Before the

National Telecommunications and Information Administration

Department of Commerce

Washington DC

In the Matter of)

)

Request for Comments on )

Deployment of Broadband Networks)Docket No. 011109273-1273-01

And Advanced Telecommunications)

)

COMMENTS OF GLOBAL CROSSING LTD.

Michael FreedmanMartin L. Stern

Director, Government RelationsDaniel Ritter

Global Crossing Ltd.Lisa L. Friedlander

360 N. Crescent DrivePreston Gates Ellis & Rouvelas Meeds LLP

Beverly Hills, CA 90210-48021735 New York Avenue, N.W.

(310) 385-5200Suite 500

Washington, D.C.20006

(202) 628-1700

Attorneys for Global Crossing Ltd.

Dated: December 19, 2001


TABLE OF CONTENTS

INTRODUCTION.. 1

DISCUSSION.. 3

I.Broadband Deployment Has Become the Central Communications PolicyObjective in America3

II.Government Rights-of-Way and Public Lands Practices Act as SignificantBarriers to the Deployment of Broadband Telecommunications Networks6

III.NTIA Should Act Now To Encourage Rapid Deployment of BroadbandInfrastructure10

CONCLUSION.. 11


Before the

National Telecommunications and Information Administration

Department of Commerce

Washington DC

In the Matter of)

)

Request for Comments on )

Deployment of Broadband Networks)Docket No. 011109273-1273-01

And Advanced Telecommunications)

)

COMMENTS OF GLOBAL CROSSING LTD.

Global Crossing Ltd. (“Global Crossing”), by its undersigned counsel, hereby submits these comments in response to the National Telecommunications and Information Administration’s (“NTIA”) Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications.[1]

INTRODUCTION

Global Crossing is the first independent provider of global telecommunications facilities and services, utilizing the world’s most extensive fiber optic network of undersea and terrestrial fiber cable systems to provide voice and data services in 27 countries and more than 200 cities worldwide.With over 100,000 fiber route miles, Global Crossing, through its subsidiary companies, operates six U.S.-based high-capacity, state-of-the-art fiber optic submarine cable systems connecting the U.S. with Asia, Europe and the Americas, in addition to terrestrial backbone networks in Asia, Europe, Central and South America and the United States.Global Crossing is one of the premier providers of high-speed telecommunications capacity to wholesale and retail customers, including telecommunications providers, Internet providers, new competitive entrants, and large institutional and corporate customers.

As part of its ongoing effort to obtain further information on broadband issues to assist the Administration in developing a domestic telecommunications policy, NTIA issued the Notice seeking comment on, among other things, the technical, economic and regulatory barriers to the deployment of advanced broadband networks.[2] Specifically, the Notice asks for comment on whether there are “local issues affecting broadband deployment,” including whether “fees for rights-of-way and street access reflect costs in addition to the direct administrative costs . . . ,” and whether there are “impediments to [accessing] federal lands and buildings that thwart broadband deployment.”[3]As discussed in greater detail below, these issues are of significant importance to Global Crossing and the entire telecommunications industry.

Over the five years since passage of the Telecommunications Act of 1996 (“1996 Act”),[4] rights-of-way practices by federal, state and local governments continue to present growing barriers to the deployment of advanced telecommunications capability.

Federal agencies, state governments, and local entities have been using their authority over rights-of-way and public lands to extract from telecommunications providers exorbitant fees, to impose conditions unrelated to the management of rights-of-way, and to delay significantly, or prevent outright, the deployment of crucial advanced telecommunications systems.

After years of deployment activity around the country, Global Crossing and others in the industry have experienced first-hand the full spectrum of government imposed obstacles to such deployment, on the state, local and national levels.[5]

Global Crossing therefore applauds NTIA’s efforts to develop a comprehensive broadband telecommunications policy for this Administration, including the agency’s “support for removing obstacles to broadband deployment.”[6]In view of the extraordinary importance of broadband deployment, Global Crossing urges NTIA, together with other Department of Commerce agencies and others within the Administration, to develop a cohesive federal policy that encourages competitive, facilities-based broadband deployment and eliminates the barriers that exist to the deployment of multiple, competing high-speed networks.At a minimum, NTIA should take a leadership role within the federal government and assist in establishing a central clearinghouse for all federal agency action that affects broadband deployment and access to public lands and federal, state and local control over rights-of-way.

DISCUSSION 

I. Broadband Deployment Has Become the Central Communications Policy Objective in America

The development of local, regional, national and international telecommunications networks has been the foundation of the nation’s transformation from the older manufacturing-based economy to the new information-based economy, with incalculable benefits for nearly every sector of society.It is impossible to overestimate the public benefits of the development of this infrastructure.In addition, broadband telecommunications capacity is a key element of the nation’s critical infrastructure – facilities that “are so vital that their incapacity or destruction would have a debilitating impact on the defense or economic security of the United States.”[7]Following the tragedy of September 11th, policymakers and the media have increasingly noted the import of the broadband infrastructure to our national security.[8]

Yet the deployment of the broadband infrastructure necessary to deliver high-speed connectivity to large corporations, small businesses, schools, hospitals and family residences is still far from complete.In recent months, key members of Congress have articulated the urgent need for a broadband infrastructure deployment policy that eliminates barriers and fosters the continued deployment of competitive, advanced telecommunications networks.For example, in letters written to the Office of Management and Budget and NTIA,[9] Senators John Breaux (D-LA) and Trent Lott (R-MS) urged the adoption of a federal broadband policy that will result in valuable new services to consumers, stimulate economic growth, protect our country’s critical infrastructure and thus, its national security.

Thus, while it is fair to say that legislators, regulators and industry leaders are rarely unanimous on telecommunications policy issues, all would concur with FCC Chairman Michael K. Powell that widespread, accelerated broadband deployment has “become the central communications policy objective in America.”[10]Undoubtedly, “[b]roadband is on the tip of everyone’s tongue,”[11] including the President’s, who is a “believer” in broadband deployment as an essential goal of our government’s telecommunications policy, and understands “that new technologies and the deployment of high-speed networks are crucial to promoting America’s economic growth and our nation’s social well-being.”[12]

Hence, there is growing agreement and momentum at all levels of government that action is needed to ensure the continued deployment of broadband telecommunications networks – the backbone and access facilities integral to the provision of advanced telecommunications capabilities.Access to rights-of-way and public lands is critical to such deployment: ensuring such access should be an integral part of NTIA and the Administration’s efforts.

For such efforts to succeed, however, a unified, national policy is needed.Clearly, broadband deployment is not simply a local issue but is vital to our national interest and must be dealt with accordingly.Hence, NTIA’s leadership in seeking to articulate a broadband infrastructure deployment policy that encourages the consistent and continued deployment of multiple, competing high-speed networks and eliminates the barriers to such deployment is essential.

II. Government Rights-of-Way and Public Lands Practices Act as Significant Barriers to the Deployment of Broadband Telecommunications Networks

The contrast between the unanimous approbation of policies to encourage broadband deployment, and the reality of governmental obstacles to such deployment could not be more dramatic.In practice, the process of gaining access to federal, state and local rights-of-way, and obtaining the numerous permits and authorizations necessary to build high-speed, high-capacity networks is difficult and costly.As noted above, Global Crossing and other carriers recently submitted comments describing current examples from around the nation of misconduct by government entities in blocking and delaying broadband deployment, as well as simple attempts at extorting extraordinary fees for use of the public rights-of-way.[13]As Bruce Mehlman, Assistant Secretary for Technology Policy, U.S. Department of Commerce, has so aptly stated: “[b]roadband deployment readily comes into conflict with [state or municipal rules and demands] . . .and broadband often loses.” (emphasis added).[14]

The numerous difficulties faced by telecommunications providers when deploying advanced broadband networks are exacerbated by the ambiguities in Section 253 of the Communications Act, added by the 1996 Act to prevent state and local barriers to entry.In reality, however, the policy paradigm envisioned by Section 253 – whereby state and local governments would remove unnecessary barriers to competitive entry and collect only “fair and reasonable compensation” – has failed.Rather than abide by the intent of the 1996 Act, governmental units at the state and local levels have exploited Section 253’s ambiguities and limited scope to extract concessions to which they otherwise would not be entitled.[15]Moreover, because Section 253 does not apply to the federal government, federal agencies are unconstrained even by the requirements of current law applicable to state and local entities.

In particular, Global Crossing’s experience, as well as those of others in the industry, evidence the following problems with Section 253:

·The absolute bar contained in Section 253(a) applies to the provision of telecommunications services, a point which governments have used in arguing that the provision does not reach companies deploying next generation broadband networks.

·The reach of Section 253(c) has been subject to litigation regarding whether subsection (c) is a safe harbor for Section 253(a), and thus requires a showing that the statute or regulation is a bar to entry, or whether subsection (c) is an independent private right of action that establishes standards for reasonable rights-of-way management and compensation.

·The question of what is “fair and reasonable compensation,” and whether it is being required on a “competitively neutral and nondiscriminatory basis,” particularly with respect to compensation, has been subject to significant litigation.

·Section 253 applies only to rights-of-way, rather than public lands generally.

·Section 253 does not apply to the rights-of-way practices of the federal government.

·Carriers have been forced to waive their right to challenge unlawful terms and fees as a condition of receiving rights-of-way permits.

Indeed, the problem not only lies in the failure of Section 253 to achieve the purpose for which it was enacted, but with the attitude of governmental authorities.Broadband deployment will continue to suffer at the hands of federal, state and local entities as long as “government . . . sees broadband deployment and telecommunications . . . as a revenue stream.”[16]Too often, government agencies act not as policymakers, but as business adversaries seeking a profit – business adversaries with a monopoly on their right-of-way “product.”For example, permit costs, which used to account for about ten percent of the cost of constructing a new network now comprise upwards of 20 percent of the total cost.[17]

Furthermore, as noted by Mr. Mehlman, the problem is not limited to the local level as federal agencies have been equally guilty in seeking to “profit from broadband deployment,” with several entities currently facing criticism for demanding excessive rights-of-way fees, including the Bureau of Land Management, the Forest Service, and NTIA’s sister agency, the National Oceanic and Atmospheric Administration (“NOAA”).[18]The Breaux and Lott Letters, attached hereto as Exhibit B, focus on NOAA’s attempt to impose extraordinary and unprecedented fees for installation of fiber-optic submarine cables in National Marine Sanctuaries.[19]

Accordingly, a primary organizing premise behind any successful telecommunications deployment policy must be that government charges for broadband build-out must be limited to the actual costs imposed on government by that build-out.

Contrary to that claimed by some governmental bodies, telecommunications providers do not seek to impose unreimbursed costs upon government and the public as they develop their networks.Global Crossing, for one, fully supports recoupment of all actual and direct costs by federal, state and local governmental entities.Global Crossing also supports State and municipal rights to protect the health and safety of their citizens by reasonable regulation of the time, place and manner of broadband deployment.However, government should not be seeking a profit on the “deal,” or for that matter substantive regulatory control over deployment (by imposing conditions unrelated to the management of the rights-of-way).

As perusal of any daily newspaper shows, the economics of the industry have changed significantly.Simply stated, while some (although fewer) companies continue to invest in deploying broadband, the level and rate of investment have fallen dramatically, and market valuations of many telecommunications providers have dropped precipitously.When, as now, short term cost-benefit analyses have become central to the telecommunications deployment project process, substantial marginal costs for access to rights-of-way are ever more important.Simply stated, right-of-way charges can stop a deployment project dead in its tracks.

Finally, as the Federal Communications Commission has recognized, the “most substantial benefits to consumers will be achieved through facilities-based competition.”[20] Thus, at the core of the broadband debate is more than just resale, but the entry of multiple, competing broadband platforms, which has been advanced as the “ultimate objective” of our national telecommunications policy.[21]Ongoing access to rights-of-way and public lands is obviously an essential input into the deployment of such competing networks.

III. NTIA Should Act Now To Encourage Rapid Deployment of Broadband Infrastructure

Given the almost universally acknowledged benefits of broadband deployment (including economic growth and corresponding tax revenues that stem from a networked infrastructure), it is indeed ironic that governments should act so contrary to the public interest by holding up this critical deployment for additional up-front profits.NTIA should be commended for its continued “support for removing obstacles to broadband deployment.”[22]And at this moment, the agency has a real opportunity – with powerful momentum in the Administration, Congress and the public at large – to take concrete action.

Global Crossing urges NTIA to develop and set forth Administration principles to address the obstacles to widespread, accelerated broadband deployment.Global Crossing, together with other leaders in the telecommunications industry, have developed a series of fundamental principles, gleaned from years of deployment experience that are basic to the establishment of effective regulations and legislation in this area.[23]Once NTIA develops a policy, the Administration should follow up by actively encouraging Section 253 reform legislation to address regulatory and fee-based obstacles to deployment.

At a minimum, NTIA should take a leadership role within the federal government and assist in the establishment of a central clearinghouse for all federal agency action that affects broadband deployment and access to public lands and rights-of-way.NTIA’s expertise in devising a unified approach that best serves the objectives of national broadband deployment is needed at the table when other agencies establish policies and rules that assist – or hinder – the deployment of the U.S. broadband infrastructure.

CONCLUSION

Global Crossing respectfully requests that NTIA take action to establish a federal broadband infrastructure deployment policy to eliminate the barriers that exist to the deployment of multiple, competing high-speed networks.The agency should act to implement this policy through its regulatory power, by ensuring coordination of the federal government’s policies affecting broadband deployment, and through support for Section 253 reform legislation.NTIA now has the opportunity to shape the future of broadband deployment and ensure that the goals of the Telecommunications Act of 1996 – “promot[ing] competition and reduc[ing] regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies”[24] – are achieved.

Respectfully submitted,

GLOBAL CROSSING LTD.

By:___/s/Martin L.. Stern____

Michael FreedmanMartin L. Stern

Director, Government RelationsDaniel Ritter

Global Crossing Ltd.Lisa L. Friedlander

360 N. Crescent DrivePreston Gates Ellis & Rouvelas Meeds LLP

Beverly Hills, CA 90210-48021735 New York Avenue, N.W.

(310) 385-5200Suite 500

Washington, D.C.20006

(202) 628-1700

Attorneys for Global Crossing Ltd.

Dated: December 19, 2001



[1] Notice, Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications, National Telecommunications and Information Administration, 66 Fed. Reg. 57941 (November 19, 2001) (“Notice”).See also Correction, Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications, 66 Fed. Reg. 59050 (November 26, 2001) (correcting the comment filing date to December 19, 2001).
[2] Notice at 57941.
[3] Id. at 57942.
[4] See Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996).
[5] In connection with the Federal Communications Commission’s (“FCC”) annual Section 706 Notice of Inquiry on Broadband Deployment, Global Crossing and others in the telecommunications industry, including Adelphia Business Solutions, Inc., The Telecommunications Right-of-Way Coalition, Qwest Communications International, Inc., AT&T, Global Photon Systems, Inc., Metromedia Fiber Network Services, Inc., SBC Communications Inc., Velocita, and Verizon filed comments chronicling the serious abuses by federal, state and local authorities controlling public lands and rights-of-way, and advocating the enactment of legislation and/or regulations to curtail this misconduct in order to promote the rapid, efficient deployment of advanced telecommunications facilities.These comments are available on-line at the FCC website, www.fcc.gov/e-file/edfs.html, in CC Docket No. 98-146.Global Crossing’s comments in the Section 706 proceeding are attached hereto as Exhibit A, and are incorporated herein by reference.
[6] Notice at 57941.
[7] See Executive Order No. 13010 (July 15, 1996).
[8] See Cybersecurity Czar Pushes for More Spending on IT Protection, Computerworld, p. 12 (November 12, 2001) (newly appointed Chairman of President Bush’s Critical Infrastructure Protection Board Richard Clarke urges more spending on IT infrastructure and security); See also President’s Commission on Critical Infrastructure Protection: “information and communications infrastructure hav[e] become vital to every critical economic, social, and military activity in the nation.” Critical Foundations Protecting America’s Infrastructures, The Report of the President’s Commission on Critical Infrastructure Protection at App. A-8 (Oct. 1997).Available at http://www.ciao.gov/PCCIP/report_index.htm.
[9] See, e.g., Letter from Senators John Breaux and Trent Lott to John D. Graham, Administrator White House Office of Management and Budget, dated November 15, 2001 (discussing broadband policy in the context of proposedNational Oceanic and Atmospheric Administration (NOAA) fees for undersea submarine cable access); Letter from Senators John Breaux and Trent Lott to Nancy J. Victory, Administrator National Telecommunications and Information Administration, dated November 15, 2001, (same), (hereinafter “Breaux and Lott Letters”) attached hereto as Exhibit B.
[10] Remarks of Michael K. Powell, Chairman Federal Communications Commission, National Summit on Broadband Deployment, Washington, D.C. (October 25, 2001).
[12] Speech by Nancy J. Victory, Assistant Secretary for Communications and Information U.S. Department of Commerce, National Summit on Broadband Deployment, Washington, D.C. (October 25, 2001).
[13] See Exhibit A, and comments referenced in n.5, supra, available in CC Docket No. 98-146 at www.fcc.gov/e-file/edfs.html.
[14] Speech by Bruce P. Mehlman, Assistant Secretary for Technology Policy U.S. Department of Commerce, National Summit on Broadband Deployment, Washington, D.C. (October 26, 2001)(emphasis added).
[15] Litigation with government entities is not a real option because, even if efforts were successful, litigation is costly, time-consuming and only adds to the uncertainty associated with deploying next-generation telecommunications networks.As a result, deployment is often delayed, and at times abandoned; the result is increased costs to telecommunications providers, and ultimately to American consumers.
[16] Remarks of Kevin J. Martin, Commissioner Federal Communications Commission, National Summit on Broadband Deployment, Washington, D.C. (October 26, 2001).
[17] Speech by Bruce P. Mehlman, Assistant Secretary for Technology Policy U.S. Department of Commerce, National Summit on Broadband Deployment, Washington, D.C. (October 26, 2001).
[19] See Exhibit B.Therefore, at a minimum, NTIA should seek to coordinate a unified Administration policy on federal agency actions affecting broadband deployment.
[20] Notice of Proposed Rulemaking and Notice of Inquiry and Third Further Notice of Proposed Rulemaking, Matter of Promotion of Competitive Networks in Local Telecommunications Market; Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, FCC 99-141, WT Docket No. 99-217, CC Docket No. 96-98, ¶ 4 (rel. July 7, 1999).
[21] Remarks of Michael K. Powell, Chairman Federal Communications Commission, Press Conference, Washington, D.C. (Oct. 23, 2001).
[22] Notice at 57941.
[23] See Exhibit C, attached hereto.
[24] See § 706(b) of the Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56 (1996).