Legal Issues Concerning the Use of Transportation Facilities to Generate Revenue for State DOTs (2020)

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NCHRP LRD 81 3 LEGAL ISSUES CONCERNING THE USE OF TRANSPORTATION FACILITIES TO GENERATE REVENUE FOR STATE DOTS Edgar Kraus, Kristopher Harbin, Brianne Glover, Jacqueline  Kuzio, and Cesar Quiroga, Texas A&M Transportation Institute, San Antonio, TX I. INTRODUCTION Project Purpose and Objectives This digest addresses issues related to a state department of transportation’s (DOT’s) legal obligation to provide access to the state rights-of-way for communications utilities, and a DOT’s options to generate revenue from such access. The research focused on the accommodation of longitu- dinal communications utilities in general and microcell tech- nology in particular. While the accommodation of longitudinal communications utilities in state-owned or non-controlled access rights-of-way is standard practice, the accommodation of longitudinal communications utilities on controlled access rights-of-way is still very limited. Accommodation of microcell tech nology has just recently started, and many states are in the process of determining best practices and policies for the ac- commodation of such technology in all types of rights-of-way. Microcell Facilities and Evolving Cell Technology Fifth-generation or “5G” is the next step in wireless technol- ogy, promising faster speeds, greater capacity, and more reliable service as compared to 4G wireless technology. 5G operates over a shorter range than current 4G and other wireless technologies, which requires more, but smaller, infrastructure to support de- ployment. 5G can enable average download speeds of 1 GB per second and maximum theoretical speeds of 10 GB per second, compared to download speeds of about 0.1 GB per second on the 4G standard that is currently available to consumers.1 In addition, 5G technology promises lower latency, which means improved response times for network connections. The Federal Communications Commission (FCC) supports the deployment of 5G technologies to power innovation and has created a 5G FAST Plan to facilitate development and modernize regula- tions.2 The introduction of 5G requires new infrastructure in the form of small cell facilities. Small cell infrastructure generates less power and collects and transmits signals across a short range from one cell to another. Small cells, which are sometimes referred to as small cell antennas, distributed antenna systems, or network nodes, are low-power cellular base stations operated 1 National Conference of State Legislatures, Mobile 5G and Small Cell 2018 Legislation, http://www.ncsl.org/research/ telecommunications- and-information-technology/mobile-5g-and-small-cell-legislation. aspx. 2 Federal Communications Commission, The FCC’s 5G FAST Plan, 2019, https://www.fcc.gov/5G [hereinafter FCC’s 5G]. by telecommunications providers with a limited range com- pared to standard cellular base stations. Microcells are a type of small cell that can be used commer- cially to boost signal for wireless customers. In terms of physical size, microcells are the largest “small cell,” followed by picocells and femtocells. The actual range of microcells varies. Due to their size, microcells can usually be attached to exist- ing poles. Other terminology for these types of infrastructure include micro-wireless facilities or micro-wireless infrastruc- ture. These terms all reference the transmitter boxes, or cells, that enable 5G. Microcells are usually added to existing net- works to improve network capacity in areas with increased cell phone usage, sometimes referred to as small cell densification. Microcells are largely placed on existing buildings and infra- structure to boost network capacity in the area of deployment. Microcell installations typically require three components: a power source, backhaul, and permitted space for installation. Proximity to a power source eases installation but is not strictly necessary. Backhaul is essentially a means to connect to the core network for transmission purposes, either wired through fiber- optic cable or wireless through microwave.3 Backhaul is one of the core issues for small cell installations and is also the reason that many companies wish to collocate on existing infrastruc- ture to access backhaul infrastructure. Finally, permitted space for installations is provided by state or local agencies such as DOTs following federal, state, and local rules. Small cells, including microcells, are advantageous due to the lower power outputs, reliable and effective coverage and capac- ity, small footprint, and lower comparative cost, especially in comparison with traditional cell towers, or macrocells.4 Study Approach Researchers reviewed applicable federal and state regulatory frameworks that guide states to provide access to the rights-of- way for communications utilities. Researchers gathered infor- mation about the following topics: • The statutory and regulatory authority of each state for allowing access to state rights-of-way for private utili- ties and the state’s ability to generate revenue from the access. 3 Anderson Sullivan, What is a Small Cell? A Brief Explainer, CTIA, Blog (March 27, 2018), https://www.ctia.org/news/what-is-a-small-cell. 4 Phillip Tracy, Small Cells: Backhaul difficulties and a 5G future, RCR Wireless News (July 11, 2016), https://www.rcrwireless.com/20160711/ network-infrastructure/small-cells-tag31-tag99.