What's W-R-O-N-G with R-O-W...

Dave Reinke
APWA-InfoLink Project Manager

"Terroristic activity"..."street wreckers"... to hear public works people talk, you'd think there was a war going on. And while it might be too simple to pit the battle in terms of hard-working municipalities versus the empire of dark fiber, considerable tensions exist between those tasked with the preservation and maintenance of public thoroughfares and those whose goal is to connect as many people to as much bandwidth, often in the form of fiber-optic cable, in the shortest time. Last year a record 311,000 miles of roads were trenched by the telecom industry; San Diego alone had 2,477 different locations of street repairs, resurfacing, or trenching occurring at one time; and a single large telecom company had to obtain nearly 53,000 permits for its worldwide network of 21,000 miles.

The 1996 Telecommunications Act opened the road for increased competition, but did more than that. Whether the public consumer benefits from the competitive pricing aspects of the bill remains to be seen, but its impact can be felt today beneath the tires of vehicles across the country, and managers are struggling to keep up.

An article in the State Journal-Register, Springfield, Illinois, notes the city's decision to hire a consultant to examine right-of-way (R-O-W) impact. "As more and more of the city gets wired for high-speed Internet or other telecommunication services, more and more companies are seeking permission to rip up the city's right-of-way...when the companies patch the resulting holes, the work is not up to the same standard as the original road or sidewalk. 'It's kind of like a car that's had an accident,' [the consultant] said. 'The body shop can make it look OK on the outside, but it's not going to be worth as much as the same car that hadn't been in an accident.' The study will attempt to calculate the real cost to the city, in terms of extra repairs or a reduced life span for a road, when right-of-way is dismantled to bury lines."

San Diego did the same, as reported in the San Diego Union Tribune. "To bolster its case for imposing fees, San Diego hired consultants to study the long-term effects of trenching. The recently finished report is to be presented to the City Council this summer. Considering factors such as the road's condition, age, and the number and size of trenches beneath it, the consultants used a machine to drop weights around trenches to measure how well the road handled the impact. The life span of trenched roads diminished by up to 54 percent, consultants found. The study also estimated the city pays about $6.5 million a year-nearly as much as the street maintenance budget for 2001-to pay for street damage by utility and telecommunications companies."

Many communities are attempting to enact ordinances to help control the cuts. An article in the Atlanta Journal Constitution sites a new law that "encourages telecommunication companies racing to build their fiber-optic network for high-speed Internet and other services to coordinate their construction schedules with the city. The hope is that companies will work together, possibly hiring one contractor to install the plastic conduit so the same street isn't cut open again and again. Along with the new law, the city has a new public works handbook that tells contractors how to put the roads and sidewalks back together when they're done. Until now, companies have done the bare minimum, often leaving steel plates for months. When they do repave, it's with material that won't last and, in the case of sidewalks, doesn't match what was there. The new regulations would require companies to remove the plates within three days, and put the rights-of-way back the way they were found."

But even as cities make efforts to demonstrate and mitigate the extent of the siege, some companies are attacking on the legislative as well as the "Ditch-Witch" front. An article in Nation's Cities Weekly cites one telecom carrier's efforts to prevail legislatively. "Qwest Communications International Inc., the broadband Internet communications company, continued its efforts to litigate against municipalities that attempt to properly manage their public rights-of-way. Citing the 1996 Telecommunications Act's prohibition on local governments erecting barriers to entering telecommunication service markets, a federal district court upheld Qwest's most recent challenge against a city. The City of Berkeley's telecommunications ordinance was struck down and the company forced the city to promptly issue construction permits needed by Qwest. The ordinance, which required non-cost-based fees, reporting requirements, application fees and regulation of Qwest's business, was struck down in its entirety. Qwest filed the lawsuit because the city did not grant Qwest access to public streets to install equipment to provide advanced communications services to customers in the area."

On the other side of the country in a separate case, the U.S. Court of Appeals for the 11th Circuit ruled that some parts of local ordinances of the cities of Palm Beach and Coral Springs were in violation of state law, but that sections of the Telecommunications Act of 1996 do provide a "safe harbor" in instances of municipal regulation of the public right-of-way. And in Missouri, the governor is currently deciding his action on a state bill that prohibits municipalities from requiring franchise or licensing fees from telecom carriers.

Whether or not cities are able to collect the revenue from telecom trenchers, the cuts must be managed. Just as the pavement itself is undermined by excessive trenching, the people planning its defense are overwhelmed by the volume of activity. How can an Operations Manager or Right-of-Way Manager stay in control of activity on his or her streets? APWA and IZOIC held a meeting in Denver of Right-of-Way professionals from five communities to form a "Strike Team" to discuss these challenges, and the type of software that could help make a difference. Development is currently underway for an application that will be available on www.apwa-infolink.com to address the specific challenges of managing who is doing what, and where. As work progresses more information will be available, but if you would like to provide input feel free to contact me with any desired features, ideas, or suggestions.

For more information on any aspect of APWA-InfoLink, contact Dave Reinke at 202-408-9541, or dreinke@apwa.net..