January 16, 2001
Frances L. Smith, Esq.
Board Secretary
New Jersey Board of Public Utilities
Two Gateway Center
Newark, New Jersey 07102
 

 

Re: I/M/O Petition of Verizon New Jersey Inc. For Approval of Municipal and County Consent Pursuant to N.J.S.A. 48:2-14
BPU Docket Nos. TE00100718 through TE00100741

 



Dear Secretary Smith:

The New Jersey Division of the Ratepayer Advocate ("Ratepayer Advocate") has reviewed the above referenced petition by Verizon New Jersey Inc. ("Verizon") and submits the following comments to be considered by the Board of Public Utilities ("Board") in rendering decision on these matters (1). For the reasons that follow, the Ratepayer Advocate respectfully submits that the Board establish a generic proceeding to review issues related to municipal consents and right-of-way management in a competitive environment. (2)


The petitions under review here seek Board approval, pursuant to N.J.S.A. 48:2-14, of consent ordinances and resolutions by twenty-three (23) local governments. Verizon asserts that these local government consents are necessary for the public convenience and interest in order to provide safe, adequate and proper service. (3) The statute requires that Board approval be based on a finding that the public convenience and interest are served. N.J.S.A. 48:2-14. It further empowers the Board with the authority to impose conditions as to construction, equipment, maintenance, service, and operation which may be reasonably required by the public interest. Id.


Invariably, however, the consents contain only general provisions in "cookie cutter" style that require restoration of the right-of-way, minimization of encumbrances of the right-of-way, indemnity of the local entity, relocation of facilities based on local needs, reasonable use of poles and conduits by others, facilities maintenance, and compliance with applicable laws. The consents are also silent on whether these same provisions will be made available to forthcoming competitive carriers. There is current national discussion that focuses on how local governments can best manage their right-of-way when dealing with telecommunications carriers. Ordinances are now drafted to include the local public policy and local regulation on the use of the rights-of-way in greater detail, including fees commensurate with such use. (4) This evolution is not evident from the Ordinances and Resolutions submitted to support Verizon's petitions.

 

In New Jersey, no local government may impose fees, or other assessments in the nature of a local franchise right-of-way fee or gross receipts tax against any energy or telecommunications company. N.J.S.A. 54:30A-124, et seq. (Effective 1/1/98). However. while there is no bar to reasonable fees for actual services provided by any local government, the New Jersey statute would appear to be in conflict with Section 253(c) of the federal Act which expressly grants local governments the right to charge fees for a telecommunications carriers' use of public rights-of-way. 47 U.S.C. § 253(c). Whereas New Jersey law preserves the municipal right to tax the real or personal property of telecommunication companies, the Ordinances and Resolutions attached to support Verizon's petition do not provide for any reasonable fees for actual services provided by the municipality, nor do they identify any fees for the franchise or right-of-way use, nor do the petitions indicate the real estate or property taxes assessed or paid to the 23 respective local governments. While there is undoubted public convenience in being provided telecommunications services, whether the public interest is being served effectively pursuant to the ordinances and consents filed to support Verizon's petitions is not evident.


In reviewing the petitions, the Board should also consider additional provisions pertaining to construction, equipment, maintenance, service or operations as the public convenience and interests may require. For example, the Board could require that Verizon should advertise any proposed opening of rights-of-way to permit others carriers as well as other utilities to simultaneously deploy their outside plant and thereby minimize the future obstruction and consequent scarring of the right-of-way which may be caused by subsequent users. Moreover, while the provisions in these consents may be sufficient as between Verizon and the relevant local entities today, the same provisions might not be sufficient as between a CLEC and these local entities in the future. This is particularly true with regard to the consents (17) which have no stipulated duration; a few others are limited to either 50 years (Somerset County), or 20 years (Bay Head), or to 15 years (Washington), or to 10 years (Wall, Lincoln Park, Kingwood). (5) The Board has stated its intent to encourage CLECs to deploy their own facilities and compete in the telecommunications marketplace. In order that CLEC be able to compete on equal footing with incumbent carriers, the Board must ensure that their access to rights-of-way be equal to that enjoyed by Verizon.


In conclusion, the Ratepayer Advocate, therefore, submits that the proper forum for examination of issues related to the equal treatment of all local telecommunications carriers relative to right-of-way management before the Board is in a generic proceeding. This would permit the identification of issues as well as allow for ideas, views and recommendations from a broad cross-section of the telecommunications industry, other utilities, local governments inclusive of representative organizations such as the New Jersey League of Municipalities, the State legislature and the public.

The Ratepayer Advocate, therefore, recommends that the Board invoke its statutory authority to open a generic proceeding to review issues related to municipal consents and right-of-way management in a fully competitive environment. This proceeding should perhaps also address right-of-way management issues concerning utilities other than telecommunications as the recent convergence of utility services has blurred historical distinctions while promoting competitive entry to each other's markets. The Ratepayer Advocate invites such a proceeding, and would present a variety of approaches being implemented and considered across the country in response to the unique opportunities and requirements of a fully competitive telecommunications market.


An additional copy of this filing is enclosed. Kindly date stamp the additional copy and return it to our messenger.


  Very truly yours,

BLOSSOM A. PERETZ, ESQ.
RATEPAYER ADVOCATE OF NEW JERSEY

By:__________________________
Jose Rivera-Benitez, Esq.
Assistant Deputy Ratepayer Advocate

JRB:pc


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Footnotes

1. A statutory hearing pursuant to N.J.S.A. 48:2-14 is scheduled for January 25, 2001. In its notice of petition and hearing Verizon indicates that attendance by the affected local governments is not required. Verizon's statement focuses on the level of inquiry engaged in such a hearing.

2. Similar petitions filed by Verizon in Docket Nos. TE99040272 through TE99040304 remain under Board review. The Board may wish to join those matters with the instant petitions and address all issues in one proceeding.

3. The Petition, at page 3, asserts that the ordinances provide for the placement of the company's equipment above and below ground at reasonable locations within the public streets and ways. It asserts that the ordinances further require Verizon to 1) restore surfaces affected by installation or maintenance of facilities to as good a condition as existed before the work, 2) minimize encumbrances of the public way, 3) indemnify the local government fro liability and injury it causes, 4) relocate its facilities to accommodate local government needs,

5) provide for reasonable use of poles and conduits by others, and , 6) comply with all applicable laws.

4. A wealth of information on ordinances that govern local right-of-way management is available from the National Association of Telecommunications Officers and Advisors ("NATOA").

5. In this regard, N.J.S.A. 48:3-15 provides that such consents cannot exceed 50 years.