Prince George's County officials are trying to figure out their next steps after a federal court invalidated a county law that had forced telecommunications companies to register with the county or pay rent to put fiber optics, cell phone towers and other equipment on public rights of way.
Attorneys for the county have filed a notice to appeal a recent decision by U.S. District Judge Catherine C. Blake in which she sided with Bell Atlantic-Maryland in a lawsuit over a six-month-old county ordinance that required telecommunications companies to turn over 3 percent of their gross revenue when their cables and wires crossed public property.
But County Executive Wayne K. Curry (D) has not decided whether the county will appeal the ruling to the U.S. Court of Appeals in Richmond, said his chief of staff, Glenda Wilson. "There are a lot of questions," she said.
The decision was one of several recent rulings attempting to define local governments' roles in regulating the rapid expansion of Internet, cable and other high-speed communication services.
"It's clearly new territory," County Attorney Sean Wallace said.
The federal Telecommunications Act of 1996 opened the doors for new companies to compete for local telephone markets and other services. The result has been a flood of requests from companies that want to lay down cables or build cellular towers so they can offer their services in Prince George's County and elsewhere.
County officials estimate that Prince George's County receives two to three inquiries a month from telecommunications companies interested in bringing their business and their equipment to the county.
Before the County Council passed a law in October establishing a system to manage the requests--and to collect a fee from those companies that did want to come in--a telecommunications company only had to apply for a construction permit from the Department of Public Works to begin working in public rights of way.
Attorneys for the county said they are in the process of developing an interim policy for dealing with telecommunications companies until the Bell Atlantic case and two others filed against the county are resolved. AT&T of Maryland and Sprint Communications also sued the county over the ordinance--the first of its kind in the region to take a comprehensive approach to managing the rights of way. The other two cases are still pending before Blake.
Stephen H. Clawson, a spokesman for AT&T, which mounted an unsuccessful campaign in the fall to try to defeat the ordinance, declined to comment.
John W. Dillon, Bell Atlantic's vice president of external affairs, said the company hopes that the court ruling will stop other jurisdictions from passing similar laws.
"We know other jurisdictions were very, very interested in this issue," he said. "It's going to help us as we go forward."
Jane Lawton, cable communications administrator for Montgomery County, which charges telecommunications companies 5 percent of gross revenue to use the public rights of way, acknowledged last week that it is likely Montgomery will have to change its practice because of the court ruling. But she said no formal decision has been made.
In the meantime, attorneys for Prince George's said their options include negotiating interim franchise agreements with the same kinds of requirements as the ordinance or attaching conditions to constructions permits.
Prince George's has two such interim franchise agreements with companies that wanted to come in and use the rights of way before the law was enacted.
One is with California-based Metricom Inc., which provides wireless Internet access by mounting shoe-box size radios on utility poles. The other is with e.spire Communications Inc., based in Annapolis Junction. The company offers local and long-distance telephone service and advanced data, Internet and networking systems to businesses.
Jim Falvey, vice president of regulatory affairs for e.spire, said the company fought against the Prince George's ordinance because it found that jurisdictions with similar laws charge fees that "tend to be discriminatory..."
Falvey said e.spire, which negotiated with the county to pay nearly the same as the 3 percent in the law, stopped paying the fees when Bell Atlantic filed suit in December.
Norine Luker, network real estate manager for Metricom, said telecommunications companies have had a tough time going into new markets because each jurisdiction has interpreted the Telecommunications Act a little differently.
She said Metricom officials agree that local governments are entitled to "reasonable compensation for use of the right of way." But, she noted, "a lot is wrapped up in that word, 'reasonable.' "
In her ruling, Blake found that Prince George's violated the federal act because the fees it charged were intended to generate revenue and not to compensate the county for damage to public property. She also found the application process too burdensome.
Federal judges in cases involving Austin and Dallas ruled similarly. But in Dearborn, Mich., a federal judge upheld the city's ordinance. Prince George's lawmakers had modeled their ordinance after Dearborn's, said Nicholas P. Miller, a District-based telecommunications lawyer who helped draft the law and who represents Prince George's in the court battles. Miller said he expects the issue will go to the U.S. Supreme Court.
County Council members expressed frustration over the ruling, which was handed down late last month.
"The decision as it stands now undermines local government in a variety of ways, and that in turn affects our ability to represent the citizens," said County Council member Thomas R. Hendershot (D-New Carrollton).
Council Chairman M.H. Jim Estepp (D-Upper Marlboro), who sponsored the legislation, said the court ignored what he said is a basic right of counties to protect public land.
"It's close to the federal court allowing a multibillion-dollar company to take public property and use it anyway it wants," Estepp said.
Estepp said council members may decide to draft new legislation that would withstand any new court challenge.