Right Way Wrong Way: The Fading Legal Justifications for Telecommunications Infrastructure Rights of Way

Abstract

Per common practice, telecommunications providers use rights-of-way to build physical network infrastructure on lands they do not own, for deploying cable aboveground or underground and for placing wireless transmission towers. Agreements to use these lands are usually made with public landowners such as local governments and the agencies that oversee national parks, state forests, and the like.The procedures for interacting with and compensating landowners in order to obtain rights-of-way have been established per regulation and court precedent. In short, private landowners should be justly compensated; public landowners may be compensated directly, but more often the firm using the land must offer some sort of remedy that is in the public interest. This paper focuses on the legal justifications for allowing telecommunications firms to use publicly-owned lands for rights-of-way.While the 1996 Telecommunications Act includes some specific rules for rights-of-way as needed by telecom service providers, much of the law regarding this matter descends from utilities regulation and the common law of land ownership. More specifically, utilities that operate aboveground power lines or underground pipelines are designated as franchisees that have been granted certain privileges for using land that is owned by someone else, and in return these franchisees face various public interest obligations. For example, a fossil fuels company that lays a pipeline through a state forest is often required to satisfy the public interest by vowing to repair ecological damage. Historically, telecommunications firms have been subjected to similar requirements.This paper will introduce rights-of-way policy for private operators that make use of public lands, including the corresponding regulations in the telecommunications industry. Recent actions by telecommunications firms in which they have sought to be released from public interest responsibilities -- including the maintenance of universal service programs, serving as common carriers, and serving as Carriers of Last Resort – have eroded their legal justifications for unfettered use public rights-of-way, which is one of the most important benefits they receive from the regulations that they hope to escape. The paper will conclude with a discussion of whether this conundrum can be resolved via existing telecommunications regulations, or if a new focus on local property rights and public utilities law should be considered.