Tag Archives: easements

Regulatory Costs of Fiber Construction

At the federal level there has been an ongoing battle over the level of federal regulations. The Ajit Pai FCC strove to eliminate almost all broadband regulations that were not specifically mandated by Congress. Pai referred to his concept as light touch regulation. The FCC before and after Ajit Pai believe that there needs to be some regulations in place to protect the general public.

However, there are a lot of regulations other than the ones created by or enforced by the FCC. Anybody who builds fiber networks can describe the litany of state and local regulations involved in constructing fiber. Following are the primary kinds of such regulations – and there are others in some places.

  • National and State Codes. Fiber builders must meet various national and state codes related to electricity, safety, and specific fiber specifications.
  • Safety. Work sites must comply with safety standards set by OSHA and States.
  • Permits. Most jurisdictions have a formal permitting process. This is where a contractor will specify the planned construction of the network.
  • Rights-of-way. Federal rules allow fiber to be constructed in any existing public right-of-way. However, many local jurisdictions require a fiber builder to pay fees and obtain a right-of-way agreement before undertaking construction.
  • Easements. Contractors are required to acquire an easement from private landowners, which is permission to construct on private land.
  • Financial Requirements. Some jurisdictions require that an entity that wants to cut into a street to satisfy specific financial requirements. This might mean obtaining a bond or providing a deposit before construction. There might be requirements for contractors to carry specific amounts of insurance and name the government entity as a covered entity under the policy. Some jurisdictions treat a fiber network like other infrastructure and charge property or related taxes on the asset.
  • Business License / Franchise Agreements. Some jurisdictions require anybody that wants to operate a fiber network must obtain a business license. Communities often require a franchise agreement that lists the various construction parameters and details the fees associated with building and owning a fiber network.
  • Deployment Codes. A city might require fiber to be buried in some neighborhoods. It might require handholes instead of pedestals. It might require that huts go through the same permitting process as any other building. There may aesthetics requirements for huts and cabinets such as hiding infrastructure with shrubs.
  • Locating. It’s always mandated that existing underground utilities are located before doing any underground work.
  • Public Notification. Many communities require a contractor to notify the public before construction. This might include a requirement to knock on doors and leave notices.
  • Traffic Control. Many communities require flag people or other ways to manage traffic during times when construction will block traffic lanes.
  • Site Requirements. There are often specific rules about what must be done at any site when a street is excavated. This might mean taking measures to control dirt runoff if it rains. It might mean covering construction holes for safety purposes.
  • Restoration. Most communities expect any entity that excavates in a right-of-way to restore the area as nearly as possible to the conditions before the construction.
  • Inspection. There can be government inspections required at any step of the construction process. Inspectors typically have the ability to shut down a construction site that is not meeting the expected codes and standards.
  • Mapping. Many jurisdictions require drawings or electronic files showing completed construction.
  • Licenses. Operators of heavy machinery may be required to have specific licenses and certifications. Engineers that design a fiber project might be required to be licensed by the state.
  • Environmental Studies. Local, state, or federal rules might require an environmental study when constructing in sensitive areas. The studies might look at the likely impact on endangered species or the impact of construction on sensitive waterways.
  • Cultural Review. A cultural review might be mandated if construction is to be done in areas with burial grounds, archeological sites, or fossil beds.
  • Historic Site Review. There can be a review required if construction is to be done close to a designated historical site.

Reusing Existing Easements

Casey Lide and Thomas B. Magee of Keller & Heckman highlight an issue that anybody building fiber on utility poles should be aware of. A recent article on their website notes that in some cases, an easement obtained for using private land to bring electric service might not automatically allow an easement for bringing fiber.

There is a subtle difference between easements and rights-of-of way. An easement allows somebody to carry out an activity on private land. It was typical when electric companies built the power grid to seek an easement from each landowner to give permission to erect electric poles for bringing electric service. Rights-of-way are generally more specific and wider in scope. A city will often decree that it has a right-of-way in perpetuity to use the first few feet from the street of each property for civic purposes. The city can then use the right-of-way to allow for underground utilities or to place a fire hydrant.

The article warns that the original language of the easement might restrict usage for adding fiber. If the original easement language was narrow and only talked about bringing electric service, then somebody adding fiber would need to seek a new easement for every property underneath a pole line. If the original easement was more generic in nature, it might have allowed for electric and other services, in which case the electric company would have an easement to cover allowing others on its poles.

There are cases where a property owner has refused to allow fiber or other wires to be added to a pole line. In such cases, the new attacher has to get permission from the property owner and possibly pay for the easement when property owners insist there is a value for the easement.

The legislatures in twenty states have dealt with this issue in the last few years by passing legislation that says that the original easement given to the electric company covers other wires added to the poles. Within just the last three years, the following states have enacted this legislative fix as a way to make it easier to build broadband networks. Note that some of these laws are aimed only at electric cooperatives but not for commercial electric companies. The states are Alabama, Arizona, Colorado, Georgia, Hawaii, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.

If your state is not on that list, or if you are building fiber on the lines of a for-profit utility, then this is an issue that you should investigate as part of building fiber. The natural place to start is to ask the utility if it has clear easements for adding fiber. This is not always an easy thing for a utility to guarantee since some of the easements might have been negotiated more than a century ago. Examining the utility’s easement language should show if the easement is restrictive or open.

The chances are that you can build a network and never worry about this – many people have built fiber networks and never asked the question. But if an easement dispute is raised, you could be stopped in the construction process or even be stopped from using fiber that was built without an easement. Add this to the list of worries that come with building a new fiber network.