Right-of-Way/Pole and Conduit Use Agreements

Moss & Barnett has drafted Right-of-Way Ordinances for several of its clients, most recently communities in Minnesota and North Dakota.

As the communications industry continues to migrate toward IP technology many companies are able to offer voice, video and data products over a single wire.  Telephone companies are now competing directly against cable television providers to maintain their telephone customers and to provide the broadband data and video services which are in high demand from consumers.  Cable operators are utilizing their infrastructure to provide competitive voice products whether provided on an IP basis or on a traditional switched basis.  In addition, new start-up companies are recognizing the changing economic model in the provision of communications services and are attempting to provide similar packages of services by installing new fiber infrastructure in communities.

This evolving communications industry means a drastic change for municipalities in attempting to regulate their public rights-of-way.  Historically, telephone companies have received authority from state public utilities commissions and local units of government have had limited franchising rights.  These traditional telephone companies generally provided universal service to all residents and very little construction in the right-of-way was necessary because the decades old infrastructure typically only required maintenance as opposed to full-scale upgrades.  As telephone companies have begun to install fiber deeper into neighborhoods it has required the installation of additional fiber and large pedestals within the rights-of-way which often cause significant disruption.  New competitive companies are similarly entering the market and attempting to pick and choose high value customers resulting in a significant burden on certain portions of the right-of-way.

Faced with this changing demand and disruption of the right-of-way, municipalities are taking a fresh look at existing code provisions to ensure that adequate protections are in place.  In many cases local city codes fail to have sufficient insurance, indemnification, construction bond and restoration provisions to protect consumers should a right-of-way occupant fall into financial trouble or fail to adequately repair an open right-of-way.

Moss & Barnett has assisted many of its clients in reviewing existing right-of-way code provisions to ensure that they contain adequate protections for the municipality and its residents.  Often this does not require full scale redrafting of the right-of-way provisions, but rather amendments to provide adequate protections.  In cases where right-of-way code provisions are particularly antiquated a new right-of-way ordinance can be provided to address the above-referenced issues and to blend with other code provisions governing right-of-way users.

The newsletter below addresses additional right-of-way issues.