مقاله سال ۲۰۱۶

Per common practice, telecommunications providers use rights-of-way to build physical network infrastructure on lands they do not own, for deploying cable aboveground or underground and for placing wireless transmission towers. Agreements to use these lands are usually made with public landowners such as local governments and the agencies that oversee national parks, state forests, and the like.

This article focuses on American policies and regulations that govern the use of such publicly-controlled lands by telecommunications providers. The procedures for interacting with and compensating landowners in order to obtain rights-ofway have been established per regulation and court precedent. In short, private landowners should be justly compensated;1 ; public landowners may be compensated directly, but more often the firm using the land must offer some sort of remedy that is in the public interest. Traditionally, the particular responsibilities of telecommunications firms have been codified in common carrier regulations in which the firms received the authorization to use the land in return for delivering public interest benefits like universal service. Meanwhile, governments exercised the rights of landowners under traditional property ownership laws. This article focuses on the histories of these legal traditions as applied to telecommunications networks, arguing that the existing legal justifications for allowing telecommunications firms to use publicly-controlled lands (i.e. lands overseen by local or state governments in the interests of citizens) for rights-of-way are becoming untenable due to recent developments in the industry and the services that it delivers.

While the 1996 Telecommunications Act includes some specific rules for rights-of-way as needed by telecom service providers, much of the law regarding this matter descends from utilities regulation and the common law of land ownership. More specifically, utilities that operate aboveground power lines or underground pipelines are designated as franchisees that have been granted certain privileges for using land that is controlled by someone else, and in return these franchisees face various public interest obligations. For example, per statutes like the Clean Water Act, a fossil fuels company that lays a pipeline through a state forest is often required to satisfy the public interest by vowing to repair ecological damage. Historically, telecommunications firms have been subjected to similar requirements.