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
I.Broadband
Deployment Has Become the Central Communications PolicyObjective
in America
III.NTIA
Should Act Now To Encourage Rapid Deployment of BroadbandInfrastructure
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]
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.
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. 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.
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.
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
DISCUSSION
I. Broadband
Deployment Has Become the Central Communications Policy Objective in America
II. Government
Rights-of-Way and Public Lands Practices Act as Significant Barriers to
the Deployment of Broadband Telecommunications Networks
III. NTIA
Should Act Now To Encourage Rapid Deployment of Broadband Infrastructure
CONCLUSION