Venturing Into the Rights-of-Way: I Own What???

This is the first in a series of posts by Rita Stull -- her bio is available here. The short version is that Rita has a unique perspective shaped by decades of experience in this space. Her first post introduces readers to the often misunderstood concept of the Right-of-way, an asset owned by the citizens and managed mostly by local governments.

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In the process of knitting a baby blanket, a whole ball of yarn became tangled into this mess. . . .

. . . reminding me of the time, in the early eighties, when I was the second cable administrator appointed in the U.S., and found myself peering into a hole in the street filled with a similar looking mess—only made of copper wires, instead of yarn.

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Why talk about yarn and copper wire in the same breath on a site dedicated to community broadband networks? Because it was the intersection of ‘art and cable’ that got me started in the ‘telecommunications policy’ arena, the same kind of thinking that continues today in our tangled telecom discussions: Is it content or conduit, competitive, entertainment, essential, wireless, landline, gigahertz, gigabits?

I transferred from the Recreation Department to launch the city’s cable office as an experienced government supervisor with a Masters in Theater. My employer and I thought cable TV was the ‘entertainment’ business and I had the requisite mix of experience and skills to manage one of the first franchises awarded in 1981.

Yikes. Imagine my surprise on discovering that cable was a WIRE LINE UTILITY using PUBLIC LAND, which each citizen pays TAXES to buy, upgrade and maintain! And, our three-binders-thick, cable franchise was a ‘legal contract’ containing the payment terms for use of our public rights-of-way, as well as protection of local free speech rights. I was thirty years old, a property owner who had never thought about who owned roads, sidewalks and utility corridors.

Rights-of-way are every street plus about 10 feet of land on each side. That land belongs to everyone in the community. Rights-of-way are a shared public asset—sometimes called part of our common wealth.

The reason we all own rights-of-way, over four million miles of it, is so essential services such as roads, water, gas, electric, and telephone are available, universally—another legal concept—new to me — meaning ‘used by and available to everyone’. We co-own roads and utility corridors to transport ourselves, our goods and services and now our information—essentials required for survival in a developed nation.

Local, state and federal governments manage land assets on our behalf, as follows:

  • 75.2%: 3 million miles of rights-of-way are managed by local governments—towns, cities, counties, villages, parishes, townships.
  • 20.5%: 820,000 miles of rights-of-way are managed by state governments.
  • 4.3%: 172,000 miles of rights-of-way are managed by the federal government.

Important Business Notes Regarding Rights-of-Way

  1. To be in business, phone and cable companies must locate their lines in public rights-of-way. Wireless companies must connect towers for ‘signal backhaul’ via landlines. So wireless carriers also use rights-of-way. Customers can’t buy cable, phone, mobile or any Internet services—can’t stream videos—without an Internet Service Provider (ISP) owning or buying ‘landline’ capacity.
  2. Telecom is a natural monopoly. The first telecom occupant in the rights-of-way gains tremendous advantage, making it difficult for competitors to finance duplicate infrastructure. In the past, when the threat of competition reared its ugly head, operators used their market dominance, as the incumbent in the rights-of-way, to drastically slash prices, retain customers and force nascent competitors out of business. Once the competitor is eliminated, rates can be doubled or tripled, leaving consumers without the option of changing providers.

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Arguably, rights-of-way are the most valuable land asset in the nation. Now that you know you’re the proud owner of four million miles of rights-of-way, what do you think telecom occupants pay to use it?

Do you know that:

  • Phone companies generally hold hundred year leases, some in perpetuity, and pay nothing to use rights-of-way. Only the old basic phone rate is regulated. Offered in a duopolist market, most revenues are generated from unregulated phone-line services. Your phone company charges whatever it wants for business and residential service packages, late fees, security deposits, etc., while paying nothing to use your rights-of-way. This reality means that we, as taxpayers, subsidize phone companies by giving them free land.
  • Originally, cable operators, because they were offering entertainment services, set the precedent for paying a fair price to occupy rights-of-way. In the late 70’s/early 80’s, as a result of the mostly non-exclusive, franchise competitive-bidding wars, operators agreed to pay the following to use rights-of-way:
    • Up to 5% of gross revenues,
    • Dedicated institutional networks (I-Nets),
    • Public, education and government (PEG) access channels and funding for facilities, equipment, video production training.

From 1980-1985, thousands of local governments monitored the private sector’s deployment of millions of miles of coaxial cable plant in public rights-of-way. In this phenomenal five-year, local, public/private, collaborative undertaking to ‘cable the country for TV’, the U.S. became a ‘wired nation’, as envisioned in Ralph Lee Smith’s seminal book of the same name.

You Did It! … Or did you?

Don’t get all excited about local governments’ successful rights-of-way management – even though it resulted in cable operators wiring the country in five short years. And don’t kid yourself that local governments can effectively leverage their valuable land-use powers in negotiations with telecom incumbents.

Time for a REALITY CHECK:

  • Among the wealthiest and most powerful in the country, the telecommunications industry spends tens of millions of dollars, annually, lobbying to retain free use of rights-of-way land.
  • Once the country was wired in the early eighties, the cable industry spent the next thirty years lobbying federal and state legislatures to void franchises and eliminate as many payments for using community-owned rights-of-way as possible.

Legal Jargon

Creatively designed telecom regulations confound legislators, confuse consumers, and distort the national discourse. Current regulatory language contorts our understanding of what telecom is and its importance in our lives. Simply stated, telecommunications means the transporting of information on connected networks of boxes (engineering shorthand for computers and switches) and wires, located on poles or under streets.

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Today we hear a cacophony of marketers, profiteers, duopolists and plain old crooks – purposely confusing us with: it’s voice - video – data - information – fiber – coaxial cable – wireless - WiFi – broadcast TV – satellite – streaming video - 4G - WiMax - radio – cell phone –- gigahertz – gigabits – megabits – digital - Internet – etc. The list goes on.

As fraught with engineering/marketing jargon as telecom laws are, none address the convergence of digital, Internet and fiber technologies — a convergence that means all information formats—voice, video and data are transported by the same myriad, interconnected wired and wireless networks.

The telecom industry’s lobbying goal is free use of rights-of-way to protect duopolist markets. Twenty states adopted franchising laws depriving local jurisdictions of regulatory authority, thus confiscating communities’ assets and reducing accountability to consumers.

The industry aggressively lobbies for state laws that prohibit or severely constrain jurisdictions use of rights-of-way, specifically to block deployment of next-generation telecom infrastructure: fiber-to-the-premise networks.

Wildly Escalating Telecom Costs for Public Services

When the industry lobbies for state laws that void in-kind services such as I-Nets, the cost can be enormous for the communities they serve. For example: Years ago, a California city, with a population of ninety-thousand, connected thirty municipal facilities, schools, colleges, universities, hospitals and libraries with its institutional network, provided as partial payment for rights-of-way use. When state franchising voided local requirements, the cable operator began billing the city $45,000 a month to use the institutional network. Over the fifteen-year life of the franchise, the operator expects to collect a whopping $8.1 million dollars from the city (thus the taxpayers), instead of paying to use the community’s rights-of-way.

Extorting Future Public Resources

Currently, the industry is lobbying states to PROHIBIT governments from building fiber-to-the-premise (FTTP) networks. Not only do telecom companies refuse to universally upgrade existing wire lines and provide I-Nets, they now want to prevent communities from becoming self-reliant by building their own networks (as in North Carolina and South Carolina, for instance).

Don’t be fooled into thinking that telecom regulations benefit some larger public goal. The U.S. lags behind developed nations in broadband deployment because we are not using rights-of-way to build FTTP infrastructure. We need to ‘catch up’ to competitor nations, where residents, as well as business, buy affordable, bidirectional broadband at gigabit speeds.

We must clean up our tangled regulatory mess, reclaim use of rights-of-way and build the FTTP networks needed to create jobs and compete in a global economy -- starting with JULIET (Joint Underground Location of Infrastructure for Electric and Telecom) [pdf]).