Private Telecommunications Use Of Municipal- Owned Property
Sharing Public Assets For Community Benefit
The Fiber is Coming! The Fiber is Coming!
When the ink dried on the 1996 Federal Telecommunications Act, local governments braced for what they believed would be a heavy influx of providers seeking out their communities for infrastructure installations in order to market new and competitive services. Governments reviewed their public rights of way permitting and management codes, their land use cell tower zoning and site review criteria, and standards for permitting private use of municipal property such as buildings and land for public benefit. Procedures are pretty clear about infrastructure placed in public rights of way (streets, sidewalks, alleys). Questions still arise today about how to respond to private telecommunications service providers seeking commercial use of municipal property.
The City as a Landlord – Fair Consideration of Incoming Requests
Eugene, Oregon staff found successful methodologies to respond to requests to use City-owned property in a fair and standardized way, even where siting requests are extremely varied. Company A might need a street light pole one instance and a rooftop in another. Company B might want parkland in two different locations, one designated as a ballfield site and the other as passive ridgeline.
A key success factor can be the use of consistent staff to respond to incoming requests—a simple approach that can reduce the likelihood that a facility manager will find it easier to say ‘No’, than arrange their workload to accommodate the work involved in negotiating the placement, construction conditions, and contract for use of City property. Staff can develop a transparent and fair response while ensuring the public interest remains protected. How?
1. Policy Statements: The City of Eugene developed nine policy statements relating to telecommunications operations within the community. Three of them are specifically considered in responding to requests for use City-owned property:
Policy #2. The City shall receive fair compensation for the use of City property by telecommunications providers.
Policy #7. The City shall have access to reliable, flexible telecommunications services.
Policy #8. Similarly situated telecommunications providers shall be treated in a similar manner.
Staff can shepherd a request to the contract stage for review by a municipal attorney to signatures, then leave the oversight of the contract to the facility Manger.
2. Criteria for Fair Rent:
a. Market Forces: A City can develop agreements which allow it benefits as favorable as other cities have with the same provider in similar situations. However, if the provider locates at another, less desired site at the City’s request, a City may offer lower rent amounts. An example is relocating from a City property in a residential viewshed to City property adjacent to a cemetery.
b. Precedents: A City seeks consistency in developing agreements, within their own jurisdiction or compared to similar jurisdictions. Precedents should consider that ‘fair rent’ at least covers the full cost of negotiating and managing the agreement, and any increased costs associated with the presence of telecom equipment on City property.
c. Potential to Reduce Burden on Viewshed: A City can accept lower-than-market rent to provide incentives for providers to use existing City assets rather than erect new structures. A monopole, while permitted in a residential area was renegotiated to a ball-field light attachment. In another case, a monopole was renegotiated to a rooftop structure.
d. Cost-Effective Public-Private Partnerships: A City may reap benefits by sharing the share the expense of building a structure which could hold both the private and public telecommunications equipment. Joint trenching and shared conduit are examples.
Simple and standardized guidelines convey to telecommunications companies that municipalities are amenable to the use of City property for services important to the community, whether above ground or underground, wireline or wireless, using land or buildings. Last but not least, a City’s response can be transparent to inquiring residents and its elected officials. They will want to know that the use of City property does not conflict with any local, state, or federal laws that govern that use. They will want to know if sharing resources protects the viewshed. They will want to know how shared use benefits service delivery to the community.
“Planning is not about predicting the future. Planning is not about controlling the future. Planning is about handling what the future brings. ” Judith Umbach, Civic.Com
Author’s note: While involved in telecommunications policy and program work at the City of Eugene before retiring in 2023, this article is the opinion of the author.
By Pam Berrian