Daily Development for Monday, April 3, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

CONSTITUTIONAL LAW; TAKINGS; PHYSICAL OCCUPANCY: Temporary physical invasion will not constitute a per se "taking" of property under the Oregon Constitution or the Fifth and Fourteenth Amendments to the United States Constitution so long as landowner has some control over the duration and circumstances of the occupation.

GTE Northwest, Inc. v. Public Utility Commission of Oregon, 883 P.2d 255 (Or. App. 1994).

The case deals with the practice of "collocation" in the telecommunications industry. This occurs when a party with the right to provide local basic telephone services provides physical access within its transmission facility to other providors of "enhanced" services. In many cases, the provider of enhanced services is competing the local service provider in the enhanced services market. Nevertheless, in regulating competition in the industry, public utilities regulators will, as Oregon has here, order forced collocation. Despite the fact that in this case the local provider was forced by provide physical access to a competitor, the court found no taking. Occupation as a result of a required offer of collocation was not permanent because plaintiff had some control over the extent and duration of the occupation, and plaintiff's ability to use its own property was not normally unfettered as a result of extensive regulation of plaintiff's use of its property by the state public utilities commission.

Comment: Both sides focussed extensively on the U.S. Supreme Court's Loretto decision, perhaps in part because forced accommodation of the cable T.V. lines found to be a taking in that case also had something to do with the "telecommunications revolution." A more appropriate precedent, however, may be the more recent Lucas decision, in which the court, in dicta indicates that it would not be a taking for a state to order a landowner to provide a view easement for beach observation. Many commentators feel that this dicta in Lucas severely undermines the intent of Loretto, and certainly seems more consistent with the outcome in this case.

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