Item C: Telecommunications Tax Fund

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The Eleventh Circuit has held that Internet service was neither a cable service nor telecommunications service, in a pole attachment case. Gulf Power Co. v. FCC, 208 F.3d 1263 (11th Cir. 2000). The Ninth Circuit Court of Appeals held that internet access and service delivery, though offered over AT&T’s cable system, is not a cable service under the 1996 Act. AT&T v. City of Portland and Multnomah County, 216 F.3d 871 (9th Cir. 2000), decided June 22, 2000. Rather, the Court held, these services are partially “information services” and partially “telecommunications” services. The FCC then issued a rule declaring cable modem service to be an “information service.” That ruling has been appealed. The Ninth Circuit ruled that cable modem services are a combination of “telecommunications services” and “information services”, relying on their 2000 decision in the Portland case. The United States Supreme Court ruled on June 27, 2005 that the service is an “information service”, thus keeping the service in the limbo-land of the FCC and at least for now free of most regulation by local government. NCTA et al v. Brand X Internet, and FCC v. Brand X Internet, 514 US ___ (2005) (Case numbers 04-277 and 04-281, June 27, 2005). FCC rulemaking is STILL pending. Telephone companies – most notably Verizon – are also racing to build so-called “fiber- to-the-premises” (FTTP) infrastructure. This platform will allow them to offer a full range of services, including voice, video, and data transmission. The impact of this construction on the rights of way in the short term is staggering. In the long term, it spells the virtual elimination of traditional local government franchising and the need to “think outside the box” in managing local rights of way. D. Conclusion – Service Providers in the Right of Way There is clear municipal authority to manage the rights of way. The question of how to do so is not only more complex, but more important in light of the rapid deployment of complex technology. There will be more users of the right of way for more reasons, and all of them are on a schedule designed to get there first. ____________________ IV. TERWM:R WOLEMENTS OF IGHT OF AYANAGEMENTEGULATION AND C OMPENSATION A. Regulation: Objectives Given the increasing number of users of the rights of way, municipalities are confronted with the increasing difficulty of meeting their obligations as managers of this prime piece of real estate. The goals of municipal regulation can be summarized as follows: 1. Knowing where facilities are located a. Maps, as-builts, locating systems b. Oregon Utility Notification Center [ORS 757.542, et seq.] c. PUC rulemaking Right of Way Management and Compensation Page 7 of 15 APWA Fall Conference - 2005