The View From Olympia: Right of Way usage fees as revenue replacement mechanism for future of declining cable franchise fees April 29, 2105 Kenneth S. Fellman, Esq. Kissinger & Fellman, P.C.

Kissinger & Fellman, P.C. How do we ensure that local governments are fairly compensated for use of the ROW?  Significant public funds have been invested to place and maintain landscaping within public rights of way

Kissinger & Fellman, P.C. My Assumptions  Many of your jurisdictions already have some form of ROW management requirements in your codes  Local codes may also provide for adoption of administrative regulations addressing ROW management  Impacts of state law affect local authority to require compensation

Kissinger & Fellman, P.C. NATOA Blueprint for Localism in Communications  Principle 5— Compensation for Use of Public Property Local governments should retain the authority to determine the appropriate level of compensation to be paid for the use of public property by communications providers, as they do with all other private users of public resources.

Kissinger & Fellman, P.C. NATOA Blueprint for Localism in Communications  Challenge 4— Dwindling Compensation for Communities’ Property Laws and regulations have been changed to reduce the compensation received by local communities for the use of their property. Local governments have a fiduciary duty to manage the multiple uses of the public assets that communications firms use for their private operations, and to do that, communications firms, like all other users of public property, should pay a reasonable amount as determined by the local government, and not receive special, subsidized treatment that is not afforded to any other private entity.

Kissinger & Fellman, P.C. NATOA Blueprint for Localism in Communications  Strategy 3— Compensation for Rights-of-Way Sound communications policy should relegate provisions such as 47 U.S.C. § 253 to its proper role of eliminating legal prohibitions against market entry and cut off its misuse by industry to seize local property without reasonable compensation and usage conditions. Companies that use the public rights-of-way for any communications purpose must adhere to the same set of laws governing the rights-of-way, including compensation, as do other private users of this public property. Local governments must to be able to charge users for the use of the rights-of-way without regard to the regulatory category within which certain services may fall. Such compensation may include a percentage of all gross revenue received by all owners of facilities occupying public rights-of-way, a linear foot calculation, or other methods used by local governments to calculate the value of their assets.

Kissinger & Fellman, P.C. What authority do you have other than police power regulations?  RCW 

Kissinger & Fellman, P.C. Objectives of the Ordinance  Establish a public policy for enabling the City to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development  Promote cooperation among permittees and the City in the occupation of the public rights-of-way, and work therein, in order to (i) eliminate duplication that is wasteful, unnecessary or unsightly, (ii) lower a permittee’s and the City’s costs of providing services to the public, and (iii) minimize street cuts

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Definitions  Recognition of City’s Police Powers  Permits – When Required  Permits – Application/Contents  Permit Fees  Cost recovery – staff time  Cost recovery – degradation fee

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Insurance  Indemnification  Bonds/Letters of Credit  Warranties  Inspections  Number  Timing

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Traffic Control Provisions  Relocations  Standards for Repairs and Restoration  Standards for Newly Constructed/Overlayed Streets  Exemptions – Emergencies  Exemptions – Non-emergencies

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  ROW Construction: Open Trench/Dig Once  Coordination meetings/Joint Planning  Policy to install conduit and/or fiber when trench opened?  Undergrounding/Use of Poles  Common Users  Locates

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Abandonment  Removal  Revocations of Permits/Stop Work Orders  Appeals  Penalties

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Wireless Facilities  Small Cells/DAS Administrative Approval? Criteria?

Kissinger & Fellman, P.C. Key Elements You’ll Want in Your Ordinance  Emergency Procedures

Kissinger & Fellman, P.C. CONCLUSION  Acknowledge and describe scope of police power  Determine what needs to be in the code, what should be adopted through administrative regulations  Determine how, if at all, state law impacts the scope of your authority  Make it clear; make it easy for the permittees to follow; make it easy for the City to administer

Kissinger & Fellman, P.C. Kenneth S. Fellman Kissinger & Fellman, P.C