Right way wrong way: The fading legal justifications for telecommunications infrastructure rights-of-way

Abstract

Telecommunications providers use rights-of-way to build physical network infrastructure on lands they do not own. Agreements to use these lands are usually made with public landowners such as local governments. Traditional rules for these negotiations are based on public utilities law and the common law of land ownership. Specific rules for telecommunications providers are also based on common carriage and Carrier or Last Resort regulations. Furthermore, the exercise of property rights by local landowners are often mischaracterized by telecommunications companies as burdensome regulation, with policy and jurisprudence following suit. This paper argues that in an era of technological convergence and the erosion of traditional pubic interest responsibilities, there are now fewer justifications for the unfettered usage of publicly-controlled lands by telecommunications firms.