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

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4 NCHRP LRD 81 II. LEGAL ISSUES RELATED TO PROVIDING COMMUNICATIONS UTILITIES ACCESS TO THE STATE RIGHTS-OF-WAY AND GENERATING REVENUE FROM SUCH USE Historical Background Federal-Aid Road Act of 1916 The Federal-Aid Road Act of 19165 authorized the federal government to provide aid to the states for the construction of rural post roads, i.e., any public road over which the U.S. mail was transported and that was outside any place with a popula- tion of 2,500 or more. Beginning with the Act of 1916, utility relocation and adjustment became eligible for federal-aid par- ticipation as a construction cost if states were obligated to pay for utility relocations. The term “construction” was defined “to include reconstruction and improvement of roads.”6 As a result, reimbursement to utilities was largely limited to utilities with a compensable interest in the land they occupied. In general, the impact of utility relocation on federal-aid road projects was relatively low because of the emphasis on rural highway con- struction, which generally minimized the amount and need to conduct utility relocations.7 Communications Act of 1934 The Communications Act of 19348 was enacted to regulate interstate and foreign commerce in communications by wire and radio to make available a rapid and efficient national and world-wide service with adequate facilities at reasonable costs for the purpose of national defense and to centralize authority previously granted to several agencies. The Act established the FCC to execute and enforce provisions of the Act.9 Federal Aid Road Act of 1944 A decade later, a national system of interstate highways was established by the Federal Aid Road Act of 1944.10 This act in- creased the federal funds available for states, which increased the number of highway projects. As the number of highway projects increased, the impact to utilities increased and the utility indus- try began objecting to the financial burden created by the cost to relocate or adjust utilities.11 This led the Secretary of Commerce, 5 Pub. L. No. 64-156, 39 Stat. 355. 6 Id. § 2. 7 James E. Kirk, Utility Relocation and Accommodation: A History of Federal Policy Under the Federal-Aid Highway Program. Part I: Utility Relocation (Washington, DC, Federal Highway Administration, 1980) [hereinafter Kirk]. 8 Pub. L. 73-416, 48 Stat. 1064. 9 Id. tit. I, § 1. See also, House Comm. on Energy and Commerce, 101st Cong., Compilation of the Communications Act of 1934 and related provisions of law: including Communications Act of 1934, Communications Satellite Act of 1962, selected provisions from the United States Code (Comm. Print 1989). 10 Pub. L. No. 78-521, 58 Stat. 838. 11 Kirk, supra note 7, at 2. • The impact of various types of rights-of-way (e.g., limited access, acquired via condemnation, federally funded) on a DOT’s ability to assess reasonable rates for the access. • The practices, procedures, and policies of states for re- quests by private utilities for access to the rights-of-way. • The practices by states and tolling authorities regarding the assessment of fair market value or other amounts for right-of-way access. • The presence or lack of premiums in the assessments regarding fair market value for access to a contiguous longitudinal property, including recommendations for capturing utility owner profits. • The potential legal obstacles to property assessments, in- cluding any distinctions based on the regulatory status of a utility as a public utility with condemnation author- ity, and any potential impact of the equal access provi- sion of the Telecommunications Act of 1996 (TCA). Parallel to the legal assessment, researchers conducted an online survey of DOTs and tolling authorities in the United States. Researchers invited all voting members of the Ameri- can Association of State Highway and Transportation Officials (AASHTO) Subcommittee on Right-of-Way, Utilities, and Out- door Advertising Control and 77 members of the International Bridge, Tunnel, and Turnpike Association to participate in the survey. Researchers complemented results produced by the sur- vey with information collected through interviews with select DOTs with experiences or innovative practices that were rel- evant to this project. Digest Organization This digest describes the procedures and findings of the proj- ect and is organized into five chapters: • Chapter I is this introductory chapter. • Chapter II provides a detailed discussion of the federal and state regulatory framework that guides states to provide access to the state rights-of-way for communi- cations utilities. • Chapter III provides an overview of practices and pro- cedures used to generate revenue for state DOTs derived from the results of the survey of state DOTs and tolling authorities. • Chapter IV provides an overview of practices and im- plementation recommendations based on the interviews with state DOT officials identified during the survey. • Chapter V provides conclusions and a summary of findings. In addition, the digest contains three appendices, as follows: • Appendix A provides a copy of the survey questionnaire. • Appendix B provides a detailed discussion of survey results. • Appendix C provides a copy of the follow-up interview guide.

NCHRP LRD 81 5 radio service providers to the extent they provide domestic or inter national telecommunications for a fee directly to the public.21 In terms of state and local control, the TCA provides: nothing in this section affects the authority of a State or local gov- ernment to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation re- quired is publicly disclosed by such government.”22 Section 704 added personal wireless services, such as cell phone towers, stating, “nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”23 This appears to cede a great deal of control to state and local authori- ties over access to rights-of-way; however, subsequent rulings and amendments have limited that control. Section 704 further provided that state or local regulations “shall not unreason- ably discriminate among providers of functionally equivalent services”24 nor “prohibit or have the effect of prohibiting the provision of personal wireless services.”25 To this end, a state or local government shall act on a filed request within a reasonable period of time, and any denial of a request shall be in writing and supported by substantial evidence contained in a written record.26 The U.S. Supreme Court in TMobile South, LLC v. City of Roswell27 confirmed the TCA requirement that governing authorities must “provide reasons when they deny applications to build cell phone towers.”28 Additionally, no state or local gov- ernment may regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with FCC regulations, and any person adversely affected by any final action or failure to act by a state or local government may, within 30 days, com- mence an action in any court of competent jurisdiction.29 Authority to Require Fair and Reasonable Compensation In general, 47 U.S.C. §253, “Removal of Barriers to Entry,” provides that state and local governments may not prohibit the ability of an entity to provide telecommunications services.30 The TCA defines “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to such 21 See FCC, Fact Sheet, April 23, 1996. 22 47 U.S.C. § 253 (c). 23 Id. § 332 (c) (7) (A). 24 Id. § 332 (c) (7) (B) (i) (I). 25 Id. § 332 (c) (7) (B) (i) (II). 26 Id. § 332 (c) (7) (B) (ii) and (iii). 27 574 U.S. 293, 135 S. Ct. 808, 190 L. Ed. 2d 679 (2015). 28 Id. at 300, 135 S. Ct. at 814, 190 L. Ed. 2d at 688; See also, Alexander Judd, What Once was Old is New Again: Recent Developments in Judicial Review of Land Use Regulation of Cellular Telecommunications Facilities. American Bar Association, Urb. Law., Vol. 46, No. 4 (Fall 2014), p. 872. 29 T-Mobile South, 574 U.S. at 294, 135 S.C.t at 810, 190 L. Ed. 2d at 685. 30 47 U.S.C. § 253(a) (2019). directed by the Federal Aid Highway Act of 1954,12 to study utility relocation impacts.13 The National Academies’ “Highway Research Board made an analysis of the legal aspects of the re- location of public utilities due to highway improvement.”14 The study found that states used two types of provisions to oversee utility access to public rights-of-way. The first allowed that cer- tain types of utilities may occupy highways subject to restric- tions, while the second specified that certain utilities may not occupy highway rights-of-way without permission.15 By 1954, there were statutory provisions in 43 states under which specific utilities could occupy state highways, and 46 jurisdictions under which specific utilities could occupy all public roads. Telecommunications Act of 1996 In 1996, Congress updated the Communications Act of 1934 and created the Telecommunications Act of 1996 (TCA).16 The TCA defines the term “telecommunications” as “…the trans- mission, between or among points specified by the user, of in- formation of the user’s choosing, without change in the form or content of the information as sent and received.”17 The purpose of the update was to promote competition and reduce regulation in the light of recent developments in technology.18 The TCA did not substantially change access to the rights-of-way for tele- communications companies, but it did mandate that the FCC prescribe regulations over pole attachment disputes, including that the utility not charge unreasonable or discriminatory rates for pole attachments.19 Authority to Provide Access to Telecommunications Providers The TCA defines “telecommunications carrier” as: any provider of telecommunications services, except that such term does not include aggregators of telecommunications services as de- fined in section 226 of the Act. A telecommunications carrier shall be treated as a common carrier under the Act only to the extent that it is engaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage.20 The definition further includes cellular mobile radio service providers, interexchange carriers, companies that provide both telecommunications and information services to the extent they are acting as telecommunications carriers, and private mobile 12 Federal-Aid Highway Act of 1954, Pub. L. No. 83-350, 68 Stat. 70. 13 Id. § 11. 14 Department of Highways v. Pennsylvania Public Utility Comp. 185 Pa. Super. Ct. 1, 7, 136 A.2d 473, 478 (1957); See Highway Research Board, Relocation of Public Utilities Due to High- way Improvement, an Analysis of Legal Aspects, Special Report 21 (Washington, DC, National Academy of Sciences, National Research Council, 1955). 15 Id. at 43. 16 Pub. L. No. 104-104, 110 Stat. 56, (amended various sections of 47 U.S.C. (Telecommunications)). 17 47 U.S.C. § 153(50) (2019). 18 TCA Preamble. 19 47 U.S.C. §224 (2019). 20 Id. § 153(51).

6 NCHRP LRD 81 last updated in 2005, explains that transportation agencies have “various degrees of authority to regulate the use of utilities with- in highway rights-of-way generally through their authority to designate and to control the use made of right-of-way acquired for public highway purposes.”39 The agency’s authority depends on both federal and state laws and regulations. Additionally, there may be local government laws and regulations that can vary from those applicable statewide, which must be given def- erence. While AASHTO’s guidelines do not reference legal or financial responsibilities, they are meant to aid agencies in “es- tablishing and administering reasonably uniform utility accom- modation policies.”40 Federal Guidance on Utilization of Highway Rights- of-Way Controlled Access versus Non-Controlled Access The following is generally excerpted from a 2014 NCHRP Syn- thesis report: Until 1988, DOTs were required to follow the 1982 AASHTO policy that did not permit any utility installations that would adversely af- fect the safety of the traveling public.41 As a result, only few longitu- dinal utility installations existed before 1988 on a small number of controlled access highways that were individually approved by the FHWA. AASHTO’s 1989 update to its utility policy continued to pro- hibit longitudinal utility installations on controlled access highways except for strictly controlled situations. However, DOTs were no lon- ger mandated to adhere to the policy, and FHWA did not adopt the policy as a federal standard. This allowed states to develop indi vidual utility accommodation policies to be approved by FHWA. Some states follow the restrictive AASHTO policy while others have made it easier to install longitudinal utility facilities on controlled access rights-of-way. As such, it is at the state’s discretion whether or not to allow longitudinal utility installation on controlled access right- of-way, and to specify the conditions under which installations are allowable. If properly documented in the states utility accommoda- tion policy, states may permit certain utilities and exclude others, or prohibit all utilities. States may implement a shared resource agree- ment for access to the rights-of-way or may simply charge a fee. Addi- tionally, the utility accommodation policy for some states may allow certain utilities and prohibit others.42 For utilities in controlled access rights-of-way, FHWA regu- lations contain conditions that should be included in state utility accommodation policies. These conditions pertain to direct and indirect environmental and economic loss of productive agricul- tural land, prevention of adverse effects on highway safety, existing and new security fences, and the establishment of utility strips.43 39 AASHTO, A Guide for Accommodating Utilities Within Highway Right-of-Way, 1, 2005, https://law.resource.org/pub/us/cfr/ibr/001/ aashto.utilities.2005.pdf. 40 Id. 41 AASHTO, AASHTO National Transportation Policy 1982, (1983). 42 Edgar Kraus, Managing Longitudinal Utility Installa- tions on Controlled Access Highway Right-of-Way, NCHRP Synthesis 462, 7-8 (Washington, DC, Transportation Research Board, 2014) [hereinafter Kraus]. 43 23 C.F.R. § 645.209 (2019). classes of users as to be effectively available directly to the pub- lic, regardless of the facilities used.”31 It also specifically declines to interfere with a state’s ability to institute requirements that preserve and advance universal service, protect public safety and welfare, ensure the continued quality of telecommunica- tions services, and safeguard the rights of consumers.32 Addi- tionally, section 253(c) grants the state the authority to man- age the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, so long as it is competitively neutral, has a nondiscriminatory basis, and is publicly disclosed.33 FCC has the authority to determine if a state or local government has violated this section and can pre- empt the enforcement of any statutes, regulations, or legal re- quirements found to contravene. Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act The Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW)34 includes provisions to accelerate the de- ployment of broadband services. The law makes available addi- tional frequencies of federal and non-federal spectrum for wireless broadband use.35 It also includes a 270-day limit for federal agencies to grant or deny applications for leases, rights- of-way, or easements on federal property for the installation or maintenance of communications facilities.36 At the state level, it includes requirements to facilitate broadband infrastructure right-of-way efforts, notify broadband infrastructure entities of state transportation improvement programs on an annual basis, and coordinate communications and broadband plans and state and local transportation plans. Current Federal Regulatory Framework Chapter 1 of Title 23 of the Code of Federal Regulations (C.F.R.) is dedicated to the Federal Highway Administration (FHWA) of the U.S. Department of Transportation. Part 645 of Subchapter G is designated for utilities including accommo- dation.37 In 1988, FHWA revised section 645.209 of the C.F.R. that mandated state DOTs to follow AASHTO’s “Policy on the Accommodation of Utilities Within Freeway Right-of-Way.”38 This change allowed the states to implement their own policies and led some states to revise their policies. The AASHTO policy, 31 Id. § 153(53). 32 Id. § 253(b). 33 Id. § 253(c). 34 Consolidated Appropriations Act. 2018, Div. P. Title VI, 115 Pub. L. 132, 132 Stat. 348, 1097 (codified at 47 U.S.C. §§ 928, 1455, and 1501 – 1513) (2019). 35 47 U.S.C. § 1502 (2019). 36 47 U.S.C. § 1455 (b) (3) (A) (2019). 37 23 C.F.R. § 645 (2018), http://www.ecfr.gov/cgi-bin/retrieveECFR? gp=11&SID=1a2e0ee71fbb26091a02fbc49efdfc15&ty=HTML&h=L&r= PART&n=23y1.0.1.7.26#23:1.0.1.7.26.2.1.5. 38 Accommodation of Utilities: Longitudinal Utility Use of Freeway Right-of-Way, 53 Fed. Reg. 2829, 2833 (Feb. 2, 1988).

NCHRP LRD 81 7 highway use of highway rights-of-way, but does not speak to fees. The FHWA Program Guide further explains that 23 C.F.R. 1.23 (c) “opens the door for the use of the airspace law and regula- tion in 23 U.S.C. 156 and 23 C.F.R. 713 subpart B, respectively, and they in turn set forth income requirements for longitudinal private line use of highway right-of-way”.51 Utility use of airspace rights-of-way is exempted from these requirements. “Airspace law and regulation also requires that fair market value be charged for the use of airspace right-of-way and that any revenues obtained be used for projects eligible under title 23, U.S.C.”52 State and Local Fees In September 2018 FCC issued a declaratory ruling53 that pertains to microcells and speaks to fees.54 The ruling uses the terms “small cell” and “small wireless facility.” It does not define small cells other than as wireless equipment that is intended to support increased usage and capacity of wireless networks, in particular 5G wireless services.55 The ruling further differenti- ates small cells from macrocells, which are described as having “relatively large antennas and towers.”56 The ruling does provide a definition for small wireless facilities.57 The ruling provides that a small wireless facility must meet the following conditions: • The facility is mounted on structures 50 feet or less in height including its antennas, or is mounted on struc- tures no more than 10 percent taller than other adjacent structures or does not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; • Each antenna associated with the deployment, exclud- ing associated antenna equipment is no more than three cubic feet in volume; • All other wireless equipment associated with the struc- ture, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; • The facilities do not require antenna structure registra- tion under part 17 (Construction, Marking, and Light- ing of Antenna Structures) of this [FCC] chapter; • The facilities are not located on Tribal lands as defined under 36 C.F.R. 800.16(x); 51 Id. 52 Id. 53 FCC Declaratory Ruling and Third Report and Order in the Mat- ter of Accelerating Wireless Broadband Deployment by Removing Bar- riers to Infrastructure Investment, FCC 18-133, released September 27 2018 [hereinafter FCC Declaratory Ruling]. 54 Id. ¶ 71. 55 Id. ¶ 24. 56 Id. 57 Id. at 4 n.9 (This definition follows that provided in 47 C.F.R. § 1.1312(e) (Facilities for which no preconstruction authorization is required). “Authorization” is defined at 47 C.F.R. §1.907 as “written instrument or oral statements issued by the FCC conveying authority to operate, for a specified term, to a station in the Wireless Telecommuni- cations Services.” According to the C.F.R. [I]t is in the public interest for utility facilities to be accommodated on the right-of-way of a Federal-aid or direct Federal highway project when such use and occupancy of the highway right-of-way do not ad- versely affect highway or traffic safety, or otherwise impair the high- way or its aesthetic quality, and do not conflict with the provisions of Federal, State or local laws or regulations.44 There are several documents, including AASHTO’s utility accommodation policy, that provide DOTs guidance on accom- modating utility facilities in the rights-of-way. The FHWA’s guide, Utility Relocation and Accommodation on Federal-Aid Highway Projects,45 indicates that “States, may, at their discretion, charge fees for longitudinal utility use of high- way right-of-way. But there is no mention in Federal law, regula- tion, or policy as to how these fees are to be used.”46 The guide further explains that it is a long-standing policy of FHWA to allow states to charge fees and use the proceeds “as they see fit.”47 Historically, the fees tended to only cover the cost to process the permits, but with advances in fiber optics and wireless tele- communications, the FHWA has “informally encouraged the States to use such revenues for transportation purposes.”48 Public Utility Use Versus Private Utility Use States typically define a public utility as any corporation or entity that provides service to the public in terms of water, electricity, gas, or telecommunications. Not all states include telecommunications/communications and transportation pro- viders within their definition of a utility. Public utilities are not necessarily publicly owned; the public nature refers to the pro- vision of services to the public. However, some states regulate publicly owned utilities in a different manner to public utilities. By comparison, a private utility typically provides service to their own private land or a small number of customers within a parcel of land. They differ from public utilities because they are not providing a service to the general public. While many DOTs distinguish public from private utilities based on their provision of service to the public, FHWA distin- guishes “utility facilities” from “private lines” and provides sepa- rate regulations, which is critical in light of requirements for the use of fees. In 1985, FHWA created procedures that covered “both the accommodation of utilities and the use of highway right-of- way by private lines.”49 FHWA determined that private line cross- ings could be handled under 23 C.F.R. 645 subpart B, but that pri- vate line longitudinal use was not a “public interest” and therefore would be handled under 23 C.F.R. 1.23 (c) on a case by case basis.50 FHWA is given discretion, under 23 C.F.R. 1.23 (c), to allow non- 44 Id. § 645.205 (2019). 45 Federal Highway Administration, Office of Program Administra- tion, Program Guide, Utility Relocation and Accommodation on Federal- Aid Highway Projects, Sixth Edition, January 2003, https://www.fhwa. dot.gov/reports/utilguid/if03014.pdf. 46 Id. at B-72. 47 Id. 48 Id. 49 Id. at B-73. 50 Id.

8 NCHRP LRD 81 (2) recurring charges for a Small Wireless Facility’s use of or attachment to property inside the ROW owned or con- trolled by a state or local government… typically paid on a per structure/per year basis, and (3) recurring right-of-way access fees that are “assessed, in some instances, to compensate a state or locality for a Small Wireless Facility’s access to the ROW.65 The 2018 Declaratory Ruling provides fee levels “likely to comply with Section 253” that were determined by reviewing FCC’s pole attachment rate formula in conjunction with small cell legislation in 20 states, local municipalities, and comments in the record.66 The fees set forth include: (1) A $500 non-recurring fee, including a single up-front application for up to five small wireless facilities.67 (2) A $270 annual fee per Small Wireless Facility, including any ROW access fee or fee for attachment to municipally owned structures.68 The FCC assumes that “there would be almost no litiga- tion by providers over fees at or below these levels.”69 The rul- ing highlights that there could be local variances in costs and that a fee could be higher as long as fees would be consistent with Section 253, that is if the fee was a fair and reasonable ap- proximation of costs, and the costs were themselves reasonable and nondiscriminatory.70 The ruling did not mention any future adjustments to the fee that would be considered appropriate. Several cities, municipal associations, and telecommunications providers have appealed this ruling for different reasons. The cases have been consolidated into one, which is currently under abeyance pending a case management decision and the ruling remains in effect while the case is being decided.71 Statutory Limits on Review Periods In addition to addressing the issue of fees, the 2018 Declara- tory Ruling also reviewed the issue of so-called “shot clocks,” which provide the maximum allowable period of time for the permitting agency to review a permit application and approve or deny the application. In an effort to define a “reasonable pe- riod of time” required by Section 332,72 in 2009 the FCC created a 90-day shot clock for reviewing wireless infrastructure collo- cation applications, and a 150-day shot clock for reviewing wire- less infrastructure siting applications other than collocations. These shot clocks, sometimes called “Section 332 shot clocks”, 65 Id. 66 Id. ¶ 78. 67 Id. ¶ 79. 68 Id. 69 Id. ¶ 80. 70 Id. 71 See Sprint v. F.C.C., Nos. 19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-10341, 19-70344, 2019 U.S. App. LEXIS 8350 (9th Cir. March 20, 2019). 72 47 U.S.C. § 332(c)(7)(B)(ii). • The facilities do not result in human exposure to radio- frequency radiation in excess of the applicable safety standards specified in (C.F.R.) section 1.1307(b).58 The ruling further states that “fees charged by states or lo- calities in connection with Small Wireless Facilities would be ‘compensation’ for purposes of [47 U.S.C. ] Section 253(c),”59 which governs the authority of state and local governments to receive fair and reasonable compensation from telecommunica- tions providers for access to the public rights-of-way. The FCC concluded that: ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities, as well as ap- plication or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW violate [47 U.S.C.] Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable approximation of the state or local government’s cost, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly situated competitors in similar situations.60 The 2018 Declaratory Ruling provides that “by costs, we mean those costs specifically related to and caused by the de- ployment. These include, for instance, the costs of processing applications or permits, maintaining the ROW, and maintaining a structure within the ROW.”61 Regarding fees charged to simi- larly situated competitors, the FCC states that their “interpreta- tions in this order bear on whether and when fees associated with Small Wireless Facility deployment have the effect of pro- hibiting wireless telecommunications service and thus are sub- ject to preemption under [47 U.S.C.] Section 253(a), informed by the savings clause in [47 U.S.C.] Section 253(c).”62 The ruling goes on to explain that while there is precedent to interpret “fair and reasonable” not only as cost-based charges but also as mar- ket-based charges, “the statutory context persuades us to adopt a cost-based interpretation here.”63 The ruling applies to three categories of fees, “one of which applies to all deployments of Small Wireless Facilities while the other two of are specific to the deployment of small wireless fa- cilities inside the right-of-way.”64: (1) “Event” or “one-time” fees are charged that providers pay on a non-recurring basis in connection with a one-time event, or series of events occurring within a finite period. . . For example, a provider may be required to pay fees during the application process to cover the costs related to pro- cessing an application, building, or construction permits, street closures, or a permitting fee, whether or not the de- ployment is in the right-of-way. 58 Id. 59 FCC 2018 Declaratory Ruling, ¶ 71. 60 Id. ¶ 50 (citations omitted). 61 Id. at 26, n.131. 62 Id. n.132. 63 Id. ¶ 55. 64 Id. at 13 n. 71.

NCHRP LRD 81 9 to act would not mean that a permit is “deemed granted,” as sug- gested by the Wireless Infrastructure NPRM/NOI.85 In a case of failure to act, FCC anticipates that communica- tions providers would have a strong case so to quickly obtain an injunction to compel the permitting agency to issue a permit.86 The permitting agency would then have the opportunity to dis- prove the presumption of effective prohibition by demonstrat- ing how the failure to act was reasonable and did not limit or inhibit the applicant from introducing new services. In placing the burden of proof on the permitting agency, and in provid- ing an updated interpretation of Section 332 for small wireless facilities, the FCC addressed concerns of the “deemed granted” supporters, that filing suit in court to resolve a dispute would be burdensome and expensive on applicants, the judicial sys- tem, and citizens.87 As a result, courts should be able to expedite their decision-making process in these failure-to-act cases, and the FCC did not find it necessary to adopt a “deemed granted” remedy as part of this ruling.88 Most states convey the authority to regulate access and con- struction or placement on the rights-of-way within the state highway system to the state transportation agencies. Gener- ally, state legislation requires that this access be regulated in a fair, reasonable, nondiscriminatory, and competitively neutral manner. These provisions also apply to the setting of fees for access, and in addition, most states require that the fees be re- lated to the costs incurred by the DOT during the permitting or leasing process. In addition to the rules governing access to the rights-of-way, public utilities in most states must follow the rules of a state Public Utilities Commission (PUC) or Public Service Commission. Most of these commissions regulate the utility-to-consumer relationship and ensure that all construc- tion or placement is in the public interest. The rules for access to the rights-of-way vary in cases of highways and streets within state municipalities. The state DOT often has ultimate control but can allow municipalities to regulate rights-of-way within their boundaries when deemed necessary. Control over Rights-of-Way In most states, the state DOT has the power to control ac- cess or permit access to highway rights-of-way. However, in some states the DOT shares the regulatory power to control the rights-of-way. Table 1 details DOTs that do not have sole control over access to the state rights-of-way and describes other desig- nated government entities that share the authority. No. 576 NS of the City of Huntington Park, California Pursuant to Sec- tion 253(d) of the Communications Act of 1934, 12 FCC Rcd 14191 (1997). 85 In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment NPRM/NOI, 32 FCC Rcd 3330, 3338 (2017). 86 FCC 2018 Declaratory Ruling, ¶ 118. 87 Id. ¶ 129. 88 Id. ¶ 128. were challenged but later affirmed by the Fifth Circuit and the Supreme Court.73 In the 2018 Declaratory Ruling, the FCC created two new small wireless facilities shot clocks, noting the “greater need for rapid siting” and “the lower burden” due to the permitting agency’s experience with the technology.74 The first allows 60 days to review a collocation application for attachment of small wireless facilities using a preexisting structure, and the second allows 90 days for an application for a small wireless facility attachment using a new structure.75 These new time periods were deemed reasonable based on the “real world experience of many municipalities,”76 shot clocks enacted in several state bills, and the FCC’s Broadband Deployment Advisory Committee’s Model Code for Municipalities recommended timeframes.77 Notably, the new shot clocks apply to single and batched applications, which the ruling defines as “multiple separate ap- plications filed at the same time, each for one or more sites or a single application covering multiple sites.”78 The ruling refer- ences the 2007 Notice of Proposed Rule Making and Notice of Inquiry (NPRM/NOI) regarding accelerating wireless broad- band deployment in which the FCC asked whether shorter or longer shot clocks should apply to batched applications.79 Vari- ous communications providers commented that batched appli- cations should not be subject to longer shot clocks than single applications, while other commenters contended that batched applications fail to account for unique local circumstances.80 The FCC’s ruling argues that batched applications should have the same shot clock requirements as single applications because “in many cases, the batching of such applications has advantages in terms of administrative efficiency that could actually make review easier.”81 The FCC further notes that a communications provider could file multiple, single applications on the same day, and each would have the same shot-clock requirement, there- fore batching applications should follow the same rules.82 Statutory Remedies for Inaction The ruling clarifies that a permitting agency’s failure to make a decision for small wireless facilities within the allotted timeframe will equate to a failure to act within the meaning of Section 33283 and a presumption of unlawfully prohibiting service by materially limiting or inhibiting “the introduction of new services or the im- provement of existing services.”84 This further clarifies that failure 73 City of Arlington v. FCC, 668 F.3d 229, 259 (2012). 74 FCC 2018 Declaratory Ruling, ¶ 104. 75 Id. ¶ 105. 76 Id. 77 Id. 78 Id. ¶ 113. 79 Id. & n.329. 80 Id. ¶ 113. 81 Id. ¶ 114. 82 Id. 83 47 U.S.C. § 332(c)(7)(B)(v). 84 FCC 2018 Declaratory Ruling, ¶ 37, referencing In the Matter of California Payphone Association Petition for Preemption of Ordinance

10 NCHRP LRD 81 Reasons for granting an exception usually include unusual con- ditions or undue hardships. The requirements for exceptions are typically covered in the state’s administrative code. Other than exceptions, some states have begun to implement shared use, shared resource, or in-kind agreements. Also known as in-kind compensation, this agreement involves the provision of services or equipment to the state DOT for access to the rights-of-way by the communications providers. This can be in the form of telecommunications services, equipment, conduit, or any other facilities. Fees or Monetary Provisions As of January 2019, 26 states had rules and regulations that specify compensation or application fees for small wireless facil- ities be “fair and reasonable” or be related to the costs incurred by the permitting authority. In addition to other provisions that relate to fees or charging for access to the rights-of-way, Table 2 shows 25 states that have a specific fee schedule or provide for acceptance of in-kind compensation. Before January 2019 the remaining 24 states and the District of Columbia did not specify fee schedules or discuss fees in their statutes or regu- lations. However, during 2019 many of these remaining states and municipalities throughout have developed statutes, regula- tions and, ordinances regarding fees for small cell facilitates.90 90 As an example, on March 24, 2019, the DDOT Public Space Committee adopted guidelines for the installation of small cell technol- ogy in the District of Columbia. These guidelines directed an entity to Definition of Communications Utility States vary on how they define communications utilities. A review of state regulations and rules found that a communica- tions utility might provide telephone, internet, and/or cable/TV services to consumers, and depending on the state this can ei- ther include or exclude wireless communications from cellular technology. Certain states also exclude cable companies from their definition of telecommunications or communications util- ities. Small wireless facilities are not always considered a com- munications utility. For example, in the State of Washington small wireless facilities are considered personal wireless service facilities. Utility Accommodation in Controlled-Access Rights-of- Way State accommodation rules vary about accommodation of utilities on controlled access rights-of-way, including access by longitudinal utility facilities. Since 1988, communications lines, unlike many other utilities, have been allowed to be in- stalled longitudinally in the controlled-access rights-of-way of many states. As reported in a recent National Cooperative Legal Research Program, (NCHRP) synthesis, in 2013 a total of 45 states had an accommodation policy that allowed longitudinal installation of communications lines in controlled access rights- of-way in some circumstances or on an exceptional basis.89 89 Kraus, supra note 42, at 15. Table 1. State DOTs Without Sole Authority to Permit Right-of-Way Access. State DOT Authority to Permit Authority to Permit Right-of-Way Access Alaska Yes The Director of Lands and the Regulatory Commission of Alaska determine certain rules and regulations, including fee amounts, for use of state land. The Alaska Department of Transportation and Public Facilities (DOT&PF) has the authority to permit access to highway rights-of-way. California Yes PUC holds ultimate regulatory authority over utilities within the state. Utilities must apply for an encroachment permit from the necessary authority, in this case the California Department of Transportation (Caltrans) District Office, before applying for a permit for construction at the state level. However, Caltrans has no control over access to scenic highways, which are regulated by the PUC. Colorado No State Board of Land Commissioners Idaho Yes The State Board of Land Commissioners has ultimate control over the public rights-of-way, but the DOT has the authority to issue encroachment permits for rights-of-way along the state highway system. New York No Extensions to existing lines can be made once a petition to the Department of State is completed and approved. North Carolina No PUC has the power to approve or deny entrance or crossing of the rights-of-way by utility companies, including telecommunications providers. Oregon Yes The Oregon Department of Transportation (ODOT) (OR) and the county governing body have jurisdiction over roads outside of cities. South Dakota Yes The County Board of Commissioners grants approval for access to highways, but the South Dakota Department of Transportation (SDDOT) supervises the location and placement of equipment. SDDOT also has permitting authority over state-owned highways.

NCHRP LRD 81 11 Table 2. Fees or Provisions for Rights-of-Way Access or Use by Small Wireless Facilities. State Fees Notes Alabama - Fair and reasonable compensation.1 Alaska • Utility Permit Fee: $600 for most installations. • Collocations or additions to existing infrastructure: $100, and if the facility will exceed 200 ft in length, an extra $1 per foot over 200 will be charged (not to exceed $10,000).2 Sale, or other disposal, such as abandonment, to utilities must be at fair market value.3 Arizona - Any application fees, permit fees, or charges levied on the tele com mu ni- ca tions company must be competitively neutral and nondiscriminatory as well as be imposed in a timely manner. Only the following fees are expressly allowed: transaction privilege tax, application fee, and construction permit fee. Allows in-kind agreements.4 California - Fees cannot exceed a reasonable cost for providing access and issuing the permit.5 Colorado - In-kind compensation is not permissible, and the fee or charge must be related to the costs incurred by the political subdivision.6 Connecticut - Fees range from no fee to $100 for permit applications depending on type of work or access required.7 Florida - Florida has a Communications Service Tax that limits the ability to require fees for right-of-way access. However, the Florida Department of Transportation (FDOT) districts can charge permit application fees to recover costs incurred by FDOT, e.g. permit processing or inspections. Fees are limited to $300 for a general permit application, $625 for a standard or modification to a standard permit, and $50 for right-of-way occu pancy transfer.8 Hawaii - Fee schedule is determined by the Director of Transportation and should be used to defray any costs to the department.9 Idaho • Non-interstate utility permit: new, modify, relocate with no prior easement rights: $50 • Interstate utility permit: fees will be addressed at the time of application. • Interstate and non-interstate maintenance or emergency repairs with no prior easement rights: no charge.10 - Illinois • Compensation is allowed for utility access to fully access-controlled highways; this is based on appraised market value. • Attachments to highway structures, such as bridges, require a fee of at least $300.11 Illinois charges an Infrastructure Maintenance Fee that prohibits additional charges for utility occupancy within conventional highway rights-of-way.12 1 Ala. Code § 11-50B-3 (2019) (Public provider powers). 2 17 Alaska Admin. Code § 15.041 (2019) (Permit fees and charges). 3 Alaska Stat. § 38.05.810 (2019) (Public and Charitable Use). 4 Ariz. Rev. Stat. § 9-582 (D) (2019) (Taxes and Other Charges; telecommunications facilities; limitations). 5 Cal. Sts. & High. Code § 671.1 (2019) (Fee Schedule). 6 Colo. Rev. Stat. § 38-5.5-107(3) (2019). (Permissible taxes, fees, and charges). 7 Conn. Agencies Regs. § 13b-17-4 (2019) (Application for permit). 8 Fla. Admin. Code Ann. r. 40E-6.601 (2019) (Permit Application Processing Fees). 9 Haw. Rev. Stat. Ann. § 264-7. (2019) (Permit, fees, etc.). 10 Idaho Admin. Code § 39.03.42.700 (2019) (Application Fees). 11 Ill. Admin. Code tit. 92 § 530.120 (2019) (Fees or Assessment). 12 35 Ill. Comp. Stat. § 635/5 (2019) (Legislative Intent). table continues

12 NCHRP LRD 81 State Fees Notes Iowa • Longitudinal Occupancy Fees on Highways: Multiduct system – flat fee or $14,500 per cable installation or $7,250 per mile of cable. • Other installation – flat fee of $12,000 per installation of $2,500 per mile of cable.13 - Louisiana - Fees cannot exceed the fair market values of the property or the cost of administering the permit,14 and the department may reduce fees in exchange for shared resources.15 Massachusetts - In terms of fees for telecommunications companies use of the rights- of-way, the Telecommunications and Energy Department and the Department of Public Utilities have the responsibility to set reasonable rates.16 Michigan • Limited access right-of-way charges: $1,000 per mile of longitudinal access with a minimum fee of $5,000. If this does not defray costs, additional fees can be charged.17 Non-limited access: The Michigan Department of Transportation (MDOT) (MI.) can set a reasonable fee.18 Nebraska - If the facility is along a public highway, permit fees can be levied but they must be related to the charges incurred by the governing body.19 Nevada - The compensation received must be fair and just and access must be regulated in a nondiscriminatory manner. The Nevada Department of Transportation (NDOT) (NV.) is also authorized to accept in-kind compensation.20 New Mexico - The New Mexico Department of Transportation (NMDOT) may establish a reasonable schedule of fees for access permits.21 North Dakota • $100 for a crossing. • $50 per each additional crossing on the same permit. • $200 for an open cut crossing. • $200 per mile for a longitudinal facility. • $100 for bridge attachments. • $50 for down guys, push braces, soil borings, and test wells.22 Additional fees are required for reviewing detour layouts, signing plans, reviewing the location and the method of attachment ($50 minimum). A minimum $50 fee is also required for inspections, but this is not due with the permit application.23 13 Iowa Admin. Code r. 761-115.16 (2019) (Longitudinal Installations on freeways). 14 La. Rev. Stat. Ann. § 48:381.1 (2019) (Rights-of-way; joint use agreements). 15 Id. § 48:381.2. (2019) (Rights-of-way; telecommunications installations, including wireless telephone hardware, fiber-optic lines, and telecommuni- cations towers; annual report to legislature). 16 Mass. Gen. Laws ch. 166, §25A (2019) (Lines for Transmitting Electricity-Attachments; Definitions and Construction of Terms). 17 Mich. Comp. Laws § 247.183 (2) (2019) (Public utilities, cable television companies, broadband companies, and municipalities; construction and maintenance of structures; consent; construction and maintenance of utility lines and structures; standards; charges; use of revenue; relocation permit; use of electronic devices within limited access and rights-of-way to provide travel-related information). 18 Id. 19 Neb. Rev. Stat. § 86-704 (2019) (Telecommunications companies; right-of-way; wires; municipalities; powers and duties; increase in occupation tax; procedure; election). 20 Nev. Rev. Stat. § 408.55024 (2019) (Department may offer use of and access to spare conduit and related facilities to telecommunications provider: Requirements; compensation rates; duties of Department). 21 N.M. Code R. § 18.31.6.14 (2019) (Permitting Department). 22 North Dakota Department of Transportation, A Policy for Accommodation of Utilities on State Highway Right-of-Way Appen- dix E 54 (2006). 23 Id. Table 2. Continued. table continues

NCHRP LRD 81 13 Table 2. Continued. State Fees Notes Pennsylvania • Permit application fee: $50 • Permit inspection fees range from $10 to $80 depending on the type of work to be inspected and whether crossings are involved.24 - Tennessee • Use and Occupancy Agreement Application Fee: $200 base fee + $10 per each mile of proposed installation.25 These provisions relate to fiber optic cables and other facilities used by telecommunications companies. Utah - State highway system: cost of managing the permitting process can be recovered. Interstate highway system: Compensation can be required for access, but it must be fair and reasonable, competitively neutral, nondiscriminatory, and open to public inspection.26 Vermont • $100 for a utility installation. • $500 annual blanket permit for routine inspection and maintenance of existing installations.27 The Secretary of Transportation can assess a transportation impact fee for access to the rights-of-way.28 Virginia • Public Rights of Way Use Fee using formula (see Notes). • The Code of Virginia does not allow the DOT to charge an annual fee for small cell installations and sets the rate of $150 for a single use permit.29 Number of public highway miles in the Commonwealth × Highway Mileage Rate30 + number of feet of new installations in the Commonwealth (× $1 per foot) Sum of above ÷ total number of access lines in the Commonwealth = Annual Use Fee Rate. Washington • Category 1 $500. • Category 2 $300. • Category 3 $150. • Franchise consolidation $300. • Franchise renewal $250. • Franchise assignment $50.31 Before any construction can begin, a surety bond (not less than $1000) is required to insure complete construction.32 Wisconsin - In-kind compensation is allowed.33 24 67 Pa. Code § 459.4 (2019) (Permit Fees). 25 Tenn. Comp. R. and Regs. § 1680-6-1-.09(4)(b) (2019) (Fiber Optic Cable Facilities or Freeways). 26 Utah Code Ann. § 72-7-108 (2019) (Longitudinal telecommunications access in the interstate highway system — Definitions — Agreements — Compensation — Restrictions — Rulemaking). 27 Vt. Stat. Ann. tit. 19 § 1112 (2019) (Definitions; Fees). 28 Id. 29 Va. Code Ann. § 56-484.28 (2019) (Access to public rights-of-way operated and maintained by the Department for the installation and mainte- nance of small cell facilities on existing structures). 30 The highway mileage rate was set at $425 per mile in 2001 and for consequent years according to Va. Code Ann. § 56-468.1. E (2019) (Contingent Expiration, Public Rights-of-Way Use Fee). 31 Wash. Admin. Code § 468-34-020 (2019) (Costs). 32 Washington State Department of Transportation Utilities Manual M 22-87, p.1-13, https://www.wsdot.wa.gov/publications/manuals/fulltext/M22- 87/1998Septembercomplete.pdf. 33 Wis. Stat. § 84.01.31 (2019) (Department Powers and Duties).

14 NCHRP LRD 81 Table 3. Use of Shared Resource Agreements at State DOTs.95 Status of Shared Resource Agreements State DOT Use shared resource agreements/negotiating agreements WisDOT, GDOT, ITD, LaDOTD, and VTrans Do not use shared resource agreements DOT&PF (AK), CTDOT, MDOT (MS.), MDT, NDOT (NE.), TxDOT, and WYDOT Notable Cases for Rights-of-Way Access by Utilities States follow similar rules and standards for regulating access to rights-of-way by utilities in general, and communications utilities in particular; this often includes similar application of fees and requirements of the utility. However, certain states have unique rules, standards, or fee structures that apply to access to the rights-of-way for communications utilities. These cases are presented below to highlight key differences in these states. Florida Florida has specific limitations on fees charged to communi- cations/telecommunications providers because of a tax simplifi- cation law that levies a communications services tax.96 The tax is levied at both the state and local level and limits fees for permits: if a municipality chooses to charge a permit fee, the fee must be to recover actual costs incurred by the permitting authority, and the communications services tax rate will be reduced for that municipality or authority choosing to charge a permit fee. In practice, FDOT only charges permit application fees that defray the cost of administering the permit.97 Illinois Similar to Florida, Illinois has legislation that simplifies fees charged to utilities and prohibits permit fees for access to the rights-of-way. The Telecommunications Infrastructure Mainte- nance Fee Act98 removed the property tax previously charged to utilities and streamlined the fee system so that a telecommuni- cations utility is only responsible for the maintenance fee rather than a variety of permit, lease, or franchise fees.99 Massachusetts Although the state rights-of-way are regulated by the Mas- sachusetts Department of Transportation (MassDOT), any fees that are charged for accessing the rights-of-way are set by the Massachusetts Department of Telecommunications and Cable 95 Id. at 27. 96 Fla. Stat. § 202.10-202.41(2019) (Communications Services Tax Simplification Law). 97 Fla. Admin. Code r. 40E-6.601 (2019) (Permit Application Pro- cessing Fees). 98 35 Ill. Comp. Stat. 635 (2019). 99 Id. § 635/5 (Legislative Intent). Some states specifically regulate collocation, which involves the placement of a facility or “cell” on existing infrastructure. This is commonly used when siting micro-wireless facilities onto exist- ing utility poles or wires. Determination of Right of Way Fair Market Value In 2013, the FHWA Office of Policy held a workshop on the facilitation of broadband deployment in the highway rights-of- way.91 Each presenter was asked to speak to the topic of deter- mining the fair market value of a right-of-way. The Utah Depart- ment of Transportation (UDOT) explained that the fair market value or rent of a highway right-of-way is calculated on a per mile basis. The upper and lower bound estimates are averaged, and a discount rate is applied to 30-year leases. The Maryland State Highway Administration (MSHA), through an indepen- dent study, found that values were not easy to quantify and that generally “fiber exchanged for use of fiber has worked best for the state.”92 This form of resource sharing/shared use agreement continues to be the model for Maryland when considering the value of its rights-of-way.93 Included in the workshop notes was a survey conducted by the Wisconsin Department of Transportation (WisDOT) Re- search Program. One question asked about the value of broad- band communications, including right-of-way pricing, but none of the states responding to the survey had established a way to determine the value of broadband. A few states did mention permit or flat fees for the use of rights-of-way, but none were connected to a valuation. Another question asked state DOTs if they allowed barter arrangements where they obtained the use of fiber or bandwidth in exchange for the longitudinal occupa- tion of controlled-access highway rights-of-way or charged a fee if no barter arrangement could be made. As shown in Table 3, five states replied they had entered into various shared-resource agreements, and seven states replied they had not, citing obsta- cles set by state statute or utility accommodation policy.94 execute a Master Agreement with DDOT prior to the installation of small cell infrastructure in the rights-of-way. The Master Agreement specifies a fee schedule, which includes an application fee. 91 United States Department of Transportation, Federal Highway Administration, Office of Policy and Governmental Affairs, Executive Order: Accelerating Broadband Infrastructure Deployment, Best Approaches of Broadband Deployment in Highway Rights of Way: Summary Paper, May 2013, https://www.fhwa.dot.gov/policy/otps/ successprac.pdf [hereinafter Broadband Infrastructure]. 92 Id. at 18. 93 The West Virginia Broadband Enhancement Council, Tilson Technology Management. Analysis of State Right-of-Way (ROW) Policy and Fees, 8-9, 2018, https://broadband.wv.gov/assets/files/pdfs/news/ ROW-Policy-Review-Final-Report-2018.10.19.pdf. 94 Broadband Infrastructure, supra note 24.

NCHRP LRD 81 15 July 1, 2019, to June 30, 2020. 107 The fee was calculated using the following values: 108 n = 71,267.02 miles r = $425 per mile i = 5,041,941 feet x = $1.00 per foot a = 2,450,168 The annual use fee replaces all fees of general applicability that could be charged by the Virginia Transportation Board, such as permit or inspection fees. For telecommunications ser- vices, the annual use fee is charged on a per access line basis with a minimum of $0.50 per access per month and is added to the monthly bill of an end user. For cables operators, it is charged on a per subscriber basis. Use of the Virginia Transpor- tation Board’s electric poles or conduits is allowed, and a fee can be charged for that usage. The Code of Virginia does not allow VDOT to charge an annual fee for small cell installations and sets the rate of $150 for a single use permit.109 Microcell Tower Accommodations Some states have been pro-active with the establishment of guidelines for the accommodation of microcell sites in public rights-of-way. For example, the Georgia Department of Trans- portation (GDOT) allows microcell antennas on state rights-of- way if attached to existing poles, if approved by the pole owner, and if the microcell telecommunications provider has a com- petitive local exchange carrier permit from the Georgia Public Service Commission. GDOT uses right-of-way agreements in combination with encroachment permits to accommodate micro cells.110 In recent years, there has been an expansion in efforts by state governments to preempt localities and state agencies from charging new or additional fees to communications compa- nies that wish to place small or micro-wireless facilities within rights-of-way. This recent push to expand the market for 5G is reflected at the federal level by the FCC “Fast Track 5G Plan,” which is intended to increase the competitiveness of the United States in this market.111 Easing regulations facilitates companies’ ability to test and deploy units at scale. State legislatures have 107 Matt Reynolds, State Utilities Property Manager, Virginia Depart- ment of Transportation, Right of Way Use Fee, Jan. 8, 2019, http://www. virginiadot.org/business/resources/Right_of_way/rw_use_fee_as_of_ July_1_2019.pdf. 108 Virginia Department of Transportation. Right of Way Use Fee Calculation, Jan. 8, 2019. http://www.virginiadot.org/business/resources/ Right_of_way/Right_of_Way_Use_Fee_Calculations_7_19.pdf. 109 Va. Code Ann. §56-484.28 (2019) (Access to public rights-of- way operated and maintained by the Department for the installation and maintenance of small cell facilities on existing structures). 110 The Georgia state legislature has pending legislation of small wireless facilities, Streaming Wireless Facilities and Antennas Act, (HB184/SB66) (2019); however, the text does not mention permitting or regulation by GDOT, only local governments. 111 FCC’s 5G, supra note 2. (DTC) and the Department of Public Utilities (DPU).100 The DTC has been granted the authority to determine what con- stitutes a reasonable fee for MassDOT and other authorities to charge for access to the rights-of-way. DTC recently transferred some of their shared regulatory powers over to the DPU; how- ever, they maintain the ability to jointly set rates and procedures for communications utility usage of the rights-of-way.101 Virginia Virginia uses a formula to determine fees charged to utility companies providing telecommunications services for their us- age of the rights-of-way. The Public Rights-of-Way Use Fee is calculated annually by the Virginia Department of Transporta- tion (VDOT) using the following formula:102 Annual Use Fee Rate = n · r + i · x a n = number of public highway miles in the Commonwealth of Virginia r = highway mileage rate in $ per mile i = number of new installations in the Commonwealth of Virginia in feet x = new installation rate of $1.00 per foot a = number of access lines in the Commonwealth New installations are defined by the Code of Virginia as including “the construction of new pole lines and new con- duit systems, and the burying of new cables in existing public rights-of-way. New installation does not include adding new cables to existing pole lines and conduit systems.”103 Access lines are defined to include “residence and business telephone lines and other switched (packet or circuit) lines connecting the cus- tomer premises to the public switched telephone network for the transmission of outgoing voice-grade telecommunications services.”104 According to the Virginia Code, access lines do not include local, state, and federal government lines.105 The highway mileage rate was set at $425 per mile in 2001 and for subsequent years.106 Based on calculations by VDOT, the Annual Use Fee Rate is $14.42, which is equivalent to a monthly right-of-way use fee of $1.20 per access line, for the period of 100 Mass. Gen. Laws Ann. ch. 166 § 25A (2019) (Lines for Trans- mitting Electricity – Attachments; Definitions and Construction of Terms). 101 Massachusetts Department of Telecommunications and Cable, Fiscal Year 2017 Annual Report (March 1, 2018), https://www.mass.gov/ files/documents/2018/03/02/Final%20FY%202017%20DTC%20 Annual%20Report%20Approved%203%201%2018.pdf. 102 Va. Code Ann. § 56-468.1 (C) (D) (2019) (Public Rights-of-Way Use Fee). 103 Id. § 56-468.1(A), New installation of telecommunications facil- ities (2019). 104 Id., Access lines. 105 Id. 106 Id. § 56-468.1(E).