the right to erect its poles,
wires, or cables, or to lay its conduits upon or
beneath its parks, streets, avenues, or alleys until
such company shall have first obtained, in the manner
prescribed by the laws of this Commonwealth, the
franchise to occupy the same." |
VA.
Code Ann. § 56-458(E) (2002). In-kind fees prohibited. |
Va.
Code Ann. § 56-458(B) (2002): Commercial mobile
radio services are exempt from paying right-of-way
fees. |
| Washington |
Wash.
Rev. Code § 35.99.020 (2002): "Permits for
use of right of way. A city or town may grant, issue,
or deny permits for the use of the right of way
by a service provider for installing, maintaining,
repairing, or removing facilities for telecommunications
services or cable television services . . . " |
Wash.
Rev. Code § 35.21.860(1) (2002): Municipalities
may charge fees for the use of their rights of way
that recover their administrative costs related
to the permit process, and a site-specific charge
to wireless providers for the placement of new structures
in the right-of-way. |
Wash.
Rev. Code § 35.99.030 (2002): Municipalities must
grant or deny a "master permit" (a permit
to enter the right of way for the purpose of locating
facilities) within 120 days of application, but
service providers with statewide grants are not
required to apply for master permits. |
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| Wash.
Rev. Code § 35.99.040 (2002): Municipalities may
not use the right-of-way permitting process as a
means of regulating service providers, except where
permitted by federal law. |
Wash.
Rev. Code § 35.99.070 (2002): Washington permits
cities and towns to obtain access to ducts, conduits,
or related structures of a service provider, subject
to conditions that include the payment of
compensation sufficient to recover the provider's
incremental costs. If the municipality allows the
in-kind facilities to be used to provide service
to the public, it must compensate the provider on
the basis of fully allocated costs. |
Wash.
Rev. Code § 35.99.030 (2002): Municipalities must
grant or deny a "use permit" (a permit
to enter the right-of-way for installing, repairing,
or maintaining facilities) within 30 days of application. |
| West
Virginia |
W.Va.
Code § 8-31-1,2 (2002): Municipalities and counties
have franchising authority and may impose terms
and conditions for those agreements. |
W.Va.
Code § 17-16A-13 (2002): The Parkways Authority
has the power to fix and collect fees for the use
of rights-of-way along the state parkways. |
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W.Va.
Code § 54-1-2 (2002): The right of eminent domain
is permitted for construction and maintenance of
telegraph and telephone lines if for public use. |
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| W.Va.
Code § 17-4-8 (2002): Telecommunications companies
and other service providers are prohibited from
constructing facilities on state roads except under
the conditions as may be prescribed by the state
road commissioner. |
| Wisconsin |
Wis.
Stat. § 62.14(6)(b) (2002): "(b) Unusual use
of streets. No building shall be moved through the
streets without a written permit therefore granted
by the board of public works, except in cities where
the council shall, by ordinance authorize some other
officer or officers to issue a permit therefore;
said board shall determine the time and manner of
using the streets for laying or changing water or
gas pipes, or placing and maintaining electric light,
telegraph and telephone poles therein; provided,
that its decision in this regard may be reviewed
by the council." |
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Wis.
Stat. § 32.075 (2002): Telecommunications companies
may file condemnation proceedings as prescribed
herein. |
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| Wis.
Stat. § 196.58 (2002): Municipalities may determine
whether and on what conditions a public utility
may enter and occupy their rights-of-way. |
| Wis.
Stat. § 196.499(14) (2002): "EXTENSION OF FACILITIES.
Any telecommunications carrier may extend its facilities
into or through any municipality for the furnishing
of its services, subject to the reasonable regulation
of the governing body of the municipality relative
to the location of poles and wires and the preservation
of the safe and convenient use of streets and alleys
to the public. Upon a petition for relief made by
a telecommunications carrier, the commission shall
set a hearing and if it finds a contract, ordinance
or resolution under this subsection to be unreasonable,
the contract, ordinance or resolution shall be void." |
| Wyoming |
Wyo.
Const. Art. 10, § 17 (2002): "Rights of telegraph
companies. Any association, corporation or lessee
of the franchises thereof organized for the purpose
shall have the right to construct and maintain lines
of telegraph within this state, and to connect the
same with other lines." |
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Wyo.
Stat. Ann. § 1-26-701- § 1-26 713 (2002): Landowner
has right to compensation if property is taken by
eminent domain. The right accrues on date of possession
by condemner. Compensation equals the fair market
value of the property on the date of valuation,
the commencement of the condemnation proceedings. |
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| Wyo.
Const. Art. 13, § 4 (2002): "Franchises.
No street passenger railway, telegraph, telephone
or electric light line shall be constructed within
the limits of any municipal organization without
the consent of its local authorities." |
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| Wyo.
Stat. Ann. § 15-1-103(a)(xi) (2002): Local governments
granted authority to take all necessary action to
plan, construct. maintain and regulate the use of
streets, including the regulation of any structures
thereunder. |
| Wyo.
Stat. Ann. §15-1-103 (a)(xxxiii)(A) (2002): Cities
may grant franchises to install and maintain necessary
facilities under or over any streets, alleys or
avenues. |
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