S.b. 10: Access to Public Rights-of-way for Telecommunications Providers
| Publication year | 1996 |
| Pages | 89 |
1996, September, Pg. 89. S.B. 10: Access to Public Rights-of-Way For Telecommunications Providers
On April 12, 1996, Governor Romer signed Senate Bill ("S.B.") 10,(fn1) a dramatic departure from the state's traditional legal approach to management of public rights-of-way. S.B. 10 aggressively curtails local control over use of "roads, streets, and alleys, and all other dedicated rights-of-way and public utility easements" by telecommunications providers and, in general, limits taxation of and exaction of fees from such users. It also bars local authorities from requiring in-kind services for consent to use public rights-of-way.
This article discusses the new statute in the context of federal and state law and briefly assesses its implications for local governments and legal practitioners generally. The long-term ramifications of S.B. 10 will not be completely clear for some time---court challenges are anticipated---but the act may be expected to have extensive impact on the operations of local jurisdictions in Colorado, not just in terms of right-of-way management, but with regard to local taxing authority and in the differentiation of matters of state and local concern.
Municipalities in Colorado have traditionally possessed the authority to franchise permanent private use of local public rights-of-way.(fn2) Indeed, local control over local public rights-of-way, standard in most states, is formally sanctioned in Colorado in the Constitution in several places, including the home rule provisions of Article XX, § 6, which, until a constitutional amendment passed in 1986, prohibited granting of permanent franchises for use of public rights-of-way without a vote of the local electorate,(fn3) and Article XXV.
Article XXV empowers the General Assembly, and by extension the Public Utilities Commission, "to regulate the facilities, service and rates and charges therefor within home rule cities and home rule towns... of every corporation... defined as a public utility," but expressly preserves the right of municipalities to exercise reasonable police and licensing powers, and to grant franchises. Moreover, local authority over streets was long ago regularized by CRS § 38-5-108, which states:
Nothing [herein] shall be construed to authorize any person to ... construct any [facilities] along, through, in, upon, under, or over any streets or alleys of any city or incorporated town without first obtaining the consent of the municipal authorities having power to give the consent of such city or incorporated town.
Prior to S.B. 10, the above language was phrased broadly to cover every kind of utility facility, including telegraph and telephone. In the last of its substantive provisions, however, the new statute deletes the two words "telegraph, telephone" from § 38-5-108, in essence codifying a 1967 decision of the Colorado Supreme Court, Mountain States Telephone and Telegraph v. City of Englewood.(fn4)
City of Englewood held that the need for a statewide telephone system, with coordinated intra- and interstate telecommunications, made regulation of such a system a matter of statewide concern, outweighing any potential municipal interest and vitiating the requirement that Mountain States Telephone obtain local consent to use public rights-of-way. Moreover, in City of Englewood, because Mountain Bell had already obtained a franchise from Englewood as well as a certificate of convenience and necessity from the Colorado Public Utilities Commission, the court held that the company did not need to apply for a renewal or an extension when it desired to expand its operations or when the current franchise expired under its terms.
The decision gives only a passing nod to the language in Article XXV of the Colorado Constitution, and does not satisfactorily explain the seeming inconsistency in a decision based in large part on the existence of a contract between the telephone company and the municipality which then
exempts one party (the telephone company) from all obligations under that same contract. In any event, following City of Englewood, franchise agreements between local...
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