Item C: Telecommunications Tax Fund

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discussion are found in PUC Administrative rules governing the cost of undergrounding 6 overhead utilities, and customer service standards for telephone companies. All service providers in the state must register with and have a certificate of authority from the PUC; it is advisable to check the PUC record to see what authority a telecommunications provider has to operate when negotiating a franchise. 3. Local Laws Under the authority of the state Constitution, and consistent with state law, cities and counties may enact local codes, ordinances, resolutions and other forms of regulation and taxation governing the use of the rights of way. Unless held to be invalid because they are specifically pre-empted by state or federal law, such local codes have the full force of law within the adopting jurisdiction. Municipal authority includes both the authority to regulate the use of the rights of way, and to seek compensation for that use. The terms of such use may be in the 7 form of a franchise, license, or permit. An important set of consolidated cases concerning city authority to franchise and tax various classes of telecommunications utilities was recently decided in the City of Eugene’s favor by the Oregon Court of Appeals on appeal from Lane County Circuit Court. AT&T, US West and Sprint challenged a Eugene ordinance with right of way regulation and compensation components. The US West case was also reviewed by the Oregon Supreme Court. The Eugene cases are discussed in detail in an appendix to this paper. 4. Impact of Federal Law This is the “hot” area of litigation and hence development of law over the past several years, since the passage of the Telecommunications Act of 1996. The pre-emptive effect of this law will be discussed in more detail below. For purposes of this overview, the reader should be advised that there are separate regulations governing the provision of Cable Services (“Title VI” 8 services) and the provision of Telecommunications Services (“Title II” services). In 1984, Congress adopted the Cable Communications Policy Act of 1984, 47 USC §§521- 557. In 1992, Congress overrode President Bush’s veto of the Cable Television Consumer 9 Protection and Competition Act of 1992 (the “1992 Cable Act”). The 1992 Cable Act substantially revised the 1984 Cable Act. Finally, and most recently, Congress again revised portions of this law when adopting the Telecommunications Act of 1996, (the “1996 Act”). The overriding purpose of this 1996 Act was to encourage competition for access to cable channels for programmers, and to encourage alternative distribution technologies (e.g., telephone over cable, and vice versa). 6 See OAR 860, Division 032, Telecommunications. 7 City of Idanha v. Consumers Power, 8 Or App 551, 495 P2d 294 (1972) (general charter power implies authority to franchise); City of Joseph v. Joseph Water Works Co., 57 Or 586, 111 P 864 (1911) (power to franchise implied where general health or public welfare is involved); Jarvill v. City of Eugene, 289 Or 157, 613 P2d 1 (1980) (homerule charter grants power without statutory authorization). 8 Pub.L.No.104, 110 Stat. 56, 47 USC Sections 521-557. 9 Pub L 102-385, 1992 U.S. Code Cong. & Ad. News (106 Stat.) 1460. Right of Way Management and Compensation Page 4 of 15 APWA Fall Conference - 2005