Revised and updated September 9.

The New Jersey State League of Municipalities opposes A-641. This legislation was approved by the Assembly Telecommunications and Utilities Committee on Thursday, September 8.

A-641 would allow broadband telecommunications service providers to use poles belonging to public utilities and CATV companies in certain instances. Essentially, this legislation would allow telecommunications infrastructure to be placed in the right of way without municipal consent.

The right of way is an important area for any community. The little bit of ground next to the road transports natural gas, electricity, phone and internet connectivity to all citizens. And, it’s local government’s job to manage it. However A-641, a proposed bill in the legislature, would side step local government and give wireless broadband providers immediate access to the ROW. The lack of local oversight created by such legislation is problematic for orderly use of the right-of-way.

The Federal Telecommunications Act (TCA) specifically protects local government’s ability to oversee the siting of wireless facilities and manage the public’s right of way. See 47 U.S.C. § 332(c)(7)(A) and 47 U.S.C. §253 (c). Further, New Jersey law requires that utilities receive local approval to use the rights of way.( N.J.S.A. 58:17-11), and, municipal consent is required for the use of existing poles ( N.J.S.A. 48:3-19).

A-641 limits local government’s ability to manage the right of way and to make land use decisions regarding the siting of wireless broadband facilities. The ability to make these decisions is very important because of recent changes in federal law. In 2014, the FCC enacted a collocation order that would allow wireless developers to increase the size of wireless facilities, including small cell nodes and DAS systems, once they’ve been installed. IMO Acceleration of Broadband Deployment by Improving Wireless Siting Policies, WT Docket No. 13-238, 11-59, 13-32, ¶172,(10/17/14).

Thus, A-641 would eliminate the only local discretion left to local government in the FCC’s collocation order; that being the community’s ability to review the initial applications of wireless developers. If A-641 were to become law, municipalities would have no say on the placement of DAS and small cells in the public’s rights of way and thereafter, under the collocation order, local governing bodies would have no say as they increase in size.

A-641 would also deny local property taxpayers of any compensation from an entity looking to profit from the use of the public’s right of way. Municipalities rely on franchise fees to offset the costs of local government services. A-641 does not permit local government to negotiate a franchise fee with “broadband telecommunications” companies. Without this source of non-property tax revenue, municipalities could be forced to increase their reliance on the property tax. This is not an acceptable result.

The League respects the great strides that telecommunications companies have made in broadband infrastructure.  To promote these new technologies the federal Telecommunications Act places restrictions on municipalities’ ability to regulate telecommunications infrastructure. Thus, there are tools available to broadband developers if they feel they are being unfairly treated. We believe A-641 goes too far by denying the public any compensation for the use of its rights of way and by totally limiting local discretion.

Contact: Edward Purcell, Esq., Staff Attorney.  epurcell@njslom.org or 609-695-3481 x137.

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