DISCLAIMER: This alert comes from the American Land Rights Association. FacilityBlog does not endorse any action suggested here; it is merely serving to make facility professionals aware of legislation that could–or could not–have an impact on how buildings are accessed. Here is the post:
HR 5252 is the new communications bill. It has lots of good things in it but would give virtual free reign to telecommunications companies to take rights-of-ways from you. That cannot be allowed to happen.
Provisions of H.R. 5252 as Reported by the Commerce Committee that Directly Affect Private Property Rights:
Section 101 of H.R. 5252 establishes a new section 630(f)(“Rights of Way”) that provides that “any franchise under this section . . . shall be construed to authorize the construction of a cable system over public rights of way, and through easements, which are within the area to be served by the cable system.”
This provision establishes a Federal presumption that any national franchise established by the legislation should be interpreted by a district court to authorize the construction of the cable system on public and private property.
In effect, if a private property owner were to challenge the legality of the taking necessary to build out the cable system, the question would not be whether the property was taken in a manner consistent with basic standards of fairness and due process, but whether the cable company complied with the terms of the franchise obligations contained in the legislation.
Determinations as to whether construction of a cable system (or any other type of construction) should be made on a case by case basis. It is simply unacceptable for Congress to predetermine that construction is authorized over “public rights of way, and through easements,” merely because an entity complies with other provisions unrelated to property rights.
While constitutional protections would not be entirely displaced, H.R. 5252 establishes a congressional presumption (and a directive to courts) that “any franchise under this section . . . shall be construed to authorize the construction of a cable system over public rights of way, and through easements, which are within the area to be served by the cable system.” This clearly affects the rights of private property owners.
In addition, new section 630(f)(1)(c) requires that owners of private property be provided just compensation for “any damages caused by the installation, construction, operation, or removal of such facilities by a cable operator.”
However, the legislation provides no judicial recourse for inadequate compensation for seized or damaged property, and both of these provisions establish Federal principles that displace State and local zoning and property-related statutes.
The Supreme Court has held that “. . . a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.”
The Judiciary Committee has had extensive experience dealing with issues pertaining to property rights and land management issues, including consideration of H.R. 4128, the “Private Property Rights Protection Act of 2005,” which would reverse the Kelo court’s assault on the private property rights of all Americans.
In addition, HR 5252 expressly provides that the Federal government grant national franchisees the authorization to construct and operate cable systems in local rights-of-way, thereby restricting the ability of State and local governments to decide for themselves the entities granted access to their public rights-of-way.