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Utility Relocation and Accommodation on Federal-Aid Highway Projects
Chapter 2 (cont'd): Utility Accommodation

State Utility Accommodation Policies (23 CFR 645.211)

Overall Process

FHWA's historic approach to handling utility use of the right-of-way of Federal-aid and direct Federal projects has been maintained in 23 CFR 645 subpart B. This regulation requires each State to develop its own utility accommodation policy setting forth the manner in which the State will control the use of Federal-aid highway right-of-way by utility facilities. In 1988 this concept was expanded to also include longitudinal utility use of freeway right-of-way.

Once the State's policy is approved by the FHWA, any utility installations proposed to be installed on Federal-aid highway projects in accordance with the approved State policy may be approved by the State without referral to the FHWA. FHWA approval of proposed utility installations is limited to those which are not in accordance with the approved State policy.

Criteria

The FHWA uses two AASHTO publications -- A Guide for Accommodating Utilities Within Highway Right-of-Way and Roadside Design Guide -- to assist in its review of individual State utility accommodation policies. This means these documents will serve as guidance for recommendations on good practices and procedures; however, it is not mandated that provisions contained in these documents be included in a State's policy.

Criteria regarding utility use of freeways was previously discussed in sections above. Although the FHWA regulation does not reference AASHTO's A Policy on the Accommodation of Utilities Within Freeway Right-of-Way, this document can serve as a useful guide when reviewing the portion of a State's utility accommodation policy dealing with utilities on freeways.

As State utility accommodation policies are being developed or updated, the criteria regarding placement of above ground utility facilities deserve attention. Keeping in mind that in the majority of instances the State's utility accommodation policy will be serving as the policy followed on Federal-aid highway projects on local road systems (see the discussion under "Utility Use Where State Lacks Authority"), it is important that the State's policy address how above ground utility facilities will be allowed to occupy local roads and streets, particularly those located in urban settings. Establishing appropriate clear zone policies to be applied to utility facilities located on lower-order highway facilities thus becomes an important function of the State's policy.

Applicability

State utility accommodation policies apply to all Federal-aid highways -- National Highway System (NHS) highways and non-NHS highways. Section 645.215 indicates each State must submit a statement to the FHWA on (a) the authority of utilities to use and occupy the ROW of State highways, (b) the States power to regulate such use, and (c) the policies the State proposes to employ for accommodating utilities within the ROW of all Federal-aid highways under its jurisdiction.

Recent legislation has given States considerable flexibility to design and construct certain projects in accordance with State laws, standards, and procedures, rather than Federal standards and procedures. The FHWA does not consider the utility accommodation policy to be a design document, though, and therefore does not find it to fall under the oversight exemptions allowed by ISTEA and TEA-21. Hence, it continues to apply to all highways, not just NHS highways.

Agricultural Lands

The need to evaluate the impact on agricultural land when deciding if utility use of highway right-of-way is to be allowed is a requirement found in Federal law [23 U.S.C. 109(l)]. However, under the process in § 645.211(c)(5), this evaluation only needs to be done if the utility's use of the right-of-way of a Federal-aid or direct Federal highway project should be denied and only then if the denial is based on provisions found in 23 CFR 645 subpart B. In other words, a State may deny a utility's request to occupy highway right-of-way based on State law, regulations or practices, and in this case no evaluation of impact on agricultural land is necessary. However, if the FHWA regulatory requirements in 23 CFR 645 subpart B are being cited as the basis for denying a utility's request to occupy highway right-of-way, then the evaluation of impact on agricultural land must be prepared before final action is taken. 23 CFR 645 subpart B, does not specify who prepares the evaluation of impact on agricultural land. This would be a matter for the State to determine.

Use and Occupancy Agreements (Permits) (23 CFR 645.213)

Overall Process

The FHWA requires that a utility's use of the right-of-way of a Federal-aid highway project be covered by a written agreement between the highway authority and the utility. This requirement is thought not to impose an unreasonable burden on highway authorities as it represents a good business practice that most property owners, in this case highway authorities, would follow anyway.

The type of written agreement is usually a "permit," although franchise agreements, licenses, or other written instruments can suffice. The key is that the written agreement must cover the items listed in § 645.213. It has been suggested that the FHWA develop a standard format for a permit; however, FHWA has declined as it is felt the highway authorities are in the best position to establish permit formats that meet their own individual needs and requirements.

Approvals (23 CFR 645.215)

Overall Process

23 CFR 645 subpart B, has retained FHWA's traditional approach in taking approval action on State utility accommodation policies. A State's proposed utility accommodation policy is submitted to the FHWA Division Administrator, who reviews it and makes the final decision as to its acceptability.

Once a State's policy is approved by the FHWA, any utility installations proposed to be installed on Federal-aid highways in accordance with the approved State policy may be approved by the State (or other highway authority) without referral to the FHWA. FHWA approval of proposed utility installations is limited to those that are not in accordance with the approved policy. For this situation, FHWA approval authority is delegated to Division Administrators.

FHWA Washington Headquarters Involvement

With the approval action for acceptance of State utility accommodation policies delegated to FHWA Division Administrators, FHWA Washington Headquarters does not become routinely involved in these matters. Occasionally, a Division Administrator may consult with Washington Headquarters before taking specific action on a State utility accommodation policy, but for the most part these actions occur with no Washington Headquarters involvement.

Additionally, under the provisions of 23 CFR 645 subpart B, the FHWA Division Offices are not required to furnish FHWA Washington Headquarters with copies of the approved State utility accommodation policies. As a consequence, it is extremely important for the Division Offices to maintain up-to-date files on these items, particularly State utility accommodation policies they have accepted on behalf of the FHWA.

Other Issues

The following discussion covers other pertinent issues related to utility accommodation matters.

Acceptance Of AASHTO Policy And Guide

AASHTO's A Policy on the Accommodation of Utilities Within Freeway Right-of-Way is no longer cited within FHWA regulations as a Federal standard.

Prior to FHWA's February 1988 revisions to its utility accommodation regulations covering longitudinal utility use of freeway right-of-way, the AASHTO Policy had been accepted by FHWA as a national standard, and FHWA regulations mandated that the AASHTO Policy be followed on Federal-aid highway projects. However, the February 1988 regulatory changes were designed to give the States greater flexibility involving utility use of freeway right-of-way. There was concern that mandating the use of the AASHTO policy might unduly restrict certain States. As a result, the FHWA's regulations do not reference this AASHTO document as a Federal standard.

AASHTO's A Guide for Accommodating Utilities Within Highway Right-of-Way has been accepted by the FHWA in 23 CFR 645.211 as a guide to be used in the evaluation of the adequacy of a State's utility accommodation policy. Thus, the States are given latitude as far as following specific recommendations in the Guide.

Toll Roads

Since early in the Interstate Program, the FHWA has taken the position that its utility accommodation requirements and procedures did not apply to toll roads. Although toll road authorities were strongly encouraged to follow accepted AASHTO policy and FHWA requirements, the FHWA did not require them to do so. The rationale for this approach rested basically on the fact that Federal-aid highway funds traditionally had neither been available nor expended on building or improving toll roads.

However, enactment of § 105 of the Surface Transportation Assistance Act of 1978 caused the FHWA to reexamine its approach toward toll roads. Under the provisions of § 105, the toll road authority and State could execute a toll agreement with the FHWA. The result of such an agreement was that the toll road's mileage could be used in calculating the State's share of Federal-aid Interstate 4R funds (resurfacing, restoration, rehabilitation, reconstruction) and these 4R funds could be used for improvements on the toll road.

The FHWA's position was established as follows:

  • On those portions of a toll road that were improved with Federal-aid highway funds (physical limits of the Federal-aid project), FHWA regulations and requirements applied. For example, any longitudinal utility use within the access control limits of a toll road were to be handled in conformance with the requirements of 23 CFR 645 subpart B.
  • On those portions of a toll road that were not improved with Federal-aid funds, but where a Section 105 toll agreement had been signed, the FHWA expected toll road authorities to follow FHWA policy and approved design standards, that they were not required to do so. If they choose to allow utility use that was not in conformance with accepted standards on sections of such toll roads not improved with Federal-aid funds, the FHWA did not stop the installation. However, it was the FHWA's position that it would not be prudent to use Federal-aid funds at some future date to correct or adjust utility facilities knowingly installed not in accordance with accepted standards. Specifically, should the State decide in the future to use Federal funds on this portion of the toll road, FHWA's position would be as follows -
    • the utility installations would have to be brought into conformance with the appropriate standard in effect at the time before any Federal funds could be expended on highway improvements. The cost to do this would not be eligible for Federal participation, and
    • further, even if these existing nonconforming utility installations would have to be relocated or adjusted to accommodate construction of the highway project, such work would not be eligible for Federal participation.
  • On those portions of toll roads where no Federal-aid funds had been expended and which were not covered by a Section 105 agreement, the FHWA encouraged toll road authorities to follow FHWA policy. However, if they did not abide by FHWA policy, the FHWA took no further action and no conditions regarding future use of Federal-aid funds were imposed.

Through early 1990, Section 105 agreements were in effect for only two toll road facilities, and these agreements did not necessarily cover the entire length of these toll roads. The two toll facilities were the Kansas Turnpike and the New York Thruway. Accordingly, the portions of these two facilities covered by the Section 105 agreements were governed by the first two provisions noted above. The remaining toll road facilities around the country that had no Federal funds expended on them were governed by the third provision noted above.

With enactment of the 1991 ISTEA and its amendments to 23 U.S.C. 129, use of Federal-aid highway funds to construct new toll roads or to improve existing ones has become more common. Utility use of toll roads should continue to be governed by the three provisions noted above. If a toll road is covered by a toll agreement executed with the FHWA, then the first two provisions noted above apply to utility use of this toll highway. If there is no toll agreement with the FHWA covering the toll road, then the third provision noted above applies to this toll road.

Encasement Of Pipeline Crossings

Presently, the FHWA has no written guidance in effect specifically addressing the issue of encasement of pipeline crossings of highways. In 1960 FHWA did issue a Circular Memorandum (CM) discussing encasement of pipeline crossings of the Interstate (this CM is no longer included in FHWA's official instructions to its field offices). Under the provisions in the CM, the FHWA endorsed encasement within the access control lines of an Interstate highway, although it was recognized that a somewhat lesser length, say to a reasonable distance outside the shoulders, might be appropriate in certain cases where there was a convenient method of access adjacent to the Interstate facility. The CM also recognized that encasement might even be omitted for certain types of pipes that had demonstrated a long record of trouble-free installations. Basically, the States were given some latitude in making judgments concerning the need for encasement.

FHWA's present policy concerning encasement of pipelines is essentially the policy developed by AASHTO in A Guide for Accommodating Utilities Within Highway Right-of-Way. The FHWA looks to the individual States, in developing their utility accommodation policies, to address the matter of encasement within these policies.

Although the States are given some latitude in the specific criteria or standards they might establish within these accommodation policies, the FHWA expects the States will adhere to the principle of providing adequate and reasonable protection to the highway facility and its user, and in the case of freeways ensuring that the access control features are preserved. Utility crossings of highways should be installed and maintained so that disruptions to the highway user are minimized. This may well mean that special treatments to the utility facilities are required within the highway right-of-way or for that portion of the utility crossing directly under the highway roadway and shoulders. Several forms for this special treatment are recognized and have been accepted by the FHWA.

Encasement is one form of special treatment although several other forms, such as the provision of thickened wall carrier pipe, cathodic protection, coating and wrapping, and concrete sleeves or caps might also be used.

The FHWA realizes that the use of encasement has come under critical review, particularly in the last few years. Certain advantages, such as the ability to conveniently replace the existing carrier pipe, are being challenged. Also, there is concern about the problems between encasement and cathodic protection requirements. As a consequence, the cost-effectiveness of encasement, particularly for certain types of pipelines, can be questioned and some modification of utility accommodation practices may be in order. Some States, based on their experience with alternate treatment practices other than encasement, are allowing greater flexibility in their encasement requirements and this has been accepted by the FHWA.

Pavement Cuts

The FHWA has no written guidance in effect addressing the implications of cutting pavements to install or maintain utilities. It does, however, have a publication providing guidance for cutting pavements. This publication is entitled Utility Cuts in Paved Roads, Field Guide, Publication No. FHWA-SA-97-049, Federal Highway Administration, September 1996.

The cutting of pavement in urban areas has become a major problem. The surge of fiber optics installations by many companies has intensified the problem. Pavement cuts, even when repaired properly, not only result in a poor riding pavement, but also delay traffic during the time the utility is working.

The frequency of pavement cuts to install underground utilities may be reduced somewhat by establishing/requiring the use of jacking/boring or directional drilling under the wider and more heavily-used pavements. Outright bans on pavement cuts in new pavement have been tried, but have been largely unsuccessful because there are always emergencies or strong economic reasons to violate the ban.

A more permanent solution might be derived through a mutual partnership involving State and local transportation departments, utilities, consultants, contractors, local citizens, and other interested parties to (a) develop and implement strong policies for locating new utilities and relocating existing utilities outside of traveled way pavement, and (b) until such time as existing utilities can be relocated, or where it is not possible to relocate them, to establish stringent control over pavement cuts for access/maintenance purposes, and over repair activities.

Jacking/Boring vs. Directional Drilling

There have been instances where horizontal directional drilling has resulted in damage to both pavements and underground utilities. Therefore, it is a valid concern as to whether or not jacking/boring is preferable to directional drilling for installing utilities under Interstate and other major highways.

Theoretically, one method is as good as the other. There is a need for both depending upon the circumstances. No matter which method is used, there is a need for proper control, good practices, adherence to specifications, continuous training, and information sharing in order for trenchless technology operations to be safe and dependable.

A few pros and cons about jacking/boring and directional drilling are as follows:

Jacking/Boring:

  • Work is accomplished using a guide plane and jacking pipe in short segments, thus, it always requires straight alignment and a jacking pit.
  • The pit is a major consideration for reasons of operator safety, cave-ins, water table, and possible vehicular entry into the pit. Soils information is critical for pit construction and safety.
  • The cost for the same size pipe tends to be higher than for directional drilling because it requires joint welding, takes longer to install, and typically requires more maintenance of traffic or shielding of the operations.

Directional drilling:

  • A greater tolerance is required, vertically and horizontally, because the alignment of the bore must be strictly controlled. Visualize a spiral about a theoretical bore alignment. The center of the actual bore alignment should not vary from the intended alignment by more than a few inches. Deviations from the intended alignment will be minimal if the work is properly controlled.
  • Since it doesn't have to go straight in either the vertical or horizontal plane, the setup for drilling can be well out of the clear zone and even off the right-of-way.
  • The installed pipe is seamless and poses fewer problems with leakage or seepage from joint or pipe perforation.
  • This method may be considerably less expensive to employ. and usually creates a safer work environment, even when performed close to the roadway.
  • The pipe is typically installed in much less time, which translates into less facility user inconvenience and less risk from vehicle collisions.
  • One unique directional drilling problem is in the pull back operation. It is possible when pulling back to build up excessive fluid pressures and cause the fluid to seek the path of least resistance. This may result in fluids leaking out of the ground, breaking through or humping up the pavement. Also, if the characteristic of the soil changes rapidly and proper adjustments are not made in the drilling fluids, lubrication may be lost and the pipe may hang up. This will require shutting the operation down, filling the pipe with flowable fill, and obtaining a new alignment to start operations over again.
  • Horizontal directional drilling does not require certification, except in California and maybe a few other States, and is a relatively inexpensive business to enter into. This results in improper contractor operations. There is also a tendency not to comply with "one-call" legislation.
  • There is a real safety hazard in puncturing gas and water lines without ever knowing about it until it is too late. This often happens during the pull back operation. But, once again, this is not a method problem but an operator problem that needs to be addressed through continuous training and information sharing. Deeper installations and "one-call" locates may also help alleviate the problem.

Both jacking/boring and directional drilling, if improperly conducted, fail when unknown obstructions are encountered within the alignment. Hence, knowledge of soils and obstructions that may be encountered are essential. There is a major difference between the methods if an obstruction is hit.

  • When conducting jacking/boring operations and an obstruction is encountered, either the obstruction is cleared by breaking it up from inside the pipe, if there is room to do so, or the operation must be shut down. When the operation is shut down, the pipe must be filled with flowable fill and a new alignment must be sought to start operations again.
  • When conducting directional drilling operations, hitting an obstruction can redirect the bit and send it through the pavement before it is anticipated. But this usually can only occur in shallow boring operations and when not properly monitored. Obviously, since pits are seldom involved in directional drilling, starting is much easier and quicker.

These occurrences can be minimized and are attributable to contractor error, not technology.

As can be seen from the comparisons there are trade offs with each technology. Which method is best to use should be decided by conditions in the field.

Utilities Attached To Structures

The FHWA policy on utility attachments to structures is contained in AASHTO's A Guide For Accommodating Utilities Within Highway Right-Of-Way. The AASHTO guidance is very general and State approaches vary considerably from outright prohibition to almost unlimited use.

Fiber Optic/Wireless Telecommunications on Freeway Right-of-Way

Accommodation, Utility vs. Private Line

Many States are considering accommodating fiber optic lines and/or wireless telecommunications facilities (towers, monopoles, antennas) on freeway right-of-way in exchange for cash and/or use of the lines or facilities. In so doing, care needs to be exercised to determine whether the facility involved is a "utility facility" or "private line" as defined in 23 CFR 645.207. This distinction is important because it may impact how the transportation department treats the facility and also because the FHWA has different mechanisms for handling its review and approval actions.

When determining whether a facility is a "utility facility" or a "private line" there are two important tests: (1) how the State views a particular facility under its own State laws and/or regulations, and (2) the definition of "utility facility" in 23 CFR 645.207.

The key item to consider in making this determination, using the above tests, is whether a State considers a particular facility to be a "utility facility" under its own State laws and/or regulations. If the State treats a facility as a utility, and if the facility is producing, transmitting, or distributing any of the commodities outlined in the FHWA definition for the use by or the direct benefit of the public, then the FHWA would also consider it to be a "utility facility" and handle it under its utility regulations.

Hence, if a State considers a fiber optics line or a wireless telecommunications installation to be a "utility facility," then so too does the FHWA. Conversely, if the State considers them to be "private lines" so too does the FHWA.

An installation considered to be a "utility facility" is probably covered under the State's utility accommodation policy for permitting utility use of freeways and can be handled in accordance with approved procedures. If there is any doubt, the transportation department should be encouraged to amend its utility accommodation policy to clearly state its intent relative to accommodating fiber optics and wireless telecommunications.

Wireless telecommunications facilities installed at various intervals along a freeway, if physically located on the highway right-of-way and if relaying transmissions from one to the other, are considered to be longitudinal installations.

A stand-alone wireless facility (tower, monopole, or antenna) is actually neither transverse nor longitudinal, but may nonetheless, if considered to be a "utility facility," be accommodated under provisions in a State's utility accommodation policy for either transverse or longitudinal installations, whichever is the most stringent. The intent is not to be a roadblock, but, as with any utility installation, to be sure careful consideration is given to effects on highway and traffic safety, and also on the operation and aesthetics of the highway.

Median Installations

The FHWA does not encourage median installations for fiber optics or any other utilities but Division Administrators do have the authority to approve such installations if considered justified, and they have done so in several States.

In situations where it is not technically feasible or is unreasonably costly and there are no feasible alternate locations, the risk involved in constructing, operating, and maintaining fiber optics may be more than offset by the benefits derived by ITS and other systems that the fiber optics will serve.

Hence, a proposal by a State for a median installation under these circumstances, might be justified, and could be approved by Division Administrators as an exception to the State's approved utility accommodation policy under the provisions of 23 CFR 645.215(d).

The American Association of State Highway and Transportation Officials has acknowledged a distinction between buried fiber optics cables and other types of utilities and deems it permissible to permit the longitudinal use of freeway right-of-way for fiber optics under appropriate guidelines. Even so, in its publication entitled, A Policy on the Accommodation of Utilities Within Freeway Right-of-Way, the AASHTO has retained its longstanding policy in opposition to the longitudinal use of freeway right-of-way for other utility types, and also its longstanding policy indicating that utilities will not be allowed to be installed longitudinally within the median area. The FHWA's policies in this regard are more flexible than the AASHTO's policies. Even though the FHWA has not adopted these AASHTO policies, many States have adopted them, and have incorporated them into their FHWA-approved utility accommodation policies.

Location Criteria

When allowed on freeway right-of-way, wireless telecommunications facilities should be located as far from the roadway as possible and/or in inaccessible locations where they are unlikely to be hit be errant vehicles. In addition, the safety impacts of access to construct and service the facilities should be considered.

The Maryland State Highway Administration (MSHA), in coordination with the FHWA, has developed criteria for the placement of wireless facilities on controlled access highways. The goal is to ensure the wireless facilities are placed in locations that preclude them from being roadside hazards, yet still provide safe access for maintenance personnel. They specify that:

  • Adequate sight distance must be provided for safe ingress to and egress from the sites.
  • The wireless facilities must be located outside the clear zone (where unlikely to be struck) unless shielding already exists.
  • An adequate pull off area beyond the shoulder must be provided for construction and maintenance purposes.

In addition, the MSHA has set up a descending order of preference for siting wireless telecommunications facilities, as follows:

  • Priority 1: Vehicle access to the site can be obtained from outside the through-roadway and connecting ramps (e.g., access from frontage roads or cross roads).
  • Priority 2: Within the interchange, vehicle access can be obtained from the right hand side of the diagonal ramps.
  • Priority 3: Within the interchange, vehicle access can be obtained from the left hand side of the diagonal ramps.
  • Priority 4: Vehicle access from the outside shoulder (right hand side) of the mainline.
  • Priority 5: Vehicle access from the inside shoulder (left hand side of the mainline).

Justification must be provided for descending to any level below Priority 1. FHWA concurrence is required for any installation within a loop ramp, within any freeway weave area less than 3/4 mile in length, or requiring new shielding.

FCC Considerations

A number of States have permitted access to limited access highway right-of-way for fiber optic and wireless telecommunications installations. Several of these installations have been public-private partnerships with the telecommunications industry, which are generally referred to as shared resource agreements. In December 1999, the Federal Communications Commission (FCC) issued an opinion in a Minnesota Department of Transportation case involving such a partnership that defined the FCC's interpretation of the Telecommunications Act of 1996 (TCA) and its application to the Minnesota agreement.

As a result of the FCC's opinion, the FHWA engaged in a discussion with the FCC to clarify how these partnerships and other similar telecommunications installations should be conducted to avoid conflict with the TCA and be consistent with the FHWA's requirements for highway safety and right-of-way management. These discussions culminated in an approach that considers both the requirements of the transportation industry and its concern for highway safety, and the FCC's concern with implementation of the TCA. This approach was documented in two letters, the first from the FHWA to the FCC defining elements pertaining to access to freeway ROW, and the second from the FCC to the FHWA defining competitive elements based upon the access restrictions defined by the FHWA.

The FHWA/FCC discussions are documented in a December 22, 2000, FHWA memorandum to Division Administrators setting forth guidance to assist States in the execution of shared resource agreements, particularly relative to access and competitive issues. Attached to this memorandum is a document entitled, "Background Discussion on Guidance: Telecommunications Installations, Limited Access Highway Right-of-Way," which presents a detailed discussion of the FCC's ruling on the Minnesota case, and the rationale for these guidelines which have been developed in cooperation with the FCC.

Guidance on Access Issues

If a State chooses to allow longitudinal access for fiber optic facilities installation on its freeway right-of-way, it is recommended the following guidelines set forth in the December 22, 2000, memorandum apply to that installation:

  1. In these guidelines, it is understood that the State retains the right and responsibility to manage its freeway ROW. Reasonable, nondiscriminatory time, place, and manner restrictions, including but not limited to traditional permitting conditions, may be placed on the design, installation, operation, and maintenance of fiber optic facilities.
  2. All construction should be done in that portion of the ROW that is located furthest from the traveled roadway to the degree feasible, and should be accomplished in accordance with the Manual on Uniform Traffic Control Devices, per 23 CFR 655.603.
  3. If all construction vehicles, equipment, and personnel can be located outside the clear zone on the freeway, as defined in the AASHTO Roadside Design Guide and adopted by FHWA in Federal Aid Policy Guide, Par. 16(a)(3) NS 23 C.F.R. 625, except for ingress and egress, the State may use the freeway ROW for fiber optic facilities installation as frequently as reasonably necessary to satisfy the requirements of the State, and the needs of the telecommunications providers. A State may limit construction so that there is no more than one installation project underway at any given time on any major segment of the freeway.
  4. If construction vehicles, equipment, and personnel cannot be located out of the freeway clear zone, then the State may restrict fiber optic facilities installation to only one time on that area of the freeway where construction would occur within the clear zone. No further installation needs to be allowed on that segment until such time as required by the end of the useful life of the fiber optic facilities, or if the existing capacity is exhausted or existing conduit is full. Existing fiber and conduit capacity will be deemed exhausted whenever the State and the contractor mutually determine that a bona-fide request for dark fiber, conduit space, or a bona-fide request for any other transmission facilities or service cannot be granted. Additional installation at this time will be subject to reasonable non-discriminatory State requirements, e.g., #1 above.
  5. A State may restrict the location of all the above ground equipment to the edge, or off of the ROW to allow access to that equipment for maintenance from service roads or other non-freeway access if feasible, as determined by the State. Such restrictions should be nondiscriminatory.
Guidance on Competitive Issues

To assist States in meeting the intent of the TCA with regard to maintaining a competitively neutral position in the process of developing and implementing a shared resource or other telecommunications installations project, the FCC suggests the following principles be followed in the development of these projects. These principles should be considered whenever a State decides to limit further installations of fiber optic facilities on its ROW, whether in or out of the clear zone.

  1. The contractor should be selected through an open, fair, non-discriminatory, competitive process.
  2. Having selected a contractor, other interested third-party telecommunications companies should be allowed the opportunity to have their fiber optic facilities installed in conjunction with any installation of fiber optic facilities by the contractor. The State may make the contractor the sole party responsible for all installation work done at such times, and require that other third party telecommunications companies contract with that contractor for installation of their fiber optic facilities when their facilities are installed in conjunction with those of the contractor. In such cases, the contractor's charges, terms and conditions for installation should be fair, reasonable, and non-discriminatory and may include a reasonable profit. The State should give potentially interested third parties reasonable notice of the anticipated or planned opening of the right-of-way. The notice period should reflect the time reasonably required by third parties to develop business plans and obtain financing. Notice can be accomplished through publication and dissemination of a construction schedule for the project. Such publication and dissemination should be reasonably calculated to provide potentially interested third parties with actual notice of the schedule.
  3. The contractor should install spare fiber and empty conduit, adequate to accommodate reasonably anticipated future demand, whenever fiber optic facilities cannot be installed outside the clear zone. Each section of fiber/conduit within the clear zone should have connection points (manhole or cabinets) at each end outside the clear zone where third parties can access the conduit or interconnect with facilities in the conduit at their option. All rates, terms and conditions for interconnection and/or use of space in the conduit should be fair, reasonable, and nondiscriminatory and may include a reasonable profit.
  4. The contractor should be required to sell fiber on an "Irrevocable Right of Use" basis at rates and subject to terms and conditions that are just, reasonable, and nondiscriminatory. The contractor's charges for such facilities may include a reasonable profit.
  5. The contractor should be required to offer facilities and services for resale at rates and subject to terms and conditions that are just, reasonable, and nondiscriminatory and may include a reasonable profit.
  6. The agreement with the contractor should require that the contractor comply with the terms defined above, and give third parties the right to challenge the contractor's compliance with the appropriate elements of these terms dealing with third party access before an independent entity which does not benefit directly from the arrangement with the contractor. The independent entity should have the authority to order the contractor to comply with these terms. A State public utilities commission, or independent arbitrator, might serve in this capacity. In this regard, prompt resolution of such issues can be critically important to the development of competition.
  7. It is substantially preferable that the contractor be a wholesaler of telecommunication in order to minimize competitive concerns, as opposed to being a retail telecommunications services and facilities provider either directly or through an affiliated entity. This reduces the potential for anti-competitive pricing that could violate section 253 of the TCA. However, if the contractor does provide retail telecommunications service directly or through an affiliated entity, all rates, terms and conditions for its retail service should be fair, reasonable, and nondiscriminatory.

Keep in mind that the above information is only guidance. The States do not have to follow it. The Division Offices do not have to abide by it. It is only guidance. However, if States opt to install fiber optics or wireless telecommunications towers on limited access highways in accordance with this guidance, they should have nothing to fear from the FCC. This doesn't mean the States can't do more. They can and the FHWA can approve what they do. But there are no assurances that the FCC will not take exception to what has been done and initiate actions to try to force States to make unwanted policy changes.

Longitudinal Telecommunication Lines On Freeways For A States Own Use

A State may install longitudinal telecommunication lines for its own use within the access control limits of freeways in the State, if appropriate provisions have been included in an approved utility accommodation plan. For these purposes the installation is considered to be a "utility facility" as opposed to a "private line" as defined in 23 CFR 645.207.

A State may lease longitudinal telecommunication lines, installed for its own use within the access control limits of freeways in the State, to other State agencies or to local governmental agencies. This is still considered to be "for the use of a State or local governmental unit."

Longitudinal utility facilities within the access control limits of freeways must directly or indirectly serve the public. Hence, a State could lease such telecommunication lines to a "utility" if such use was in accordance with their approved utility accommodation policy, but could not lease such telecommunication lines to "private" users without special FHWA Headquarters approval based upon a public interest finding in accordance with 23 CFR 1.23.

Fees Charged for Telecommunications Use of Highway Right-of-Way

The Telecommunications Act of 1996 (Public Law 104-104) and guidance above under "Freeway Accommodation Policies" indicate States may, at their discretion, charge fees for longitudinal utility use of highway right-of-way. But, there is no mention in Federal law, regulation, or policy as to how these fees are to be used.

It has been the FHWA's policy for many years to allow States to charge fees for utility use of highway right-of-way if they desire, and to allow them to use the proceeds as they see fit. In the past, fees charged for utility use were generally just enough to cover the cost of processing permits. Now, with the advent of fiber optics and wireless telecommunications, opportunities exist for the States to make substantial profits. In such cases, the FHWA has informally encouraged the States to use such revenues for transportation purposes.

The above discussion has to do with utility use of highway right-of-way. It is important, however, to distinguish between a "utility facility" and a "private line," as discussed previously, because they are handled differently and have different requirements for the use of fees.

Private lines can be installed on highway right-of-way. However, it is important to understand that longitudinal private line installations are to be handled under the provisions of 23 CFR 1.23(c); whereas, longitudinal utility installations are to be handled under the provisions of 23 CFR 645, subpart B.

As part of a major update of the utility regulations in 1985, the FHWA wanted to establish procedures for handling both the accommodation of utilities and the use of highway right-of-way by private lines. It was decided that private line crossings could be handled under the utility regulations contained in 23 CFR 645 subpart B, but that private line longitudinal use could not.

Private line longitudinal use was considered to be clearly beyond the public interest finding in 23 CFR 645.205(a) that allowed utilities to occupy highway right-of-way. It was therefore decided that private line longitudinal use should be handled on a case-by-case basis under the provisions of 23 CFR 1.23(c), which is the agency's authority to allow non-highway use of highway right-of-way. This decision only addressed the approval mechanism for private line use of highway right-of-way. The matter of fees did not come into play.

Even so, 23 CFR 1.23(c) opens the door for the use of the airspace law and regulation in 23 U.S.C. 156 and 23 CFR 713 subpart B, respectively, and they in turn set forth income requirements for longitudinal private line use of highway right-of-way. It is important to note that utility use is clearly exempted from these requirements. The 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. As mentioned above, utility use of airspace right-of-way is exempted from these requirements, but private line use is not.

To summarize:

  • States may charge fees at their discretion for longitudinal utility use of highway right-of-way, but there is no mention in Federal law, regulation, or policy as to how these fees are to be used. The FHWA encourages States to use generated revenues for transportation purposes.
  • Private line longitudinal use of highway right-of-way is covered by 23 U.S.C. 156. States are required to charge fees for such use based on fair market value and to use such fees for title 23 purposes.
  • Private line crossings of highways should be handled like utility crossings under the provisions of 23 CFR 645 subpart B. 23 U.S.C. 156 should not be applied in these situations.

Facilities Similar to Utilities

In 1997, the Office of Chief Counsel provided written legal advice to the Office of Engineering concerning environmental requirements that are triggered by the accommodation of telecommunications towers on Federal-aid highways. Chief Counsel noted that there are two different approaches to the siting of "utility facilities" and "private lines" on Federal-aid highway right-of-way, with different duties for environmental compliance, and suggested that FHWA consider revising its regulations to include facilities similar to utilities.

Facilities similar to utilities might include fiber optics, wireless telecommunications towers, or possibly other facilities that are considered by the FHWA to be included in the definition of "utility facility" in 23 CFR 645 and are considered to be utilities by many, but not all, of the States.

Presently, utilities may be accommodated on highway right-of-way under provisions in the utility regulations. Non-utilities may also be accommodated, but under provisions in another regulation, 23 CFR 1.23(c). The proposed change to the utility regulations would allow "similar facilities," whether considered by an individual State to be "utilities" or not, to be accommodated under provisions contained in the utility regulations. This would provide uniformity by avoiding wireless telecommunications towers and fiber optics from being accommodated under one FHWA procedure in one State and a different FHWA procedure in another State.

After much consideration it was decided not to make this change. While it would have provided uniformity and simplicity, it would have conflicted with the FHWA's long-standing policy that the most important consideration in determining whether a proposed installation is a utility or not is how the State views it under its own State laws and/or regulations. There was also the appearance that accommodating non-utilities under the utility regulations might interfere with other requirements currently in effect for accommodating non-utilities, particularly in regard to fair market value, use of revenues for title 23 purposes, and the environment.

Even so, there may be times when it would be expedient and prudent to consider a facility to be "similar" to a utility and to accommodate it under the utility regulations. This should only be done on a case-by-case basis and the reasons should be well documented. Particular attention should be given to environmental, right-of-way, and other sensitive issues to assure they are adequately addressed.

Highway Utility Safety

Motor vehicle collisions with utility poles result in approximately 1,100 deaths and 83,000 injuries in the U.S. annually. Utility poles also have a negative effect on the aesthetics of a roadway. It is important, therefore, whether designing roads or streets in rural or urban locations, to consider accommodating utilities early in the design process.

The most desirable design solution, in terms of safety for overhead utilities, is to locate the utility poles where they are least likely to be struck by a vehicle.

The Roadside Design Guide contains the following options for the location and design of utilities:

  • Bury electric and telephone lines underground
  • Increase lateral pole offset
  • Increase pole spacing
  • Combine pole usage with multiple utilities
  • Use a breakaway pole design
  • Use traffic barriers to shield poles

There are no Federal-aid funding sources designated specifically for highway utility safety, however, there are funds that can be used for highway utility safety. For example:

  • For regular highway construction and reconstruction projects that happen to involve utility work, regular construction funds such as National Highway System (NHS), Surface Transportation Program (STP) or Interstate Maintenance (IM) may be used and the Federal pro rata share will be either 80% for non-Interstate or 90% for Interstate roadways.
  • When a project is funded with NHS, STP, or IM funds, there is also a list of specific traffic and safety items (one of which is the installation of breakaway utility poles) that can be funded at a 100% Federal share, even though the bulk of the project is still funded at 80% or 90%.
  • Bridge projects are funded with bridge funds, but oftentimes there are modifications done to the approaches to the bridge. In this case, the bridge itself is funded with bridge funds, but the approach work is funded with NHS, STP, or IM funds. If, along the approach, there is the need to remove, relocate, or mitigate utility poles, this work can be funded at the pro rata share for the approach work (80% or 90%). If breakaway utility poles are installed, they can be funded at 100% as discussed above.
  • There are also projects that are done solely to address highway safety. Annually, 10% of each State's STP apportionment is set aside for safety projects (called safety setasides).

    In Maryland, for example, this is generally about $9 million annually. The $9 million safety setaside funds are further broken down into three categories: hazard elimination, highway/rail crossings, and optional safety. The optional safety category is extra dollars because the other two categories have a cap that the State can use for either hazard elimination or highway/rail crossings. It is the State's choice and can change from year to year. So, the bottom line is that a hazardous utility pole can be removed, relocated, or mitigated using either the hazard elimination funds or the optional funds that the State chooses to use for hazard elimination projects, provided the hazard created by the pole meets the criteria for hazard elimination projects in 23 USC 152. The hazardous utility pole will be compared to and ranked against other hazardous intersections and roadway sections in the State. The projects with the highest benefit/cost ratio are then funded first, and so on down the list. It is not a huge pot of money and it is tough to compete for the dollars when going against large, heavy volume intersections that will likely rank higher, but it can be done.

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Ken Leuderalbert
Office of Program Administration
317-226-5351
E-mail Ken

 
 
Updated: 04/06/2011
 

FHWA
United States Department of Transportation - Federal Highway Administration