Telecommunications
Background Guidance on Longitudinal Telecommunications Installations on Limited Access Highway Right-of-Way

December 20, 2000

Prepared by
ITS Joint Program Office

Background Guidance on
Longitudinal Telecommunications Installations
on Limited Access Highway Right-of-Way

Introduction

This document will present the key elements of the Federal Communication Commission's (FCC) decision on the Minnesota agreement and then discuss the rationale for guidelines with respect to that decision to arrive at an approach that addresses both transportation statutory and regulatory issues, as well as those issues posed by the Telecommunications Act of 1996 ("TCA"). In developing these guidelines, the staffs of the Federal Highway Administration (FHWA) and the FCC Common Carrier Bureau have worked together to understand the issues of the various statutory, regulatory, and policy frameworks.

The FHWA recognizes that there is a difference of opinion within the transportation community as to whether Section 253 of the Telecommunications Act even applies to State transportation agencies in the management of freeway right-of-way (ROW). It is the FCC's position that the Telecommunications Act does apply to States when they allow telecommunications companies access to their ROW. The definitive answer to this question will likely only be provided through the courts at some future date. In the meantime, the FCC's order stands on the record and must be considered until such time that a court would rule otherwise. Therefore, this guidance provides some assistance to states on how to deal with these issues. In the process of developing the guidance, the FCC has substantially modified its view of the State's right to manage their ROW, and equally importantly, the impact of safety in determining the use of the freeway ROW for telecommunications.

When a State decides to allow the installation of telecommunications on the freeway right-of-way (ROW) by a commercial entity that will sell telecommunications in one form or another, the State then has the added responsibility to ensure that its actions are consistent with the competition concerns addressed in section 253 of the TCA, at least according to the FCC's decision on the Minnesota petition.

In the following discussion, the FHWA opinion on the FCC's Minnesota decision, and its ramifications to States in the management of ROW and public safety and the rationale for the specific elements of the guidance will be presented.

FCC's Decision on the Minnesota Agreement

On January 5, 1998, the Minnesota Department of Transportation (MNDOT) petitioned the FCC for a ruling that the state's shared resource project is consistent with the terms of the Telecommunications Act.

(1) Minnesota's agreement provides the State's contractors, ICS/UCN LLC and Stone & Webber Engineering, with exclusive physical access to the longitudinal rights-of-way along Minnesota's interstate freeway system. In exchange for exclusive access, the contractor is to construct 1,900 miles of fiber optic transport capacity throughout the State and provide the State with a portion of that capacity. Minnesota plans to use its capacity for ITS and other public communications requirements. The Agreement contemplates the contractor operating as a carrier's carrier providing wholesale transport capacity and prohibits the contractor from offering telecommunications services directly to the public although an affiliate of the contractor may do so.

On December 23, 1999, the FCC issued its Memorandum Opinion and Order declining to find Minnesota's agreement consistent with the Telecommunications Act. The FCC concluded that Minnesota failed to demonstrate that the Agreement neither prohibits nor has the effect of prohibiting the provision of competitive telecommunications services by certain entities. Specifically, the FCC disagreed with Minnesota's assertion that the Agreement does not fall within the confines of section 253's prohibition against barriers to entry into the telecommunications market. Minnesota argued that the contractor is only an infrastructure provider and is prohibited from providing telecommunications service. Accordingly, the Agreement, Minnesota asserted, should not be viewed as service-related. However, the FCC examined whether the requirement, that is, the Agreement, impacted the provision of telecommunications service regardless of the mechanics or the nature of the actual business of the contractor. The FCC concluded that the contractor's use of its exclusive access to facilities along the freeway rights-of-way and its ability to provide retail telecommunications through an affiliate has the potential to adversely affect competitors that do not have similar access. The FCC expressed concern that the Agreement has the potential to deprive competitors of the ability to compete on a facilities basis (i.e., precluding or limiting the ability of competitors to construct their own infrastructure in an economical and convenient means similar to that provided by access to the rights-of-way). The FCC further concluded that evidence in the record indicated that the cost of using alternatives (e.g., gas, electric and oil pipeline utility rights-of-way, railroad rights-of-way, state trunk highways, resell capacity on existing networks) to the freeway rights-of-way is not competitive.

The FCC also disagreed with Minnesota's assertion that the Agreement was functionally non-exclusive because of the requirement that the contractor collocate fiber for third parties and lease or sell network capacity to telecommunications providers on a nondiscriminatory basis. The FCC stated that the problem with the former is the limited time window for collocation opportunities while the trench is open and the problem with the latter is that the record does not clearly demonstrate that the ability to lease or buy excess capacity is an adequate substitute for a telecommunications service provider constructing its own facilities.

The FCC further expressed concern that the Agreement is unclear whether Minnesota will have sufficient oversight powers over the contractor to ensure that rates charged for collocation, excess capacity, installation, and/or maintenance are fair and reasonable. The FCC speculated that the contractor could use its exclusive physical access to the freeway rights-of-way to extract monopoly profits for services provided to telecommunications service providers.

The FCC rejected Minnesota's position that the Agreement is competitively neutral because it was awarded only after a public procurement process. The FCC looked beyond the issue of whether the process was competitively neutral and examined the implications of the Agreement, that is, whether the effect of the arrangement itself is competitively neutral. The FCC concluded that the Agreement was not competitively neutral because it provided one entity exclusive physical access to the rights-of-way for a period of ten years with an option for another ten years. This restriction, the FCC asserted, is likely to disadvantage future facilities-based entrants because it forces others to use alternative rights-of-way that appear to be more costly. The FCC further stated that Minnesota had not demonstrated that there are differences in circumstances that warrant granting exclusive physical access to the freeway rights-of-way to one party.

The FCC also rejected Minnesota's assertion that the exclusive agreement is necessary to protect public safety. The FCC used a study by the National Cooperative Highway Research Project (NCHRP) to conclude that, in areas with wide rights-of-way, there is no correlation between construction work off the highway shoulder and an increase in accidents.(2) Because the Agreement requires construction work away from paved surfaces where rights-of-way are wide enough, Minnesota's safety concerns, the FCC concluded, appeared to be overstated. The FCC also surmised that the installation of fiber optic facilities has no greater safety impact than typical roadside maintenance such as removal of refuse, mowing of grass, sign maintenance and replacement, fence repair, and/or culvert construction that occur on a routine basis.

The FCC further stated that Minnesota's efforts to bring advanced services to rural areas under the Agreement did not overcome the flaws of the arrangement. The FCC stated that Minnesota had also not demonstrated that the arrangement is necessary to deploy advanced services to rural areas.

The FCC also disagreed with Minnesota that the Agreement is protected under section 253(c) which preserves the rights of State and local governments to manage their rights-of-way and to require fair and reasonable compensation from telecommunications providers, on a competitively neutral basis, for use of public rights-of-way. The FCC's authority to preempt State and local provisions determined to be anti-competitive under section 253 of the Telecommunications Act does not extend to State and local governmental actions under the auspices of rights-of-way management. 47 U.S.C. §253(c). The FCC stated that it had serious reservations whether the Agreement even constituted rights-of-way management for the purposes of section 253(c). Based on its review of the legislative history of the Telecommunications Act, the FCC concluded that Congress intended to protect States' traditional regulation of rights-of-way like issuance of construction permits regulating how and when construction is conducted on roadways and other public rights-of-way. The FCC stated that, even assuming that the Agreement constitutes protected rights-of-way management, Minnesota did not show that such management is competitively neutral and/or nondiscriminatory, that the compensation required for access is fair and reasonable, or that the Agreement provides for use of public rights-of-way on a nondiscriminatory basis.

It is important to stress that the FCC stated that its decision was limited to whether the Agreement violated section 253(a) or 253(b) and that it must consider potential issues involving the Commission's jurisdiction under section 253(c). The FCC declined to preempt Minnesota's Agreement, and instead, requested additional comment on this issue particularly concerning the practical effects of the Agreement. The FCC stated that its concerns may be mitigated depending on how the State and its contractor implement provisions of the Agreement requiring the availability of excess capacity for lease or purchase on a nondiscriminatory basis.

Rationale for Guidelines

In FHWA's opinion, the FCC's action in the Minnesota case had two practical effects:

    • It limited the States right to manage their freeway ROW.
    • It concluded that there was no significant safety hazard associated with construction on the ROW, and thus safety was not a reason to restrict access to telecommunications companies.

The first portion of the guidance deals with access to freeway right-of-way (ROW) and the three key elements of the FCC's decision: (1) the apparent limitation on the rights of States to manage their freeway ROW, (2) the assertion that installation of fiber optic cable does not constitute a hazard to public safety, and (3) the ten year exclusive arrangement is too long a time to deny other applicants access to the freeway ROW. The second portion of the guidance deals with the principles that states should consider to ensure a fair competitive telecommunications environment, as viewed by the FCC.

The first point in the guidance reasserts the States right to manage their ROW. The FHWA regulations, as cited in the guidance, requires States to deal with a broad range of issues in the exercise of their ROW management responsibilities. It was not the intent of the FCC to limit those considerations in the management of ROW. Therefore, the first statement in the guidance reiterates the States right to determine the time, place, manner, etc., of the installation of telecommunications. Since the Minnesota decision only dealt with the installation of telecommunications, the guidance statement only deals with that issue and the special issue of safety. This does not mean that safety is the only issue to be considered in ROW management. However, the guidance does suggest that there are other competition-related issues that States should consider in addition to the traditional ROW management issues defined in FHWA regulations.

Shared resource arrangements are entertained by state DOT's by the DOT to implement ITS and other public projects on their roadways. Therefore, if the State does not use "shared resource" type arrangements, the State would likely decide to construct its own fiber optic system to serve these needs. Indeed, several States have constructed telecommunications facilities along their freeway ROW using solely State resources.

Therefore, it is axiomatic that there will be telecommunications construction on the freeways of some States to provide the required services, whether it is done with the State's funds or with private funds as in a shared resource agreement. In the instance of a shared resource agreement, the issues become: 1) minimizing the impact of that construction on the safety of the traveling public and 2) allowing access in a competitively neutral and non-discriminatory fashion.

The evidence presented to the FCC in the Minnesota case did not convince the FCC that there was a safety issue regarding construction on the freeway ROW. Since the FCC has no background in highway safety, it concluded that any time construction was conducted off the roadway, but on the ROW, that there was no safety problem. This conclusion was predicated on the very wide ROW in rural Minnesota where construction could largely be done 100ft to 200 ft from the roadway in most places. The FCC relied on, arguably inappropriately, an NCHRP study as noted above.

Since safety was not a problem in the view of the FCC, the desire to foster competition in telecommunications became the major factor in its decision. Thus, its decision declared that the ten year exclusive agreement in Minnesota was an impediment to competition, since it denied other telecommunications companies access to a ROW that was a low cost approach to entering the market. Thus, other competitors might be excluded from this market just because they were not ready to install fiber when Minnesota's contractor was installing its fiber. Further, the FCC said that the ability to purchase fiber capacity from the contractor was not a substitute for owning one's own fiber.

The FCC's implementation of the Telecommunications Act's competition requirements has consistently held that companies that wish to compete in a market must have at least three options, or modes of entry, as to how they can enter the market.

    • Companies must be allowed to purchase capacity from the existing suppliers.
    • Telecommunications service providers are required to provide access to "unbundled network elements" of their facilities.
    • Companies must have the option to install and operate their own infrastructure.

As a result of this position, the FCC's decision opened the possibility that the State would be forced to allow a new competitive telecommunications company access to the freeway ROW any time a new competitor wanted to enter the market. This could lead to one construction project after another on the freeway ROW effectively taking control of the ROW away from the State.

This possibility was unacceptable to the FHWA for two reasons. First, construction on the ROW does pose a safety hazard to the traveling public from both an ingress and egress perspective as well as during actual construction. Secondly, the potential of effectively taking control of the management of the ROW away from the State is at odds with the responsibilities of the U.S. Department of Transportation See, e.g., 23 U.S.C. §§ 111 and 401.

Therefore, the FHWA embarked upon an effort to convince the FCC of the safety issues surrounding construction on the freeway ROW and to develop a set of guidelines that would:

    • Minimize the safety hazard to the public;
    • Retain control of the ROW for States; and
    • Ensure nondiscriminatory competition in the telecommunications industry with respect to access to the freeway ROW.

The FHWA was successful in convincing the FCC that there was a safety concern with construction on the freeway ROW. However, it was acknowledged that the further away from the roadway the construction is located, the less the hazard. Thus, where there are wide ROW's there should be a more liberal policy with respect to the frequency that construction can be allowed. The safety hazard caused by ingress and egress to construction sites, and later for maintenance, is recognized. However, once a State decides that telecommunications on the ROW is required for its own use, this hazard is presumably acceptable to the State. The only remaining issue becomes one of limiting the frequency of construction on the ROW. In the view of the FCC, and its decision on the Minnesota petition, it appears that once that first step is taken to allow a private telecommunications company access to the freeway ROW, the State must then ensure that such access is allowed in a competitively neutral manner. The exception is public safety considerations. Thus, safety is a reason to restrict access to the ROW rather than allowing unrestricted access every time a telecommunications company requests access.(3)

FHWA has long acknowledged that the safety hazard due to construction is a function of where the construction (i.e. equipment and people) is located with respect to the roadway.

Further, in the Minnesota case, where much of the construction for telecommunications purposes was to be done at the outer edge of a 400 ft to 500 ft ROW, it is recognized that construction perhaps 200 ft or more from the roadway is less hazardous than if adjacent to the roadway.

Therefore, it was determined that a method had to be delineated defining where safety was particularly compromised to warrant major restrictions on access.

To implement this basic approach, FHWA relied upon the existing policy defining a "clear zone" along the roadway. The clear zone concept is based upon the fundamental tenet that by removing all obstructions in the immediate vicinity of the roadway, run-off-the-road crashes could be reduced. Since run-off-the-road crashes account for about one third of freeway deaths and injuries, this is a significant safety feature of freeway design. The clear zone has been defined as a region around the roadway of sufficient width to allow 80% of vehicles that inadvertently leave the roadway to safely recover to the roadway. This definition produces a clear zone that varies as a function of the speed of the traffic, the traffic volume, and the slope of the shoulder and its surrounding terrain. As a result of this definition, the clear zone varies in width along freeways. Although it is generally agreed that a clear zone is desirable, it is not always feasible to build roadways with enough surrounding land to implement the clear zone as defined. However, the clear zone concept has been codified in FHWA policy and is recognized by State transportation officials. The clear zone requirements for design of freeways were published in the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide and adopted by FHWA in 1976 as part of the Federal-Aid Policy Guide Par. 16.(a)(3) NS 23CFR 625.

Therefore, these guidelines use the clear zone as the demarcation point for defining the safety guidelines for shared resource projects and how frequently States should allow construction for telecommunications. However, these guidelines only apply if a State decides to allow a private telecommunications company access to its ROW for the purpose of providing telecommunications capacity/service to the marketplace. A private contractor installing fiber solely for the use by a State is not faced with the issues of the TCA, and therefore, not subject to these guidelines.

Further, it is recognized that States are free to implement the FHWA clear zone policy in a variety of ways, e.g., some states have implemented a constant width to define the clear zone as opposed to the variable defined in the Roadside Design Guide.

The clear zone concept was employed to define an unacceptable level of safety risk and the restriction of access to the freeway ROW.

Therefore, when fiber optic construction is done where equipment and/or personnel are located inside the clear zone, this is deemed to be an unsafe condition and a State may restrict how often such construction can be performed. FHWA suggests that this type of construction be allowed once, and not allowed again until there is an overriding need on the part of the State; such as the equipment life span has been exceeded and needs to be replaced, or if the spare capacity installed is exhausted. However, since States have the ultimate responsibility to manage their ROW, they could, of course, decide to open the ROW more often depending on specific circumstances (e.g., States determine that safety is not adversely impacted by multiple accesses to the ROW in the clear zone).

The FCC has acknowledged that a State has the right to totally deny access on the basis of safety if the construction is done close to the roadway near the shoulder or the median strip (i.e. the clear zone).

Whereas, if construction equipment/personnel can be located outside the clear zone, then construction to install fiber optic equipment could be performed as often as necessary to satisfy the needs of the state and the telecommunications industry.

This means that, where construction can be conducted outside the clear zone, other telecommunications companies can request access to the ROW after the initial installation of fiber is completed as part of a shared resource project. Thus, once a State opens its ROW to the private sector, and construction is far from the roadway, it should consider other telecommunications companies requests for installations in this same area. However, the exact timing and construction requirements are under the control of the State.

This does not mean that States have to grant access as soon as a company requests access. Depending upon circumstances, States may restrict another construction for some number of years if they choose. This is solely the decision of the State. The only guidance available on how long access can be precluded after an initial opening period has closed comes from the Minnesota decision. In that decision, the FCC said 10 years is too long and thus might be anti-competitive. There is no clear or bright line answer as to how long a State can preclude access to the ROW after an initial opening period has closed. The competitive environment is different among regions and thus, what is reasonable is different.

The term "major segment" was deliberately not defined in the guidance. The length of a "major segment" is a variable depending on local conditions. Thus, it is necessary that States have some latitude in executing these guidelines. The FHWA and the FCC are relying on the commonly accepted definition in the industry and the judgement and good faith of States in defining major segments of freeway.

The footnote in the guidance allowing occasional incursions into the clear zone when the construction is predominantly outside the clear zone responds to the variability in the width of the clear zone as defined in the Roadside Design Guide. That is, construction that is normally proceeding outside the clear zone suddenly approaches an area of the ROW where the slope of the terrain changes dramatically and, for example, the clear zone is now 60 ft wide verses the normal 30 ft. This may persist for 100ft or 500ft and then return to the previous terrain slope and clear zone width. Another instance when construction is proceeding outside the clear zone is when, for example, an overpass is approached. Construction may encroach into the clear zone to pass through, over, or around the overpass, and then continue outside the clear zone. When construction takes place inside the clear zone, there are unique guidelines regarding what contractors should install, i.e. spare conduit/fiber to assure competitive neutrality. The footnote allows the construction to be conducted inside the clear zone for short distances to get around these unique terrain features without, for example, requiring the contractor to install extra conduit/fiber for such a short distance. This is merely an acknowledgment on the part of the FCC that these guidelines are not absolutes and will be determined to a degree by local conditions.

It is recognized that in many areas, particularly in urban areas, the ROW is not wide enough to permit the full implementation of the clear zone policy. This means that in those areas only one installation might be permitted by the State. That is, the State has the right to deny applications from telecommunications companies that wish to install fiber in these regions even though they have allowed one telecommunications company to install its fiber as part of a shared resource agreement.

In many States, freeways outside metropolitan areas have ROW's that are wide enough to fully implement the clear zone policy. It is these areas where the construction is done at the far edge of the wide ROW, States may decide to accept requests of telecommunications companies wishing to install fiber. Thus, States may allow multiple installations between two populated areas, but not in those populated areas. This is why the installation in restricted areas should have access points at the intersection of the restricted area and the area where multiple contractors could presumably install their own fiber. This provides a means for these telecommunications companies to serve the population centers using a combination of their own facilities and some leased from the contractor who most likely has installed spare capacity because construction was done inside the clear zone.

To implement this guidance, it is not necessary that states undertake to determine the boundaries of the clear zone along all their freeways. It has been assumed that the states existing geographic data on the ROW will allow a reasonable determination of where construction can take place in or out of the clear zone for most of the freeway system. This information becomes essential to the implementation of the guidance.

This basic approach provides guidance on two of the three issues defined above: (1) minimizing the safety hazard, and (2) the State's control of the ROW.

The third issue that must be addressed is ensuring non-discriminatory competition in telecommunication with respect to access to freeway ROW.

The fundamental assumption underlying this discussion assumes that the freeway ROW is a very cost effective ROW for the installation of fiber optic cable; perhaps the least expensive ROW available in the area. Therefore, when a telecommunications company is allowed to use this ROW to install its infrastructure, there is arguably a competitive advantage that has been gained over other telecommunications companies. Even though this advantage may have been gained through an open competition, the FCC has determined that this may have the effect of eliminating or deterring other telecommunications providers from providing service to the area because they cannot effectively compete with the low investment costs allowed the winning contractor. Thus, in reading the FCC's decision on the Minnesota petition, any exclusivity granted to the successful developer may have the effect of restraining competition.

To remedy this potential competitive advantage, the State should consider requiring the winning contractor to meet the following criteria.

First, the contractor should be required to install a third party's fiber when it is installing its own fiber in any area where safety concerns would limit the opportunity to install fiber in the future, for example, in areas where the construction may take place only once because it is inside the clear zone. Because this is a one time installation, States should provide reasonable notice to allow other competitors the opportunity to have their fiber installed. It can be assumed that the open solicitation by the State for a developer would provide adequate notice to the industry if the solicitation defines when construction is expected to begin. The presumption here is that the States procurement process will allow many months between the solicitation and the beginning of construction. Further, States should make an effort to inform the telecommunications industry when this construction will take place. This may mean contacting associations familiar to the telecommunications industry. Potential interested third parties would include, for example, incumbent local exchange carriers, competitive local exchange carriers, and interexchange carriers operating or seeking authority to operate in the State. The guidelines make clear that the State's contractor can charge the third party a fair and reasonable price, including profit, for installation of third party's fiber/conduit.

In addition, wherever construction is inside the clear zone the contractor should be required to provide excess capacity in its installation in the form of excess fiber and/or conduit, that would accommodate reasonably anticipated future demand. This is a means of providing other companies access to telecommunications infrastructure. The guidelines suggest preference for a wholesaler of telecommunications as opposed to a retail telecommunications service provider, who sells telecommunications services to the public. The contractor can then sell its excess capacity, that is lease the fiber to telecommunications service providers, at reasonable rates and under non-discriminatory terms and conditions. In addition, the contractor should be required to sell fiber on an "Irrevocable Right of Use" (IRU) basis. This means third parties should be able to purchase fiber and take ownership, not just lease fiber. This serves the mode of entry provision allowing a competitor to own his facilities.

The guidance specifically does not address what is done when the fiber installed within the clear zone has reached capacity and a request for service is received. Of course, another installation is a possibility. However, assuming technology continues to improve, replacing existing electronics, or even fiber, to gain additional capacity from the existing physical installation is another option that could avoid additional construction on the right-of-way. The FHWA recommends that additional construction inside the clear zone be avoided if possible.

Companies that sell fiber to telecommunications service providers as their sole business are the most desirable contractors. This is to avoid allegations or concerns regarding a contractor that is a service provider protecting its competitive position through pricing to its competitors. However, if the contractor is a service provider, the State should ensure that the contractor deals fairly with its competitors in pricing facilities offered to competitors. An approach that can be used for this purpose it to require of the contractor that the rates, terms and conditions for its own retail service should not be considered in determining fair and reasonable rates, terms and conditions for competitors, but should be considered in determining whether competitors are treated in a nondiscriminatory manner. This approach avoids the classic "price squeeze" situation where a contractor increases the cost it charges its own retail arm to justify higher charges to its competitors. Thus, the rates charged its own retail entity shouldn't be used to determine "fair" rates to be charged its competitors. Conversely, if the contractor charges very low rates to its own retail entity to gain a competitive advantage, then using the contractor's internal rates to determine if there is discrimination will force the contractor to avoid this approach because it would have to provide those low rates to its competitors to avoid a charge of discrimination.

The guidelines further suggest that the State may want to use a third party such as a public utility commission or independent arbitrator that has no interest in the project to review third party concerns regarding treatment by the State's contractor. However, whether or not to implement such a practice is solely at the State's discretion.

Wherever the contractor installs fiber outside the clear zone, the requirements to install excess capacity and third party fiber do not apply, since it maybe possible for third parties to install their own fiber at a later date. However, this does not mean that the contractor is prohibited from installing third party fiber or additional fiber/conduit to allow for future demand when the installation is outside the clear zone. In fact, this would be most the most desirable approach in order to postpone or preclude future installations on the ROW.

Even if the contractor were a wholesaler (i.e. sells to telecommunications service providers) of telecommunications, and installed excess fiber and/or conduit outside the clear zone, to meet the market demands for the foreseeable future, other potential competitors could still request access to the ROW to install their own fiber. However, this scenario is less likely if the developer is in the business of supplying telecommunications capacity to retail competitors. Thus, having the contractor be a wholesaler is preferable because it might lessen the likelihood that additional construction would take place on the ROW. This is further support for the State to publicize its intent to open the ROW for fiber. A normal practice in the telecommunications industry is for competitors to share the cost of major infrastructure investments. The more competitors that can install their fiber in the ground while the trench is open, the less likely that the State will be requested to open the ROW again, thus minimizing safety impacts and disruptions to the operational efficiency of the roadway.

Even though a contractor may install fiber outside the clear zone, the requirements for fair pricing etc., should still apply.

Conclusion

The discussion above is aimed at providing some understanding of the rationale behind the recommendations in the accompanying guidance.

Again, there are approaches to these shared resource agreements other than the recommendations defined in the guidance that can be consistent with the requirements of the Telecommunications Act.

States must decide the scenario that best fits their needs and the competitive environment that exists in the area.

Footnotes

  • See, FCC Mem. Op. and Order, 99-402. Top
  • According to the authors, the statistical sample used in the NCHRP study was too small to support such a conclusion. Accordingly, the basis for the FCC's conclusions regarding safety might be problematic. See, Letter from James Migletz, Vice President, Graham-Migletz Enterprises, Inc. to Rudy Umbs, Federal Highway Administration, regarding Review and Interpretation of Traffic Accident Statistics and Statements in FCC 99-402 (January 25, 2000). Mr. Migletz, the lead investigator for the project states "[w]hile it is true that fiber optic installation occurs on the roadside like other typical roadside work, it cannot be stated that fiber optic installation has no greater safety impact than other roadside work. Work zones involving fiber optic installation were not studied [under the project relevant to this matter.] I do not know enough information about fiber optic installation activities to form an opinion about the safety impacts of these activities." Top
  • The FCC decision on the Minnesota petition did not address whether the operational efficiency, environmental factors, or other factors involving ROW management under FHWA regulations should also be a factor in controlling access to the ROW, and therefore, are not discussed here. Top

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