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Policymaking in the Public Right-of-Way: Home Rule

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Patrick Mulhearn
January 21, 2019

Our 21st Century media-consumption appetite is creating strange new chimeras. AT&T merging with Time-Warner, Comcast merging with NBC Universal, and a (rumored) merger between Verizon and Charter represent an inflection point for policymakers. We now live in an era defined by conglomerate entities marrying content and delivery, one which represents the end of a world where our various modes of transmitting information—telephony, data, video, music, games—are managed by separate entities on separate infrastructures. These mergers represent the beginning of an era of “tubes” where the only distinction between services is who puts those tubes in the ground.

In response to this, the regulatory systems that governments once used to modify and control the information landscape are themselves becoming more centralized at the state and federal level. From the perspective of local governments, this represents a threat to local control – an idea which seems increasingly anachronistic in our modern, global economy.

Home Rule

Home rule assumes that there are indeed some matters that are best managed by local governments. As John Nolon notes in his 1993 article “The Erosion of Home Rule Through the Emergence State-Interests in Land Use Control” from Pace Environmental Law Review, it is the transference of authority from state government to a local agent, providing limited local autonomy. 

The concept of home rule is an ancient one, which seems to predate the Magna Carta, in which we first find references to specific authorities granted to the City of London.  According to Nolon, the concept of home rule “was a logical expression of the desire to establish some limitation upon the state’s power over local affairs.” And we still see the remains of this preference in local zoning authority and control over the public right-of-way.

The Issue Today

But now we’ve entered an era of globalism with few of the temporal and topographical barriers that once restricted our interaction with the wider world. The advent of a global economy founded in Internet communications has spurred state and national governments to exert their authorities to support development of the infrastructures these communications rely upon – most of which reside in public rights-of-way overseen by local governments. For many, the private sector’s need for simplified regulatory processes and broad, unfettered access to new markets is best served by central rather than local regulation.

There is a convergence of the technologies once used to transmit this data, along with the converging corporate entities vying for public spaces in which to install their transmission infrastructure. This infrastructure is no longer content-specific, with digital technologies permitting any type of data to be transmitted across an agnostic network. 

Consequently, the distinctions between these different networks are disappearing. This has far-reaching implications for regulatory policymakers who must now find ways to protect the public interest while at the same time cultivating what is increasingly becoming vital infrastructure for economic growth.

There is a national interest in facilitating the deployment of these technologies in a consistent manner under a central authority. And although access to local rights-of-way is fundamental to placing the antennae, poles, and fiber conduits needed for data transmission, this access is increasingly becoming a non-local decision.

For authors such as Kyle Dixon and Phillip Weiser “access to [public rights-of-way] is an essential predicate to entering a particular market and is often a gating factor” – an “entry barrier” for companies that operate in many jurisdictions. But from the perspective of local governments control of this resource is necessary to avoid damage to expensive public infrastructure while local policies are often the only means they have in asserting local preferences for the siting and appearance of obtrusive equipment.

The data convergence heralds the further departure of local authority to state and national players and represents the dissolution of the historical distinction between interstate and intrastate services has long rooted policymaking at the federal, state and local levels.

There’s More Work to be Done

For the most part, this conversation has been driven at the national level through the Obama Administration’s ConnectHome and Connect America policy initiatives, and the Trump Administration’s Sustainable Spectrum Strategy. But local government voices have generally been left out of the policymaking.

It is important to remember that infrastructure placed in public rights-of-ways has an impact on communities, families, and individuals, and that these voices are best represented by local governments.  As the sites needed for this infrastructure vary wildly at the most granular level, there should be opportunities for local citizens to be involved in establishing the best locations for the tubes they rely upon for accessing the global economy. Organizations such as the National Association of Counties and the League of Cities—and jurisdictions around the country—are working on responses to these issues, and in future columns we will discuss the feasible, practicable solutions such local policy problems demand.

Authur: Patrick Mulhearn, MPA is a public policy analyst for the Santa Cruz County, California, Board of Supervisors.  He focuses primarily on policies relating to telecommunications and transportation infrastructure and may be reached at [email protected].

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