The right for competitive providers to get access to conduit comes from the Telecommunications Act of 1996. In that Act, Congress directed that competitive telecom providers must be provided access to poles, ducts, conduits, and rights-of-way by utilities. A utility is defined as any company, except for electric cooperatives and municipalities, which owns any of those facilities that are used in whole or in part for communications by wire. Under this definition telcos, cable companies, commercial electric companies, gas companies, and others are required by law to make spare conduit available to others.
If a utility allows even one pole or piece of conduit to be used for communications, including for its own internal purposes, then the whole system must be made available to competitors at fair prices and conditions. About half of the states have passed specific rules governing those conditions while states without specific rules revert to the FCC rules.
Webpass tried to get access to AT&T conduits in California and ran into a number of road blocks. It seems like there are a few situations where AT&T has provided conduit to Webpass, but AT&T denied the majority of the requests for access.
This is not unusual. Over the years I have had several clients try to get access to AT&T and Verizon conduit and none of them were successful. AT&T, Verizon, and the other large telcos generally have concocted internal policies that make it nearly impossible to get access to conduit. When a competitor faces that kind of intransigence their only alternative is to take the conduit owner to court or arbitration – and small carriers generally don’t have the resources for this kind of protracted legal fight.
But even fighting the telcos is no guarantee of success because the FCC rules provide AT&T with several reasons to deny access. A utility can deny access on the basis of safety, reliability or operational concerns. So even when a conduit owner is ordered to provide access after invoking one of these reasons, they can just invoke one of the other exceptions and begin the whole fight again. It takes a determined competitor to fight through such a wall of denial.
Trying to get conduit reminds me of the battles many of my clients fought in trying to get access to dark fiber fifteen years ago. I remember that AT&T and Verizon kept changing the rules of the dark fiber request process so often that a competitor had a difficult time even formulating a valid request for dark fiber. Even when Commissions ordered the telcos to comply with dark fiber requests, the telcos usually found another reason to deny the requests.
This is a shame because getting access to conduits might be one of best ways possible to promote real competition. AT&T and Verizon both claim to have many hundreds of thousands of miles of fiber, much of it in conduit. I am sure there are many cases where older conduit is full. But newer conduits contain multiple empty tubes and one would have to think that there is a huge inventory of empty conduits in the telco networks. The same is true for the cable companies and the large electric companies, and I can’t recall any small carriers who has ever gotten access to any of this conduit. I think some of the large carriers like Level3 or XO probably have gotten some access to conduit, but I would imagine even they probably had to fight very hard to get it.
I remember talking to a colleague the day that we first read the Telecommunications Act of 1996 that ordered the telcos to make conduit available to competitors. We understood immediately that the telcos would adopt a strategy of denying such access – and they have steadfastly said no to conduit requests over the years. I am glad to see Webpass renewing this old fight and it will be interesting to see if they can succeed where others have failed.