The Supreme Court has established definitive tests to determine whether a regulation amounts to a ."taking" under the Fifth Amendment. Regulatory agencies, fearful that they will have to compensate property owners for any interest courts deem to have been "taken," structure regulations to avoid such a finding. The author examines the "per se" and "regulatory" takings jurisprudence applicable to the New York collocation regime. The author then examines each of the New York Public Service Commission orders that create its collocation policy to determine whether New York Telephone Co.'s property was "taken" under the New York Public Service Law, thus rendering the orders ultra vires. The author finds that the New York Public Service Commission was able to circumvent the "takings" and "ultra vires" jurisprudence by allowing New York Telephone to choose between physical and virtual collocation. The author concludes that the New York Public Service Commission's orders have national implications for takings jurisprudence, illustrating a method by which regulatory agencies can impose burdensome restrictions while avoiding the just compensation requirement of the Fifth Amendment.
Leonard M. Baynes,
Swerving to Avoid the Takings and Ultra Vires Potholes on the Information Superhighway: Is the New York Collocations and Telecommunications Policy a Taking under the New York Public Service Law,
18 UC Law SF Comm. & Ent. L.J. 51
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol18/iss1/2