The Wireless Frontier in Kansas and Missouri: Are the Public Rights-of-way Finally Beckoning?
| Citation | Vol. 73 No. 6 Pg. 30-38 |
| Pages | 30-38 |
| Publication year | 2004 |
73 J. Kan. Bar Assn. 6, 30-38 (2004). The Wireless Frontier in Kansas and Missouri: Are the Public Rights-of-Way Finally Beckoning?
73 J. Kan. Bar Assn. 6, 30-38 (2004)
Wireless telephone companies are debating whether to locate new state of the art equipment in the public rights-of-way in order to expand the availability of advanced services such "WI-FI" and other "3G" applications.(fn1) Previously, such companies provided wireless service from large mono-poles located on private property. Because such equipment has not been located within the public rights-of-way, the wireless companies have managed to avoid the franchising authority of cities in Kansas and Missouri.
As neighborhoods resist the construction of new mono-poles, and as consumer demand for reliable, wireless, high-speed connections grows, there is mounting pressure on wireless companies to find new solutions for delivering their service. Fortunately, recent engineering advances have made it increasingly feasible for wireless companies to deploy smaller antennae on existing structures such as street lights, telephone poles, and electric poles. By using such new technologies, wireless companies can penetrate deeper into neighborhoods with their signals and can build networks capable of offering wireless Internet almost anywhere.
The drawback to this future scenario resides in the fact that street lights, telephone poles, and electric poles are located primarily in the public rights-of-way. As such, the wireless companies are carefully considering the implications of deploying new equipment on these existing structures. Among other things, such a build-out might have franchise implications for these wireless companies. This article examines legislation that has been enacted in Kansas and Missouri in recent years, which might affect the decisions of numerous wireless companies to deploy new technology in those states.
I. Kansas
Prior to 2002, it was not entirely clear whether Kansas municipalities could require wireless telecommunications providers to obtain franchise agreements. One reason for the uncertainty was that relevant statutes pertaining to this issue were enacted long before wireless communications were even imagined. For example, one of the earliest statutes addressing the rights-of-way, K.S.A. 17-1901, was enacted in 1868, and it gave telegraph companies the express statutory authority to occupy the public rights-of-way within the state. This authority was granted by the following single sentence, which formerly comprised K.S.A. 17-1901:
"Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters."
These same rights and powers were subsequently granted to "telephone" companies in 1907 pursuant to K.S.A. 17-1902. From 1907 until 2002, these statutes remained virtually static despite incredible advances in communications technology.
Separately, prior to 2002, the Kansas Franchise Act(fn2) (KFA) listed seven categories of activities that fell within the franchising authority of municipalities:
(a) The governing body of any city may permit any person, firm or corporation to:
(1) Manufacture, sell, and furnish artificial or natural gas light and steam heat; electric light, water, power, or heat; or steam to the inhabitants;
(2) build street railways, to be operated over and along or under the streets and public grounds of such city;
(3) construct and operate telegraph and telephone lines;
(4) lay pipes, conduits, cables, and all appliances necessary for the construction, [and] operation of gas and electric-light or steam-heat plants;
(5) lay pipes, conduits, cables, and all appliances necessary for the construction and operation of electric railways or bus companies; or
(6) lay pipes for the operation of a water plant for the distribution or furnishing of water over, under and along the streets and alleys of such city; or
(7) use the streets in the carrying on of any business which is not prohibited by law.(fn3)
The question of whether wireless telephone companies could be required to obtain a franchise prior to 2002 was somewhat difficult to answer given the wording of the foregoing statutes.(fn4) Prior to 2002 "telephone" companies were not defined within the KFA, nor were "telephone" companies defined within the statute granting such companies the right to occupy the rights-of-way.(fn5) Thus, it was not clear if wireless companies were considered telephone companies within the meaning of such rights-of-way and franchising statutes.
Interestingly, the Kansas Supreme Court did make an observation in 1988 about the fact that new technologies have altered traditional ideas of "telephone" services and companies.(fn6) In light of such judicial commentary, there was at least some possibility prior to 2002 that cities could attempt to prevent wireless "telephone" companies from using the public rights-of-way unless they first obtained a franchise.
Recent Kansas legislation
The statutory framework governing "telephone" companies in Kansas changed significantly beginning July 1, 2002.(fn7) Following that date, the term "telephone" companies no longer even appears in the KFA nor in the statute granting telephone companies authority to occupy the public rights-of-way.(fn8) Because of recent amendments to these statutes, the KFA now uses the term "telecommunications local exchange service provider" and the rights-of way statute now refers to "providers," as discussed further herein.(fn9)
Although the amended statutes each use different terminology to refer to telephone companies, the new terms "telecommunications local exchange service provider" and "providers" have similar definitions. In particular, the definition of "telecommunications local exchange service provider" that appears at K.S.A. 12-2001(c)(8) and the definition of "providers" which appears at K.S.A. 17-1902(a)(2) both incorporate by reference the definitions of "local exchange carrier" and "telecommunications carrier" that appear in K.S.A. 66-1,187(h) and (m), respectively.
While the definitions of "providers" and "telecommunications local exchange service provider" have a common foundation, the definitions are also different in one very significant respect. Specifically, the KFA expressly excludes certain wireless companies from the definition of "telecommunications local exchange service provider."(fn10) The definition of this lengthy phrase appears at K.S.A. 12-2001(c)(8) as follows:
'Telecommunications local exchange service provider' means a local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and amendments thereto, and a telecommunications carrier as defined in subsection (m) of K.S.A. 66-1,187, and amendments thereto, which does, or in good faith intends to, provide local exchange service. The term telecommunications local exchange service provider does not include an interexchange carrier that does not provide local exchange service or any wireless telecommunications local exchange service provider.(fn11)
In light of such unambiguous language within the KFA, it appears that the authority of Kansas municipalities to require franchises from "telecommunications local exchange service providers" does NOT apply to wireless telephone companies providing local exchange service (i.e. local calls).
It could be argued that the Kansas Legislature intended to allow cities to franchise "wireless" telephone companies under the catch-all category of the KFA, quoted supra, which applies to companies that "use the streets in the carrying on of any business which is not prohibited by law."(fn12) Such an argument would undoubtedly fail, however, because the provisions of K.S.A. 12-2001(c) through (s) treat "telecommunications local exchange service providers" in a comprehensive manner, and the statute expressly excludes "wireless" companies from its scope by virtue of the very definition of "telecommunications local exchange service providers."(fn13) Clearly, if it was the intent of the Legislature to make "wireless" companies subject to the municipal franchise requirements, it could have easily done so by not creating an express exception for such wireless companies within the statutory definitions under the KFA.
Interestingly, even though cities in Kansas apparently cannot impose a franchise requirement on wireless telephone companies under the revised KFA, such wireless companies nevertheless have a statutory right to occupy the public...
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