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Abstract

In the ever-changing telecommunications industry there appears to be an enormous amount of confusion not only as to the appropriate amount of compensation chargeable to the users of public rights-of-way, but also as to the very authority of state and local governments to require compensation. This was not always the case. It has long been a well-settled legal principle that local governments may receive reasonable "rental" compensation from private commercial entities for their use of local public property for private economic gain, even where federal statutory law restricts local governments from denying access to rights-of-way for telecommunications services. For example, in a turn-of-the-century case construing the applicability of a federal law to a telegraph company's use of local public property, the Kentucky Court of Appeals, citing several previous United States Supreme Court cases, stated: The Congress of the United States has no power to take private property for public purposes without compensation, and it can no more take the property of a state or one of its municipalities than the property of an individual. The acts of Congress ... conferred on the defendant [telecommunications company] no right to use the streets and alleys of the city ... which belonged to the municipality. Although this principle has seemed to be well-settled since 1903, it may be revisited again 92 years later in light of (1) contemporary constitutional challenges, (2) advances in technology, (3) a recent Federal Communications Commission ("FCC") action on video dialtone services, and (4) proposed Congressional telecommunications legislation involving telecommunications companies' use of local rights-of-way for the "information superhighway"-that cornucopia of telecommunications services. This article will first examine the municipal and federal authority behind this established legal principle and then analyze the current issues facing it.

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