Item C: Telecommunications Tax Fund

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Municipal authority to manage the rights of way begins in the Oregon Constitution, under the doctrine of Home Rule. Not all states have broad home rule grants of authority like that which exists in Oregon. The source of municipal authority, specifically, is found in Article XI, Section 2 of the Oregon Constitution, and reads: The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of 3 the State of Oregon. . . . . This provision clearly empowers city voters to enact their own Charters, and beneath the umbrella of authority derived from the Charter, cities enact codes and ordinances governing the administration of the rights of way. A detailed analysis of home rule is (thankfully) beyond the scope of this discussion; suffice it to say that in recent court decisions in this state, the power to manage rights of way has remained inviolate. 2. Oregon Revised Statutes and Administrative Rules a. Statutes.The state law governing regulation of the right of way as it relates to city 4 regulation of telecommunications utilities is found at ORS Chapter 221. Counties must rely on their broad authority to regulate construction activities in County roads, pursuant to ORS 368 and local enactment. The key provisions of ORS relating to City right of way management are: •ORS 221.410 contains the statement of city authority (except as limited by express provision or necessary implication of general law) to “take all action necessary or convenient for the government of its local affairs.” •ORS 221.415 contains the general authority of cities to “regulate use of municipally owned rights of way.” •ORS 221.420 provides for municipal regulation of certain public utilities. •ORS 221.450 authorizes imposition of a “privilege tax” on public utilities operating without a franchise and actually using the rights of way. •ORS 221.505-515 contain the specific provisions relative to regulation of 5 “telecommunications carriers,” as that term is defined in statute (a very narrow definition). b. Administrative Rules. The Public Utility Commission (PUC) regulates significant aspects of the operation of telecommunications and other utilities. Their regulations are pre-emptive where they exist. The only significant overlaps for purposes of this 3 The parallel reference for Counties is found in Article VI, Section 10 of the state Constitution. 4 Counties in Oregon have no authority to franchise telecommunications utilities, but do have cable franchising authority. 5 ORS 133.721; see also ORS 401.710. Right of Way Management and Compensation Page 3 of 15 APWA Fall Conference - 2005