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Though this is just a small blip on the radar screen, Gerry Lederer, a Washington D.C.-based attorney with law firm Miller & Van Eaton (and not affiliated with this lawsuit), says that this may be an indicator of a bigger problem. “Utilities are becoming less of a community citizen,” he says. Competition between the ever-increasing number of telecoms is fierce, and they're more focused on the bottom line than ever before.

Plus, now that there are more telecom companies to choose from, the city's tax base and customer base are different, and pole relocation costs can't simply be rolled into a non-competitive bill. Telecoms don't want to pass the cost on to the customer base they're struggling to build, so they opt to fight the city when asked to relocate assets.

Gis To The Rescue

Utilities in Virginia, when given proper notice, must move their assets off the right of way, or face the consequences. Norfolk, like Nashville, adheres to the common-law rule. Telecommunications and gas company rights are subordinate, so the city can tell them to move at their own expense. The issue, says the city's right of way manager Jerry Spivey, is that while these companies cooperate, often they aren't able to move quickly enough to meet the public works department's construction schedule.

Though this has never gone as far as a lawsuit, one of the top issues Spivey and his colleagues wrestle with is knowing where the utilities are in this very old city of about 235,000, which was incorporated as a town in 1682. Some underground lines have been abandoned, so utilities are not mapped as accurately as needed, a problem common to many East Coast cities.

They've resolved this by committing to add layers to their geographic information system (GIS). The city is in the midst of a multiyear process of inputting the public and, as much as possible, private utilities as separate layers in the GIS to help future construction to go more smoothly. The GIS was not set up or funded solely for this purpose, but it will help resolve future right of way issues quickly and efficiently.

By updating its own GIS and incorporating utility information, Norfolk can make quick decisions on permit coordination, utility cuts, and other right of way matters. Its interactive public GIS, updated once each week, has an online mapping tool that shows all right of way permits in progress. Armed with this information, the public works team and local utilities can make well-informed decisions about how to coordinate work or the best ways to control traffic.

Running Smoothly

Fortunately, right of way headaches like Nashville's can be avoided. The Florida DOT has, for instance, learned that sometimes litigation just isn't worth it, so it works to cut problems off at the pass. The DOT's Office of Right of Way is responsible for reviewing a design (such as a new Interstate interchange), determining where it fits against private properties, and acquiring property if needed. This can take 14 to 24 months, so there's plenty of time to ensure that any utilities on state right of way are notified of the impending construction.

Utilities often have assets on their own easements, and if the poles or pipes need to be moved, the DOT may be required to pay for it. State utility engineer Thomas Bane works around this difficult, time-consuming task as often as possible. “We try to work with the utilities as much as we can,” he says.

Florida law states that if a utility is given official notice, it must move its assets. If the utility refuses to move, the DOT can move them at the utility's expense—but the DOT is often reluctant to do this, says Bane. The DOT would have to temporarily take on the responsibility for the gas lines or communication cables serving large municipalities—not a good option for them.

Bane says a problem may be more expensive to take to court than to fix using other tactics. For instance, it's not economically feasible to have a utility spend $800 million to move when a project can be modified to accommodate the utility at $100 million. “Don't think that just because the utility pays for the relocation that the citizens of Florida won't ultimately foot the bill,” says Bane.

Bane also points out that what works in Florida for one utility may not work in a neighboring state. Nationwide telecommunications firms should be well familiar with laws and regulations in each state in order to work smoothly with offices like his, he says. The company should work closely with that state or city's right of way officer to ensure it's meeting local laws. Otherwise, the telecom may be in for a surprise, such as approval delays or unplanned costs. Communication is key here, and most public works or right of way departments have a person on staff for just this purpose—to keep the communication lines open.

If the utility is in its own easement, the utility's rights change dramatically, and it's not required to move assets or to pay for their relocation. Having accurate data about right of way and easement land becomes paramount at this point. If the city's records of old easements and right of way land are unclear or out-of-date, it can become costly for the city to move the utility or purchase land.

The 21 states in which franchise laws have passed include:
  • 1984: Alaska, Connecticut, Hawaii, Rhode Island, Vermont
  • 2005: Texas
  • 2006: California, Indiana, Kansas, Michigan, New Jersey, South Carolina, Virginia
  • 2007: Florida, Georgia, Illinois, Iowa, Missouri, Nevada, Ohio

  • Read the sidebar "Telecoms Jump into the State Game"
  • Click here to see a list of resources for cities trying to tackle right-of-way legislation