Magazine article Nation's Cities Weekly

Local Authority Gets a Boost from Federal Court Decision

Magazine article Nation's Cities Weekly

Local Authority Gets a Boost from Federal Court Decision

Article excerpt

In a victory for local govetnments around the country, the federal district court in Tucson, Ariz. ruled that municipalities have full ability to manage their rights-of-way and receive fair and reasonable compensation for their use under section 253 (c) of the Telecommunications Act of 1996. According to the court, these responsibilities can be undertaken without concern that municipal decisions regarding the rights-of-way will create a private cause of action for telecommunications providers against municipalities under section 253 (c ).

This decision is significant for local governments because it reaffirms the Congressional intent of sections 253 (c) to grant municipalities flexibility to manage their public rights-of-way and to receive fair and reasonable compensation for their use, so long as local government discretion does not prohibit the "ability of any entity to provide ... telecommunications service," as set forth in section 253 (a) of the Act. Therefore, municipalities should be wary of telecommunications providers who tell local officials that section 253 (c) always requires "nondiscrimination? or "competitive neutrality" in right-of-way management and compensation, without considering the burden a particular provider is placing on the right-of-way. This decision suggests that local governments may use section 253 (c ) to benefit their taxpayers and make franchising decisions, including those involving compensation, in their best interest, so long as such decisions do not prohibit the ability of any entity to provide ... telecommunications service,' as required by section 253 (a).

In the case of GST Tucson Lightwave, Inc. v City of Tucson, Arizona, Lightwave argued that the city had discriminated against the company, thus violating section 253 (c) of the Telecommunications Act, by requiring Lightwave to pay right-of-way compensation while requiring no compensation from another telecommunications provider also using the right-of way. …

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