BellSouth Telecomms. Inc. v. Cobb County

Permit fees for telecommunications companies under Cobb County Code § 106-3 are directly related to recovering actual costs incurred by the county in its permitting process.

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Cobb County Code § 106-3 imposes a one-time permit fee on telecommunications companies, including BellSouth Telecommunications, Inc., who apply to use Cobb County’s public rights-of-way. BellSouth brought this action to challenge Cobb County’s authority to enforce this ordinance and to declare the ordinance unconstitutional. The trial court granted summary judgment to Cobb County, and BellSouth appeals. Because Cobb County has the implied authority to charge the permit fee, and because the ordinance is not unconstitutional, we affirm. OCGA § 32-4-42 6 gives Cobb County the authority to “grant permits and establish reasonable regulations for the installation, construction, maintenance, renewal, removal, and relocation of pipes, mains, conduits, cables, wires. . .” on its public roads.1 It also requires the county to ensure “that the normal operation of the utility does not interfere with the use of the county road system.” OCGA § 32-4-42 10 further provides that the county may “perform all other acts which are necessary, proper, or incidental to the efficient operation and development of the county road system; and this title shall be liberally construed to that end.” The trial court held that OCGA § 32-4-42 gives Cobb County the “necessarily implied authority” to charge telecommunications companies a permit fee, and therefore granted Cobb County’s motion for summary judgment.

1. It is well settled that a local government’s authority to charge fees reasonably related to regulation is implied under its police power.2 Conversely, the power to impose a tax for revenue-producing purposes must be conferred by statute.3 OCGA § 32-4-42 gives Cobb County the express statutory authority to regulate a telecommunications company’s installation of lines on the county’s rights-of-way. Therefore, Cobb County has the authority to charge BellSouth a permit fee if it is an administrative cost recoupment fee, reasonably related to this regulation, as opposed to a tax intended to produce revenue for the county.

BellSouth Telecomms. Inc. v. Cobb County

Permit fees for telecommunications companies under Cobb County Code § 106-3 are directly related to recovering actual costs incurred by the county in its permitting process.

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