Tag Archives: rights-of-way

Fixing Federal Permitting

The House of Representatives recently approved H.R. 5419, a bill introduced by Representative Tom Kean of New Jersey. Titled the Enhancing Administrative Reviews of Broadband Deployment Act, the bill would attempt to improve the process of getting permits for broadband on federal land. The bill has been referred to the Senate Committee on Energy and Natural Resources.

Specifically, the bill would direct the Department of the Interior and the Department of Agriculture to conduct a comprehensive review of administrative barriers involved in reviewing applications to use federal rights-of-way. The two agencies would have a year to report their findings of the review to Congress, along with a plan on how the agencies can provide the needed staffing to review rights-of-way applications in a timely manner. The bill correctly recognizes that applications to build broadband on federal lands can be incredibly slow, to the point of creating hurdles that can stop broadband projects.

Looking back through old blogs, I see at least two other attempts by past administrations to improve access to federal lands for broadband.

In 2012, President Obama signed Executive Order 13616 that tried to make it easier to build fiber on federal lands. In a process that sounds similar to the one contemplated by the new legislation, the EO established a Broadband Deployment on Federal Property Working Group that was given a year to create a report to describe how to streamline applications for broadband on federal lands. The GAO was tasked with creating a standard set of forms and fees to apply for building broadband on federal lands. Finally, the EO ordered that all federal agencies implement a Dig Once policy that required placing conduit as part of any road projects on federal land.

In 2018, President Trump signed Executive Order 13821 that directed all federal agencies to seek to reduce barriers to capital investment, remove obstacles to broadband services, and more efficiently employ government resources related to broadband. The EO directed the General Services Administration to evaluate the effectiveness of the GSA Common Form Application used to get permission to locate broadband facilities on Federal land. Finally, the EO specifically directed the General Services Administration to complete the creation of a common form and master contract for placing wireless facilities on federal lands.

This repeating cycle of relooking at the same issues makes me wonder if this will ever be solved. And even if this legislation finally solves the issue, it will be far too late for BEAD implementation. BEAD grants are finally starting to be awarded this year, and those grants will have a four-year shot clock. For now, NTIA says that it does not expect to extend any grants beyond the four-year window.

This is not to belittle the legislation. Perhaps Congress can make progress on the issue when executive orders have failed. It just seems like the timeline contemplated by the legislation won’t provide solutions in time to make meaningful changes for broadband projects that will likely be underway this year. I hate to be pessimistic, but I have to wonder if the legislation or any executive orders will filter down to the dozens of agencies in charge of rights-of-way in various parts of the federal government.

Can the FCC Regulate Local Permitting?

ACA Connects, an industry group that represents midsize cable companies and fiber overbuilders, recently asked the FCC to issue regulations to streamline permitting and the acquisition of rights-of-way. For those who lose track of the various industry advocacy organizations, ACA Connects was previously known as the American Cable Association.

The ACA Connects comments were filed in response to the open Notice of Inquiry that asks for comments that can eliminate barriers to wireline deployments. The ACA Connects comments ask the FCC to investigate and regulate three issues. First is the timeline for local communities to respond to a request for rights-of-way or construction permits. ACA Connects members have related stories of communities that sit on requests for months with no response. ACA Connects advocates for a shot clock that requires communities to react within a specified time, similar to what has been required by the FCC for requests for placing a new wireless tower.

Second, the group asks that fees charged for access to rights-of-ways be cost-based and objectively reasonable, and that new ISPs are provided the same treatment that was provided to incumbent providers. There are communities that want large up-front fees to obtain rights-of-way and permits that go far beyond a reasonable value. I’ve often suspected that this is a result of cities losing franchise fees as the cable TV industry continues to lose customers.

ISPs also object to hidden fees and costs. The filing documents examples of unreasonable costs, such as having to bury conduit deeper than is required by industry standards. The filing cites an example where an ISP was asked to repave a full block after disturbing only a small portion of a sidewalk.

It’s worth noting that these are not universal problems, and many communities are welcoming fiber overbuilders with open arms and easing the process of bringing competition to their community. But any ISP understands how unexpected delays and costs for a routine function like obtaining rights-of-ways and permits can delay, and even kill plans to complete a new network project.

ACA Connects recognizes that this would be a big lift for the FCC. Communities are going to strongly resist any efforts to dictate rules for how cities manage and charge for rights-of-way. The FCC has made headway in managing the placement of towers and wireless facilities. But that’s partially because the process of siting a tower is unique. However, rights-of-way rules apply to a lot larger universe than just ISPs. Any changes to the rules will suddenly change the way that cities interact with electric utilities, cable companies, gas utilities, and even the general public who wants to make changes like cutting a new driveway into a busy road.

Local communities view control or rights-of-ways as one of the most important rights of a community and will resist any attempt by a federal agency to change the rules. I predict a huge legal battle if the FCC decides to tackle this. Not that it should matter, but that means that implementing what ACA Connects recommends could take many years and many lawsuits before implementation.

The FCC’s ability to tackle something like this has been weakened by recent Supreme Court rulings. For example, in Loper Bright Enterprises v. Raimondo, the Supreme Court largely ended the Chevron deference and ruled that federal agencies are on shaky ground when they make decisions that are not explicitly directed by Congress. In the 2025 ruling, McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., the Supreme Court ruled that Courts can more easily disagree with rulings made by federal agencies, making it easier for courts to disagree with orders made by the FCC.

Like with many other regulatory issues, the reality of the court rulings means the right forum for fixing these issues is in Congress. But Congress has been conspicuously missing from regulation since the Loper Bright ruling. There is no question that the ISPs that prompted ACA Connects to file these comments are feeling pain in the market. But even if the FCC tackles what they are requesting, there won’t be any quick fixes.

Broadband Shorts October 2025

These are a few topics I found interesting, but which don’t support a full blog.

NTIA BEAD Work to Continue During the Shutdown. We found out that the BEAD and other programs at NTIA were not subject to the government shutdown. NTIA is continuing work on BEAD, the Middle Mile program, the Tribal Broadband Connectivity program, the Broadband Infrastructure Program, and the Connecting Minority Communities program. Overall, NTIA was able to keep 463 of its 600 employees, largely because their work isn’t tied to annual appropriations.

My irony meter instantly went into full swing because NTIA is able to use the same funds allocated to BEAD to keep the federal side of the BEAD program open while the agency is actively working to claw back as much of that same funding as possible from State broadband grants and non-deployment funds.

Rights-of-way Not Permanent? The Georgia Supreme Court rules that local governments can withdraw contracts that granted rights-of-way, by relying on an argument that no contract can last forever, with no end date. This is bad news for telcos, cable companies, electric companies, wireless companies, and the many businesses that rely on maintaining rights-of-way to support long-term infrastructure. This might not mean much beyond the specific case that drew this ruling, but it opens up the possibility of local governments requiring periodic payments to maintain rights-of-way – something that infrastructure owners will be compelled to pay once infrastructure is using the rights-of-way.

Verizon to Buy Starry. Verizon purchased the fixed wireless company Starry, which is an interesting addition to the company’s expansion of wireless broadband. Starry has developed a unique wireless technology that it uses to bring broadband to large MDUs. Starry currently has over 100,000 customers in Boston, Denver, Los Angeles, New York/New Jersey, and Washington, D.C./Virginia.

Starry uses millimeter wave spectrum to reach customers. This fits in well with Verizon’s portfolio of millimeter wave spectrum that it had hoped to use for 5G. That use quickly died when it showed that the spectrum fizzled at street level when connecting to cellphones. Remember all of the Verizon commercials with a cellphone showing gigabit speeds?

FCC to Fast-Track Satellite Expansion. FCC Chairman Brendan Carr announced a push to fast-track satellite applications for expansions or changes to constellations. The process currently requires years of study by the FCC to consider any request from a satellite company. Carr described his planned changes as moving from a ‘Default to No’ process to a ‘Default to Yes’ framework”. He ways this will make the assumption that satellite technologies are in the public interest and should be treated in the same way that the FCC treats other technologies. This might be viewed as a pro-Starlink change, but there are dozens of companies asking for permission to launch satellites.

SpaceX has Chinese Investors. During a lawsuit, it was discovered that SpaceX has Chinese investors, a fact that has never been made public. This instantly raised a lot of questions since SpaceX is becoming increasingly important as a U.S. military contractor.

The extent of the Chinese investments, and the type of Chinese investor, was not disclosed, but it seems certain that this is going to be investigated. SpaceX has always kept its full ownership private, and that will likely have to change if it to wants to keep the role of defense contractor.

Access to Rights-of-Way

There is an interesting docket at the FCC that is examining the ability of a City to sign an exclusive agreement with an ISP that keeps other new ISPs out of the market. The case involves Cottage Grove, Minnesota, a suburb of St. Paul with a population of around 43,000. The City of Cottage Grove signed an agreement with Gateway Fiber to build fiber throughout the City. The City’s agreement with Gateway provides a three-year period during which the City would not issue new permits to any other fiber builders in some parts of the City, and five-years elsewhere.

An ISP, Intrepid(2), filed a petition with the FCC asking the agency to overturn that City’s action. My first reaction was that the FCC would probably rule in favor of Intrepid(2), but it turns out that laws in this area are a lot more nuanced than I understood.

The City had already explored its legal rights in this area before issuing the RFP and choosing Gateway to build a fiber network. The City addressed the rights-of-way issue in the following response to a question during the RFP process:

 The City of Cottage Grove is not attempting to restrict or prohibit access to public rights-of-way for broadband companies. The City has simply implemented a fair and efficient manner in which to regulate and manage the installation and maintenance of broadband services through their Request for Proposals. The City’s primary goal is to provide sufficient broadband to each area of the City in an efficient and orderly manner – taking into account the limited space within the public rights-of-ways and the access needs of the community during construction.

 Under Minn. Stat. 237.163, a local government is specifically authorized to manage and regulate the use of public rights of way. . . a local government may exercise the option to regulate the use of public rights-of-way so long as the regulation is carried out in a fair, efficient, competitively neutral, and substantially uniform manner. The City of Cottage Grove has chosen to exercise this option and manage the public rights-of-way pursuant to Cottage Grove City Code § 7-6-2.

The FCC has some jurisdiction in this area. Section 224 of the FCC code was created by the Pole Attachment Act of 1978 and further amended by the Telecommunications Act of 1996. These laws require utilities to provide access to poles, ducts, conduits, and rights-of-way to telecommunications carriers on fair and nondiscriminatory terms. It’s not fully clear the degree to which these provisions apply to local communities.

Cities have routinely entered into agreements with electric companies, gas companies, water companies, cable companies, and telecommunications companies to use public rights-of-way. Such agreements are often referred to as franchise agreements when the facility owner pays a fee to the government for continued use of the rights-of-way. But there are agreements that don’t include compensation.

Many of these agreements have been exclusive, and local governments agreed to not let in another similar provider. Many local governments are concerned about the consequences and problems that come from having too many buried utilities using the same public rights-of-way.

There have been many lawsuits over the years related to exclusive access to rights-of-way. Many such lawsuits centered on the fact that the right-of-way owner didn’t have a clear reason to insist on exclusive access. In this case, Cottage Grove fully researched the issue before granting an exclusive right-of-way. I’m sure the City wasn’t looking for a fight and hoped not to be sued over the issue. But the City has several issues in its favor. The City didn’t want to inconvenience citizens by having multiple companies constructing networks on the same streets. The restriction is also temporary, for up to five years in parts of the City. The City also doesn’t have an absolute prohibition against other fiber builders and will consider applications for right-of-way.

It gets even muddier in that the FCC’s authority to preempt local rules is not absolute. The FCC only has authority to preempt state laws if the FCC asserts jurisdiction over the disputed service. This is where it gets sticky for the FCC. The FCC has gone out of its way in recent years to declare that broadband is not telecommunications but is a service. That throws some doubt on the FCC’s ability to preempt a local law concerning construction of a broadband network. The FCC can’t pick and choose when it wants broadband to be considered telecommunications versus a service.

Past FCC’s have been cautious about overturning the local right to control rights-of-ways, and the FCC may not want to take on all local and state governments based on the facts in this case. Even if the FCC rules against the City, which is not a clear thing, the City could probably appeal the case and tie it up in court long enough to give Gateway a chance to construct the network unimpeded.

A Troublesome Right-of-Way Dispute

The Virginia Supreme Court issued a ruling against Cox Communications that should trouble anybody building a fiber network that must cross railroad tracks. The case involves a dispute brought by the Norfolk Southern Railroad that challenged a new right-of-way law related to railroads.

The disputed law was unanimously passed in the General Assembly in 2023. The law requires that railroads respond and approve requests for fiber crossings across railroad tracks within 35 days or else file a dispute with the State Corporation Commission. The law sets the maximum fee for a right-of-way at $2,000 plus up to $5,000 to compensate a railroad for implementation costs.

Cox Communications invoked the new law in the spring of 2024 by requesting three underground railroad crossings in New Kent County. Norfolk Southern asked for a fee that exceeds the State’s cap and Cox refused to pay more than the amount established by law. Norfolk Southern appealed at the SCC, which declined to hear the case.

Norfolk Southern appealed to the Virginia Supreme Court. They claimed that the low rates established by the State equate to a taking of property for the benefit of Cox Communications, a for-profit corporation.

The Supreme Court agreed with Norfolk Southern. The Court said that the law violated the application of Code § 56-16.3 and violated Article I, Section 11 of the Constitution of Virginia. This part of the Constitution provides that property can only be taken for ‘public use’ and the party asking to take the property must prove the public use. The Court said that economic development and Cox’s private benefit do not justify a taking.

An article in the Cardinal News quotes Senator Bill Stanley, the lead proponent of the bill in the Senate, who called the decision wrong and disappointing. He says the State gave the land to railroads for the public benefit, but that railroads now seek to protect it as their own property against public benefit.

For those not familiar with legal language, the real dispute is about the fee. The railroad was ready to grant Cox a right-of-way for a fee higher than $7,000, and the railroad says it is a ‘taking’ for it to be required to the lower fee determined by the legislature.

This is an issue that plays out daily across the country where railroads charge high fees to allow fiber or other utilities to cross a railroad right-of-way. The Virginia law was trying to put a dollar limit on the cost of such rights-of-way and also trying to speed up the process. The Virginia court ruling made it clear that the legislature doesn’t have the right to put a cap on railroad fees.

Hopefully, this doesn’t make the entire law invalid and the 35-day response time will stay in place. If not, the legislature ought to act to close that gap.

The other issue that is not mentioned in the dispute is that Cox wants to place a buried conduit under the railroad tracks. From a practical perspective it’s impossible to believe that a conduit can in any way diminish the railroad’s property or operations. I can better understand why a fiber owner needs an easement to bury conduit on private land because the landowner might someday want to build something on that location. But railroad rights-of-ways are almost entirely for the purpose of laying track, and a buried conduit doesn’t stop that purpose. I know every lawyer reading this will give me several reasons why property laws are structured this way, but I also know that every fiber network owner is as perplexed by this as I am.

Regulatory Costs of Fiber Construction

At the federal level there has been an ongoing battle over the level of federal regulations. The Ajit Pai FCC strove to eliminate almost all broadband regulations that were not specifically mandated by Congress. Pai referred to his concept as light touch regulation. The FCC before and after Ajit Pai believe that there needs to be some regulations in place to protect the general public.

However, there are a lot of regulations other than the ones created by or enforced by the FCC. Anybody who builds fiber networks can describe the litany of state and local regulations involved in constructing fiber. Following are the primary kinds of such regulations – and there are others in some places.

  • National and State Codes. Fiber builders must meet various national and state codes related to electricity, safety, and specific fiber specifications.
  • Safety. Work sites must comply with safety standards set by OSHA and States.
  • Permits. Most jurisdictions have a formal permitting process. This is where a contractor will specify the planned construction of the network.
  • Rights-of-way. Federal rules allow fiber to be constructed in any existing public right-of-way. However, many local jurisdictions require a fiber builder to pay fees and obtain a right-of-way agreement before undertaking construction.
  • Easements. Contractors are required to acquire an easement from private landowners, which is permission to construct on private land.
  • Financial Requirements. Some jurisdictions require that an entity that wants to cut into a street to satisfy specific financial requirements. This might mean obtaining a bond or providing a deposit before construction. There might be requirements for contractors to carry specific amounts of insurance and name the government entity as a covered entity under the policy. Some jurisdictions treat a fiber network like other infrastructure and charge property or related taxes on the asset.
  • Business License / Franchise Agreements. Some jurisdictions require anybody that wants to operate a fiber network must obtain a business license. Communities often require a franchise agreement that lists the various construction parameters and details the fees associated with building and owning a fiber network.
  • Deployment Codes. A city might require fiber to be buried in some neighborhoods. It might require handholes instead of pedestals. It might require that huts go through the same permitting process as any other building. There may aesthetics requirements for huts and cabinets such as hiding infrastructure with shrubs.
  • Locating. It’s always mandated that existing underground utilities are located before doing any underground work.
  • Public Notification. Many communities require a contractor to notify the public before construction. This might include a requirement to knock on doors and leave notices.
  • Traffic Control. Many communities require flag people or other ways to manage traffic during times when construction will block traffic lanes.
  • Site Requirements. There are often specific rules about what must be done at any site when a street is excavated. This might mean taking measures to control dirt runoff if it rains. It might mean covering construction holes for safety purposes.
  • Restoration. Most communities expect any entity that excavates in a right-of-way to restore the area as nearly as possible to the conditions before the construction.
  • Inspection. There can be government inspections required at any step of the construction process. Inspectors typically have the ability to shut down a construction site that is not meeting the expected codes and standards.
  • Mapping. Many jurisdictions require drawings or electronic files showing completed construction.
  • Licenses. Operators of heavy machinery may be required to have specific licenses and certifications. Engineers that design a fiber project might be required to be licensed by the state.
  • Environmental Studies. Local, state, or federal rules might require an environmental study when constructing in sensitive areas. The studies might look at the likely impact on endangered species or the impact of construction on sensitive waterways.
  • Cultural Review. A cultural review might be mandated if construction is to be done in areas with burial grounds, archeological sites, or fossil beds.
  • Historic Site Review. There can be a review required if construction is to be done close to a designated historical site.

Taxing Broadband

Cities have been petitioning the FCC to ask it to revisit the issue of the ‘mixed-use’ rule that blocks municipalities from assessing franchise fees on broadband revenues. Several cities recently petitioning the FCC to revisit the prohibition against applying the fees to broadband. Cities argue that franchise fees are not taxes, and instead are fees that help cities to manage their rights-of-way.

The municipal (or state) franchise fee is capped at 5% of retail cable TV revenue, and cable companies typically tack this fee onto every cable bill. Cities have been seeking a way to replace sinking franchise fees since the traditional cable industry started to bleed customers. The cable TV industry has lost 32 million customers since the end of 2017, a decrease of over 36% of all cable customers.

The ability of the FCC to block franchise fees was affirmed by the U.S. District Court of Appeals for the 6th Circuit in 2021. That order stems from an FCC appeal of a ruling by the Oregon Supreme Court in 2016 that allowed the city of Eugene to expand the franchise fee to cover broadband revenue.

The biggest complaint from cities involves what they call cable company arbitrage. A big percentage of cable company bills still include a bundle of services, and cable companies get to decide how much of a bundle is subject to the franchise fee. Customers have been saying the same thing, and most customers with a bundle of services have no idea what they pay for each individual product inside the bundle.

The arbitrage issue is decreasing over time as the number of customers buying a bundle is decreasing as cable subscriptions drop, but the largest companies still had almost 57 million traditional cable subscribers at the end of the third quarter of last year. Surveys that my consulting firm has done during 2023 show as many as half of customers in some markets still use a bundle, which is down from over 70% a few years ago.

I can sympathize with cities that have seen a big reduction in franchise fees. However, there wasn’t a peep out of cities for the decade when franchise fees soared as cable customers and revenues grew quarter after quarter. Some cities also increased the franchise fee rate until the FCC mandated that it can’t be higher than 5%.

It’s hard to say if cities are fairly compensated by these fees for maintaining their rights-of-ways. I’ve been in the industry for a long time, and I’ve never had anybody explain to me exactly what that means in terms of effort. I know that some cities have been using the franchise fees for functions other than rights-of-way, such as maintaining local public access programming or just shuffling the fees into the general city coffers.

The industry must be at least a little worried that the FCC might change its mind on the issue. NCTA – The Internet & Television Association filed a strong response to petitions filed by cities. This association includes the largest cable companies, and it urged the FCC to ignore the city’s requests to revisit the mixed-use rule.

The FCC has also been under pressure to assess a fee on broadband revenue to fund the soon-to-expire Affordable Connectivity Program (ACP). If Congress decides not to renew the discount plan for low-income households, many have been arguing that the FCC can tackle this under the Universal Service Fund, which is currently funded with a fee on telephone revenues.

In a tax-crazy world, it’s amazing how ISPs have been able to fend off these kinds of fees. While such fees are typically added to customer bills, ISPs argue that the government shouldn’t be doing anything to make broadband too expensive. That’s rich in an industry where the biggest cable companies have raised rates every year for a decade.

Preempting Local Government

In May the House Energy and Commerce Committee marked up nineteen pieces of telecom-related legislation, which means the bills can move forward to the full House for a vote. Today’s blog looks at one bill in particular because it represents what I’m seeing as a new trend of actions taken by big ISPs to preempt the authority of local governments.

The bill is H.R. 3557, the American Broadband Deployment Act of 2023. This legislation would preempt a host of current rights of local governments to manage public rights-of-way for telecom infrastructure. This applies to both wireless infrastructure like towers, but also to landline infrastructure like fiber, huts, and cabinets.

The legislation includes a long list of changes aimed at taking local government out of the business of controlling telecom infrastructure deployment.

  • The bill establishes a 60-day shot clock for local governments to consider requests for rights-of-way. If the local government doesn’t approve a request within that time, the request is ‘deemed’ to be approved. Further, once a project is deemed to be approved, the carrier or ISP can proceed with construction without further notice to the local government. It appears that would give builders the ability to bypass local inspections, traffic control regulations, etc.
  • The legislation would give ISPs and carriers the ability to install facilities anywhere they choose and bypass local zoning rules. This would also eliminate local requirements to hide, conceal, or disguise infrastructure in historic neighborhoods.
  • The legislation imposes a complicated formula for calculating and justifying any fees, with the overall goal of greatly lowering fees.
  • One of the most intrusive changes is that the legislation would place all disputes at the FCC rather than in local courts. This would force local governments to battle disputes in D.C. rather than locally. This would upset a 35-year long truce between Congress and local governments that allows disputes on local-related issues to be heard in local courts.
  • Eliminates cable franchise renewals and eliminates the ability of local governments to require rules such as an ISP having to serve the whole community, the local government requiring PEG channels, or the local government requiring customer service standards.
  • The biggest killer is that the law would give holders of franchise agreements the ability to cancel the agreement without losing any rights-of-ways included in the agreement. This would also kill local franchise fees, a major source of revenue for many governments. Perhaps the most severe provision is that franchise contract holders can eliminate any contract provisions they deem to be commercially infeasible.

There is a mountain of bills in the House this year, and there is no way to know the chances of this coming for a vote. However, there are several telecom bills that have bipartisan support, and bills like this one could be attached to such bills. This includes a bill that would renew the FCC’s authority to hold spectrum auctions and a bill that would stop federal grant funding for broadband infrastructure from being taxable.

To me, this bill is part of an ongoing effort of cellular carriers, cable companies, and big telcos to restrict the ability of local governments to affect the construction of infrastructure. These big companies have already been successful in recent years in eliminating regulation. The cellular companies already got relief from the Ajit Pai FCC that made it a lot easier to place cell sites. This law would codify that change so that a future FCC can’t change it. The large ISPs were successful in getting the Ajit Pai FCC to eliminate most broadband regulations.

This bill is going for a home run to eliminate local regulations these big companies don’t like. I’ve written recently about regulatory capture, and this is an ultimate example of changing the laws to get what the big monopoly providers want. This law would eliminate franchise fees, allow carriers to put infrastructure anywhere they want, and pay low fees in doing so.

More proof of the degree of regulatory capture in the telecom market is that there are no equivalent efforts to change local government control of other kinds of infrastructure like roads, factories, buildings, etc. This bill is the ultimate example of the biggest companies in telecom flexing their power and influence to bypass some of the last vestiges of regulation.

Right to Place Telecom Infrastructure

There was an interesting legal decision recently from the United States District for the Eastern District of New York that found that the Village of Flower Hill, NY had the right to deny ExteNet, an agent of Verizon Wireless, from placing small cell sites within the Village. The decision raises some interesting legal and other issues about telecom infrastructure.

The facts are straightforward. ExteNet was hired by Verizon Wireless to place 66 small cells site in and around the Village, including 18 within the Village, for the stated purpose of strengthening the existing 4GLTE network. ExteNet and the Village went through several rounds of negotiations on the appearance of the small cell sites, but ultimately, the Village denied the request. One of the primary reasons for the denial is that the Village didn’t see any evidence of current gaps in 4GLTE cellular coverage.

As has happened with many similar suits, the case boiled down to language included in the Telecommunications Act of 1996 – language that has been described in some cases as ambiguous. ExteNet cited the provisions of the Act that says that no state or local government shall prohibit the ability of an entity to provide any interstate or intrastate telecommunications service. The Village countered with language also from the Act that says that the FCC cannot preempt the rights of state or local governments to manage the public rights-of-way in a competitively neutral and nondiscriminatory manner.

The Court ultimately decided in favor of the Village using additional language from the Act that says that any denial for the placement of telecommunications infrastructure must be supported by substantial evidence. The Court ultimately decided that one of the reasons given by the Village to deny the permitting request could be construed as substantial evidence – that there was already sufficient 4G cellular coverage in the Village.

Interestingly, it doesn’t seem like the case invoked what I think are the strongest arguments for the Village. The case was decided because the Court decided that there was no evidence that Verizon needed the new network to bolster cellular voice traffic – a telecommunications service.

What the case didn’t say, and I’m sure that ExeNet wasn’t allowed to raise by Verizon, is that the purpose of the new small cell sites is not to improve voice service – the network expansion is to introduce and bolster Verizon’s cellular broadband FWA network so that the company can provide commercial broadband to homes and businesses. The reason ExteNet wouldn’t want to raise that issue is that broadband is currently not considered a telecommunications service due to the actions of the Ajit Pai FCC that eliminated Title II regulation over broadband.

The Telecommunications Act of 1996 does not provide any rights to expand broadband networks since it only gives those rights for expanding telecommunications services. Had this issue been raised, the Court would have had an easier time denying the expansion of the Verizon network.

This raises all sorts of uncomfortable issues for the industry. First, Verizon would have been better off in this case if the Ajit Pai FCC had not eliminated broadband regulation. If broadband was still a telecommunications service, and if Verizon claimed the new network was to bolster broadband, I don’t think the Court would have had any choice other than to rule in favor of ExteNet and Verizon. This case is another example of the trickle-down impact of declaring that broadband is not a telecommunications service. With this court ruling, communities across the country can feel emboldened to deny the placement of small cell networks built to bring broadband.

But this raises an even more uncomfortable issue. Are local communities able to deny the construction of any new broadband infrastructure? That could mean fiber or the wireless infrastructure in this example. If broadband is not a telecommunications service, then all of the parts of the Act that allow for access to rights-of-ways would not be operative. A community would just need to declare that the community already has sufficient broadband to deny permitting requests. I hate to even think where that line of reasoning might go.

Of course, the opposite is also true and the above arguments all get reversed if the current FCC is able to somehow reinstitute Title II authority for broadband, something that Chairman Jessica Rosenworcel says the FCC has the power to do (if it seats the fifth Commissioner).

As I’ve argued many times, it does the country no good to be on this regulatory yoyo where broadband is declared to be telecommunications and then not, depending upon the philosophy of the party with the most votes at the FCC. That is no way to regulate such a giant industry. For now, there is a gaping hole in the ability of ISPs to know they have the right to build broadband in a community – this case says that the community can deny them if there is evidence to support the denial. The evidence could be something as simple as not wanting construction that disturbs the paved streets.

Reusing Existing Easements

Casey Lide and Thomas B. Magee of Keller & Heckman highlight an issue that anybody building fiber on utility poles should be aware of. A recent article on their website notes that in some cases, an easement obtained for using private land to bring electric service might not automatically allow an easement for bringing fiber.

There is a subtle difference between easements and rights-of-of way. An easement allows somebody to carry out an activity on private land. It was typical when electric companies built the power grid to seek an easement from each landowner to give permission to erect electric poles for bringing electric service. Rights-of-way are generally more specific and wider in scope. A city will often decree that it has a right-of-way in perpetuity to use the first few feet from the street of each property for civic purposes. The city can then use the right-of-way to allow for underground utilities or to place a fire hydrant.

The article warns that the original language of the easement might restrict usage for adding fiber. If the original easement language was narrow and only talked about bringing electric service, then somebody adding fiber would need to seek a new easement for every property underneath a pole line. If the original easement was more generic in nature, it might have allowed for electric and other services, in which case the electric company would have an easement to cover allowing others on its poles.

There are cases where a property owner has refused to allow fiber or other wires to be added to a pole line. In such cases, the new attacher has to get permission from the property owner and possibly pay for the easement when property owners insist there is a value for the easement.

The legislatures in twenty states have dealt with this issue in the last few years by passing legislation that says that the original easement given to the electric company covers other wires added to the poles. Within just the last three years, the following states have enacted this legislative fix as a way to make it easier to build broadband networks. Note that some of these laws are aimed only at electric cooperatives but not for commercial electric companies. The states are Alabama, Arizona, Colorado, Georgia, Hawaii, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.

If your state is not on that list, or if you are building fiber on the lines of a for-profit utility, then this is an issue that you should investigate as part of building fiber. The natural place to start is to ask the utility if it has clear easements for adding fiber. This is not always an easy thing for a utility to guarantee since some of the easements might have been negotiated more than a century ago. Examining the utility’s easement language should show if the easement is restrictive or open.

The chances are that you can build a network and never worry about this – many people have built fiber networks and never asked the question. But if an easement dispute is raised, you could be stopped in the construction process or even be stopped from using fiber that was built without an easement. Add this to the list of worries that come with building a new fiber network.