Outreach Is the First Step for Those Facing Broadband ROW/Easement Issues

The task of nailing down rights of way (ROW) to build communications networks on public lands or easements to build on private property has never been simple. But expect the issue of negotiating and permitting ROWs to get even more difficult as state governments distribute funding through the $42 million Broadband Equity, Access and Deployment (BEAD) program. The rising volume of broadband projects could create barriers to broadband projects’ progress.

“In the past slow-downs due to permitting and rights of way may just have sort of been seen as a cost of doing business,” Teresa Ferguson, NRTC’s senior director, Broadband Infrastructure Funding said during a recent BEAD-preparation webinar. “Going forward, the volume of funding broadband projects alone could turn that pebble in the road into a boulder stopping your state broadband projects in their tracks.”

In recent months, NRTC and several other leading telecommunications-industry organizations have been presenting monthly, 30-minute sessions to help prospective BEAD participants face some of the more difficult tasks ahead. The ROW/easements session was the fourth in the series, which the Fiber Broadband Association (FBA) is hosting.

Broadband providers, Ferguson said, should talk with policy makers to identify ROW best practices in each state. She advised ISPs to begin conversations now with local permitting agencies to explain the issues that are coming. “Opening lines of communication is the most critical thing you can be doing right now. Because the worst thing you can do is show up at these offices the day you need to get a permit and try to muscle through that process,” she said.

The differences in various state laws may be a thorny issue for electric cooperatives entering the broadband business. Existing agreements tend to cover fiber facilities to support electric operations, but some agreements require renegotiation if the utility intends to offer public internet. One co-op in Missouri was sued and assessed a $79 million fine for violating an ROW/easement agreement, said webinar panelist Brian O’Hara, senior director, regulatory affairs, broadband for NRECA.

“This dissuaded some members from getting into broadband. It would mean having to go back and renegotiate every right of way and every easement, and that’s extremely time consuming and very expensive,” O’Hara said. Some electric utilities, especially large investor-owned operations, have gotten around this barrier by leasing fiber capacity to other area ISPs, lowering the costs for those providers. Eighteen states, he said, have changed their laws to expand ROW/easement agreements to cover broadband.

In some areas, the federal government presents a barrier. Many rural communities are located near federal lands controlled by the Department of Defense, the Bureau of Land Management, the U.S. Forest Service and others that have differing regulations concerning private use of public lands. Outreach to the involved federal offices will be as important as state and local offices, said Angela Simpson, general counsel and VP, Legal and Regulatory for the Competitive Carriers Association. Simpson also suggested learning how to track applications at federal agencies and to do regular status checks. Also, certain agencies have common forms that they use for land-use applications, which could save time and money.

ROW/easement agreements are subject to environmental impact reviews. Oddly enough, it can be more difficult to obtain permits for fiber construction than it is for other similar projects. “Many times, broadband is not seen as a utility, like telecom or electric. It is seen as a commercial service that can also trigger these environmental reviews,” Ferguson said. She suggested trying to organize meetings between state broadband authorities and the federal officials based in the state – a “convening of the minds” – to determine how best to move on fiber projects quickly.

The next scheduled BEAD webinar is Jan. 11 covering cybersecurity issues. The group says it is accepting suggestions for further sessions in 2023. A recording of the ROW session is available to FBA members on the FBA site.