Navigate Legislative and Regulatory Barriers

Learning Objective

Understand best practices in navigating and streamlining federal, state, and local regulations that restrict models of service delivery, increase broadband development costs, and disincentivize private sector development.

Overview

Broadband development projects face permitting processes that can last multiple months or years before any construction. Deployment includes the installation of initial network infrastructure underground or via utility poles and the incremental cost associated with connecting each customer to the network. Federal, state, and local regulations related to construction, service rights, and spectrum allocation can impose additional costs and time-consuming requirements upon any project. Although broadband projects will not be able to modify a majority of these regulations, project leaders should be aware of opportunities to streamline local permitting and navigate state and federal regulations. Targeting regulations related to pole attachments, public rights-of-way access, and permitting can facilitate infrastructure deployment and make your community more amenable to any broadband development.

The LDD Role

Local Development Districts do not have direct authority to modify the regulations discussed in the previous section. However, LDDs help local governments in their region examine and modify existing regulations with the potential to increase the cost of development and help partners navigate regulatory barriers. In addition to helping partner communities adopt development-friendly regulations, LDDs can also help ensure the project meets all relevant guidelines. Maryland developed a guide to navigate relevant agency regulations pertaining to broadband development.[1] Regulatory issues relevant to broadband include pole construction and attachment, right of way access, service rights and restrictions, and radio spectrum allocation. Additionally, LDDs can survey the community to balance public opinion with broadband development strategies.[2]  As regional coordinators, LDDs can help municipalities adopt model practices that facilitate broadband development by current or future projects.


[1] https://dnr.maryland.gov/Documents/Navigating-Broadband-Permitting-Process.pdf

[2] https://dailyprogress.com/community/orangenews/news/county-revises-tower-ordinance/article_5fdead66-590b-11e8-a4f7-939d341bf13e.html

Getting Started

Projects will face different regulations depending on their chosen technology and model of broadband delivery. When developing a technology or service solution, projects should consider relevant regulations and their consequences on the feasibility of each solution type. Projects should identify relevant local, state, and federal regulations during the project’s evaluation of their current state of broadband development. Projects should then design a solution and develop strategies that either navigate or modify existing regulations to allow for development into underserved areas.

Understanding Pole Construction and Telecommunications Tower Ordinances

Broadband development projects either need to build fiber optic cable above ground on poles or underground via conduits. Projects might additionally need to construct telecommunications towers to deploy fixed wireless solutions. Tower and pole construction is subject to various federal, state, and local regulations depending on the height and location of the proposed structure.

Telecommunications towers used to deploy fixed wireless solutions and utility poles to carry fiber are subject to numerous federal regulations as regulated by the Federal Communications Commission (FCC).[1] To obtain FCC licensure, telecommunications towers must comply with environmental requirements specified in the National Environmental Policy Act, including the National Environmental Policy Act and Endangered Species Act. Structures are also subject to the National Historic Preservation Act. Towers above specified heights are additionally subject to approval from the Federal Aviation Administration and the FCC’s Antenna Structure Registration program. The FCC provides a free tool to determine if any structure is subject to regulation.[2] Generally, towers under 200 feet and not located near an airport are not subject to additional regulation. Towers subject to these additional regulations must notify the FCC before making any modifications to the tower.

Towers and utility pole construction is also subject to state and local permitting. Projects should examine local tower construction ordinances to understand if their project might face lengthy review processes and either plan accordingly or attempt to modify the regulation. Local ordinances might uniformly require projects to undergo FAA review, regardless of height, or undergo public review and comments. Communities might also exempt towers deployed on public land or operated by the public from local permitting. In 2018, the FCC Small Cell Order required states to remove burdensome fees and requirements on applications to access public rights of way for the purposes of installing or modifying telecommunications infrastructure.[3] Correspondingly, the FCC released streamlined municipal[4] and state[5] model ordinances governing telecommunications deployment in public rights of way. Organizations, including the National League of Cities[6] and The Wireless Infrastructure Association[7] have released other sample ordinances pertaining to telecommunications towers.

Best Practices

Adopt non-uniform and flexible pole or tower construction permitting processes. Pole and tower construction typically require conditional use permits. Permitting for larger towers can take a considerable amount of time and resources to review and approve. The process involves FAA and environmental review in accordance with multiple statues and a public review period, in addition to several engineering studies associated with large structures. Communities can differentiate the permitting for smaller fixed and mobile wireless towers from permitting for larger towers to develop a broadband development-friendly permitting environment.


[1] https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting

[2] https://wireless2.fcc.gov/UlsApp/AsrSearch/towairSearch.jsp

[3] https://www.fcc.gov/document/fcc-facilitates-wireless-infrastructure-deployment-5g

[4] https://www.fcc.gov/sites/default/files/bdac-07-2627-2018-harmonization-wg-model-code-muni.pdf

[5] https://www.fcc.gov/sites/default/files/bdac-12-0607-2018-model-code-states-final-approved-sections.pdf

[6] https://www.nlc.org/wp-content/uploads/2018/08/NATOA-NLC-Alternative-Model-Code-for-Municipalities-FINAL_0.pdf

[7] https://wia.org/wp-content/uploads/Advocacy_Docs/PCIA_Model_Zoning_Ordinance_June_2012.pdf

Understanding Pole attachments and ‘One-Touch-Make-Ready’ Provisions

Broadband development projects can also leverage existing towers and poles to deploy wireless or wired broadband infrastructure. However, pole attachment regulations can prove just as complex and costly to navigate as pole construction. In addition to permitting processes governing the height and location of any attachment, pole attachments face delays brought on by ‘make ready’ orders.

After obtaining local and state permits to attach broadband infrastructure to existing poles, projects need to issue ‘make ready’ orders so that existing tower-users can make room for new cable attachments. The ‘make ready’ order requires incumbent tower-users to self-perform a series of inspections and adjustments that enable a new provider to utilize any tower. This process can take months to complete as incumbent providers organize multiple work crews. [1] In other cases, utility poles may not be able to accommodate an additional cable attachment without violating ground clearance or setback stipulations, requiring the newcomer to replace the pole entirely. The ‘make ready’ process can significantly delay deployment of any broadband infrastructure as the site is prepared.

‘One touch make ready’ (OTMR) ordinances have the potential to streamline this process. OTMR suggests employing a single contractor to conduct all of the necessary ‘make ready’ work at one time, eliminating the need for each company to send its own team to do its share of work.

According to a March 2020 FCC public notice, 22 states regulate their own pole attachments while the rest are subject to FCC federal regulations.[2] This arrangement creates a complex mix of federal, state, and local jurisdiction over pole attachments, as local leaders are responsible for regulating public rights-of-way.[3] What’s more, utility poles are often not owned by a government entity but by private utility companies. However, cities such as Louisville, KY and Nashville, TN have overcome legal opposition to successfully implement their own municipal OTMR ordinances.

Case Study: Buckeye Hills Regional Council, Ohio

The Buckeye Hills Regional Council team found that ‘make-ready’ costs associated with installing fiber proved the greatest barrier to development in the region, due to high-costs and unpredictability. Much of Southeast Ohio’s soil is rocky, making it costly and difficult to lay fiber conduit. Additionally, many of the region’s utility poles are outdated, forcing any project to replace or make significant improvements to the poles to attach fiber. Further complicating matters, a majority of utility poles are owned by electric cooperatives in the area, which limits potential access by internet service providers (ISP).

Buckeye Hills is developing a partnership-model between utility pole owners and ISPs to set a cap on ‘make ready,’ costs in return for a commitment to provide broadband access to all households in the area. This agreement would increase the predictability of ISP’s ‘make ready’ costs and provide the cooperatives with an opportunity to offer bundled internet and electricity. Although an agreement of this nature has not yet been implemented, it illustrates an innovative approach to the ‘make ready’ problem through a mutually beneficial arrangement.[4]


[1] Next Century Cities, “Next Century Cities’ Guide to Pole Attachments,” February 1, 2017, https://nextcenturycities.org/next-century-cities-guide-to-pole-attachments/

[2] Federal Communications Commission, States that Have Certified that They Regulate Pole Attachments, March 19, 2020, https://www.fcc.gov/document/states-have-certified-they-regulate-pole-attachments-2

[3] Next Century Cities, “One Touch Make Ready Fact Sheet,” February 1, 2017, https://nextcenturycities.org/one-touch-make-ready-fact-sheet/

[4] Tom Reid (Broadband Consultant, Reid Consulting Group contracted with Buckeye Hills Regional Council) interview with DDAA on February 4, 2021.

Understanding Fiber Optic Cable Excavation and ‘Dig Once’ Policies

Broadband development projects that install underground fiber optic cable face costly regulation and excavation processes. Broadband consultancy NEO Connect estimates that 60% to 80% of a fiber optic network’s capital costs are associated with opening a trench or burying conduit that will house fiber optic cable.[1] Communities can limit these costs by requiring utility providers and other organizations that excavate land to install conduit and perform other infrastructure upgrades during their project.

‘Dig once’ policies mandate that any time a trench is opened for a public works infrastructure project, underground conduit and other infrastructure upgrades must be installed while the trench is open. By taking advantage of open trenches to deploy conduit, localities can significantly reduce the cost of burying fiber optic cable. A Government Accountability Office report estimated that ‘dig once’ policies that install conduit create cost savings of approximately 15.5% per mile when deploying fiber in rural areas.[2] By taking advantage of projects that require open trenches, ‘dig once’ policies also reduce the overall frequency with which trenches need to be opened in public rights-of-way, creating an added benefit and cost savings.


[1] Kruse, Diane, Policies and Ordinances that Facilitate Broadband Deployment, NEO Connect, Pg 2, http://neoconnect.us/wp-content/uploads/2016/08/Policies-and-Ordinances-that-are-Broadband-Friendly.pdf

[2] Planning and Flexibility Are Key to Effectively Deploying Broadband Conduit through Federal Highway Projects, Government Accountability Office, 2021, Pg 5, https://www.gao.gov/assets/gao-12-687r.pdf

Standardizing Permitting and Developing Model Ordinances

Local permitting processes can lengthen project timelines as a result of inconsistent requirements across communities and oblique review processes. Projects with inconsistent permitting requirements across each development site can face significant delays. LDDs can help partnering communities adopt standardized permitting processes through the creation of model ordinances.

Model ordinances serve as a legislative framework that localities can adopt to standardize right-of-way and utility-pole permitting procedures and requirements. Communities can facilitate deployment of infrastructure by permitting access to most public and private rights-of-way and charging low access fees. Projects can collaborate with developers and communities to design ordinances. Lincoln, Nebraska adopted a standardized pole design that greatly reduces the ‘make ready’ time of projects and other communities have held forums to balance development and preservation.[1] Developers can also access a common application for federal lands that permits access to federal property for the purpose of broadband development across departments.[2] Adopting regulations that prepare a community for broadband development can facilitate the timeliness of future projects.

Communities can adopt permitting requirements and timelines that speed up development. The FCC requires that communities utilize review periods of 60 and 90 days for co-located and new structures under 50 feet, and 150 days for all other wireless towers.[3] Cities such as Boston developed online tools for providers to submit and monitor review processes. Raleigh streamlined its initial permit application process to only require geographic coordinates for sites, which helped developers identify feasible sites before proceeding with additional application materials.[4] Standardized and timely permitting processes ensure broadband providers can deploy their infrastructure in a timely manner.

Best Practices

Implement a model ordinance for right-of-way permits. Model ordinances offer an effective method to streamline right-of-way permitting across a region. The federal government and multiple state governments have created model ordinances focused on removing unnecessary burdens to right-of-way access by utilities. The FCC has published a model code for municipalities across the country to use. States have also provided model codes related to broadband development. The Georgia Broadband Deployment Initiative’s model ordinance template and the Indiana Broadband Office’s model resolution are good examples of state-created model ordinances developed for local government use.


[1] https://www.nlc.org/wp-content/uploads/2018/08/CS_SmallCell_MAG_FINAL.pdf

[2] https://broadbandusa.ntia.doc.gov/resources/federal/federal-permitting

[3] According to the FCC, any structure under the greater of 50 feet or 10% of the height of adject structures is a small wireless facility. https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf

[4] https://www.nlc.org/wp-content/uploads/2018/08/CS_SmallCell_MAG_FINAL.pdf

Recognizing Telecommunications Service Provider Restrictions

Community-led broadband development projects can also have to navigate state restrictions on municipal and cooperative-operated broadband service. Among the Appalachian Regional Commission states, Alabama; North Carolina; Pennsylvania; South Carolina; Tennessee; and Virginia all have some restriction on municipal broadband.[1][2] Depending on a project’s chosen organizational model, state restrictions on municipal service-delivery may inhibit project’s ability to access certain financing options. In addition to the municipal-broadband related regulations included here, projects should also be aware of how state telecommunications and broadband service regulations might impact their development efforts.

State regulations on public-sector broadband operations can limit the potential service area for any project and cause substantial delays as projects undergo public review. In North and South Carolina, publicly owned telecommunications providers are required to release a notice-of-intent to incumbent internet service providers (ISP) and host a public review process before they are able to expand into a new area.[3],[4] In Tennessee, municipalities that already operate an electric utility are allowed to provide internet service within their existing electric service area after a period of public review and comments and can expand into neighboring unserved areas following a municipal resolution.[5] Municipalities without a cooperative utility can expand into “historically unserved areas” through joint ventures with the private sector.[6] Public review processes can easily take multiple months to a year. Municipalities in Pennsylvania are required to hold a 14-month public review process during which providers have the right of refusal to provide broadband service to an underserved area before the municipality can provide subscription-based broadband.[7]

State regulations on municipal and cooperative-owned broadband can also restrict projects’ ability to leverage debt or funding from non-internet service revenue, severely limiting the sustainability of these networks. Publicly owned providers in North Carolina are unable to incur debt without first holding a special election[8] and in Virginia providers need to prove that revenue will exceed cost in the first year to offer voice, video, and data services.[9] Publicly owned providers in Alabama, North Carolina, South Carolina, and Virginia are all required to include the cost of certain non-internet service revenue into subscription prices to remain competitive with private ISPs. Non-internet service revenue might include cash reserves, tax levy, grants and loans, or other utility-derived revenue.[10] However, providers in North Carolina can use state and federal grant and loan programs to offset capital construction without needing to price those funds into subscription costs.

Case Study: Alleghenies Broadband Incorporated, Pennsylvania

Alleghenies Broadband Incorporated (ABI), a non-profit broadband infrastructure development organization, formed as a result of state restrictions placed on municipal broadband. Pennsylvania Act 120 of 1994 organizes Local Development Districts as local government entities, complete with the aforementioned restrictions on providing service. The Southern Alleghenies Planning & Development Commission (SAP&DC) obtained $1.5 million in ARC funding for broadband development, before it realized the project had to undergo a 14-month review process that significantly delayed the project. With LDDs unable to directly distribute ARC funds to private ISPs for infrastructure development, SAP&DC formed ABI, a non-profit organization able to develop and lease broadband infrastructure to providers. As a non-profit, ABI is not subject to the same Pennsylvania municipal regulations as SAP&DC or municipalities. In anticipation of growth, ABI completed Competitive Access Provider applications with the Pennsylvania Public Utility Commission for SAP&DC and the surrounding region.


[1] https://broadbandnow.com/report/municipal-broadband-roadblocks/

[2] https://www.baller.com/2019/07/baller-stokes-lide-state-barriers-to-public-communications-initiatives-as-of-july-1-2019/

[3] NC Statutes Chapter 160A, Article 16A

[4] South Carolina Code Ann. § 58-9-2660

[5] Tennessee Code Ann. § 7-52-601

[6] Tennessee Code Ann. § 7-59-316

[7] 2004 Act 183 establishing changes to 66 Pa. Cons. Stat. Ann. § 3014

[8] NC Statutes Chapter 160A, Article 16A

[9] VA Code § 15.2-2108.6

[10] NC Statutes Chapter 160A, Article 16A; South Carolina Code Ann. § 58-9-2660; VA Code §§ 56-265.4:4, 56-484.7:1

Understanding Radio Spectrum Allocation

Fixed wireless projects operate on specific, licensed bands of radio frequency as regulated by the Federal Communications Commission.[1] A total of 663 megahertz of the radio frequency spectrum between 900 megahertz and 40 gigahertz have been devoted to fixed wireless broadband purposes.[2] Other bands of the spectrum are devoted to agriculture, automotive, education, energy, health, commerce, and transportation purposes. Its important for communities to be aware of the availability of various radio frequency spectrums in their region before deploying a fixed wireless solution.

The Federal Communications Commission regulates non-federal use of the radio frequency spectrum in the US. Frequencies assigned to fixed wireless solutions are assigned by the FCC, with some specific frequencies that were previously used for education and other purposes put up for auction. In the 1990’s the FCC auctioned off substantial portions of the spectrum that were devoted to outmoded purposes, including education, that were distributed to participating municipalities.

Case Study – Oglethorpe County, Georgia

Oglethorpe County Economic Development Authority experienced firsthand how unfamiliarity with rights to local radio frequency spectrums can delay a project. Oglethorpe had recently brought on a fixed wireless provider to deliver broadband to the County, when the provider learned the County did not have rights to access the portion of the spectrum their solution intended on using. In the early 2000s, the FCC had auctioned off a portion of the spectrum reserved for education to communities. Unaware of this process, Oglethorpe did not claim their spectrum rights, which were instead claimed by neighboring Newton County. Newton had the rights to lease access to this portion of the spectrum to any public or private organization. Instead, Oglethorpe was able to form a memorandum of understanding with Newton to gain access to the spectrum for the purposes of fixed wireless. Access to a previously barred portion of the allowed the provider to utilize previously infeasible methods to connect customers with broadband service.


[1] https://www.fcc.gov/engineering-technology/policy-and-rules-division/general/radio-spectrum-allocation

[2] https://www.nap.edu/read/21729/chapter/9