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By Robert Fogel
associate legislative director
A federal district court in Tucson, Ariz. provided the first victory for local governments in their ongoing dispute with telecommunications providers over who controls the public rights-of-way.
In the case of GST Tucson Lightwave, Inc. vs. City of Tucson, the court ruled in favor of the city, which was requiring Lightwave to pay compensation for using the public rights-of-way to provide telecommunication service.
Lightwave had argued that the city was discriminating against the company by charging them while not charging the incumbent telecommunications provider, and was thus in violation of Section 253 (c) of the Telecommunications Act of 1996.
This is an important legal decision because it upholds what NACo and other local government organizations believed they had won in the debate on the telecommunications act.
NACo had a provision included in Section 253 that allows local governments to manage their public rights-of-way and to receive fair and reasonable compensation. The decision suggests that this can be done as long as the local government does not prohibit the "ability of any entity to provide ... telecommunication service."
Local governments do not have to treat each provider exactly the same. This is a key point as many telecommunications providers may argue that they want to be compensated exactly as a provider who has served the community for many years, including those which began offering service when conditions were very different.
This decision seems to reject the compensation argument, and accepts the argument that allows a local government to be sued only for violation of Section 253 of the telecommunications act when that local government action did prohibit or have the effect of prohibiting telecommunications service.
It is likely that this case will be appealed to a higher-level federal
court.