Providers seeking access to private and public property for the installation and maintenance of communications facilities need the support of legal counsel knowledgeable about access rights and the use of the public rights-of-way to ensure the installation of facilities are in compliance with the state and local requirements.  

Public Rights of Way and Cable Franchises 

Restrictive rights-of-way entry requirements and onerous compensation requirements have been the subject of much litigation in recent years. Given the current budget crisis at both the state and local level, clashes between providers and government entities over right-of-way compensation issues likely will continue for years to come.

State and local governments do not have unlimited discretion in deciding whether to allow access to public rights-of-way and dictating the terms for such access. Section 253 of the Telecommunications Act of 1996 sets the outer boundaries of their discretion and provides that state and local government laws and regulations may not "prohibit or have the effect of prohibiting" the ability of an entity from providing telecommunications services. Section 253 also requires that all state and local requirements be "competitively neutral" and not discriminate in favor of one provider or class of providers.

Pole Attachments and Infrastructure Access and Right of Way

Similar to Section 253, Section 224 of the Telecommunications Act mandates that electric and telephone utilities provide access to their ducts, poles and conduits to communications providers on just and reasonable rates, terms and conditions.

While municipal pole-owning entities are exempt from the requirements set forth in Section 224, their discretion as to whether to grant access to their poles is not unlimited, as they are subject to the requirements of Section 253.

Importantly, in enacting Section 224, Congress created an exemption for those states that wished to preempt federal regulation of pole attachments by regulating such access themselves. Currently, nineteen states have certified that they are authorized to regulate the terms and conditions governing attachment to utility poles.

Infrastructure Access

In addition to seeking access to government-owned rights-of-way and utility ducts, poles, and conduits, there is an increasing demand for providers to gain access to commercial and multi-tenant residential buildings.

As triple-play (phone/VoIP, cable, and internet) offerings increase consumer demands for equipment, broadband and wireless providers require access to commercial properties in order to install network equipment. Private landowners are often reluctant to allow access to their property for the installation of communications facilities.

With such a large need in rural areas, it's important that providers are granted access to private property to install their facilities' equipment.  Telecom companies should work with counsel to secure the proper easements or other consents needed to address private landowner rights. 

Real Estate and Building Access

Commercial real estate developers recognize the benefits of having co-located telecom services on building sites and are continually seeking new sources of revenue. Telecom companies should work with counsel to negotiate the terms and conditions when working with commercial developers.