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Pavement Utility Cuts
This manual for controlling and reducing the frequency of pavement utility cuts was developed to provide information to states and municipalities as they try to protect their infrastructure and maintain control of access to their rights-of-way. The manual addresses two major topics: Controlling Pavement Cuts by Implementing Policy and Reducing Pavement Cuts by Integrating Technology. On the policy side, several different types of policies and regulations are presented, with case studies and sample ordinances and regulations. The technology portion of the manual gives a brief overview of various trenchless technology methods, their advantages and disadvantages, and other pertinent information about implementing this type of technology in utility construction. The information contained in this manual should be used as a starting point for an investigation into the types of policies and technologies available to the public sector to help control and possibly reduce the frequency of pavement utility cuts in the national and local infrastructure.
Public policy developments to control pavement utility cuts in highways and streets, and to minimize damage to public infrastructure, evolved from requirements outlined in city and state codes for emergency rules to control the rights-of-way access demands of new telecommunication companies. The rush of new companies requesting access magnified the need for better control of utility street cuts and improved standards for how cuts are repaired.
Agencies began to realize that excessive utility cuts in pavements under their responsibility were causing premature deterioration of the pavement structures. They also realized that additional money was required to maintain these pavement structures at acceptable levels of serviceability. One method of recovering the cost of damaged pavements is to require the utility company performing the work to pay a fee commensurate with the damage done to the pavement. However, the agencies first had to find or develop a method of quantifying the damage done to pavements by utility trenching. These methods will be discussed briefly in a later chapter.
Another way that agencies have been resisting the increased requests for access has been to require the use of trenchless technologies, where possible. Such policies can reduce disruption to the pavement structure and to the traveling public. As interest in trenchless technology has increased, the technology itself has been advanced, and its overall cost reduced, to a point where it is becoming more competitive with traditional trenching methods for utility construction. Other related technologies and methods, such as subsurface utility engineering, in-place pipe inspection, and others have advanced significantly during the same period.
1.2 Objectives of Manual
The primary objective of this manual is to provide help to the state and local ROW and utility managers in controlling and reducing the frequency of pavement utility cuts. The two major chapters of this manual provide guidance in the areas of policy and technology, as each relates to the control and reduction of utility cuts. Secondary objectives of the manual include making information available to agencies, utility companies, and other organizations about such policies and technologies. Although this manual cannot address all the available information about the subjects, it includes references to other sources covering a very broad range of topics.
Information regarding potential policies that agencies may support in order to control the frequency of utility cuts in pavements is included in this manual, as well as sample ordinances and regulations that have been used successfully by other agencies. The manual also includes information regarding potential difficulties and complications that enacting agencies should avoid.
With respect to trenchless technologies, additional information is contained in this manual including additional technologies that are designed to reduce the risk involved in trenchless construction, methods of performing cost-benefit analyses, sources of technical and operational information, and suggestions on matching construction methods with conditions at the site.
1.3 Examples of Existing Problem
Many states, counties, and cities have seen the effects of excessive pavement utility cuts in their highways and streets. Potential problems that can arise from uncontrolled and frequent utility cuts include, but are not limited to:
- Excessive delays to the traveling public due to closed traffic lanes.
- Increased traffic congestion and related air quality issues.
- Damage to vehicles due to excessive road roughness.
- Rapidly deteriorating pavement structures in the vicinity of the cuts.
- Accelerated funding requirements to maintain, rehabilitate, and reconstruct prematurely failed pavement structures.
As an example, in 1996 alone, the District of Columbia, with about 2,092 center line km (1,300 mi) of pavement, (with an estimated value of over $3.4 billion allowed over 5,000 utility cuts, and the DC Department of Public Works (DCDPW) estimated over 6,000 cuts in 2000.(1) In 1996, the combined area of the utility cuts in the District was over one percent of the total pavement surface area. Permit fees for utility cuts in the District in 1996 were simply $24 per street, meaning that a single permit allowed the entire street to be cut as many times as the permittee deemed necessary. In addition to the permit fee, the permittee was required to provide a temporary patch, and to pay for a permanent repair by DCDPW, which at times was performed up to two years later. According to DCDPW, this two-year delay was generally necessitated due to lack of funds for street maintenance and rehabilitation. Had the District had the policies in place to recover adequate funds for maintaining the pavement structure, and the knowledge and encouragement to request the use of trenchless technologies (where appropriate), the number of cuts could have been reduced, and the quality and timeliness of the permanent repairs could have been improved.
Many other agencies have experienced similar problems with excessive pavement utility cuts. In the past, cities have experienced this type of problem primarily due to the large and concentrated demand for services. State and county roads located in urban areas, however, have also experienced this growth in access demands and problems related to it. Other cities that have conducted studies to quantify the damage to their streets from excessive utility cuts include San Francisco and San Diego, CA, Austin, TX, Cincinnati, OH, Burlington, VT, and others. (See references 2, 3, 4, 5, and 6.) These studies found that street cuts not only reduce the life of the pavements, but also cost millions of dollars to agencies in premature repair and street remediation expenses. Other financial impacts from utility cuts and poor repairs include traffic delays, increased congestion in urban areas, and damage to both public and private vehicles.
1.4 Impacts of Pavement Utility Cuts
Some of the potential impacts of pavement utility cuts were mentioned in section 1.3. Other impacts include the perception of the public, which often is of the opinion that the state or city is always working on the roads, and that road construction never ends. Additional impacts include other indirect costs, or those that cannot be directly quantified, localized air quality, and the financial impact to local businesses whose access is impeded due to construction work zones.
As demand for access to the public ROW increases, these impacts will become more prevalent as long as traditional trenching remains the predominant form of utility construction. The effect on pavement deterioration is likely to become more pronounced as states, counties and cities continue to struggle with diminishing budgets and increasing pavement deterioration. Without means of repairing prematurely deteriorated pavements in a timely manner, these agencies expect greater backlogs in maintenance and rehabilitation requirements. A brief discussion of these impacts on the public infrastructure and the driving public is given in chapter 2.
1.5 Background of 1996 Telecommunications Act
On February 8, 1996, President Clinton signed the Telecommunications Act of 1996 (the Act) into law. Overall, the intent of the bill was the development of competition in the telecommunications marketplace by allowing local telephone exchange carriers to provide long distance telephone service, as well as cable television, audio services, video programming services, interactive telecommunications and Internet access. Similarly, long distance providers, cable operators and utilities are now permitted to offer local exchange telephone service. The legislation represents the first major rewrite of the Telecommunications Act of 1934. It is complex and the rules and regulations adopted to implement the Act have a significant impact on a state and/or local government's authority to manage access to, and use of, the ROW under its authority.
Nationally, state legislatures have passed legislation that limit the basis for which ROW rental fees can be charged. In some cases, state and local governments' rental and franchise fees have been limited to the actual cost for regulating access to ROW. Around the United States, state and local governments are taking steps to re-examine current ROW management policies subject to the 1996 Act. The proliferation of new technologies has resulted in additional demands being placed on the allocation of public property. As both the trustee and the landlord of the public ROW, state and local governments have an obligation to develop a framework that provides for efficient and cost effective management of the rights-of-way, protection of public safety; and maximizes revenue and recovers costs associated with the regulation and management of rights-of-way access.
Moreover, the framework adopted by state and local governments must establish a level playing field that will allow qualified providers within each classification of service to enter the market on a competitively neutral basis. Thus, jurisdictions need to examine existing rights-of-way access policies, fees and compensation methods to assure the proposed policies and fee structures are implemented on a fair and competitively neutral basis.
1.5.1 Section 253
The Telecommunications Act of 1996 effectively deregulated the telecommunications industry. Some of the effects of the Act include the following:
- Affects every provider of telecommunications services.
- Has numerous implications for local governments.
- Encourages new entrants into the marketplace to compete with incumbent providers in all aspects of telecommunications.
- Removes regulatory barriers to entry and allows existing providers to enter into new arenas to compete with each other.
- Encourages the proliferation of new technologies.
- Addresses the convergence in technology in the cable and telecommunications industries.
- Has resulted in additional demands being placed on the public rights-of-way and roadways.
Section 253 of the Act focuses on the Federal Communication Commission (FCC) and court decisions that directly impinge on the authority of local governments to regulate telecommunications providers. Significant issues discussed in this section follow. (In this and other chapters, legal citations are given as footnotes, numbered separately from references, and are shown at the bottom of each page rather than at the end of the report. Footnote callouts are in superscript without parentheses, whereas reference callouts are superscript with parentheses.)
- No state or local statute, regulation or other requirement may prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunication service. The FCC is authorized to preempt enforcement of state or local law, regulation or requirement that violates this provision.
- Nothing in Section 253 affects the ability of a state to impose, on a competitively neutral basis and consistent with provisions of the Act on universal service, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. The FCC is authorized to preempt enforcement of state or local law, regulation or requirement that violates this provision.
- Nothing in Section 253 affects the authority of state and local governments to manage public ROW and require fair and reasonable compensation, on a competitively neutral and nondiscriminatory basis, for use of public ROW.
1.5.2 Court Actions
Interpretation and implementation of provisions outlined in the Act has varied from state to state. Thus, numerous litigations have been prosecuted, resulting in precedent-setting US District Court rulings. The following details some of the significant cases and the result of their subsequent rulings that, in many cases, supports a jurisdiction's authority to manage its ROW. Additionally, the rulings on these selected cases can be referenced to develop franchise, license, and ROW agreement provisions (including compensation).
- TCG Detroit v. City of Dearborn District court first held that Section 253(c) grants TCG Detroit an implied private right of action against the City of Dearborn. In a subsequent decision, the district court upheld the city ordinance, noting, among other things: (i) the city has the right to charge "rent" for rights-of-way; (ii) four percent franchise fee is "fair and reasonable"; and (iii) the city does not violate Section 253 by imposing comparable, but not identical, agreements. On appeal, the Sixth Circuit Court of Appeals affirmed both district court decisions. Finally, the Court of Appeals interpreted Section 253 to imply a private right of action "for those claiming barrier-to-entry injury". The court also held that the fact that state law prohibits the city from charging the incumbent carrier a franchise fee does not mean that the city discriminated against other carriers by assessing such a franchise fee.
- AT&T Communications of the Southwest, Inc. v. City of Austin Section 253 does not grant the FCC exclusive jurisdiction over AT&T's challenge to the City's ordinance that requires a telecommunications operator to obtain consent from the local government before offering telecommunications services. The court rejects the notion that a provider that does not install or own facilities in the city's rights-of-way is "using" the rights-of-way. In a subsequent related proceeding, the court issued permanent injunction against enforcement of the City's ordinance with respect to AT&T.
- AT&T Communications of the Southwest, Inc. v. City of Dallas US District Court upheld Dallas' requirement that AT&T obtain a franchise and pay a reasonable franchise fee based on the use of the city rights-of-way for company's planned use of its existing fiber optic facilities to provide a new service called "AT&T Digital Link." The court held that Dallas does not have power under state and federal law to require a comprehensive franchise application, to consider factors such as the company's technical and organizational qualifications, or to place conditions on the franchise unrelated to use of the city's rights-of-way. The court noted that Section 253 does not require a city to impose the same fee on all providers. In a related case, the court granted preliminary injunction against enforcement of the city's ordinance with respect to a telecommunications provider that does not install or own facilities in the public rights-of-way.
- BellSouth Telecommunications, Inc. v. City of Coral Springs Issuing a declaratory judgment, the court held that under Section 253, state law preempts a local ordinance that (a) specified an amount of compensation for use of rights-of-way that exceeded the limit permitted by state law, (b) required the applicant to submit proof of its financial, technical and legal qualifications, and (c) required compliance with the municipality's universal service plan. Additionally, the court stated the decision to grant a franchise may not be left to the municipality's discretion; it may only be conditioned on the company's agreement to comply with reasonable regulations for managing the use of the municipality's rights-of-way.
- Bell Atlantic-Maryland, Inc. v. Prince George's County The district court held that any process for entry that imposes burdensome requirements on telecommunications companies and vests significant discretion in local governments to grant or deny permission to use rights-of-way may have the effect of prohibiting the provision of telecommunications services in violation of Section 253. Also, the court held that local governments may not set franchise fees above a level that is reasonably calculated to compensate for the costs of administering franchise programs and of maintaining and improving public rights-of-way. Finally, the court held that unless a telecommunications company doing business in the county physically impacts the rights-of-way by installing, modifying or removing lines and facilities, it is not using the rights-of-way within the meaning of Section 253(c). On appeal, the Fourth District Court vacated and remanded the case directing the district court to address Bell Atlantic's state law claims before turning to the issue of federal preemption under Section 253. The circuit court did not discuss the merits of Bell Atlantic's Section 253 complaint.
- Omnipoint Communications, Inc. v. The Port Authority of New York and New Jersey The District court denied the wireless communications services provider's motion for a preliminary injunction to mandate that the Port Authority allow installation of antennae at JFK airport and the Lincoln and Holland tunnels. Omnipoint failed to show a clear or substantial likelihood that it would succeed under Section 253 because negotiations regarding the fee for rights-of-way use had not concluded. Therefore, the court could not determine whether the fee was fair or reasonable. The court found that the proposed terms did not unreasonably discriminate against Omnipoint. Finally, the court held that the Port Authority's objections to installing antennae in the tunnels were permitted management functions under Section 253(c).
1.5.3 FCC Actions
The FCC has oversight and responsibility for ensuring the provisions of the Act are properly interpreted and implemented. In many cases, disputes between a jurisdiction and utility are forwarded to the FCC first for opinion and/or ruling prior to pursuing litigation efforts. Some of the noteworthy actions taken by the FCC are detailed below.
- Petition of the State of Minnesota for a Declaratory Ruling Regarding the Effect of Section 253 on an Agreement to Install Fiber Optic Wholesale Transport Capacity in State Freeway ROW The State of Minnesota sought a declaratory ruling that its plan to grant a provider of wholesale fiber optic transport capacity exclusive access to State freeway rights does not violate Section 253 because the proposal requires the provider, on a competitively neutral and nondiscriminatory basis, to (1) install fiber capacity owned by third parties and (2) make capacity of its own system available through purchase and/or lease to all interested telecommunications service providers. The FCC declined to endorse the agreement because the exclusive nature of the agreement may have the effect of prohibiting the provision of a telecommunications service. The FCC held that Section 253 applied to the agreement but declined to preempt the States' authority to grant the exclusive rights. Instead, the FCC concluded that the provider's implementation of the agreement might mitigate the FCC's anti-competitive concerns. Therefore, the FCC warned that it would scrutinize the agreement's implementation in considering subsequent preemption petitions.
- Public Utility Commission of Texas, Memorandum Opinion and Order The FCC did not preempt enforcement of a state statutory prohibition on provision of telecommunications services by a municipality. Additionally, the FCC held that municipalities are not separate entities from a state for purposes of applying Section 253(a).
- Classic Telephone, Inc., Memorandum Opinion and Order The FCC clarified that to the extent authorized under state law, local governments have authority to require franchises from telecommunications service providers and exercise authority pursuant to Section 253(b). The FCC concluded that the manner in which certain franchise requirements were implemented by the cities in the Classic case was preempted by Section 253(a).
- TCI Cablevision of Oakland County, Inc., Memorandum Opinion and Order The FCC held that the City of Troy, Michigan placed a telecommunications condition on its grant of cable permits in violation of Title VI. Therefore, the FCC declined to preempt the local ordinance pursuant to Section 253.
- Petition for Declaratory Ruling of the Cellular Telecommunications Industry Association (CTIA), Public Notice The FCC tentatively concluded that unlimited moratoria on the siting of wireless telecommunications facilities may constitute an impermissible barrier into the local telecommunications market. The FCC further indicated that Section 253 does not preempt necessarily moratoria of short and fixed terms. Subsequently, the FCC's Local and State Government Advisory Committee and organizations representing the wireless telecommunications industry reached an agreement that (1) establishes guidelines for facilities siting implementation; and (2) adopts an informal dispute resolution process. As a result of this agreement, CTIA withdrew its petition.
1.5.4 State and Local Efforts
Both state and local jurisdictions have exerted efforts to comply with provisions of the Act as it relates to policies and fees assessed for utilization of the ROW. States, for the most part, have implemented Shared Resource agreements which is a public-private arrangement involving the sharing of the public resource of ROW. State transportation departments are very knowledgeable about regulations on safety, utility accommodations and ROW management. However, the policies and fee structures vary from state to state. The same scenario exists for local governments who enter into either a franchise agreement or rights-of-way rental agreement with utilities who wish to utilize the ROW to construct their facilities or conduct maintenance on existing facilities. Fees that are assessed by either the state or local jurisdiction vary.
1.6 Overview of Methods
The two major areas of this manual for potentially beneficial methods for controlling or reducing the frequency of pavement utility cuts are Implementation of Policy and Integration of Technology. This section provides an overview of the methods that will be presented and the general format of the information that is included in this manual. Policy implementation focuses primarily on controlling the frequency of pavement utility cuts, whereas technology integration focuses on methods of reducing their number.
1.6.1 Implementation of Policy
Local governments today are implementing public policy initiatives that are designed to improve the quality of street cut repairs as well as encourage joint use of facilities. Strategies used by these agencies generally fall into three categories: incentives, fees, and regulations. Examples of incentive-based policies include providing financial incentives for:
- Using trenchless technology where technically suitable (and requiring justification for not using trenchless technology when the agency deems it suitable).
- Performing higher quality pavement cut repairs, or for making smaller or less-damaging cuts.
- Coordinating with other utility companies to share trenches or underground resources.
Examples of fee-based policies include:
- Assessing appropriate fees for pavement degradation.
- Assessing appropriate permit fees.
- Implementing a lane rental fee to encourage utility companies to restore traffic as quickly as possible.
- Requiring a deposit prior to beginning work to protect against poor repairs.
- Assessing penalties for non-compliance or for failed repairs within a specified period.
Examples of regulation-based policies include those that do not require fees nor provide incentives, but place requirements on the contractor regarding quality of work, and restrictions on when and where trenching can be done. Examples of this type include:
- Establishing moratorium periods that restrict trenching in new and newly resurfaced pavements for a specified time.
- Requiring the pavement repair to encompass a larger area than simply the area of the trench.
- Enhancing inspections and enforcement of specification requirements.
- Requiring agency-owned utilities to meet repair quality standards and all other policies established for private utility companies.
These strategies, along with examples of in-place policies that have worked for various state and local agencies, will be described in more detail in chapter 1.
1.6.2 Integration of Technology
Just as state and local governments are facing the challenges of dramatically increased demand for access to the public ROW, new technologies are being developed and implemented to reduce the impact to the public and to the national infrastructure.
Chapter 4 in this manual provides a brief description of the technological applications and related methods available and that are currently used in utility construction and maintenance applications. This chapter introduces the various types of trenchless technology with advantages and disadvantages of each method, information on specifications, where applicable, and references to abundant existing information about each aspect of the technology. Chapter 4 also summarizes information obtained from other sources regarding the best application of technology for specific project conditions, and a range of unit costs for each method.
 Section 253(a)
 Section 253(b)
 Section 253(c)
 TCG Detroit v. City of Dearborn, 977 F. Supp. 836 (E.D. Mich. 1997); TCG Detroit v. City of Dearborn, 16 F. Supp.2d 785 (E.D. Mich. 1998); TCG Detroit v. City of Dearborn, 206 F.3d 618 (6th Cir. 2000)
 AT&T Communications of the Southwest, Inc. v. City of Austin, 975 F. Supp. 928 (W.D. Tex. 1997); AT&T Communications of the Southwest, Inc. v. City of Austin, 40 F. Supp.2d 852 (W.D. Tex. 1998)
 AT&T Communications of the Southwest, Inc. v. City of Dallas, 8 F. Supp.2d 582 (N.D. Tex. 1998); AT&T Communications of the Southwest, Inc. v. City of Dallas, 52 F. Supp.2d 756 (N.D. Tex. 1998)
 BellSouth Telecommunications, Inc. v. City of Coral Springs, 42 F. Supp.2d 1304 (S.D. Fla. 1999)
 Bell Atlantic-Maryland, Inc. v. Prince George's County, 49 F. Supp.2d 805 (D. Md. 1999); Bell Atlantic-Maryland, Inc. v. Prince George's County, 212 F.3d 863 (4th Cir. 2000)
 Omnipoint Communications, Inc. v. The Port Authority of New York and New Jersey, No. 99 Civ. 0060(BJS), 1999 WL 494120 (S.D.N.Y. July 13, 1999)
 Petition of the State of Minnesota for a Declaratory Ruling Regarding the Effect of Section 253 on an Agreement to Install Fiber Optic Wholesale transport Capacity in State Freeway Rights-of-Way, Memorandum Opinion and Order, 14 FCC Rcd. 21,697 (1999)
 Public Utility Commission of Texas, Memorandum Opinion and Order, 13 FCC Rcd. 3460 (1997) review denied sub nom. City of Abilene v. FCC, 164 F.3d 49 (D.C. Cir. 1999)
 Classic Telephone, Inc., Memorandum Opinion and Order, 11 FCC Rcd. 13, 082 (1996), appeal filed sub nom. City of Bogue, Kansas v. FCC, No. 96-1432, 1997 WL 68331 (D.C. Cir. Jan. 14, 1997)
 TCI Cablevision of Oakland County, Inc., Memorandum Opinion and Order, 12 FCC Rcd, 21,396 (1997), partial recons. Denied, Order of Reconsideration, 13 FCC Rcd. 16,400 (1998)
 Petition for Declaratory Ruling of the Cellular Telecommunications Industry Association, Public Notice, 12 FCC Rcd. 11,795 (1997); Agreement of FCC Local and State Government Advisory Committee, the Cellular Telecommunications Industry Association, the Personal Communications Industry Association and the American Mobile Telecommunications Association, 1998 WL 442941 (Aug. 5, 1998)
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