February 28, 2019 Feature

Editor’s Column

By William R. Drexel

This is my first issue serving as editor of Infrastructure, and I would be remiss if I failed to acknowledge the tremendous contributions of my predecessors Casey Wren and Chuck Patrizia. They laudably picked up the hallowed editorial pen of the late Judge Cudahy and served us well with their generous work in sourcing and insightfully editing articles for Infrastructure for the past several years. As reflected in Chuck’s contribution to this issue, our Section undoubtedly will continue to benefit from their experience, dedication, and friendship for a long time to come.

In this issue, we feature a 100-year anniversary article on maritime law and two articles focused on infrastructure investment initiatives. Chuck Patrizia navigates the 100-year journey in maritime law, tracing the remarkable stability in the governing principles of maritime law that fostered profound technological change impacting many of the industries in our Section. He insightfully notes how the combination of standard contracting for global, containerized shipping along with alternate forms of dispute resolution have led to a precipitous drop in civil maritime cases. That shift from the public civil courtroom to private arbitration hearing portends unknown consequences for the continued future development of a stable, predictable body of maritime law.

The other two articles in this issue focus on several ways recent government policy changes are incenting infrastructure investment. Ben Haas and Martha Pugh describe features of the recent Tax Cut and Jobs Act that impact infrastructure and regulated businesses and in several key respects encourage new investment. The centerpiece reduction of the tax rate from 35 percent to 21 percent was not the only aspect of the Act that encouraged businesses to reinvest in domestic opportunities for growth. Bonus depreciation rules and the creation of qualified opportunity zones are other features of tax reform aimed at increasing investment in infrastructure. At the same time, the tax reform act imposes limits on the deduction of interest and net operating losses. Finally, Ben and Martha note the IRS issued clarification about the timeframe in which construction must begin on energy property to be eligible for the renewable energy project investment tax credit.

The third article, by Andy Emerson, describes several initiatives by the FCC to streamline the deployment of wireline and wireless broadband technology, including the deployment of small cell infrastructure, which lies at the core of next generation 5G wireless services. In one order, the FCC adopted a “materially inhibit” standard to define when action by local governmental authorities creates an effective prohibition of services contrary to the 1996 Telecom Act; adopted standards for determining whether local fees constitute such an effective prohibition; and adopted criteria for determining whether aesthetic, undergrounding, and minimum spacing requirements constitute an effective prohibition. In a second order, the FCC revised its guidelines for determining whether local governments are processing permits for the construction of new facilities in a reasonable period of time; the revisions include limitations on the ability of local governments to create an effective prohibition on services by de facto moratoria and historic preservation and environmental regulations.

We hope you enjoy this issue. If you have suggested topics for future issues or would like to submit an article for consideration, please contact me at william.drexel@att.com.

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By William R. Drexel