1.0 Introduction and Background
This report explores the potential for the use of rural interstate highway corridor rights-of-way for the deployment of fiber optic cabling and/or wireless communication infrastructure, across one or multiple States. The goal of these deployments would be to benefit rural communities. This telecommunications infrastructure, as envisioned in Section 5507 of the Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for Users (SAFETEA-LU), would comprise one element of the Nation’s “telecommunications backbone” system, the “main arteries” of the Nation’s advanced telecommunications network.
SAFETEA-LUThe Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), the authorizing legislation for the Nation’s surface transportation program, included a provision under Section 5507 for a Rural Interstate Corridor Communications Study. Under this section, “The Secretary, in cooperation with the Secretary of Commerce, State departments of transportation, and other appropriate State, regional, and local officials, shall conduct a study on the feasibility of installing fiber optic cabling and wireless communication infrastructure along multistate interstate system route corridors for improved communications services to rural communities along such corridors.” The Department of Transportation was directed to identify the “impediments” to installing such an infrastructure and “to connecting such infrastructure to the rural communities along such corridors.” The Department was also directed to identify the potential benefits of such an infrastructure for economic development, deployment of intelligent transportation systems technologies and applications, homeland security precaution and response, and education and health systems in rural communities. This feasibility report also provides an analysis of legal and institutional issues, design considerations, and safety and operational issues associated with installation, as well as the degree to which the findings of such a study could be extended and applied to other rural interstate system route corridors in other States. |
Creation of such a communications infrastructure could potentially have immediate benefits to the transportation agencies that control the interstate highway rights-of-way (ROW) that would be utilized. Furthermore, the introduction of high-speed telecommunications (HST) can demonstrably improve economic prospects for businesses, individuals, and communities, while also providing a variety of collateral benefits for health care, education, and public safety. However, while construction of a backbone facility could ultimately support the provision of advanced telecommunications services to adjacent communities, the delivery of service to customers also is dependent on the availability of regional and local distribution networks as well as local Internet service providers that would connect the backbone infrastructure to the end user.
This Report to Congress presents the study’s preliminary findings. Subsequent to this report will be a Report to States. Table 1 presents the language of Section 5507 along with a cross reference to the location within this report or refers to the follow-on Report to States in responding to all issues raised in the legislation. This report provides the Secretary of Transportation’s current perspective on the feasibility of deploying high-speed telecommunications in the three study corridors. The Report to States will provide the more detailed preliminary backbone alignment and installation issues for potential high-speed telecommunications in the three identified corridors.
Table 1: Legislative Language of Section 5507
Section 5507. Rural Interstate Corridor Communications Study
| Section | Description | Report Location |
|---|---|---|
| (a) | Study - The Secretary, in cooperation with the Secretary of Commerce, State Departments of Transportation, and other appropriate State, regional, and local officials, shall conduct a study on the feasibility of installing fiber optic cabling and wireless communication infrastructure along multistate interstate system route corridors for improved communications services to rural communities along such corridors. | Not Applicable |
| (b) | Contents of Study - In conducting the study, the Secretary shall identify: | Not Applicable |
| (b) 1 | Impediments to installation of the infrastructure described in subsection (a) along multistate interstate system route corridors and to connecting such infrastructure to the rural communities along such corridors; | Section 4 |
| (b) 2 | The effective geographic range of such infrastructure; | Section 2 |
| (b) 3 | Potential opportunities for the private sector to fund, wholly or partially, the installation of such infrastructure; | Section 1, 4, and Report to States |
| (b) 4 | Potential benefits fiber optic cabling and wireless communication infrastructure may provide to rural communities along such corridors, including the effects of the installation of such infrastructure on economic development, deployment of intelligent transportation systems technologies and applications, homeland security precaution and response, and education and health systems in those communities; | Section 3 |
| (b) 5 | Rural broadband access points for such infrastructure; | Section 1, 4, and Report to States |
| (b) 6 | Areas of environmental conflict with such installation; | Report to States |
| (b) 7 | Real estate ownership issues relating to such installation; | Section 1 and 4 |
| (b) 8 | Preliminary design for placement of fiber optic cable and wireless towers; | Report to States |
| (b) 9 | Monetary value of the rights-of-way necessary for such installation; | Report to States |
| (b) 10 | Applicability and transferability of the benefits of such installation to other rural corridors; and | Section 3 and 4 |
| (b) 11 | Safety and other operational issues associated with the installation and maintenance of fiber optic cabling and wire infrastructure within interstate system rights-of-way and other publicly owned rights-of-way. | Section 4 |
1.a. Purpose of the Study
In 2005, Congress directed the Secretary of Transportation to investigate, in cooperation with the U.S. Department of Commerce, the potential for using interstate highway corridor ROW in mostly rural areas to expand the availability of HST in those areas. Section 5507 of the Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for Users (SAFETEA-LU) directs the Secretary of Transportation to report on the potential for using rights-of-way along interstate system routes to accommodate a fiber optic and/or wireless telecommunications infrastructure, which would provide “improved communications services to rural communities along such corridors.” In studying this concept in three designated corridors, the United States Department of Transportation (U.S. DOT) is to consider possible impediments to implementation, including ownership issues and environmental considerations; the configuration of the system, including a “preliminary design,” possible access points, the “geographic range” of the infrastructure, and potential safety and operational issues associated with installation and maintenance of the facilities; potential benefits to rural communities, including economic development impacts, education and health care benefits, easier deployment of intelligent transportation systems (ITS), and benefits for homeland security response and precaution; the possible role of the private sector in implementation; and the applicability and transferability of benefits to other rural corridors.
In support of this investigation, the Federal Highway Administration (FHWA), in cooperation with the National Telecommunications and Information Administration (NTIA), is working with State and local agencies to explore the potential for the installation of fiber optic and wireless facilities in three designated corridors passing through 10 States. These corridors are:
- Interstate Route 90 through South Dakota, southern Minnesota, northern Iowa, and central and western Wisconsin;
- Interstate Route 20 through northern Louisiana, Mississippi, and Alabama; and
- Interstate Route 91 through Vermont, New Hampshire, and Massachusetts.
This report presents the findings of the investigation and a discussion of the potential benefits and costs associated with the introduction of a high-speed telecommunications backbone facility in each corridor. The report is not a detailed policy, legal, engineering, or cost-benefit analysis. Instead, its intent is to provide a general assessment of the feasibility and desirability of HST deployment along interstate highway corridors, considering factors such as Federal and State policies and regulations, HST needs, demand characteristics, potential public benefits, technology and engineering considerations, and institutional models for deployment. This report is intended to be informational in nature and presents a snapshot of what is known as current in the market place. It does not commit the U.S. DOT, FHWA, the Department of Commerce, nor the participating States to implementing programs nor technologies.
The fundamental concept under examination is the use of the interstate highway rights-of-way to construct a high-capacity backbone system, which would carry large amounts of data over long distances. At the same time, a sufficient number of access points would be designed into the system both to serve the needs of the transportation agency operating and maintaining the highway right-of-way, and potentially to provide broadband service to rural communities adjacent to the right-of-way. The use of interstate highway rights-of-way not only offers a continuous, controlled environment for the construction of telecommunications infrastructure, it also provides a potential benefit to the States that control the rights-of-way to obtain communications capabilities to support existing or planned advanced transportation management technologies in these corridors.
This study is “technology neutral,” considering fiber optic, wireless, or conceivably a hybrid system that incorporates elements of each technology. The preferred technology in each corridor will be selected on the basis of both engineering considerations and market factors and may vary by corridor. Regardless of the mode recommended for the backbone system, other technologies could be selected to provide the connections from the backbone access points to the local providers and to the ultimate users of broadband service. Determining recommended methods of providing connections from the backbone to end users, however, is beyond the scope of this study.
In addition, the study also is “competitively neutral” in that States encourage fair and effective competition in the delivery of goods and services associated with high-speed telecommunications and private sector participation in the traditionally public sector project environment.
In the course of the investigation, the study team has defined and identified an appropriate study area for each corridor; collected information about current and forecast social, economic, and demographic patterns in the study areas; and investigated regional initiatives that could benefit from the increased availability of high-speed telecommunications. To determine the feasibility of deploying such telecommunications facilities, the study team worked closely with the States to examine the physical characteristics, existing facilities, and policies and regulations affecting each corridor. This analysis was undertaken to identify possible barriers to implementation, including physical, environmental, and institutional barriers. Based on the review of current conditions and emerging trends, the potential benefits of expanded high-speed telecommunications capacity were identified for each of the corridors. It is important to note that this study does not offer a detailed benefit-cost analysis. The limited availability of time and resources restricted the scope of this study to a qualitative assessment of potential benefits, and order-of-magnitude estimates of cost will be presented in the follow-on Report to States.
This Report to Congress presents the study’s preliminary findings. The findings are necessarily incomplete due to the time required to work individually with each State and with each corridor; this work is forthcoming in a Report to States. Nevertheless this report provides the Secretary of Transportation’s current perspective on the feasibility of deploying high-speed telecommunications in the three study corridors. Subsequent to publication of this report, the U.S. DOT will prepare a Report to States which provides more detailed information on the conceptual alignments in each corridor, as well as the results of an investigation into the legal and regulatory considerations involved in the ultimate deployment of such a telecommunications capability. The intent of the Report to the States is to provide enough information to those States not already engaged in deployment planning, to determine the benefits and risks of such a project, and to provide additional resources to those already involved in such projects. The Report to States will concurrently be sent to Congress.
Working with the States, preliminary alignments for deployment currently are under development. In some instances, the States already have begun their own explorations of the potential for deployment of wireless or wireline facilities in the corridors. In these instances, the study team is looking for ways to provide value to the current engineering efforts. In locations where little work has been done to identify options for HST deployment in the corridors, the study team will cooperatively develop concepts for deployment and preliminary documentation of a possible alignment of a communications backbone.
1.b. Common Terms
Common terms used throughout the document are defined below. These terms are common to the telecommunications industry, or are specific to this study:
- Advanced telecommunications – a term used by the Federal Communications Commission (FCC) to refer to “services and facilities with an upstream (customer-to-provider) and downstream (provider-to-customer) transmission speed of 200 kilobits per second (kbps) or greater.” Such facilities also are referred to as “broadband.” “High-speed” or “next-generation” refers to services with more than 200 kbps capability in at least one direction. The concept of “broadband” telecommunications continues to evolve as businesses and consumers gain access to services in the megabit per second (Mbps) range – that is, multiples of thousands of kbps.
- Backbone – in the context of telecommunications, a “backbone” facility is a high-capacity element of the communications network that carries large volumes of voice or data over long distances (city-to-city).
- Dark fiber – optical fiber cable assembly without a transmitter and receiver.
- Digital divide – the gap between those individuals having access to technology (hardware and software) and the skills and resources which allow for its effective use, and those who do not.
- Handhole/manhole – an intermediary point in a fiber optic cable assembly that allows for access by installation and maintenance technicians, usually in a manhole-type excavation along the pathway of the conduit installation. Transmission equipment is typically not present at these locations. Another term for handhole is vault.
- Interstate system – limited access routes that have been designated as part of the Dwight D. Eisenhower National System of Interstate and Defense Highways. These routes, authorized by the Federal-Aid Highway Act of 1956, now extend to 46,726 miles in 50 States and the District of Columbia, with over 14,000 interchanges.
- Last-mile – (also middle-mile) the link from the end user to the first physical location or building on the provider’s network; middle-mile is a bit more vague but can mean the link from the long-haul national backbone down into the community that contains the end user.
- Public-private partnership – is defined by FHWA as contractual agreement(s) formed between a public agency and private sector entity that allow for greater private sector participation in the delivery of public sector projects.(Adapted from https://www.fhwa.dot.gov/PPP/defined.htm#1(accessed August 30, 2007)). Expanding the private sector role allows for the public agencies to tap private sector technical, management, and financial resources in new ways to achieve certain public agency objectives such as greater cost and schedule certainty, supplementing in-house staff, innovative technology applications, specialized expertise or access to private capital. In some cases public-private partnerships are formed in which the telecommunications company would share their infrastructure with the States and bear most of the construction costs. In return, the State would allow a company to have the right to install their infrastructure on the ROW, sometimes exclusively, and be able to access it as needed. The compensation to the States can be in the form of cash, conduit, dark fiber, communications service, or a combination of the above. This is commonly referred to as a shared resource project.
- Rural telecommunications – telecommunications services and facilities outside metropolitan (urbanized) areas, particularly including remote, isolated areas but also encompassing smaller, non-urbanized communities.
- Wireless – any system of transmitting and receiving information without wires (Newton, Harry, “Newton’s Telecom Dictionary”, 19th edition, CMP Books, 2003, page 891.). Wireless communications includes microwave, cellular, directional radio, broadcast radio, satellite, and dedicated short-range communications (DSRC). Short- and intermediate-range transmission media include wireless local area networks (commonly referred to as Wi-Fi), wireless municipal or metropolitan area networks, and broadband-fixed networks (including technologies such as WiMAX).
- Wireline – the transfer of information over a distance with fixed telecommunications facilities, generally using copper wire (twisted pair, Ethernet, coaxial) or fiber optic cables.
1.c. The Broadband Revolution and Rural Access
Broadband telecommunications – the ability to provide large quantities of data over a distance almost instantaneously – is a transformative technology that has the potential to change the way we work, live, and play. Broadband enables “always on” access to the global Internet telecommunications infrastructure for all kinds of information exchange, including electronic mail, file sharing, voice telephony through “voice over Internet Protocol” (VoIP), and a host of new and emerging applications over the World Wide Web. Many of these applications have been around for years in one form or another, but the ready availability and high speeds that broadband affords make them more reliable, accessible, and user-friendly. The adoption of broadband has changed commerce, delivered productivity increases for industry, and revolutionized home entertainment. Rapid data exchange through secure, reliable networks is transforming government simplifying access to local government services, and supporting emergency response and public safety agencies.
Broadband adoption in industrialized nations has been characterized by rapid growth since its inception. In early 2004, a significant broadband milestone was reached: the 100 millionth broadband subscriber connected. From 100,000 subscribers globally in 1996 to 100 million in early 2004, broadband has moved beyond the early adopter stage and has entered the mainstream. It took approximately 3.5 years to reach the first 10 million broadband subscribers and about the same time to go from 10 million to 100 million. In sheer numbers, the United States leads the world in number of Internet users (205 million) and number of Wi-Fi hotspots (40,000, or one-third of all the hotspots in the world). Broadband service in the United States reached anywhere from 49 million to 58 million subscribers at the end of 2006 (Estimates vary depending on definitions of broadband and the estimating techniques used. The OECD reports 58.1 million subscribers, using download speeds of 256 kilobits per second as its metric; Kyle McSlarrow of the National Cable & Telecommunications Association cites a Kagan Research report estimating 49 million households with broadband access. Some of this uncertainty may relate to how many “subscribers” are residential or small business, as opposed to larger employers.).
While broadband adoption is increasing rapidly, not all parts of the country or population groups are benefiting equally from the broadband revolution. In particular, some critics of national telecommunications policy claim that as high as 90 percent of rural users are unserved by broadband providers (Rowley, Thomas D., “Where No Broadband has Gone Before,” Rural Policy Research Institute, August 19, 2005. URL: http://www.freepress.net/news/11114 (accessed August 30, 2007).). While the FCC reports that “more than 99 percent of the country’s population lives in the 99 percent of ZIP codes where a provider reports having at least one high-speed service subscriber,” (“High-Speed Services for Internet Access: Status as of June 30, 2006.” Industry Analysis and Technology Division, Wireline Competition Bureau, Federal Communication Commission (January 2007).) in many ZIP codes, the actual proportion of people with access to high-speed service is quite low. A recent GAO report found that in 2005, 28 percent of all U.S. households had broadband services, 30 percent had dial-up Internet access, and 41 percent had no Internet access services at all (Broadband Deployment Is Extensive throughout the United States, but It is Difficult to Assess the Extent of the Deployment Gaps in Rural Areas, U.S. Government Accountability Office, May 2006, GAO-06-426.). Of those households with no Internet access at all, 75 percent had no computer, which may explain the lack of adoption of broadband in these households. The GAO report also concluded that although broadband subscribership is lower in rural areas (17 percent) than in urban areas (29 percent), the difference is due to of a lack of availability of broadband services, and is not due to a lower disposition of rural households to purchase broadband services.
The United States lags behind many other industrialized nations in the adoption of broadband and related technologies. A 2002 report from the U.S. Department of Commerce noted that “the United States has the largest total number of Internet users, broadband users, businesses on-line, and e-commerce transactions” (both business-to-business and business-to-consumer), but that other nations were “gaining ground fast.” (“Understanding Broadband Demand: A Review of Critical Issues,” Office of Technology Policy, US DOC, September 23, 2002 URL: http://www.technology.gov/reports/TechPolicy/Broadband_020921.htm (last accessed August 30, 2007).) At the time, over 56 million American households had Internet access, (52 percent of households), while only about 10 percent of households (about 11.2 million) were wired for broadband. By comparison, South Korea had nearly 8.3 million Internet households (57 percent), of which 7.5 million were broadband households (almost 52 percent of total households). More recently, a report from the Organization for Economic Cooperation and Development (OECD) (OECD Broadband Statistics to December 2006. URL: www.oecd.org/sti/ict/broadband (last accessed August 30, 2007).) showed the United States with over 58 million broadband subscribers, but the United States ranked 15th out of 30 countries in broadband subscribers per 100 inhabitants. The OECD report notes that the United States is 20th out of 30 nations in the growth rate of broadband penetration over the past year.
The current definition of “broadband” may not adequately characterize the adoption of higher-speed services increasingly required for many Internet applications. The FCC has defined ‘broadband’ service as an Internet access service that is capable of transmitting at least 200 kbps in at least one direction (The Federal Communications Commission has recently initiated studies on two items involving broadband deployment in the United States. The first is a Notice of Inquiry into whether broadband services are being provided to all Americans in a timely and reasonable fashion. The second is a Notice of Proposed Rulemaking on methods of collecting information needed to set broadband policy in the future. Both were announced by the Commission on |
The low levels of broadband subscribership in rural areas compared to urban areas are in part due to low population densities, which can make construction of access to long-haul fiber routes cost prohibitive. A substantial national fiber backbone system already exists between major metropolitan areas due to prior private sector investments. The high incremental cost of adding access points along long-haul networks, however, makes it difficult for private entities subject to market forces to justify the costs of construction of local broadband access in low-density areas. The construction of long-haul fiber networks requires the regeneration of the fiber optic signal approximately every 40 miles. These regeneration points are typically located in one story, flat roofed, concrete buildings. The average cost of these regeneration points (including cost of the building, environmental systems, and electronics to regenerate the signal) is $250,000 to $500,000 depending on the cost of the rights-of-way and electronics utilized.
The placement of regeneration electronics at a point along the route is not sufficient in itself to provide access for local usage. The additional electronics cost to provide such bandwidth access may be in the range of $100,000 to $200,000. Furthermore, to provide market access to the bandwidth, fiber must be constructed from the long-haul network site into the market to be served, at a cost of $25,000 to $75,000 per mile. The means to then transport the high-capacity bandwidth to the end user within the rural market is likely to be of much higher cost per user than in large markets. It is therefore not surprising that market forces have not resulted in the widespread construction of access into smaller markets from these high-capacity long-haul networks, regardless of which rights-of-way are utilized (Some newer long-haul fiber optic transport technologies such as Reconfigurable Optical Add Drop Multiplexing technology (ROADM) and silicon based fiber optics transceivers are lowering the cost of transforming a regeneration site into a site at which the bandwidth can be locally accessed. These new technologies do not address the cost of establishing fiber connections from the Long Haul route to the local markets or the cost of transporting the bandwidth within the local markets.).
Some government entities at all levels have made efforts to close the “digital divide” that some see dividing urban and suburban America on the one hand, and rural America on the other. At the Federal level, one of the programs of the Universal Service Fund (USF) – known as the High-Cost Fund – has indirectly facilitated broadband service in more rural areas. Similarly, the Department of Agriculture’s Rural Development Telecommunications Program provides grants and loans to promote broadband service in rural areas (“Broadband Deployment Is Extensive throughout the United States, but It Is Difficult to Assess the Extent of Deployment Gaps in Rural Areas.” GAO-06-426, United States Government Accountability Office, Washington, D.C., May 2006.). Some States and local entities also have undertaken initiatives, often in conjunction with the private sector, to bring broadband to underserved areas. Given the many barriers that must be overcome, further policy initiatives may be necessary to bring the full benefits of broadband to the Nation’s rural areas. The use of interstate highway rights-of-way for backbone alignment is one potential tool to support rural HST deployment.
1.d. Federal Policy and Regulatory Context
The Telecommunications Act of 1996 set the stage for extensive Federal involvement in the Internet and in high-speed telecommunications deployments. This involvement has included regulations designed to promote competition, as well as complementary policies and programs that promote deployment of telecommunications technologies to underserved areas and to target populations such as schools. Federal policies and regulations also have established parameters for what can or cannot be done within interstate highway rights-of-way.
1.D.i. Telecommunications Act of 1996
Comprehensive telecommunications regulation in the United States began with enactment of the Communications Act of 1934. For more than 60 years, the 1934 Act intensively regulated almost all aspects of communications “in the public interest, convenience, and necessity.” (Communications Act of 1934, §301, 307(a, d), 308(a), 309(a, d).) The Telecommunications Act (TCA) (Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996), codified in title 47 of the United States Code) was enacted in 1996 to deregulate telecommunications services and to adopt free market competition to provide a broader range of telecommunications choices and lower prices to consumers. At the same time, the TCA also imposed new types of regulation designed to foster competition and to extend telecommunications services to underserved markets. Two of TCA’s regulatory initiatives particularly affect installation of enhanced telecommunications backbone in State-owned interstate highway ROW to provide advanced telecommunications access in rural areas as well as to provide specific benefits to surface transportation agencies. First, the TCA requires existing telecommunications providers to allow competing providers to have access to existing facilities and mandates removal of State and local regulatory barriers to telecommunications competition. Second, the TCA reinforced the more than a century old concept of universal service. (Telecommunications Act of 1996 Section 254. Universal Service aspects of the TCA are discussed below.)
The TCA’s deregulated telecommunications mandate has generated extensive Federal Communications Commission (FCC) regulation requiring competition. For example, under the TCA, local telecommunications companies existing in 1996 (called Incumbent Local Exchange Carriers or “ILECs”) are required to share their facilities with competitors (called Competitive Local Exchange Carriers or “CLECs”) at regulated rates, if “the failure to provide access to such network elements [e.g., telephone lines or broadband backbone] would impair the ability of the [CLEC] telecommunications carrier seeking access to provide the services that it [the CLEC] seeks to offer.” (Telecommunications Act of 1996 Section 251(3)(2)(B) of P.L. No. 104-104, 110 Stat. 56 (1996).) Similarly, the TCA modified the Pole Attachments Act to require utilities to permit access not only to poles, but also to conduit, antenna towers, and the like by all types of telecommunications services at regulated rates. These and other competition-promotion regulations are likely to apply to installation of advanced telecommunications backbone along interstate highway ROW, particularly through “shared resources projects.” (“Shared resources projects” are also known as public-private partnerships (PPPs). See Shared Communications: Volume I. A Summary and Literature Review (2004) http://ntl.bts.gov/lib/jpodocs/repts_te/14075.htm (accessed August 30, 2007). This publication recounts a number of shared resources success stories.) These projects allow telecommunications companies the rights to use State-owned ROW in exchange for State DOT access to telecommunications facilities installed in the ROW.
TCA specifically prohibits State and local regulatory barriers to competition. Section 253 bans State and local statutes, regulations, or legal requirements that “have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” By its own terms, §253 is intended to remove State and local “barriers to entry” that might discourage entry of competing telecommunications providers. Nevertheless, the statute recognizes “State regulatory authority” and allows “a State to impose, on a competitively neutral basis... requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.” (Telecommunications Act of 1996 Section 253(b).) This provision has been interpreted to require that States and municipalities establish the “competitive neutrality” of laws and regulations that affect telecommunications services. Another subsection expressly recognizes “the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers.” (Telecommunications Act of 1996 Section 253 (c).) But this State and local authority must be exercised “on a competitively neutral and nondiscriminatory basis” and compensation paid by telecommunications companies must be “publicly disclosed.” (Telecommunications Act of 1996 Section 253(c).) States also are expressly authorized to require that a telecommunications provider meet universal service requirements, if the provider “seeks to provide telephone exchange service or exchange access in a service area served by a rural telephone company.” (Telecommunications Act of 1996 Section 253(f).)
The most far-reaching part of the “removal of barriers to competition” section of the TCA is the provision authorizing the FCC to preempt State or local statutes, regulations, or legal requirements that the FCC determines constitute barriers to entry by new competitors or are not competitively neutral and nondiscriminatory. (Telecommunications Act of 1996 Section 253(d).) Since enactment of this preemption provision in 1996, the FCC has been active in preempting State and local actions that have the effect of discouraging entry by telecommunications providers seeking to compete for telecommunications projects or that function as legal and regulatory deterrents to competition for telecommunications services.
1.D.ii. The “Minnesota Decision”
The most important of the FCC preemption decisions affecting installation of advanced telecommunications backbone in interstate highway ROW is the FCC’s rejection of a petition brought by the State of Minnesota in 1999. The petition sought a declaration by the FCC that the State’s contractual arrangement for installation of fiber optic backbone in State-owned freeway ROW was not preempted as a barrier to competition prohibited under TCA §253. Minnesota’s arrangement was a “shared resource” program in which a selected telecommunications company agreed to provide various enhanced telecommunications services to the State, including advanced telecommunications services to rural areas, in exchange for the company’s exclusive access to freeway ROW. Minnesota explained this arrangement as a way to extend advanced telecommunications to rural areas as well as to avoid the disruption and potential traffic hazards of multiple trenching in a busy highway ROW.
However, the FCC concluded that the State’s selection of a single telecommunications provider to install fiber optic backbone in State-owned freeway ROW was anticompetitive, and in violation of TCA’s provision regarding “removal of barriers to entry.” (Telecommunications Act of 1996 Section 253(a).) The FCC’s decision particularly focused on unfairness to other telecommunications competitors because Minnesota’s arrangement involved a single telecommunications company selected to install the only permitted fiber optic telecommunications line along certain State-owned freeway ROW. The FCC’s competitive concerns focused on the fact that other telecommunications companies would not be permitted access to State ROW for 10 years. That exclusion, the FCC concluded, would put those competing companies at a competitive disadvantage. The petition was rejected because, as the petitioner, Minnesota had failed to meet its burden to establish that its single-source agreement was competitively neutral, nondiscriminatory, and not a barrier to competing telecommunications companies.
1.D.iii. FHWA Policy and Guidance
Prior to 1988, Federal policy did not permit States to allow utilities longitudinal access to interstate highway rights-of-way to install their infrastructure, although utilities were allowed to request transverse crossing of the freeways. In 1988, amendments were made to 23 CFR, Part 645, Subpart B that allowed States to expand their utility accommodation policies, to allow longitudinal utility installations within the access control limits of interstate highways under State-specified circumstances. FHWA retained the authority to ultimately approve each State’s freeway utility accommodation plan, although the State would then determine whether to permit specific utility installations, consistent with its policy. While this Federal policy change opened the door to shared resource telecommunications projects, the previous restrictions persisted in many State policies for many years (and in fact continue to do so in some States).
The 1999 FCC Minnesota Decision raised considerable apprehension about State DOT shared resources projects as well as control over State-owned ROW. The potential for required construction of multiple telecommunications installations in ROW along Federally funded highways also raised serious safety and management issues for FHWA as well. Fortunately, FHWA was able to work with the FCC to fashion what amounts to a “shared resources” safe-harbor. (Background Guidance on Longitudinal Telecommunications Installations on Limited Access Highway Right-of-Way December 20, 2000, prepared by the ITS Joint Program Office, explains the circumstances of these FHWA-FCC discussions. http://www.its.dot.gov/telecom/tele_srbackground.htm. (accessed August 30, 2007).) Explained in the FHWA’s Guidance Regarding Longitudinal Telecommunications Installations on Limited Access Highway Right-of-Way (2000), (http://www.its.dot.gov/telecom/tele_srguide.htm (December 22, 2000) (accessed August 30, 2007).)this safe-harbor was the result of cooperation and consensus between FHWA and FCC. The resulting FHWA guidance regarding ROW installation of telecommunications facilities is based on three general goals: 1) to minimize safety hazards to the public; 2) to retain State control of interstate highway rights-of-way for States; and 3) to ensure nondiscriminatory competition in the telecommunications industry with respect to access to freeway right-of-way. Consistent with this guidance, both FHWA and the American Association of State Highway and Transportation Officials (AASHTO) (Guidance on Sharing Freeway and Highway Rights-of-Way for Telecommunications (1997) and, more generally, A Policy on the Accommodation of Utilities within Freeway Right-of-Way, 5th Edition (2005)) now provide extensive practical assistance with regard to satisfactory arrangements for longitudinal telecommunications installations along interstate highway ROW.
The FCC’s decision was not appealed. Only a few court decisions and a handful of FCC decisions have relied on the FCC decision regarding Minnesota’s petition. In these agency and court interpretations, the FCC’s rejection of Minnesota’s petition has come to stand for two propositions: First, the burden of proof in preemption cases rests on the party bringing the petition. Second, the TCA’s statutory safe-harbors will apply only if the State or local action is competitively neutral and nondiscriminatory. The legality and feasibility of State DOT arrangements for telecommunications installations in State-owned ROW are reflected in a number of successful shared resources programs involving installation of advanced telecommunications backbone in interstate highway ROW. (See Shared Communications: Volume I. A Summary and Literature Review (2004) http://ntl.bts.gov/lib/jpodocs/repts_te/14075.htm (last accessed August 30, 2007). This publication recounts a number of shared resources success stories.) The FCC has not disapproved any of these shared resources programs as barriers to entry under §253. (Telecommunications Act of 1996 Section 253 – Removal of Barriers to Entry.) For example, the FCC Wireline Competition Bureau declined to preempt the State of Colorado’s contract with Qwest for development, aggregation, and management of a statewide telecommunications network using State-owned ROW.
1.D.iv. Expansion of the Pole Attachments Act
Another important reflection of efforts to promote competition is TCA’s expansion of the Pole Attachments Act in §224. Enacted in 1978 to protect cable television providers from exorbitant charges for attaching cable lines to utility poles or for using utility-owned facilities such as ducts, conduits, or rights-of-way, the Pole Attachments Act was substantially extended by the TCA. Section 224 now broadly affects telecommunications providers and local exchange carriers and requires private sector utility companies that control facilities needed by telecommunications providers to allow that access on a nondiscriminatory basis and at regulated rates. (In 2002, the United States Supreme Court decided in National Cable & Telecommunications Ass’n v. Gulf Power, 534 U.S. 327 (2002) that wireless telecommunications providers were protected by the Pole Attachment Act, whether the attachments were of wireline or wireless equipment. The Supreme Court deferred to FCC determinations regarding the meaning of TCA changes to the Pole Attachments Act.) These changes in the Pole Attachments Act were enacted for the express purpose of fostering competition by requiring nondiscriminatory access to existing utilities facilities.
Although the amended Pole Attachments Act does not apply to entities that are “any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State,” (Telecommunications Act of 1996 Section 224(a)(1)) private telecommunications providers in shared resources projects could be included under the competition-promotion features of the Act. Regulation of just and reasonable rates for the use of poles or other facilities and limits on charges for attachments to a share of the operational and capital costs attributable to the entire pole that is proportional to the amount of the pole or other facility used by the attachment has been controversial. (Telecommunications Act of 1996 Section 224(d).) Such regulated rates, together with strong deference shown by courts to FCC determinations under Section 2, (The decision of the Court of Appeals for the District of Columbia in Southern Company Services v. FCC, 313 F.3d 574 (D.C. Cir. 2002) applied the Supreme Court’s strong deference to FCC regulatory interpretations of the Pole Attachments Act in a case involving the “overlashing” rule with regard to poles as well as conduit space rules) can lower the value of the underlying land or easement, including State-owned ROW, where telecommunications facilities are located. The FCC’s broad and far-reaching interpretations of these statutory requirements may complicate the economics of shared resources projects involving installation of advanced telecommunications backbone along interstate highway corridors.
1.D.v. Rural Universal Service
In addition to deregulation of telecommunications and promotion of telecommunications competition, the TCA is notable for adoption of universal telecommunications service objectives in the Telecommunications Act of 1996 §254. In promoting universal access to telecommunications services in rural and high-cost areas, TCA included among its universal service principles: “Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high-cost areas, should have access to telecommunications and information services, including interexchange services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.” (Telecommunications Act of 1996 Section 254(b)(3).) Rural communities tend to be both high-cost (especially with regard to middle-mile and last-mile interconnection costs) and low-income with regard to the rural populations served. TCA directs the FCC to work toward equalizing access to telecommunications by rural communities that are frequently unserved or underserved by advanced telecommunications services such as broadband.
1.D.vi. Evolving Definition of Broadband
Section 254 establishes a complex statutory program to help make telecommunications services more equitably available. The statute defines “universal service” as “An evolving level of telecommunications services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services.” (Telecommunications Act of 1996 Section 254(c).) In other words, the nature of advanced telecommunications services that should be universally available is expected to change over time. Accordingly, the FCC is considering redefinition of “advanced telecommunications” that, since 1999, has been understood to refer to “services and facilities with an upstream (customer-to-provider) and downstream (provider-to-customer) transmission speed of more than 200 kilobits per second (kbps).” (Availability of Advanced Telecommunications Capability in the United States, GN Docket No. 04-54, Fourth Report to Congress, 19 FCC Rcd 20540, 20551-52 (2004).) The FCC also uses the term “high-speed” to describe services and facilities with more than 200 kbps capability in at least one direction. (Ibid. at 20551. The FCC requires filing of FCC Form 477 in which filers must determine what percentage of their broadband or high-speed connections is faster than 200 kbps in both directions, and to categorize these connections into five “speed tiers” based on the information transfer rate in the connection’s faster direction: (1) greater than 200 kbps and less than 2.5 Mbps; (2) greater than or equal to 2.5 Mbps and less than 10 Mbps; (3) greater than or equal to 10 Mbps and less than 25 Mbps; (4) greater than or equal to 25 Mbps and less than 100 Mbps; and (5) greater than or equal to 100 Mbps. See 2004 Data Gathering Order, 19 FCC Rcd at 22347, para. 14.)
In a recently issued Notice of Inquiry under §706 of the TCA regarding the reach of universal service, the FCC pointed out, “Given the rapid technological changes in the marketplace, we seek comment on the need to alter the definitional framework utilized in prior inquiries.” (In the Matter of Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, Notice of Inquiry, FCC 07-21 (rel. Apr. 16, 2007), para. 12.) Noting that the FCC has not specified what speeds should be encompassed within the term “advanced telecommunications capabilities,” the FCC seeks comment on the following questions:
“TCA directs the FCC to work toward equalizing access to telecommunications by rural communities...” |
Has technology or the marketplace evolved such that we should redefine the term “advanced services” to require a minimum speed higher than 200 kbps in one or both directions? Should we adopt a definition that establishes different tiers based on information transfer rates? Have consumer expectations with respect to bandwidth needs changed since prior reports? (The FCC notes, “For example, AT&T and Verizon offer residential DSL products with maximum downstream capacities of up to 3.0 Mbps. See AT&T DSL Plans and Pricing, http://www.usa.att.com/dsl/index.jsp (accessed Feb. 12, 2007); Verizon DSL for Home Packages and Pricing, http://www22.verizon.com/content/consumerdsl/plans/all+plans/all+plans.htm (accessed Feb. 12, 2007). Time Warner Cable offers residential cable modem service products with maximum downstream capacities of up to 6.0 Mbps. See Time Warner Cable – Why Road Runner?, http://www.timewarnercable.com/corporate/products/highspeedInternet/whyroadrunner.html (accessed Feb. 12, 2007). Verizon recently began offering its FiOS service, which may include Internet access speeds of up to 30 Mbps. See Verizon FiOS Internet Packages & Pricing, http://www22.verizon.com/content/fiostv/packages+and+prices/packages+and+prices.htm (accessed Feb. 12, 2007).”) To what extent is mobility important to consumers when considering broadband alternatives? How has the development of new broadband technologies like wireless affected the marketplace evolution? Has development of the wireless broadband marketplace been affected by ownership of wireless companies by companies with substantial wireline broadband and public switched telephone network (PSTN) facilities? Do these cross-owned wireless companies offer different services or service bundles than wireless companies not controlled by or affiliated with a wireline carrier? What sources of information currently exist regarding the deployment of advanced telecommunications capability under alternative definitions? Are any other attributes, besides the speed in which a particular quantity of information can be transmitted, relevant to the definition of advanced telecommunications capability? Finally, should we adopt a system under which our definition would automatically adjust upwards over time to reflect technological advances? Are there data sources measuring the state of technology in other countries that can guide the Commission in defining ‘advanced telecommunications capacity’ for the United States? For example, what speed do consumers in other industrialized nations expect from mainstream residential broadband technologies? (In the Matter of Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, Notice of Inquiry, FCC07-21 (rel. Apr. 16, 2007).)
In other words, the FCC is opening a dialogue about what types and levels of telecommunications services should be considered “advanced” for the purposes of promoting universal telecommunications services.
1.D.vii. Universal Service Fund
Immediately after enactment of TCA in 1934, the FCC created the Universal Service Fund (USF) to equalize the cost of telephone service which otherwise might be prohibitively expensive, particularly for rural and isolated telephone users. Voice telecommunications providers are required to contribute on an equitable and nondiscriminatory basis to this fund designed primarily to provide universal voice telephone service. (Telecommunications Act of 1996 Section 254(d).) Similarly, most of the universal service funding is restricted to providing voice communications over ordinary telephone lines. (Telecommunications Act of 1996 Section 254(g).) USF funding is available only to qualified telecommunications service providers who agree to provide telephone service to rural or high-cost areas at the same rates as to urban areas. (Telecommunications Act of 1996 Section 253(g). Section 253(k) prohibits subsidizing competitive services, so that universal service bears no more than a reasonable share of the joint and common costs of facilities used to provide those services.) Broadband, Internet and other advanced telecommunications, with a few exceptions, are not eligible for universal service funding. Among these exceptions are USF funding of Internet access programs for schools, libraries, and rural health care providers. (Telecommunications Act of 1996 Section 253(h).) For the average rural broadband consumer user, USF funding is not available with regard to advanced telecommunications such as high-speed Internet access.
Currently, all telecommunications companies that provide international and interstate telephone service, long-distance companies, local telephone companies, wireless telephone companies, paging companies, VoIP, and payphone providers, are required to contribute to the Federal universal service fund administered by the Universal Service Administrative Company (USAC). (FCC Regulations regarding Universal Service are published at 47 C.F.R. Part 54.) USAC allocates these funds to support authorized universal service programs around the Nation. The two main USF programs – the High-Cost Program and the Low-Income Program – are restricted to support only voice communications services. As noted above, the only Internet services authorized to receive USF funding are the Rural Health Care Program and the Programs for Schools and Libraries otherwise unable to connect to the Internet. (Telecommunications Act of 1996 Section 254(h).) Section 254 also authorizes the FCC to establish The Federal-State Joint Board on Universal Service. This Joint Board was created by an FCC order to set policies for the various universal service programs. (Established by FCC Order, CC Dkt 96-45, FCC 96-93 (Mar. 8, 1996).)
The Rural Health Care Program of the USF is a support program authorized by Congress and designed by the FCC to provide reduced rates to rural health care providers for telecommunications services and Internet access charges related to the use of telemedicine and telehealth. Support is available for telecommunications services and monthly Internet access charges used for the provision of health care. Support also is available for limited long-distance charges for accessing the Internet. The level of support depends on the location and the type of services chosen and is calculated individually for each health care provider. A health care provider can save on services it already has, upgrade current services, or install new services.
Under the Universal Service Fund and E-Rate Program, the telecommunications needs of every rural K-12 school can be serviced through subsidized discounts. Libraries or library consortia eligible for assistance from a State library administrative agency under the Library Service and Technology Act and not operating a for-profit business are eligible for discounted services. The level of discount is based on a school’s or library’s percentage of students eligible for the national school lunch program and its location in an urban or rural area. Eligible schools and libraries may purchase commercially available telecommunications services, Internet access, and installation and maintenance of internal connections at discounted rates. They may choose from a wide array of telecommunications services and technologies, such as basic telephone service, a T-1 line, and wireless telecommunications services. A school or library can apply for a discount on a specific service either as an individual entity or as part of a consortium which has identified common communication needs and planned for a community infrastructure.
There has been considerable debate about expanding the USF High-Cost and Low-Income Programs so that USF funds also would be available to subsidize advanced telecommunications services, such as broadband, in unserved and under-served areas, such as rural communities. In the 110th Congress, (The One Hundred Tenth United States Congress is the current Congress meeting from January 3, 2007 to
January 3, 2009) “the Universal Service for Americans Act” (S.101, 110th Cong., 1st Session (introduced January 4, 2007)) was reintroduced by Senator Stevens as S.101. This bill would
(i) increase the universal service tax base to include broadband providers, and (ii) fund broadband deployment in rural and low-income regions of the country. S.101 was referred to the Senate Committee on Commerce, Science, and Transportation. If passed, this bill could promote projects deploying advanced telecommunications in the form of backbone installation in interstate highway ROW and interconnection of that backbone with rural broadband providers and ultimately rural broadband subscribers.
1.D.viii. Data on HST Deployment
Promoting access to advanced telecommunications in rural and high-cost areas has become an increasing FCC priority. Non-governmental initiatives calling for universal access and decrying the digital divide have stimulated FCC activities in this area. For example, the FCC recently issued “Lands of Opportunity: Bringing Telecommunications Services to Rural Communities” (July 2006). After establishing the USF, one of the most prominent of the FCC’s regulatory activities with regard to extension of broadband service to unserved and underserved rural areas has been collection of statistics regarding areas that are and are not served by high-speed Internet services. (See High-Speed Services for Internet Access: Status as of June 30, 2006 (rel. Jan. 31, 2007) (June 2006 Statistical Summary), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-270128A1.pdf. (accessed 08/30/2007) Information is compiled from filings of FCC Form 477 by broadband providers.) FCC statistics regarding high-speed Internet availability in underserved areas are often criticized because they are based on geographical ZIP codes and count a ZIP code as being served by advanced telecommunications even when only one broadband subscriber in that ZIP code has a high-speed Internet connection. Such statistics do not reflect the actual penetration of advanced telecommunications services to populations of rural users. (See, GAO Report 06-426 regarding Broadband Deployment is Extensive throughout the United States, but It is Difficult to Assess the Extent of Deployment Gaps in Rural Areas (May 2006).)
In April 2007, the FCC responded to dissatisfaction with universal service statistical information regarding broadband availability based on ZIP codes. The FCC’s Notice of Proposed Rulemaking regarding Development of Nationwide Broadband Data to Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans (WC Docket No. 07-38, Notice of Proposed Rulemaking, FCC 07-17 (rel. Apr. 16, 2007)) seeks to improve data so that FCC statistics better reflect the actual availability of advanced telecommunications services in rural and other underserved areas. Simultaneously, the FCC also issued the Notice of Inquiry, (In the Matter of Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, Notice of Inquiry, FCC07-21 (rel. Apr. 16, 2007). This inquiry focuses, in part, on whether FCC definitions of “advanced telecommunications” and “broadband” should be updated) discussed above, regarding “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” under TCA section 706. (See Section 706(b) of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996) (1996 Act), reproduced in the notes under 47 U.S.C. §157.) These recent FCC initiatives appear to indicate that the nature of universal service, particularly in the form of advanced telecommunications, is likely to change, reflecting the TCA’s original concept of universal service as “an evolving level of telecommunications services” defined by the FCC under TCA section 706.
1.e. State Departments of Transportation and Broadband Telecommunications
1.E.i. The Wired Organization
The traditional focus of State Departments of Transportation (DOT) has been just that – transportation. Their mission is to provide a safe and efficient transportation network that promotes commerce and tourism and provides throughput over roadways that are well maintained. This has been their focus for almost 100 years. It is just recently, in the last 15 to 20 years, that Intelligent Transportation Systems (ITS), which utilize electronics and communications to improve transportation operations, have come into being. Although this has not changed the focus of State DOTs, it has changed the way they do business and the tools used to accomplish their mission.
1.E.ii. Telecommunications and ITS
ITS utilizes electronic equipment, software, computers, servers, and communications technology, along with coordinated operations between DOT employees and their partners, to improve the management and operation of the transportation network. ITS equipment comprises closed circuit television (CCTV) cameras, dynamic message signs (DMS), vehicle detection sensors, environmental sensing stations, traffic signals, highway advisory radio (HAR), warning signs, mobile data terminals, in-vehicle technologies, and a host of other applications. Many of these devices that are located along highway rights-of-way require a connection to an external power source and almost all require communications, either wireline or wireless, or a combination of the two. From the field, the data are transferred back to an office or operations center staffed by State or local agency employees who manage the devices. Data also are transferred from the operations center to the field equipment in the form of commands to post messages to DMS or to manipulate CCTV cameras.
Although wireline technologies can be used exclusively to link field equipment to the operations center, wireless communications are frequently used to connect field equipment from the device to a point where they can be connected to a wireline backbone, from which point data is transported to and from an office or operations center. An example would be a DMS that is located in a remote portion of highway. Many times power is conveniently available in rural areas for these devices, but communications are not. A typical installation might include a directional antenna mounted to a tower or other tall structure on high topography with line of sight to the DMS, transmitting and receiving data from the sign. The directional antenna will then be connected to a high-speed communications backbone at the base of the tower. The backbone will carry data to and from the tower creating a hybrid wireline/wireless network for communication with the ITS field device.
With the proliferation of ITS devices in urban areas across the United States and increasingly in rural areas along major corridors, there has been an increased need for HST to transport data between field devices and centralized operations centers. It has become commonplace for State DOTs to install fiber optic communication cables within the ROW in urban areas to transport video images and data. With a typical density of cameras installed in an urban area of every one-half to one-mile, and vehicle detectors and DMS being installed as well, it has made economic sense for DOTs to deploy their own telecommunications infrastructure that is used exclusively for ITS. Telecommunications infrastructure in this case includes conduits, fiber optic cable, communication electronics, access points, regeneration buildings, wireless communications equipment, and towers. At the same time, urban ROW is one of the more difficult areas to install communications infrastructure due to little or no ROW remaining along some urban corridors.
In rural areas, it is a different story. There may only be one or two ITS devices installed within a 30-mile segment and they may be nowhere near a viable communications access point served by either the DOT or the private sector. Although wireless can be used to connect some of these devices that do not require a high-bandwidth connection, such as DMS or vehicle detection, CCTV cameras require substantially more bandwidth to transmit images and typically optical fiber is used. Microwave systems can be used, but require line-of-sight between the ITS field device and microwave transceiver and most frequencies require FCC licensing. Microwave systems also are subject to weather interference and may require additional maintenance to monitor exact alignment. The cost of installing the communications infrastructure needed to have fiber along the length of a rural corridor is usually not within the budgets of most DOTs. To meet their needs, a DOT will generally pay for a connection to be made from the CCTV camera or other equipment to the local service provider’s nearest communications access point, which may be several miles away. Without other users on that line, the State DOT bears the brunt of the installation cost.
1.E.iii. Resource Sharing and Public-Private Part
In the mid- to late-1990s, a new type of telecommunications model arose in the United States. Between State government and private sector telecommunications carriers. As a result of growing demand for HST, telecommunications companies were installing new communications infrastructure as quickly as possible. They had always recognized the value of highway ROW for the creation of utility corridors. Most States freely allowed and still allow utilities to place their infrastructure on highway ROW at no charge. The one exception to this was interstate highway ROW. FHWA policy did not allow utilities to be installed longitudinally along interstate highway ROW, citing safety concerns for drivers if there was constant utility construction and maintenance taking place along the edge of the road. In 1988, this policy was changed to allow the installation of communications infrastructure only along interstate highway ROW. This change opened the way for the creation of several public-private partnerships, or shared resource projects, across the country.
The private sector telecommunications companies recognized that interstate highway ROW had advantages over other public rights-of-way or private land. It provided a cross-State corridor that was almost devoid of other utilities, provided relatively open areas for construction, had limited crossing roads, and connected major urban areas that were their prime markets. The other options available included easements on privately owned land, which would require extensive negotiations with multiple landowners; use of railroad right-of-way, of which some companies did take advantage; and use of non-interstate highway rights-of-way. These non-interstate highway routes may be used by multiple companies, increasing the risk of damage by other utility operators. Construction is made more difficult due to curb cuts for commercial and residential access, crossing roads, and high-traffic volumes in towns and urbanized areas.
For these reasons, interstate highway ROW has value to companies that need to install infrastructure rapidly. To compensate the States for the use of this ROW, public-private partnerships were formed in which the telecommunications company would share their infrastructure with the states and bear most of the construction costs as well. In return, the State would allow a company to have the right to install their infrastructure on the ROW, sometimes exclusively, and be able to access it as needed. The compensation to the states can be in the form of cash, conduit, dark fiber, lit fiber, communications service, or a combination of the above. This is commonly referred to as a shared resource project.
1.f. Process for Delivering Study
Delivery of this Report to Congress has been a cooperative effort involving the Federal Highway Administration (FHWA) of the U.S. DOT and the National Telecommunications and Information Administration (NTIA) of the U.S. Department of Commerce. FHWA and NTIA staff worked closely to develop a framework for analysis, and brought together stakeholders from State and local government for consultation.
The study process to-date has included:
Consultation and involvement of stakeholders from participating States, through corridor and State-level workshops as well as a project web site;
Corridor definition, profiling, and assessment of HST benefits and needs for each of the study corridors; and
Investigation of preliminary alignment issues, including policy, regulatory, institutional, engineering, cost, and other issues related to design and deployment.
The forthcoming Report to States will include a more detailed assessment of potential alignment issues, including conceptual designs, technological and institutional options, and policy recommendations.
1.F.i. Stakeholder Involvement
In order to determine the current environment for HST projects along interstate highway rights-of-way along the study corridors, it was necessary to gather the opinions of many stakeholders in both the public and private sectors. The State DOTs have a large role in the process of developing a shared resource project and are generally the lead State agency that engages in the partnership. The interstate highway ROW is controlled by the State DOT and managed in a manner consistent with the State’s utility accommodation policy. Many States also manage their telecommunications assets through one agency that procures and maintains the State’s communication networks, and works cooperatively with all State agencies to provide services. State DOTs and State information technology offices were the two primary stakeholders from which opinions and ideas were sought by the study team during a series of corridor workshops and State meetings held with each of the 10 corridor States. Through the corridor and State meetings, over 50 stakeholders from the 10 States were given the opportunity to provide input to the report.
In February 2007, three workshops were held, one in each of the three study corridors. All 10 States in the corridors were invited to attend, and at least one representative from each State was present at their respective workshop. The workshops began with an overview and purpose of the study providing background to the participants on why the FHWA was seeking their input. A roundtable discussion followed where a series of topics were introduced and participants’ input was recorded. Given the corridor approach to the study, the discussions included information on how the States worked cooperatively across State lines. The meetings ended with a request to the states for various documents and data that the study team would use for this report. Figure 1 shows the locations of the workshops and State meetings along the study corridors.
Figure 1: Location of workshops and State meetings along the corridors
Subsequent to the corridor meetings, one-on-one meetings were conducted with each of the 10 States to continue the collection of key documents and to obtain additional input. During April and May of 2007, all 10 States met with the study team for detailed discussions and to gather the State’s input for and expectations from this study.
Another important outreach tool for this study is a project web site (www.ruralcomm.org) established for the study team and project stakeholders to use for sharing information about the study, dissemination of various reports developed as a part of the study, and sharing of documents and data collected from the States. The web site is internal to the study team and project stakeholders and is password protected. A majority of the participating States made use of the project web site for viewing project information and all agreed it is a helpful and beneficial tool for them to use as the study progresses.
1.F.ii. Corridor Definition, Profiling, and Assessment of HST Benefits and Needs
The three rural interstate highway corridors were initially assessed using a regional focus, with stakeholders from the multiple States in each corridor included in the corridor definition process. Corridor boundaries were established using a 25-mile buffer zone on each side of the interstate highway routes, loosely determined by census block group boundaries. This buffer zone represents the approximate area that would most benefit most from access to HST backbone along the interstate highway alignments.
Existing conditions and trends in the three study corridors were mapped and tabulated using a variety of data sources and methods. The objective was to examine key conditions and trends affecting telecommunications needs and demand. The data examined included demographic and socioeconomic data; population growth trends; economic conditions and industry mix; the number and location of key telecommunications users such as hospitals, schools, and libraries; and the locations of existing communications infrastructure. Given the intended focus of the study on rural telecommunications needs, data were examined separately for urbanized versus non-urbanized areas within the corridors. Figures 2, 3, and 4 display the study area with population density for each corridor.
The corridor data were used to perform a sketch-level assessment of corridor bandwidth requirements. This assessment was based on typical existing HST demand by various user groups (in situations where HST is available). The analysis assumed that current growth rates and economic and demographic patterns in the corridors would remain largely unchanged in the future, and that major advances in HST technology or major increases in bandwidth requirements (compared to current levels of usage) would not occur. This telecommunications analysis is detailed in Task 3: Corridor Profiles.
In addition to reviewing data on existing conditions and potential bandwidth requirements, telecommunications needs in the corridors, and the potential benefits of more widespread HST deployment, also were investigated. This investigation included a review of recently published studies on rural telecommunications needs and benefits, as well as interviews with key people knowledgeable about each corridor such as economic development officials, State and regional planners, and staff at educational and health care institutions. Information and views were compiled on specific needs, benefits, and HST-related initiatives underway or planned. Finally, national studies estimating the economic benefits of HST were used in conjunction with corridor-level data to develop rough monetary estimates of the potential benefits that could occur as a result of improved access to HST in each corridor.
Figure 2: I-20 Corridor Population Density
Figure 3: I-90 Population Density
Figure 4: I-91 Corridor Population Density
Based on these various data, a SWOT analysis was conducted. A SWOT analysis is a tool to delve into the Strengths, Weaknesses, Opportunities, and Threats (SWOT) inherent in a concept or strategy. In the context of this report, the SWOT analysis examines and identifies the benefits and risks of providing broadband service (via a shared resource project) to the rural communities along the I-20, I-90, and I-91 corridors. This analysis is contained in Appendix A. It should be noted that the SWOT analysis considered both the private entity and public agency perspective. Therefore, within the matrix, the public agency perspective is denoted by bolded entries, while the private entity perspective is denoted by italicized entries.
SWOT Methodology A SWOT analysis was conducted to examine and identify benefits and risks of providing broadband service (via a shared resource project) to the rural communities along the I-90, I-91, and I-20 corridors. It is important to note that the SWOT analysis focused on the strengths, weaknesses, opportunities, and threats with regards to the attainability of the potential benefits identified for each of the corridors. The SWOT analysis did not address the specific technologies (e.g., wireless and/or wireline) used to deploy the telecommunications backbone. The following definitions apply for the SWOT analysis:
The ultimate goal of a SWOT analysis is to leverage the strengths and opportunities while minimizing or mitigating the weaknesses and threats. For each of the three corridors, information was gathered through corridor meetings, telephone conversations, and Internet research with an eye to addressing economic development, deployment of ITS, homeland security precaution and response, education systems, and health systems. A SWOT matrix for each corridor was applied to the information gathered and was summarized in the “Task 4 Report: Potential Impacts Analysis.” |
The results of the analysis of current conditions and trends, as well as HST needs and potential benefits, have been compiled in a series of technical memoranda, and are available as addenda to this report.
1.F.iii. Preliminary Alignment Approach
As part of the scope of this study, a preliminary telecommunications alignment plan is to be produced, in the Report to States, that will provide a guide for the location of telecommunications infrastructure within the ROW along the three identified corridors. The alignment plan is to identify technological options, preferred locations for the infrastructure in the ROW, ideal locations of access points, potential areas of difficult construction, and environmentally sensitive areas that will require extra care during design and construction. This plan is to be produced as part of the Report to States, which also will be made available to Congress.
Utilizing the information previously gathered from the States, corridor-specific teams will work with each State to develop a concept for how they would like to have telecommunications infrastructure installed along their interstate highway ROW, if a project were to be developed in their State. No additional surveys will be performed and existing data from the states will be utilized to its fullest extent. Specifically, State utility accommodation policies will be used to determine the preferred location for utilities along access-controlled ROW. Any utility construction standards available also will be used.
Access points to telecommunications along the ROW are critical for the end users. Access can be anything from a fiber vault with a splice enclosure inside to access the fiber backbone or it can be an access connection within a regeneration building (Figure 5 and 6) along the ROW. Candidate location for access points to fiber optic lines, such as at key crossroads, at ITS field devices, at a university campus, or at another State facility, will be investigated and documented by the corridor teams and noted on the preliminary alignment plans.
In the preliminary alignment plans for each State, a catalog of areas along the corridor that represent environmentally sensitive areas, such as wetlands, streams, or other protected areas will be created. Applicable environmental regulations, both State and Federal, will be cited that any project developer will need to be aware of before beginning construction. Any special environmental issues particular to a State will be identified and addressed. Construction issues will be addressed in a similar way. Standardized design templates will facilitate efforts to design telecommunication infrastructure. Extensive rock outcroppings, narrow ROW, and dense urban areas are examples of items to be explored.
The preliminary alignment plans will identify locations along the corridors that are potential sites for communications towers. This may include locations on State-owned ROW or other property adjacent to the corridor that meet the sizing needs for a tower.
In addition to conforming to all applicable State standards for the construction of utilities within rights-of-way and State utility accommodation policies, the preliminary alignment plan also will utilize and consider specific Federal standards such as the “FHWA Program Guide for Utility Relocation and Accommodation” and the “Federal Rights-of-Way Working Group Report on Improving Rights-of-Way Management Across Federal Lands.”
Figure 5: Regeneration Building – Exterior
Figure 6: Regeneration Building – Interior
