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

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48 NCHRP LRD 81 Discussion of State DOT Responses Question 1 – Revenue Generation from Use of Transportation Facilities or Rights-of-Way by Communications Utilities 1 - Do you generate any revenue or benefit from the use of trans- portation facilities or right-of-way by communications utilities? A total of 25 state DOTs responded that they generate rev- enue or receive some benefit from communications utilities using transportation facilities or the rights-of-way, 17 do not generate revenue, and 8 state DOTs did not respond (Figure B4). Question 2 - Revenue Generation from Use of Transportation Facilities or Rights-of-Way by Microcell Technology Not Con- sidered a Communications Utility 2 - Do you generate any revenue or benefit from the use of trans- portation facilities or right-of-way by microcell technology? This question was a follow up for the 17 respondents who answered no to Question 1 and was intended to capture re- sponses from transportation agencies that may not consider microcell technology a communications utility. One state DOT ( WSDOT) responded affirmative to question 2. Question 2.1 – Definition of Microcell Technology if not Com- munications Utility 2.1 - If not considered a communications utility, how do you de- fine microcell technology when considering their use of transpor- tation facilities of right-of-way? (Please describe.) This question was only seen by one respondent, WSDOT, who answered yes to Question 2. WSDOT responded that micro cell technology under state statute is considered a per- APPENDIX B: SURVEY RESULTS AND DISCUSSION Researchers contacted 50 state DOTs and DDOT and re- ceived survey responses from 42 state DOTs, or 84 percent of state transportation agencies contacted. In addition, researchers contacted 77 toll authorities, of which 7 (or 9 percent) provided survey responses. Figure B1 shows the share of state DOTs and tolling authorities responding to the survey, and Figure B2 pro- vides a mapped representation 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 microcell technology. Some states do not define microcell technology as a communications utility. To resolve this, researchers included an alternate set of questions in the survey. Based on a respondent’s definition of microcell technology, researchers adjusted subsequent questions using the respondent’s definition. Further, researchers considered that a state may be in the process of developing changes to its utility accommodation 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 B3 provides an overview of the survey logic for Questions 1 to 3 and the different paths that a respondent could take in the survey. As shown in Figure B3, 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 compre- hensive perspective. ■ State DOT ■ Toll Authority Figure B1. Share of State DOT and Toll Authorities Responding to the Survey.

NCHRP LRD 81 49 microcells and longitudinal communications lines and in some cases from macrocell towers and wireless support structures. Question 1.2 and 2.2 – Type of Rights-of-Way 1.2/2.2 - In what type of right-of-way do you generate revenue or benefit? (Please describe, e.g., controlled, partially controlled, limited access, etc.) This question was in open text format for up to three answer choices: longitudinal communications lines, microcells, and the option “other” that carried over from Question 1.1 if it was pro- vided by the respondent. For example, if a respondent provided “Macrocell Tower” as a communications utility that generates state revenue in Question 1.1, the third option under Question 1.2 was also “Macrocell Tower.” Figure B7 shows a count of states that responded to the ques- tion where longitudinal communications lines generate revenue for a state DOT. Sixteen state DOTs responded, of which nine generate revenue in access-controlled rights-of-way, one in non- limited access rights-of-way, and four in all state-maintained rights-of-way. sonal wireless service facility and as such falls under a different statute than utilities. Since Washington derives benefit from microcell technology in the state rights-of-way, researchers combined the responses from WSDOT with the responses from other state DOTs that derive revenue from communications utilities in the state rights-of-way as indicated below. Combined Questions – Utility Types, Right-of-Way Types, Value Assessment, and Future Plans Question 1.1 and 2 – Type of Communications Utility that Generates Revenue 1.1 - From what type of communications utilities do you generate revenue or benefit? 2 - Do you generate any revenue or benefit from the use of trans- portation facilities or right-of-way by microcell technology? The purpose of these questions was to determine what type of communications utility generates revenue for a state DOT. Figure B6 shows that state DOTs are benefiting primarily from Figure B2. Map of Transportation Agencies Responding to the Survey.

50 NCHRP LRD 81 Figure B3. Process Logic for Main Survey Questions.

NCHRP LRD 81 51 Figure B4. Number of State DOTs That Generate Revenue from the Use of Transportation Facilities or Rights-of-Way by Communications Utilities. Revenue from Microcell Technology* 2 1 • Yes • No • No Response 14 Figure B5. Number of State DOTs That Generate Revenue from the Use of Transportation Facilities or Rights-of-Way by Microcell Technology but Not Communications Utilities. Figure B8 shows a count of states that responded to the ques- tion where microcells generate revenue for a state DOT. Eigh- teen state DOTs responded, of which 10 generate value in all state-maintained rights-of-way, two in access-controlled rights- of-way, and one in non-limited access rights-of-way. Two state DOTs reported that microcells may be attached to state-owned vertical structures and facilities. Figure B9 shows a count of states that responded macro- cells generate revenue for the state DOT. Eleven state DOTs responded, of which six generate value in all state-maintained rights-of-way, two in access-controlled rights-of-way, and one in non-limited access rights-of-way.

52 NCHRP LRD 81 Figure B6. Type of Communications Utilities That Generate Revenue for State DOTs. Figure B7. Number of State DOTs Reporting Type of Rights-of-Way Where Longitudinal Communications Lines Generate Revenue for State DOTs. Question 1.3 and 2.3 – Type of Revenue or Benefit 1.3/2.3 - What kind of revenue or benefit do you generate? (Please describe, e.g., one-time fee, annual fee, license fee, lease fee, rev- enue sharing.) This question was in open text format for up to three answer choices: longitudinal communications lines, microcells, and the option “other” if it was provided by the respondent in Question 1.1, similar to the open text format question 1.2. Figure B10 shows a count of states that described the type of revenue that a state generates from longitudinal communica- tions lines. Fourteen state DOTs responded, of which nine gen-

NCHRP LRD 81 53 Figure B8. Number of State DOTs Reporting Type of Rights-of-Way Where Microcells Generate Revenue for State DOTs . Figure B9. Number of State DOTs Reporting Type of Rights-of-Way Where Macrocells Generate Revenue for State DOTs. erate revenue from an annual fee (for example an annual lease fee), nine generate revenue through resource sharing, three have a one-time fee (for example a permit fee), and one state (FDOT) reported revenue sharing. Figure B11 shows a count of states that described the type of revenue that a state generates from microcells. Fifteen state DOTs responded, of which 13 generate revenue from an an- nual fee (for example an annual lease fee), six generate revenue through a one-time fee, two generate revenue through resource sharing, and one (NMDOT) reported revenue sharing. Figure B12 shows a count of states that described the type of revenue that a state generates from macrocells. Seven state

54 NCHRP LRD 81 Figure B10. Number of State DOTs Reporting Type of Revenue Generated by Longitudinal Communications Lines. Figure B11. Number of State DOTs Reporting Type of Revenue Generated by Microcells. DOTs responded, of which five generate revenue from an an- nual fee, two generate revenue through a one-time fee, two generate revenue through revenue sharing, and one (WisDOT) reported resource sharing. In addition, two state DOTs reported that they generate rev- enue 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 (PennDOT). Question 1.4 and 2.4 – Method or Process to Assess the Value of the Right-of-Way 1.4 - Do you have a method or process to assess the value of pro- viding access for use of the right-of-way? 2.4 - Do you have a method or process to assess the value of pro- viding access to the right-of-way?

NCHRP LRD 81 55 Figure B12. Number of State DOTs Reporting Type of Revenue Generated by Macrocells. Figure B13 shows a count of states that responded to the question about a method or process to assess the value of pro- viding access for use of the rights-of-way. Twenty-two state DOTs responded, of which 15 have a defined method, and 7 responded they do not have a process or method. 1.4.1/2.4.1 - Please describe your method or process. State DOTs that responded affirmative were asked to provide a separate description of the valuation process for longitudinal communications lines, microcells, and utilities that respondents had described in the category “Other” of Question 1.1. Nine state DOTs provided a description of the process to de- termine a value for the installation of longitudinal communica- tions 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 state DOTs (Mo- DOT, RIDOT, and WVDOT) reported that they use apprais- als to determine fair market value. VDOT reported the use of adjacent property values, and UDOT uses real estate appraisals based on interstate zones described in the Utah Administrative Code. Ten state DOTs provided a description of the process to de- termine 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), SC- DOT, TxDOT, UDOT, and WisDOT) responded that they use a fee or rate schedule. WSDOT reported that fair market value is used to allow microcells on state rights-of-way. Eight state DOTs provided a description of the process to determine a value for the installation of macrocells. Six states (Ohio DOT, ODOT (OR), MDOT (MD), MoDOT, VDOT, and WisDOT) responded that the process for macrocell installations is the same as microcell installation. Caltrans and TxDOT re- ported that they use an appraisal to determine the right-of-way value. 1.4.2 - Does the assessment include a premium (such as fee or revenue sharing) for continuous longitudinal access? (Please de- scribe.) Twelve state DOTs responded to this question, and all re- sponses provided that no state is currently including 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. 1.4.3/2.4.2 - Does the assessment consider a lesser amount or dis- count? (Please describe.) Thirteen state DOTs responded to this question, of which 11 stated that they do not consider a lesser amount or discount. UDOT stated 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 un- derserved areas. Question 1.5 and 2.5 – Revisions to Benefit or Revenue Gen- eration 1.5 - Do you have plans to revise the way you generate revenue or benefit from the use of transportation facilities or right-of-way by communications utilities in the future? 2.5 - Do you have plans to revise the way you generate revenue or benefit from the use of transportation facilities or right-of-way by microcell technology in the future?

56 NCHRP LRD 81 Figure B13. Number of State DOTs That Have a Method or Process to Assess the Value of Providing Access for Use of the Rights-of-Way. Figure B14 shows a count of states that responded to the question about future plans for revenue generation from com- munications facilitates and microcells out of the states that cur- rently generate some type of benefit or revenue. Twenty-one state DOTs responded, of which 10 indicated they have future plans, and 11 responded they do not currently have plans to change the way they generate revenue. 1.5.1/2.5.1 - Please provide a description of future plans to gener- ate revenue or benefit: State DOTs that responded affirmative were asked to de- scribe future plans to generate revenue or benefit. Several DOTs reported that rules for access by microcells are currently rewrit- ten or challenged in their state, and states are tracking these de- velopments to make sure that current processes are complying with the latest rules and regulations. NMDOT has been reviewing pilot programs in other states and is considering access by longitudinal communications utilities on controlled-access rights-of-way through lease agree- ments, shared use agreements, and fees per linear foot. MDOT (MD), TxDOT, and WVDOT mentioned that they are involved in research and the exploration of best practices for the valua- tion of rights-of-way. Ohio DOT is investigating ways to gener- ate revenue by allowing longitudinal communications lines on controlled-access rights-of-way. ODOT (OR) is focusing activi- ties on macrocells but is also in the process of developing a li- cense program for microcells. ODOT (OR) is further discussing longitudinal communications lines on controlled-access rights- of-way for public-private partnership projects. MDOT (MD) and VDOT were reviewing the fees that are currently assessed to comply with recent FCC directives. For example, VDOT revised the fees for collocation of non-small cell installations on third party towers within the rights-of-way. WisDOT is considering a policy change to waive certain fees for hardship situations on controlled-access highways for longitu- dinal distances less than a quarter mile. Question 3 – Plans for Benefit or Revenue Generation from the Use of Transportation Facilities or Right-of-Way by Commu- nications Utilities 3 - Do you have plans to generate revenue or benefit from the use of transportation facilities or right-of-way by communications utilities/microcell technology in the future? This question was posed to 14 survey participants that indi- cated they currently do not generate any revenue or benefit from communications utilities or microcells. Figure B15 shows the share of state DOTs that indicated they have plans to generate revenue in the future versus state DOTs that currently do not have plans to generate revenue from communications utilities. NCDOT is in the early stages of developing a pilot program to accommodate microcells, and to accommodate longitudinal communications lines in controlled-access rights-of-way. IDOT is evaluating 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 administrative code. MDT and NYDOT reported that both states are evaluating the lease of controlled-access rights-of-way to communications utilities. NYDOT is waiting for the approval of a communica- tions line rate schedule by the governor. The rate schedule di- vides the state in several zones with higher fees for urban and metropolitan areas and lower fees for rural areas. Fees will be

NCHRP LRD 81 57 Figure B14. Number of State DOTs That Have Plans to Revise Revenue Generation for Communications Utilities and Microcells. Figure B15. Number of State DOTs That Do Not Generate Revenue from Communications Utilities with Plans to Generate Revenue in the Future. based on both the number of strands of fiber and the length of the installation. At present, use of the rights-of-way by commu- nications providers is free of charge, but providers charge third parties fees to rent a portion of the fiber strands within their conduits. Question 4 – Laws Impacting Ability to Assess Reasonable Rates 4 - Are you aware of state laws that impact your agency’s ability to assess reasonable rates for the use of transportation facilities or right-of-way by communications utilities/microcell technology? Question 4 and all following questions were posed to all par- ticipants of the survey, regardless of their responses to the previ-

58 NCHRP LRD 81 Awareness of State Laws Affecting Rates 30 • Yes ■ No • No Response Figure B16. Number of State DOTs That Are Aware of State Laws That Impact the Assessment of Reasonable Rates ous questions. Figure B16 shows the share of state DOTs that in- dicated awareness about state laws that impact the DOT’s ability to assess reasonable rates for the use of transportation facilities or rights-of-way by communications utilities or microcells. Question 4.1 – Names and Links of Documents and Statutes 4.1 - Please provide the name and web address (if possible) of the documents, state statutes, or other: Question 4.1 was posed to the group of 30 respondents that provided an affirmative response to Question 4. Twenty-six state DOTs responded, of which 20 provided a reference to a state law or regulation that impacts the state’s ability to assess reasonable rates, as shown in Table B1. Question 5 – Legal Instruments Used to Manage the Use of the Right-of-Way 5 - What legal instruments do you use to manage the use of trans- portation facilities or right-of-way by communications utilities/ microcell technology? (e.g. permit, lease, etc.) Thirty-three state DOTs responded to the open text ques- tion. Researchers reviewed the answers and classified them into five groups, as shown in Figure B17. Note that many state DOTs use more than one type of legal instrument. 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 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, encroachment agreements can be used to allow communications utilities or microcells on the state rights-of- way, which are then attached to the utility permits along with associated 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 apply for individual, shortened agreements in specific locations. Representatives of other state DOTs that mentioned the use of leases were those of ODOT (OR), Mo- DOT, RIDOT, UDOT, WSDOT, and the Wyoming Department of Transportation (WYDOT). Five state DOTs (Caltrans, Ohio DOT, ODOT (OR), NYS- DOT, and RIDOT) mentioned the use of license agreements. NYSDOT highlighted that since 1997 the state has had a con- tract with a third party (Crown Communications Corporation) that grants an exclusive license to construct and operate com- munications 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 the DOT and can be approved, modified, or denied. If the installation is ap- proved, often with state-imposed conditions, the DOT grants a site-specific license. RIDOT 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.

NCHRP LRD 81 59 Table B1. List of State Laws Affecting Reasonable Rates for Communications Utilities Provided by Survey Respondents. State Law or Regulation Alaska Permit Fees, and Charges, Alaska Admin. Code, tit. 17 § 15.041(2019). Delaware Advanced Wireless Infrastructure Investment Act, Del. Code Ann., tit. 17 §§ 1601-14 (2019), http://delcode.delaware.gov/ title17/c016/index.shtml . Georgia Avoiding or attempting to avoid charges for use of telecommunications service, penalties, computation of damages, Ga. Code Ann. 46-5-1 (2019). General Powers and Duties of Counties; Powers, Ga. Code Ann. 32-4-42. General Powers and Duties of Municipalities; Powers, Ga. Code Ann. 32-4-92. Illinois State laws and administrative rules do not allow IDOT to charge access fees for microcell installations. Iowa State treats microcells as a utility and follows Utility Accommodation Policy: Iowa Admin. Code § 761.115, Utility Accommodation, https://www.legis.iowa.gov/docs/iac/chapter/761.115.pdf IOWADOT Policy for Accommodating and Adjustment of Utilities on the Primary Road System, (latest rev. 2012), https://iowadot.gov/traffic/pdfs/UtilityPolicy.pdf Maryland Annotated Code of Maryland, State Finance and Procurement § 3A-307 (2019). Michigan Communications facilities within the rights-of-way: Public Act 368 of 1925, Highway Obstructions and Encroachments; Use of Highway by Public Utilities, Mich. Comp. Laws § 247.183, available at http://legislature.mi.gov/doc.aspx?mcl-Act-368-of-1925 Small cells within the rights-of-way: Public Act 365 of 2018, Small Wireless Communications Facilities Deployment Act, Mich. Comp. Laws §460.1301-1339 (2019) http://legislature.mi.gov/doc.aspx?2017-SB-0637 Missouri Missouri state statutes prevent revenue generation and requires all utility companies to be identified as a public service. Most fiber companies in Missouri are not identified as a public utility so they are not in the corridor. New Mexico N. M. Code R. § 17.4.2, Requirements for Occupancy of State Highway System Right-of-Way by Utility Facilities. Rulemaking is underway with expected sweeping changes. North Carolina N.C. Gen. Stat. 136-28.3A, Transportation; Wireless Communications Infrastructure; N.C. Gen. Stat. 136-18(10), Powers of Department of Transportation; N.C. Gen. Stat. 136-28.1(k), Letting of contracts to bidders after advertisement; exceptions, https://www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_136.html Ohio Ohio Rev. Code§ 5501.311(E), Leases or lease-purchase of transportation facilities http://codes.ohio.gov/orc/5501.311v1 Oregon Or Rev. Stat, Chapter 758, Utility Rights of Way and Territory Allocation, Cogeneration Or. Admin. R., 734-055-0005thru 734-055-0110, Utility Rights of Way and Territory Allocation, Cogeneration. Note these only apply if the communications line is defined as a utility under Oregon (which currently wireless facilities are not). Pennsylvania 36 Pa. Cons. Stat.§ 670-411(2019), Use of highways by public utilities; https://codes.findlaw.com/pa/title-36-ps-highways- and-bridges/pa-st-sect-36-670-411.html; 36 Pa. Cons. Stat. § 670-420, Rules for Use of, and injury to, highways; penalty, https://codes.findlaw.com/pa/title-36-ps-highways-and-bridges/pa-st-sect-36-670-420.html 67 Pa. Code §459, Occupancy of Highways by Utilities. Rhode Island R. I. Gen. Laws §§ 37-7-1 thru 37-7-15 (2019), Management and Disposal of Property Tennessee TDOT Right-of-Way Division, Chapter 1680-6-1, Rules for Regulations for Accommodating Utilities within Highway Rights-of Way, https://www.tn.gov/content/dam/tn/tdot/right-of-way-division/1680-06-01.pdf Texas Although Texas Local Government Code Chapter 284 (Deployment of Network Nodes in Public Right-of-Way) does not apply to state rights-of-way, it includes a rental fee structure for the municipalities, which has become a standard. The rental structure is less than previous market values that were charged by cities and other states. TxDOT is not authorized to charge an application fee. continued

60 NCHRP LRD 81 Figure B17. Number of State DOTs Reporting Type of Legal Instrument to Manage Use of Right-of-Way by Communications Utilities. State Law or Regulation Small Wireless Facility Utah Code § 72-7-108 (2018), Longitudinal telecommunications access in the interstate highway system – Definitions- Agreements-Compensation-Restrictions-108 Rulemaking (2019), https://le.utah.gov/xcode/Title72/Chapter7/72-7-S108.html?v=C72-7-S108_2018050820180508. Utah Admin. Code Rule R907-64. Longitudinal and Wireless Access to Interstate System Rights-of-Way for Installation of Telecommunications Facilities (2019), https://rules.utah.gov/publicat/code/r907/r907-064.htm. Utah Admin. Code Rule R907-65. Compensation Schedule for Longitudinal Access to Interstate Highway Rights-of-Way for Installation of Telecommunications Facilities (2019), https://rules.utah.gov/publicat/code/r907/r907-065.htm . Small Wireless Facility Act, SB 189(2018), codified at Utah Code §§ 54-21-101- 54-21-603 (2019), https://le.utah.gov/~2018/bills/static/SB0189.html, https://le.utah.gov/xcode/Title54/Chapter21/54-21.html Virginia 24 Va. Admin. Code 30-151-730 (2019), Accommodation Fees, https://law.lis.virginia.gov/admincode/title24/agency30/chapter151/section730/ , Va. Code §56-484.28 (20219), Access to public rights-of-way https://law.lis.virginia.gov/vacode/title56/chapter15.1/section56-484.28/ Va. Code §56-484.31 (2019, Small cell facilities on government-owned structures, https://law.lis.virginia.gov/vacode/title56/chapter15.1/section56-484.31/ Va. Code §56-484.32 (2019), Wireless support structure public rights-of-way use fee. https://law.lis.virginia.gov/vacode/title56/chapter15.1/section56-484.32/ Washington Wash. Rev. Code §47.52..220, Personal wireless service facilities – Approach permit – Report, https://app.leg.wa.gov/RCW/ default.aspx?cite=47.52.220 West Virginia W. Va. Code ch.17, Roads and Highways, http://code.wvlegislature.gov/17/ Table B1. Continued.

NCHRP LRD 81 61 • Permit. • Easement. • Lease Contract. • Utility Manual. • Permitting Manual. • Utility Accommodation Rule or Policy. • Other In total, 21 states provided a response to the question. Table B2 to Table B8 summarize the responses received by the state for the type of document designated in the table title. Question 6 – Document Describing Practices, Policies, or Pro- cedures 6 - Can you provide documentation that describes your agency’s practices, procedures, or policies for allowing use of transportation facilities or right-of-way by communications utilities/microcell technology? This question was used to filter respondents willing to pro- vide additional information about their practices and policies for accommodating communications utilities and generating revenue. State DOTs that were able to provide more information were presented with a listing in Question 6.1 that requested doc- ument names and web addresses for seven types of documents: Table B2. Documentation of Process for Communications Utility Permitting. State Practices and Policies for Permits Alaska Presently 5G is treated like any other utility. Longitudinal facilities have to comply with FHWA regulations. No inside access control. Delaware DelDOT, Wireless Small Cell Permits, https://www.deldot.gov/Business/WirelessPermits/index.shtml Georgia GDOT, Utility Accommodation Policy and Standards, 2016, http://www.dot.ga.gov/PartnerSmart/utilities/ Documents/2016_UAM.pdf Kentucky Memorandum from Patty Blain Dunaway, P.E., KYTC State Highway Engineer to All Chief District Engineers and KYTC Permits Staff, Policy Clarification, Permits Policy PE-301 (Utilities), Micro Cell Towers on KYTC Right of Way (June 19, 2017), https://transportation.ky.gov/Permits/Documents/Policy%20Clarification%20for%20Micro%20Cell%20Towers.pdf Michigan MDOT, Utility Classification for Use of State Highway Right-of-Way, https://www.michigan.gov/mdot/0,4616,7-151-9625_28993-273646--,00.html Mississippi MDOT Maintenance Permits, https://mdot.ms.gov/portal/maintenance_permits, (follow link for Master Agreement for Location of Electric Power and Communications Utility Lines on State Highway Right-of-Way, MND-482 Montana Montana Department of Transportation Utility Encroachment Application, https://www.mdt.mt.gov/other/webdata/external/ROW/forms/MDT-ROWUTL-970.PDF New Mexico NMDOT, Programs and Infrastructure, Right of Way/Utilities/Property Management Unit, http://www.dot.state.nm.us/content/nmdot/en/Infrastructure.html#e (follow links to site) Application for Use and Occupancy Permit within Public Right of Way (Form no. A-63(b), Rev. 02/17) and Application for Permit to Install Utility Facilities within Public Right of Way (Form No. M-202, Rev. 9-1 1-78) (example document)) North Carolina All encroachment agreement forms are downloadable at Connect NCDOT, Encroachment and Agreements for Utilities, https://connect.ncdot.gov/municipalities/Utilities/Pages/Encroachment-Agreements.aspx Oregon ODOT, Maintenance and Operations, https://www.oregon.gov/ODOT/Maintenance/Pages/index.aspx (follow “Utility Permits” link) Tennessee Rules of Tennessee Department of Transportation Right-of-Way Division, Chapter 1680-6-1, Rules and Regulations for Accommodating Utilities Within Highway Right-of Way, https://www.tn.gov/content/dam/tn/tdot/right-of-way-division/1680-06-01.pdf Virginia VDOT Land Use Permit, Single-Use Permit, Wireless Support Structure (June 28, 2019, http://www.virginiadot.org/business/resources/land_use_regs/newPermitPackages/LUP-SUWSS.pdf VDOT Land Use Permit, Permit Agreement for Occupation of Right-of-Way (August 26, 2014), http://www.virginiadot.org/business/resources/land_use_regs/newPermitPackages/LUP-PA.pdf VDOT Land Use Permit, Utility Installations (April 1, 2017) http://www.virginiadot.org/business/resources/land_use_regs/newPermitPackages/LUP-UT.pdf Washington WSDOT, Utilities, Railroads, and Agreements, http://www.wsdot.wa.gov/Utilities/ Wisconsin WisDOT, Application/Permit to Construct, Operate and Maintain Utility Facilities on Highway Right-of-Way (July 2017), https://wisconsindot.gov/Documents/formdocs/dt1553.docx

62 NCHRP LRD 81 Table B3. Documentation of Process for Communications Utility Easements. State Practices and Policies for Easements North Carolina NCDOT Utility Agreements (2019), https://connect.ncdot.gov/municipalities/Utilities/Pages/Utility-Agreements.aspx Utah UDOT Statewide Encroachment Program, https://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:676 Table B4. Documentation of Process for Communications Utility Leases. State Practices and Policies for Leases North Carolina NCDOT Utility Agreements (2019), https://connect.ncdot.gov/municipalities/Utilities/Pages/Utility-Agreements.aspx Texas Master Lease Agreement for the Pilot Wireless Siting Program Utah UDOT Fiber and Conduit Lease Agreement Table B5. Documentation in State DOT Utility Manuals. State State Utility Manual Alaska Alaska Department of Transportation and Public Facilities, Statewide Design and Engineering Svcs., Manuals, follow link for “Utilities Manual”, http://dot.alaska.gov/stwddes/dcspubs/index.shtml# Delaware Delaware Department of Transportation, Transportation Solutions, Utility Manual, 2007 Edition, https://www.deldot.gov/ Business/drc/manuals/utilities_manual_2008_may_5.pdf Georgia GDOT, Division of Operations, Office of Utilities, Utility Accommodation Policy and Standards, 2016,http://www.dot. ga.gov/PartnerSmart/utilities/Documents/2016_UAM.pdf Idaho Guide for Utility Management, January 2012, https://apps.itd.idaho.gov/apps/manuals/UtilityMgmt/gum_cover.pdf New Mexico Public Utilities And Utility Services Utility Rights-of-Way and Easements Requirements for Occupancy Of State Highway System Right-Of-Way by Utility Facilities, 17 NMAC 4.2 North Carolina Connect NCDOT, Utilities Manual, https://connect.ncdot.gov/municipalities/Utilities/Pages/UtilitiesManuals.aspx Oregon ODOT, Utility Relocation Program, https://www.oregon.gov/ODOT/ROW/Pages/Utilities.aspx Tennessee Rules of Tennessee Department of Transportation Right-of-Way Division, Chapter 1680-6-1, Rules and Regulations for Accommodating Utilities within Highway Rights-of-Way, https://www.tn.gov/content/dam/tn/tdot/right-of-way-division/1680-06-01.pdf Utah UDO Statewide Encroachment Permitting Program, https://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:676 Washington Washington State Department of Transportation, Utilities Manual, http://www.wsdot.wa.gov/Publications/Manuals/M22- 87.htm

NCHRP LRD 81 63 Table B6. Documentation in State DOT Utility Permitting Manuals State State Permitting Manual Alaska Alaska Department of Transportation and Public Facilities, Statewide Design and Engineering Svcs., Manuals, follow link for “Utilities Manual”, http://dot.alaska.gov/stwddes/dcspubs/index.shtml# Kentucky Kentucky Transportation Cabinet, Office of the Secretary Order 111720, Permits Manual (2019), https://transportation. ky.gov/Organizational-Resources/Policy%20Manuals%20Library/Permits.pdf Oregon ODOT, Maintenance and Operations, https://www.oregon.gov/ODOT/Maintenance/Pages/index.aspx (follow the utility permit link) Pennsylvania PennDOT Publication 282 - Highway Occupancy Permit Operations Manual, Change No. 1 (August 9, 2018), http://www. dot.state.pa.us/public/PubsForms/Publications/PUB%20282/PUB%20282.pdf PennDOT Publication 16 – Design Manual Part 5 (5/29/2019), http://www.dot.state.pa.us/public/pubsforms/Publications/ PUB%2016M/PUB%2016M.pdf Utah UDOT Statewide Permitting Operations Section, https://www.udot.utah.gov/main/f?p=100:pg:0::::V,T:,203 Virginia VDOT, General Wireless permit Package Submission and Review Guidelines, Non-VDOT (Existing and New) Structures within VDOT Right-of-way (September 25, 2-19), http://www.virginiadot.org/business/resources/land_use_regs/LUP-GWG.pdf VDOT, Land Use Permit, Processing Permit Requests Within Limited Access Rights-of-way, Fiber Optic Resources Sharing (FORS) project, http://www.virginiadot.org/business/resources/land_use_regs/Processing_Permit_Requests_for_Fiber_ Optic_Resource_Sharing_FORS_Projects.ppt VDOT, Land use Permit, Appendix 15, Plan Submittal and Permit Issuance Check List, http://www.virginiadot.org/business/resources/land_use_regs/APPENDIX_15_Checklist_for_Fiber_Optic_Resource_ Sharing_FORS_Projects.xls Table B7. State Utility Accommodation Rules or Policy State Utility Accommodation Rule or Policy Alaska Alaska Department of Transportation and Public Facilities, Statewide Design and Engineering Svcs., Manuals, follow link for “Utilities Manual”, http://dot.alaska.gov/stwddes/dcspubs/index.shtml# Georgia GDOT Board Rule 672-11 Michigan MDOT, Utility Accommodation Policy (March 31, 2011), https://www.michigan.gov/documents/mdot/3-31-2011_ UTILITY_ACCOMMODATION_POLICY_635432_7.pdf Montana Montana Rules, Subchapter 18.7.2, Right-of-Way Occupancy by Utilities, http://www.mtrules.org/gateway/Subchapterhome.asp?scn=18%2E7.2 Oregon ODOT, Utility Relocation Program, https://www.oregon.gov/ODOT/ROW/Pages/Utilities.aspx Tennessee Rules of Tennessee Department of Transportation Right-of-Way Division, Chapter 1680-6-1, Rules and Regulations for Accommodating Utilities within Highway Rights-of-Way, https://www.tn.gov/content/dam/tn/tdot/right-of-way-division/1680-06-01.pdf Texas 43 Tex. Admin. Code, Part 1, Chapter 21, Subchapter C Utah Utah Code §72-7-108 (2018), Longitudinal telecommunications access in the interstate highway system -- Definitions -- Agreements -- Compensation – Restrictions, https://le.utah.gov/xcode/Title72/Chapter7/72-7-S108.html?v=C72-7-S108_2018050820180508; Utah Admin. Code Rule 930-7, Utility Accommodation, https://rules.utah.gov/publicat/code/r930/r930-007.htm Virginia The utility accommodation policy is contained with the Land Use Permit Regulations. See 24 Va. Admin. Code §§151-300, 310, 330, 340, 350, 360, 370, 380, 390, 400, 410, https://law.lis.virginia.gov/admincode/title24/agency30/chapter151/ Washington Washington State Department of Transportation, Utilities Accommodation Policy, http://www.wsdot.wa.gov/Publications/Manuals/M22-86.htm Wisconsin WisDOT Utility Accommodation Policy, https://wisconsindot.gov/Pages/doing-bus/real-estate/permits/utility-uap.aspx

64 NCHRP LRD 81 Table B8. Other Documents Describing Policy or Procedure. State Document Description Idaho Idaho Admin. Code, r. 39.03.42, Rules Governing Highway Right-of-Way, Encroachments on State Rights-of-Way, https:// adminrules.idaho.gov/rules/current/39/390342.pdf . Idaho Admin. Code, r. 39.03.43, Rules Governing Utilities on State Highway Right-of-Way, https://adminrules.idaho.gov/rules/current/39/390343.pdf Michigan Due to the recent legislation MDOT is in the process of developing policies and procedures for small cell installations. See, Small Wireless Communications Facilities Deployment Act, 365 0f 2018, codified at Mich. Comp. Laws, 460.1301 – 460.1339. New Mexico Master Agreement, Fiber Optic Resource Sharing1 North Carolina Cost responsibility is also described at: Connect NCDOT, Utility Agreement, https://connect.ncdot.gov/municipalities/Utilities/Pages/Utility-Agreements.aspx NCDOT Utilities Accommodation Manual is in publication. Oregon ODOT Right of Way Manual, Chapter 9 (Property Management), available at, https://www.oregon.gov/ODOT/ROW/ Pages/ROW.aspx (follow link to “”Right of Way Manual, click “Full Manual” link. Texas TxDOT Roadway Design Manual, 2018, http://onlinemanuals.txdot.gov/txdotmanuals/rdw/rdw.pdf Utah 2016 Longitudinal Access Valuation Report2 Washington Agreements with various companies are available upon request from the author. 1 Example document is on file with author and available upon request. 2 This document is on file with the author and available by request. Question 7 – Approval to Follow-up 7 - May we contact you to further discuss your agency’s practices, procedures, and policies about the use of transportation facilities or right-of-way by communications utilities/microcell technology? Thirty-six state DOTs responded to the question, of which 32 allowed researchers to contact them for additional questions, and 4 state DOTs requested not to be contacted. Question 8 – Contact for Additional Information 8 - Is there anyone else at your agency we should contact for ad- ditional information regarding use of transportation facilities or right-of-way by communications utilities/microcell technology? Thirty-five state DOTs responded to the question, of which 15 provided contact information for additional information at the DOT. Question 9 – Additional Comments 9 - Do you have any further comments regarding the use of trans- portation facilities or right-of-way by communications utilities/ microcell technology to generate revenue? 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 mini- mize clear zone impacts and the need for maintaining the com- munications equipment. 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 was of the opinion that state DOTs need to be looking for new streams of revenue. Another state was interested to learn about other state DOTs’ use of in-kind fiber optic installations that a state DOT might receive as part of a resource sharing agreement. The DOT thought that it would be interesting to know if a state could use the capacity for intelligent transportation system 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 DOT highlighted that broadband accommo- dation should not be discussed separately from microcell, since each microcell location must be connected to a fiber network. Question 10 – Demographic Information Thirty-one respondents provided demographic informa- tion, including name, title, agency, phone number, and email for follow-up discussions.

NCHRP LRD 81 65 The purpose of these questions was to determine what type of communications utility generates revenue for a tolling authority. Figure B19 shows that responding tolling authorities are benefiting primarily from longitudinal communications lines and in some cases from microcells, macrocell towers, or beacons. Question 1.2 – Type of Right-of-Way 1.2 - In what type of right-of-way do you generate revenue or ben- efit? (Please describe, e.g., controlled, partially controlled, limited access, etc.) This question was in open text format for up to three answer choices: longitudinal communications lines, microcells, and the option “other” that carried over from Question 1.1 if it was pro- vided by the respondent. For example, if a respondent provided “Macrocell Tower” as a communications utility that generates state revenue in Question 1.1, the third option under Ques- tion 1.2 was also “Macrocell Tower.” Three tolling authorities provided a response to this ques- tion. 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. Question 1.3 – Type of Revenue or Benefit 1.3 - What kind of revenue or benefit do you generate? (Please de- scribe, e.g., one-time fee, annual fee, license fee, lease fee, revenue sharing.) Discussion of Toll Authority Responses Question 1 – Revenue Generation from Use of Transportation Facilities or Right-of-Way by Communications Utilities 1 - Do you generate any revenue or benefit from the use of trans- portation facilities or right-of-way by communications utilities? A total of five tolling authorities responded that they gener- ate revenue or receive some benefit from communications utili- ties using transportation facilities or the rights-of-way, two do not generate revenue, and 70 tolling authorities did not respond (Figure B18). Question 2 - Revenue Generation from Use of Transportation Facilities or Right-of-Way by Microcell Technology not Consid- ered a Communications Utility 2 - Do you generate any revenue or benefit from the use of trans- portation facilities or right-of-way by microcell technology? This question was a follow up for the two respondents who answered no to Question 1 and was intended to capture respons- es from transportation agencies that may not consider microcell technology a communications utility. One tolling authority re- plied that they do not generate revenue from microcells, and the other tolling authority did not respond. Since no tolling authority responded affirmative to Ques- tion 2, there was no need to combine any question responses. Utility Types, Right-of-Way Types, Value Assessment, and Future Plans Question 1.1 – Type of Communications Utility that Generates Revenue 1.1 - From what type of communications utilities do you generate revenue or benefit? Figure B18. Number of Toll Authorities That Generate Revenue from the Use of Transportation Facilities or Rights-of-Way by Communications Utilities. Revenue from Communication Utilities 5 • Yes ■ No ■ No Response 70

66 NCHRP LRD 81 This question was in open text format for up to three answer choices: longitudinal communications lines, microcells, and the option “other” if it was provided by the respondent in Ques- tion 1.1, similar to the open text format question 1.2. Four tolling authorities responded: one agency generates annual fees from longitudinal communications lines, while an- other focuses on resource sharing. In the case of microcells, one tolling authority responded of having used one-time lump sum payments in the past. A fourth tolling authority responded gen- erating revenue from macrocell towers through a lease fee. Question 1.4 – Method or Process to Assess the Value of the Right-of-Way 1.4 - Do you have a method or process to assess the value of pro- viding access for use of the right-of-way? Four tolling authorities responded, of which two have a de- fined method, and two responded they do not have a process or method. 1.4.1 - Please describe your method or process. Both tolling authorities that responded affirmatively de- scribed a process for assessing the rights-of-way value for the installation of longitudinal communications lines. One tolling authority responded that they use prior or master agreements with communications providers, and the other tolling author- ity uses a pre-determined fee or a negotiated share of resources. 1.4.2 - Does the assessment include a premium (such as fee or reve- nue sharing) for continuous longitudinal access? (Please describe.) One tolling authority responded no; the other respondent de- scribed that annual rates are solely based on the number of fiber strands accommodated and the length of the installation. 1.4.3 - Does the assessment consider a lesser amount or discount? (Please describe.) One tolling authority responded that it does not consider a lesser amount, the other respondent provided that the fee can be reduced or eliminated if the applicant participates in a shared resource agreement. Question 1.5 – Revisions to Benefit or Revenue Generation 1.5 - Do you have plans to revise the way you generate revenue or benefit from the use of transportation facilities or right-of-way by communications utilities in the future? Four tolling authorities responded, of which two indicated they have future plans, and two responded they do not currently have plans to change the way they generate revenue. 1.5.1 - Please provide a description of future plans to generate rev- enue or benefit: One tolling authority provided a description of their plans, which is to work on a fee structure for microcell installations. Question 3 – Plans for Benefit or Revenue Generation from the Use of Transportation Facilities or Right-of-Way by Commu- nications Utilities 3 - Do you have plans to generate revenue or benefit from the use of transportation facilities or right-of-way by communications utilities/microcell technology in the future? This question was posed to the two tolling authorities that indicated they currently do not generate any revenue or benefit from communications utilities or microcells. One of them re- sponded that they do not have plans to generate revenue from communications utilities in the future, and the other tolling authority did not provide a response. Figure B19. Type of Communications Utilities That Generate Revenue for Tolling Authorities.

NCHRP LRD 81 67 Question 4 – Laws Impacting Ability to Assess Reasonable Rates 4 - Are you aware of state laws that impact your agency’s ability to assess reasonable rates for the use of transportation facilities or right-of-way by communications utilities/microcell technology? Question 4 and all following questions were posed to all participants of the survey, regardless of their responses to the previous questions. Four tolling authorities responded, two af- firmative and two responded no. Question 4.1 – Names and Links of Documents and Statutes 4.1 - Please provide the name and web address (if possible) of the documents, state statutes, or other: Two tolling authorities responded to this question, both ref- erencing state statutes of the state they are operating in. Question 5 – Legal Instruments Used to Manage the Use of the Right-of-Way 5 - What legal instruments do you use to manage the use of trans- portation facilities or right-of-way by communications utilities/ microcell technology? (e.g. permit, lease, etc.) Four tolling authorities responded. Two use leases to man- age communications utilities in the rights-of-way and one toll- ing authority uses permits. The fourth was unaware of the legal instrument being used. Question 6 – Document Describing Practices, Policies, or Procedures 6 - Can you provide documentation that describes your agency’s practices, procedures, or policies for allowing use of transportation facilities or right-of-way by communications utilities/microcell technology? This question was used to filter respondents willing to pro- vide additional information about their practices and policies for accommodating communications utilities and generating revenue. Tolling authorities that were able to provide more in- formation were presented with a listing in Question 6.1 that re- quested document names and web addresses for seven types of documents: • Permit. • Easement. • Lease Contract. • Utility Manual. • Permitting Manual. • Utility Accommodation Rule or Policy. • Other One tolling authority responded, providing a link to the agency’s utility installation permit. Question 7 – Approval to Follow-up 7 - May we contact you to further discuss your agency’s practices, procedures, and policies about the use of transportation facilities or right-of-way by communications utilities/microcell technology? Four tolling authorities responded to the question, of which three allowed researchers to contact them for additional ques- tions, and one tolling authority requested not to be contacted. Question 8 – Contact for Additional Information 8 - Is there anyone else at your agency we should contact for ad- ditional information regarding use of transportation facilities or right-of-way by communications utilities/microcell technology? Four tolling authorities responded to the question, of which one provided contact information for additional information. Question 9 – Additional Comments 9 - Do you have any further comments regarding the use of trans- portation facilities or right-of-way by communications utilities/ microcell technology to generate revenue? Three tolling authorities provided additional comments and stressed the need to develop policies that work for both the util- ity owner and the tolling authority. Question 10 – Demographic Information Three respondents provided demographic information, including name, title, agency, phone number, and email for follow-up discussions.