By P.J. D’Annunzio
Fees charged by a Pennsylvania township for Armstrong Telecommunications’ installation of fiber-optic cables within public rights-of-way were not local “regulations” of public utilities barred by state law, a state appellate court ruled last Thursday.
In reversing an order by the Pennsylvania Public Utility Commission, the Commonwealth Court said the one-time site inspection fees charged by Waterford Township in Erie County were not ongoing “maintenance fees” that the Supreme Court of Pennsylvania had previously determined went against state law reserving utility regulation exclusively to the commission.
“Clearly, they are not maintenance fees, nor is there any reason to suspect their purpose is to facilitate inspection of utility facilities for code compliance or enforcement of code regulations,” Judge Lori A. Dumas wrote in the court’s opinion.
“Simply, if a public utility applies for access to a particular ROW, the local government responsible for maintaining the ROW may confirm by inspection that the applicant has acted in conformity with its application,” Judge Dumas said. “The township’s inspection and location fees enable this confirmation. In our view, they are permissible.”
The court’s analysis focused on the state Supreme Court’s 2019 precedent in PPL Electric Utilities v. City of Lancaster . According to Judge Dumas, in reviewing Armstrong’s bid to overturn the fees, the commission held that fees were preempted under the Lancaster case.
But Judge Dumas said the commission misinterpreted the case, reasoning that the decision notes reasonable permit fees are allowed under the Pennsylvania Business Corporation Law of 1988 and the Second Class Township Code.
According to Judge Dumas, the Lancaster case involved the city’s attempt to superimpose a local ordinance involving the collection of fees over state utility regulations. An electric company challenged the ordinance on the grounds that it was preempted by the Public Utility Code.
The Supreme Court held that the city overstepped its authority in imposing regulations on utilities, noting “‘one cannot tenably maintain that a municipal maintenance fee can be understood as anything but [utility regulation].'”
Judge Dumas said that case was different from the one at hand.
“The commission readily concedes that the BCL and the SCTC authorize the township to impose permit fees for access to its ROWs,” Judge Dumas said. “Moreover, the commission suggests that these provisions do not conflict with the code.”
“Notably, the Commission has not identified any ‘conditions, restrictions[,] and regulations’ proposed by the township that would exceed the limitations we recognize or that would constitute utility regulation,” she continued.
Armstrong applied for permits to install fiber-optic cable in the township in October 2019. The township charged US$4,690 in nonrefundable fees and US$7,500 in refundable bond fees. The next month, Armstrong petitioned the commission for its declaratory order. After the commission’s order was issued, the township appealed to the Commonwealth Court.
Arthur Martinucci, who represents the township, said “We’re happy with the outcome. We thought the fees in this instance were clearly distinguishable from the ongoing maintenance fees that the Pennsylvania Supreme Court deemed to be preempted in the City of Lancaster case.”
A spokesman for the commission said it was reviewing the decision.
The commission is represented in-house by Renardo Hicks.
Waterford Township is represented by Arthur Martinucci of Quinn Buseck Leemhuis Toohey & Kroto Inc.
The case is Waterford Township v. Pennsylvania Public Utility Commission, case number 306-CD-2021, in the Commonwealth Court of Pennsylvania.
–Editing by Adam LoBelia.
* Editor’s Note: This story has been updated to include comment from the commission.
