The Day the FCC Took Broadband out of the Right of Way

Communications infrastructure in right of way

The use of public right of way is regulated by local or state government subject to local and state laws. Typically if a utility wants to install infrastructure in the public right of way, it must apply for and obtain a permit from the  government agency which has jurisdiction over the right of way. The installation and use of that infrastructure is then subject to the terms of that permit. Sometimes the issuance of the permit and the use is also subject to a franchise agreement negotiated between the local government and the utility. Utilities are also installed in utility easements which are designated on recorded plats of subdivisions. Private property owners typically own the underlying land which is subject to this easement. And the installation of the utillity in these easements is regulated by the local government through a permit and sometimes a franchise agreement. There have been additional regulations imposed through telecommunications acts. Often local government is restricted by these state or federal laws on the level of regulation that can be imposed on a public utility. Due to the telecommunications laws I have never heard of a use that was denied and instead have heard of court cases forcing cities to allow broadband companies to install their equipment in the right of way even when that installation was opposed by the city and the public.

Because the right of way and public utility easements are limited in area and because they are designated for public use, private parties are usually not granted permanent use of the right of way. Occasionally, limited uses are allowed such as street seating for restaurants or dog fences or sprinkler systems. In the case of use by a private entity, a legal agreement between the private entity and the local government is executed to permit the use. The local and state government has much more ability to charge fees and establish parameters for the use of public right of way when the applicant is not a utility or telecommunications company.

Keeping all that in mind, I can't help but wonder what will be the consequences of the FCC's net neutrality decision. From what I understand the premise of this action is the FCC is no longer going to define broadband companies as utilities and telecommunications. It appears instead the FCC's official position will be broadband companies are providing information services. Currently all of the major broadband companies have significant infrastructure in the right of way. Does this removal of a designation as a utility/telecommunication company mean local and state government can now regulate them as a private company? How about charge annual fees for use of the public right of way? And what about the infrastructure in public easements on private property? Is it legal for the company to keep its infrastructure in that utility easement? Can private property owners demand removal or payment? The next time a broadband company tries to install its Internet related equipment in my community, will the court again force the city to allow its installation as it did last time? Or since it's no longer a utility or telecommunication company, will the city prevail at denying the company access to the right of way?

With all the discussion online about the upcoming FCC decision, I've been surprised to see only one article touching on these issues and questions. The author of that article, "Ajit Pai's Net Neutraility Shell Game," suggested this reclassification will not take place and that this action by the FCC is only a ploy to force lawmakers into a position to concede even more power to broadband companies through additional telecommunication legislation. But if the FCC does end up moving forward with what they propose, I would expect eventually some local agency will test the legality of a broadband company's right to occupy the right of way. And if that litigation is found to have merit, permitting of right of way becomes a whole new playing field. 


2011 APWA Conference – Day 2

Below is a report of the 2nd Day of the National APWA Conference:


General Session: Becoming a Community Builder – Leadership in Changing Times

Denver Colorado Sept 2011

Day two of the 2011 APWA conference started with a general session, Becoming a Community Builder – Leadership in Changing Times, with keynote speaker, Ian Hill. He began by sharing his background and how he came to be involved in helping the public works profession develop leadership. Hill admitted he used to be a typical person who thought culverts, roads, and stuff like that just happen. But since getting involved in our profession he has managed to interview and spend time with thousands of people in public works. And after hearing his talk, I believe he has managed to find the pulse and heart of our community. When he described how we work so hard with such commitment, belief in our mission and communities, and dedication to our jobs, then one day get smacked down "into the cement" at a public meeting or stabbed in the back by others in our workplace, I thought "how can he know exactly what happened to me!?" But I quickly realized everyone else in the room was relating to this too. Yet, the inspiring part of our profession is that we all managed to get back up, and here we are again focused on figuring out how to improve ourselves and what we do so we can go back home and continue to make our communities even better.

This is one of the reasons I believe it is so important to maintain a membership in an organization like APWA and spend time with each other. Yes, the organization offers great information to use at our jobs and share with co-workers. But when you work in a profession that is constantly under scrutiny and bears so much criticism, most times completely unwarranted, you need to have opportunities to reach out to others who can relate and share your experiences. This networking also helps us figure out how to motivate others in our field who are also "battered and bruised" by the constant bashing of public employees. Because as Hill pointed out, that is one of the challenges of our jobs. How do you lead people who work hard everyday but continually hear from the press the message that they are bad, lazy, worthless public employees who don't deserve the salary or benefits they've earned? How do you walk in each day and ask them to give it their all? Hill said "we need to ask ourselves what is the leadership approach required for the environment today?"

Right of Way Permitting – City of Hamilton, Canada

The next session I attended was about right of way permitting. Although we don't issue a lot of right of way permits each year – probably under 100 – it would still be nice to have a system other than a spreadsheet to track them. So I went to the session to learn more about ROW permitting systems. The presentation was given by Gordon McGuire who works for the city of Hamilton, a city in Canada of approximately 500,000 people. McGuire discussed their system which is built on a combination of Oracle Go360, Bentley Map, and PRISM. In his community, the city handles all restoration and bills the utility. Some of the interesting points for me were that Canada has realized that utility installations cost tax payers money. This is because many times we have to change our plans or pay the contractor more money to deal with non-city utilities.


Bus Rapid Transit

Our county has been studying the implementation of a BRT route along one of the major corridors through our city. So, in the afternoon, I attended a talk about Bus Rapid Transit. The talk was given by Sharon Humphreys, senior project engineer with Bureau Veritas. She primarily talked about the BRT route that was created in San Diego. This project was financed through a ½ cent gas tax. The BRT is administered by the San Diego association of governments. However, MTS will eventually own, operate, and maintain the system.

The buses serving their BRT were designed for swift passenger loading with multiple streams. The vehicles are 35 feet in length and have enhanced wheelchair access. They run on a gasoline-hybrid propulsion system and are equipped with an AVL unit with GPS.

Signals along the route are set up to allow for queue jump lanes so the busses run in separate lanes. If the bus is running behind schedule, this allows for the bus to get an early green ahead of the other traffic. But the early green is not given if the bus is on time.

In their experience the BRT has been very successful. She suggested it was important to plan for BRT in areas of high congestion, large number of riders, and expensive parking facilities. But a key aspect of their system that probably ensures its success is that it runs through and serves the University of California with three of its 17 stops on campus property. So I imagine there was a high potential for student ridership that other communities might not have.


International Stormwater BMP Database

Stormwater always seems to be a hot topic in public works. So another session I attended was about the International BMP Database. The main presenter was Jane Clary from Wright Water Engineers. She explained the history of the database – it was initially funded by the USEPA via the Urban Water Resources Research Council of ASCE. But now, it is supported by a broad coalition led by WERF. The project’s central focus is to “gather technical design and performance information to improve BMP selection and design.”

The database is set up so that anyone analyzing performance of BMPs can submit data to the site. It currently has data representing a total of 470 BMPs. Clary went through a couple examples of how to search for a BMP and access the related data. Much of the information seemed to be presented in “box plots.” These graphs indicate the probability of success for that BMP. The data related to each BMP can be downloaded for later analysis.



Think We Don’t Need to Teach Local Government in School? Read This!

A few days ago, I noticed a Tweet indicating someone was extremely angry about a video on YouTube. Normally I would not click on something like this, but for some reason I followed the link and found myself watching a man who was very upset that the “government” was pulling out a basketball pole in the street on which he lived. What was even more interesting were the comments that followed. They along with the video serve as a perfect example of what happens when we fail to teach information about local government in high school. If more people understood government and their own responsibilities the response to this would have been very much different. We would not have allowed ourselves to be manipulated by journalists angling for a story for more readers.

Let’s get into the analysis of just what is going on here:

The Uploader
First the video, which is 4:05 minutes in length, seems to have been posted by what appears to be a professional news agency, The editor and camera person is Daniel Sato. The company’s website identifies DelawareOnline as “Part of The News Journal Media Group.” Looking further into this, the News Journal online paper identifies itself as owned by Gannett. Based on all that, you would think professional journalists would have definitely researched a story like this to make sure they accurately conveyed the news. And even Gannett’s website claims “everything from our trusted brands. . .” Unfortunately, after looking into the whole situation more deeply, it appears to just be another example of journalists becoming sensationalists – doing whatever it takes to get readers instead of seriously reporting news. And focusing on their favorite target – the government.


The Opening Act

So onto the video: it begins with John McCafferty explaining how DelDOT was removing basketball poles from his neighborhood. He claims the pole near his home was there for 60 years. The video also shows his wife perched on top of the basketball pole – he claims she climbed up there because the trucks had come to take the pole. While he is explaining, the trucks return. This is the first apparent break in the video, and it occurs at about 1:23 minutes in.

DelDOT Arrives

A representative from a government agency arrives. She explains how they had notified him by certified letter that he needed to remove the pole. His answer was that he had responded to the letter, as did his state representative – however, based on the pole still located along the road, it’s obvious he did not comply with the terms of the letter. There is another break about 1:51 minutes in. The woman asks him to move the car he has parked in front of the pole. He does not immediately comply and indicates his wife will go back up the pole. The woman makes it clear Mr. McCafferty and his wife could be arrested if they exhibit disorderly behavior. There is another break in the video at about 2:13. They then have a discussion about allowing him to keep the pole. However there is another break in the video at 2:33.

The Crew Moves In

At this point the DelDOT crew moves in to remove the pole which is located about one foot behind the back of the curb. Meanwhile Mr. McCafferty yells to the crew throughout the process. It’s difficult to determine if there are breaks in the video during this operation. It becomes apparent that the crew is taking the pole and not leaving it with Mr. McCafferty. He becomes very agitated at this point because he indicates he has been lied to and told he can keep it. Now they are telling him he has to come to their place to pick it up. He is told to go into his home at that point. There could be another break around 3:14 when the camera shows his wife come out of their home. Mr. and Mrs. McCafferty yell at the crew from the front of their home. Mr. McCafferty indicates the first amendment gives him the right to say what he wants. There could be more breaks as the camera follows the crew’s trucks as they leave the area.

Violence and Misunderstanding

The response in comments and on the web are amazing. The majority believe the state has broken the law, taken something that was legally McCafferty’s and located on his private property. They feel he had rights to have the pole there. Some indicate he should sue the state and has every right to do so.  Of course there is the typical blaming of liberals and conservatives for it all. What is worse are the numerous statements trashing the state representatives and many advise violence be taken as a solution against the government and their representatives.

Some Background Facts

Because I work in government and have had to deal with things like this, I realize no one really knows exactly what is going on unless they actual research all factors in this situation. And because the camera person edited what he wanted us to see, I cannot know what happened that he did not share with us. Anyway, while I cannot know every detail, I did some research – obviously more than the many people who are emotionally reacting to this and found out some information. Information the “professional journalists” failed to either find or share:

The Pole is Not on His Property

109 Hilldale Ct in New Castle County, Delaware

I did a search for John McCafferty and found only one living in that community on a cul-de-sac. Here is a screenshot of the property highlighted in red. If this is the correct property, it appears the basketball pole, which was installed one foot off the curb in public dedicated right of way, is not on his property. It almost looks like it is in front of his neighbor’s property, but this is difficult to tell for sure. So here is the first misconception most people don’t understand – you do not usually own the sidewalk or the land between the sidewalk and the road. And it appears in this case, if this is in fact the correct location, Mr. McCafferty does not. Based on the comments on YouTube, most others didn’t realize this could be a possibility.

We are Not Allowed to Place Permanent Objects in the Right of Way

Normally we have no rights to place permanent objects in the public right of way unless allowed to do so by the laws of our communities. In this particular case, DelDOT appears to have jurisdiction and ownership of the area in which the pole was located. And they recently passed a law regulating what can be placed in this area, normally called the clear zone. They even had brochures and other public relations material printed up to let people know about this law.

Safety is a Factor

The clear zone is important in road design to ensure safety. Should an accident occur, negligence on the state’s part to regulate their laws over this area could result in the state becoming liable. Some commenting tried to bring up the safety element, but most laughed it off. It makes me think of the old saying, “it’s all fun and games until someone gets hurt.” Most people focused on only someone getting hurt playing basketball, but I’ve seen instances where people lose control of cars on quiet back roads like this, go off the road, hit some object like this, and are killed. Local government is sued on a regular basis due to people who experience accidents – even if caused by no fault of the government. So people who work for government have an obligation to protect the public interest by following the law and not being negligent. And a child could be hit here – do we really as a community want to encourage our children to play in the street? The video even shows that the family is also comfortable with climbing up on the pole – definitely not a safe action or good behavior for children to witness.

The other part of this that a lot of people don’t realize is that the right of way is often where utilities are placed. I can’t say in this case there is phone, cable, gas, or sewer under the grass in that area, but there’s a good chance there could be. And in places other than this particular one, there could also be water mains. This is another reason the public right of way is usually kept clear of permanent objects. Not only can they be damaged by installation of poles, but it becomes a hazard if crews need to move in to repair damaged utilities.

John’s Lived There for Five Years

The other item of note about John’s property, if this is the correct location, is that the home in which he lives was built in 1959. Perhaps the hoop was put up before homes were built there, but it isn’t quite the 60 years he threw out there. I’ve had some responsibility for metal poles over the years in our parks and can say that pole is in great shape for a 60 year old pole. Anyway, John bought the home on 9/30/2005 so has only lived there a little over five years. But perhaps he grew up in that area and therefore knows the history of the pole.

We Can’t Do Whatever We Want

Another facet of all this is the perception that because we live in the “United States of America” we can do whatever we want. The truth is while we have some rights, we give up those rights when we don’t abide by the laws set by our elected officials. When we move into a community we must follow the rules of that community. We don’t get a choice of what laws to follow, and we cannot interpret those laws to suit our own purpose. However, if we don’t like it, we are free to move along and look for another community that might have laws we like better.

Two Solutions:

Although there’s probably a lot more to dig into here, I am finishing up by first addressing the attitude expressed by many in the comments that the answer to this is to rape, maim, or kill government personnel. That somehow the crew that showed up was personally responsible for making that law. But instead laws are approved by our elected officials who introduce and vote on them at the request of us! So someone asked for the law that says they cannot have basketball poles in the public right of way. If for some reason the majority of the public now decides they are perfectly happy having these poles in the right of way, encouraging their children to play in the road, and paying any and all legal fees for any subsequent lawsuits brought about due to their placement in this area, well then all they need to do is petition their elected officials to change the law. And some who commented did suggest contacting elected officials.

The other solution which seems so very much easier to me and doesn’t involve the entire state working themselves into a frenzy, taking up legislators’ time over basketball hoops, and removes any and all liability from taxpayers is to just have John and his wife install a basketball hoop on their own property. What is so amazing to me is that this very obvious, simple, and practical solution is not even thought of by the majority of people. Is it right that our first reaction as a country is to spend all this time and energy getting upset, contacting legislators, writing papers, threatening government workers, pounding chests about perceived rights, etc instead of just saying “Hey, John, maybe you can just put it on your own property?” And if that many people feel that strongly about it, maybe they can send him a donation so he can buy a new one and hire someone to install it on his own property.