The Battleground

Murv Morehead
Right-of-Way Coordinator
City of Overland Park, Kansas
Member, APWA Construction Practices Subcommittee

One doesn't have to look far to see the battle going on around us—that battle being the heated competition between cable companies and telcoms to be your one-stop communications and entertainment provider. Unfortunately, that battle is to a large degree being waged on our municipal rights-of-way.

Legally, the telecommunication companies were handed more ammunition in December 2006 in the form of an FCC Video Franchising ruling that places maximum time limits on how long LFAs (local franchising authorities) can consider a franchise application before granting it. Add to that the fact that at least 13 states have passed, with others pending, legislation that eliminates altogether the individual municipality issuing a franchise in favor of a state-issued franchise. These two developments have, in effect, left us at the local level virtually unable to defend ourselves on our own property.

  There will be scars.

The primary reason given for the FCC decision was "to get the benefits of competition and new technology into the hands of the consumer with the least possible delay." The same general reasoning is used in legislative actions. Granted, competition is the heartbeat of a capitalistic society and the "latest and greatest" in communication technologies being made available to the public should have nothing but upside potential. My fear is that in the rush to deploy these new technologies, the very ground—the "battleground"—that they will be deployed under, on and above, will ultimately bear the scars of this battle.

As the Right-of-Way Coordinator for the City of Overland Park, Kans., a suburb of Kansas City, with a population of approximately 170,000 covering 65 square miles, I can promise there will be scars. Our city has just seen the completion of a four-year-long new service provider complete telecom overbuild/buildout and is also currently witnessing a system upgrade by an incumbent provider.

For those unfamiliar with these terms, an overbuild means constructing a complete new distribution system from the ground up. Compared to a system upgrade, the overbuild is far and away the most invasive as the end result is to provide service to each resident/business within city limits, rather than just replace pieces of existing cable and/or adding cabinets. Because the local franchises (cable and telecommunication) were negotiated in 2001, we were able to require the complete city overbuild so that all residents would benefit from competition and not just those selected (or cherry-picked) by the new provider.

Being the target of an overbuild is very similar to being targeted for an invasion—"shock and awe" is a term used of late in the military arena and it also best describes the construction effort and methods that we witnessed here in Overland Park. The urgency associated with getting the system built, so service could be sold and consequently generate a positive cash flow, was alarming and at times potentially dangerous. Alarming in the sense that contractors came in from over 20 different states—none of whom we knew anything about nor did they have any idea of the requirements we would place on them, which in itself was problematic. Potentially dangerous, in the sense that all too often construction deadlines were a competing priority with common sense construction decisions. Whether it be a new service provider or an incumbent upgrading to provide a new service (i.e., telephone companies now providing cable TV), the rush is still on...and "get there before the competition" is the battle cry.

This type of construction was unlike anything we had witnessed before. A normal street widening/reconstruction or storm sewer construction project is fairly limited in the area it encompasses—it may extend for two miles during a street widening or cut across several yards for storm sewer installation, but the construction area is still relatively contained. Not so with an overbuild. In our experience, we saw as much as three square miles under construction on any given day. And that construction effort touches every single residence/business within that area. "Touches" really doesn't do this type of construction justice—the word that realistically best describes the overbuild process is "invasion." We heard that word used hundreds of times by the residents that were targeted by the buildout effort—as well as many words that I cannot repeat here.

Approximately 70 percent of the 1,000 miles of cable deployed within the City of Overland Park was underground and two methods of construction were prevalent: horizontal directional drilling and pneumatic piercing tools (affectionately known as "missiles"). The missile method is very labor intensive which brought about a very unique problem—the vast majority of this labor force was non-English speaking so when residents discovered holes being dug in their yard by people they couldn't communicate with, you can imagine the reluctance to accept, and in many cases anger, at the construction taking place. Multiply this by the tens to hundreds of people affected on a daily basis and the picture of a telecom overbuild starts to come into focus.

The problems we encountered covered the entire spectrum, from serious to inconvenient. The most serious and potentially deadly of these problems were damaged natural gas lines. Initially, these occurred as often as six per day (a result of the size of the construction effort), and ranged from a service line cut by a shovel to major intersections or streets closed, and houses evacuated for hours at a time. With safety of the residents paramount, the City temporarily halted construction and implemented a much more rigorous inspection and monitoring program as well as mandating visual location of existing utilities at much closer intervals.

Fortunately, we never experienced an explosion, but the potential was always too real and too close. Two incidents in particular come to mind; in one case escaping gas was trapped under the pavement in a cul-de-sac and actually caused the pavement to raise over 12 inches.

In the second, an unmarked three-inch gas line was damaged by a directional drill in a resident's front yard. Two pits were excavated on either side of the damage to pinch the line closed; at the same time the Fire Department had to force open the front door of the house to gain entry, in order to check for explosive levels of gas that may have migrated into the basement. The end result was when the residents finally returned home, they found three large holes in their yard and their front door broken off the hinges. Welcome home, potential customer.

A directional drill is not the preferred method of locating gas lines...

Among other problems encountered were damaged water lines and the associated flooding, many damaged power, phone and cable TV lines, damaged lawn irrigation systems, missing animals due to gates left open, residents refusing to allow access to utility easements (in some cases requiring a police presence to resolve the conflict), workers being threatened by residents, resident complaints of trespassing, trash left on their property, not wanting service pedestals placed in their yard, open excavations causing a safety hazard, negative visual impact of construction on the neighborhood, and of course acres of sod needing to be replaced. All too often, residents weren't even aware that utility easements or City right-of-way existed, let alone crossed their property.

Why am I lamenting all of this here? Because in order to "get the benefits of competition and new technology into the hands of the consumer with the least possible delay," the delivery systems needed to best accomplish this do not yet exist in the vast majority of American cities and must therefore be built.

Although other system types exist, the optimum delivery method for broadband service is FTTP (Fiber to the Premises). As the name implies, this means providing a fiber optic cable for the entire distance a signal travels—from the service provider (source) to the consumer (resident/business). Complete fiber optic delivery systems have only recently begun to be deployed leaving most U.S. cities and rural areas in the "yet-to-be-built" category. Unfortunately, in time, virtually all of these "yet-to-be-built" areas that are targeted for upgrades or overbuilds will experience the same trials and tribulations that we did, as well as other problems unique to their particular situation.

Progress, while desirable, very often comes with a price that must be paid. Constructing an on-ramp for access to the "Information Superhighway" will provide the desired progress but that ramp has to be built somewhere. That "somewhere" is our rights-of-way...The Battleground.

Murv Morehead can be reached at (913) 895-6189 or murvyn.morehead@opkansas.org.