Item C: Telecommunications Tax Fund

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16 Texas and Pennsylvania courts have reached the opposite conclusion. In Oregon, the historical broad construction of Home Rule authority has now resulted in a decision allowing municipalities to set compensation beyond actual cost, in the Qwest v. Portland case discussed above. Compensation mechanisms most commonly involve some formula applied to gross revenues, a per linear foot fee, and/or in-kind contributions of service. In the new era of complex service packages delivered over the same bundle of fibers, the controversy over what services are to be included in the calculation of gross revenues can only grow. There is also a need, imposed by the 1996 Act, to treat competitors on a nondiscriminatory and competitively neutral basis. When different service providers arrive in the right of way by varying methods and at varying costs with varying levels of impact, charging franchise fees based on service delivery and doing so in a competitively neutral fashion becomes even more challenging. ____________________ VI. TS OOLS AND OLUTIONS A. Local code provisions – A Master Infrastructure Ordinance Local government survived aggressive attempts at legislation this past session, and the prospect of similar attempts in the coming session is a likely prospect. How it will come out is uncertain at best. The best advice to Oregon cities and counties is to pass or improve regulations which achieve the objective of regulating the use of the right of way, and to carefully coordinate administration of those regulations at the local government level. Such regulation should take the form of a master ordinance, usually incorporated into the code, that applies to facilities to be placed in the right of way without regard to the specific service they are intended to provide. A firm link to right of way usage, i.e., ownership and/or control of physical plant in the right of way, seems to be the most certainly viable exercise of municipal authority in the wake of the changing market and Oregon home rule authority. In the Qwest v. Portland case discussed above, the ordinances of cities in the case (Ashland, Salem, Springfield) will be reviewed by the Oregon District Court in the coming months. Stay tuned for the Court’s findings concerning the most defensible regulations, and consider evaluating local ordinances based on that outcome. B. Franchising Tips for the New Millennium As to the other prong of the right of way regulation fork, compensation, new court decisions are coming out at an increasing pace. There is still good authority for using gross revenues as a reasonable measure of the value of the right of way in Oregon, though industry continues to dispute its validity. Careful definition of what those revenues are is key. Where 16 AT & T Communications, Inc. v. City of Dallas, 8 FSupp 2d 582 (ND Tex., 1998), and AT & T Communications of the Southwest, Inc. v. City of Austin, 975 F. Supp 928 (WD Tex. 1997). See also PECO Energy Co. v. Haverford, 1999 US Dist LEXIS 19409 (ED Pa., 1999). Right of Way Management and Compensation Page 11 of 15 APWA Fall Conference - 2005