Broadband Build-Out from a Planner's Perspective: Why Local Communities Should Continue to Manage Local Rights-of-Way

If you believe people should have a say about what gets built where in their communities, you should be weighing in on the Federal Communication Commission's recently announced intention to review management of public rights-of-way. Unfortunately, this issue gets bogged down in discussion of some of the driest and most technical topics in governance: land use, zoning, and fee regulation. Yet the implications are anything but esoteric, since right-of-way practices have a very real and lasting impact on local communities.

Rights-of-way are easements or spot developments in parks, transportation corridors, or other public lands, often for the installation of utilities infrastructure. Currently, municipalities control use and development of rights-of-way through permitting processes, zoning ordinances, and environmental impact review processes – all of which are tools of participatory local governance designed to ensure land is used wisely and sustainably.

Yet in April of this year, the FCC announced its intention to review regulations and processes for the management of publicly-owned local rights-of-way (WC Docket No. 11-59). While the proceeding has not yet reached a rulemaking stage, the Commission is contemplating measures that would override local control and undermine locally imposed fee structures. The Commission itself would either preempt local regulations or require that they be standardized at the federal level. Those who support this move argue that it would ease difficulties and reduce expenses experienced by broadband providers in their effort to build out and expand service to under-served areas.

There are many reasons that preemption of local control over right-of-way practices would work against the public interest. Local right-of-way practices have developed over time in response to the particular needs of each community. Further, local governments have a mandate to protect the health, safety, and well-being of citizens – a mandate that may necessarily at times conflict with build-out processes designed for maximum convenience and expediency with minimum costs. Commercial developers whose decisions are guided by those same principles are also subject to local ordinances and land use regulations precisely because convenience and expediency may compromise safety or well-being, or may conflict with measures taken by communities to guide responsible development.

One of the basic and underlying facts of urban planning – and a point which was reinforced for me many times throughout my training – is that land use plans are contextually and locally specific, so creating one involves a complex process in which current and future uses are zoned with relation to each other. A land use plan is woven together out of different patterns and textures: if you pull a thread in one place, it can make a snag in another. You cannot zone for one use without considering others – nor can determinations about responsible use of any parcel be made at a distance, without detailed information about other demands on the land and existing development. Local zoning decisions cannot be made at the federal level, as it is impossible for the national government to catalog and maintain updated and complete information about competing, overlapping and non-compatible uses in each and every corner of the country.

Local governments are repositories of information about the built environment in their jurisdictions. Schematics and maps that show the capacity and location of existing infrastructure must be analyzed and considered in planning for new construction. This is necessary for safety’s sake, as insufficient planning can lead to the breaching of gas, water, or electricity lines. Broadband providers have a troubled track record in this field: Verizon's now-halted FiOS deployment, for example, brought hundreds of news reports of broken water mains, power outages, and sewer line breaches (NATOA et al, comments to the FCC on Docket No. 11-59, 7/18/11). And even beyond safety considerations, thorough technical analysis and planning can facilitate interoperability and joint trenching of infrastructure, which in the end would be much more efficient and less expensive mechanisms for encouraging broadband deployment.

Further, zoning and land use decisions cannot be made without considering transit planning. Since many rights-of-way cut through transit corridors such as roads and highways, these must be ripped up and re-laid for utility installation. If the installation of broadband infrastructure is planned, scheduled, and sited separately from other utility systems (such as water, sewer, gas, and electricity), there is greater likelihood of damage to existing infrastructure and hassles with detours, traffic management, and other problems which, in the end, must be managed by – and at the expense of – local municipalities. Use of easements or public corridors for the installation of towers without consideration of possible future transportation patterns.

Finally, not only would the preemption of local zoning and land use regulations be unwarranted, it actually represents an abuse of the participatory process that underlies local decision-making. Taxpayers own rights-of-way, and should have a say as to what happens in them. Environmental impact review processes vary from place to place – and even from scale to scale of governance in the same place – because development itself has different environmental impacts at different scales. A plan for industrial development that works on a larger scale as a job-creation program could have disastrous local environmental effects – for example, on local ecosystems or property values. The public process built into most environmental impact reviews informs decision-makers about possible local effects. Legislating from the federal level would forestall local participation and ultimately keep key information from entering the decision-making process.

For all these reasons, the benefits of the protection of local regulatory frameworks outweigh whatever inconvenience may be experienced by broadband providers as they deploy network infrastructure. In addition, evidence for the claim that preemption of local control would enable faster and better broadband expansion is rather thin, and largely anecdotal. Comments submitted to the Commission by an alliance of experts on governance at all scales (including the United States Conference of Mayors, the National League of Cities, the National Association of Counties, the Government Finance Officers Association, the International Municipal Lawyers Association, the American Public Works Association, and the International City/County Management Association, along with the National Association of Telecommunications Officers and Advisors), demonstrated there is little evidence that compliance with local right-of-way practices systematically impedes broadband deployment. Local communities have an interest in attracting the deployment of broadband infrastructure, and therefore an incentive to simplify and streamline their processes to accommodate that deployment. The alliance offers a full economic analysis of two similar regions (Oregon and Colorado), controlling for demographic and other factors, which shows that comparatively more rigorous permitting processes have had no effect in the extent of broadband build-out – and, in fact, that in Oregon (of the two, the state with a more rigorous local process) residents actually have access to more providers, more fiber, and comparable speeds.

Federal regulation of local rights-of-way would amount to a subsidy for an industry that, unlike cash-strapped municipal governments, is showing good profits. There is no reason that taxpayers should pay for big industry to shirk local requirements that are in place to ensure that development fits the needs of communities. Such an approach does not encourage broadband adoption, but rather creates tension and hostility by removing accountability from corporate entities that, given their national market presence, are unanswerable to local communities.

OTI agrees with most experts on local governance that the Commissions most appropriate role would be as the facilitator of a conversation with an intergovernmental panel – a measure that is appropriate to dealing with such a complex, multi-scalar set of regulatory frameworks. Meanwhile, planners and others who understand and are invested in land use regulation and local self-determination should write letters to the Commission.

In addition to submitted written comments via FCC's Electronic Comment Filing System, folks can submit comments on the FCC's website at: http://www.fcc.gov/rulemaking/11-59

Comments on this issue are due to the Commission by September 30, 2011.