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Mar 10, 201610:29 AMLegal Login

with Mindi Giftos

Revisiting regulatory hurdles to broadband expansion

(page 1 of 2)

In January 2015, we highlighted two cases pending before the Public Service Commission of Wisconsin (PSC) with potentially significant implications for broadband expansion in the state. Since that time, recent decisions in both cases have contributed to the evolving regulatory landscape for broadband expansion in Wisconsin, and the potential costs and risks to broadband providers.

Facility relocation costs

In August 2014, the PSC issued a decision declaring unreasonable the City of Milwaukee’s effort to impose facility relocation costs on utility providers to accommodate the proposed Milwaukee Streetcar Project. The project includes the construction of a fixed-rail streetcar system in downtown Milwaukee, requiring the relocation of electric, gas, steam, and telecommunications facilities located beneath city streets. The city appealed the decision to the Milwaukee County Circuit Court, arguing that utility providers should pay the full cost of facility relocation caused by the streetcar project.

In a decision issued in February 2016, the court partially affirmed and partially reversed the PSC decision. The court upheld the portion of the PSC decision finding that the city’s utility relocation ordinance and the resolution authorizing the streetcar project are void to the extent they require utility providers to pay facility relocation costs caused by the project. The court reasoned that state law prohibits a municipality from enacting a municipal regulation that requires providers to pay such costs.

The city argued that it had independent authority, even outside of a municipal regulation, to require providers to relocate facilities. However, the court concluded, “There is no authority for the City to require the utilities and companies to relocate or modify their facilities, except by ‘municipal regulation.’ Absent a municipal regulation, the utilities and companies are under no obligation to relocate or modify their facilities.” The court disagreed with the portion of the PSC decision that invalidated future city regulations.

The decision is potentially significant for broadband providers because it confirms that a municipality must formally adopt regulations establishing the terms and conditions of facility relocation before requiring a utility provider to relocate its facilities. Such regulations remain subject to review by the PSC to determine whether the regulation is reasonable in relation to the costs of relocation and the purpose of the municipal project.

(Continued)

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About This Blog

Mindi Giftos and her colleagues in Husch Blackwell’s Technology Law group handle a wide variety of issues related to emerging and established technologies, including intellectual property, development and licensing, commercial contracting, and corporate transactions across a broad range of industries.

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