Providers, Regulators Vie for Consistent Broadband Permitting

As communities and service providers look to meet critical Broadband Equity, Access, and Deployment (BEAD) Program timelines, getting permit approvals has never been more pressing.

Marissa Mitrovich, vice president of public policy for the Fiber Broadband Association (FBA), says that “dysfunctional” permitting processes are preventing more broadband networks from being built promptly because of a lack of cohesion among federal, local and state agencies. “There are too many Americans without access, which hurts [the U.S.] economy,” she says. “Upgrades can’t happen when multiple agencies are engaging and there’s no coordination.”

Cheri Beranek, CEO of Clearfield, agrees and adds that the challenge becomes even greater in a market in which competitors are trying to offer new services. “Because there are hundreds of fiber broadband projects going on today, there’s a supply and demand challenge,” she says. “There is a huge demand for permitting and a lack of supply in the number of people available from these communities [to help process permit requests].”

The permitting process would be easier – especially for small providers – if one primary agency oversaw permitting processes.

 

Congress Acts

Congress is taking action to help ease permitting processes. Led by House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Communications and Technology Subcommittee Chair Bob Latta (R-OH), Congress held its “Breaking Barriers: Streamlining Permitting to Expedite Broadband Deployment” hearing in April.

The hearing featured testimony from representatives from various industry advocacy groups: Michael Romano, executive vice president, NTCA–The Rural Broadband Association; Michael Saperstein, senior vice president of government affairs and chief strategy officer, Wireless Infrastructure Association (WIA); Michael O’Rielly, president, MPORielly Consulting; Louis Finkel, senior vice president of government relations, National Rural Electric Cooperative Association (NRECA); and Ernesto Falcon, senior legislative counsel, Electronic Frontier Foundation (EFF).

In May, the Energy and Commerce Committee advanced seven bills to streamline broadband permitting, expedite deployment and reauthorize the FCC’s Spectrum Auction Authority.

“To deploy broadband, providers need to go through burdensome permitting processes at the federal, state and local level, and the time to receive approval on a permit can range from several months to several years,” McMorris Rodgers said in a statement. “Our legislation would cut the red tape and ensure this money can quickly reach rural, unserved Americans.”

Advocacy groups participating in the hearing raised concerns regarding shortened review timelines and costs. The EFF pointed out that the costliest parts of deploying networks are the sunken costs that come with public works and rights of way, making up about 60–80 percent of network deployment. “With fiber optic infrastructure, getting it right the first time will provide a community with capacity that will last for decades because future advancements in speed will only require changes in hardware, not additional construction,” said Falcon. “Understandably, shot clocks with deem-granted provisions are attractive and the EFF has heard of certain instances [in which] a city or incumbent pole owner is dragging their feet on approving a permit even for routine matters.”

Another critical issue the hearings emphasized was reducing costs for providers. Railroad crossings have been a costly factor in permitting processes. NTCA shared that one of its members sought to install fiber in a public right of way adjacent to a state highway that intersected with a railroad crossing at a single point. Initially, the railroad line quoted the provider to place fiber beneath 15 feet of the railroad line along a state highway for $19,000. The costs included a permit fee, an application fee, an “engineer mobilization” fee, and $2,500 for a flagger/observer – in addition to costs needed for additional insurance beyond that otherwise carried for the project.

NTCA’s Romano said these costs were just for the railroad crossing fees and did not include network construction. “Ultimately, the intervention of a local economic development office helped in reducing the fees to $12,000 – and, after all this process and cost, the fiber was deployed for the 15 feet under the railroad crossing along the state highway without ever touching the railroad assets,” he said.

Calling for Coordination

When providers build networks, particularly those that cross local and federal lands, getting approvals and timelines coordinated between different agencies is challenging.

EFF’s Falcon advocates streamlining the permitting process. He said that an ideal scenario, particularly for smaller providers, is to work with one primary agency that can oversee the permitting process.

“[Small providers] would benefit significantly if it were clear there was some ‘lead’ agency responsible for the timely permit resolution,” he said.  

Members of NRECA and NTCA cited various examples of cases in which there is a need for coordination on federal permitting. NRECA’s Finkel said that the existing federal permitting process is too long and costly and an “impediment” to broadband providers trying to serve consumers and communities. “The federal environmental review and permitting process must be modernized to give more certainty and predictability as electric cooperatives and other internet service providers build networks to connect homes, families and communities across the country,” he said during the Congressional hearing.

He pointed out that National Environmental Policy Act (NEPA) regulations are a crucial issue for NRECA members. He said the regulations often delay projects and drive up costs for electric cooperatives deploying broadband in rural areas. Several rural communities NRECA member cooperatives serve are located near federal lands controlled by the Department of the Interior, U.S. Forest Service, or Army Corps of Engineers.

Finkel said a lack of consistency in reviewing permits caused delays that dissuaded some providers from bringing broadband to rural areas. “[Though] all major federal property managing agencies can use the SF-299 as the common application form to authorize permits for communications facilities, these federal agencies have different missions, rules and regulations governing private use of their public lands,” he said. “Even within the agencies themselves, co-ops have experienced differing application of the rules when dealing with one regional or state office over another.”

NTCA’s Romano agreed and added that NEPA poses challenges for its rural provider members. Rural providers often must install fiber under roads that touch a Bureau of Land Management (BLM) or Forest Service property. This is because rerouting even small portions of a project in a rural area poses challenges, including the possibility of encountering impassible terrain and obtaining easements on privately held land.

“Members sometimes recount delays of up to two years to obtain permissions through the environmental, historic preservation, and consultation processes involved with NEPA and [National Historic Preservation Act] NHPA,” Romano said. “Indeed, even if a project touches federal land for only a short distance as part of a larger deployment – or not at all in some cases – the entire project can still be delayed by the need to obtain approvals for the part under an agency’s purview.”

Boosting Education, Staffing

Given that the number of requests for permits will continue to rise as BEAD Program allocations are disbursed, more staff will be needed to process permitting applications.

Falcon said that workforce issues remain a challenge to speeding up permitting processing timelines. “The lion’s share of the challenge is likely [caused by] the lack of resources and staff available to process the volume of incoming requests,” he said.

One NTCA member company in a large Western state shared that the BLM had only two staff people to process applications. “As tens of billions of dollars flow into much-needed broadband deployment efforts in the next few years, the workflows to review permit applications likely will become more overwhelming and could lead to even greater delays and costs,” said NTCA’s Romano. “We must ensure that these agencies and offices have the resources and skill sets needed to meet this demand.”

Government agencies also need more staff to facilitate communication between permitting offices and agencies. Romano said NTCA members report that “communication with permitting offices and agencies can fall silent for long periods regarding the status of applications or what else might be needed to deem an application ‘complete,’ despite repeated inquiries by providers and their engineers and contractors.”

FBA’s Mitrovich agrees that though more emphasis on training and hiring more people to process permits is needed, the submission process also must be updated. Today, in many cases, service providers must submit paper forms. “FBA would love to see some of our members apply electronically,” she says. “We need another option for many people to have an electronic way to submit forms.”

Collaborating with Communities

As service providers continue to push into new communities, they seek to find common ground with towns and cities as partners. Google Fiber, for one, was an early pioneer in working with cities and towns to iron out license agreements and get permitting elements in place in exchange for delivering its fiber broadband service.

Still, the reality is that franchising and permitting processes vary by community.

Lumos Networks, which is expanding its fiber presence in Virginia and North Carolina, has poised itself as an overbuilder to bring fiber to underserved communities. For example, the provider recently inked a deal to bring fiber internet to Johnston and Harnett counties in North Carolina. Through partnerships, Lumos said it plans to be a community corporate citizen, bringing residents economic development and connectivity.

Derek Kelly, vice president of market development for Lumos Fiber, says the best approach is to work with communities to understand their needs best. “The franchising looks different in each state and can even look different from city to city,” he says. “South Carolina has a pretty favorable regulatory climate because there are guardrails on what cities can and can’t do, and we figure out what’s important to the city and how it can help us.”

He emphasizes that Lumos works with communities as a partner. “We don’t want to dump too much work on them, but working together is the best way to navigate the permitting process.”

Ting echoes that perspective. Since launching in Charlottesville, Virginia, in early 2015, the nationwide internet service provider has grown and operates in seven states nationwide.

By crafting a detailed plan with a community, Ting can ease the permitting process. “We work with a city to refine plans and then review the detailed plans to create a backlog of approved permits so that we take the pressure off of both Ting and the municipality,” says Jason Smith, vice president of Ting Internet. “It is better to spend an extra month or two getting a plan in place.”

Sean Buckley

Sean Buckley is the editor-in-chief of Broadband Communities. You can contact him at sean@bbcmag.com.