Clear and Present Concern for Right of Way Application FeesAuthor: Brad Stewart
August 31, 2016
A ruling by a lower court judge in August determined that the $1,500 application fee in the City of Altamont’s Right of Way Ordinance, similar to the Illinois Municipal League’s Model Right-of-Way Construction Ordinance, was “unlawful and prohibited by…the Telecommunications Municipal Maintenance Fee Act [“Act”].” Many municipalities have an ordinance consistent with the IML’s Model Right-of-Way Construction Ordinance, which was released in 2007.
The specific ruling by the lower court was that the Act explicitly forbade any franchise fee or other cost which pertains to “the recovery of reasonable costs of regulating the use of the public rights-of-way.” The fees many municipalities have implemented as part of their right-of-way applications were intended, at least in large part, to be offsets of administrative costs of handling and reviewing applications. The lower court’s ruling does not dignify the idea that any fee associated with a telecommunications provider’s application to use a right-of-way is permissible.
At this point, the issue was only ruled upon by a trial court, which does not create any mandatory precedent on other courts in the State. However, the holding will certainly embolden telecommunication providers to challenge municipal fees associated with the use of a right-of-way. Further, if this decision or a similar decision is upheld by an appellate court, then the holding would become generally binding on other courts.