State and local governments do not have unlimited discretion in deciding whether to allow access to public rights-of-way and in 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 service. 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.

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.

The CommLaw Group’s attorneys have extensive, specialized experience navigating state and local public rights-of-way statutes, ordinances, and regulations to ensure fair and equitable access to valuable public rights-of-way. We also have experience successfully negotiating rights-of-way agreements that meet the needs of the government entities and that address concerns facing providers. On the cable television front, our attorneys have successfully negotiated cable franchises, transfers, and renewals with cable operators and local governments in a number of jurisdictions across the country.

Public Rights-of-Way and Cable Franchises

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 still subject to the requirements of Section 253. Importantly, in enacting Section 224, Congress created an exception 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.

The CommLaw Group’s attorneys are well versed in the complexities of both federal and state laws governing pole attachments and have successfully negotiated numerous pole attachment agreements with both publicly-owned and municipal utilities for access to their facilities.

Pole Attachments

In addition to seeking access to government-owned rights-of-way and utility ducts, poles, and conduits, there is an increasing demand by providers to gain access to commercial and multi-tenant residential buildings. In particular, with the advent of wireless “hot spots”, wireless providers are increasingly requiring access to commercial property for the installation of their equipment. In addition, the rise of “triple play” offerings by communications providers has created a greater demand in the small business sector for business-class cable, telephone, and Internet packages. Further, there is a growing need, particularly in rural areas, for providers to gain access to privately owned rights-of-way for the installation of their facilities.

Private Rights-of-Way

Traditionally, commercial real estate developers, recognizing the benefit of having such services at their site, allowed access free of charge and only imposed minimum requirements on providers. However, with the downturn in the real estate market, commercial real estate companies are seeking new sources of revenue and likely will revisit the terms and conditions on which they grant access to their property. Likewise, private landowners are often reluctant to allow access to their property for the installation of communications facilities. Unfortunately, there is little in the way of federal law mandating how and to whom commercial and private landowners grant access to their property. Thus, most of the terms of such access agreements are crafted through the negotiations process.

The CommLaw Group’s attorneys have successfully negotiated numerous building access agreements at sites across the country for both wired and wireless providers. In addition, we have experience approaching and negotiating with private landowners to gain necessary access to their property. Our firm can also assist real estate developers in procuring and lawfully deploying state-of-the-art telecommunications, video and Internet services for their developments, including full telecommunications infrastructure through a wide variety of commercial arrangements.

Real Estate and Building Access Issues