MACTA Legislative Policies
LE-16. Right-of-Way Management (AH)
Issue: The Legislature and the Minnesota Public Utilities Commission (MPUC) have recognized that cities have fundamental responsibility for managing the safe and convenient use of public rights-of-way (PROW). Cities hold local rights-of-way in trust for the public as an increasingly scarce and valuable asset. As demand increases for use of rights-of-way for underground wired and overhead wireless facilities and sites for wireless communications towers, cities must continue to have authority to allocate and coordinate the use of this 1 resource among competing uses and to manage the use of PROWs for delivery of essential municipal utility services. Local management responsibilities vary and are site specific, underscoring the necessity formaintaining local authority.
The 2009 consensus report of the Ultra High Speed Broadband Task Force recommended “dig once” coordination of infrastructure projects and installation of conduit that could be leased on a non-discriminatory basis to provide broadband service. Yet when municipalities attempt to provide or partner on carrier-neutral rings open to all providers, they are accused of unfair competition by private providers. Further, when municipalities enforce consensus standards negotiated with industry that are contained in Minn. Stat. ch. 238 for safe maintenance of the public rights-of-way, they are accused – without verifiable evidence – of unreasonable delays and barriers to entry for enforcing state standards.
These PROW standards have served the state well for 15 years. As demand increases for use of rights-of-way for underground wired and overhead wireless facilities and sites for wireless communications towers, cities must continue to have authority to allocate and coordinate the use of this resource among competing uses and to manage the use of PROWs for delivery of essential municipal utility services. Local management responsibilities vary and are site specific, underscoring the necessity for maintaining local authority.
In recent years private users of the PROW urged the Federal Communications Commission (FCC) to impose a “shot clock” on the exercise of local authority to approve applications to install, repair or replace private facilities in PROWs. Cities still retain authority to impose construction standards, requirements for moving such facilities, and timelines for the completionand inspection of private projects in the PROW.
Response: Minn. Stat. ch. 237 has worked well for many years. Current state rules adopted by the Minnesota Public Utilities Commission that regulate the manner in which cable companies and other right-of-way users install facilities in the PROW were promulgated in a lengthy collaborative process involving major stakeholders, including cities, in the development of the terms and conditions as well as standards for construction, maintenance and restoration of public rights-of-way. State 1 and federal policymakers and regulators must:
- Uphold existing local authority to manage and protect public rights-of-way, including reasonable zoning and subdivision regulation and the exercise of local police powers.
- Recognize that cities have a paramount role in developing, locating, siting, and enforcing utility construction and safety standards.
- Support local authority to require full recovery of actual costs of managing use of public rights-of-way.
- Maintain city authority to franchise gas, electric, cable services, open video systems and other wireline programming platforms and services and to collect franchise fees and alternative revenue streams to support maintenance of the traveled portion of the PROW and other public services of importance to communities.
- As some rights-of-way become more crowded and the costs of disrupting critical city infrastructure become evident, the exercise of local authority to manage competing demands to use local PROWs has become increasingly important.
- Maintain the courts as the primary forum for resolving disputes over the exercise of such authority.
- Maintain existing local authority to review and approve or deny plans for installation of additional wires or cables on in-place utility poles. In the alternative, cities should have broader authority to require the underground placement of new and/or existing services at the cost of the utility or telecommunications entity.