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TABLE OF CONTENTSI. OVERVIEWII. THE ROAD TO GOOGLE FIBER A. Universal Broadband: A Call to Action B. Why Rights-of-Way Matter if Universal Service is to Become a Reality C. Google Fiber as a Case Study: Eliminating Rights-of-Way FeesIII. FEDERAL ACTION TO REDUCE INFRASTRUCTURE ACCESS COSTS. A. Dig Once." Congressional and Executive Action B. The Impact of a Dig Once Policy C. Responses to the FCC's Rights-of-Way InquiryIV. A COORDINATED APPROACH TO COST REDUCTIONS A. What the FCC Can Do to Incentivize Deployment 1. The FCC Does Not Have Authority Under Section 253(a) to Preempt Rights-of-Way Matters Relating to Broadband Deployment Unless It Redefines "Telecommunications Services" 2. While Section 706(b) Arguably Allows the FCC to Preempt Rights-of-Way Matters Related to Broadband, It Should Not Act Beyond Its Authority Under Section 253. 3. The FCC Should Provide Resources for Service Providers and Local Governments B. Congress Should Expand the FCC's Jurisdiction to Collect Meaningful Data to Assist with Deployment C. States Should Consider Revising Rights-of-Way Policies to Provide Certainty to Providers, Including "Dig Once" PoliciesV. CONCLUSION
I. OVERVIEW
Residents of Kansas City are over the rainbow. In 2011, Googleannounced after a competitive selection process (1) that Kansas Citywould become the first test site for its experimental project: GoogleFiber. (2) Google agreed to build, operate, and maintain afiber-to-the-home network in Kansas City, boasting speeds of up to onegigabit per second. (3) The service delivered to residents in KansasCity will be provided at speeds faster than the FCC's 2015 goal forhouseholds, (4) at a cost to consumers of only $70 a month. (5)
Google Fiber's publicity thrusts the challenge of obtainingrights-of-way access to build out infrastructure for broadbanddeployment to the forefront of the public policy debate. (6) Thepublicity of the Google Fiber project attracted FCC Commissioner AjitPai to communicate the FCC's need to "remove barriers toinfrastructure investment" in order to promote "job creationand economic growth." (7) Commissioner Pai's comments camejust days after he visited the project's site, noting theimportance for "states and local communities to adoptbroadband-friendly policies when it comes to rights-of-waymanagement." (8) Commissioner Pai encouraged others to take thedemonstrated success of the Kansas City-Google partnership and use it toinform how they could "streamline their own rights-of-waymanagement processes," mentioning that the city's attractivepolicies were the reason Google chose it for its innovative project. (9)
Commissioner Pai announced that the FCC should play a role indeveloping "model regulations, guidelines, or best practices forrights-of-way management that facilitate fiber deployment whilesafeguarding legitimate government interests." (10) He emphasizedthat streamlining rights-of-way management is necessary for "21stcentury challenges" like broadband deployment. (11) In fact, Googlepublicly stated that one of the reasons it chose Kansas City was because"the City's leadership and utility moved with efficiency andcreativity." (12) Part of the agreement between Kansas City andGoogle included providing Google complete access to Kansas City'srights-of-way. (13)
One would think that with a company as large as Google, Kansas Citywould be able to collect fees for the unlimited access it gave toGoogle, but in fact, Kansas City waived all fees to its rights-of-way.(14) Those following the project noted that the concessions Kansas Cityprovided were more than just an example of the effects of deregulationon the market, but instead were an actual taxpayer subsidy, and furtherobserved that these subsidies are necessary to incentivize deployment.(15) Others claim that Google would have still paid Kansas'rights-of-way fees, but selected the city because it eliminated"'unnecessary costs and delay," in the deploymentprocess. (16) Regardless of their characterizations of why Google choseKansas City, observers agree that more needs to be done to encourageinvestment in infrastructure to deploy high-speed broadband technology.(17) Certainly, rights-of-way fees make up only one part of costs thatproviders like Google face when engaging in deployment projects.
With the spotlight on Google Fiber, the FCC is in a perfectposition to utilize the lessons learned from the Google-Kansas Citypartnership to evaluate what can be done to encourage Internet serviceproviders ("ISPs") to upgrade their existing networks ordeploy new networks where access is lacking. Earlier this year, JuliusGenachowski, then FCC Chairman, called for at least one city in everystate to have a gigabit community, (18) echoing the National BroadbandPlan's goal of "affordable access of at least [one] gigabit... broadband service to anchor institutions such as schools, hospitalsand government buildings." (19) Additionally, if the FCC wishes toachieve its goal of universal service, (20) it must take heed ofCommissioner Pai's statement that rights-of-way management plays avital role in broadband deployment projects. (21)
Before the FCC acts, however, it must consider a variety of issues.The FCC has three players at its doorstep: ISPs, consumers, and localgovernment. (22) First, ISPs have called for greater deregulation ofrights-of-way access in order to increase certainty that they can accessexisting infrastructure swiftly. (23) Second, consumers want fasterbroadband speeds at reasonable prices. (24) Lastly, states have notabandoned the fight that rights-of-way represent a property interest,(25) and the federal government should not impose restrictions onstates' ability to impose fees beyond cost for access, (26)especially when states serve the interests of their residents throughdecisions to approve enhancements to existing networks. (27)
If it does act, the FCC will also have to keep in mind recentinitiatives by the executive branch, the current state of Congress, andfuture judicial scrutiny of its authority. The Obama administration hascalled for more efficiency in federal processes, includingimplementation of a "dig once" policy to coordinate broadbanddeployment with other road and utility projects. (28) While it appearsunlikely that Congress will make drastic expansions to the scope of theFCC's jurisdiction to regulate broadband given the current state ofpolitical division and other more pressing initiatives, (29) appropriatecongressional action would play a vital role in stimulating our economy.(30) Although Congress was unsuccessful in passing a mandatory "digonce" policy, (31) it still has a meaningful role to play insupporting rights-of-way reform.
As the FCC takes steps to achieve universal service, it should bemindful that although access to rights-of-way is necessary fordeployment, management of rights-of-way requires a delicate balancebetween federal regulation and states' rights. (32) Further, asevidenced by Google Fiber, elimination of state and local rights-of-wayfees is not itself sufficient to encourage universal broadbanddeployment. (33) This Note addresses why a coordinated approach toreducing costs related to infrastructure access for broadband deploymentis necessary and will help the FCC move closer to its goal of universalservice. It argues that the FCC should refrain from a one-size-fits-allregulatory approach to rights-of-way, and instead should encouragebroadband deployment by improving resources available for state andlocal governments. This will necessarily require Congress and the statesto support the FCC's effort through related initiatives. Section IIof this Note surveys the current status of broadband deployment, theimportance of infrastructure access in achieving universal service, andwhy elimination of rights-of-way fees does not achieve that goal.Section III examines current federal policies fostering broadbanddeployment through rights-of-way policy. Section IV explains whycoordinated action is necessary to reduce costs to access infrastructurefor broadband deployment. Lastly, this Note proposes various cost-savingsolutions by the FCC, Congress, and states, which can pave the way tocost reductions that will assist the FCC in achieving universalhigh-speed broadband deployment.
II. THE ROAD TO GOOGLE FIBER
A. Universal Broadband: A Call to Action
The FCC called for universal broadband service for all Americans inits National Broadband Plan in 2010. (34) In its 2012 broadband report,the FCC estimated that nearly "[n]ineteen million Americans [still]live where fixed broadband networks do not reach; 14.5 million of thoselive in rural America." (35) But it is not just rural Americansthat are without a critical benefit (36): only 40% of Americans withaccess to broadband possess speeds deemed sufficient by the FCC. (37)Additionally, 142 million Americans rely on mobile connections, (38)which also require a "robust and reliable underlying wirelinenetwork." (39) Even in metropolitan areas, wireline broadbandinfrastructure in the United States lags behind other countries, whichaffects its economic competitiveness. (40) The challenge for consumersis not only obtaining access, (41) but also possessing access at speedsthat are affordable. (42)
Even Google acknowledges that "[w]hile it is necessary thatbroadband infrastructure be available to all Americans, mereavailability is not sufficient." (43) As many businesses move toonline platforms, robust and widespread access assists in connectinglow-income residents with economic opportunities. (44) Access means moreopportunities to telework for seniors and individuals with disabilities.(45) It means more jobs and increased property values, as morebusinesses are attracted to areas with high connectlvaty. (46) It alsomeans increased educational opportunity for students, both at school andat home, training them for the future: a digital economy. (47) Whilemany subscribers of broadband have seen improvements in speed, nothingcomes close to what Google Fiber offers. (48)
The call to action for universal high-speed service is not new. In1999, FCC Chairman William Kennard stated that the FCC would"[p]romote the development and deployment of high-speed Internetconnections to all Americans." (49) To do this, he called on theFCC to "continue to streamline its operations [and] eliminateunnecessary regulatory burdens." (50) That same year the FCC beganto issue reports on the status of deployment to Americans. (51) Fiveyears later in 2004, President George W. Bush called for all Americansto have broadband by 2007. (52) President Bush supported deregulation of"legacy regulations" to spur innovation and increase capitalfor investment in fiber-to-the-home deployment. (53) But by 2010, theFCC estimated that nearly 100 million Americans were still withoutaccess. (54)
Fast forward to 2013, and Chairman Kennard's wish from 1999still has not been fulfilled. Although progress has been made, (55) thelongstanding goal of universal broadband service has not been reached.(56) Despite current speeds and the 19 million without access, (57) someISPs and industry associations are satisfied that broadband is beingdeployed in a "reasonable and timely manner" (58) contrary tothe FCC's determination. (59)
B. Why Rights-of-Way Matter if Universal Service is to Become aReality
Before addressing the goal of universal service, ISPs must be ableto obtain access to rights-of-way. (60) Gaining access to rights-of-wayis necessary for ISPs to utilize poles, conduits, ducts, roads, andpower lines to build out infrastructure to deploy broadband. (61) Forpurposes of this Note, the total cost ISPs must expend to accessinfrastructure is comprised of two parts: fees charged by state andlocal governments to a service provider to allow it to userights-of-way; and actual costs related to building out infrastructure,including navigating the rights-of-way approval process. There is muchdebate as to whether state and local rights-of-way fees should reflectmarket-based value or be limited to actual cost for use, (62) but itwould be hard to find anyone who would argue against reductions ofactual cost to access infrastructure.
Deploying broadband can be cost prohibitive for ISPs in both ruraland urban areas, depending on the cost to build and consumer demand.(63) For example, it costs a tremendous amount of money to deploy fiber,which is a one-time capital outlay. (64) The FCC estimates that"deploying a mile of fiber can easily cost more than$100,000," and that the largest element of cost associated withdeployment is the expense of burying fiber in the ground. (65) In fact,it is estimated that approximately 70-80% of the cost of deploying fiberunderground is spent on the physical labor of trenching roads to lay theconduit. (66) Additionally, it can be significantly more expensive todig up and then repair an existing road to lay fiber." (67)
The high cost of actual deployment affects the United States'ability to achieve the goal of universal service in several ways. First,the lower the population density of a given area, the more expensive itis to deploy fiber. (68) This means that the fewer the subscribers, thefewer individuals available for the ISP to recoup its investments. (69)Specifically in rural areas, service may not be affordable if ISPs passalong the increased per capita cost to consumers. (70) Second, if thecost to access infrastructure is high in a given area, ISPs may not findit profitable to deploy, regardless of whether the area is rural. (71)Lastly, if the cost to trench existing roads is too prohibitive, or therights-of-way process too costly, existing ISPs may not initiate serviceupgrades in non-rural areas. (72) Clearly, eliminating unnecessary costssurrounding the rights-of-way process or build-out of infrastructure isimportant to the challenge of obtaining universal service.
C. Google Fiber as a Case Study: Eliminating Rights-of-Way Fees
It is too early to measure the success of Google Fiber'sbusiness model on a national scale, (73) but the FCC has already notedthe project's impact on Kansas City. (74) As it stands now, GoogleFiber has had new businesses clicking their heels to get into KansasCity. (75) Not only are Google and Kansas City confident that the newnetwork will attract economic development, (76) they are hopeful thatthe project will bring enhanced educational opportunities to students(77) and help to bridge the "digital divide" by increasingdigital literacy in the community. (78)
Despite Google's belief that ubiquitous access is a goal worthstriving for, (79) Google has not yet been able to deploy to allresidential homes in Kansas City. (80) Google made a decision not todeploy service to "fiberhoods" (81) in which sufficientconsumer demand for the service was not present. (82) Googlepredetermined the percentage of homes within each "fiberhood"necessary for preregistration--in some instances only 5%, and in others25% (83)--and decided whether it would deploy. (84) By requiringpreregistration, Google avoided building out infrastructure until it wasassured that a large enough consumer base wanted the product. (85) Itdoes not take a calculator to understand the basic mathematics behind acompany's decision to deploy, regardless of whether demand orprofitability are driving factors of its motivation. In order to recoupan investment, there must be enough subscribers who are willing to paythe stated service fees for an investment to be considered worthwhile.(86) For fiberhoods that initially failed to meet preregistrationtargets, Google has not yet committed to come back any time soon. (87)
The Google Fiber case suggests that even if a city eliminates allof its rights-of-way fees, the cost of deploying fiber, coupled with theuncertainty of a large enough base of willing and able consumers to payfor the service, creates a financial disincentive for even large andprominent companies to deploy service to all residents. (88)Additionally, if a company as large and with as much capital as Googlefailed to deploy fiber to those fiberhoods despite some residents havinga desire for it, (89) what does that mean for smaller start-ups who maywish to bring fiber to smaller and more rural communities? (90) Moreimportantly, what does Google Fiber mean for the FCC's goal ofuniversal service? Because uncompensated access to rights-of-way doesnot necessarily lead to universal broadband deployment, the policy focusshould be on realizing cost reductions in the deployment process.Cutting costs in the deployment process can serve to offset governmentsubsidies to ISPs or consumers that will be necessary for the FCC toachieve universal broadband service. (91)
III. FEDERAL ACTION TO REDUCE INFRASTRUCTURE ACCESS COSTS
Efforts have been made or are currently underway to reduceinfrastructure access costs. Outlining these efforts provides helpfulbackground to understand the solutions detailed in Section IV. Theyinclude stalled federal legislation, the creation of committees by wayof Executive Order, and FCC Notice of Inquiry and recent announcements.The impetus for most of these efforts stemmed from the FCC's goalsoutlined in its National Broadband Plan.
In the plan, the FCC acknowledged that rights-of-way fees amonglocalities lead to inconsistencies for providers, but focused mostly onsolutions in other areas to reduce the cost of deployment. (92) Proposedinitiatives included the following: detailing a timeline and process forinitial access and subsequent disputes, improvement of data on locationand availability of rights-of-way, coordination of processes at thestate and federal level, and creating a joint task force to craft bestpractices. (93) In fact, Google launched Google Fiber to meet some ofthe plan's goals through use of "creative ways," such asimplementing fiber deployment test beds, incorporating broadband conduitin public works projects, focusing on community hub broadbanddeployment, and reducing barriers to wireless deployment. (94) Onerecommendation in the FCC's plan that Google supported was a"dig once" policy. (95) The plan called for Congress to enact"dig once" legislation, requiring that the U.S. Department ofTransportation ("DOT") make federal financing of road projectscontingent on joint trenching to lay broadband conduit. (96)
A. Dig Once: Congressional and Executive Action
In May of 2009, before the FCC released its plan, RepresentativeAnna G. Eshoo (D-CA) introduced the Broadband Conduit Deployment Act("the Act"). (97) Referred to as "dig once"legislation, the Act would have satisfied one of the plan'srecommendations. (98) Reintroduced in 2011, (99) the proposed bill wouldhave amended the general highways provision of the United States Code(100) and included a mandate whereby DOT would require states to installbroadband conduit as part of an included highway construction project.(101) The Act would have given DOT discretion to determine the"appropriate number of broadband conduits" to ensure thatmultiple providers could be accommodated, taking into account existingconduits and potential demand of the nearby locations. (102) It wouldhave allowed DOT to engage in rulemaking to establish standards to carryout such a feat, as well as provide states with a waiver. (103) Inestablishing standards, the Act would have required DOT to coordinatewith the FCC to determine demand and existing broadband access. (104)
Rep. Eshoo urged former Secretary of Transportation Ray LaHood, whosupported her efforts, to formally adopt a "dig once" policyfor federal highway efforts. (105) In alignment with her desire for morerobust infrastructure, Eshoo touted the bill as one that would providetaxpayers "with the best value," because no longer would therebe a need to tear up roads solely for the purpose of laying conduit.(106) In addition, she advocated for the bill on the basis that it would"reduce barriers to deployment [and] increase investment andcompetition for broadband." (107) After the legislation wasreferred to committee, Eshoo asked the U.S. Government AccountabilityOffice ("GAO") to conduct an internal study of the effects ofdig once legislation. (108)
Before GAG could release its findings, and before the bills died incommittee, (109) President Obama issued two Executive Orders. PresidentObama's first Executive Order (the "Federal PermittingOrder") called for more efficient and effective federal permittingand review processes. (110) The President detailed a need for"timelines and schedules for completion of reviews," and"early and active consultation" with stakeholders "toavoid conflicts or duplication of effort" among federal agencies.(111) The purpose of the Federal Permitting Order was to reduce the timenecessary for providers to complete the federal permitting and reviewprocess to access rights-of-way, through disclosure of information onthe process and expectations of various federal agencies. (112) TheFederal Permitting Order also established a steering committee comprisedof members of the FCC and various other agencies (including DOT). (113)The committee was tasked with developing a permitting and reviewperformance plan, and by May 31, 2013, implementing best practices forfederal, state, local, and tribal government coordination. (114)
President Obama's second Executive Order (the "BroadbandInfrastructure Order") directed DOT "to work with state andlocal governments to help them develop and implement best practices onmatters such as establishing dig once requirements." (115) TheBroadband Infrastructure Order defined dig once requirements as those"designed to reduce the number and scale of repeated excavationsfor the installation and maintenance of broadband facilities inrights-of-way." (116)
B. The Impact of a Dig Once Policy
Days after President Obama issued the Federal Permitting Order, GADreleased its report on the impact of a mandatory federal dig oncepolicy. (117) Based on its findings, GAD noted that a mandatory dig oncepolicy could result in unused conduit, reduced funding available forhighway projects, increased administrative costs for state DOTs andlocal governments due to maintenance and leasing programs, and conflictwith state and local deployment policies. (118) However, the notedbenefits included a decrease in the frequency of highway construction,lower installation costs, an increase in access and reliability ofnetworks, and reduced time needed to deploy fiber. (119)
The largest benefit of a dig once policy, regardless of whether itis implemented at the federal or local level, is the potential costsavings. (120) If the overall cost of digging up roads can be sharedamong all the project's parties, installation costs for areas thatrequire long stretches of fiber needed for middle mile architecturecould be significantly reduced. (121) This would be especially importantfor rural, sparsely populated areas. (122) If ISPs could repay localgovernments who have invested in conduit for the road project, localgovernment costs to deploy broadband would decrease. (123)
C. Responses to the FCC's Rights-of-Way Inquiry
As the idea of a dig once policy was being floated throughCongress, the FCC, through a Notice of Inquiry, sought to determine whatactions it could take to reduce deployment costs and increase access torights-of-way by asking what barriers existed to infrastructureinvestment. (124) Not surprisingly, most of the responses from ISPsfocused largely on removing regulatory barriers that hindered theiraccess to rights-of-way. (125) The bulk of the opposition was aimed atregulations that slowed the deployment process. (126) For ISPs, each dayspent waiting to acquire access to rights-of-way to begin deploymentmeans another day of costs and no revenue.
Most ISPs asserted that the deployment process was unpredictableand lengthy due to compliance with various federal and state or localregulations. (127) Examples of regulations or processes that sloweddeployment included unreasonable fees on rights-of-way (128) and lack ofstandardized application forms. (129) Moreover, even if ISPs were ableto receive access to rights-of-way and initiate a deployment project,there was no formal mechanism to resolve a dispute if one arose, oftenleading to additional delays. (130) The industry largely viewed existingregulations as unnecessary "hoops" to jump through, calling onthe FCC to exercise its authority to eliminate any unnecessary barriersto deployment. (131)
The ISPs proposed a variety of solutions, including masteragreements, a standard process for rights-of-way approval with a pointof contact and clear responsibilities for respective agencies, aconsolidated database of all available rights-of-way, and a voluntarymediation process. (132) Several ISPs urged the FCC to engage inrulemaking to clarify when fees for rights-of-way are fair andreasonable within section 253(c), (133) the statute governing theFCC's role in state and local authority of rights-of-way, and toutilize its preemption authority to resolve disputes in favor ofproviders. (134)
However, states were most concerned about ISPs' interferencewith rights-of-way via new construction and without consideration oflocal interests when increasing existing broadband speeds to consumers.(135) States argued that in many instances, the approval ofrights-of-way is a uniquely local decision based on a myriad ofcommunity interests. (136) They rejected the notion that existingregulations served as a complete impediment, and suggested that engagingin more collaborative relationships between local governments and ISPscould help increase access to broadband Internet. (137) This isprecisely the approach Google took in working with Kansas City. (138)
IV. A COORDINATED APPROACH To COST REDUCTIONS
With past federal efforts and the Google Fiber project in mind, itis essential that the FCC, Congress, and the states work together tocreate a coordinated policy on broadband infrastructure access. To acertain extent, the task force and committees created by PresidentObama's Executive Orders are a step in the right direction inachieving cost reductions. However, their recommendations will notchange the status quo unless Congress, the FCC, and states take activesteps to implement them. Cost reductions to broadband deployment benefiteveryone. If states can improve the efficiency of their processes andprovide certainty to the process of deployment, they can reduce up-frontcosts associated with time and labor in commencing a deployment project.If ISPs can realize savings at the deployment phase, they are in abetter position to pass those savings along to consumers, potentiallymaking service more affordable. Additionally, the FCC and Congress canhelp states and ISPs achieve these savings without aggressive regulatorymandates that interfere with a states' ability to collect fees forrights-of-way. The FCC can make forward progress while preserving theproper balance between federal and state objectives. Lowering deploymentcosts for ISPs should not be done at the expense of eroding localizedmanagement of rights-of-way. (139)
A. What the FCC Can Do to Incentivize Deployment
Although sections 253 and 706 of the Telecommunications Act areplausible bases of authority for the FCC to rely on to preempt state andlocal broadband fights-of-way matters, (140) the FCC should refrain fromdoing so and instead engage in voluntary and educational initiativesthat lead to efficiency and increased cost savings for government, ISPs,and potentially consumers. Moreover, these initiatives shouldincentivize the behavior the FCC seeks (speedy deployment) withoutsacrificing the consideration of legitimate and substantial communityinterests. (141) The FCC should not ignore the state and local propertyinterest inherent in rights-of-way management and should not take broadregulatory action to come up with a one-size-fits-all approach. (142)Because of the sensitive local issues in dealing with rights-of-way,policies should respect states' ability to protect communityinterests. (143) By and large, the FCC has maintained a deregulatoryposition on broadband, (144) and should continue to refrain fromengaging in regulatory measures unless and until Congress speaks.
1. The FCC Does Not Have Authority Under Section 253(a) to PreemptRights-of-Way Matters Relating to Broadband Deployment Unless ItIncludes Broadband in the Definition of "TelecommunicationsServices"
Section 253(a) governs the FCC's role in state and localauthority of rights-of-way. It states that "no State or localstatute or regulation, or other State or local legal requirement, mayprohibit or have the effect of prohibiting the ability of any entity toprovide any interstate or intrastate telecommunications service."(145) However, a service categorized by the FCC as "informationservice" (146) is not a "telecommunications service"(147) under the Act's Title II common carrier regulations, to whichsection 253 belongs. (148) The FCC has classified broadband Internetaccess as an information service, and thereby exempt from theseregulations, cable broadband, wireless broadband, and facilities-basedwireline broadband. (149)
Additionally, section 253(a) is qualified by two "safeharbor" provisions, (150) which state that
nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis ... requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers; (151) [and] nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government. (152)
If the FCC determines that a state or local government has"permitted or imposed any statute, regulation, or legalrequirement" in violation of section 253(a), it possessespreemptive authority "to correct such violation orinconsistency," (153) unless the action falls under sections 253(b)or (c). Notably, these safe harbor provisions explicitly referenceapplicability to telecommunications service providers. (154)
In its Notice of Inquiry to Accelerate Broadband Deployment, theFCC proposed a number of rulemaking and adjudicatory options to removebarriers to broadband deployment. (155) Of relevance here, the FCCargued that it retained authority under section 253 to interpret both:what "has the effect of prohibiting" an entity from providingtelecommunications service, and what is "fair and reasonablecompensation" with respect to rights-of way fees. (156) Thepractical impact of such a proposal would be similar to the FCC'srecent "shot clock" ruling. (157) The "shot clock"ruling was predicated upon CTIA's petition, (158) which asked theFCC to clarify the relevant portion of the statute governing localzoning approval of wireless siting facilities. (159) Section 332 statesthat a state or local government must "act on any request forauthorization to place, construct, or modify personal wireless servicefacilities within a reasonable period of time after the request."(160) The FCC defined a "reasonable period of time" to processsiting applications under the statute as 90 days or less. (161) A statethat exceeds the 90-day limit is deemed to have failed to act, andtriggers the statute of limitations period for an ISP to seek judicialreview. (162) In its petition, CTIA also asked for the FCC to preempt,under section 253(a), any local ordinances and state laws thatautomatically require an ISP to obtain a variance before sitingfacilities. (163) However, the FCC denied considering CTIA'srequest under section 253 based on insufficient evidence of a particularcontroversy. (164)
If the FCC were to attempt to regulate rights-of-way for thepurposes of deploying broadband under section 253, it should thinktwice. (165) In order for section 253 to apply to rights-of-way mattersinvolving broadband deployment, it would require the FCC to redefine"telecommunications services" to include broadband. (166)Under a plain reading of section 253, and in accordance with theFCC's exclusion of broadband from the category oftelecommunications services, the FCC does not have authority to preemptstate and local laws prohibiting the provision of information servicesunder section 253(a). Section 253 only extends to rights-of-way mattersconcerning telecommunications services and does not include thoseaffecting broadband. Corroborating this view, the First Circuit hasrejected an argument that used section 253 to try to impose liability onan information service provider. (167)
2. While Section 706(b) Arguably Allows the FCC to PreemptRights-of-Way Matters Related to Broadband, It Should Not Act Beyond ItsAuthority Under Section 253
In addition to section 253, (168) the FCC retains authority undersection 706(b) to "remove barriers to infrastructureinvestment" when it determines that "advancedtelecommunications capabilities" are not "being deployed toall Americans in a reasonable and timely manner." (169) Unlike theTitle II common carrier provisions, the term "advancedtelecommunications capability" is statutorily defined "withoutregard to any transmission media or technology, as high-speed, switched,broadband telecommunications capability that enables users to originateand receive high-quality voice, data, graphics, and videotelecommunications using any technology." (170)
The FCC has determined that under section 706(b), advancedtelecommunications capabilities are being deployed in a reasonable andtimely manner when universal broadband service at four megabits persecond download speed and one megabit per second upload speed isrealized. (171) If this threshold were met, the FCC's obligationsand authority to act would theoretically end under section 706(b),unless it redefined "advanced telecommunications capability."(172) But so long as the FCC continues to find that universal service ofbroadband is not being deployed, it possesses rulemaking andadjudicatory authority to remove barriers to infrastructure investment.(173) The concern here is not how the FCC defines "advancedtelecommunications" under section 706, but whether it uses itsobligation to remove barriers as a basis to preempt local rights-of-wayauthority. (174) In its Ninth Broadband Progress Notice of Inquiry, theFCC sought comment on how it could utilize its authority under section706 to accelerate broadband deployment. (175) Specifically, it askedwhat the "relevant limitations on the Commission'sauthority" under section 706 were. (176) Because section 706(b)appears to confer broad authority, (177) the FCC could arguably regulatebroadband related rights-of-way matters under this section, rather thanrelying on section 253. By relying on section 706(b) authority, the FCCcould achieve the same outcome it intended under section 253. (178)
However, the FCC should not use its authority under 706(b) to actbeyond the bounds of section 253. Although the decision as to whichsection it claims its authority under matters to the FCC, (179) as faras states are concerned, rights-of-way are rights-of-way regardless ofwhether they are accessed for the purpose of providing informationservices or telecommunications services. (180) The FCC's OpenInternet Order, which is currently being challenged by Verizon in theD.C. Circuit, is relevant insofar as it provides guidance on theFCC's understanding of its authority under section 706(b). There,the FCC relied on section 706(a) as a basis for promulgating regulationsgeared towards net neutrality. (181)
In the Open Internet Order, the FCC stated that "[s]ection706(a) authorizes the Commission ... to take actions, within theirsubject matter jurisdiction and not inconsistent with other provisionsof law, that encourage the deployment of advanced telecommunicationscapability by any of the means listed in the provision" (182) Whilethe D.C. Circuit has not determined whether the FCC acted properly undersection 706(a), the FCC suggests that its power under section 706(b) islimited at least to the extent that any regulatory actions it takesconflicts with other provisions of the Telecommunications Act. (183)
If the FCC were to use section 706(b) to "remove barriers toinfrastructure investment" by defining what "has the effect ofprohibiting" an entity to provide information services forrights-of-way or what is "fair and reasonable compensation"with respect to rights-of-way fees, it could make a plausible argumentthat any interpretation would not be inconsistent with section 253because that section does not regulate information services. (184)However, the underlying premise of section 253 is based onCongress' recognition that the FCC has a limited role overlocalized decisions about property rights. (185) To the extent the FCCwishes to engage in rulemaking under 706(b), it should not act beyondwhat is presently proscribed by the text of section 253, unless anduntil Congress and the FCC determine the appropriate framework forregulation of broadband. (186) This would include refraining fromintervening in local rights-of-way fee decisions, which as somecommenters have addressed, implicates both a taking under the FifthAmendment (187) and concerns of federalism. (188)
With respect to eliminating barriers to infrastructure access,there are other measures that can be utilized to facilitate interactionslike those between Google and Kansas City without exercising regulatoryforce. The FCC is arguably not the best party to make specialized andlocal decisions regarding the use of the rights-of-way. States are.Despite the need to give deference to states, however, the FCC can stillplay an important role in reducing costs in the deployment process.
3. The FCC Should Provide Resources for ISPs and Local Governments
If ISPs and local governments have equal access to informationabout rights-of-way and infrastructure access, policymakers can betterdetermine the appropriate long-term solution to close the gap betweenthose who have high-speed connections, and those who have no connectionat all. Generally, states should have little problem accepting theFCC's role as a resource center for best practices on thedeployment process, (189) so long as the advice the FCC providesrepresents a balance of interests.
The need for online resources appears evident, at least at firstblush. For example, the FCC and the National Telecommunications andInformation Administration ("NTIA") currently host a number ofhighly technical resources. (190) But if a community were interested inbuilding out a gigabit broadband infrastructure, where would it start?Unfortunately, many resources have fallen into neglect and have not beenupdated for years. Certainly there are association resources such as theNational Association of Telecommunications Officers and Advisors("NATOA"), but its guide on rights-of-way principles has notbeen updated since 1998. (191) The National Conference of StateLegislators lists brief synopses of information on cities that havedeveloped broadband task forces, but does not contain a resource thatwould tell a state or locality how to go about creating a task force,and what should be considered in its formation. (192) The NationalAssociation of Regulatory. Utility Commissioners ("NARUC")prepared a report on promoting broadband through access to rights-of-wayin 2002, over ten years ago. (193) The Council of State Governments("CSG") has not published anything about broadband since 2011.(194) Lastly, the National Association of Counties lists its policystatements on the state of broadband deployment, but lacks any resourceson model county programs as it relates to broadband adoption, with theexception of one case study regarding Maryland's use of BTOP andARRA funds. (195) None of the resources contain information on gigabitcommunities, fiber to the home technology, or more advanced capabilitieslike those that Google provided to Kansas City. Although the Fiber tothe Home Council recently issued an instructive paper on "Becominga Fiber, Friendly community," (196) it is not nearly ascomprehensive as it could be. (197)
In light of Google Fiber's success, would ISPs take adifferent stance on what an ISP deems to be a "best practice"?Would state and local governments be prone to giving providers morecertainty in fees and timelines? And would providers be more flexible ifthey were able to increase the number of residents who were willing topay for access? As far back as 2010, the FCC's Technical AdvisoryCouncil ("TAC"), of which Google is a member, recommended tothe FCC that an "online deployment coordination system" becreated to "provide advance notification of planned infrastructureprojects." (198) The use of such a system would be to partnerproviders with localities who had existing rights-of-way projects, thusresulting in partnership for increased cost savings. (199)
Recently, former Chairman Genachowski announced the "GigabitCity Challenge," in which the FCC called for at least one city inevery state to deploy a one-gigabit network. (200) To assist communitiesin this endeavor, he proposed "a new online clearinghouse of bestpractices to collect and disseminate information about how to lower thecosts and increase the speed of broadband deployment nationwide."(201) This proposal is a logical solution in the short-term toaccelerate deployment and increase collaborative relationships betweenlocal governments and ISPs, at least until Congress and the FCCdetermine the best long-term policy solutions via legislation orrulemaking.
But before the FCC establishes an online clearinghouse like the oneformer Chairman Genachowski proposed, it should issue a Notice ofInquiry and determine what specific toolkits would be useful for bothpublic and private parties. It should also be mindful of the competinginterests of consumers, ISPs, and local governments in determining whata "best practice" will represent, and to whom. In providinginformation on best practices, the FCC should attempt to be as neutralas possible, highlighting areas of competing interest where localgovernments and ISPs may need to work hardest in negotiations to achievea mutually beneficial result. If the FCC can establish a reputationthrough its online clearinghouse as being willing to promote truepartnerships between the public and private sectors, perhaps partieswould be more likely to work together in the broadband deploymentprocess rather than resorting to legal action or adjudication throughthe FCC in the event of a dispute. And perhaps cost savings could beachieved.
B. Congress Should Expand the FCC's Jurisdiction to CollectMeaningful Data to Assist with Deployment
As mentioned, the FCC's authority depends at least in part onits characterization of reasonable and timely deployment. (202) Beforeit can do so, Congress must expand the FCC's ability to collectinformation on the deployment of broadband, which can, at least in theshort-term, bridge the gap to deployment.
Google was able to make a meaningful decision on where it woulddeploy because of access to information. (203) It gathered useful dataabout the community, terrain, current programs in existence related tobroadband adoption, and important figures regarding rights-of-way feeson a city-by city basis. (204) The receipt of valuable information wasthe first step for Google to evaluate the feasibility of deployment ineach community it was interested in approaching for its pilot project.
At present, the FCC has the authority to conduct surveys on theavailability of broadband. (205) While the statute calls for datacollection on international comparison of broadband service capability,consumer usage, and census data, (206) its usefulness after almost fiveyears may have reached its limit. The rough percentages of broadbandadoption and deployment nationwide are known, and now the challenge toovercome is connecting ISPs with communities that desire high-speedbroadband. What is needed is more readily accessible and practical,localized data similar to that in which Google relied on to evaluatewhere to begin negotiations for its gigabit project--voluntary dataprovided by communities. (207) This included information aboutfacilities and resources, number of conduits, methods of calculatingrights-of-way fees, and demographic data. (208)
In theory, every service provider could issue a request forinformation like Google's and obtain data from localities that arewilling to provide it. Instead, Congress should expand the FCC'sjurisdiction as it relates to collecting data of this kind. Since thedata would be provided by states, not providers, it would not beconfidential. (209) This would assist ISPs in making deploymentdecisions, as well as provide states with a resource to compare theirregulations and practices with other jurisdictions. This expansion wouldallow the FCC to play a vital role in serving as an information hub forISPs, states, and even Congress, as it determines its long-termbroadband policy. It would also be in line with the ObamaAdministration's push for more "open government." (210)To that end, it would also fulfill one of the goals outlined inObama's Federal Permitting Order, which recommends utilizingtechnology to aid in the permitting process (211) and supplementing theefforts of the Working Group by publishing online "comprehensiveand current information" on access to infrastructure for broadbanddeployment. (212) In fact, there have been efforts in Congress to amendand consolidate the reporting obligations of the FCC, (213) implyingthat at least some legislators are interested in streamlining theFCC's reporting requirements. This suggests that Congress might beamenable to revisiting the FCC's scope of authority as it relatesto data collection.
To support the FCC's reporting requirements, Congress couldrequire states to provide supplemental information in addition to whatis already currently required under their responsibilities to DOT. Astate already must prepare a rights-of-way operations manual describingits policies and procedures. (214) The FCC could partner with DOT toobtain and publish this information in a way that would assist serviceproviders in deployment decisions and coordinate state efforts onreporting. A measure such as this may put a burden on states to findadditional staff or resources to handle the reporting. However, therequirement would hopefully encourage centralization and streamlining ofrights-of-way information on behalf of states and eventually become partof routine practices. Moreover, it could encourage states to utilizetechnology to disseminate information at a local level. The FCC may alsobe able to engage in more pointed policy decisions that would hopefullybenefit states in the long run.
C. States Should Consider Revising Rights-of- Way Policies toProvide Certainty to Providers, Including "Dig Once" Policies
Commissioner Pai was correct when he suggested that states shouldstreamline their own right-of-way management processes. (215) It is in astate's best interest to review and evaluate its own rights-of-waypolicies. After review, changes can be made that would attract more ISPsto deploy broadband the way Kansas City did with Google. Deployment is atwo-way street. The onus should be shared by ISPs and states to changetheir respective policies. If we respect a provider's right toconduct business and earn revenue, we must respect a state's rightto protect community interests. However, in making its policies moreattractive, a state does not have to completely overhaul its regulationsor give up autonomy to manage its rights-of-way. There are simple thingsthat can be accomplished to achieve cost savings without sacrificing astate's role of protecting the public welfare. And by doing so,states may be able to create something similar to the interactionbetween Google Fiber and Kansas City--a solid foundation that a privatecompany and public entity can build upon.
First, states should consider voluntarily implementing permitdecision deadline provisions regarding approval of its rights-of-way. Asit exists currently, only six states have a decision deadline provisionformally enacted. (216) One of them happens to be Kansas. (217)Voluntary deadline provisions provide ISPs with certainty as to whetheror not they can proceed with their project, and when. (218) Deadlinesalso help in planning to anticipate overall deployment timeframes, andthus total cost associated with the project. (219) In order for statesto commit to their self-imposed deadlines, however, they must have thestaff and resources to be able to process permit applications and makedecisions in a timely manner. Additionally, states must develop anunderstanding of their broadband needs and deployment plans beforeproviders submit applications to access the rights-of-way, so thatstates can approve or deny these applications within the context of thecommunity broadband needs. To address this, states should form taskforces at both the state and local level to determine what theircommunities needs are. (220)
Second, states can inform ISPs of formal dispute mechanismprocesses. Michigan, for example, resolves disputes between providersand municipalities by appointing a mediator to make a recommendation.(221)The entire dispute process, if contested and taken through eachappeal, can take up to roughly six months to resolve. (222) Despite thislength, the process provides both parties with predictability in knowingexactly who will be involved and how long the process may take. Theparties bear the costs to use a private mediator, so resource costs forthe state are reduced. (223)
Third, in addition to improving policies in the approval process,states should evaluate the feasibility of enacting their own dig oncepolicies. Utah, Tennessee, and Illinois have enacted policies, bothformal and informal, to coordinate broadband projects with other road orutility projects. Utah's policy for the last five years, althoughnot set forth in any specific statute, has been to lay broadband conduitduring road construction projects. (224) Illinois enacted an officialdig once statute in 2009, requiring public notice of projects with aneed for fiber-optic conduit or cable to be made available. (225) In2012, Chicago Mayor Rahm Emanuel released a Request for Information forthe development of a municipal fiber ring, noting that planned streetmaintenance could be coordinated with the deployment to reduce costs ofexcavation and labor. (226) The impetus for the project came as Chicagoendeavored to upgrade its public utility system. (227) Tennessee, hometo Chattanooga's "US Ignite" project, a collaborationmade possible through the White House and National Science Foundation,now boasts a city that has deployed fiber to over 170,000 homes. (228)The city was able to bring about a one-gigabit broadband service to allof its residents in nine counties through a partnership with itsmunicipal electric utility. (229)
Whether or not this legislation was enacted, it is an importantacknowledgement that collaboration and partnerships between localagencies and ISPs can lead to cost savings. If a state can incorporatebroadband deployment projects into its road or utility repair orconstruction projects, it can encourage service providers to build outtheir own networks in rural areas. (230) This will lead to sharedsavings and the encouragement of broadband deployment in areas that mayhave previously been unattractive. These are not the only benefits thatcan be realized. (231)
Dig once policies should be initiated at the local level and notdictated by Congress. As decision makers, neither Congress nor the FCChas sufficient information on local community needs to be able to assessdemand, determine whether waiver is appropriate, and make thosedeterminations based on consistent criteria. (232) Neither the FCC (norDOT) is in the best position to know what is in the best interest oflocal communities.
Lastly, the rejected Broadband Conduit Deployment Act did notspecify whether it would require the FCC to determine the basis forrequiring deployment from consumer demand for broadband or internetservice providers' demand in determining the number of conduits.(233) In either case, the FCC, in determining whether or not eithersource of demand existed, would rely on state broadband plans and stateevaluations of the feasibility of broadband in conjunction with itsshort and long term highway needs. (234) With that in mind, the statesare ultimately in a better position to make deployment decisions, butwould greatly benefit from guidance and support from the FCC.
V. CONCLUSION
Consumers are the ultimate beneficiaries of a high capacitybroadband infrastructure. Google was right when it stated that"[o]rdinary Americans suffer when we fail to have in place anational policy that honestly analyzes the strengths and weaknesses ofthe market, and provides tailored policy responses." (235) Themarket has demonstrated, at least in the bubble that is Google Fiber andKansas City, that eliminating fees for rights-of-way access does notlead to universal service. Broad preemption of local rights-of-waydecisions by the FCC is not the answer and neither is a congressionaldirective to states. Reducing cost through streamlining processes andpushing for collaboration and partnerships among government and ISPs isthe first step toward eliminating barriers to broadband deployment. Itwill do more harm than good if the federal government preempts localrights-of-way decisions on an ad hoc basis without a precise regulatoryframework in mind. The Google Fiber experiment may not have beenperfect, but its existence can inform the way Congress and the FCCsupport decision-making to encourage broadband deployment on a nationalscale.
(1.) GOOGLE INC., REQUEST FOR INFORMATION: GOOGLE FIBER FORCOMMUNITIES (Feb. 10, 2010), available athttp://www.ipaloalto.com/pdf/Google_Fiber for Communities_ 021010.pdf;see James Kelly, Next Steps for Our Experimental Fiber Network, GOOGLEBLOG (Mar. 26, 2010),http://googleblog.blogspot.com/2010/03/next-steps-for-ourexperimental-fiber.html (noting that "1,100 community responses and more than194,000 responses from individuals" were received in response toGoogle's Request for Information).
(2.) Milo Medin, Ultra High-Speed Broadband is Coming to KansasCity, Kansas, GOOGLE BLOG (Mar. 30, 2011),http://googleblog.blogspot.com/2011/03/ultra-high-speedbroadband-is-coming-to.html. Kansas City, Missouri, was announced just less than twomonths later. Milo Medin, Everything's Up to Date in Kansas City,GOOGLE FIBER BLOG (May 17, 2011),http://googlefiberblog.blogspot.com/2011/05/everythings-up-to-date-inkansas-city.html. For the purposes of this Note, projects in both citieswill be referred to as "Kansas City," irrespective of state.Note that as of March 2013, Google also entered into an agreement withbordering city Olathe. Rachel Hack, Google Fiber is Coming to Olathe,Kansas, GOOGLE FIBER BLOG (Mar. 19, 2013),http://googlefiberblog.blogspot.com/2013/03/google-fiber-is-coming-to-olathe-kansas.html.
(3.) DEVELOPMENT AGREEMENT, FINAL EXECUTION VERSION 5, 7 (2011),available at http://www.netcompetition.org/wp-content/uploads/Google-Kansas-Agreement1.pdf. In addition to residential service, Google promisedconnections to 300 city and governmental locations. Id. at 7.
(4.) FCC, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 9 (2010)[hereinafter NATIONAL BROADBAND PLAN], available athttp://download.broadband.gov/ plan/national-broadband-plan.pdf.
(5.) This cost represents only the price for Internet, not Internetand TV service. The cost for an Internet and TV bundle is $120 permonth. GOOGLE FIBER, https://fiber.google.com/about/(last visited Jan.31, 2012).
(6.) While rights-of-way approval is needed to access buildings,poles, and railroads, this Note primarily focuses its solutions onroads, by reference to dig once policies.
(7.) Ajit Pai, Commissioner, FCC, Opening Remarks of CommissionerAjit Pai at the Telecommunications & E-Commerce Committee Roundtableof the U.S. Chamber of Commerce (Sept. 14, 2012) [hereinafter September14 Remarks of Comm'r Pai], available athttp://transition.fcc.gov/Daily-Releases/Daily-Business/2012/db0914/DOC-316277A1.pdf.
(8.) Ajit Pai, Commissioner, FCC, Statement of Commissioner AjitPai on His Visit to Kansas City's Google Fiber Project (Sept. 5,2012), available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0905/DOC-316114A1.pdf.
(9.) Id.
(10.) Id.
(11.) Id.
(12.) Field Hearing on Innovation and Regulation Before the H.Comm. on Oversight and Gov't Reform, 112th Cong. 3 (2011)[hereinafter Testimony of Milo Medin], available athttp://oversight.house.gov/wp-content/uploads/2012/01/TestimonyofMiloMedin_1.pdf (testimony of Milo Medin, Vice President of Access Services,Google Inc.).
(13.) This included access to roads, poles, and buildings.DEVELOPMENT AGREEMENT, supra note 3, at 4.
(14.) Id. at 1,4.
(15.) Timothy B. Lee, How Kansas City Taxpayers Support GoogleFiber: Google Fiber Isn't Exactly a Free-Market Success Story, ARSTECHNICA (Sept. 7, 2012, 8:00 AM),http://arstechnica.com/tech-policy/2012/09/how-kansas-city-taxpayers-support-google-fiber/ ("When a city offers a private company access tothose resources for free, it's forgoing an opportunity to raiserevenue. The implicit subsidy is even clearer when taxpayers, ratherthan Google, pay to hire extra city staff to supervise theproject.").
(16.) Fred Campbell, Market Demand Knocks Down Regulatory Barriersin Kansas City Fiber Deployment, ARS TECHNICA (Sept. 27, 2012, 1:25 PM),http://arstechnica.com/business/2012/09/market-demand-knocks-down-regulatory-barriers-in-kansas-city-fiberdeployment/(emphasis added) ("It infers too much toconclude that in-kind subsidies are required to build competitive fibernetworks merely because Google objected to unreasonable fees andregulations and accepted the support offered by Kansas City.").
(17.) Id. ("Google Fiber indicates that we should beencouraging private firms to build competitive networks withoutgovernment subsidy whenever possible and rely on explicit subsidies onlywhen necessary."); Lee, supra note 15 ("[W]e shouldacknowledge the possibility that it simply doesn't make economicsense for private firms to build new fiber networks without taxpayersubsidies.").
(18.) Press Release, FCC, FCC Chairman Julius Genachowski IssuesGigabit City Challenge to Providers, Local, and State Governments toBring at Least One Ultra-Fast Gigabit Internet Community to Every Statein U.S. by 2015: FCC's Broadband Acceleration Initiative to FosterGigabit Goal (Jan. 18, 2013) [hereinafter FCC's BroadbandAcceleration Initiative], available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0118/DOC-318489A1.pdf.
(19.) NATIONAL BROADBAND PLAN, supra note 4, at xiv.
(20.) See id. at 135-36.
(21.) Statement of Commissioner Ajit Pai on His Visit to KansasCity's Google Fiber Project, supra note 8.
(22.) See Henry M. Littlefield, The Wizard of Oz: A Parable onPopulism, 16 AM. Q. 1 (Spring 1964), available athttp://www.jstor.org/stable/2710826.
(23.) E.g., Reply Comments of Google Inc. at 40, A NationalBroadband Plan for Our Future, FCC GN Docket No. 09-51 (rel. July 2 l,2009) [hereinafter Reply Comments of Google Inc.], available athttp://apps.fcc.gov/ecfs/document/view?id=7019917558. Many commenters,including Google, urged the FCC to reduce barriers to wirelessdeployment, including reducing and/or eliminating zoning andrights-of-way barriers for municipal networks and commercialdeployments, and clarifying timelines in the wireless facilities zoningapproval process. See, e.g., id.
(24.) Joel Gurin, More on Speed: Just How Satisfied Are Customers,OFFICIAL FCC BLOC (June 2, 2010),http://www.fcc.gov/blog/more-speed-just-how-satisfied-arecustomers.
(25.) Frederick E. Ellrod III & Nicholas P. Miller, PropertyRights, Federalism and the Public Rights-of-Way, 26 SEATTLE U. L. REV.475, 483-85 (2003) [hereinafter Ellrod] (asserting that "the publicrights-of-way belong to the community, and neither a private company northe federal government can use that property without the owner'spermission").
(26.) See e.g., TWC of Oregon v. City of Portland, 452 F. Supp. 2d1084, 1099-1101 (D. Or. 2006) (finding that a 5% fee is "fair andreasonable compensation" and that "compensation" is notlimited to actual cost); Ellrod, supra note 25, at 500 (noting thatreading section 253 to prevent local communities from charging fairmarket value would result in an unconstitutional taking). But see ThomasW. Snyder & Walter Fitzsimmons, Putting a Price on Dirt: The Needfor Better Defined Limits on Government Fees for the Use of the PublicRight-of-Way Under Section 253 of the Telecommunications Act of 1996, 64FED. COMM. L. J. 137, 160-66 (2011) (noting that section 253 should beread to prohibit revenue-generating fees on public fight of ways andlimit fees to management costs and any other proven economic value);Reply Comments of the Am. Cable Ass'n at 9, Acceleration ofBroadband, FCC WC Docket No. 11-59 (rel. Sept. 30 2011) [hereinafterReply Comments of ACA], available athttp://apps.fcc.gov/ecfs/document/view?id=7021712335 ("Manygovernment and private entities seem to approach requests for access tofacilities or crossings as opportunities for revenue-generation ratherthan recovery of 'administrative and other specificallyidentifiable costs.'").
(27.) E.g., NAT'L ASS'N OF TELECOMM. OFFICERS &ADVISORS, INTRODUCTION TO NATOA'S BROADBAND PRINCIPLES 3-4 (June2008), available at http://www.natoa.org/Documents/BroadbandPreamble%26Principles.pdf.
(28.) Exec. Order No. 13,616, 77 Fed. Reg. 36,903 (June 20, 2012)[hereinafter Executive Order Accelerating Broadband InfrastructureDeployment], available athttp://www.gpo.gov/fdsys/pkg/FR-2012-06-20/pdf/2012-15183.pdf.
(29.) See Matthew Lasar, Congress: It's Time to Rewrite theTelecommunications Bible, ARS TECHNICA (May 25, 2010, 9:25 AM),http://arstechnica.com/tech-policy/2010/05/congress-its-time-to-rewrite-the-telecommunications-bible/(addressingthe need in 2010 for Congress to revise the Telecommunications Act inlight of the FCC's regulatory actions regarding broadband). Forexample, gun control legislation was a primary issue for Congress andthe Obama administration in early spring 2013. See, e.g., Peter Baker,Months After Massacre, Obama Seeks to Regain Momentum on Gun Laws, N.Y.TIMES (Mar. 28, 2013),http://www.nytimes.com/2013/03/29/us/politics/obama-makes-impassioned-plea-for-gun-control.html.
(30.) See generally HAL J. SINGER & JEFFREY D. WEST,FIBER-TO-THE HOME COUNCIL, ECONOMIC EFFECTS OF BROADBAND INFRASTRUCTUREINVESTMENT AND TAX INCENTIVES FOR BROADBAND DEPLOYMENT (2010), availableat http://www.ftthcouncil.org/p/cm/ld/ fid=44&tid=76&sid=67(noting the significant economic benefit of broadband investment).
(31.) See H.R. 1695, 112th Cong. [section] 2 (2011) [hereinafterH.R. 1695]; S. 1939, 112th Cong. [section] 2 (2011) [hereinafter S.1939].
(32.) E.g., Comments of the City of Lafayette, Cal. at 1,Acceleration of Broadband Deployment by Improving Policies RegardingPublic Rights of Way and Wireless Facilities Siting, FCC WC Docket No.11-59 (rel. June 13, 2012) [hereinafter Comments of the City ofLafayette], available athttp://apps.fcc.gov/ecfs/document/view?id=7021922511 ("It would bedangerous to the public, and harmful to communities, to attempt todevelop federal rules that prevented localities from fully consideringthe impact of installations, or modifications to installations in theright-of-way."); Comments of Intergovernmental Advisory Coma. at 5,Acceleration of Broadband Deployment by Improving Policies RegardingPublic Rights of Way and Wireless Facilities Siting, FCC WC Docket No.11-59 (rel. Mar. 16, 2012) [hereinafter Comments of IAC], available athttp://apps.fcc.gov/ecfs/document/view?id= 7021901497 ("TheCommission must respect the fact that while we recognize the importanceof broadband to the future of our communities, it is but one of multipleresponsibilities and obligations we face, and our task is to balance thepromotion of broadband deployment and adoption with these otherresponsibilities.").
(33.) Infra Part II.C.
(34.) NATIONAL BROADBAND PLAN, supra note 4, at 135.
(35.) Inquiry Concerning the Deployment of Advanced Telecomm.Capability, Eighth Broadband Progress Report, FCC 12-90, GN Docket No.11-121, para. 5 (2012) [hereinafter Eighth Broadband Progress Report],available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0827/FCC-12-90A1.pdf.
(36.) This Note assumes that universal high-speed broadband serviceis a goal worth attaining. For arguments to the contrary, see George S.Ford & Lawrence J. Spiwak, Justifying the Ends: Section 706 and theRegulation of Broadband, PHOENIX CTR. POLICY PERSPECTIVES No. 13-01,Feb. 25, 2013, at 3 (remarking that ubiquitous broadband may not bereasonable).
(37.) Eighth Broadband Progress Report, supra note 35, at Table 17.As of June 2011, the adoption rate for the United States as a whole was64% for fixed broadband at speeds of at least 768 kbps/200 kbps. Id.
(38.) INDUS. ANALYSIS & TECH. DIV., WIRELINE COMPETITIONBUREAU, FCC, INTERNET ACCESS SERVICE: STATUS AS OF DECEMBER 31, 2011 3(Feb. 2013), available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0207/DOC-318810A1.pdf.
(39.) W. TELECOMM. ALLIANCE, WIRELESS SERVICE DEPENDS ON ROBUSTWIRELINE NETWORKS, available athttp://w-t-a.org/wp-content/uploads/2010/07/Advantages-of-Wireline-Network-011011.pdf; see also Comments of the U.S. Telecomm. Ass'n at 6,Concerning the Deployment of Advanced Telecommunications Capability, FCCGN Docket No. 12-228 (rel. Sept. 20, 2012) [hereinafter Sept. 2012Comments of US Telecomm.], available athttp://apps.fcc.gov/ecfs/document/view?id=7022018033 ("Whether theconsumer's device is connected to a mobile wireless tower, a WiFihot spot, or plugged into a fixed network, wireline expansion isrequired in order to accommodate wireless data traffic....").
(40.) NATIONAL BROADBAND PLAN, supra note 4, at 4; Eighth BroadbandProgress Report, supra note 35, at para. 5; BENJAMIN LENNETT, SARAH J.MORRIS & GRETA BYRUM, NEW AM. FOUND., UNIVERSITIES AS HUBS FORNEXT-GENERATION NETWORKS 3 (2012), available athttp://newamerica.net/sites/newamerica.net/files/policydocs/Universities%20as %20Hubs%20for%20Next-Generation%20Networks_3.pdf.
(41.) While some commenters, such as Verizon, rejected thisassertion by claiming that people have access to wireless broadband, thecapabilities and available uses of wireless broadband differ from thatof fiber because of data caps and lower speeds. See Comments of Vefizonat 14, Concerning the Deployment of Advanced TelecommunicationsCapability, FCC WC Docket No. 12-228 (rel. Sept. 20, 2012) [hereinafterComments of Verizon], available athttp://apps.fcc.gov/ecfs/document/view?id=7022018156 ("Indeed, witha population of 316.7 million in the United States with 96.65 percent ofthe U.S. population having access to high-speed broadband, includingwireless broadband, NTIA's most recent data reflect that fewer thanfour percent of residents lack access to broadband service with downloadspeeds in excess of the Commission's benchmark.").
(42.) Eighth Broadband Progress Report, supra note 35, at para. 5.
(43.) Reply Comments of Google Inc., supra note 23, at 14.
(44.) See CHARLES M. DAVIDSON & MICHAEL J. SANTORELLI, ADVANCEDCOMMC'NS LAW & POLICY INST., BROADBAND AND THE EMPIRE STATE:TOWARD UNIVERSAL CONNECTIVITY IN NEW YORK 5 (2012), available athttp://nysbroadband.ny.gov/assets/documents/ACLPReporteSeptember2012.pdf.
(45.) See CAL. BROADBAND TASK FORCE, THE STATE OF CONNECTIVITY:BUILDING INNOVATION THROUGH BROADBAND 13 (2007), available athttp://www.cio.ca.gov/ broadband/pdf/CBTF_FINAL_Report.pdf.
(46.) See Elise Ackerman, How Kansas Won the Google Fiber Jackpotand Why California Never Will, FORBES (Aug. 4, 2012, 7:14 PM),http://www.forbes.com/sites/eliseackerman/2012/08/04/how-kansas-won-the-google-fiber-jackpot-and-why-california-never-will/.
(47.) Cynthia Lane, High-Speed Fiber: A Huge Opportunity for KansasCity Students, GOOGLE FIBER BLOG (Aug. 13, 2012),http://googlefiberblog.blogspot.com/2012/08/high-speed-fiber-huge-opportunity-for.html.
(48.) See OFFICE OF ENG'G & TECH., CONSUMER &GOVERNMENTAL AFFAIRS BUREAU, FCC, 2013 MEASURING BROADBAND AMERICA: AREPORT ON CONSUMER WIRELINE BROADBAND PERFORMANCE IN THE U.S. 52 (Feb.2013), available at http://transition.fcc.gov/cgb/measuringbroadbandreport/2013/Measuring-Broadband-America-feb-2013.pdf. For example, VerizonFiber offers 300 Mbps speeds in select locations, while the cableindustry "intends to extend its service to rates beyond 100Mbps." Id.
(49.) FCC, CHAIRMAN KENNARD'S AGENDA FOR THE FCC FOR 1999(Jan. 7, 1999), available athttp://transition.fcc.gov/Speeches/KennardJStatements/stwek901.html.
(50.) Id.
(51.) See, e.g., Eighth Broadband Progress Report, supra note 35,at para. 1.
(52.) Memorandum on Improving Rights-of-Way Management AcrossFederal Lands to Spur Greater Broadband Deployment, 40 WEEKLY COMP.PRES. DOC. 696 (Apr. 26, 2004), available athttp://www.gpo.gov/fdsys/pkg/WCPD-2004-05-03/pdf/WCPD-2004.05.03-Pg696.pdf#page=l.
(53.) WHITE HOUSE, A NEW GENERATION OF AMERICAN INNOVATION 11 (Apr.2004), available at http://www.eclac.cl/iyd/noticias/pais/6/31456/EEUU_doc_1.pdf.
(54.) NATIONAL BROADBAND PLAN, supra note 4, at 3.
(55.) Eighth Broadband Progress Report, supra note 35, at para. 136("Private industry is continuing to build out broadband and hasinvested significantly into broadband networks to date.").
(56.) Id. at para. 135 ("The nation's deployment gapremains significant and is particularly pronounced for Americans livingin rural areas and on Tribal lands.").
(57.) Id. at para. 5.
(58.) Comments of Verizon, supra note 41, at 3; Comments ofCTIA--The Wireless Ass'n at 4, Concerning the Deployment ofAdvanced Telecommunications Capability, FCC GN Docket No. 12-228 (rel.Sept. 20, 2012) [hereinafter Sept. 2012 Comments of CTIA], available athttp://apps.fcc.gov/ecfs/document/view?id=7022018076; Comments ofComcast at 3, Concerning the Deployment of Advanced TelecommunicationsCapability, FCC GN Docket No. 12-228 (rel. Sept. 20, 2012), available athttp://apps. fcc.gov/ecfs/document/view?id=7022018162; Sept. 2012Comments of US Telecomm., supra note 39, at 13. But see Comments of theNat'l Ass'n of Telecomm. Officers and Advisors at 2,Concerning the Deployment of Advanced Telecommunications Capability, FCCGN Docket No. 12-228 (rel. Sept. 20, 2012) [hereinafter Comments ofNATOA], available athttp://apps.fcc.gov/ecfs/document/view?id=7022018052; Comments of theFiber-to-the-Home Council at 14, Concerning the Deployment of AdvancedTelecommunications Capability, FCC GN Docket No. 12-228 (rel. Sept. 20,2012) [hereinafter Comments of FTTHC], available athttp://apps.fcc.gov/ecfs/document/ view?id=7022018101.
(59.) NATIONAL BROADBAND PLAN, supra note 4, at 135; seeTelecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56[section] 706 (codified at 47 U.S.C. [section] 1302 (2006)).
(60.) A right-of-way is a property interest owned by the state orlocality, and ISPs obtain an easem*nt to use that interest through feespaid for access. Ellrod, supra note 25, at 482; Jennifer Amanda Krebs,Fair and Reasonable Compensation Means Just That: How [section] 253 ofthe Telecommunications Act Preserves Local Government Authority OverPublic Rights-of-Way, 78 WASH. L. REV. 901, 904 (2003).
(61.) See NATIONAL BROADBAND PLAN, supra note 4, at 114, 109.
(62.) See generally Ellrod, supra note 25, at 489-500; ChristopherR. Day, The Concrete Barrier at the End of the Information Superhighway:Why Lack of Local Rights-of-Way Access Is Killing Competitive LocalExchange Carriers, 54 FED. COMM. L.J. 461, 488 (2002).
(63.) NATIONAL BROADBAND PLAN, supra note 4, at 171.
(64.) See Sept. 2012 Comments of US Telecomm., supra note 39, at 5("The wireline portion of broadband provider capital expendituresremains the largest component of broadband investment.... In 2011wireline companies still contributed the most capital at [forty-one]percent, followed closely by [forty] percent for wireless and then cableat [nineteen] percent.").
(65.) NATIONAL BROADBAND PLAN, supra note 4, at 114. Similarly, theFCC estimates that "the collective expense of obtaining permits andleasing pole attachments and rights-of-way can amount to 20% of the costof fiber optic deployment." Id. at 109. See also Guatham Nagesh,House Dems Want Cost Estimate for 'Dig Once' Broadband,HILLICON VALLEY (July 26, 2011, 10:29 AM),http://thehill.com/blogs/hillicon-valley/technology/173537-house-dems-want-analysis-of- laying-fiber-optic-cable-along-highways#ixzz2Ki3VSZ8Q.
(66.) ALCATEL-LUCENT, DEPLOYING FIBER-TO-THE-MOST-ECONOMIC POINT 6(2007), available athttp://www.alcatel.hu/wps/DocumentStreamerServlet?LMSG_CABINET=Docs_and_Resource_Ctr&LMSG_CONTENT_FILE=Other/23168_DeployFiber_wp.pdf; see also Stacey Higginbotham, The Economics of Google Fiber and WhatIt Means for U.S. Broadband, GIGAOM (July 26, 2012, 3:52 PM),http://gigaom.com/2012/07/26/the-economics-of-google-fiber-and-what-it-means-for-u-s-broadband/("It's accepted that one of the mostcostly elements of building out a fiber network is the physical laborassociated [with it].... Google has already strung cable on power linesthroughout Kansas City and lowered those costs by working with the localutility and AT&T to get access to the utility poles without havingto pay high fees.").
(67.) See U.S. DEP'T OF TRANSP., TELECOMMUNICATIONS HANDBOOKFOR TRANSPORTATION PROFESSIONALS 41 (2004), available athttp://ops.fhwa.dot.gov/publications/telecomm_handbook/telecomm_handbook.pdf.
(68.) See David Talbot, When Will the Rest of Us Get Google Fiber?,MIT TECH. REV. (Feb. 4, 2013),http://www.technologyreview.com/news/510176/when-will-the-rest-of-us-get-google-fiber/.
(69.) See id.
(70.) COLUMBIA TELECOMM. CORP., BROADBAND IN GARRETT COUNTY: ASTRATEGY FOR EXPANSION AND ADOPTION 13, 16 (May 1, 2012), available athttp://www.garrettcounty.org/dotcom/files/GarrettCountyBroadbandReport.pdf ("[A]bsent extremely costly public subsidy ... it is almostimpossible for the public sector to dramatically change that economiccalculus.").
(71.) See id. at 13, 16.
(72.) Id. at 9-10, 12.
(73.) See Scott Canon, Google Fiber's Gigabit Gamble HasImplications Far Beyond KC, KAN. CITY STAR (Sept. 24, 2012),http://www.kansascity.com/2012/09/24/3832330/google-fibers-gigabit-gamble-has.html (noting in an interview withFiber-to-the-Home Council's Matthew Render that the Google Fiberproject may not be profitable); Haydn Shanghnessy, Google Fiber andGoogle Glass Could Also Come to Nothing, FORBES (Apr. 26, 2013 12:26PM), http://www.forbes.com/sites/haydnshaughnessy/2013/04/26/google-fiber-and-google-glass-could-also-come-to-nothing/2/ (indicatingthat Google's investment in three cities may not be a soundbusiness strategy).
(74.) FCC's Broadband Acceleration Initiative, supra note 18,at 2.
(75.) See Cyrus Farivar, Google Fiber is Live in Kansas City, RealWorld Speeds at 700Mbps, ARS TECHNICA (Nov. 13, 2012, 8:35 PM),http://arstechnica.com/business/2012/11/google-fiber-is-live-in-kansas-city-real-world-speeds-at-700-mbps/ (noting that a group of entrepreneurs arrived in Kansas City seekingfiber eligible homes); Ben Palosaari, With Google Putting Fiber inAustin, Kansas City Startup Village Confronts an Uncertain Future, PITCH(Apr. 30, 2013), http://www.pitch.com/kansascity/kansas-city-startup-village-google_fiber/Content?oid=3214898&showFullText=true (discussing the expansion of the "Kansas City StartupVillage").
(76.) Matt Dunne, Answers to Your Town Hall Questions--Part II,GOOGLE FIBER BLOG (June 15, 2011),http://googlefiberblog.blogspot.com/2011/06/answers-to-your-town-hall-questions_15.html.
(77.) Lane, supra note 47.
(78.) Kenneth Carter, The State of Broadband Internet Access inKansas City, GOOGLE FIBER BLOG (June 22, 2012),http://googlefiberblog.blogspot.com/2012/06/state-of-broadband-Internet-access-in.html. But see Mary Sanchez, Google Spreads, But Issue ofDigital Divide Remains, KAN. CITY STAR (Mar. 20, 2013),http://www.kansascity.com/2013/03/20/4133131/as-google-spreads-issue-of-digital.html. This does notmean, however, that low-income residents would not have access toInternet at public institutions such as libraries, schools, or othercommunity hubs. Id. See also Karl Bode, Low Income Kansas City ResidentsLeft in Google Fiber Dust, DSL REPORTS (Aug. 29, 2012),http://www.dslreports.com/shownews/Low-Income-Kansas-City-Residents-Left-in-Google-Fiber-Dust-120967 (noting that subscriber rates for lowincome neighborhoods were low).
(79.) See Comments of Google at 1, 5, A National Broadband Plan forOur Future, FCC GN Docket No. 09-51 (rel. June 8, 2009) [hereinafterJune 8 Comments of Google], available athttp://apps.fcc.gov/ecfs/document/view?id=6520220241.
(80.) See Frequently Asked Questions--Fiberhoods, GOOGLE FIBER,https://fiber. google.com/help/(last visited July 11, 2013) ("Wewill be able to include you in a future rally, but for now we can'tcommit to building in your fiberhood. If you pre-registered for serviceyou'll receive a refund of your $10 pre-registration fee within tendays of when we publish the final list of qualified fiberhoods.").
(81.) Frequently Asked Questions--Fiberhoods, supra note 80("A fiberhood is a portion of [Kansas City] that includes about250-1,500 households.").
(82.) Interview with Derek Slater, Policy Analyst, Google Inc.(Sep. 4, 2013), see Bryant Community, GOOGLE FIBER,https://fiber.google.com/cities/kck/#header=check&fiberhood=knsskskenf04 (last visited July 11, 2013) ("During thesummer 2012 rally, this fiberhood did not get enough pre-registrationsto qualify for Google Fiber.").
(83.) Frequently Asked Questions--Fiberhoods, supra note 80("A fiberhood is a portion of [Kansas City] that includes about250-1,500 households.").
(84.) See Anna-Maria Kovacs, Rational Broadband Investment: Why theFCC's New Task Force is a Good Step Forward, FIERCETELECOM (Dec.11, 2012), http://www.fiercetelecom.com/story/rational-broadband-investment-why-fccs-new-task-force.good_step-forward/2012-12-11#ixzz2GJ7qarzu; ANUPAM BANERJEE & MARVINSIRBU, TOWARDS TECHNOLOGICALLY AND COMPETITIVELY NEUTRAL FIBER TO THEHOME (FTTH) INFRASTRUCTURE 9-10, available athttp://www.andrew.cmu.edu/user/sirbu/pubs/ Banerjee_Sirbu.pdf("[T]he cost of trenching or making poles ready to deploy fiber isprohibitively high for one to go back and retrofit fiber as more homessubscribe to the service.").
(85.) See Frequently Asked Questions--Basics, GOOGLE FIBER,https://fiber. google.com/help/ (last visited Jan. 21, 2013) ("So,in those fiberhoods that are more complicated to build, we wanted tomake sure that enough residents want Fiber service."); Kovacs,supra note 84.
(86.) See DAVIDSON & SANTORELLI, supra note 44, at 25("[P]ockets of unserved areas persist because no business caseexists for service providers to extend their networks to theseareas.").
(87.) Frequently Asked Questions--Fiberhoods, supra note 80("[F]or now we can't commit to building in yourfiberhood."). But see Fred Bauters, Brad Feld, Startup Village GetSecond Chance at Google Fiber, SILICON PRAIRIE NEWS (Mar. 15, 2013),http://www.siliconprairienews.com/2013/03/brad-feld-startup-village-get-second_chance-at-google-fiber (extendingthe application date two weeks for at least one fiberhood).
(88.) See BANERJEE & SIRBU, supra note 84, at 9-11.
(89.) Carter, supra note 78 (noting that roughly 25% of KansasCity's population was not using the Internet; of those not usingthe internet, 28% said it was because they were without a computer or itwas too expensive).
(90.) See Testimony of Milo Medin, supra note 12 ("Ifregulations create disincentives for a large, well-established companies[sic] like Google, just imagine the impact on small and medium-sizedenterprises, including the next generation of entrepreneurs who are justgetting started.").
(91.) See Reply Comments of Google Inc., supra note 23, at 10("While supply may be the primary focus ... the analysis also mustinclude demand-side issues."); Connect America Fund, Report andOrder and Further Notice of Proposed Rulemaking, FCC 11-161, para. 20(2011) [hereinafter Connect America Fund Order], available athttp://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-161A1.pdf(discussing the FCC's establishment of the Connect America Fund,which will provide funding for broadband). This Note does not attempt toaddress the effect the CAF might have on universal service in thelong-term or who may be the appropriate party or parties for the FCC tosubsidize.
(92.) NATIONAL BROADBAND PLAN, supra note 4, at 113.
(93.) Id.
(94.) Reply Comments of Google Inc., supra note 23, at 38-40, 743;Richard Whitt, Experimenting with New Ways to Make Broadband Better,Faster, and More Available, GOOGLE FIBER BLOG (Feb. 10, 2010),http://googlefiberblog.blogspot.com/2010/02/experimenting-with-new-ways-to-make.html; Richard Whitt, Google SubmitsInitial Comments Supporting a National Broadband Plan, GOOGLE PUBLICPOLICY BLOG (June 8, 2009, 4:06 PM),http://googlepublicpolicy.blogspot.com/2009/06/google-submits-initial-comments.html.
(95.) NATIONAL BROADBAND PLAN, supra note 4, at 114.
(96.) Id.
(97.) Broadband Conduit Deployment Act, H.R. 2428, 111th Cong.(2009) [hereinafter H.R. 2428], available athttp://www.gpo.gov/fdsys/pkg/BILLS-111hr2428ih/pdf/BILLS-111hr2428ih.pdf. The next month, Sen. Amy Klobuchar (D-MN) sponsored and presented thesame bill in the Senate. Broadband Conduit Deployment Act, S. 1266,111th Cong. (2009) [hereinafter S. 1266], available athttp://www.gpo.gov/fdsys/pkg/BILLS-111s1266is/pdf/BILLS-111s1266is.pdf.
(98.) NATIONAL BROADBAND PLAN, supra note 4, at 114.
(99.) H.R. 1695, supra note 31; S. 1939, supra note 31. The Actswere largely the same as the 2009 versions, and the House and Senatebills were almost identical. See H.R. 2428, supra note 97; S. 1266,supra note 97. The only addition in the 2011 Act was an added"access" provision that read as follows: "[t]he Secretaryshall ensure that any requesting broadband provider has access to eachbroadband conduit installed pursuant to this section, on a competitivelyneutral and nondiscriminatory basis, for a charge not to exceed acost-based rate." H.R. 1695, supra note 31.
(100.) 23 U.S.C. [section][section] 301-329 (2006).
(101.) H.R. 2428, supra note 97; S. 1266, supra note 97.
(102.) H.R. 2428, supra note 97, at [section] 330(b).
(103.) Id.
(104.) Id.
(105.) Rep. Eshoo Urges Department of Transportation to ImplementCost-Saving Measures to Expand Broadband, CONGRESSWOMAN ANNA G. ESHOO(Dec. 1, 2011), http://eshoo.house.gov/index.php?option=com_content&task=view&id=1111&Itemid=100067.
(106.) The Jobs Deficit CONGRESSWOMAN ANNA G. ESHOO (Aug. 24,2011), http://eshoo.house.gov/index.php?option=com_content&view=article&id=1048:the-jobsdeficit&catid=6:e-newsletters&Itemid=100219.
(107.) Id.
(108.) U.S. GOV'T ACCOUNTABILITY OFFICE, BROADBAND CONDUITREPORT: GAO 12687R 1 (2012) [hereinafter BROADBAND CONDUIT REPORT],available at http://www.gao.gov/assets/600/591928.pdf.
(109.) S. 1939, GOVTRACK.US,http://www.govtrack.us/congress/bills/112/s1939 (last visited Sept. 28,2013); H.R. 1695, GOVTRACK.US, http://www.govtrack.us/congress/bills/112/hr1695 (last visited Sept. 28, 2013).
(110.) Exec. Order No. 13,604, 77 Fed. Reg. 18,887 (Mar. 22, 2012)[hereinafter Executive Order Improving Performance of Federal Permittingand Review], available athttp://www.gpo.gov/fdsys/pkg/FR-2012-03-28/pdf/2012-7636.pdf.
(111.) Id.
(112.) Id.
(113.) Id. at 18,888.
(114.) Id. at 18,889-90.
(115.) Executive Order Accelerating Broadband infrastructureDeployment, supra note 28, at 36,905.
(116.) Id.
(117.) See BROADBAND CONDUIT REPORT, supra note 108.
(118.) Id. at 7.
(119.) Id. at 4.
(120.) Testimony of Milo Medin, supra note 12, at 3 ("Byinstalling conduit any time construction is going on, the cost of thatconstruction is amortized over all projects that later utilize theconduit, reducing costs dramatically.").
(121.) BROADBAND CONDUIT REPORT, supra note 108, at 4.
(122.) DAVIDSON & SANTORELLI, supra note 44, at 25.
(123.) See BROADBAND CONDUIT REPORT, supra note 108, at 5.
(124.) Acceleration of Broadband Deployment: Expanding the Reachand Reducing the Cost of Broadband Deployment by Improving PoliciesRegarding Public Rights of Way and Wireless Facilities Siting, Notice ofInquiry, FCC 11-51, paras. 2, 7 (2011) [hereinafter FCC 2011 NOI],available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC_11-51A1.pdf; Inquiry Concerning the Deployment of Advanced TelecommunicationsCapability to All Americans in a Reasonable and Timely Fashion, andPossible Steps to Accelerate Such Deployment Pursuant to Section 706 ofthe Telecommunications Act of 1996, as Amended by the Broadband DataImprovement Act, Ninth Broadband Progress Notice of Inquiry,
FCC 12-91, paras. 2, 19-20, 22 (2012) [hereinafter Ninth BroadbandProgress NOI], available athttp://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-91A1.pdf.
(125.) E.g., Written Ex Parte Presentation of Wireless InternetService Providers Ass'n at 2, Acceleration of Broadband Deployment,FCC WC Docket No. 11-59 (rel. Aug. 6 2012), available athttp://apps.fcc.gov/ecfs/document/view?id=7021996892 [hereinafter ExParte Comments of WISPA]; Ex Parte Communication of CTIA The WirelessAss'n at 6, Acceleration of Broadband Deployment, FCC WC Docket No.11-59 (rel. July 25, 2012), available athttp://apps.fcc.gov/ecfs/document/view?id=7021993700 [hereinafter July2012 Ex Parte Comments of CTIA]; Reply Comments of ACA, supra note 26,at 3.
(126.) E.g., Comments of Verizon, supra note 41, at 27.
(127.) Ex Parte Comments of WISPA, supra note 125, at 2,Acceleration of Broadband Deployment, FCC WC Docket No. 11-59 (rel. Aug.6 2012); July 2012 Ex Parte Comments of CTIA, supra note 125, at 2, 4-5;Ex Parte Communication of NextG Networks, Inc. at 2, Acceleration ofBroadband Deployment, FCC WC Docket No. 11-59 (rel. Feb. 3, 2012)[hereinafter Comments of NextG], available athttp://apps.fcc.gov/ecfs/document/view?id= 7021858363; Written Ex ParteCommunication of PCIA--The Wireless Infrastructure Ass'n at 2,Acceleration of Broadband Deployment, FCC WC Docket No. 11-59 (rel. July18, 2012) [hereinafter July 2012 Comments of PCIA], available athttp://apps.fcc. gov/ecfs/document/view?id=7021990194; Reply Comments ofA CA, supra note 26, at 7.
(128.) Comments of FTTHC, supra note 58, at 15; Reply Comments ofACA supra note 26, at 9, 18-19.
(129.) Comments of Verizon, supra note 41, at 29.
(130.) Reply Comments of ACA, supra note 26, at 7.
(131.) See Comments of Verizon, supra note 41, at 26-27; Commentsof PCIA--The Wireless Infrastructure Ass'n and the DAS Forum at3-4, Inquiry Concerning the Deployment of Advanced TelecommunicationsCapability to All Americans in a Reasonable and Timely Fashion, andPossible Steps to Accelerate Such Deployment Pursuant to Section 706 ofthe Telecommunications Act of 1996, as Amended by the Broadband DataImprovement Act, FCC GN Docket No. 12-228 (rel. Sept. 20, 2012),available at http://apps.fcc.gov/ecfs/document/view?id=7022018270;Comments of FTTHC, supra note 58, at 16 ("We are in the midst ofrewiring America with fiber, and the Commission has an important role toplay in removing barriers that thwart progress.").
(132.) Ex Parte Comments of WISPA, supra note 127, at 3 (noting theneed for master agreements, standardized processes, and known pointperson); July 2012 Ex Parte Comments of CTIA, supra note 127, at 3, 5(noting the need for master agreements, standardized processes, andknown point person); Comments of IAC, supra note 32, at 6 (suggestingvoluntary mediation).
(133.) 47 U.S.C. [section] 253(c) (2006) ("Nothing in thissection affects the authority of a State or local government to managethe public rights-of-way or to require fair and reasonable compensationfrom telecommunications providers, on a competitively neutral andnondiscriminatory basis, for use of public fights-of-way on anondiscriminatory basis, if the compensation required is publiclydisclosed by such government.").
(134.) Reply Comments of ACA, supra note 26, at 18; Comments ofNextG, supra note 127, at 2.
(135.) See generally Comments of NATOA, supra note 58, at 10(noting that efforts by industry to limit local government deployment ofmunicipal broadband networks disadvantages underserved communities giventhat many Americans live in areas where municipal networks providefaster speeds of service at a lower cost than private operators arewilling to provide); Comments of FTTHC, supra note 58.
(136.) See Comments of the City of Lafayette, supra note 32, at 1("While the FCC can serve an important role as a clearinghouse forinformation, it should avoid seeking to regulate what is necessarily alocal review process that must be based upon the facts specific toparticular installations."); Comments of NATOA, supra note 58, at 8(noting the importance of planning around anchor institutions and hotspots).
(137.) See Comments of IAC, supra note 32, at 4 ("Together,they agreed on a process to create a 'one stop shop' operationwhereby the network owner could, through one simplified application,obtain a permit to site facilities in any of the ten cities.").
(138.) Medin, Ultra-High Speed Broadband is Coming to Kansas City,Kansas, supra note 2.
(139.) Insofar as this has any effect on a state providingcompetitively neutral access to other service providers, this Note doesnot attempt to explore the consequences of a second market entrant whoattempts to replicate what Google Fiber did in Kansas City.
(140.) 47 U.S.C. [section] 253 (2006); 47 U.S.C. [section] 1302(2006).
(141.) See WILLIAM H. LEHR ET. AL, MEASURING BROADBAND'SECONOMIC IMPACT 12, 13 (Dec. 2005) ("They can, for instance, helppredict potential benefits obtainable from government investments thatdirectly or indirectly subsidize broadband deployment or use.").
(142.) For the opposing opinion, taken by service providers, seeComments of Verizon, supra note 41, at 25 ("In contrast, apiecemeal, localized approach of state or local regulation wouldeliminate those efficiencies and increase costs and would underminewidespread deployment and adoption of broadband.").
(143.) See Edward Feser, Encouraging Broadband Deployment from theBottom Up, 37(1) J. OF REGIONAL ANALYSIS & POL'Y 69, 69 (2007)(discussing how a "bottom-up" and narrowly tailored approachto fill broadband deployment gaps at the local level is more
favorable than a large-scale regulatory strategy that "seeksto address all broadband concerns in a comprehensive fashion.").
(144.) Jeremy D. Lemon, Reclassifying Broadband Internet Access:Who Cares What Congress Wants Anyway?, 6 LIBERTY U.L. REV. 137, 147-48(2011) (internal citations omitted) ("In sum, no part of broadbandInternet access has ever been regulated as a telecommunications serviceeven though Internet access has a telecommunications component. Rather,the FCC has interpreted the Communications Act and theTelecommunications Act to mean that broadband Internet access should beregulated as an information service, subject only to the FCC'sancillary jurisdiction under Title I.").
(145.) 47 U.S.C. [section] 253(a) (2006) (emphasis added).
(146.) 47 U.S.C. [section] 153(20) (2006) ("The term"information service" means the offering of a capability forgenerating, acquiring, storing, transforming, processing, retrieving,utilizing, or making available information via telecommunications, andincludes electronic publishing, but does not include any use of any suchcapability for the management, control, or operation of atelecommunications system or the management of a telecommunicationsservice.").
(147.) 47 U.S.C. [section] 153(43) (2006) ("The term"telecommunications" means the transmission, between or amongpoints specified by the user, of information of the user'schoosing, without change in the form or content of the information assent and received."); 47 U.S.C. [section] 153(46) ("The term"telecommunications service" means the offering oftelecommunications for a fee directly to the public, or to such classesof users as to be effectively available directly to the public,regardless of the facilities used.").
(148.) Appropriate Regulatory Treatment for Broadband Access to theInternet Over Wireless Networks, Declaratory Ruling, FCC 07-30, paras.3-4 (2007) [hereinafter Wireless Declaratory Ruling], available athttp://fjallfoss.fce.gov/edocs_public/attachmatch/FCC_07_30A1.pdf(citing Nat'l Cable & Telecomms. Ass'n v. Brand X InternetServs., 545 U.S. 967 (2005)).
(149.) Wireless Declaratory Ruling, supra note 148, at para. 5;Appropriate Framework for Broadband Access to the Internet Over WirelineFacilities, Report and Order and Notice of Proposed Rulemaking, FCC05-150, paras. 5-6 (2005), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-150A1.pdf; see generally Brief forAppellee at 510, Verizon v. FCC, No. 11-1355 (D.C. Cir. Jan. 16, 2013)[hereinafter Brief for Appellee], available athttp://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0207/DOC318819A1.pdf (describing the FCC's classification decisions).
(150.) Ellrod, supra note 25, at 478; BellSouth Telecomm., Inc. v.Town of Palm Beach, 252 F.3d 1169, 1187-88 (11th Cir. 2001) ("Thefirst and most basic reason for interpreting (b) and (c) as safe harborprovisions is that, reading (a), (b), and (c) together, it is the onlyinterpretation supported by the plain language of the statute.... [I]tis not possible to read these subsections as pronouncing separatelimitations that a state or local government could'violate.'").
(151.) 47 U.S.C. [section] 253(b) (2006) (emphasis added).
(152.) 47 U.S.C. [section] 253(c) (2006) (emphasis added); see alsoEllrod, supra note 25, at 478.
(153.) 47 U.S.C. [section] 253(d) (2006).
(154.) 47 U.S.C. [section] 253(b), (c) (2006).
(155.) See FCC 2011 NOI, supra note 124, at 18.
(156.) See FCC 2011 NOI, supra note 124, at 17 ("Thus, webelieve the Commission has broad general rulemaking authority that wouldallow it to issue rules interpreting sections 253 and 332."); 47U.S.C. [section] 253(a), (c) (2006); Chevron v. NRDC, 467 U.S. 837, 844(1984); City of Arlington v. FCC, 133 S. Ct. 1863 (2013).
(157.) To Clarify Provisions of Section 332(c)(7)(B) to EnsureTimely Siting Review, Declaratory Ruling, FCC 09-99, para. 37 (2009)[hereinafter Shot Clock Ruling], available athttp://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-99A1.pdf.
(158.) CTIA Petition for Declaratory Ruling at 1 (July 11, 2008)[hereinafter Shot Clock Petition], available athttp://files.ctia.org/pdf/080711_Shot Clock_Petition.pdf; see 47 U.S.C.[section] 332(c)(7)(B)(ii) (2006).
(159.) 47 U.S.C. [section] 332(c)(7) (2006).
(160.) 47 U.S.C. [section] 332(c)(7)(B)(ii) (emphasis added).
(161.) Shot Clock Ruling, supra note 157, at paras. 45, 49.
(162.) Id. at paras. 37, 49.
(163.) Shot Clock Petition, supra note 158, at 35.
(164.) Shot Clock Ruling, supra note 157, at para. 67.
(165.) See FCC 2011 NOI, supra note 124, at 17.
(166.) See id. at 18 (citing Brand X, 545 U.S. 967 (holding thattelecommunications services did not include information services basedon the FCC's interpretation)).
(167.) Liberty Cablevision of Puerto Rico, Inc. v. Caguas, 417 F.3d216, 224 (1st Cir. 2005) ("[W]e reject the municipalities'argument that Liberty's provision of cable modern service rendersit liable for fees as a "telecommunications provider" underthe Telecommunications Act."). This Note does not argue that actionby the FCC if it chose to include broadband in the definition of"telecommunications services" under section 253 would beimproper. Any such action would be subject to a test of reasonablenessunder principles of Chevron. Arlington, 133 S.Ct. at 1869-71.
(168.) See Connect America Fund Order, supra note 91, at para. 70,n.95 (stating that section 706 is an independent source of authority).
(169.) 47 U.S.C. [section] 1302 (2006); Eighth Broadband ProgressRpt., supra note 35, para. 137 n.356 (emphasis added) (noting that"the language of the statute requires the Commission to make itsdetermination regarding all Americans").
(170.) 47 U.S.C. [section] 1302(d)(1) (2006).
(171.) NATIONAL BROADBAND PLAN, supra note 4, at 135; FCC 2011 NOI,supra note 124, at 32 Eighth Broadband Progress Report, supra note 35,at 62 ("[T]he standard against which we measure our progress isuniversal broadband deployment.").
(172.) See 47 U.S.C. [section] 1302(b) (2006).
(173.) Eighth Broadband Progress Report, supra note 35, at 55-58;Ninth Broadband Progress NOI, supra note 124, at 3-4. But see NinthBroadband Progress NOI, supra note 124, at 6 (recommending that the FCC"review and reset" the benchmark every few years).
(174.) If Google Fiber stands for the proposition that high-speedfiber is financially plausible to deploy, presumably the FCC coulddefine advanced telecommunications as one-gigabit fiber networks. Atthat point, deployment would not be "reasonable and timely,"and the FCC could continue to act to remove barriers. See 47 U.S.C.[section] 1302(b) (2006); Zach Walton, Time Warner Cable IncreasesSpeeds Near Kansas City, Could Be in Response to Google Fiber,WEBPRONEWS (Jan. 31, 2013),http://www.webpronews.com/time-warnercable-increases-speeds-near-kansas-city- could-be-in_response_to_google_fiber_2013.01 ("It won'tbe long before we start to see ISPs either competing for the first timein their existence or being left behind because they refused to innovateand compete with new technologies.").
(175.) Ninth Broadband Progress NOI, supra note 124, at 22.
(176.) Id.
(177.) Cf. Preserving the Open Interact, Report and Order, FCC10-201, para. 121 (2010) [hereinafter Open Internet Order], available athttp://hraunfoss.fcc.gov/edocs_ public/attachmatch/FCC-10-201Al.pdf(citing Ad Hoc Telecomms. Users Comm. v. FCC, 572 F.3d 903 (D.C. Cir.2009) (discussing the FCC's statutory authority granted by section706(a) as "broad," but "not unfettered"); Brief forAppellee, supra note 149, at 29 (internal citations omitted)("Verizon argues that Section 706(a) should be read to allow theFCC to use only authority already granted in other statutory provisions.That claim has no basis in-and is certainly not mandated by--thestatutory text.... Instead, Section 706(a) delegates to the Commissionthe authority to use 'other regulating methods that remove barriersto infrastructure investment.' By its terms, that command is nottied to other 'specifically-enumerated' regulatorymechanisms.").
(178.) Cf. Open Internet Order, supra note 177, at para. 123(discussing section 1302(b)'s grant of additional authority for theFCC to take actions such as enforcing open Internet principles); AmandaLeese, Net Transparency: Post-Comcast FCC Authority to EnforceDisclosure Requirements Critical to "Preserving the OpenInternet", 11 Nw. J. TECH. & INTELL. PROP. 81, 98 (2013)("Under this Comcast standard, it seems that FCC authorityavailable through the Brand X interpretation of Section 706 may not, inisolation, provide sufficient authority to implement the Rules. However,in light of the Brand X standard of review, it also seems that thenegative treatment in Comcast of authority granted through Section 706should not vitiate ancillary authority that Section 706 may lend to FCCenforcement of the transparency requirement in the Rules.").
(179.) See id.
(180.) Ellrod, supra note 25, at 533.
(181.) Open Internet Order, supra note 177, at para. 120.
(182.) Id. atpara. 119.
(183.) Id.
(184.) Id. at para. 120 Telecommunications Act of 1996, 47 U.S.C.[section] 253(a), (c) (2006); Chevron, 467 U.S. at 844; Arlington, 133S. Ct. 1863.
(185.) Ellrod, supra note 25, at 533 ("The lengthy debateregarding the preservation of local rights, and [Congress']ultimate inclusion in the 1996 Act, demonstrates that the 1996 Actembodies a deliberate policy decision by Congress to protect localcommunities' property rights and the central democratic value offederalism."); William Malone, Access to Local Rights-of-Way: ARebuttal, 55 FED. COMM. L.J. 251,255 (2003) ("It is apparent fromthe course of the legislative bill that the purpose dominating theenactment of Section 253(c) was largely the preservation of existinglocal rights and responsibilities with respect to localrights-of-way."); but see Day, supra note 62, at 467 ("Thelegislative history underpinning Section 253 suggests that Congressintended for local governments to have a limited role in controllingrights-of-way usage by telecommunications providers.").
(186.) See TILLMAN L. LAY, TAKING ANOTHER LOOK AT FEDERAL/STATEJURISDICTIONAL RELATIONSHIPS IN THE NEW BROADBAND WORLD 36-37 (2011),available at http://www.nrri.org/pubs/telecommunications/NRRI_Broadband_Relations-Sept_11-15.pdf.
(187.) Ellrod, supra note 25, at 500; Krebs, supra note 60, at912-15; Malone, supra note 185, at 258-59.
(188.) Ellrod, supra note 25, at 502-03.
(189.) See Comments of the City of Lafayette, supra note 32, at 1("IT]he FCC can serve an important role as a clearinghouse forinformation."); Comments of IAC, supra note 32, at 1 ("We urgethe Commission to work with us to better understand the local, state andtribal role in promoting broadband within our communities, and tosupport us in our efforts to make these goals attainable."); Sept.2012 Comments of CTIA, supra note 58, at 24 ("By advising localagencies on their roles and responsibilities, and on best practices intower siting, the FCC will help ensure that the timing of localapprovals is regular, predictable, and minimized.").
(190.) E.g., FCC TOOLS, http://www.fcc.gov/tools (last visited Mar.4, 2013); NTIA, NATIONAL BROADBAND MAP, http://www.broadbandmap.gov(last visited Mar. 4, 2013).
(191.) See NATOA, LOCAL GOVERNMENT PRINCIPLES RELATING TORIGHTS-OF-WAY MANAGEMENT AND COMPENSATION (2007), available athttp://www.natoa.org/documents/Local_Government_Principles_Relating_to_Rights_of.Way.pdf.
(192.) State Broadband Task Forces, Commissions, or Authorities andOther Broadband Resources, NAT'L CONFERENCE OF STATE LEGISLATURES(June 21, 2012), http://www.ncsl.org/issues-researcb-/telecom/state-broadband-task-forces-commissions.aspx.
(193.) NAT'L ASS'N OF REGULATORY UTIL. COMM'RS,PROMOTING BROADBAND ACCESS THROUGH PUBLIC RIGHTS OF WAY AND PUBLIC LANDS(2002), available at http://www.naruc.org/Publications/row_summer02.pdf.
(194.) Knowledge Center: Broadband, COUNCIL Or STATE GOVERNMENTS(Mar. 4, 2013), http://knowledgecenter.csg.org/kc/view-policy-areas/825.
(195.) Achievement Award Search, NAT'L ASS'N OF COUNTIES,http://www.naco.org/programs/recognition/Pages/AchievementAwardSearch.aspx (accessed bysearching for Information Technology) (last visited Mar. 4, 2013).
(196.) David St. John, BECOMING A FIBER-FRIENDLY COMMUNITY (May2013), available at http://www.ftthcouncil.org/p/bl/et/blogaid=214&source=1.
(197.) FTTH states "[local governments or their affiliates]should adopt clear, predictable rules for providers to attach theirwires and equipment across to these poles on a fiar [sic], reasonable,and competitively neutral basis." Id. at 4. However, FTTH providesno clarity as to what makes a policy clear, predictable, andcompetitively neutral, to provide a starting point for a community tobegin to develop those policies. Nor does it list the personnelresources necessary to accomplish each of the goals set forth in thepaper to becoming a "Broadband Friendly" community.
(198.) Memorandum from Tom Wheeler, Chair, Tech. Advisory Council,to FCC Comm'rs 2 (Apr. 22, 2011), available athttp://hraunfoss.fcc.gov/edocs_public/attachmatch/ DOC-306065A1.pdf.
(199.) Id.
(200.) FCC's Broadband Acceleration Initiative, supra note 18.
(201.) Id.
(202.) See 47 U.S.C. [section] 1302(b) (2006).
(203.) See GOOGLE INC., REQUEST FOR INFORMATION, supra note 1.
(204.) Id. at 10-11, 15-16.
(205.) Broadband Data Improvement Act of 2008, Pub. L. No. 110-385,122 Stat 4096 [section] 103 (codified at 47 U.S.C. [section] 1303(2012)).
(206.) Id.
(207.) See GOOGLE INC., REQUEST FOR INFORMATION, supra note 1.
(208.) Id.
(209.) See Ctr. for Pub. Integrity v. FCC, 505 F. Supp. 2d 105(D.C. Cir. 2007) (holding that some FCC broadband data is a trade secretsubject to an exemption from Freedom of Information Act disclosures);see also Benjamin W. Cramer, The Nation's Broadband Success Story:The Secrecy of FCC Broadband Infrastructure Statistics, 31 HASTINGSCOMM. & ENT. L.J. 339, 357-364 (2009).
(210.) See WHITE HOUSE OPEN GOVERNMENT INITIATIVE,http://www.whitehouse.gov/ open (last visited Mar. 27, 2013).
(211.) See Executive Order Improving Performance of FederalPermitting and Review, supra note 110, at 18,889.
(212.) Executive Order Accelerating Broadband InfrastructureDeployment, supra note 28, at 36,904.
(213.) FCC Consolidated Reporting Act of 2012, H.R. 3310, 112thCong. (2012), available athttp://www.gpo.gov/fdsys/pkg/BILLS-112hr3310rfs/pdffBILLS-112hr3310rfs.pdf; FCC Consolidated Reporting Act of 2011, S. 1780, 112th Cong. (2011),available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1780is/pdf/BILLS-112s1780is.pdf.
(214.) 23 C.F.R. [section] 710.201 (2013) (requiring state DOTs toprovide a "manual describing its right-of-way organization,policies, and procedures" that is to be certified every fiveyears). For an example of these manuals, see VA. DEP'T OF TRANSP.,RIGHT OF WAY MANUAL OF INSTRUCTIONS (3d ed. Aug. 25,2011), available athttp://www.virginiadot.org/business/resources/Right_of_way/RW_Manua102132012_TechRev.pdf, and UTAH DEP'T OF TRANSP. RIGHT OF WAY DIV.,OPERATIONS MANUAL (Jan. 2011), available athttp://www.udot.utah.gov/main//uconowner.gf?n=200601261554381.
(215.) See September 14 Remarks of Comm 'r Pal, supra note 7.
(216.) N.H. REV. STAT. ANN. [section] 231:164 (2002) (six months);VA. CODE ANN. [section] 56458(D) (2002) (forty-five days), IND. CODEANN. [section] 8-1-2-101(a)(4) (West 2002) (thirty days); MICH. COMP.LAWS ANN. [section] 484.3115 (West 2002) (forty-five days); WASH. REV.CODE [section] 35.99.030 (2002) (thirty days); WASH. REV. CODE [section]35.99.030 (2002) (120 days for master permits); KAN. STAT. ANN.[section] 17-1902(i) (West 2006) (thirty days).
(217.) KAN. STAT. ANN. [section] 17-1902(i) (West 2006) (thirtydays).
(218.) See Ex Parte Comments of WISPA, supra note 127, at 2; July2012 Ex Parte Comments of CITA, supra note 127, at 6; Comments of NextG,supra note 127, at 2; July 2012 Comments of PCIA, supra note 127, at 2.
(219.) See Ex Parte Comments of WISPA, supra note 127, at 2; July2012 Ex Parte Comments of CTIA, supra note 127, at 6; Comments of NextG,supra note 127, at 2; July 2012 Comments o/'PCIA, supra note 127,at 2.
(220.) For an example of a broadband task force, see STATE OFTENN., TENNESSEE BROADBAND TASK FORCE: REPORT AND RECOMMENDATIONS(2007), available athttp://www.state.tn.us/tra/bbtaskforce/Tenn.%20Broadband%2Task%20Force%20Report %20and%20Recommendations.pdf.
(221.) MICH. COMP. LAWS ANN. [section] 484.3107 (West 2002).
(222.) Id.
(223.) Rules for the Arbitration of Interconnection Agreements andthe Mediation of Complaints, Order Formally Adopting AdministrativeRules, Mich. Pub. Serv. Comm'n Case No. U-16250 (2011), availableat http://efile.mpsc.state.mi.us/efile/docs/16250/ 0014.pdf (Proceduresfor Telecommunications Arbitrations and Mediations included as ExhibitA).
(224.) STATE OF UTAH BROADBAND PROJECT, UTAH BROADBAND ADVISORYCOUNCIL REPORT 15-16 (2012) [hereinafter UTAH BROADBAND ADVISORY COUNCILREPORT], available athttp://utahbroadband.files.wordpress.com/2012/06/utah-broadband-advisory-council-report3.pdf.
(225.) 605 ILL. COMP. STAT. ANN. [section] 5/9-131 (West 2009) (Thestate shall "collaborate to install fiber-optic network conduitwhere it does not already exist in every new State-funded constructionproject that opens, bores, or trenches alongside a State-ownedinfrastructure, including, but not limited to, roadways andbridges.").
(226.) CITY OF CHI., REQUEST FOR INFORMATION (RFI): BROADBANDINFRASTRUCTURE EXPANSION, section I, available athttp://www.cityofchicago.org/content/dam/city/depts/dps/ContractAdministration/Specs/2012/Spec111304.pdf.
(227.) See Zachary Lutz, Chicago Mayor Targets AfJordable GigabitBroadband, Free Wi-Fi Throughout City Parks, ENGADGET (Sept. 25, 2012,10:38 AM), http://www.engadget.com/2012/09/25/chicago-broadband-challenge/ ("The idea came to Emanuel through Eric Schmidt, who suggestedthe upgrade be coordinated alongside the city's overhaul of itsaging water/sewer system.").
(228.) City Stories: Chattanooga Story, US IGNITE,http://us-ignite.org/chattanooga-story/(last visited Mar. 4, 2013).
(229.) Chattanooga Tennessee Announces Only 1 Gigabit BroadbandService in U.S. For Both Residential and Business Customers, EPB (Sept.13, 2010, 9:05 PM), https://www.epb.net/news/news-archive/chattanooga-announces.only-1-gigabit-broadbandservice-in-u-s-for-residential-and-business-customers/.
(230.) BROADBAND CONDUIT REPORT, supra note 108, at 5; NATIONALBROADBAND PLAN, supra note 4, at 114-15.
(231.) See UTAH BROADBAND ADVISORY COUNCIL REPORT, supra note 224,at 15-16 (noting Utah DOT's utilization of traffic and weathersensors through its fiber network).
(232.) See H.R. 2428, supra note 97; S. 1266, supra note 97;BROADBAND CONDUIT REPORT, supra note 108, at 7-8 ("DOT officialsexpressed concern that the agency would be making decisions and settingpolicy outside of its scope of expertise"); Comments of City ofLafayette, supra note 32, at 1 ("It would be dangerous to thepublic, and harmful to communities, to attempt to develop federal rulesthat prevented localities from fully considering the impact ofinstallations, or modifications to installations in theright-ofway.").
(233.) H.R. 1695, supra note 31, [section] 2; S. 1939, supra note31 (noting that DOT and the FCC would coordinate to determine the sizeof each conduit is "sufficient to accommodate potentialdemand").
(234.) See23 U.S.C. [section] 135 (2012).
(235.) June 8 Comments of Google, supra note 79, at 3.
Holly Trogdon, J.D. Candidate, The George Washington University LawSchool, January 2014. The author gives special thanks to the FCLJProduction Team and everyone who provided the support necessary to makeit through the Note-writing process. The views expressed in this articleare the personal views of the author alone and are not attributable toany former or current employers.
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