permitting – POTs and PANs

Reducing Construction Barriers

One of the most interesting sections of the BEAD NOFO requires that states must define how they are going to make it easier for grant recipients to implement broadband solutions. Specifically, the BEAD NOFO requires states to try to “reduce costs and barriers to deployment, promote the use of existing infrastructure, promote and adopt dig-once policies, streamlined permitting processes and cost-effective access to poles, conduits, easements, and rights of way, including the imposition of reasonable access requirements.

These are all great ideas, but I have to wonder if whoever wrote that understands how hard it is for a state to change any of these policies. Certainly, there is no state broadband grant office with the power to effectuate any of these changes – is this section of the NOFO aimed at legislatures?

Some states have wrestled with these issues for many years. Consider pole attachment and issues related to streamlining the process of building fiber on poles. At my last count, twenty states have adopted their own state rules for the processes related to pole attachments.

I have been involved in several state proceedings looking at pole attachment issues, and this is not something that any state can change quickly. Changing any of the rules associated with pole attachments means opening a docket and soliciting ideas from the parties involved. Since most poles are owned by electric companies, any proceeding brings in the full lobbying power of the electric companies to not do anything rash. It’s also debatable if a state can implement a radical pole attachment rule that is too far out of bounds with FCC rules – since the FCC requires state rules to still adhere to many FCC standards.

For the FCC to consider changing pole attachment rules would take even longer. The FCC has tackled this a few times, and as you might imagine, looking at this issue from a national perspective is hard since pole attachment issues vary widely by locality. The biggest issue with changing pole attachment rules is the lobbying power of the other parties that use the pole – the telcos and cable companies. While they build a lot of fiber, they don’t want to see it be easier for their competition to build fiber.

It’s hard to imagine finding a way to universally streamline permitting in a state. It’s easy to understand why fiber builders don’t like the hodgepodge of permitting rules since every local jurisdiction has its own set of permitting rules and processes. But there is probably not a lot of interest by ISPs to let a State set universal permitting rules – in many states, the permitting rules for building along state highways are some of the most onerous, costly, and time-consuming. I also doubt that many states could declare jurisdiction over permitting since most state constitutions grant authority over local infrastructure to local governments.

The one change on the NTIA list that would have the most impact would be a requirement to make it easy to use existing infrastructure. There are existing fibers running through almost every rural county that is off-limits to anybody that wants to build last-mile fiber. It’s owned by telcos, cable companies, cellular carriers, and electric utilities – and all would fight tooth and nail against having a mandate to give access to their spare fibers. There is also a lot of fiber owned by state governments, local governments, and school boards. Interestingly, in most states, the legislatures have put these government-owned fibers off-limits for commercial purposes – all due to the lobbying effort of the existing ISPs. This requirement from the NTIA would be asking state legislatures to reverse the rules they put into place and have followed for decades.

Every list about infrastructure efficiency always suggests dig-once as a solution for reducing the cost of building fiber. This policy might have made a difference for the current grants if it was implemented twenty years ago, but implementing dig-once now would have very little impact on building BEAD grants if the requirement went into place tomorrow. Even if dig-once is implemented, it’s unlikely that a state policy will require the extra cost to add frequent access points along buried conduit – and without the access points, buried conduit is often nearly worthless for building last-mile fiber.

I completely understand the sentiment behind this requirement, but I think that state broadband offices are all going to tell the NTIA that these issues are not under their control. I find it a bit ironic that the NTIA wants states to take steps to make it easier and more affordable to build fiber while the NOFO layers on a lot of requirements that significantly inflate the cost of building a BEAD grant network.

How Cities Affect Fiber Construction

Yesterday I wrote about the wish list cities have for the deployment of broadband. That got me to thinking about the ways that cities influence the fiber construction process, so today I am going to write about the flip side of that and talk about all of the ways that cities are involved in the fiber construction process. For anybody who has not been involved in fiber construction this will probably be an eye-opener. But let me preface this whole discussion by saying that the involvement in cities varies widely – some large cities can be relatively easy to work with and some small ones difficult – but generally the larger the city the more of the following processes are involved:

Rights-of-Way. Some cities require that anybody that wants to construct any utility in their city first get permission to use the rights-of-way. This process goes by various names and might be called a franchise agreement (which is different than the agreement to provide cable TV) or a right-of-way agreement. But for cities that require this, nothing else can be done until this is first approved. Some cities extract a ‘pound of flesh’ in the franchising process and may ask for use of fiber pairs or some other concession before granting approval to build fiber.

Permitting. Permitting is the process that can be the most time-consuming for a fiber builder. A permit generally requires getting approval for specific construction done at a certain time. Permit requests may require engineering drawings (something that most builders prefer to do only after the construction). Permitting can become onerous if too many permits must be filed (such as one for each block of construction), or if the permits are for short discrete time windows that can expire when there are construction delays.

Locating. Many cities do the locating of existing utilities. This is the process of marking where existing utilities are supposed to be before a fiber builder can dig up the street.

Traffic Control. Cities often get involved in traffic control. For example, they may require that parked cars are moved before construction. They might provide police or other traffic control when building on busy streets.

Placement of Devices. Many cities want approval of the placement of any hut, cabinet or other device. They may have rules that prohibit certain kinds of devices in certain neighborhoods. Probably one of the best examples of a poor policy was one in a western city that gave homeowners in a neighborhood the right to veto the placement of any cabinets. This meant holding mini-elections in neighborhoods.

Inspection. Cities generally inspect the construction process. They may inspect during the construction process to make sure that specifications from the permits are being met. They also usually inspect after construction to make sure that debris and dirt are cleared and that streets, sidewalks, and yards were returned to a clean condition. Just like any other kind of inspection, the in-process inspections often require the stoppage of work until inspectors do their job.

Paperwork. Many cities require specific paperwork to document the ‘as-built’ network. These are detailed engineering drawings that show what was built and where. Today some cities are starting to ask for electronic records instead, generally in an ESRI format to incorporate into their GIS systems.

Other Issues. Cities might have all sorts of other ordinances and rules that affect the construction process. For example, they might have a dig once, policy (something I discussed last week). They might require a fiber builder to use existing excess conduit. They might have aesthetic rules that require somehow hiding huts and cabinets.

Every one of these steps requires time, interface with city employees and paperwork. If done poorly, these processes can greatly slow the pace of fiber construction. For example, construction might be delayed until a city employee locates existing utilities. Then construction might only be able to proceed so far until an inspector approves. Or a rain delay might mess up a traffic control plan and create significant delays until that is reset. With so many different steps and processes there are ample opportunities for problems to arise. Often cities are not staffed to be able to accommodate a citywide fiber construction program and will need time to get ready.

I’ve found that cities who are active partners in getting a fiber network are usually willing to work to make the processes flow smoothly. But I’ve also seen cases where the city is a major impediment to timely fiber construction and can introduce significant delays and costs in the construction process. One function not listed is the liaison process with a city. We’ve seen it works best to ask the city to have a single point of contact to work through various issues during the construction process.

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