Memorandum

City of Lawrence

City Manager’s Office

TO:	David L. Corliss, City Manager
FROM:	Diane Stoddard, Assistant City Manager Toni Wheeler, Director of the Legal Department Jonathan Douglass, Assistant to the City Manager/City Clerk Scott McCullough, Director of Planning and Development Services
CC:	Cynthia Wagner, Assistant City Manager
Date:	November 18, 2011
RE:	ATT Video Ready Access Device (VRAD) Box Installations

Background:

Shane Lopez, a property owner at the northeast corner of 8^th & Mississippi, has been visiting with staff for several months concerning the installation of an ATT Video Ready Access Device (VRAD) box in the right-of-way adjacent to his property near the alley. Photos of the installation are attached. Mr. Lopez has expressed a number of concerns regarding the size and aesthetics of the boxes, particularly given the historic district, safety, and landscaping. Upon the initial investigation into Mr. Lopez’s concerns, staff realized that the particular installation at issue should have gone through historic review due to its location within a historic district. The historic review should have been triggered through the application for an electrical permit and a right-of-way permit for the box. After the fact, staff did review the installation in accordance to the same criteria staff would have used prior to the installation. The City came to the conclusion that the landscaping installations surrounding the box that were agreed to between ATT and Mr. Lopez would have been the same mitigation results that the historic review would have required. The City has a limited ability to influence utility installations within the right-of-way, an issue that will be discussed later in this memorandum in more detail.

ATT has been installing VRAD boxes in Lawrence in order to enable customer access to various telecommunications products as the boxes contain telecommunication equipment that provides services such as voice, high-speed internet access and digital television services over telephone lines. Each VRAD box is placed within a neighborhood area and enables a maximum number of service connections for a geographic area. In the case of the box installed adjacent to Mr. Lopez’s property, the box enables up to 384 customer connections. To date, there have been 63 boxes installed in Lawrence. According to Mike Scott, AT&T Kansas Legislative and External Affairs, these installations have been without complaint about installation, with the exception of the installation adjacent to Mr. Lopez. Mr. Scott provided the City with an e-mail and some detailed information about the boxes being installed in Lawrence. It should be noted that staff has received and resolved one other complaint regarding one of the other Lawrence installations that related to its placement near a pedestrian crossing and this complaint was mitigated with landscaping. However, the installation adjacent to Mr. Lopez’s property was one of the first within a historic district.

Subsequent to the installation adjacent to Mr. Lopez’s property, the City and ATT held a meeting to discuss future installation plans and advise ATT about the historic districts of the City in an effort to work cooperatively on future installations, particularly those within historic areas.

Discussion:

Numerous cities across the nation have been discussing the VRAD box installations. Some cities in other states have imposed restrictions on these installations. However, due to state franchise law, cities in Kansas have a limited ability to influence structures within the rights-of-way, unless they are creating a safety concern. Cities can manage the rights-of-way. The City of Lawrence has general right-of-way use provisions, but the ATT franchise agreement does not contain specific right-of-way use provisions. The City’s franchise agreement with ATT is now their statewide franchise agreement, which states that the company can be within the right-of-way, but have to follow the City’s rules on rights-of-way. The City’s general right-of-way requirements then apply to ATT. These rules require that ATT must provide the City notice of their work in the right-of-way in the following manner:

Obtain a Temporary Use of Public Right-of-Way Permit before installing or constructing any facility or equipment in the right-of-way;
Obtain a Temporary Use of Public Right-of-Way Permit before conducting any repairs to facilities or equipment in the right-of-way which would reduce traffic flow to less than two lanes of moving traffic;
Comply with all other applicable sections of the city code, including requirements to obtain other permits, licenses, and approvals.

Additionally, ATT must work with the City regarding placement of items within the right-of-way as it affects public improvements or street trees.

Legal Issues:

A franchisee’s use of the right-of-way is subordinate to the City’s use of the right-of-way for public purposes. The City Code, Chapter 16, Article 9A, provides that AT&T, as a franchisee, is subject to rules, regulations, policies, ordinances and resolutions, including those relating to permits, sidewalk and pavement cuts, utility location, construction coordination, beautification, tree care and other right-of-way use requirements, promulgated by the City in the reasonable exercise of the City’s police power. Article 9A further requires the company to coordinate placement of its facilities in a manner which minimizes adverse impact on public improvements. Damage to public improvements caused by the franchisee must be repaired or replaced by the franchisee, at its cost, within a reasonable time. Under Article 9A, franchisees must submit plans to the City in advance of constructing or relocating facilities in the right-of-way, and must also provide accurate information regarding the location of its facilities in the right-of-way. A franchisee must relocate it facilities, as reasonably necessary, for a public project. These provisions, and the other sections, in Article 9A ensure the right-of-way use by franchisees is compatible with the public uses.

K.S.A. 12-2001 places some limitations on a city’s ability to impose regulations on providers of telecommunications local exchange service. Under the state law, a city may not regulate “the provisioning or quality of services, facilities, equipment, or goods in-kind for use by the city, political subdivision or any other telecommunications local exchange service provider or public utility.” K.S.A. 12-2001(o)(5) (emphasis added). Legal staff interprets this law to preclude the City from regulating the size, appearance or other quality of facilities and equipment of AT&T VRAD boxes.

Summary:

It appears that the City’s ability to impact the size or citing of the VRAD boxes by AT&T is limited by the statewide franchise in Kansas. Other cities in other states have had success in finding more ability to regulate these installations. The City can and should be involved in issuing a permit for ATT to be in the right-of-way, but can only influence the location of equipment if an installation has an impact on public improvements, causes a safety concern by limiting sight distances or other factors, or if there is mitigation such as landscaping to soften the impact of an installation that can be required in historic districts. The involvement of the City would also include the review by the Historic Resources Administrator for those installations within historic districts.