Texas Says 2017, 2019 ROW Laws Weren't Gifts

Recent Texas laws preempting local governments in the right of way (ROW) are permissible under the state constitution, the state argued this week at the Texas 3rd Court of Appeals. Cities disagreed earlier this month that a lower court could uphold the rental rate caps in the state’s 2017 small-cells law without at least considering material facts. Cities are challenging a 2017 Texas law capping cities’ ROW rental fees at $250 per small cell. As the statute was taking effect, McAllen and other Texas cities challenged the state’s small-cells law at the Texas District Court of Travis County, arguing the compensation level set by the legislature was an "unlawful gift" under the Texas Constitution (see 1708300020). Two years later, with still no decision in that case, cities amended their lawsuit to additionally challenge a 2019 law stopping municipalities from charging telecom providers twice when they use the right of way for phone and video (see 1906260050). Ruling July 26 this year on summary judgment, the state court said the 2019 law facially violated the state constitution, but the 2017 small-cells law was constitutional. The appeals court gave notice Aug. 24 of the cities’ appeal (case 03-22-00524-CV). The appeals court should affirm the lower court’s ruling on the 2017 law and reverse on the 2019 law, Texas said in a brief this week. “This appeal concerns novel interpretations of the ‘no gifts’ provisions of the Texas Constitution that may invalidate several other unrelated statutes,” said Texas, seeking oral argument. The 2017 and 2019 laws were meant to spur wireless telecom deployment, making it “cheaper (but not free!) for telecom companies to install wireless access points and fiber-optic cables in the ROW,” Texas said.