PublishedNovember 3, 2015

House Subcommittee Digs Into "Dig Once" Bill and Other Legislation to Speed Broadband Deployment

Washington – The House Energy & Commerce Subcommittee on Communications and Technology held a hearing on October 28th titled “Breaking Down Barriers to Broadband Infrastructure Deployment.”  Internet usage is exploding, and broadband access is a national priority.  Panelists and Members of the Committee discussed various ways to speed broadband deployment, including at least six bills that would create an inventory of federal assets and speed up permitting; improve access to government- and utility-owned poles; include the broadband conduit deployment in the construction of federally-funded roads; streamline reviews under the National Historic Preservation Act (NHPA) and National Environmental Preservation Act (NEPA); streamline and consolidate the Department of the Interior, the Forest Service, and Department of Defense permitting requirements; and require agencies to use master forms, contracts, and fee schedules.
“Dig Once”
Major discussions during the hearing centered on the Broadband Conduit Deployment Act of 2015, which is sponsored by Subcommittee Ranking Member Anna Eshoo (D-CA) and Chairman Greg Walden (R-OR).  Expanding broadband access across the country requires laying more broadband conduit, or “pipes” like fiber-optic cables, which can be very expensive, especially if road excavation is required.  The Federal Highway Administration (FHWA) estimated that it can be “10 times more expensive to add broadband after a road is already built.”  Many have called this the “Dig Once” bill because it would ensure that infrastructure providers can lay broadband conduit while new federally-funded roads are built instead of excavating roads, sometimes just a few months after their built.  
This idea has existed for some time.  Eshoo introduced similar legislation in 2009 and 2011.  In June 2012, President Obama signed an Executive Order aimed at facilitating broadband deployment on Federal lands, buildings, and rights of way.  The Executive Order included a recommendation for a Dig Once policy through guidance that DOT would encourage dig once at the State level.  Later in 2012, the U.S. Department of Transportation (DOT) and FHWA noted in a Background Paper and Work Plan Strategy on that Executive Order that most States do not have a dig once policy though many State and local initiatives “promote the dig once concept.”
The bill garnered positive discussions during the hearing with Chairman Walden noting that he and Eshoo had support from twenty-six other Members.  Deb Socia, Executive Director of NextCentury Cities, stated in her opening statement that the city of Santa Monica, California adopted a dig once policy over twenty years ago, which lowered lowered the cost of public and private investment and generated revenue for the city by leasing access to private ISPs.  The Dig Once bill also contains provisions that would ensure access to the conduit for “any requesting broadband provider.”
Fiber Deployment and Competition
Congresswoman Doris Matsui (D-CA) showed support for a Dig Once policy with an example from her district.  She detailed the economic benefits that have occurred since the successful installation of a fiber backbone during a light rail extension project in Sacramento.  Responding to a question from the full committee’s Ranking Member, Frank Pallone (D-NJ), Socia stated that an early lesson from fiber deployment in cities has been that “competition is great.”  For example, “when Google came in, prices went down, the speeds went up.”  She also emphasized that there will be positive outcomes when broadband providers and municipalities work together.  Notably, the changes that Next Century Cities offered specifically to Google were “offered to all providers,” which fostered collaboration.
Process Reforms and Shot Clocks
Not all fiber installation and broadband deployment projects have been successful.  Many panelists and Committee Members discussed procedural delays and bureaucratic red tape that have stymied various projects.  Chairman Walden asked about process reforms, specifically whether Congress should employ more “shot clocks” for wireless infrastructure siting decisions.  For example, in 2009 the FCC issued a Declaratory Ruling mandating that State and local authorities review completed applications for collocations of additional antenna to existing infrastructure within 90 days, thereby imposing a “shot clock.”  Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 mandates that State and local governments approve siting requests for modifications and collocations of wireless transmission equipment on an existing tower or base station.   In October 2014, the FCC unanimously approved rules interpreting key terms from Section 6409(a) and mandating that if a State or locality does not  review or approve an application under Section 6409(a) within 60 days, it would be “deemed granted.”  Scott Bergmann, Vice President, Regulatory Affairs of CTIA, explained that these shot clocks have improved collocations and reduced application backlogs in the municipal context; however, siting on Federal lands remains a significant issue for broadband deployment, especially in rural areas.  Noting the difficulties with obtaining siting approvals from various different federal agencies, Congressman Olson (R-TX) somewhat jokingly said the country, especially rural areas, needs “a lean, mean, Federal machine for permits.”
Congressman Latta (R-OH) asked how Congress should define broadband in future legislation.  Heather Burnett Gold, President and CEO FTTH Council Americas, argued that Congress should move away from defining broadband based on speed, and instead should focus on the facilities.  She said that a constantly redefining “broadband” creates confusion.  Bergmann stated that a shifting definition provides challenges for deployment decisions.  Jeb Benedict, Vice President, Federal Regulatory Affairs and Regulatory Counsel for CenturyLink, stated that a general definition of a broadband facility would be better than a definition tied to Section 706, but the focus should be on the facility and not the end product.  In contrast, Socia said Congress should think about the opportunities and needs of underserved areas, including rural communities.  Therefore, Congress can help ensure that those in underserved areas get the same resources as those with more broadband options.  Although many Members advocated for supporting broadband deployment in rural areas on Federal lands, Chairman Emeritus Barton (R-TX) said he was “troubled” that some view access to wireless as an “entitlement.”  Instead, he preferred that “the market decide when and where broadband is deployed.”

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