MPUC Chastises Telecom Provider Over Right of Way

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MPUC Chastises Telecom Provider Over Right of Way

November 8, 2016

Can a telecommunications company with a state certificate of authority to provide local niche services ignore municipal right-of-way (ROW) ordinances?
No, according to a recent proceeding at the Minnesota Public Utilities Commission (MPUC).
The MPUC Nov. 3 granted a certificate of authority to provide local niche serves to Mobilitie Management LLC, with conditions. Those conditions include: 1.) Mobilitie must file a detailed company policy regarding access to ROW; and acknowledge that Mobilitie is subject to permitting authority of local government units with respect to facilities they seek to put in public ROW.
Mobilitie Management, LLC is an affiliate of Mobilitie, LLC, which already held a certificate of authority to provide local niche services in Minnesota. Mobilitie has applied to cities for right of way placement of poles, towers (some of them apparently up to 120-feet tall) and other equipment within the ROW. 
Representatives of Mobilitie, in discussions with local government units, were apparently claiming that the company was not subject to right-of-way regulation. 
In response to numerous calls from Minnesota municipalities, the state Department of Commerce sent a letter to Mobilitie, LLC, informing the company that, irrespective of its certification, the company is still subject to municipal ordinances and requirements concerning rights of way.
The MPUC and DOC staff met with company representatives to discuss the company’s position on compliance with municipal right-of-way ordinances. 
The DOC, in regulatory documents, noted it “continues to work with Mobilitie, LLC to reduce confusion on the authority of a municipality to enforce its right-of-way ordinances . . .”
The DOC wrote that it “has consulted with MPUC staff and we are aware of nothing in Minnesota statutes or rules that excepts an MPUC certificated carrier from the requirements of a local government unit concerning rights-of-way . . . The DOC requests that Mobilitie cease from asserting that PUC authority has exempted it from the regulatory requirements of local government units. If such communications continue, the DOC will pursue whatever remedies it may have available to it under Minnesota law.”
Thirty-one cities, banded together as the Suburban Rate Authority (SRA), participated in the proceeding and Nov. 3 MPUC meeting. SRA noted that it was aware of no federal preemption under the Telecommunications Act of 1996 or Minnesota law that precludes the ROW management authority granted by the Legislature to Minnesota local government units. 
Along with supporting the DOC position that the company has no exemption from municipal authority to manage its ROW, the SRA expressed concerns “with the overlap of intended local niche business and apparent ROW access” sought by both Mobilitie and Mobilitie Management, and requested clarification regarding the type of entities the companies are under state law (Chapter 237).
SRA said that there was typically a complete lack of information in Mobilitie permit requests. Applications for new wireless towers typically include a map of proposed service area, which would also show existing towers. Applications also generally include a survey of what is currently in the ROW. That information has not been provided. 
Mobilitie stated at the MPUC hearing that it wanted to “clarify” that it was and is “always subject to city ROW authority.”
Commissioners made it clear that they had taken municipal concerns seriously, and were very clear in addressing those concerns.
- by Steve Downer

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