FCC BDAC Removing Regulatory Barriers

One of the sub-committees created by the FCC’s as part of its Broadband Deployment Advisory Committee (BDAC) effort looked at Removing State and Local Regulatory Barriers to broadband deployment. Here is a preliminary draft of their report, which is probably close to the final report. As noted in other blogs on the BDAC, the FCC is not obligated to address any of the issues identified by the sub-committee.

It’s an interesting document in that the sub-committee has made a detailed list of all of the common transgressions imposed by states and localities that have slowed broadband or wireless deployments in the past. It serves as a great primer of the kind of issues that a new network deployment might face. But to be fair, that was the mandate given to this group.

I have zero problems with the list of deployment issues and it seems thorough and accurate. But I don’t think the proposed solution is realistic. They basically recommend that the FCC should preempt states and localities for anything to do with broadband or wireless deployment. That’s not a surprising recommendation since the group was asked to list regulatory hurdles that should be eliminated. But there are numerous reasons why having the FCC preempt all local control of rights-of-ways connectivity is a bad idea. One reason I hate the idea is that this is at the top of the wish list for every DC telecom lobbyist for the big ISPs – and they seem to be getting their way too much these days.

With that said, the complaints listed are valid and I’ve seen many of these issues arise during new network deployments. I’ve worked with a number of communities that have processes or ordinances that are a barrier to broadband, and I always advise them to fix such problems if they are hoping for more broadband deployment in their community. But if I’ve learned anything from working around the country it’s that communities differ significantly, and I don’t favor a one-size-fits-all solution from the FCC that would take everything to do with rights-of-way, permitting and other issues out of the hands of local government.

But this document creates a great cautionary tale for cities, counties and states. Almost every sized community talks about having better broadband or about having more broadband competition. Many cities have looked at their various processes and rules and streamlined or eliminated rules that would be a barrier for somebody building fiber. Any community that is hoping to attract fiber construction should be proactive and look at these issues now. It’s quite possible that prospective fiber builders have investigated cities and taken them off of their list of potential markets without even talking to the cities.

Some of the issues discussed by this document can be real killers of fiber deployment. Some good examples include:

  • Permitting processes that are onerous, require a lot of paperwork and which have issues that make them hard to use, such as only being effective for a few weeks after issuance.
  • Other city practices that slow down construction. This could be burdensome traffic control processes, slow inspection of finished work, slow marking of existing utilities. One of the big killers for larger cities is an unwillingness to hire enough temporary city staff to process the volumes of paperwork associated with a large fiber project.
  • One interesting issue pointed out is that cities often don’t charge all utilities consistently. They might try to charge more or extract concessions from a new fiber provider that they don’t expect of existing utilities.

The sub-committee also addressed wireless deployments. While many cities have policies for large cell tower deployments, most cities have not developed any processes for dealing with the myriad smaller cell sites and 5G transmitters that carriers are going to want to deploy over the next decade. I would hope that considering the issues listed in this draft report will prompt more cities to develop friendlier policies and not wait until they have requests for connections and rights-of-way. I’ve talked to many cities who have said that they wish they had thought harder about fiber deployment before a network was built – and the time is now to get ahead of the curve for wireless deployments.

This document also ignores one of the biggest issues in the industry. The big ISPs all want rules that make it easier for them to build fiber or deploy new wireless devices – but they don’t necessarily support rules that make it easier for new competitors to build against their existing networks. I’ve repeatedly observed some of the big carriers like AT&T or Verizon argue for different rules on the local level than what they supposedly support at the national level. It will be interesting to see where these companies stand if the FCC tries to implement some of the proposed solutions.

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.

The Fight Over Wireless Pole Attachments

PoleAll around the country there are fights going on between pole owners, governments, and wireless carriers over pole attachments and related issues for small cell deployment. Small cells are the first new technology that is mostly interested in non-traditional attachments, but will soon be followed by a proliferation of companies also wanting to hang devices to transmit millimeter wave radios and wireless local loops. The fights cover a wide range of different issues:

Safety. Most current pole rules were created for the purposes of keeping it safe for technicians to work on poles, particularly during bad weather conditions. Some of the devices that carriers now want to hang on poles are not small. Some are the size of dorm refrigerators or even a bit larger. And these devices are connected to live electric wires. Adding such devices to poles can make it significantly harder for a technician trying to restore power during a rain or snow storm. Just maneuvering around such devices can be a major safety concern even in good weather.

New Poles / Taller Poles. There are reports of wireless carriers asking to install new poles as tall as 120 feet in city rights-of-way. For network deployments that include wireless backhaul it’s vital that each small cell or other device has a clear line-of-sight to other devices in the network – and being higher in the air can create the needed wireless network.

In most towns the poles are not taller than 60 feet and often shorter. Taller poles create a whole new set of problems. They might mean a whole new level of tree trimming or even eliminating taller trees – and many communities take great pride in their trees. And these new poles will need power, meaning stringing more wires in the air, which can detract from the aesthetics of a residential neighborhood as well as to create more issues with downed power lines and trees to keep trimmed.

This also raises the issue of the long-term impact of such new poles. Many cities have moved other utilities underground or have multi-year programs to migrate existing utilities underground. These new wireless-only poles also require a power feed, and at least some of them require a fiber feed. Can a carrier require a wireless pole/tower in a neighborhood where everything else is already underground? Can they insist that their poles be left standing during future conversions of neighborhoods to underground utilities?

There is also the issue of sharing such new poles. Cities fear that they will be swamped with requests for new poles from companies wanting to deploy wireless technologies. It’s not hard to picture an NFL city that might have a dozen different companies wanting to deploy wireless devices – and it’s not hard to picture this resulting in chaos and a proliferation of multiple new poles on the same streets as well as numerous new electric lines to connect all of the new devices.

Right to Say No. Cities largely want the right to decide what goes in their rights-of-way. This often has manifested with requirements that anybody that wants access to rights-of-way get some sort of a franchise. It also has meant the development of local ordinances that define the whole process of using rights-of-way from the permitting process through installation techniques. But the carriers are currently lobbying at the state level and at the FCC to make uniform rules to apply everywhere. If the FCC or a state passes blanket rules there are many cities likely to challenge such rules in court.

Fees for Attachments. The carriers are also lobbying heavily to define the fee structure for attachments of these sorts of new connections. Compensation has always been an issue and my guess is that at some point the FCC will step in here in the same manner they did in the past with other pole attachments.

General Irony. I find it ironic that AT&T is leading the battle to get good terms for attaching wireless devices. AT&T has been the primary entity that has been fighting hard against Google to keep them off AT&T poles. And now AT&T wants the right to force their way onto poles owned by others. But in the regulatory world if we have ever learned any lesson it’s that big companies don’t seem to have a problem with arguing both sides of the same argument when it suits their purposes.

Too Much Fiber?

When communities consider building fiber, one of the first questions a community often asks me is how much fiber already exists in their community and how they can take advantage of it. The bad news I almost always have to give them is that their community probably contains several existing fiber networks that will be of little or no use to them. It seems there is a lot of fiber in the world that is not being put to good use.

So what do I mean by this? What I have found is that many communities have numerous existing fiber networks that have been built for one specific purpose and which can’t be used for anything else. Here are some examples:

  • K-12 Schools. School districts often own fiber networks to connect all of their schools.
  • Colleges. Colleges will often be on a different network than the other schools.
  • Traffic Lights. A number of cities now have fiber systems that feed traffic lights.
  • State Highways. They often have fiber network systems for cameras and electronic message boards.
  • Federal Highways. They build for the same reason as state highways.
  • Commercial networks. It’s more understandable why a network built by a telco, cable company, wireless company, or CLEC might not be available to a city, but most cities today contain a significant amount of fiber built by these companies.

I first ran into this issue in the late 90s when a city in Virginia asked me this question. I was helping them design a fiber network that would connect all of their government buildings. In doing so I discovered that there was already a fiber network built to traffic lights that probably already covered 80% of the network they were going to need – and they already owned it. But in looking deeper, we found that the traffic light network had been built with funds from the state highway department and that it had a prohibition in the funding language against sharing the network for other uses, including other uses by the city. That network was basically off-limits for any other use.

When you consider that building fiber can range in price from $25,000 per mile to place on poles, or $75,000 per mile to bury (in most places) or even up to $150,000 per mile in urban downtowns, it’s crazy to think that such money has been spent without considering all of the other benefits the outlay could have created.

I still see this all of the time and it is very common for a government-built fiber to be off limits to all commercial uses. But surprisingly there are often also prohibitions against other municipal uses. I can understand restrictions against commercial uses, even if I don’t like them. The fear is always there that when the government and commercial entities work together that it creates a chance for corruption. But this kind of fear should not be a reason to automatically write-off the opportunity for public-private partnerships.

I’ve always found that commercial companies are glad to share the cost of building a new fiber route. In the commercial world companies routinely share fibers and they typically create a clear division of the use of fiber pairs on a new route when multiple companies agree to share in the build costs. Governments could save a fortune if they would join into this well-established commercial practice of building fiber for more than one company.

But the restrictions of a government-owned fiber that precludes other parts of the government from using it are just wrong. When highway departments or universities or other big agencies build fiber and then don’t let other government agencies benefit from the expenditure something is very wrong and we have let bureaucracy override common sense. I often hear excuses for the practice such as the need for security, and frankly all such excuses are bosh.

I’ve told cities that there are two solutions when they run into this problem. One is to create a huge public stink so that the agency that won’t share the fibers might be shamed into doing the right thing. But the other fix is longer term, and that is to take full control of their rights-of-way. For example, one long-term fix is to require that anybody who digs a ditch in the ground must include empty conduit which will create a lot of opportunity for cheap fiber over time. But the best fix is for somebody in the city to act entrepreneurially and to get to know the fiber providers in town and develop partnerships with them. That is actually easier to do than you might think.