Legal Issues Concerning the Use of Transportation Facilities to Generate Revenue for State DOTs (2020) / Chapter Skim
Currently Skimming:
Pages 4-15
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 4... ...
4 NCHRP LRD 81 II. LEGAL ISSUES RELATED TO PROVIDING COMMUNICATIONS UTILITIES ACCESS TO THE STATE RIGHTS-OF-WAY AND GENERATING REVENUE FROM SUCH USE Historical Background Federal-Aid Road Act of 1916 The Federal-Aid Road Act of 19165 authorized the federal government to provide aid to the states for the construction of rural post roads, i.e., any public road over which the U.S.
|
From page 5... ...
NCHRP LRD 81 5 radio service providers to the extent they provide domestic or inter national telecommunications for a fee directly to the public.21 In terms of state and local control, the TCA provides: nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government."22 Section 704 added personal wireless services, such as cell phone towers, stating, "nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities."23 This appears to cede a great deal of control to state and local authorities over access to rights-of-way; however, subsequent rulings and amendments have limited that control. Section 704 further provided that state or local regulations "shall not unreasonably discriminate among providers of functionally equivalent services"24 nor "prohibit or have the effect of prohibiting the provision of personal wireless services."25 To this end, a state or local government shall act on a filed request within a reasonable period of time, and any denial of a request shall be in writing and supported by substantial evidence contained in a written record.26 The U.S.
|
From page 6... ...
6 NCHRP LRD 81 last updated in 2005, explains that transportation agencies have "various degrees of authority to regulate the use of utilities within highway rights-of-way generally through their authority to designate and to control the use made of right-of-way acquired for public highway purposes."39 The agency's authority depends on both federal and state laws and regulations. Additionally, there may be local government laws and regulations that can vary from those applicable statewide, which must be given deference.
|
From page 7... ...
NCHRP LRD 81 7 highway use of highway rights-of-way, but does not speak to fees. The FHWA Program Guide further explains that 23 C.F.R.
|
From page 8... ...
8 NCHRP LRD 81 (2) recurring charges for a Small Wireless Facility's use of or attachment to property inside the ROW owned or controlled by a state or local government… typically paid on a per structure/per year basis, and (3)
|
From page 9... ...
NCHRP LRD 81 9 to act would not mean that a permit is "deemed granted," as suggested by the Wireless Infrastructure NPRM/NOI.85 In a case of failure to act, FCC anticipates that communications providers would have a strong case so to quickly obtain an injunction to compel the permitting agency to issue a permit.86 The permitting agency would then have the opportunity to disprove the presumption of effective prohibition by demonstrating how the failure to act was reasonable and did not limit or inhibit the applicant from introducing new services. In placing the burden of proof on the permitting agency, and in providing an updated interpretation of Section 332 for small wireless facilities, the FCC addressed concerns of the "deemed granted" supporters, that filing suit in court to resolve a dispute would be burdensome and expensive on applicants, the judicial system, and citizens.87 As a result, courts should be able to expedite their decision-making process in these failure-to-act cases, and the FCC did not find it necessary to adopt a "deemed granted" remedy as part of this ruling.88 Most states convey the authority to regulate access and construction or placement on the rights-of-way within the state highway system to the state transportation agencies.
|
From page 10... ...
10 NCHRP LRD 81 Reasons for granting an exception usually include unusual conditions or undue hardships. The requirements for exceptions are typically covered in the state's administrative code.
|
From page 11... ...
NCHRP LRD 81 11 Table 2. Fees or Provisions for Rights-of-Way Access or Use by Small Wireless Facilities.
|
From page 12... ...
12 NCHRP LRD 81 State Fees Notes Iowa • Longitudinal Occupancy Fees on Highways: Multiduct system – flat fee or $14,500 per cable installation or $7,250 per mile of cable. • Other installation – flat fee of $12,000 per installation of $2,500 per mile of cable.13 Louisiana - Fees cannot exceed the fair market values of the property or the cost of administering the permit,14 and the department may reduce fees in exchange for shared resources.15 Massachusetts - In terms of fees for telecommunications companies use of the rightsof-way, the Telecommunications and Energy Department and the Department of Public Utilities have the responsibility to set reasonable rates.16 Michigan • Limited access right-of-way charges: $1,000 per mile of longitudinal access with a minimum fee of $5,000.
|
From page 13... ...
NCHRP LRD 81 13 Table 2. Continued.
|
From page 14... ...
14 NCHRP LRD 81 Table 3. Use of Shared Resource Agreements at State DOTs.95 Status of Shared Resource Agreements State DOT Use shared resource agreements/negotiating agreements WisDOT, GDOT, ITD, LaDOTD, and VTrans Do not use shared resource agreements DOT&PF (AK)
|
From page 15... ...
NCHRP LRD 81 15 July 1, 2019, to June 30, 2020. 107 The fee was calculated using the following values: 108 n = 71,267.02 miles r = $425 per mile i = 5,041,941 feet x = $1.00 per foot a = 2,450,168 The annual use fee replaces all fees of general applicability that could be charged by the Virginia Transportation Board, such as permit or inspection fees.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.