[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