Remarks of Assistant Secretary Victory at the FCC's Public Forum on Rights of Way Issues

Rights-of-Way Management -- A Key Piece of the Broadband Puzzle
October 16, 2002
Rights-of-Way Management --
A Key Piece of the Broadband Puzzle

Remarks by Nancy J. Victory
Assistant Secretary of Commerce for Information and Communications, and Administrator of the National Telecommunications and Information Administration

As Prepared for Delivery to the
FCC Forum on Rights-of-Way
October 16, 2002

Good Afternoon. I want to thank Chairman Powell and the FCC for convening this forum on rights-of-way. We've been fortunate to hear from many state, local, and industry rights-of-way experts today, and I'm pleased to have the opportunity to share the Administration's views with you about this important subject.

Rights-of-Way: The Low-Tech Side of Broadband Deployment

In the world of telecom policy, we have a natural human tendency to focus our attention on the hi-tech, headline-grabbing issues of the day. Whether it's broadband, the growth of WiFi services, advances in Internet Protocol telephony, or something else, we are instinctively drawn to these issues by the potential they hold for new products and services and the threats they represent to the status quo. So it's understandable that policymakers would devote time and effort to the subjects that are going to shape the future of telecom for years to come.

There is another subject, however, that is equally important, and perhaps even more important, to telecom's future. Unfortunately, it's not high-tech, it's not particularly sexy, and the press doesn't write front-page stories about it - unless something goes terribly wrong. Of course, I'm talking about rights-of-way. Rights-of-way: the term conjures up distant memories of dusty law books and arcane legal terms like easements, leaseholds, and appurtenances. Simply put, a right-of-way is the legal right to pass through property owned by another. In the telecom arena, rights-of-way is about digging trenches, laying fiber, constructing towers, submerging cables, and all of the other things necessary to build-out and upgrade the physical infrastructure for modern telecom networks.

It sounds pretty basic, doesn't it? Yet, I can think of no issue more fundamentally important to the widespread deployment of broadband, and just about any other network technology, than rights-of-way. If fully deployed, broadband, also known as high-speed Internet access, has the potential to revolutionize commerce, education, healthcare, national security, entertainment, and countless other areas for the American people. As such, broadband is a key to future economic growth for the telecom industry and the economy as a whole.

But right now, only a relatively small segment of the American population is enjoying the benefits of broadband. A report co-authored by NTIA and the Economic and Statistics Administration, titled "A Nation Online: How Americans Are Expanding Their Use of the Internet," found that 54% of Americans are using the Internet. However, of those users, only roughly 20% have broadband access (that's only about 11% of the overall population). While data from the FCC and industry sources show that the market for broadband service is continuing to grow, we still have a long way to go before realizing broadband's full potential - and rights-of-way is a key ingredient in achieving that potential.

The Administration recognizes the importance of broadband to America's future. As President Bush recently emphasized, "[i]n order to make sure the economy grows, we must bring the promise of broadband technology to millions of Americans." Just a few weeks ago, the President's Council of Advisors on Science and Technology, or PCAST, singled-out rights-of-way management as a critical component of broadband deployment. PCAST pointed out that if rights-of-way access "is unfairly denied, delayed, or burdened with unjustified costs, broadband deployment is slowed, and our citizens are deprived of access to vital communications facilities."

NTIA's Rights-of-Way Initiatives

As many of you know, NTIA has been focusing considerable attention on rights-of-way management over the last year. We conducted a broadband forum last fall and launched a broadband deployment proceeding last winter, both of which raised rights-of-way as an issue. We have participated in NARUC's rights-of-way discussions, particularly its Rights-of-Way Study Committee. NTIA has also met with representatives of the cities and their associations, such as the National Association of Telecommunications Officers and Advisors and the National League of Cities, to identify means for improving and simplifying current processes where needed, while ensuring sufficient flexibility for municipalities to best serve their citizens. 

Right now, we're taking an in-depth look at some communities to learn up-close how they handle rights-of-way management at the state and local level. Later this year or early next year, we plan to issue a rights-of-way report highlighting what we learn. 

While state and local rights-of-way policies will be crucial to widespread broadband deployment, we're also acutely aware that the federal government manages important rights-of-way over millions of acres of federal land. To make sure we're doing our part to eliminate any unnecessary impediments in this area, the Administration has formed a Federal Rights-of-Way Working Group - headed by NTIA - which includes representatives from all of the federal agencies with major rights-of-way management responsibilities. The mission of the Working Group is to develop "best practices" for federal rights-of-way management, particularly as it impacts broadband deployment. Some of the primary participants in the Working Group include:

· The U.S. Forest Service from the Department of Agriculture

· The Bureau of Land Management and the Bureau of Indian Affairs from the Department of the Interior

· The Federal Highway Administration from the Department of Transportation

· The National Oceanographic and Atmospheric Administration (NOAA) from the Department of Commerce

· The Army, Navy, and Air Force from the Department of Defense, and

· The General Services Administration (GSA)

The Working Group met for the first time in July. We have been pleasantly surprised by the enthusiasm with which the various agency participants approached the effort. This is a group excited to compare notes on rights-of-way experiences and eager to streamline and simplify the process. The Working Group has decided to focus its efforts in four basic areas:

(1) Information Collection: Broadband providers operating across multiple jurisdictions are often required to supply the same information in applications to numerous permitting authorities. The Working Group will be looking for ways to streamline and standardize applications to save time and reduce costs. 

(2) Timely Process: Broadband providers have an important need to obtain rights-of-way permits on a timely basis. Otherwise, undue delay can increase the costs of deployment and can sometimes prevent deployment altogether. The Working Group will be examining rules and procedures that help ensure timely and appropriate action on both rights-of-way applications and appeals.

(3) Fees: This is perhaps the most contentious issue in the rights-of-way debate. The nature and amount of fees charged to broadband providers vary widely across different jurisdictions. We'll be scrutinizing various fee structures, looking for approaches that are appropriate and reasonable and do not unfairly impede the deployment of broadband networks. 

(4) Remediation and Maintenance: We fully recognize that rights-of-way managers have a legitimate interest in ensuring that broadband providers take appropriate action to repair and maintain the rights-of-way that they use. We'll be looking for examples of remediation and maintenance requirements that accomplish those important objectives without placing undue burdens on broadband providers.

At the suggestion of the agencies, we invited industry representatives, both large and small, wireline and wireless, terrestrial and marine, to meet with the Working Group last month and share their points of view as to where things work well and where more attention needs to be focused. Next month, we plan to meet with state and local officials to get their point of view. We've learned that in some areas, like highway construction and maintenance, state and local actions can play an important role in the success or failure of federal rights-of-way policies. We want to ensure that federal, state, and local land managers all work together to address common challenges.

In the months ahead, the Working Group will be closely examining federal rights-of-way practices and policies, looking for ways to improve. We want to see the federal government lead by example, and create a model of cooperation that others can emulate. We plan to issue a report with our findings, as well as recommendations for how the federal government can reform its approach to rights-of-way to help bring the promise of broadband to all Americans. 

Initial Impressions - Opportunities for Progress

While there is much work ahead of us and plenty yet to learn, I wanted to close by sharing some of my initial impressions about rights-of-way with you.

First, there are legitimate arguments on both sides of the debate. On one side, the industry - everyone from Bell Operating Companies to rural carriers to CLECs to cable companies to overbuilders to wireless providers - are concerned that restrictions and fees imposed by federal, state, and local land managers on accessing public rights-of-way and tower sites might be inhibiting or at least delaying broadband network construction. On the other side, land managers at all levels of government are the stewards of public property and must ensure that rights-of-way are used appropriately. Recognizing that each side has legitimate concerns is an important step in the right direction.

Second, to make real, lasting progress, the tenor of the relationship between rights-of-way managers and the industry will need to change. Today, federal, state, and local officials sometimes view broadband providers as trespassers who should be kept out, rather than customers who should be invited in. A more responsive, customer-oriented approach to rights-of-way management is essential to removing barriers to broadband deployment. But, just as storekeepers don't permit inappropriate behavior in their stores, government officials must be allowed to place reasonable limits on broadband providers' activities. 

Finally, to move forward on rights-of-way we all need to work cooperatively. One of the great attributes of modern networks is their interconnectedness, which allows communication between individuals across the street and across the world. At the same time, this means that rights-of-way disputes can have a disproportionately adverse effect on the roll-out of regional, statewide, national, or global networks. By working with each other to address common problems, we can achieve common solutions. Your participation in today's forum is a good sign that we can indeed make progress on rights-of-way and bring the promise of broadband to all Americans.

Thanks again for inviting me to speak with you today. I'm happy to address any questions you may have.