"Not in My Back Yard!" Restrictive Covenants as Basis for opposing the Construction of Cellular Towers (original) (raw)

Wireless Localism: Beyond the Shroud of Objectivity in Federal Spectrum Administration

SSRN Electronic Journal, 2000

of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission ("FCC") should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a new orthodoxy that eschews conventions in public lawmaking in federal spectrum administration and instead prefers an approach that is sealed away from direct public scrutiny. This new orthodoxy assumes that supply and demand in the market for emergent smart spectrum sharing technologies is a more objective administrator of the public interest than the public lawmaking processes even can be. Second, this Article challenges the new orthodoxy by arguing that local public participation in federal spectrum administration can align the new technologies with the diverse priorities of each community in ways that neither the technologies alone, nor the markets for them, ever can. It is of no legal or normative consequence, this Article asserts, that substantive federal spectrum policy encourages commercial adoption of the newest technology. Rather, this Article argues, lawmakers in this field ought to create procedural mechanisms in federal spectrum administration that accommodate local communities' diverging interests. Local participation in the formulation of spectrum policy gives a purpose to communication technologies that are otherwise morally ambiguous. In the end, the Article proposes a solution on the basis of relatively recent legal scholarship and developments in public law administration.

Public Rights-Of-Way, Public Management, and the New Urban Telecommunications Infrastructure

Public Works Management & Policy, 1998

Public right-of-way (PROW) is prime real estatefor the telecommunications industry. Cable television and wired and wireless networks are the latest to seek PRO\¥, and conflicts occur among local governments, utility systems, telecommunications providers, and the federal government. Should local governments profitfrom ownership ofPROW or should utility and telecommunications interests be permitted to capture the profit generatedfrom establishing networks that use extensive PROW? This question is analyzed, resulting infour key findings. First, historically, private utilities had the upper hand in right-of-way (ROW) occupancy, using bribery, negotiation, and eminent domain. Second, local jurisdictions have a defensible rationalefor PROW management, but the change from wired to wireless systems is weakening municipal control. Third, federal law has set the parameters oflocal control oftelecommunications PROW. Fourth, local PROWmanagement can be reduced to a set offee-based policies designed to allow jurisdictions to recover costs associated with controlling ROW. A ll infrastructure systems are networks. The networks are physically linked through hardware (e.g., wires, fiber optics, pipes, conduits, risers, raceways, surfaces) or, in the case of various telecommunications networks, by wireless connections supported by land-based nodes (e.g., microwave). The linkages occupy some quantity of public right-of-way (PROW) within respective jurisdictions and some quantity of privately held property (which thereby becomes right-of-way [ROW] but not necessarily PROW). Depending on the functionality of the infrastructure, occupancy of public or private ROW occurs above, on, or below the ground. Land .becomes ROW through the construction of surface transportation corridors, the use of eminent domain, and the dedication of platted land to various utility easements. In any jurisdiction, therefore, a relatively fixed supply of PROW exists, generally transportation ROWand utility and drainage easements, and this supply expands only incrementally. Like other economic assets in relatively fixed supply, as more PROW is occupied, less PROW is available for other occupants. Competition for scarce PROW should increase its value as an economic asset. Marvin and Slater (1997) argue that this competition for urban infrastructure space will become more severe as maintenance of old systems escalates and newly entering telecommunications firms require access to PROW. Prime PROW will become prime real estate. How this new prime real estate should be handled poses a challenge for public managers, industry representatives, and policy

Property Rights and Wireless License Values

The Journal of Law and Economics, 2008

In order to promote public understanding of the impact of regulations on consumers, business, and government, the American Enterprise Institute and the Brookings Institution established the AEI-Brookings Joint Center for Regulatory Studies. The Joint Center's primary purpose is to hold lawmakers and regulators more accountable by providing thoughtful, objective analysis of relevant laws and regulations. Over the past three decades, AEI and Brookings have generated an impressive body of research on regulation. The Joint Center builds on this solid foundation, evaluating the economic impact of laws and regulations and offering constructive suggestions for reforms to enhance productivity and welfare. The views expressed in Joint Center publications are those of the authors and do not necessarily reflect the views of the Joint Center.