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Background State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will affect their operations. Foreword Federal regulations have historically discouraged limited access facilities from utility installations. In 1988, these regulations were amended to permit state departments of transportation (DOTs) to allow utility installations as a means of avoiding unreasonably costly or difficult utility installations, and adverse impacts on productive agricultural land. Such regulations give the states broad discretion in determining whether or which utilities can occupy their limited access facilities. Moreover, these federal regulations require states to recover fair market value for such use, or some smaller amount based upon the state DOTâs public interest determination under its own state law. Additionally, many states are prohibited from providing uncompensated private access to public property. Utility companies are seeking to locate communi- cations facilities and evolving wireless communication technology and its infrastructure in state right-of-way. This digest summarizes and provides a legal analysis of the legal issues related to a state DOTâs obligation to provide access to the state right-of-way for communica- tion utilities, and a DOTâs options to generate revenue from such access. Topics addressed include: â¢ The statutory and regulatory authority of each state for allowing access to state right-of-way for private utilities and the stateâs ability to generate revenue from the access. â¢ The impact of various types of right-of-way (e.g., limited access, acquired via condemnation, and federally funded) on a DOTâs ability to assess rea- sonable rates for the access. â¢ The practices, procedures, and policies of states for requests by private utilities for access to the right-of-way. â¢ The practices by states and tolling authorities for the assessment of fair market value or other amount for such access based on public interest determinations. â¢ The presence or lack of premiums in the assess- ments of state DOTs and tolling authorities for fair market value for access to a contiguous longi- tudinal property, including recommendations for capturing utility owner profits. â¢ The potential legal obstacles to such property assessments, including any distinctions based on regulatory status of a utility as a public utility with condemnation authority, and any potential impact of the equal access provision of the Tele- communications Act of 1996. This digest will be useful to technology engineers and contractors, transportation lawyers, state and local legis- lators, and representatives of transportation agencies. Legal Issues Concerning the Use of Transportation Facilities to Generate Revenue for State DOTs This digest was prepared under NCHRP Project 20-06, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 24-04, Edgar Kraus, Kristopher Harbin, Brianne Glover, Jacqueline Kuzio, and Cesar Quiroga, Texas A&M Transportation Institute, San Antonio, TX, prepared this digest. The opinions and conclusions expressed or implied in this digest are those of the researchers who performed the research and are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; or the program sponsors. The responsible program officer is Gwen Chisholm Smith. JUNE 2020 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM NCHRPLRD 81LEGAL RESEARCH DIGEST