Fellow Municipal Attorneys:

I am attaching a link to a bill that was recently signed by the Governor granting the ability of broadband and telecommunication providers with valid pole attachment agreements to use the easements of electrical companies.

I have had several of my municipalities enact ordinances controlling utilization and placement of infrastructure in municipal rights-of-way.  This bill seems to suggest that the City would have no ability to regulate its rights-of-way for placement of broadband provider infrastructure  that have permission from electrical utilities to use their poles and easements.  It also seems to limit the damages that could be recovered by municipalities for damages to their rights-of-ways.

Am I missing something?

Beth Anne

Beth Anne Childs

The Childs Law Firm, PLLC

1015 South Detroit Avenue

Tulsa, Oklahoma. 74120

(918) 521-3092

http://webserver1.lsb.state.ok.us/cf_pdf/2023-24%20ENR/hB/HB1965%20ENR.PDF

Here is how I read the statute:

17 O.S. § 139.302 (A):

• Easements used by an Electric Provider for electric services may be used by the EP or its subsidiaries to supply broadband services. The other providers identified in the statute must have a valid pole attachment agreement with the EP in order to do so according to the definitions at (1) and (4).
• EP is broadly defined to include municipal corporations that engage in electric service. So, for a telecommunications provider or approved broadband provider to use a municipality's electric poles, there has to be a valid pole attachment agreement with the city.

§ 139.302 (B):

• No class action may be maintained against an EP or its subsidiary for trespass, nuisance or inverse condemnation based upon a claim of expanded use of an easement.
• Claims of trespass, nuisance or inverse condemnation against an EP based upon the expansion of an easement that are found to exist will result in a permanent easement for the use with damages as calculated in the statute. The scope of the easement granted in such actions will be for the use, replacement and maintenance of the facilities installed.
• So, in the context of a city that does not have provide electric service, if the EP grants a pole agreement to a broadband provider based upon the EP's right to use the municipality's right of way, the municipality may file an action against the EP for the expansion of those rights.
• The next section (C) is similar but written in the context of an approved broadband provider or telecommunications provider.  So, a city that does not provide electric service could file an action for trespass, nuisance or inverse condemnation for expanded use with the damages and relief as set forth in section C.  The subsection may be inapplicable for a city that provides electric service however because there would have to be a valid pole use agreement between the city and the broadband provider or telecommunications provider in the first place.

§  139.303

• It generally states that the purpose of the statutes is to expand access to accommodate new technology.  However, express prohibitions may be contained in the instrument conveying or granting easement rights on the use of broadband. ("absent any applicable express prohibition contained in the instrument conveying or granting such easements")

Section 139.303 suggests that prohibitions can be placed in ROW agreements with an EP with regard to broadband that would prevent a broadband provider from piggybacking on an existing ROW agreement.  But absent any such language in an existing agreement, a city is going to be constrained by the language of the statute.

Broadband services may also be a matter of statewide concern too. I think a good argument could be made for it.  So, charter cities may be constrained by the statute as well.

With regard to limitation on damages, I interpret the statute to limit damages for trespass, nuisance, and inverse condemnation based upon a claim of expanded use as set forth in the statute.  However, the statute makes no mention of torts or civil action in other contexts, such as rupturing a water line or breaking an electric pole that is in the city ROW.

Best,

Ray

From: Beth Anne Childs via Oama oama@lists.imla.org
Sent: Thursday, July 20, 2023 9:50 AM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Bill on Location of Broadband Services

External Email: Use caution when opening links, attachments or responding to this email.

Fellow Municipal Attorneys:

I am attaching a link to a bill that was recently signed by the Governor granting the ability of broadband and telecommunication providers with valid pole attachment agreements to use the easements of electrical companies.

I have had several of my municipalities enact ordinances controlling utilization and placement of infrastructure in municipal rights-of-way.  This bill seems to suggest that the City would have no ability to regulate its rights-of-way for placement of broadband provider infrastructure  that have permission from electrical utilities to use their poles and easements.  It also seems to limit the damages that could be recovered by municipalities for damages to their rights-of-ways.

Am I missing something?

Beth Anne

Beth Anne Childs

The Childs Law Firm, PLLC

1015 South Detroit Avenue

Tulsa, Oklahoma. 74120

(918) 521-3092

http://webserver1.lsb.state.ok.us/cf_pdf/2023-24%20ENR/hB/HB1965%20ENR.PDF