"Who's on First (Street)-a Right-of-Way update"

Dave Reinke
Infolink Project Manager
APWA Washington office

Last August, this space looked at Right-of-Way (ROW) issues and the challenges that face officials in charge of managing the public ROW. Recent developments have included some changes in the number of cuts, who's making them, and additional legislative pressures from new directions. The job of managing public Rights-of-Way is as complicated—and important—as ever.

Last year was marked by tremendous amounts of trenching as telecom firms raced to install networks. The frenzy to lay fiber has cooled with the economic slowdown, and the wild expansion, fueled by that "irrational exuberance" that drove the Dow, was quelled by the collapse of the telecom sector. The outcome is that municipalities are dealing with networks owned by bankrupt companies, some that even have work in progress. This new environment has firms being bought out, merged, or abandoned, with the result of much more complicated permitting, administration, and accounting.

In addition to these challenges, a recent declaratory ruling by the Federal Communications Commission (FCC) has added to the complications, placing cable Internet services in the class of an "interstate information service." This is in response to a number of challenges (referenced in the August article) that seek to clarify whether Internet access through a cable modem would be considered by regulators as a cable service or a telecommunications service subject to provisions of the Telecommunications Act of 1996.

By ruling that it is neither, the decision and accompanying Notice of Proposed Rulemaking impacts every community across the U.S., as well as those individuals specifically charged with management of the public Right-of-Way. The ability of local officials to impose a franchise fee (as some do with cable service) would be restricted, as would determination of fair and reasonable compensation for occupancy of public Rights-of-Way. This ultimately impacts the control of activities in local streets, and could impact permit fees and calculating the costs of management, too.

Two members of APWA testified before meetings of the Local State Government Advisory Committee (LSGAC) staff and Commissioners at the FCC on March 21 and 22. Leonard Krumm, former Director for Field Services in Minneapolis, Minnesota, and John Cunningham, current manager of Streets for the City of Philadelphia, PA, each testified about different aspects of local control from the public works perspective.

Krumm, now a Senior Advisor at CNA Consulting Engineers, addressed pressures on Rights-of-Way from many fronts. He spoke of the importance of management in preventing destruction of infrastructure as it relates to public safety, and maintaining quality of road surfaces. He also discussed the cost impacts of multiple ROW users, and limits of capacity in the ROW. Cunningham talked about the costs to the city of the more than two million linear feet of streets that have been trenched since 1996. He shared background on the city's pavement degradation studies, fees based on degradation, as well as regulatory approaches and automated solutions used in Philadelphia.

Both Krumm and Cunningham have involvement with the Utility and Public Right-of-Way (UPROW) P/E/T Committee of APWA. Krumm was chairman of the committee last year, and Cunningham currently serves as the chair of the ROW Management Subcommittee. The UPROW P/E/T is one of the ways APWA strives to make information on issues such as this available to its members. The committee holds monthly conference calls, publishes a quarterly newsletter, and has made a number of references available through the Resource Center of apwa.net. In addition to these, APWA-InfoLink has active links directly to a number of sites that post ROW ordinances, information, and automated management applications. InfoNOW has a community devoted to Infrastructure Protection and ROW, where users regularly exchange information about all aspects of ROW management. Another resource is a newly-published "Local Officials Guide to Telecommunications and Rights-of-Way," produced by the National League of Cities with cooperation from other associations. This guide details the issues involved, some of the litigation background, and can help city officials understand many of the issues involved with ROW.

How can technology help successfully manage this activity? Cunningham talked about his city's implementation of a GIS-based management system. The Philadelphia system, which went on-line in April, is called Guaranteed Paving Information System (GPIS), which tracks all activity in the ROW, coordinating digging activity and greatly streamlining the permitting and coordination process. The City of San Antonio, Texas has offered web-based on-line permitting for street cuts since July of 2001, which is used by almost 100 different companies digging in their streets. Users can apply for permits, track their status, and coordinate activity based on a map of city streets. Future enhancements will include an expanded system for consolidated mapping of infrastructure, capital improvements, street maintenance, and events. These are perfect examples of solution-driven on-line technologies, implemented expressly to solve identified problems while improving access for users.

A recent article in USA Today warned that the "glut" of dark fiber currently installed could in a few years be overwhelmed by demand. Capacity that does exist is mostly in intercity connectors, while the "last mile" still needs to happen...and those many last miles still need to go through city streets. Some alternatives have been introduced to install fiber in sewer lines, and while these avoid some of the trenching activity they have not yet been widely adopted. The bottom line is that while some of the immediate pressures from backhoe operators have eased, different pressures have surfaced for cities trying to successfully manage and control the public asset that is the Right-of-Way.

The UPROW Committee will continue to monitor Right-of-Way concerns, and the Government Affairs Committee has local control of ROW as one of its legislative priorities for the coming year, and will continue to track the issue as it evolves. Information on the status of the FCC ruling and subsequent developments, as well as other changes to ROW impacts, will continue to be made available through the many information avenues of APWA.

To reach Dave Reinke, call (202) 408-9541 or send e-mail to dreinke@apwa.net.