FCC Preempts Duplicative ROW Fees

November 20, 2020

The FCC recently ruled that the rights-of-way (ROW) fee requirements of three Missouri cities were duplicative and created a barrier to entry, which violates Section 253 of the Telecommunications Act. Ordinances in Cameron, Maryville and St. Joseph, Missouri, required both the entity that owned the telecom facilities located within the ROW, such as dark fiber, and the entity that used those facilities to provide services, to pay ROW fees.

Because of Uniti Leasing’s (now known as Leasing MW) ownship of the facilities that Bluebird uses to provide service, the cities each seek to require that both petitioners enter into separate ROW agreements for the same network in each of the cities, which would have the effect of imposing a double charge on the telecom facilities that Bluebird uses to provide service, wrote Joshua S. Turner, Wiley Rein.

In its Declaratory Ruling, the FCC said, “We find that the cities’ have imposed such a material inhibition here to the extent that they construe their ordinances in a manner that allows them to effectively double-charge Bluebird for its single use of the public rights-of-way simply because another entity owns the network — an entity that does not have any physical connection to the public rights-of-way itself,” the FCC said in its Declaratory Ruling. “We find that such a dramatic increase in costs for Bluebird’s use of the network would impose a financial burden that effectively prohibits Bluebird from providing its services in violation of section 253(a) of the Telecommunications Act.