The Concrete Barrier at the End of the Information Superhighway: Why Lack of Local Rights-of-Way Access Is Killing Competitive Local Exchange Carriers

The Telecommunications Act of 1996 contained the promise of a deregulated national telecommunications market with unfettered competition in both the local and long-distance telecommunications markets. Unfortunately, five years after the Act was signed, competition in local telephony is still not a reality in many areas. While some of the blame may be placed on failed business models and the withdrawal of venture capital from the market, a series of regulatory failures have also served to create an inhospitable environment for competitive local exchange carriers. One of the areas where this failure has been most evident is in governmental failure to adequately address municipal rights-of-way access. This Article analyzes this failure, and presents a number of legislative and regulatory suggestions that could lead to a more coherent national scheme of regulation governing public rights-of-way access for telecommunications carriers. The first section of this Article provides an overview of the two general business models that developed for CLECs in the wake of the 1996 Act, and addresses the general failure of the resale carrier model. The second section provides an overview of Section 253 of the 1996 Act, and the various municipal and judicial interpretations that have created a patchwork of local regulation. The third section provides a series of legislative and administrative proposals that would serve to create a more unified, pro-competitive scheme of rights-of-way regulation throughout the United States