Washington Law Review


Section 253(c) of the 1996 Telecommunications Act expressly preserves local government authority to require fair and reasonable compensation from telecommunications providers for use of public rights-of-way. Although local government authority to require compensation for franchises is based in state law, some courts have overlooked state law when evaluating the validity of franchise fees. In addition, courts have interpreted § 253(c) narrowly, allowing local governments to recover only direct costs. This narrow interpretation of § 253(c) contradicts its text and legislative history, as well as analogous United States Supreme Court precedent. Further, this interpretation could lead to unconstitutional results, by allowing a taking of public property without just compensation and permitting Congress to commandeer local governments into implementing a federal regulatory program.

First Page