Item C: Telecommunications Tax Fund

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Referenda were employed in two Oregon cities, Eugene and Springfield. Both o were telecommunications industry backed. Springfield’s resulted in the repeal of their new utility tax program. Signatures were not submitted in Eugene. So far in 2005, four bills impacting provisions of the 1996 Telecommunications Act have been introduced in Congress marking the beginning of a probable comprehensive re-write of the 1996 Act that will impact local ROW management and compensation, local cable franchising, cell tower zoning and siting criteria, local taxation, and Internet-enabled voice and video services. At this time, municipal associations have an “oppose” position on all four bills. II. MARR--W:S UNICIPAL UTHORITY TO EGULATE THE IGHTOFAYOURCES AND HP ISTORICAL ERSPECTIVE A. Municipal Rights of Way – Traditional Definitions The framework for a discussion of the law of telecommunications and cable franchising today is the municipality’s authority to regulate the use of the public right of way. So what is the “right of way?” Clearly, the term includes streets, and “all urban ways which can be, and are, generally used for the ordinary purposes of travel, even where such travel is confined to 1 pedestrians alone.” The key to inclusion in the definition is that the area in question is open to the public. ORS 221.415, the most important state statute granting authority to municipalities, uses the term “right of way” without defining it. ORS 221.515, the privilege tax statute, grants cities authority to regulate the use of “streets, alleys, highways or all of them.” A common misunderstanding of the term “right of way” surrounds its scope. There are in fact three elements which make up the scope of the right of way. The public’s “right” in these “ways” includes not only the surface (its full width, including sidewalks, planter strips and the 2 like), but also an extension which reaches “indefinitely upward and downward.” This is the reason a municipality’s authority extends to include the area beneath the street, and the area above the ground in which utility poles and their aerial plant are often installed. Just because the municipality doesn’t own the poles does not exempt facilities on those poles from municipal regulation. The municipality’s regulation falls into two categories which will be discussed in more detail later in these materials: preservation of the traveling public’s right to use the rights of way, free from obstruction and interference; and management of this valuable asset which is owned by the public. B. Sources of Authority 1. Oregon Constitution 1rd McQuillin, Municipal Corporations, 3 Ed., Section 30.03. 2 Id., Section 30.06. Right of Way Management and Compensation Page 2 of 15 APWA Fall Conference - 2005