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YOUNGSTOWN -- Mahoning County will hire a Washington, D.C. attorney to represent itself and Stark County in a federal case filed by a broadband company.
At Thursday's meeting, Mahoning County Commissioners approved a resolution authorizing the appointment of outside counsel, at the request of the Mahoning County Prosecutor's Office.
The petition, filed June 18, filed with the Federal Communications Commission by fiber-optic internet service provider Lumos, requests a preemption and declaratory ruling against Mahoning County and Stark County. The company objects to professional surveys, right-of-way fees and inspection charges in Stark and the same surveys in Mahoning.
"In particular, the main issue with Mahoning County is it requires a survey before doing work in public right of way in order to ensure safety and protect infrastructure," said Kathi Welsh, chief of the civil division of the Mahoning County Prosecutor's Office.
Welsh said if Lumos were successful in securing the judgment, it would affect how Mahoning County is able to conduct business. She said there are very few attorneys in Ohio with the expertise and experience to handle a case like this one, so the counties have settled on a lawyer in Washington. Welsh said Mahoning County will foot the bill and Stark will reimburse for 50% of the legal costs.
"This happened very quickly, and so we needed to investigate who to hire for outside counsel," she said.
Gerard Lavery Lederer is an attorney with the Best, Best & Krieger law firm. His resume, provided by Welsh, states that he is a nationally renowned telecommunications, cable, and small cell litigator, who previously worked at Miller & Van Eaton -- a nationally regarded firm specializing in local government right-of-way law.
In the petition, Lumos alleges that under Section 253 of the Federal Communications Act, Mahoning and Stark are unlawfully inhibiting the company's ability to install fiber-optic lines and provide internet to thousands of customers in both counties, and the company has had to abandon its efforts and investments because of "draconian" rules.
"Congress enacted Section 253 to prevent state and local governments from using local permitting authority to erect barriers to entry that protect incumbents and deny consumers the benefits of telecommunications competition. Section 253(a) prohibits state and local legal requirements that 'prohibit or have the effect of prohibiting' any entity from providing telecommunications service," the company wrote.
The petition argues as well that the fees, charges, and costs of surveying are too expensive and time-consuming.
"Compliance with the challenged requirements would have increased Lumos's total project costs by approximately 50% in Stark County rights-of-way, representing a staggering 23% of Lumos's expected project revenues in the County over the next five years," the petition states.
The petition states that Stark imposes three requirements:
• A professional surveyor must approve a survey of the proposed construction area and Lumos must submit plans bearing a professional surveyor stamp.
• Lumos must pay a fee of one dollar for every foot of fiber deployed within the right-of-way.
• A County engineer must conduct regular inspections at Lumos's expense (between $55 and $75 per hour, depending on which county official was inspecting the site).
Mahoning County, per the petition, "requires that all plans be prepared and certified by an Ohio-licensed Professional Engineer and supported by base mapping certified by a Professional Surveyor, with detailed, field-verified documentation of all utilities and right-of-way conditions."
The company argues that the financial burden means it cannot provide service.
"Unable to shoulder the financial burdens for access to the County rights-of-way, Lumos is unable to build in the other municipalities and townships in the County, which prevents it from serving any households at all in the County, not just those along the County rights-of-way. In other words, 100% of Stark County residents have been denied access to service from a competitive provider, and Lumos has forgone 100 percent of its projected revenues in the County due to its inability to comply with Stark County's onerous and unlawful right-of-way requirements."
Lumos also argues that a shortage of professional surveyors adds an unnecessary barrier that would have added years to the projects, making Mahoning and Stark's survey requirements onerous.
"Local governments may coordinate schedules and keep track of the many systems using public rights-of-way in their management of public assets. But they may not force a provider to undertake sweeping professional survey work that effectively transfers the County's own recordkeeping and boundary-identification obligations to the provider as a condition of deployment," the petition states. Lumos argues that Stark also failed to publicly disclose them.
A TROUBLED HISTORY
Local officials say public right-of-way restrictions are not meant to burden utility companies but to protect residents and other utilities.
Austintown Township Trustee Mark D'Apolito said his community has experienced several problems with fiber-optic cable installers.
"From a local government perspective, there's certainly an issue with regulation of utilities in rights-of-way, in terms of their construction, means and methods," he said. "I'm not sure where [the FCC] will come out, as to whether the permitting process is proper, but it's a safety issue and a cause for concern for many residents."
D'Apolito said last summer a fiber-optic company left fiber reels, open excavations and heavy tools in front of businesses and homes.
In another instance, workers ruptured a water line with a drilling bit on Raccoon Road, causing flooding and an inch of sludge buildup on Paisley Avenue.
"It took a lot to get the contractor to clean that up, because they're not used to finishing their jobs," D'Apolito said. "They view it as outside their scope from their employer."
In another instance, A crew drilled through Austintown Township Park without permission and hit a gas line servicing Stacey Pavilion.
"That guy said he might as well run the rest of the bore while the gas was off," D'Apolito said. "I wouldn't let him turn the drill back on."
D'Apolito noted that many of the companies hire general contractors to do the work and the township often has no idea what company is operating in the right of way.
He said that in township developments, usually created now as subdivisions, the road is dedicated 24 feet from the center line in both directions. Unless the county engineer deems the road part of the highway network, it falls to the public interest.
As for authority and accountability, D'Apolito points to a prominent project he worked on. When Phelps Street in downtown Youngstown was being renovated and beautified they needed to access a section of turn-of-the-century brick sewer. Above it was a bank of communications wires, and inches from that was a gas line. The only way to access the sewer was for the utilities to be moved. It was determined that would be done at the utility companies' cost.
"The general rule is that, as a public entity, since they hold title, the utilities had to move at their own expense. And after providing them notice, the lines were just cut and removed and they had to deal with it," D'Apolito said.
He noted that many fiber companies never file with the Ohio Utilities Protection Service, and so communities cannot determine where lines are.
Perhaps the most notorious instance, recently, of a fiber company causing public damage is linked with Lumos itself.
The company was boring underground on April 30 when a gas line ruptured and caused an internal explosion at a house on North State Street. The house was totaled, leaving its residents homeless.
Girard Fire Chief Jim Petruzzi said Lumos was installing fiber in the area, but emphasized investigators could not assign blame until they determined whether the boring was in the correct location and whether utility markings were accurate.
The Public Utilities Commission of Ohio, Enbridge Gas Ohio, Lumos, and the Ohio State Fire Marshal were collaborating on the investigation and PUCO still has not released its findings.
Girard halted further fiber-optic excavation. Safety-Service Director Glenn Holmes said Thursday that the city's suspension remains in place until officials can review PUCO's findings. Officials stated they will pay particular attention to how the excavation was performed and how the gas lines were identified and marked.
Mayor Mark Zuppo said he has been in contact with PUCO, which has largely completed its report, including findings from Enbridge. The report is awaiting final approval from the commission's legal department.
POSSIBLE SOLUTIONS
In Boardman, residents have shown up to more than one Board of Trustees meeting to complain about the very same problems D'Apolito outlined, as well as damage to driveways, yards, and streets.
Township Administrator Mark Ragozine said Boardman officials are aware of the issues, but their options for now are limited.
"Girard has much greater right-of-way control because they own the utility lines. We don't own those, so we have limited authority," he said. "Outside of requiring them to take out a permit, our hands are sort of tied."
That does not mean they aren't seeking better options. Boardman Township submitted letters to state Rep. Tex Fischer, R-Canfield, and state Sen. Al Cutrona, R-Canfield, asking the legislators to pursue new laws to provide townships with the authority to impose limited emergency stop-work orders, require non-destructive excavation methods in tolerance zones, strengthen the oversight of OUPS, establish uniform statewide excavation safety standards and increase contractor accountability for repeated utility line strikes on unsafe practices.
Ragozine emphasized that Boardman supports the expansion of fiber-optic broadband infrastructure, and recognizes better internet access as an asset to the community.
"We just need to figure out a way this construction can take place without causing so many issues," he said. "It's been a long time since the installation of wholesale water and sewer lines and then cable lines. I'm not sure we were prepared for fiber-optic from a local government oversight perspective. We're learning to work with them better but tightening some controls would be better for residents and communities and encourage greater peace of mind."