Mountain Law: Summit County cell tower referendum explained (column)
This paper recently reported that there will be a measure on the November ballot asking Summit County residents to give the county authority to construct cell towers. Why are residents being asked to vote on this?
The short answer to the question is that Summit County must hold a vote because the law says so. The applicable state statute, 29-27-201(1), is brief enough to quote in full as follows:
Before a local government may engage or offer to engage in providing cable television service, telecommunications service, or advanced service, an election shall be called on whether or not the local government shall provide the proposed cable television service, telecommunications service, or advanced service.
This statute is on the books as a result of lobbying efforts by incumbent carriers in the telecommunications industry.
The backstory begins with the federal Telecommunications Act of 1996, which was supposedly designed with “pro-entry” policy goals. In other words, it was designed to foster competition in the telecommunications industry. One embodiment of these goals was Section 253 of the act, which basically says that state or local governments cannot restrict competition by regulating telecommunications services.
Immediately after the act was adopted, several states purposely challenged Section 253 by passing laws that prevented their municipalities from providing telecommunications services. Incumbent telephone carriers promoted these laws in an effort to prevent what is known as “municipal broadband.” One state that adopted such a law, in 1997, was Missouri. In response, several municipalities petitioned the FCC to pre-empt the Missouri law under Section 253. The FCC rejected the petition, but the 8th Circuit reversed and held that Section 253 pre-empted the Missouri law. In 2004, however, the Supreme Court reversed again in a case called Nixon v. Municipal League. The Nixon decision basically held that Section 253 does not apply to laws that prevent municipalities, as opposed to private companies, from providing telecommunications services. Critics of Nixon view it as a betrayal of the pro-entry policy behind the act.
The significance of Nixon is that it basically opened the door to further restrictions on local government entry into the telecommunications industry. This was not lost on incumbent carriers or state legislatures. Seizing the opportunity that Nixon provided, incumbent carriers launched an intensive lobbying effort in multiple states to enact further restrictions in this area. The actual scope of these new restrictions varied in severity, but they all effectively raised the costs for local governments to provide telecommunications services. Some states, such as Nebraska, flatly banned local governments from providing telecommunications services. Others, such as Colorado, adopted statutes like the one quoted above that create procedural hurdles for new telecommunications projects by local governments. In total, it is estimated that about a third of the states have now adopted some kind of restriction on local governments providing telecommunications services. Legal observers typically criticize these laws, although some argue for them on states-rights grounds.
It appears that the battle is not over. Earlier this year, the FCC voted 3-2 to preempt certain provisions of Tennessee and North Carolina laws that restrict government-owned telecommunications networks. The FCC’s pre-emption decision was based on authority it claims to have other than Section 253. Tennessee appealed the decision to the 6th Circuit, which has not yet issued a ruling. There is a chance that the Supreme Court will again consider the matter down the road. If the FCC prevails, laws like Colorado’s may ultimately be pre-empted by similar rulings.
In brief, although incumbent carriers may not be fully serving Summit County’s telecommunications needs, their lobbying efforts have created hurdles to the county addressing these needs on its own. This is why the county must ask permission from voters before it can move forward with any plans.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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