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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