IP: Can They Dig It?

[David Farber <dave@farber.net>]

>>From: "Robert J. Berger" <rberger@ultradevices.com>
>>To: Dewayne Hendricks <dewayne@warpspeed.com>
>>Subject: Can They Dig It?
>>Date: Mon, 23 Jul 2001 13:32:41 -0700
>>MIME-Version: 1.0
>>
>>Can They Dig It?
>>By Kate Gerwig, tele.com Mar 19, 2001 (12:03 PM)
>>URL: http://www.teledotcom.com/article/TEL20010319S0026
>>
>>AT&T ran into an unexpected right-of-way issue of its own making when it
>>prepared to lay its next-generation broadband network in the Western
>>United States. The trouble came in the form of old coaxial cable that
>>the company had laid in the 1940s; despite its current uselessness, the
>>cable had been deemed a "historic landmark." The only answer for AT&T
>>was to engineer around its own infrastructure to lay the new fiber,
>>gaining completely new rights of way. This peculiar situation is one of
>>hundreds that arise when service providers attempt to secure rights of
>>way for new networks. All these providers face what can be universally
>>dubbed the put-up-or-shut-up syndrome. For carriers laying new long-haul
>>and metropolitan-area networks (MANs), gaining rights of way requires
>>piles of federal, state and municipal red tape that won't change-and
>>could actually get worse-in coming years. So in the modern-day Oklahoma
>>land rush that resulted from the Telecommunications Act of 1996, dozens
>>of companies have been forced to turn their old-school "right-of-way"
>>teams into slick negotiating machines to secure permits to federal land,
>>farms, state highways, rivers, historic districts and crowded downtown
>>streets.
>>
>>This ever-increasing bureaucracy is not without purpose. Government
>>bodies found they had to do something to protect their infrastructure
>>from the rapidly multiplying miles of new fiber laid since the act was
>>passed. In the 21 years from 1980 through 2000, 85 million miles of
>>fiber were installed in the United States, according to KMI Corp.
>>(Newport, R.I.). More than two-thirds of that was installed since 1996,
>>with a full 33 million fiber miles coming in 2000 alone.
>>
>>As a result, building a new network to bring broadband to the masses
>>isn't nearly as simple or romantic as putting a plow down in wide-open
>>spaces and laying fiber along the most direct route. The rule of thumb
>>these days is that building a network requires about one permit per
>>mile-from a private landowner or a government body-before the backhoes
>>dig in. It can mean taking a roundabout route to avoid Native American
>>tepee rings in Wyoming or bypassing a downtown street that a city has
>>closed off to new fiber builds. It's not cheap, either. While
>>right-of-way permits once accounted for about 10 percent of the cost of
>>a new network, that number is now closer to 20 percent.
>>
>>The increasing complexity has put huge responsibilities on right-of-way
>>teams, so much so that permit management has become a specialty, with
>>many professionals leaving gas and oil pipeline projects to negotiate
>>telecom access instead. "If you haven't built any network in the last
>>five years, it's an eye-opening experience to see how exponentially more
>>difficult it's become," says Greg Floerke, senior vice president of
>>engineering and construction at Williams Communications Group Inc.
>>(Tulsa, Okla.), which completed a 33,000 linear-mile fiber network build
>>in December. At the height of its build, Williams had 400 agents in the
>>field to negotiate a total of 31,000 right-of-way agreements and apply
>>for 10,000 licenses and permits from various government agencies and
>>landowners.
>>
>>The one thing that remains constant is that these seemingly overwhelming
>>rules and regulations aren't going away anytime soon. In fact, they're
>>proliferating. The only answer for service providers looking to build
>>out networks is to budget for the cost of settling these deals, allot
>>the time to do so and, most importantly, master the finesse it takes to
>>negotiate. These negotiations range from civilized government contracts
>>to crafty relationships with distrusting, shotgun-wielding private
>>landowners.
>>
>>The Rules, They Are A-Changin'
>>
>>It was easier in the old days. AT&T had the right of way to lay its
>>long-distance network wherever it needed to go, and local telephone
>>companies worked with municipalities to make sure their copper wire
>>reached every business and residence. It was in the government's
>>interest to enable the expansion of networks to every part of the
>>country. But now as many as 15 other providers are working on long-haul
>>builds, with dozens more building in metro areas. Every company has to
>>secure its own permits, and each contract has its own pressure points.
>>On federal land, construction crews agree to hand-carry endangered
>>species away from equipment to safety, for example. Providers must do
>>environmental impact studies on bird nesting patterns, then wait for
>>months until nesting season is over before digging can begin. But even
>>less dependable than mating birds can be private landowners, who have
>>been known to do things like protest fiber carrying Internet pornography
>>across their fields.
>>Clearly the largest amount of mind-numbing red tape has emerged for
>>carriers laying fiber in metropolitan areas. Ordinances governing access
>>to city rights of way are as numerous as the municipalities themselves,
>>particularly since the Telecom Act mandated equal access to public
>>infrastructure. And the overwhelming number of companies wanting to
>>build under city streets has prompted many municipalities to pass new
>>ordinances for the first time in 100 years.
>>
>>In theory, the act makes gaining access to public infrastructure simple.
>>Municipalities are required to provide access in a nondiscriminatory
>>fashion and charge reasonable costs. But many municipalities say they're
>>literally running out of room under their streets and on utility poles.
>>"It's incredible how much underground plant is already there in cities
>>like Boston and New York," says Steve Allen, the AT&T division manager
>>who oversees
>>fiber optic cable installations.
>>
>>Given all the fiber being built, municipalities are concerned about the
>>long-term damage to their roads as well as the congestion caused by
>>multiple projects. Service providers maintain that cities benefit from
>>updated telecom infrastructure. And city fathers usually agree, but not
>>at the risk of destroying their more traditional infrastructure. The
>>first time a new street is cut, according to the so-called "San
>>Francisco rule," its life expectancy is halved. Every following cut
>>halves it again. And cities are understandably concerned that taxpayers
>>could end up footing the bill for dozens of digs. In addition, too much
>>infrastructure leads to high-profile accidents-like the gas line in
>>Minneapolis that bore through a city sewer line, causing a residence to
>>blow up when a plumber tried to clear blockage.
>>
>>As a result, depending on the city, local governments have been known to
>>request carriers to do everything from replacing entire roads after a
>>project to finding other service providers laying the same route and
>>coordinate buildout.
>>
>>Washington, D.C., drew the ire of service providers early last year when
>>its mayor imposed a moratorium on laying fiber under the streets. The
>>moratorium was finally lifted last April, and the city implemented a new
>>set of rules limiting digs on certain streets to only once or twice
>>every five years. Providers must decide whether to spend their capital
>>budgets years earlier than they expected so they don't miss the window
>>of opportunity on a certain route. "We want to minimize the number of
>>cuts and the disruption they cause," says Bill Rice, a spokesman for the
>>D.C. Department of Public Works. "The repairs have to be as durable and
>>long-lasting as possible." To do that, providers must file their plans
>>with the city two years ahead of time and share buildouts with other
>>companies. The city is also limiting the times of day providers can
>>work, requiring faster final street repairs and mandating that providers
>>repave an entire lane rather than just the trench down the middle of a
>>street.
>>
>>Under its new rules, Washington, D.C., will take in $30 million in
>>right-of-way fees for all types of services this year, not just
>>telecommunications, Rice says. Underground installation in the right of
>>way costs 88 cents per linear foot. Aerial installations on poles costs
>>$1.32 per foot, and repairs are in excess of that amount. Most providers
>>don't argue about the per-foot costs or the street repair issues, and
>>the ones that do are fighting a losing battle, since municipalities can
>>withhold licenses.
>>
>>Other cities are beginning to work with each other to adopt best
>>practices. "Our old ordinance hadn't been revised since the turn of the
>>century," says Dennis Morris, right-of-way supervisor at the Minneapolis
>>Department of Public Works. Minneapolis developed a draft ordinance for
>>the state's public utility commission (PUC) and league of cities two
>>years ago in the hope that it would become a model for other
>>municipalities. But again, it's not a statewide mandate.
>>
>>Minneapolis based its new right-of-way fees on one-time per-linear-foot
>>installation costs and follow-up street repairs. "Even with the new
>>regulations, it's horrendously complicated," Morris says. "Some streets
>>are reaching maximum capacity." As a result, Minneapolis, like many
>>other cities, is requiring joint builds among providers that share
>>trenches and costs. "Everybody's upset that they have to wait. I've
>>never met anybody that didn't want to get in yesterday," he adds.
>>
>>A new ordinance will take effect in Houston later this month to bring
>>order to the influx of companies cutting its streets. When drilling the
>>streets, some providers with Houston permits haven't bothered with the
>>standard "diamond saw cuts," which prevent cracks from radiating out
>>from the construction site through the rest of the street. "We've had
>>hair-raising experiences," says Herbert Lum, a planning and programming
>>engineer with Houston's Public Works Department.
>>
>>For service providers, this all means understanding the various laws in
>>time to carefully plan network buildout. But some newer competitive
>>providers say it's not easy for them to operate within the system,
>>claiming that municipalities impose more onerous regulations on them
>>than on the incumbents, with which the municipalities have worked for a
>>long time. The Association for Local Telecommunications Services (ALTS,
>>Washington, D.C.) has joined City Signal Fiber Services Inc. (Richmond,
>>Va.) in petitioning the Federal Communications Commission (FCC) to
>>preempt municipalities in providing nondiscriminatory access to their
>>infrastructure, as is required by law. City Signal cites discrimination
>>in three municipalities in Ohio, where it says cities are dragging their
>>feet on issuing permits. "We've asked the FCC to rule on this in an
>>expedited manner," says ALTS regulatory attorney Teresa Gaugler. But the
>>ALTS has no indication of where new FCC chairman Michael Powell stands
>>on the right-of-way issues. "This could go on for years," she says.
>>"Even if the FCC ruled in our favor, the municipalities would appeal
>>it."
>>
>>Service providers would like nothing better than one minimalist national
>>standard to work for the 30,000-plus U.S. municipalities, says Rusty
>>Monroe, president of Monroe Telecom Associates LLC (East Greenbush,
>>N.Y.), a consulting firm that helps municipalities revise their
>>right-of-way ordinances. "The FCC doesn't have the staffing or funding
>>to serve as police in so many municipalities, and that's what providers
>>want," Monroe says. "My thought is: They chose to get into this
>>business, and they knew municipal consent was required when they
>>started."
>>
>>Some states have stepped in to enforce more fair municipal rules, but
>>that isn't a surefire answer. Texas, for instance, passed laws giving
>>municipalities guidance on how much to charge for issuing right-of-way
>>permits, but these laws aren't mandates. There's no promise that the
>>process will get easier anytime soon, especially in a country where
>>personal property and state's rights are written into the Constitution.
>>The options are either fighting city hall or working with it.
>>
>>The Long of It And fighting it isn't easy when it comes to laying fiber
>>on the long haul, where carriers must face changing federal laws as well
>>as the often indiscriminate manner in which private landowners react to
>>service providers. In the long spaces between cities, federal and state
>>agencies want broadband telecom infrastructure to reach rural areas, but
>>they're not willing to ignore environmental regulations to do it.
>>Partially due to increased environmental concerns, providers say the
>>result is delays and increased costs-about 50 cents extra per linear
>>foot for rights of way.
>>
>>One of the biggest stumbling blocks when it comes to laying long-haul
>>fiber is attempting to obtain rights of way for direct routes without
>>having to detour miles off the originally planned course. AT&T, as the
>>former monopoly long-distance provider, has the most direct routes in
>>cross-country networks. And by winning one of the contracts to lay
>>AT&T's next-generation network, Velocita Corp. (Reston, Va.) is one of
>>the first providers to be able to take advantage of AT&T's rights of way
>>for laying its own fiber in the same trenches, but it still needs to get
>>permission from landowners. Even AT&T can end up going out of its way to
>>avoid state highways crowded with too much fiber from different
>>providers going along an easement, Allen says.
>>
>>Service providers that don't have the privilege of making a deal with
>>AT&T end up patching together routes using railroad rights of way, like
>>Qwest Communications International Inc. and Level 3 Communications Inc.
>>(Broomfield, Colo.), or natural gas or oil pipeline easements, like
>>Williams. Most criticize other providers' rights of way and play up the
>>inherent advantages of their own. Williams' Floerke, for example, says
>>laying fiber down the middle of a wide gas line right of way that has
>>"danger" signs posted tends to discourage farmers with plows or county
>>backhoe operators from disturbing the infrastructure.
>>
>>The trick to maneuvering long-haul buildouts for many of these providers
>>is moving on plans in a timely manner. As soon as companies design a
>>route and do some preliminary engineering, they begin securing permits
>>and determining if the original route will work. Most companies send
>>their right-of-way crews out to get the permits in place six to nine
>>months before a build is supposed to begin. These crews research land
>>titles at county courthouses and start knocking on doors to open
>>negotiations.
>>
>>On the federal land front, federal agencies have started working
>>together so that only one body takes the lead for the permitting
>>process. But it can still be a timely process, Allen says. States like
>>California and Oregon are taking an integrated approach to permitting,
>>as well as to looking at the biological, archaeological and
>>environmental impact of a dig. But those states have gained reputations
>>for being notoriously difficult, despite the integrated effort. "There
>>haven't been any improvements in permitting. In fact, it's going the
>>other way," Allen says.
>>
>>Nevertheless, it's hard to imagine that any state governing body can be
>>as difficult as entering negotiations with resistant private landowners.
>>About 85 percent of landowners are willing to open negotiations, says
>>Floerke. But some landowners hold out for more money, particularly when
>>they think the provider has no way to route around them. Here is where
>>negotiators working for carriers have to act with more finesse than a
>>secretary of state. If negotiations get too difficult or personality
>>conflicts develop between the company and the landowner, either the
>>right-of-way teams send in a new negotiator or someone farther up the
>>line handles the negotiation. In Williams' experience, 5 to 10 percent
>>of negotiations end up with the company initiating court proceedings.
>>Sometimes disagreements are settled on the courthouse steps right before
>>a judge rules on the easement's fair market value. If landowners
>>ultimately refuse to cooperate, the situation could end up in a long
>>court battle, where a judge rules on whether the service provider should
>>be able to enter the land or take another route if one exists.
>>
>>It's unclear if there is any remedy for these scenarios other than
>>federal intervention or policing. Advances in dense wavelength-division
>>multiplexing (DWDM) hold out some hope to providers that the fiber
>>they're laying now will be adequate for years to come so that they won't
>>be continually seeking new rights of way, says Allen. Last year AT&T
>>jumped from its existing 32-wavelength-per-fiber system to 64 and 80
>>wavelengths per fiber. "That has a major impact on not having to go back
>>and dig up Main Street, U.S.A.," Allen says.
>>
>>But generally, providers that find they don't have the stomach or the
>>patience for the negotiating process will find their arms tied by
>>bureaucratic red tape.
>>
>>High-Rent Telecom Municipalities have been assessing fees that sound
>>remarkably like the franchise fees cable providers pay for access to
>>public infrastructure. Telecom franchise fees are starting to have a
>>greater financial impact than the per-foot fees to dig a trench down
>>Main Street. The cities of Dearborn, Mich., and White Plains, N.Y., have
>>already passed local ordinances that create telecom franchise fees.
>>Their reasoning? As cable companies and telecom providers begin to offer
>>more of the same services-cable TV, Internet access, local and
>>long-distance dialtone-a true "level playing field," as required under
>>the Telecommunications Act of 1996, would require telecom companies to
>>pay "rent" for public infrastructure as well.
>>
>>Although AT&T's former Teleport Communications Group Inc. (TCG) business
>>services unit filed lawsuits, the courts haven't shot the municipalities
>>down. More than a year ago, Dearborn asked providers for 4 percent of
>>their systems' gross revenue as payment for providing service. A state
>>court said that while Dearborn set its telecom franchise fees too high
>>under state law, requiring a fee for access to public infrastructure
>>wasn't out of bounds. Dearborn plans to appeal the decision, and service
>>providers will fight it. "Give 20 companies 4 percent of your revenue
>>and you're out of business," says Stephen Reitano, vice president of
>>Metromedia Fiber Network Inc. (White Plains, N.Y.).
>>
>>The Association for Local Telecommunications Services (ALTS, Washington,
>>D.C.) opposes the telecom franchise fee concept on behalf of its
>>competitive provider members. Under the Telecom Act, municipalities can
>>charge cost-based fees for access to rights of way and recover the cost
>>of managing them. "But that's very different from asking for 4 or 5
>>percent of revenue," says ALTS regulatory attorney Teresa Gaugler. "This
>>problem is heightening, not getting resolved."
>>
>>Not everyone agrees. Cities that ask for franchise fees of 4 percent of
>>a company's total revenue "are nuts and they'll lose," says Rusty
>>Monroe, president of Monroe Telecom Associates LLC (East Greenbush,
>>N.Y.), a consulting firm that helps municipalities revise right-of-way
>>ordinances. But Monroe encourages municipalities to get a reasonable
>>price from providers. "Municipalities don't have an asset of greater
>>value than their rights of way," he says. Federal Communications
>>Commission (FCC) sources confirm that nothing in the Telecom Act
>>prevents state and local governments from managing their public rights
>>of way or from requiring fair and reasonable compensation from providers
>>as long as it's on a competitively neutral basis.
>>
>>Williams: Have Fiber, Will Travel Negotiating hundreds or even thousands
>>of right-of-way contracts for one network is nothing less than an art.
>>The people involved have the gift of forming a relationship with anyone
>>in order to reach a fair agreement. No one knows this fine technique
>>better than Bill Harwell, right-of-way acquisition manager for Williams
>>Communications Group Inc. (Tulsa, Okla.), and Christy Wallace, one of
>>Williams' 11 right-of-way project managers. Both helped maneuver the
>>agreements that cover every inch of the company's new 33,000-mile
>>nationwide network.
>>
>>On the first route alone-Houston to Washington, D.C., in 1998-it took
>>the Williams right-of-way teams five months to research 7,000 tracts of
>>land and get the agreements drawn up. That was only the beginning. Three
>>years of perfecting right-of-way management gave them a chance to get up
>>close and personal with a lot of people. "Just go out and talk to a
>>cross-section of 6,000 people on one route between two cities in
>>America, and you'll see and hear everything," Harwell says.
>>
>>As a Williams project manager, Wallace spent five days trekking through
>>Wyoming with Native American tribal elders and representatives from the
>>federal Bureau of Land Management to make sure the network didn't go
>>through traditional cultural areas. She even received calls while out in
>>the field when one of her landowners had a baby. "You get very attached.
>>You meet with these people a few times to negotiate the easement, so
>>either you become very good friends or you get to be enemies," Wallace
>>says. Although getting chased off private property by a farmer with a
>>shotgun is rare, right-of-way teams spend a lot of time explaining what
>>they want to put in the ground. "A lot of people don't know a fiber
>>network transmits light, and they're afraid some kind of electrical
>>spark from the fiber will jump over to the pipeline and cause an
>>explosion," Wallace says. Her team carried fiber optic cable with them
>>for demonstrations.
>>
>>Williams' build ended Dec. 31, 2000, leaving the right-of-way team with
>>a case of post-build depression after what Harwell calls a three-year
>>"adrenaline rush." Not that Williams' need for new rights of way is
>>completely over. Some sort of build is always going on in a network, but
>>the chance to be up close and personal with a brand new long-haul
>>network is rare. And since its right-of-way teams now function like a
>>well-oiled machine, Williams may start taking on jobs with its team as a
>>third-party contractor for other companies or as the lead company in a
>>joint build required by a municipality. "We want to keep the team
>>together at full strength and keep that competitive advantage as we
>>require incremental construction work," says Greg Floerke, senior vice
>>president of engineering and construction at Williams. That's good news
>>to Harwell and Wallace. They've got people ready and waiting to hit the
>>road.
>



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