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35 Conn. L. Rev. 763 (2002-2003)
Competitive Neutrality in Right of Way Regulation: A Case Study in the Consequences of Convergence

handle is hein.journals/conlr35 and id is 773 raw text is: Competitive Neutrality in Right of Way Regulation: A Case Study in the Consequences of Convergence JAMES B. SPETA* It doesn't matter how high-tech the industry is. You still have to dig in the dirt.' This pithy truism of the telecommunications and Internet in- dustries is at the heart of a brewing controversy central to competition in both traditional local telephone and new broadband Internet services. In many areas of the country, the most practical place to install telecommuni- cations equipment is in the streets and other public rights of way, and therefore the need to dig in the dirt becomes a telecommunications car- rier's need to tear up the streets. Time and again, this need has created conflicts between telecommunications companies and local governments.2 Telecommunications companies want fast and free access to streets, to beat their competitors to market with new services and new capacities.3 Mu- nicipalities want to minimize the damage to their expensive streets, limit traffic disruption, and, in some cases, supplement their general revenues by taxing carriers' use of right of way.4 The stakes in this battle are significant. Although the telecommunica- tions industry is in a significant downturn at the moment, one of the rela- tive bright spots in the industry is the continued and increasing demand for residential broadband services.5 As the Pew Internet Project recently Associate Professor, Northwestern University School of Law. Comments are welcomed to j- speta@northwestem.edu. I thank David Haddock, Joseph Kearney, Joseph Miller, and Thomas Merrill for helpful comments. Joanna Glasner, High Bandwidth Bureaucracy, WImED NEWS, Mar. 25, 1999 (quoting Ed Koops, Engineering Vice President, NextLink), available at http://www.wired.com/news/business /0,1367,18681,00.html (last visited Nov. 2, 2002) (on file with the Connecticut Law Review). 2 See, e.g., TCG Detroit v. City of Dearborn, 206 F.3d 618, 620 (6th Cir. 2000) (telecommunica- tions provider sued the city for charging a franchise fee for rights of way); see also infra Part III.B. See Glasner, supra note i. 4See, e.g., TCG Detroit, 206 F.3d at 620-2 1. 5 John B. Horrigan & Lee Rainie, The Broadband Difference: How Online Americans' Behavior Changes with High-Speed Internet Connections at Home, Pew Internet & American Life Project, at 9, available at http://www.pewintemet.org (last visited Nov. 2, 2002) (on file with the Connecticut Law Review).

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