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

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16 NCHRP LRD 81 are typically those that cover various utilities of the same type, or that cover activities or the same type. Fee maximums are included in most bills, and often these fees must be related to the costs incurred by the DOT or au- thority over the permitting process. Table 4 provides informa- tion on fees detailed in recent small cell legislation. The fees in Table 4 represent recent legislation aimed at expanding access to, and capabilities for, 5G; some state legislatures have chosen to specify fee schedules for these technologies, even if the fee schedules for utility lines and facilities more generally are at the discretion of the DOT. III. STAKEHOLDER SURVEY: PRACTICES AND PROCEDURES TO GENERATE REVENUE FOR STATE DOTS AND TOLLING AUTHORITIES Overview of Survey Instrument Researchers created a survey that was sent to all 50 state DOTs, the District of Columbia Department of Transportation (DDOT), and 77 toll authorities. The survey consisted of ten main questions and several related questions that were posed to survey participants based on their responses. In some cases, answer choices were modified to reflect the survey participants responses, for example in case of a participant’s definition of a communications utility. Appendix A provides a copy of the sur- vey questionnaire and Appendix B provides a detailed overview of survey responses, including question answer types and how questions were combined in the analysis. Researchers sent the initial survey request on February 5, 2019, and a reminder to complete the survey on February 18, 2019. Researchers sent several additional reminders to those agencies that did not complete the survey and added new sur- vey participants as needed. In many cases, this was necessary when contact information was outdated (e.g., email addresses had changed, or contacts were retired). In other cases, our con- tacts requested original participants to forward the survey to colleagues to gather additional feedback. If researchers received more than one answer from a state or agency, researchers com- bined responses into a single DOT response. Researchers re- ceived the last survey response on March 28, 2019, and closed the survey on April 2, 2019. Researchers received survey responses from 42 state DOTs, or 84 percent of state transportation agencies, and 7 (or 9 per- cent) of the 77 tolling authorities included in the survey. Fig- ure 1 shows the share of state DOTs versus tolling authorities responding to the survey, and Figure 2 provides a mapped rep- resentation of the transportation agencies and toll authorities that participated in the survey. The survey was designed to collect data on the generation of revenue from the use of rights-of-way by communications utilities, including small wireless facilities or microcell technol- ogy. For the purpose of the survey, researchers used the term microcell technology. Researchers were aware that some states do not define micro- cell technology as a communications utility. To resolve this, re- taken the opportunity to ensure a welcoming market for these types of facilities and infrastructure. Some states such as Indi- ana, Ohio, Oklahoma, and Texas, have small/microcell legisla- tion that specifically mention local or municipal authorities and their associated rights-of-way. However, most states have estab- lished rules for any authority that controlled the rights-of-way. Prior to 2019, 21 state legislatures had passed bills pertaining to 5G enabling technologies such as small and microcell or wire- less facilities. 112 In 2017, Delaware amended their state code to reduce barri- ers for telecommunications companies wishing to place small or microcell equipment in the state rights-of-way. HB 189 included a new chapter (16) under Title 17 of the Delaware Code that gave wireless service and infrastructure providers the same ac- cess to the state rights-of-way as other public utilities.113 The bill states that “reasonable and nondiscriminatory rates and terms” are required for small cell equipment placement by a utility.114 The legislation also served to limit fees that can be charged by the Delaware Department of Transportation (DelDOT); pro- hibiting fees for use of the rights-of-way for construction, in- stallation, mounting, modification, operation, or replacement of a facility, including collocation.115 It also specified that a permit application fee cannot exceed $100 per small cell facility116 and these permits must only apply to activities of a wireless provider within the ROW, over which the Department has absolute control . . . The Department may not enter into an exclusive arrangement with any person for use of the ROW for the construction, operation, marketing, or maintenance of wireless facilities or small wireless support structures or the colloca- tion of small wireless facilities.117 These bills often establish general rules for the permitting process or require that the agency with the authority to regulate the rights-of-way establish a process that is fair and reasonable from the provision of permits to the permit fees. The FCC 2018 Declaratory Ruling aided in narrowing the definition of fair and reasonable.118 Only “generally applicable” permits are typically allowed; or individual/special permits are prohibited for the collocation of new wireless facilities on existing infrastructure, especially if those poles are owned by the utility in question. General application permits or permits of general applicability 112 National Conference of State Legislatures. Mobile 5G and Small Cell Legislation. 2018, http://www.ncsl.org/research/ telecommunications- and-information-technology/mobile-5g-and-small-cell-legislation. aspx#Net%20Neutrality%20Legislation%20by%20States. As of July 2019, another twelve states have enacted legislation or adopted resolutions on small cell and 5G connectivity. 113 Advanced Wireless Infrastructure Investment Act, Delaware General Assembly, House Bill 189 (codified at Del. Code Ann. tit.17§§ 1601-14) (2019). 114 Del Code Ann. tit. 17 § 1602 (2019) 115 Id. § 1605. 116 Id. 117 Id. § 1604 (a) & (b). 118 See e.g. FCC 2018 Declaratory Ruling ¶ 71.

NCHRP LRD 81 17 Table 4. Fees for Enabling 5G Facilities as of January 2019. State Fees Notes Arizona • Application fees: Total application fees cannot exceed $750.1 • $100 each for the first five small wireless facilities and $50 for each additional after that.2 Colorado - No fee or charge can be levied over the amount determined in 47 U.S.C. sec. 224.3 Delaware No more than $100 per small cell facility on a permit application.4 Rates must be reasonable and nondiscriminatory; should not exceed actual and direct cost of issuing the permit.5 Florida $150 per year for collocation.6 - Hawaii - No in-kind compensation can be required by the governmental entity for access to the rights-of-way. In terms of fees, rates, and charges: no fee can be charged for routine maintenance, replacement of small wireless facilities, and installation, placement, maintenance, operation, or replacement or microcell facilities on cables between utility poles. No additional rates or fees can be charged to a company that already has authorization to operate within the rights-of-way.7 Illinois • Up to $650 for the collocation of a single wireless facility on an existing pole. • Up to $350 each for applications with multiple collocations. • $1,000 if the collocation involves the construction of new facilities.8 No fees can be charged to telecommunications providers that already have the authority to occupy the rights-of-way if they are performing routine maintenance, replacement, or placing of microcell facilities on existing cables.9 Indiana Fees cannot exceed the amount charged for a permit of similar type or $100 per small cell facility.10 No application or permit fees for routine maintenance, replacement of wireless facilities with substantially similar facilities, and micro-wireless facilities that are strung between existing utility poles.11 Iowa - No fee limits are set but fees in addition to the original permit application fee are prohibited, and all rates must be reasonable.12 Kansas • Maximum $500 for a collocation that does not require a substantial modification. • $2,000 for a collocation that does require substantial modification of a wireless support structure.13 Permit fee must be directly related to costs incurred by permitting authority.14 1 Ariz. Stat. 9-592 (L) (2019) (Applicability; wireless provider; use of right-of-way; rates, fees and terms; right to access; damage and repair). 2 Ariz. Stat. 9-593(k) (2019) (Applicability; collocation of small wireless facilities; permits; application fee). 3 See. e.g. Public Service Comp. v. F.C.C., 328 F.3d 675 (2003). 47 U.S.C. § 224 (2019) establishes parameters for determining costs and charges. 4 Delaware General Assembly. House Bill 189 (Advanced Wireless Infrastructure Investment Act) (2017). 5 Id. (amends Del. Code Ann. tit. 17§ 1605). 6 The Florida Senate; Commerce Committee and Energy and Utilities Committee. CS/CS/HB687 – Utilities. 2017; See Fla. Stat. §337.4017(f)3 (2019). 7 Hawaii State Legislature. HB2651 HD2 SD1 CD1. (A Bill for an Act Relating to Wireless Broadband Facilities) (2018). 8 Illinois General Assembly. Bill Status of SB1451 (2018) (Regulation of Small Wireless Facilities) (codified at 50 Ill. Comp. Stat. 840/15 (2019) 9 Id. § 840/15(f). 10 Indiana General Assembly. Senate Bill 213, § 10 (2017) (An Act to Amend the Indiana Code Concerning Utilities) (codified at Ind. Code §8-1-32-3 – 26 (a)(3(B) (2019) (Application for a permit or approval for constructive placement, or use of small cell facilities – Consolidated application -Fees- Limitations on permitting authority). 11 Id. § 8-1-32-3-15 (b) (2019) (Applicability). 12 Iowa Senate Bill 431 (2017) (An Act Relating to Small Wireless Facilities) (codified at Iowa Code § 8/C.3 (2019) (Uniform Rules and Limitations- Applications)). 13 Kan. Stat. § 66-2019 (c)(4) (2019). (Siting of wireless infrastructure; public lands and public right-of-way; wireless providers and governing bodies, rights and requirements for application process). 14 Id. § 2019 (c)(2). table continues

18 NCHRP LRD 81 State Fees Notes Michigan • Access fee: No more than $20 annually unless a utility pole is erected, then $125 annually. • Permit application fees: $200 for each small cell wireless facility and $300 if a new utility pole is required in addition.15 No permit fees can be charged for replacement of facilities, routine maintenance, and microcell facilities attached to wires.16 Minnesota - Recent legislation limits the authority of local governments to impose certain fees or require special permits for small or micro-wireless facilities.17 Missouri Cannot exceed $100 per pole and the collocation rate cannot exceed $150 per pole per year.18 Rates or fees can only be charged if the authority also charges for similar work.19 New Mexico - New Mexico recently passed legislation to include provisions for small or micro- wireless equipment regulation.20 However, the Act does not apply to interstates or state highways under the jurisdiction of the department of transportation. North Carolina - The North Carolina Department of Transportation (NCDOT) can issue permits to wireless providers for the collocation of facilities and the construction, operation, modification, or maintenance or utility poles and other current facilities or telecommunications infrastructure. The legislation does not mention fees or rates applicable to NCDOT permits.21 Ohio - In 2018, Ohio passed legislation on small wireless facilities; however, this only pertained to the municipal rights-of-way rather than state owned rights-of-way.22 Oklahoma - Oklahoma passed small cell legislation in 2018, but the provisions applied to municipalities rather than the Oklahoma Department of Transportation (ODOT) (OK.) or state-owned land.23 Rhode Island - Fees are allowed but must be reasonable and associated with the direct and actual costs incurred by the department.24 Tennessee $100 per small wireless facility for the first 5 facilities and then a maximum of $50 for each additional facility.25 The legislation states that the Tennessee Department of Transportation (TDOT) will not charge an application fee or annual collocation fee. 15 Michigan Small Wireless Communications Facilities Deployment Act – Act 365 of 2018 (codified at Mich. Comp. Laws §460.1301 - 1339. 16 Id. § 460.1315(2)(i)(5) (2015). 17 Minnesota Session Laws – 2017, Regular Session Chapter 94—S.F.No. 1456 (codified at Minn. Stat. 2016 § 237.163 subd.3a(d) (2019) (Use and Regulation of Public Right-of-Way). 18 Mo. Rev. Stat. 67.5116.3(3), 5116.4(1) (2019) (Uniform Small Wireless Facility Deployment Act). 19 Id.§ 5116.4(3)(d). 20 New Mexico Legislature. 2018 Regular Session – SB 14 (Wireless Consumer Advanced Infrastructure Investment Act) (codified at N.M. Stat. Ann. §§ 63-91-1 thru 9(2019). 21 General Assembly of North Carolina. Session Law 2017-159, House Bill 310. 2017 (Wireless Communications Infrastructure Siting) (codified at N.C. Gen. Stat. § 136-18.3. A (d) (2019) (Wireless Communications Infrastructure). 22 The Ohio Legislature. House Bill 478. 2018 (Modify law regarding wireless service) (codified at Ohio Rev. Code Ann. § 4939.031(2019)). 23 Oklahoma State Legislature. SB 1388. 2018 (codified at Okla. Stat. tit. 11, §§ 36-501 thru 511) (2019) (Oklahoma Small Wireless Facilities Deploy- ment Act). 24 State of Rhode Island General Assembly. An Act Relating to Public Utilities and Carriers – Small Cell Siting Act. 2017 (codified at R.I. Gen. Laws §39-32-3 (2) (2019). 25 Tennessee General Assembly Fiscal Review Committee. Fiscal Note HB 2279 – SB 2504. 2018 (codified at Tenn. Code Ann. § 13-24-407 (a)(1) (2019) (Uniform local authority fees for deployment of small wireless facilities – Exceptions). Table 4. Continued. table continues

NCHRP LRD 81 19 State Fees Notes Texas - The legislation relates to municipalities only; there is no mention of the Texas Department of Transportation (TxDOT) regulation or ability to set fees.26 Utah Right-of-Way Rates: • Not to exceed 3.5% of gross revenue related to wireless providers usage of rights-of-way or; • $250 annually for each small wireless facility. Application Fees: • Application fees cannot exceed $250 for a permitted use and $1,000 for a non- permitted use. • Collocation on an authority pole is $50 per year per pole. • $100 per facility collocating on an existing or replacement utility pole.27 - Virginia 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.28 - 26 Texas State Legislature. SB 1004. 2017 (Deployment of Network Nodes in Public Right-of-Way) (codified at Tex. Loc. Gov’t Code tit. 9, subtit. A, ch. 284 (2019). 27 Utah State Legislature. S.B. 189 (2018) (Small Wireless Facilities Deployment Act) (codified at Utah Code Ann. §§ 54-21-101 thru 108 (2019)). 28 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. Table 4. Continued. Figure 1. Share of State DOT and toll authorities responding to the survey.

20 NCHRP LRD 81 As shown in Figure 3, researchers asked a similar set of questions about microcell technology, regardless of whether a transportation agency considered microcell technology a com- munications utility or not. For the discussion of the responses, researchers grouped some of the questions to provide a com- prehensive perspective. Further, since tolling authorities pro- vided comparatively little information, researchers discussed responses from state DOTs and tolling authorities separately. searchers included an alternate set of questions in the survey. Based on a respondent’s definition of microcell technology, re- searchers adjusted subsequent questions using the respondent’s definition. Further, researchers considered that some states may be in the process of developing changes to their utility accom- modation policy to address microcell technology in the rights- of-way. As a result, researchers included an additional set of questions for respondents not currently generating revenue but having plans for generating revenue in the future. Figure 3 pro- vides an overview of the survey logic for Questions 1 to 3 and the different paths that a respondent could take in the survey. Figure 2. Map of transportation agencies responding to the survey.

NCHRP LRD 81 21 Figure 3. Process logic for main survey questions.

22 NCHRP LRD 81 about the type of right-of-way where these lines currently gen- erate revenue. Nine states generate revenue in controlled-access rights-of-way, one state DOT in non-limited access rights-of- way, and four state DOTs in all state-maintained rights-of-way (Figure 7). States that generate revenue from longitudinal com- munications lines in rights-of-way other than controlled-access rights-of-way typically accommodate private lines or lines from communications companies that are not considered a utility un- der state rules. Figure 8 provides a map that shows the state DOTs respond- ing and the type of rights-of-way where longitudinal communi- cations lines generate revenue. Macrocells generate revenue for state DOTs in most cases on all types of rights-of-way, regardless of access control. Eleven state DOTs responded, of which six generate value in all state-maintained rights-of-way, two state DOTs in access- controlled rights-of-way, and one state DOT in non-limited access rights-of-way (Figure 9). Figure 10 provides a map that shows the state DOTs re- sponding and the type of rights-of-way where macrocells gen- erate revenue. Similar to macrocells, microcells generate revenue for state DOTs in most cases on all types of rights-of-way, regardless of access control. Eighteen state DOTs responded, of which ten generate value in all state-maintained rights-of-way, two state DOTs in access-controlled rights-of-way, and one state DOT in non-limited access rights-of-way. Two state DOTs reported that microcells may be attached to state-owned vertical structures and facilities (Figure 11). Figure 12 provides a map that shows the state DOTs re- sponding and the type of right-of-way where microcells gener- ate revenue. Survey Responses from State DOTs Of the 42 state DOTs responding, 25 responded that they generate some type of revenue or benefit from communications utilities using transportation facilities or the rights-of-way. The 17 states responding no were asked if they generate revenue from microcell technology, to get a response from states that generate revenue from microcells but do not consider them a utility. This applied to the Washington Department of Trans- portation ( WSDOT) only, responding that microcell technol- ogy under state statute is considered a personal wireless service facility and as such falls under a different statute than utilities. Since WSDOT derives benefit from microcell technology in the state rights-of-way, the research team combined the re- sponses from WSDOT with the responses from other state DOTs that derive revenue from communications utilities in the state rights-of-way, for a total of 26 state DOTs. Type of Communications Utility That Generates Revenue State DOTs are benefiting primarily from microcells and longitudinal communications lines and in some cases from macrocell towers and wireless support structures (Figure 4). Figure 5 provides a map of the states that responded they currently generate revenue or receive a type of benefit from the installation of longitudinal lines in the state rights-of-way. Figure 6 provides a map of the states that responded they currently generate revenue or receive a type of benefit from the installation of microcells in the state rights-of-way. Type of Rights-of-Way Used to Generate Revenue The 16 states that generate revenue from longitudinal com- munications lines in controlled-access rights-of-way were asked Communication Utilities Generating Revenue Microcells 19 Longitudinal Communication Lines 16 Macrocell Towers 9 Wireless Support Structures 2 Figure 4. Type of communications utilities that generate revenue for State DOTs.

NCHRP LRD 81 23 through resource sharing; and one state DOT (NMDOT) re- ported revenue sharing (Figure 15). In addition, two state DOTs reported that they generate revenue from wireless support structures in the state rights-of- way, in one case an annual fee (VDOT), and in the second case a one-time fee (Pennsylvania Department of Transportation (PennDOT)). Process to Assess the Value of Rights-of-Way Fifteen state DOTs responded that they have a defined method or process to assess the value of providing access for use of the rights-of-way. Nine state DOTs provided a description of the process to determine a value for the installation of longitudinal communications lines. Four state DOTs (INDOT, MDOT (MD), TxDOT, and WisDOT) reported that they use a pre- determined rate, rate schedule, or estimated fair market value. Three DOTs (The Missouri Department of Transportation (MoDOT), the Rhode Island Department of Transportation (RIDOT), and the West Virginia Department of Transportation (WVDOT) reported they use appraisals to determine fair market value. VDOT reported the use of adjacent property values, and UDOT Type of Revenue or Benefit Generated Revenue that state DOTs generate from longitudinal com- munications lines is usually in form of an annual fee or resource sharing agreements. Fourteen state DOTs responded to the question, of which nine generate revenue from an annual fee (for example an annual lease fee), nine state DOTs generate rev- enue through resource sharing, three state DOTs have a one- time fee (for example a permit fee), and one state DOT (FDOT) reported revenue sharing (Figure 13). States that generate revenue from macrocells usually receive an annual fee. Seven state DOTs responded to the question, of which five generate revenue from an annual fee, two state DOTs generate revenue through a one-time fee, two state DOTs gener- ate revenue through revenue sharing, and one state (Wisconsin) reported resource sharing (Figure 14). Similar to macrocells, states that generate revenue from microcells usually receive an annual fee. Fifteen state DOTs responded, of which 13 generate revenue from an annual fee, for example an annual lease fee; six state DOTs generate rev- enue through a one-time fee; two state DOTs generate revenue Figure 5. Map of State DOTs that generate revenue from longitudinal communications lines.

24 NCHRP LRD 81 Figure 7. Number of State DOTs reporting type of rights-of-way where longitudinal communications lines generate revenue for State DOTs. Figure 6. Map of State DOTs that generate revenue from microcell technology. Revenue from Microcells State DOTs LJves �No LJ No Response

NCHRP LRD 81 25 Figure 8. Map of State DOTs that generate revenue from longitudinal communications lines by type of rights-of- way. Figure 9. Number of State DOTs reporting type of rights-of-way where macrocells generate revenue for State DOTs.

26 NCHRP LRD 81 Figure 10. Map of State DOTs that generate revenue from macrocell installations by type of rights-of-way Figure 11. Number of State DOTs reporting type of rights-of-way where microcells generate revenue for State DOTs.

NCHRP LRD 81 27 Figure 12. Map of State DOTs that generate revenue from microcell installations by type of rights-of-way. State DOTS LJ Non-Limited-Access ROW LJ Access-Controlled ROW - All State-Maintained ROW - State-Owned Facilities Only LJ Unsure D No Response Figure 13. Number of State DOTs reporting type of revenue generated by longitudinal communications lines.

28 NCHRP LRD 81 Ten state DOTs provided a description of the process to deter mine a value for the installation of microcells. MoDOT and RIDOT reported that they use the same valuation process for microcells that they use for longitudinal communications lines. Seven state DOTs (Ohio DOT, ODOT (OR), MDOT (MD), the South Carolina Department of Transportation (SCDOT), TxDOT, UDOT, and WisDOT) responded that they use a fee or rate schedule. WSDOT reported that the statutory requirement to receive fair market value is used to allow microcells on state uses real estate appraisals based on interstate zones described in the Utah Administrative Code. Eight state DOTs provided a description of the process to determine a value for the installation of macrocells. Six state DOTs (Ohio DOT, ODOT, MDOT (MD), MoDOT, VDOT, and WisDOT) provided that the process for macrocell installa- tions is the same as microcell installation. Caltrans and TxDOT reported that they use an appraisal to determine the right-of- way value. Figure 14. Number of State DOTs reporting type of revenue generated by macrocells. Figure 15. Number of State DOTs reporting type of revenue generated by microcells.

NCHRP LRD 81 29 NCDOT is in the early stages of developing a pilot program to accommodate microcells and to accommodate longitudi- nal communications lines in controlled-access rights-of-way. The Illinois Department of Transportation (IDOT) is evaluat- ing a fee structure that would comply with current FCC rules and state laws that currently allow local agencies to charge fees. The new fee structure would need state legislative approval and would require changes to the state Illinois Administrative Code. The Montana Department of Transportation (MDT) and the New York State Department of Transportation (NYSDOT) reported that both states are evaluating the lease of controlled- access rights-of-way to communications utilities. NYSDOT is waiting for the approval of a communications line rate schedule by the governor. The rate schedule divides the state in several zones with higher fees for urban and metropolitan areas and lower fees for rural areas. Fees will be based on both the number of strands of fiber and the length of the installation. At present, use of the rights-of-way by communications providers is free of charge, but providers charge third parties fees to rent a portion of the fiber strands within their conduits. Legal Instruments to Manage Revenue Generation Thirty-three state DOTs responded to the question about the type of legal instruments that states use to manage the rev- enue generation in the rights-of-way. Researchers reviewed the answers and classified them into five groups (Figure 16). Many state DOTs use more than one type of legal instrument. Most frequently, states use permits and agreements, followed by leases and licenses. RIDOT reported the use of easements. Permits are used to accommodate communications utilities that provide a service to the public without cost, other than a permit fee in some cases, to the utility owner. Some states use rights-of-way. Washington uses a rate calculator to determine the revenue or lease fee for a tower and in cases of disagree- ment between WSDOT and the communications company on the rate calculation, WSDOT will use a third-party appraisal. Valuation Premium for Continuous Access Twelve state DOTs responded to the question whether the state’s assessment of the rights-of-way includes a premium for continuous longitudinal access, such as a fee or revenue sharing. All states responded that they currently do not include in their value assessment a premium for the continuous longitudinal access. Several states indicated that they are aware of the benefit to utility owners and encouraged further research into the valu- ation of extended corridors. Discount or Lesser Amounts to Assessed Value Thirteen state DOTs responded to the question whether the state defines circumstances in which it would consider a dis- count or lesser amount to the typical fee or assessed value of the rights-of-way. Eleven states responded that they do not con sider a lesser amount or discount. UDOT responded that a utility can get a discounted rate if they choose to pre-pay a lump sum amount for 30 years. UDOT and WisDOT indicated that they are willing to discount rates in underserved areas. Plans for Revisions to Revenue Generation from Communications Utilities The 14 state DOTs that indicated they currently do not gen- erate any revenue or benefit from communications utilities or microcells were asked whether they have plans to generate such benefit in the future. Of those 14 state DOTs, four states indi- cated they have plans for future revenue generation. Figure 16. Number of State DOTs reporting type of legal instrument to manage use of rights-of-way by communications utilities.

30 NCHRP LRD 81 to fund transportation. However, installation or lease fees paid by communications utilities would need to be passed on to the customers, which would be a fee paid by taxpayers. They opined that a better and more efficient approach could be to increase the gas tax and then let public utilities use the rights-of-way at no additional cost. Another state was interested to learn about the use of in-kind fiber optic installations that a state DOT might receive as part of a resource sharing agreement. It would be interesting to know if a state could use the capacity for intelligent transportation sys- tem installations, reserve the capacity for future use, resell the capacity, or use it for other connectivity initiatives. One state DOT reported that it was difficult to generate rev- enue from communications utilities but found resource shar- ing through fair access to the rights-of-way an effective tool. It helped the DOT expand its network faster while helping the communications provider expand at the same time, which re- sulted in economic development and growth. Another state highlighted that broadband accommodation should not be discussed separately from microcell, since each microcell location must be connected to a fiber network. Survey Responses from Tolling Authorities Of the seven tolling authorities responding, five respond- ed that they generate some type of revenue or benefit from communications utilities using transportation facilities or the rights-of-way. The two tolling authorities responding no were asked if they generate revenue from microcell technology, to get a response from authorities that generate revenue from microcells but do not consider these providers a utility. One authority answered no to the follow-up question, and the other did not respond. Type of Communications Utility That Generate Revenue Tolling authorities are benefiting primarily from longitudi- nal communications lines and in some cases from microcells, macrocell towers, and beacons (Figure 17). Type of Rights-of-Way Used to Generate Revenue Three tolling authorities provided a response to the question in what type of rights-of-way the authority generates revenue or benefit. One authority responded that longitudinal communica- tions lines are generating revenue across vehicular bridge spans and under-river vehicular tunnels. The same agency responded that wireless beacons generate revenue in vehicular tunnels. Two tolling authorities responded that longitudinal communications lines generate revenue in controlled-access rights-of-way. Type of Revenue or Benefit Generated Four tolling authorities responded about the type of revenue or benefit generated by the accommodation of communica- tions utilities: One agency generates annual fees from longitu- dinal communications lines, while another agency focuses on resource sharing. A third tolling authority uses one-time lump sum payments for microcell installations and a fourth tolling encroachment permits or land use permits to allow communi- cations utilities on state rights-of-way that cannot be accommo- dated using a standard utility permit. Some states attach agreements to standard utility permits. For example, an encroachment agreement can be used to allow a communications utility or microcells on a state right-of-way, which is then attached to the utility permit along with associ- ated documentation. Several state DOTs mentioned the use of agreements, either in combination with permits or separate. SCDOT and TxDOT mentioned a master lease agreement program, in which a com- pany enters into a master lease agreement with the DOT and then can quickly applies for individual, shortened agreements in specific locations. Other state DOTs that mentioned the use of leases were ODOT, MoDOT, RIDOT, UDOT, WSDOT, and the Wyoming Department of Transportation (WYDOT). Five state DOTs (Caltrans, Ohio DOT, ODOT (OR), NYSDOT, and RIDOT) mentioned the use of license agree- ments. NYSDOT highlighted that since 1997, the state has a contract with a third party (Crown Communications Corpo- ration) that grants an exclusive license to construct and oper- ate communications towers on certain state-owned lands and rights-of-way. Crown is permitted to license space on the towers to commercial wireless communications providers, the state has the right to collocate its own equipment on the towers, and the towers remain the property of the state. Applications for instal- lations within the rights-of-way are reviewed by NYSDOT and can be approved, modified, or denied. If the installation is ap- proved, often with state-imposed conditions, NYSDOT grants a site-specific license. TRIDOT reported that in accordance with the Rhode Island Code of Regulations, the state may provide access for utilities in the state’s controlled-access rights-of-way by permit, which includes a temporary or permanent easement, or both, for the utility’s use of the state property. Further Comments and Concerns Sixteen state DOTs provided additional comments. Some states voiced concerns about the installation of microcells on controlled-access routes, mainly due to concerns that the high- way clear zone might be negatively impacted, or that mainte- nance of the facilities might cause a distraction for drivers. At the same time, state DOTs expressed an understanding that controlled-access highways carry a lot of traffic, which make them attractive for communications providers. An acceptable policy from the perspective of these state DOTs would therefore minimize clear zone impacts and the need for maintaining the communications equipment. Other states have been less com- promising on this issue and currently do not allow microcells on controlled-access rights-of-way. Other state DOTs highlighted that their state legislature has determined that microcell installations should be cost neutral to the DOT, and not a means for revenue generation. Another state DOT made the argument that state DOTs need to be looking for new streams of revenue considering cars becoming more fuel efficient, which affects state DOTs that heavily rely on the gas tax