[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Notices]
[Pages 6753-6756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1644]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Guidance on Longitudinal Telecommunications Installations on
Limited Access Highway Right-of-Way
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice.
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SUMMARY: This document publishes guidance on the installation of
telecommunications on limited access highway right-of-way. This
guidance was distributed to the FHWA Resource Centers and Division
offices on December 22, 2000. These materials are the result of
consultations with the Federal Communications Commission with regard to
the potential impact of the Telecommunications Act of 1996 on such
installations.
FOR FURTHER INFORMATION CONTACT: Mr. William S. Jones, Intelligent
Transportation Systems (ITS) Joint Program Office, (202) 366-4651 or
Ms. Beverly Russell, Office of the Chief Counsel, (202) 366-1355;
Federal Highway Administration, 400 Seventh Street, SW., Washington,
DC. 20590-0001. Office hours are from 7:30 a.m. to 5 p.m., e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's database at:
http://www.access.gpo.gov/nara. In addition this document is available
on the ITS web sit at: http://www.its.dot.gov.
Background
Guidance published in this Federal Register notice is provided for
information purposes. Specific questions on any of the material
published in this notice should be directed to the appropriate contact
person named in the caption, FOR FURTHER INFORMATION CONTACT.
Authority: 23 U.S.C. 315; 49 CFR 1.48.
Issued on: January 11, 2001.
Kenneth R. Wykle,
Federal Highway Administrator.
The text of the FHWA guidance memorandum dated December 22, 2000
follows:
Information: Guidance on Longitudinal Telecommunications
Installations on Limited Access Highway Right-of-Way
Anthony R. Kane, Executive Director, HOIT-1.
Directors of Field Services
Resource Center Managers
Division Administrators
A number of States have altered their utility accommodations
policies to allow longitudinal access to their limited access highway
Right-of-Way (ROW) for telecommunications installations; usually fiber
optic cable. Several of these installations to date have been public-
private partnerships with the telecommunications industry generally
referred to as ``Shared Resource'' agreements. In December 1999, the
Federal Communications Commission (FCC) issued an opinion in the
Minnesota Department of Transportation (DOT) case involving such a
partnership that defined the FCC's interpretation of the
Telecommunications Act of 1996 (TCA) and its application to the
Minnesota agreement, which has potentially broad implications for
transportation agencies.
As a result of the FCC's opinion, the Federal Highway
Administration (FHWA) engaged in a discussion with the FCC to clarify
how these partnerships and other similar telecommunications
installations should be conducted to avoid conflict with the TCA and be
consistent with FHWA's requirements for highway safety and ROW
management. These discussions have culminated in an approach that
considers both the requirements of the transportation industry and its
concern for highway safety, and the FCC's concern with the
implementation of the TCA. This approach is documented in two letters.
A letter from the FHWA Administrator to the FCC defines the elements of
the guidance pertaining to access to freeway ROW, and a letter to the
FHWA Administrator from the Chief of the Common Carrier Bureau of the
FCC defines the competitive elements of the
[[Page 6754]]
guidance based upon the access restrictions defined by the FHWA.
This is only guidance to assist States in the execution of Shared
Resource agreements. Agreements can deviate from these guidelines and
still be in conformance with the TCA. However, this guidance is
intended to clarify some of the important requirements of the TCA with
regard to competition in the telecommunications industry.
Background
Over the past decade, a number of States have implemented Shared
Resource agreements with private telecommunications companies. ``Shared
Resource'' is a term identifying public-private arrangements involving
the sharing of the public resource of roadway ROW and the private
resource of telecommunications expertise and capacity.\1\ Most
commonly, private telecommunications providers are granted access to
limited access highway ROW for their own telecommunications
infrastructure (principally fiber optics conduits and cable) in
exchange for providing telecommunications infrastructure to public
agencies.
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\1\ United States Department of Transportation, Shared
Resources: ``Sharing Right-of-Way or Telecommunications,'' Final
Report, Publication No. FHWA-PO-96-0015 (April 15, 1996), This
document is available online at the web site: http://www.itsdocs.fhwa.dot.gov as item no. 1863, 90 pages.
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Shared Resource agreements can be a beneficial, cost-effective
means for State DOT's to obtain the telecommunications infrastructure
necessary for Intelligent Transportation Systems (ITS). For example,
telecommunications capacity is essential for the integration of both
equipment and data components required for State and metropolitan
traffic operations systems. Such systems may include traffic control
devices (e.g. traffic signals), closed circuit television, radar
detectors, pavement sensors, etc.
The United States Department of Transportation (U.S. DOT) and the
FHWA are responsible for highway safety (23 U.S.C. 401), the management
of ROW on the interstate system (23 U.S.C. 109(1) and 111(a)), and
implementation of the national ITS program. The FHWA's implementing
regulations for utility accommodation are applicable to shared resource
agreements and other telecommunications installations. 23 CFR part 645,
subpart B. The regulations, in part, require that States accommodate
utilities in a manner which does not impair the highway or adversely
affect highway traffic safety. 23 CFR 645.211(a). The regulations
explicitly require that States examine the effect of utility
installation on ``safety, aesthetic quality, and the cost or difficulty
of highway and utility construction and maintenance.'' 23 CFR
645.211(b). Though, pursuant to regulations, ROW management
responsibilities have largely been devolved to the States,
implementation of these responsibilities must remain consistent with
FHWA regulations, not only those at 23 CFR part 645, but also those at
23 CFR part 710 governing the interstate ROW.
The FHWA also recognized that the Telecommunications Act of 1996,
Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified as amended in
scattered sections of title 47 of the United States Code (U.S.C.)), had
the potential to impact the installation of telecommunications on
freeways. Specifically, the Act prohibits State and local governments
from implementing any statute, regulation, or legal requirements which
have the effect of prohibiting any entity from providing
telecommunications service. 47 U.S.C. 253 (a). However, the section
containing this prohibition has two exemptions. First, the prohibition
does not affect the ability of the States to impose, on a competitively
neutral basis, requirements necessary to preserve and advance universal
telecommunications service, protect public safety and welfare, ensure
quality of telecommunications service, and safeguard the rights of
consumers. 47 U.S.C. 253 (b). Second, the prohibition also does not
affect ``the authority of a State or local government to manage the
public ROW or to require fair and reasonable compensation from
telecommunication providers, on a competitively neutral and
nondiscriminatory basis, for use of public right-of-way on a
nondiscriminatory basis, if the compensation required is publicly
disclosed by such government.'' 47 U.S.C. 253 (c).
In October 1996, the FHWA issued guidelines on the anticipated
effects of the TCA on utility accommodations.\2\ In these guidelines,
the FHWA recommended that the State highway departments desiring to
allow one or more telecommunications companies on interstate ROW make
their intentions publicly known and give all telecommunications
companies the opportunity to compete.
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\2\ Memorandum from Gerald L. Eller, Director, FHWA's Office of
Engineering to Regional Federal Highway Administrators on the
Effects of the Telecommunications Act on Utility Accommodation,
October 25, 1996.
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Guidance on Access to Freeway Right-of-Way
State transportation departments are obviously very knowledgeable
about FHWA regulations on safety, utility accommodations, and ROW
management. However, the FCC's decision on the Minnesota Shared
Resource agreement created concerns and uncertainties, notably with
regard to dealing with the competitive effects of such agreements on
the telecommunications industry and their relationship to the
management of ROW and public safety. To alleviate this concern, the
U.S. DOT has worked closely with the FCC to develop guidance for States
that wish to engage in shared resource and other telecommunications
projects.
When States allow telecommunications companies onto the freeway
ROW, they are potentially invoking the TCA. The objective of the TCA is
to foster competition in the industry. Thus, the TCA contains
significant measures to allow new potential competitors an opportunity
to compete with the large incumbent ``Baby Bells'' that have dominated
the industry for nearly 100 years. These new competitive measures of
the TCA should be considered by States when they choose to allow
telecommunications companies onto their freeway rights-of-way.
This guidance identifies points for negotiating, reaching/
implementing Shared Resource agreements and other telecommunications
installations that involve entering limited access highways (freeways)
for the safe installation of fiber optic facilities. In addition, this
guidance provides potential criteria for implementing these agreements
in a manner that the FCC Common Carrier Bureau has already indicated
would be acceptable and likely to maintain a competitively neutral
environment in the telecommunications industry in accordance with the
TCA.
It should be noted that the telecommunications competitive
environment varies across the country. Thus, the circumstances
concerning what is fair and equitable can vary from region to region.
Therefore, it is reasonably foreseeable that States will develop
agreements for telecommunications longitudinal access to freeway ROW
that differ from the suggested guidelines, and that those agreements
would still be in compliance with the TCA requirements for competitive
neutrality in the contractual actions of States.
[[Page 6755]]
While these guidelines will not prevent a State's actions from
being challenged, the U.S. DOT and the FCC Common Carrier Bureau agree
that these guidelines will help States satisfy their obligation under
the applicable laws and provide a reasonable level of assurance that a
State's actions will not be preempted.
The attachment, ``Background Discussion on Guidance:
Telecommunications Installations, Limited Access Highway Right-of-
Way,'' (available at: www.its.dot.gov) presents a detailed discussion
of the FCC's ruling on the Minnesota case, and the rationale for these
guidelines which have been developed in cooperation with the FCC.
If a State chooses to allow longitudinal access for fiber optic
facilities installation on its freeway ROW pursuant to its Utility
Accommodations Policy, it is recommended that the following guidelines
apply to that installation.\3\ Other provisions factoring in regional
characteristics should be considered in agreements with the contractor
that specifies details as to how particular issues necessary to protect
the public safety are being handled on a project by project basis (e.g.
topographical and other obstructions encountered, special working
conditions and limitations, etc.).
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\3\ Pursuant to 23 C.F.R. 645.211, states are required to submit
utility accommodations plans for approval.
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1. In these guidelines, it is understood that the State retains the
right and responsibility to manage its freeway ROW. Reasonable,
nondiscriminatory time, place, and manner restrictions, including but
not limited to traditional permitting conditions, may be placed on the
design, installation, operation, and maintenance of fiber optic
facilities.
2. All construction should be done in that portion of the ROW that
is located furthest from the traveled roadway to the degree feasible,
and should be accomplished in accordance with the Manual on Uniform
Traffic Control Devices, per 23 CFR part 655.603.
3. If all construction vehicles, equipment, and personnel can be
located outside the clear zone on the freeway, as defined in the AASHTO
Roadside Design Guide and adopted by FHWA in Federal Aid Policy Guide,
Par. 16(a)(3) NS 23 CFR part 625, except for ingress and egress, the
State may use the freeway ROW for fiber optic facilities installation
as frequently as reasonably necessary to satisfy the requirements of
the State, and the needs of the telecommunications providers.\4\ A
State may limit construction so that there is no more than one
installation project underway at any given time on any major segment of
the freeway.
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\4\ There is no intention for this guidance to cause States to
determine the exact location of the clear zone in any particular
area. In most instances, whether a contractor can locate the
construction outside the clear zone should be discernable for most
portions of the freeway by inspection of a State's existing data on
its ROW. The theoretical width of the clear zone, as defined in the
roadside Design Guide, can vary substantially depending on the
topography of the land involved. Therefore, occasional instances of
construction within the clear zone for short distances because of
topographical features of the terrain or other factors, can be
treated as if the construction were taking place outside the clear
zone at the discretion of the State. In such cases the competitive
safeguards defined in 3 below should not be necessary.
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4. If construction vehicles, equipment, and personnel cannot be
located out of the freeway clear zone, then the State may restrict
fiber optic facilities installation to only one time on that area of
the freeway where construction would occur within the clear zone. No
further installation needs to be allowed on that segment until such
time as required by the end of the useful life of the fiber optic
facilities, or if the existing capacity is exhausted or existing
conduit is full. Existing fiber and conduit capacity will be deemed
exhausted whenever the State and the contractor mutually determine that
a bona-fide request for dark fiber, conduit space, or a bona-fide
request for any other transmission facilities or service cannot be
granted. Additional installation at this time will be subject to
reasonable nondiscriminatory State requirements, e.g., per #1 above.
5. A State may restrict the location of all the above ground
equipment to the edge, or off of the ROW to allow access to that
equipment for maintenance from service roads or other non-freeway
access if feasible, as determined by the State. Such restrictions
should be nondiscriminatory.
Guidance on Competitive Issues
To assist States in meeting the intent of the TCA with regard to
maintaining a competitively neutral position in the process of
developing and implementing a Shared Resource or other
telecommunications installations project, the FCC Common Carrier Bureau
suggests the following principles in the development of these projects.
These principles should be considered whenever a State decides to limit
further installations of fiber optic facilities on its ROW, whether in
or out of the clear zone.
1. The contractor should be selected through an open, fair,
nondiscriminatory, competitive process.
2. Having selected a contractor, other interested third-party
telecommunications companies should be allowed the opportunity to have
their fiber optic facilities installed in conjunction with any
installation of fiber optic facilities by the contractor. The State may
make the contractor the sole party responsible for all installation
work done at such times, and require that other third party
telecommunications companies contract with that contractor for
installation of their fiber optic facilities when their facilities are
installed in conjunction with those of the contractor. In such cases,
the contractor's charges, terms and conditions for installation should
be fair, reasonable, and nondiscriminatory and may include a reasonable
profit. The State should give potentially interested third parties
reasonable notice of the anticipated or planned opening of the right-
of-way. The notice period should reflect the time reasonably required
by third parties to develop business plans and obtain financing. Notice
can be accomplished through publication and dissemination of a
construction schedule for the project. Such publication and
dissemination should be reasonably calculated to provide potentially
interested third parties with actual notice of the schedule.
3. The contractor should install spare fiber and empty conduit,
adequate to accommodate reasonably anticipated future demand, whenever
fiber optic facilities cannot be installed outside the clear zone. Each
section of fiber/conduit within the clear zone should have connection
points (manhole or cabinets) at each end outside the clear zone where
third parties can access the conduit or interconnect with facilities in
the conduit at their option. All rates, terms and conditions for
interconnection and/or use of space in the conduit should be fair,
reasonable, and nondiscriminatory and may include a reasonable profit.
4. The contractor should be required to sell fiber on an
``Irrevocable Right of Use'' (IRU) \5\ basis at rates and subject to
terms and conditions that are just, reasonable, and nondiscriminatory.
The contractor's charges for such facilities may include a reasonable
profit.
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\5\ The commission has defined an IRU interest in a
communication facility as ``a form of acquired capital in which the
holder possesses an exclusive and irrevocable right to use the
facility and to include its capital contribution in its rate base,
but not the right to control the facility or, depending on the
particular IRU contract, any right to salvage''. Reevaluation of the
Depreciated-Original-Cost Standard in Setting Prices For Conveyances
of Capital Interests in Overseas Communication Facilities Between or
Among U.S. Carriers, CC Docket No. 87-45, Report and Order, 7 FCC
Rcd 4561 at 4564, n.1 (1992).
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[[Page 6756]]
5. The contractor should be required to offer facilities and
services for resale at rates and subject to terms and conditions that
are just, reasonable, and nondiscriminatory and may include a
reasonable profit.
6. The agreement with the contractor should require that the
contractor comply with the terms defined above, and give third parties
the right to challenge the contractor's compliance with the appropriate
elements of these terms dealing with third party access before an
independent entity which does not benefit directly from the arrangement
with the contractor. The independent entity should have the authority
to order the contractor to comply with these terms. A State public
utilities commission, or independent arbitrator, might serve in this
capacity. In this regard, prompt resolution of such issues can be
critically important to the development of competition.
7. It is substantially preferable that the contractor be a
wholesaler of telecommunication in order to minimize competitive
concerns, as opposed to being a retail telecommunications service and
facilities provider either directly or through an affiliated entity.
This reduces the potential for anti-competitive pricing that could
violate section 253 of the TCA. However, if the contractor does provide
retail telecommunications service directly or through an affiliated
entity, all rates, terms and conditions for its retail service should
be fair, reasonable, and nondiscriminatory.
(The provision of retail service by a contractor creates the
potential for a ``price squeeze'' with the contractor overcharging
competitors, and its retail arm, for wholesale services and facilities,
while competing vigorously on price for retail services. Thus, if the
contractor provides retail services, the contractor's charges for
services and facilities used by potential retail competitors may
require careful scrutiny to avoid potential violations of the TCA.)
Conclusion
These guidelines shall not be used as evidence of any alleged or
asserted legal rights with regard to access to freeway ROW, but are
being provided to assist States in developing their agreements for
telecommunications installations on freeway ROW, particularly dealing
with the nondiscriminatory, pro-competitive requirements of the TCA.
The information provided in this discussion of longitudinal access
to freeway ROW and the impact of the TCA is provided for guidance
purposes only. Local conditions in the telecommunications competitive
environment may well dictate other approaches to satisfying the
competitive neutrality provisions of the TCA. There is no ``right
answer'' that will serve every situation. However, the points discussed
above provide some insight into the thinking of the FCC Common Carrier
Bureau on these issues, and can be used to assist States in formulating
their approach to the subject of longitudinal access to freeway ROW for
telecommunications.
The FHWA anticipates revising these guidelines periodically as
information is obtained on the practicality and reasonableness of these
recommendations.
Any questions on the guidelines should be addressed to William S.
Jones, Intelligent Transportation System Joint Program Office,
telephone number (202) 366-2128, Washington, DC 20590, e-mail:
[email protected].
[FR Doc. 01-1644 Filed 1-19-01; 8:45 am]
BILLING CODE 4910-22-P