On March 16, 2010, after a 13-month study, the Federal Communications Commission released to the public and Congress “Connecting America: The National Broadband Plan,” containing its policy recommendations for achieving national goals identified by Congress in 2009 legislation, including ensuring that every American has “access to broadband capability.”
Securing access to infrastructure, including utility poles, conduits and public rights-of-way is recognized by the FCC as a difficult and time-consuming process, which the Plan hopes to reform by adopting new regulations and proposing new legislation to Congress.
Proposed Reform in Access to Poles, Ducts and Rights-of-Way
Foremost among the recommendations regarding Infrastructure is a proposal to establish low pole attachment rates that are as close to uniform as possible for cable television and telecommunications providers, consistent with 47 U.S.C. § 224. That statute currently imposes different criteria for calculating maximum pole attachment rates for cable TV and telecom providers, which the Plan seems to acknowledge would preclude achieving complete uniformity by regulation. Therefore, the Plan also suggests that Congress should consider legislation harmonizing the government’s access policies with respect to all poles, ducts, conduits and rights-of-way. The Plan also recommends reform of “make-ready” practices and the FCC’s process for resolving disputes. The following are key details of the Plan:
Access to Public Rights-of-Way
The Plan recognizes that local, state, Tribal and federal governments control access to essential rights-of-way and facilities, so a comprehensive broadband policy must involve coordination among all levels of government. Noting the wide diversity among state and local policies regarding access and payment for use of public rights-of-way, the Plan proposes a joint task force of state, local and Tribal authorities, with a mandate to:
The Plan proposes that the task force be directed to make its recommendations within six months of its creation.
Maximizing Impact of Federal Resources
The Plan observes that the federal government could play an important role in lowering the costs of infrastructure deployment through its own real estate leasing and grant practices. One key recommendation is that the U.S. Department of Transportation make federal financing of highways and bridges contingent on states and localities allowing joint deployment of conduits by qualified parties. The Plan also recommends that Congress consider enacting new legislation that it calls “dig once.” The benefit of both recommendations would be to encourage joint trenching and similar practices that reduce construction costs. Although the Plan assumes that the DOT already possesses the authority to implement such requirements in the highway and bridge projects it funds, the “dig once” legislation would extend these requirements to other projects receiving federal funds, such as sewers, power transmission facilities, and the like.
The Plan recommends the development of “master contracts” for placement of wireless towers on federal government property, reducing real estate costs and streamlining the acquisition processes for wireless broadband network providers. Another recommendation would authorize federal agencies to set fees for access to federal rights-of-way on a management and cost recovery basis. The Plan asserts that these steps could lead to a decline in the cost of access to government property, and a greatly increased number of companies utilizing that resource.
This is one of a series of reports by Bingham’s Telecom, Media, and Technology practice group focusing on specific aspects of the FCC’s National Broadband Plan. If you would like to receive our reports on other topics, or to consult with us about how the Plan and its implementing proceedings may affect your business, please contact:
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This article was originally published by Bingham McCutchen LLP.