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of the State of Washington Attorney General, AGO 2001 3 Although municipal corporations must have explicit or implicit authority, they enjoy presumption in their favor 9 See, eg, Thomas S Smith, No Home on the Range for Home Rule, 31 Land & Water L Rev 791 (1996)
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2 Arkansas prohibits municipalities from providing local exchange services Ark Code Section 23 17 409 3 With certain limited exceptions, Nevada precludes cities with populations of 25 000 or more from offering any telecommunications services, as de ned in the federal Telecommunications Act Nevada Statutes Section 268086 Some states have enacted measures that are not explicit prohibitions but impose burdens that are dif cult, if not impossible, to meet For example, 1 Minnesota requires municipalities to obtain a 65 % super-majority vote in order to provide telecommunications services Minn Stat Ann Section 23719 2 South Carolina allows public entities to provide telecommunications services subject to various imputed-cost requirements SC Code Section 58 9 2600 3 Virginia now allows localities to provide local exchange and other communications services, but subjects localities to various onerous burdens Va Code Sections 152 2160, 56 2654:4 Additional burdens have been imposed with respect to cable service offerings Several state legislatures recently considered (or are considering) new restrictions on public communications providers Others considered, or are considering, measures to decontrol incumbent activities
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443 Local restrictions
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Local ordinances, charters, franchises, pole agreements, bond restrictions, contracts, etc, may contain explicit or implicit barriers to entry For example, the City of Alameda, CA, had a charter provision that precluded it from establishing any new utilities without a 2/3 vote of the electors a practical impossibility The city was able to, and did, eliminate the charter provision by a simple majority vote
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45 Involvement models and structures
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Public communications projects have come in many shapes and forms; some of these involvement models can be applied to FTTH projects Examples include:
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r publicly-created, independent communications entities eg, Memphis Networx; r public communications services only to government and educational users eg, Portland r publicly-owned communications utilities providing only wholesale services to retail r publicly-owned communications utilities providing retail services to the public eg, Bristol
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(VA) (FTTH); Kuztown (PA) (FTTH); Tacoma (WA); Ashland (OR); Cedar Falls (IA); Glasgow (KY) and scores of others; r non-pro t entities eg, Georgia Public Web; r strategic partnerships with the private sector eg, Hawarden (IA) (with LongLines and NIPSCO); LaGrange (GA) (with Charter); Shawnee (KS) (Shawnee Municipal Authority, Com Solutions and Systems Inc, and the Oklahoma Municipal Services Corporation); r lease of municipal facilities to private sector providers eg, Anaheim (CA); providers eg, NOANet (WA and OR); Integrated Regional Network Enterprise (OR); Milwaukee (WI) and many others;
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Key Legal and Regulatory Issues Affecting Community Broadband Projects in the United States
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r construction and sale of municipal facilities to private sector providers eg, Lynchburg
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(VA) which sold a $35 million 42-mile ber optic network to CFW Communications (now nTtelos) for $1 and, in return, received (a) The 30-year irrevocable right to use all of the bers it had previously been using; (b) eight bers on all new routes in the city; (c) CFW s agreement to offer a broadband service to 95 % of addresses in the city within four years; (d) the best telephone rates in Virginia for ten years; (e) hundreds of thousands of dollars worth of technical assistance and equipment discounts, (f) various other bene ts; r regional entities eg, Oregon Central Coast Economic Development Alliance; UTOPIA project in Utah; proposed Tri-Cities project in Illinois (lost referendum); eCorridor Project in Virginia; SweetNet County, WY; Rural MD (NB: see GTE Northwest, Inc v Oregon Public Utility Comm n, 39 P3d 201 (OrApp 2002), on a county s authority to provide extraterritorial telecommunications services); r demand aggregation eg, Chicago CityNet (IL); BerkshireConnect (MA); Stillwater (OK) In structuring involvement models and using facilities developed for other purposes in the past, it is particularly important to consider tax implications (eg, public private partnerships are likely to qualify as private use for federal tax purposes, thus removing potential tax advantages)
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