Right-of-way…what you need to know


Murv Moreheadweb

Murv Morehead Senior Engineering Technician

Immediacy…most of us are so used to getting a direct and instant response to things because of the digital age, that we don’t even take time to stop and think about what is making that immediacy possible, or what would happen if it were taken away. For example, remember the days of waiting for your internet dial up to connect, or the annoyance of only having one telephone line and picking up the phone to dial out only to realize someone is connected to the internet?  Those days are long gone. Broadband is especially no stranger to immediacy.  The obvious advantage of fiber optic broadband, now defined as 25mps download and 5mps upload, is the increase in speed, not having to wait for your web browser to load, a large email to come through, or giving you the ability to work from home without losing productivity time.

Cities want and need broadband providers in order to offer their residents immediacy, and to remain competitive with other cities whoright-of-way (ROW) have broadband available to every home and business.  However, the amount of the broadband providers is not the problem.  Cost and ease of construction is.  There are many behind the scenes factors that go into getting internet speed up to where you want it to be at home or at work.  One important factor is the use of rights-of-way (ROW) within each city. City right-of-way is used to place new fiber optic cable that makes broadband possible. Each city owns its rights-of-way and are in charge of managing it for the safe and best use of its citizens.  However, these same rights-of-way are also used by many competing entities/service providers other than broadband providers, which is why the management of the rights-of-way by the city is so important. For example, in Overland Park, KS, Johnson County Wastewater, WaterOne, Kansas Gas Services, and Southern Star Gas are just some of the other rights-of-way users. Without city management and without taking into account all of the needs of the right-of-way, serious problems can ensue.  Since the rights-of-way are a limited resource, without being managed properly they will not be sustainable over time.  This is why the city and broadband provider must strike a balance that works for both.


Sensible Steps to Balance City and Broadband Relationships

1)  Franchise Negotiations and Requirements

Before each broadband company can install its fiber in the right-of-way there is typically a franchise negotiation between the broadband provider and the city.  This negotiation is particularly important to the residents of the city. This negotiation 1) ensures the potential provider has the resources necessary to build and maintain a distribution system and 2) it spells out the requirements the provider must adhere to in order to continue providing service within the city. In addition, franchise fees due to the city for use of its ROW are established. An example of a franchise requirement might be a moratorium on all streets whose surfaces are two years old or newer.  The city does not want that new road surface disturbed. Consequently, this would be an area where construction would be prohibited.  However, this is only one small piece of the negotiation because the rights-of-way have unique histories based on facility placement dating back more than a half a century. In addition, each community will have areas that present particular permitting issues: areas where the streets/ROW’s are already filled to capacity; areas where there may be structural problems with the infrastructure or unique elements to it (cobble or brick pavement for example); and areas where competing demands (light rail, underground installations) make placement challenging.

2)  Permitting

With a franchise in place, the service provider can now obtain permits to place facilities in the public right-of-way.  Permitting varies based on a number of factors and requires significant flexibility, which must be exercised within the context of local budgetary constraints. But because not every city is alike, larger cities typically have a substantial permitting staff, and more detailed permitting rules; whereas smaller cities may have no staff and no significant permit requirements. Local officials are uniquely2015 Construction 040 positioned to understand the history of the
rights-of-way in their community, and to permit private utility installations based on these facts.  The broadband service provider will be wise to work with the city and respect their positions.  However, with tact and diplomacy they should ‘be successful’ in negotiating some relief where needed in order to make deployment possible.  One example of this would be in the cost of fees charged.

The cities and their residents realize benefits from the fiber coming into each of their communities and do not arbitrarily want to make it difficult for broadband providers coming in, but at the same time they have to protect their citizens. In many communities, right-of-way practices are coordinated with a variety of utilities including (assuming the utility companies are willing to participate) telecommunications utilities, before broadband providers can begin. Different utilities have different concerns and industry requirements so a permitting policy based on the views of telecommunications companies alone likely will not meet the requirements of gas companies (whom also utilize the right-of-way). As an advantage for the broadband providers, communities often attempt to coordinate right-of-way practices.  For example, when Overland Park, KS adopted its right-of-way ordinance, it coordinated the effort with a number of surrounding jurisdictions that also adopted the same ordinance. During this process, the cities held numerous meetings with utilities and other service providers in order to receive comments to address everyone’s concerns, and to generate an acceptable equitable practice. The broadband companies benefit from this coordination because it narrows it down to one ordinance for several surrounding communities, thus saving time at the front.  However, this model may not be appropriate for every community.  In more rural communities where there are fewer rights-of-way users for example, all of these processes may not be necessary. In more urban communities, additional or different processes might be necessary.

Contrary to popular belief, the vast majority of municipalities DO want the advantages of broadband service brought into their community. On the other hand, broadband providers (especially new entrants to the city) must understand the first obligation of the city officials is to the residents of that city. People in any city expect a safe, convenient and generally problem free place to live.  All too often, a fiber deployment is undertaken at a fever pace because of competition, revenue generation, etc. This construction pace is often what makes cities hesitant to “open the door” as it can become nearly impossible to control the construction, and the three factors mentioned in the previous paragraph can and often are jeopardized.

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