Improving Rights-of-Way Management

Across Federal Lands:

A Roadmap for Greater Broadband Deployment

# 

# 

# Report by the Federal Rights-of-Way Working Group

> **April 2004**

![](media/image1.wmf){width="1.75in" height="1.7486111111111111in"}

**U.S. DEPARTMENT OF COMMERCE**

**National Telecommunications and Information Administration**

ACKNOWLEDGMENTS

The Federal Rights-of-Way Working Group would like to express our
sincere gratitude to all of the individuals and organizations within the
different federal agencies that participated in the Working Group and
contributed to this report. In addition to performing their regular
duties, the Working Group participants volunteered considerable time and
effort in developing the report's recommendations for improving
rights-of-way policies, procedures, and practices across federal lands.
We could not have produced this report without all of their dedication
and hard work.

The Working Group also would like to extend our thanks to the many
industry representatives, members of local, state, and tribal
governments and associations, and advocacy groups that provided their
suggestions and input. We greatly appreciate their willingness to
candidly share their insights and experiences with the Working Group.

# 

# The Federal Rights-of-Way Working Group

[U.S. Department of Agriculture]{.underline}

*Forest Service*

Melissa Hearst

Randy Karstaedt

Tim Quinn

[U.S. Department of Commerce]{.underline}

*National Oceanic and Atmospheric Administration*

Ted Beuttler

David Chapman\*

Eric English

Helen Golde

Michael Weiss

*National Telecommunications and Information Administration*

Michael D. Gallagher, Chair (Oct. 2003- present)

Nancy J. Victory, Chair (July 2002- Aug. 2003)\*

Meredith Attwell

John Kneuer

Kelly Klegar Levy\*

Maureen Lewis

James McConnaughey

Sandra Ryan

Kathy Smith

Joseph Watson, Jr.

Jack Zinman\*

Josephine Scarlett

[U.S. Department of Defense]{.underline}

U.S. Army Corps of Engineers

Robert Cribbin

William Birney

Randall Wagner\*

*Navy*

Richard Anderson\*

[U.S. General Services Administratio]{.underline}n

Michael Jawer

John Thomas

[U.S. Department of the Interior]{.underline}

*Bureau of Indian Affairs*

Dave Baker

Ron Walker

##### Bureau of Land Management

Ray Brady

David Cavanaugh

Rick Stamm

*National Park Service*

Lee Dickinson

[U.S. Department of Transportation]{.underline}

*Federal Highway Administration*

Janis Gramatins

William Jones

\* Former Working Group Members

[Table of Contents]{.smallcaps}

Acknowledgments

# [The Federal Rights-of-Way Working Group Members]{.smallcaps}

###### Table of Contents

Executive Summary

**[2]{.smallcaps}**

Introduction

**[5]{.smallcaps}**

**[Part I: Scope of Work]{.smallcaps}**

**[9]{.smallcaps}**

[A. Mission]{.smallcaps}

**[9]{.smallcaps}**

B. Activities

**[10]{.smallcaps}**

**[Part II: Laws Governing Rights-of-Way on Federal Lands]{.smallcaps}**

**[12]{.smallcaps}**

[A. Laws Authorizing Rights-of-Way Grants]{.smallcaps}

**[12 B. Laws Affecting Rights-of-Way 14]{.smallcaps}**

[**[Part III: Issues and
Recommendations]{.smallcaps}**](#__RefHeading___Toc46298393)

**[15]{.smallcaps}**

[A. Information Access and Collection]{.smallcaps}

**[15]{.smallcaps}**

1\. Information about Obtaining a Right-of-Way Over Federal Lands

**[16]{.smallcaps}**

[2. Pre-Application Meeting]{.smallcaps}

**[17]{.smallcaps}**

[3. A Single, Standardized Rights-of-Way Application]{.smallcaps}

**[18]{.smallcaps}**

**[B. Timely Processing]{.smallcaps}**

**[20]{.smallcaps}**

[1. Time Frames]{.smallcaps}

**[21]{.smallcaps}**

2\. Identification of a Lead Federal Agency

**[22]{.smallcaps}**

[3. Project Managers]{.smallcaps}

**[23]{.smallcaps}**

[4. Utility Corridor Planning]{.smallcaps}

**[24]{.smallcaps}**

[5. Communications Site Plans]{.smallcaps}

**[25]{.smallcaps}**

**[C. Fees And Other Charges]{.smallcaps}**

**[26]{.smallcaps}**

[1. Cost Recovery]{.smallcaps}

**[27]{.smallcaps}**

[2. Rental Payments/Compensation]{.smallcaps}

**[30]{.smallcaps}**

**[D. Compliance]{.smallcaps}**

**[35]{.smallcaps}**

1\. Ensuring Proper Installation and Maintenance of Facilities

**[36]{.smallcaps}**

[2. Addressing Unanticipated Costs]{.smallcaps}

**[41]{.smallcaps}**

3\. Imposing Penalties for Noncompliance

**[4]{.smallcaps}**

**[2]{.smallcaps}**

Conclusion

**[43]{.smallcaps}**

**[Appendix A]{.smallcaps}**: 40 U.S.C.S. § 1314

**[Appendix B]{.smallcaps}**: Standard Form 299, Application for
Transportation and Utility Systems and Facilities on Federal Lands

**[Appendix C]{.smallcaps}**: Communications Protocol, Lake Chelan
Hydroelectric Project

**[Appendix D]{.smallcaps}**: Office of Management and Budget Circular
No. A-25, Revised

**[Appendix E]{.smallcaps}**: 2003 Communications Site Fee Schedule
(excerpted from Forest Service, FSH 2709.11: Special Uses Handbook,
October 2002 (Chapter 30, "Fee Determination")

**EXECUTIVE SUMMARY**

Broadband, also known as high-speed Internet access, has the potential
to bring new services and products to American consumers and businesses,
fostering innovation, investment, and job-producing economic growth. The
President has recognized the economic vitality that can result from
broadband deployment and has called on our Nation to be aggressive about
the expansion of broadband. On March 26, 2004, the President called for
a national goal of universal, affordable access to broadband by 2007. A
key to widespread broadband deployment is ensuring that broadband
providers have timely and cost-effective access to rights-of-way \-- the
legal right to pass through property controlled by another \-- so that
they can build out their networks across the Nation. In the broadband
context, rights-of-way include access to the conduits, corridors,
trenches, tower sites, undersea routes and other locations that
broadband networks occupy. These passageways often cross large areas of
land owned or controlled by the Federal Government. Thus, effective and
efficient federal rights-of-way policies and practices are critical for
promoting broadband deployment.

## 

## To ensure that the Federal Government's rights-of-way policies and practices facilitate the aggressive deployment of broadband networks, the Bush Administration created a Federal Rights-of-Way Working Group composed of representatives from most of the major federal agencies with land management responsibilities. The mission of the Working Group is to identify and recommend changes in federal policies, regulations, and practices that would improve the process of granting rights-of-way for broadband communications networks on lands under federal jurisdiction. The Working Group is seeking reforms that would not only facilitate broadband deployment, but also improve access to rights-of-way for other interested stakeholders, such as members of industries outside the telecommunications sector. At the same time these reforms are designed to assist federal agencies in efficiently and effectively performing their vital role as the stewards of public lands, while working cooperatively with their counterparts in state, local, and tribal governments.

Based on information gathered from the communications industry, the
federal agencies, state, local and tribal representatives, and other
stakeholders, the Working Group has produced the following report, which
sets forth recommendations in the four main areas below. Nothing in this
report, however, relieves rights-of-way applicants of their obligation
to comply fully with all applicable laws and regulations. The Working
Group recognizes that some agencies have already implemented some of
these recommendations and we commend them for doing so. To make lasting,
nationwide improvements in federal land management, however, we urge all
of the agencies to devote the time and resources to fully implement each
of these recommendations.

(1) Information Access and Collection

    -   Within three months of the release of this report, the
        Administration should set up a central Web portal to be
        administered by the National Telecommunications and Information
        Administration (NTIA) with information about the federal
        rights-of-way permit process and links to all of the federal
        land management agencies.

    -   Within six months of the release of this report, all federal
        land management agencies should update their Web sites to ensure
        that the information is centrally located on a prominently
        displayed rights-of-way home page with agency contact
        information.

    -   By August 2004, all federal land management agencies should
        institute pre-application meetings with potential rights-of-way
        applicants. These meetings, which will occur before an applicant
        files its application, are designed to promote an early exchange
        of information between applicant and agency, resulting in
        better-prepared applications and more timely processing.

    -   By December 2004, all federal land management agencies should
        use a common application form (the existing Standard Form 299)
        as a way to streamline and standardize applications to save time
        and reduce costs.

(2) Timely Process

    -   To prevent undue delay that can increase the costs of deployment
        and cause deferral or even abandonment of a project, the Working
        Group recommends that all federal land management agencies
        institute, by December 2004, specific target time frames for
        completion of various steps involved in the rights-of-way permit
        process. For example, in instances where a pre-application
        meeting has been held, agencies should review an application and
        notify the applicant within 30 days as to whether the
        application is "complete" and accepted for formal review.

    -   Federal agencies should designate a lead agency for projects
        involving more than one federal agency, and by December 2004,
        adopt internal procedures to ensure that such designations
        occur.

    -   Federal agencies should use project managers, who are
        responsible for overseeing all aspects of an application's
        review within an agency, to help ensure timely processing of
        rights-of-way grants.

    -   Federal agencies should encourage the telecommunications sector,
        state, local and tribal officials, and other stakeholders to
        participate in planning and coordination efforts for utility
        corridors and communications sites. In many cases, though not
        all, an applicant can save considerable time and expense by
        using a designated corridor or site rather than breaking new
        ground.

(3) Fees and Other Charges

    -   The Working Group recommends a set of principles, as well as
        specific techniques, for standardizing and simplifying cost
        recovery, fees, and rental payments. It further suggests that
        federal agencies initiate rulemaking proceedings, as necessary
        and appropriate, to develop and implement cost recovery
        regulations that incorporate these recommendations by December
        2004.

    -   For larger inter-agency projects where a lead agency has been
        designated, the affected federal agencies should agree on
        consolidating cost recovery and rental fee duties and placing
        them with the lead agency.

    -   The Working Group recommends greater use of rental fee
        schedules, rather than appraisals, which should result in more
        efficient use of resources, a quick turnaround, and greater
        transparency of the process.

    -   All relevant federal land management agencies that are not
        currently using fee schedules should commence rulemakings, as
        necessary and appropriate, for the purpose of greater use of fee
        schedules in determining rights-of-way rental payments. These
        agencies should initiate these rulemakings by December 2004.

(4) Compliance

    -   Federal agencies involved in granting and monitoring
        rights-of-way should make formal training available to their
        staff, and by December 2004 should establish procedures to
        publicize the availability of such training.

    -   Federal agencies should by December 2004 begin informing
        grantees of the option of hiring reputable third-party
        contractors, who, in conjunction with agency compliance
        monitors, ensure that grantees properly perform planning and
        environmental studies, and initial phase construction work to
        the agency's satisfaction.

    -   Federal agencies should require grantees to submit periodic
        compliance reports, which will facilitate necessary inspections
        and reduce the need for some physical monitoring. Agencies that
        determine a rulemaking is necessary before requiring compliance
        reporting should initiate such a proceeding by December 2004.

    -   By December 2004, any relevant federal land management agency
        that does not recover its monitoring costs should commence a
        rulemaking, as necessary and appropriate, to implement its
        authority to recover such costs.

    -   The Working Group recommends that, where appropriate, agencies
        use their authority to impose reasonable, but adequate, bonding
        requirements to secure fulfillment of a grantee's compliance
        obligations, and initiate any rulemaking necessary to implement
        such a requirement by December 2004.

To ensure that the Bush Administration is responsive to the needs of all
stakeholders, a year after the release of this report, each of the
federal agencies will submit a report to the Office of Management and
Budget (OMB) describing their efforts to implement the recommendations
in this report and listing any steps that still need to be taken. The
improved federal land management processes that ensue from these
recommendations, together with the agencies' commitment to
implementation, will help the Administration take a significant step
forward in meeting its goal of greater broadband deployment throughout
the Nation.

**Introduction**

This report addresses the interaction between broadband deployment and
rights-of-way management \-- two seemingly unrelated issues that, when
taken together, play an important role in the success of this Nation's
technological and economic development. Broadband, also known as
high-speed Internet access, promises great advances in commerce,
education, healthcare, national security, public safety and many other
areas. Access to rights-of-way \-- the conduits, corridors, trenches,
tower sites, undersea routes, and other physical locations that modern
communications networks occupy \-- is a critical ingredient for the
deployment of broadband networks and services. To ensure that broadband
providers are able to obtain rights-of-way in a timely and
cost-effective manner, the Bush Administration formed a Federal
Rights-of-Way Working Group to assess the management of rights-of-way
over lands under federal jurisdiction. The following report contains the
Working Group's findings and recommendations for how the Federal
Government can reform its approach to rights-of-way management to help
bring the promise of broadband to all Americans, while ensuring that
federal land managers fulfill their important roles as stewards of our
Nation's public property.

Broadband communications networks enable the transmission of vast
amounts of information over great distances in a short period of time.
In addition to browsing the World Wide Web at high speeds, broadband
opens new opportunities for telemedicine, access to libraries and
research facilities, the provision of entertainment services, and
countless other services that can boost our economy, improve our
productivity, and enhance our lives. High-speed lines connecting homes
and businesses to the Internet increased by 18% during the first half of
2003, from 19.9 million to 23.5 million lines.[^1] Nevertheless,
broadband technologies are unavailable to some Americans. Accordingly,
the President announced on March 26, 2004 a national goal of universal,
affordable access to broadband technology by 2007.[^2]

In addition to his most recent comments, President Bush has emphasized,
"\[i\]n order to make sure the economy grows, we must bring the promise
of broadband technology to millions of Americans."[^3] The President
noted that "\[t\]he private sector will deploy broadband. But government
at all levels should remove hurdles that slow the pace of
deployment."[^4] The President\'s Council of Advisors on Science and
Technology[^5] (PCAST) examined broadband, holding hearings and issuing
a report setting forth steps that could be taken to facilitate
deployment.[^6] Among other suggestions, PCAST highlighted rights-of-way
management as a critical component of broadband deployment. PCAST noted
that:

> If \[rights-of-way\] access is unfairly denied, delayed, or burdened
> with unjustified costs, broadband deployment is slowed, and our
> citizens are deprived of access to vital communications facilities. .
> . . It should be a priority of this Administration to ensure that
> \[rights-of-way\] issues are dealt with in a balanced manner that
> facilitates prompt \[rights-of-way\] access for broadband networks
> while preserving legitimate government interests to protect public
> health, safety and welfare, and ensuring that government entities are
> fairly compensated for the costs of managing their rights-of-way and
> that disruption of rights-of-way is minimal.[^7]

To ensure that broadband providers are able to obtain rights-of-way in a
timely and cost-effective manner, the Administration formed a Federal
Rights-of-Way Working Group in July 2002 to examine land management
practices across the Federal Government. Led by the National
Telecommunications and Information Administration at the Department of
Commerce, the Working Group includes representatives from most of the
federal agencies with major rights-of-way management
responsibilities.[^8] The primary participants in the Working Group are
from the following federal agencies:

[Department of Agriculture]{.underline}

-   **Forest Service**.[^9] The Forest Service manages public lands in
    national forests and grasslands, totaling approximately 192 million
    acres.

> [Department of Commerce]{.underline}

-   **National Oceanographic and Atmospheric Administration
    (NOAA)**.[^10] NOAA promotes sustainable economic development, jobs
    and prosperity along the Nation\'s coastal areas. NOAA manages a
    network of 13 national marine sanctuaries.

-   **National Telecommunications and Information Administration
    (NTIA)**.[^11] NTIA serves as the President's principal advisor on
    domestic and international telecommunications and information
    technology policies and manages the Federal Government's use of the
    radio spectrum.

> [Department of Defense]{.underline}

-   **Army Corps of Engineers**.[^12] The Army Corps of Engineers
    provides engineering services to the Nation, including planning,
    designing, building, and operating water resources and other civil
    works projects, such as navigation, flood control, environmental
    protection, and disaster response.

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-   **Department of the Navy.**[^13] The Navy holds property for use in
    support of its military mission.

#### Department of the Interior[^14]

#### 

-   **Bureau of Land Management (BLM)**.[^15] BLM administers 261
    million acres of our Nation's public lands, located primarily in 12
    western states. BLM administers approximately 85,000 rights-of-way
    on the public lands, including about 23,000 oil and gas pipeline and
    12,000 electric transmission system rights-of-way. BLM processes
    over 5,500 rights-of-way actions annually.

-   **National Park Service**.[^16] The National Park Service is
    responsible for protecting the Nation's national parks and
    monuments, and conserving the scenery, natural and historic objects,
    and wildlife therein. The National Park System of the United States
    comprises 388 areas covering more than 83 million acres in 49
    States, the District of Columbia, American Samoa, Guam, Puerto Rico,
    Saipan, and the Virgin Islands.

-   **Bureau of Indian Affairs (BIA)**.[^17] BIA is the lead federal
    agency responsible for improving the lives and protecting the trust
    assets of American Indians, Indian tribes, and Alaska natives
    through services and relationships. BIA grants rights-of-way over
    American Indian-owned lands with the consent of the Indian owner
    (tribal or individual).

> [Department of Transportation]{.underline}

-   **Federal Highway Administration (FHWA)**.[^18] The Federal Highway
    Administration, through its Federal Lands Highway Program, provides
    access to and within national forests, national parks, Indian
    reservations, and other public lands by preparing plans, letting
    contracts, supervising construction facilities, and conducting
    bridge inspections and surveys. FHWA also provides funds for
    transportation projects owned and controlled by state departments of
    transportation, and is charged with oversight of how the monies are
    spent and how the resulting roadways are maintained and operated.
    Increasingly, these operational needs involve more use of fiber
    optics for intelligent transportation systems and other
    capacity-improving activities.

> [Independent Agencies]{.underline}

-   **General Services Administration (GSA)**.[^19] GSA obtains the
    buildings, products, technology, and other essentials that federal
    agencies need. GSA provides services to over one million federal
    workers located in 8,300 government-owned and government-leased
    buildings nationwide.

The Working Group brought together most of the major federal land
management agencies to conduct a comprehensive review of federal
rights-of-way policies and practices. The Working Group focused on
streamlining and simplifying rights-of-way management processes, where
possible and appropriate, to meet the needs of communications providers,
as well as stakeholders from other industries seeking rights-of-way
access. At the same time, the Working Group recognized the vital role
that the federal agencies play as stewards of public property, and the
Working Group attempted to improve the federal agencies' abilities to
carry out their missions in an efficient manner. The overarching goal of
this endeavor is to ensure that federal rights-of-way policies and
practices serve to promote broadband deployment for the benefit of all
Americans.

This report reflects many hours of discussion and consensus building by
members of the Working Group. While some of these discussions led to new
approaches to rights-of-way management, we also substantially built upon
the significant efforts and collaboration that BLM and the Forest
Service have already undertaken to build consistency within their
rights-of-way programs and to implement management practices that work
well, result in a better use of agency resources, and are supported by
industry. Part I of this report describes the scope of the Working
Group's mission and activities. Part II briefly discusses the major
federal statutes that govern rights-of-way management. Part III
delineates the issues that the Working Group addressed and provides the
Working Group's recommendations, together with suggested implementation
strategies.

### 

**Part I: Scope of the Working Group's Mission and Activities**

A.  [Mission]{.underline}

## 

## The mission of the Working Group is to identify and recommend changes in federal laws, regulations, policies, and practices that would improve the process for obtaining rights-of-way for the deployment of broadband networks on federally-owned or federally-controlled real property. In fulfilling this mission, the Working Group attempted to strike an appropriate balance between two sometimes competing interests: (1) the telecommunications industry's desire to build out broadband networks in a timely and cost-effective manner; and (2) the federal land managers' responsibility to ensure appropriate use of public land. In balancing these interests, the Working Group sought reforms that would provide industry with a more customer service oriented experience while concurrently allowing federal land managers to operate more effectively and efficiently. In general, these reforms are aimed at streamlining, standardizing, and simplifying rights-of-way management across all of the relevant federal agencies. When implemented by the agencies, the Working Group expects the reforms to reduce burdens on industry, shorten construction time on projects, allow agencies to use their resources more efficiently, and facilitate the delivery of more broadband services to American consumers and businesses.

Although the Working Group focused on reforms aimed at promoting
broadband deployment, the Working Group expects that our recommendations
will improve rights-of-way management for the telecommunications
industry as a whole, as well as other industries that require access to
rights-of-way on federal lands, such as the energy industry. Indeed, the
majority of the Working Group's recommendations are designed to improve
rights-of-way policies, procedures, and practices that should benefit
all rights-of-way stakeholders.

B. [Activities]{.underline}

As part of its research and policy development, the Working Group
conducted a series of outreach meetings and informal discussions with
stakeholders. [^20] Specifically, the Working Group met with the
following stakeholders:

-   Industry representatives, including incumbent local exchange
    carriers, competitive local exchange carriers, telephone
    cooperatives, wireless providers, satellite companies, cable
    companies, trade associations, the TelROW Coalition, and the
    International Rights of Way Association;

-   State, local, and tribal officials and associations, including the
    National Association of Regulatory Utility Commissioners (NARUC),
    National Association of Telecommunications Officers and Advisors
    (NATOA), National League of Cities, National Association of
    Counties, U.S. Conference of Mayors, Local and State Government
    Advisory Committee, American Association of State Highway and
    Transportation Officials (AASHTO), American Public Works Association
    (APWA), Coastal States Organization, representatives of state public
    utility commissions, and representatives of the Navajo Nation; and

-   Environmental protection, historic preservation, and other
    stakeholder groups.

Based on information gathered from all of these stakeholders, as well as
our own research, the Working Group focused its efforts in four basic
areas:

(1) Information Access and Collection: Broadband providers operating
    across multiple jurisdictions are often required to supply the same
    information in different applications to numerous permitting
    authorities. The Working Group looked for ways to streamline and
    standardize applications to save time and reduce costs.

(2) Timely Process: Broadband providers have an important need to obtain
    rights-of-way permits on a timely basis. Otherwise, undue delay can
    increase the costs of deployment and can sometimes prevent
    deployment altogether. The Working Group examined practices that
    could ensure timely and appropriate action on rights-of-way
    applications.

(3) Fees: The nature and amount of fees charged to broadband providers
    vary widely across different agencies. The Working Group scrutinized
    various fee structures, looking for approaches that are appropriate
    and reasonable, and that do not unfairly impede the deployment of
    broadband networks.

(4) Compliance: Rights-of-way managers have a legitimate interest in
    ensuring that broadband providers take appropriate action to plan,
    permit, construct, operate, and maintain the rights-of-way. The
    Working Group looked for examples of remediation and maintenance
    requirements that accomplish those important objectives without
    placing undue burdens on broadband providers.

The Working Group divided itself into the following three committees to
tackle the issues: the information collection and timely process
committee, the fees committee, and the compliance committee. Each
committee closely examined current federal rights-of-way practices and
policies, and looked for ways to improve those practices and policies.
The Working Group placed great emphasis on reaching consensus wherever
possible on our recommendations, which are set forth in Part III below.

The Working Group recognized that some stakeholders suggested additional
rights-of-way issues for our consideration, such as compliance with
environmental and historic preservation laws, known as the National
Environmental Policy Act (NEPA)[^21] and the National Historic
Preservation Act (NHPA).[^22] Although these issues are important, they
are beyond the scope of this report, and the Working Group addresses
them only to the extent that they relate to the four general issue areas
described above. The Working Group also observes that other expert
stakeholders are actively engaged in addressing NEPA and NHPA issues.
For example, the White House Council on Environmental Quality (CEQ) has
established a special NEPA Task Force. Created on May 20, 2002, the NEPA
Task Force reviewed the current NEPA implementation practices and
procedures in a variety of areas and made recommendations to the CEQ for
improving the NEPA process based upon the information collected and the
public comments received.[^23] The recommendations are posted on the
NEPA Task Force's Web site.[^24] The Task Force intends to publish a
separate report presenting best practices based on the case studies it
evaluated.[^25]

Part II: Laws Governing Rights-of-Way on Federal Lands

A variety of laws govern rights-of-way on federal lands. Several laws
specifically authorize Federal Government agencies to approve private
parties' access to federal lands for a wide range of purposes. Other
laws contain environmental protection, historic preservation, and other
requirements that impact rights-of-way on federal lands. In order to
provide context for the recommendations in Part III of this report, we
offer the following overview of the major laws governing rights-of-way
on federal lands.

# 

# A. [Laws Authorizing Rights-of-Way Grants]{.underline}

By virtue of the almost one-half billion acres of public and forest
lands that it governs, the Federal Land Policy Management Act of 1976
(FLPMA) is the most significant of the laws authorizing federal agencies
to grant easements and other rights-of way.[^26] The FLPMA empowers the
Secretary of the Interior, for "public lands,"[^27] and the Secretary of
Agriculture, for National Forest System lands, to grant, issue, or renew
rights-of way for a variety of facilities, including "systems for
transmission or reception of radio, television, telephone, telegraph,
and other electronic signals, and other means of communication."[^28]
The Act requires that each right-of-way grant contain terms and
conditions that will, among other things, "minimize damage to scenic and
esthetic values and fish and wildlife habitat and otherwise protect the
environment."[^29] The Secretaries of these agencies may also impose
such terms and conditions deemed necessary to "protect Federal property
and economic interests."[^30] Other provisions of FLPMA describe the
Secretaries' ability to: promulgate regulations; require advance rental
payments; and impose bonding requirements, among other duties.[^31]

For federal lands not covered by FLPMA, Congress has also provided
executive branch agencies with authority to grant rights-of-way on
federal lands within their control. Specifically, Public Law No.
87-852,[^32] as recodified in Public Law No. 107-217,[^33] gives
executive branch agency heads the authority to grant for real property
controlled by his or her agency:

> an easement that the head of the agency decides will not be adverse to
> the interests of the Government, subject to *reservations, exceptions,
> limitations, benefits, burdens, terms, or conditions* that the head of
> the agency considers necessary to protect the interests of the
> Government . . . . [^34]

Significantly, the law specifically grants executive branch agency heads
the discretion to impose terms, conditions, or even burdens on the
easements, if such measures are necessary to project government
interests. The statutory subtitle that includes Public Law 87-852, as
codified, states that one of its purposes is to provide the Federal
Government with an "economical and efficient system for . . . \[u\]sing
available property."[^35] Except as restricted by limitations not
relevant here, the statute supplements executive branch agencies' powers
under other laws.[^36]

In addition to FLPMA and Public Law No. 87-852, other more specific laws
may provide rights-of-way authority to a particular agency. For example,
the National Marine Sanctuaries Act[^37] allows NOAA to issue special
use permits for specific activities in a national marine sanctuary if
the Secretary of Commerce determines authorization is necessary to
"establish conditions of access to and use of any sanctuary
resource."[^38] The Secretary may assess fees for such special
permits,[^39] as well as suspend or revoke permits, and assess civil
penalties for violations of any term or condition of the grant.[^40]
This Act also requires permit holders to submit to the Secretary annual
reports describing the activities conducted under the permit and the
revenues derived from such activities.

# B. [Laws Affecting Rights-of-Way]{.underline}

Although not directly authorizing federal agencies to grant
rights-of-way, laws such as the National Environmental Policy Act
(NEPA),[^41] the National Historic Preservation Act (NHPA),[^42] and the
Endangered Species Act (ESA)[^43] affect whether rights-of-way are
granted and may require that specific conditions or limitations be
included in the grant of a particular right-of-way. Congress enacted
NEPA:

> To declare a national policy which will encourage productive and
> enjoyable harmony between man and his environment; to promote efforts
> which will prevent or eliminate damage to the environment and
> biosphere and stimulate the health and welfare of man; to enrich the
> understanding of the ecological systems and natural resources
> important to the Nation; and to establish a Council on Environmental
> Quality.[^44]

This law requires federal agencies to study the environmental effects of
their actions through an interdisciplinary planning process that
integrates environmental and economic issues. In cases where the
environmental effects may be significant, the NEPA process informs and
seeks input from the public, tribes, states, and local agencies, as well
as other federal agencies.

Under NHPA, the Federal Government provides leadership for preservation
efforts and fosters conditions to facilitate the harmonious existence in
modern society of prehistoric and historic resources. As amended in
1992, Section 110 of the Act outlines a broad range of responsibilities
for federal agencies. Among other responsibilities, the provision calls
for federal agencies to establish preservation programs commensurate
with their mission, and to designate qualified Federal Preservation
Officers to coordinate their historic preservation activities.[^45]

In 1973, Congress passed the ESA to conserve the ecosystems that sustain
endangered and threatened species. Congress considered such fish,
wildlife, and plant species to be "of aesthetic, ecological,
educational, historical, recreational, and scientific value to the
Nation and its people."[^46] Therefore, Congress established a policy
requiring all federal agencies and departments to seek to conserve these
species and to support the Act's purposes. The Interior Department's
Fish and Wildlife Service and the Commerce Department's National Marine
Fisheries Service administer the law. Section 7 of the ESA directs all
federal agencies to use their existing authorities to conserve
threatened and endangered species and in consultation with the U.S. Fish
and Wildlife Service, to ensure that their actions do not jeopardize
listed species or destroy or adversely impact critical habitat. Section
7 applies to management of federal lands as well as other federal
actions that may affect listed species, such as the issuance of permits,
licenses, or other actions authorizing private activities. NEPA, NHPA,
ESA and other laws may impose additional responsibilities on
right-of-way grantees that may impact their ability to use public lands
for the desired commercial purposes. [^47]

# Part III: Issues and Recommendations

In discussions with stakeholders and federal agency staff, the Working
Group discovered that rights-of-way concerns generally fall into the
following four main categories: (a) information access and collection,
(b) timely process, (c) fees, and (d) compliance**.** In each of the
main categories, the Working Group examined a variety of individual, yet
related issues. Below, the Working Group discusses these issues, offers
its recommendations, and presents a roadmap for implementation of the
recommendations. Nothing in this report, however, relieves rights-of-way
applicants of their obligation to comply fully with all applicable laws
and regulations.

A. [Information Access and Collection]{.underline}

A potential applicant for a rights-of-way permit and the affected
agency(ies) confront several issues related to accessing and collecting
information. First, the applicant needs access to general information
about how to obtain a permit. Second, the applicant must interact with
the appropriate agencies so that they are advised early in the
application process of potential issues, concerns, and information
requirements that may be needed by the agencies to evaluate the
applicant's request for a right-of-way. In this section, the Working
Group offers recommendations for improving the accessibility and quality
of general information available to applicants for rights-of-way
permits. The Working Group also offers recommendations for streamlining
and simplifying the process for agencies to collect information from
applicants. In both instances, the Working Group's recommendations are
designed to reduce burdens on applicants and to allow agencies to make
better use of their limited resources.

## [Information about Obtaining a Right-of-Way over Federal Lands]{.underline}

### 

### *Issue:* To prepare an application for a rights-of-way permit, a potential applicant typically needs information about agency personnel contacts, application forms, fees, and other planning and permitting requirements. While some federal agencies provide excellent, easy-to-find information about their rights-of-way processes,[^48] other federal agencies have significant room for improvement. Indeed, the Working Group's research has shown that few federal agencies have a clearly identifiable rights-of-way section on their Web sites, complete with an application form, delineated steps to follow in the rights-of-way process, and agency contacts. Instead of obtaining a clear roadmap for how to obtain a rights-of-way permit, the potential applicant often gets lost in a maze of confusing regulations and policies, incomplete information, and receives no contact information for asking directions. The resulting uncertainty causes delays, drives up costs, and slows deployment of networks.

***Recommendation:*** The Working Group believes that the Internet
provides the most cost effective and most easily accessible means to
disseminate information about the rights-of-way permit process to
potential applicants. Accordingly, the Working Group offers two
recommendations: (1) establish a central federal Web portal for
rights-of-way information; and (2) update individual agency Web sites
and link them to the central Web portal.

*Central Web Portal*. The Working Group recommends that the
Administration create a central Web portal with information about the
rights-of-way permit process for federal lands. The Web portal would
contain general information about obtaining a rights-of-way permit over
federally-owned or federally-controlled real property. This central Web
portal also would list and link to the appropriate, updated Web sites
for each federal agency with authority to grant rights-of-way permits on
federal lands (see below). The Working Group recommends that NTIA, as
the lead agency in the Working Group, host and maintain the central Web
portal. To draw attention to the Web portal, the Working Group also
recommends that a referral Web page be established in the business
gateway section of the [FirstGov.gov]{.underline} Web site,[^49] which
is the official U.S. gateway to all government information.

After the central Web portal is established, the Working Group
recommends that NTIA investigate the feasibility of employing more
advanced, automated services on the central Web portal. For example, the
central Web portal could engage a potential applicant in a series of
questions about the type, scope, and location of the project. In turn,
the Web portal could employ software that would take this information
and give the potential applicant the relevant contact information of the
federal agencies likely to have jurisdiction over their application, a
copy of a rights-of-way application, and information about environmental
protection, historic preservation, endangered and threatened species,
and other issues that would need to be addressed as part of the
rights-of-way application process. The information entered by the
potential applicant could also generate an e-mail alert to each relevant
agency, noting that an application request had been made.

*Updated Agency Web sites*. The Working Group also recommends that
individual land management agencies update their Web sites to ensure
they meet the following criteria: [^50]

-   Information is centrally located on a prominently displayed
    rights-of-way home page with appropriate links to sub-pages.

-   All information is up-to-date.

-   All information is organized in a logical, user-friendly format.

-   Agency contact information (including e-mail addresses) is current
    and easily accessible on the Web site.

***Implementation:*** In consultation with the Working Group, NTIA
should take the lead in creating a central Web portal for information on
federal rights-of-way on the existing NTIA Web site. This new portal
should be created within three months of the release of this report.
NTIA should work with GSA, which maintains the
[FirstGov.gov]{.underline} Web site, to establish a referral Web page
directing federal rights-of-way inquiries to the NTIA Web portal. Other
federal agencies with land management responsibilities should also
update their Web sites according to the criteria above within six months
of the release of this report.

##  2. [Pre-application Meeting]{.underline}

***Issue:*** As part of their responsibility to administer
rights-of-way, federal agencies are often required to review and
evaluate a variety of factors regarding an applicant's proposed use of
federal land, such as whether: (1) the proposal is consistent with the
stated purpose for which the public lands are managed; (2) the proposal
is in the public interest; (3) the applicant is technically or
financially capable of accomplishing the project; (4) the proposal is
consistent with applicable federal, state, local, or tribal laws; and
(5) the applicant is able to mitigate any adverse environmental
consequences resulting from the proposal. In addition, some federal
applications may require coordination with state, local, or tribal
governments. Due to the potential complexity of this review, applicants
for rights-of-way permits often lack a good understanding of the
potential issues that their applications may raise, the impacts to
government agency resources that may be needed to evaluate the
application, and the information needed by those government agencies in
order to effectively evaluate the applications pursuant to the laws,
regulations, and policies governing these types of requests. As a
result, federal agencies frequently ask applicants to provide additional
information before applications are accepted. This situation causes
delays and additional costs for applicants and is an inefficient use of
scarce agency resources.

***Recommendation:*** To ensure that applicants are fully aware of all
of the approval criteria and the process by which their applications
will be evaluated and to ensure that all relevant government entities
are properly engaged in the review process, the Working Group strongly
recommends that a pre-application meeting occur between the applicant
and the relevant agencies. Knowing the specific details of a project and
engaging in an early and candid discussion with the relevant federal,
state, local, and/or tribal officials *before the application is filed*
can facilitate a more efficient processing of the rights-of-way
application. Such a meeting will enable the government representatives
to identify issues regarding land management consistency and/or
constraints; potential or alternative route selection; cost recovery;
rental or land use payments; NEPA requirements, including any studies
that may be needed to comply with NHPA and ESA; cultural site
considerations; work schedules; safety; remediation; and compliance.
During the pre-application meeting, agency personnel will examine the
proposed right-of-way to determine whether it could fit in an existing
rights-of-way utility corridor or communications site (see discussion
below). Applicants should be advised to bring a map of the project area
to the pre-application meeting.[^51] By establishing a dialogue between
the applicant and all of the affected government entities, the
pre-application meeting has the potential to save time and money for all
parties. Adoption of this recommendation should not impose any
additional burden on agencies' resources because existing staff would
attend the pre-application meetings.

The Working Group recommends that the federal agencies post clear
instructions for a potential applicant on their Web sites, noting that
the burden is on the applicant to contact all potentially relevant
federal agencies and to request a pre-application meeting. Once a
potential applicant has made a request for a pre-application meeting,
however, each of the agencies should work cooperatively to facilitate
the meeting. A potential applicant should consider inviting the
appropriate state, local, and tribal officials, if applicable. Federal
agencies should strive to schedule a pre-application meeting within 30
days of receiving a request from a potential applicant for such a
meeting.

***Implementation:*** By August 2004, each federal agency with
rights-of-way responsibilities should post on their Web sites, and add
to any applicable practice manuals, clearly articulated information for
a potential rights-of-way applicant on the importance of a
pre-application meeting and the steps that a potential applicant should
take to set up that pre-application meeting.

> 3\. [A Single, Standardized Rights-of-Way Application]{.underline}

***Issue:*** Although most federal agencies require a relatively similar
body of information from rights-of-way applicants, their methods for
collecting that information vary widely among agencies. Some agencies,
such as BLM and the Forest Service, use a common application form;
others such as the Navy or NOAA do not, just requiring similar
information in whatever manner the applicant wishes to present it so
long as it satisfies agency guidelines. As a result, applicants often
submit the same information in different formats for different federal
agencies, even when the agencies are collaborating on the review of the
same project. This situation causes applicants to expend unnecessary
time and resources to satisfy duplicative requirements. In contrast,
where agencies such as BLM and the Forest Service have used a single
common application form, industry stakeholders have noted the benefits
from standardizing the information collection.

***Recommendation:*** The Working Group recommends that all agencies
with rights-of-way responsibilities for federal lands adopt a single,
standardized form for rights-of-way applications. A single, standardized
form will reduce filing burdens on applicants and will provide a
consistent source of information for affected federal agencies.
Specifically, the Working Group recommends that all federal agencies
adopt the Standard Form 299 (SF-299) for use beginning no later than
December 2004. (See Appendix B for a copy of Standard Form 299,
currently in use by BLM and the Forest Service.)

The SF-299 requests information about the type of project proposed by
the applicant. This information includes the project's location; the
applicant's technical and financial capability to construct, operate,
maintain and terminate the project; the applicant's need for the
particular right-of-way; and the general environmental impact of the
proposed project.

The SF-299 provides much of the basis for obtaining information to
determine if the applicant is qualified and the project is viable. Use
of the SF-299 is intended to simplify information collection for both
the applicant and the federal agencies. There are unique parts of each
federal agency's mission, however, that cannot be captured in a
standardized form and that may require particular information from an
applicant in order for a federal agency to assess whether to grant a
right-of-way. Thus, later in the process, a federal agency may need to
request further information specific to the project or an agency's
mission.[^52] Accordingly, the filing of an SF-299 does not preclude an
agency from requesting additional information from the applicant.
However, use of a common application form, coupled with a
pre-application meeting, should reduce duplication and delays based on
information solicitation.

The process of developing the SF-299 involved more than 20 federal
agencies and the general public. The current version, first issued in
1999, resulted from consultation among the Forest Service, Bureau of
Land Management, Fish and Wildlife Service, National Park Service, U.S.
Department of the Interior Solicitor's Office, U.S. Department of
Agriculture Office of General Counsel, Department of Transportation
Office of Surface Transportation, and Department of Transportation
Federal Aviation Administration.

The SF-299 is available in an electronic format so an applicant can
download the form from the Internet, complete the application, and
submit it via U.S. mail. After full implementation of OMB's e-gov
initiative, the Working Group expects that applicants will be permitted
to file the SF-299 electronically. The submitted SF-299, together with
the appropriate cost recovery fees and a NEPA/NHPA checklist,[^53] if
applicable, should provide all the basic information necessary for a
federal agency to complete its initial screening of the proposed permit
(see below). The Working Group recognizes, however, that the complexity
of the project under review, determines the extent of any additional
information needed to complete the SF-299. Use of the SF-299 can provide
applicants with useful guidance about the type of information that
federal agencies require in their decision-making and can help to
expedite the agency's initial review process.

***Implementation:*** Each federal land management agency that does not
currently use the SF-299 should initiate any agency action necessary,
including rulemaking, to adopt the SF-299 as its primary means of
collecting information from rights-of-way applicants. The Working Group
recommends that such rulemakings commence immediately upon release of
this report so that all federal land management agencies could begin
using the SF-299 by December 2004. Once an agency formally adopts the
SF-299 for use, that agency should post the SF-299 on its Web site.
While electronic filing of the SF-299 is not currently available, the
federal agencies should work with OMB to enable electronic filing of
this document by applicants as soon as possible.

## [Timely Processing]{.underline}

## 

## Issue: In order to construct their networks in a cost-effective manner, broadband providers, like other rights-of-way users, need timely decisions from land managers. Lengthy delays can add tremendous costs to a broadband project, cause companies to lose their funding, delay expansion into a particular market or community, and/or result in the deferral or abandonment of a broadband project. In outreach meetings with representatives from all sectors of the telecommunications industry, company representatives voiced many complaints about the length of time that rights-of-way applications take in federal agencies' land management processes. The Working Group found that delays result from a variety of causes, including limited funds, inadequate staffing, a lack of skills and expertise, meeting environmental planning, approval and permitting requirements, the absence of time frames for processing applications, or no enforcement of such time frames. The reassignment of staff to handle 

## national emergencies (e.g., wildfires) can also result in lengthy delays. Although some of these issues are beyond the Working Group's ability to address, we believe that the recommendations below can substantially improve an agency's ability to process an application in a timely fashion.

1\. [Time Frames]{.underline}

***Issue:*** A rights-of-way applicant often has little information
about when an agency will complete its review of the application and
issue a permit, or even complete various steps along the way. The lack
of clear time frames often frustrates applicants who are trying to
coordinate funding, construction, and other aspect of a project.
Uncertainty can derail and even defeat the deployment of broadband
networks.

***Recommendation:*** The Working Group recommends that, during or
shortly after the pre-application meeting, the affected agencies
identify all steps and decisions that need to be made by each agency
relative to processing a right-of-way and establish an estimated time
frame for the review process. Early designation of a lead agency and
project managers would facilitate the development of such a time frame
and its timely execution. (See discussion below regarding lead agency
and project managers.) The Working Group recommends the use of specific
target time frames for various steps of the rights-of-way process. Time
frames would help to expedite processing, provide predictability to the
applicant, and provide agencies with a way to measure their performance.
Some federal agencies already strive to meet the target time frames set
out below. For purposes of establishing time frames, a proposal will be
accepted as an application when the lead or responsible agency
determines that the proposal provides the information necessary to
evaluate it pursuant to NEPA, and meet any other applicable
environmental requirements as needed by the agency(ies) having
jurisdiction to approve the project. The Working Group recommends that
all federal land management agencies establish the following time frames
for processing rights-of-way permits:

-   Target Time Frames for Initial Screening and Response for All
    Projects

    -   For applicants that have participated in a pre-application
        meeting, agencies should review the initial application (the
        SF-299) and notify the applicant within 30 calendar days whether
        the application is "complete" and ready for formal review, or
        whether the application is incomplete and must be revised or
        supplemented.

    -   For applicants that have not arranged for and participated in a
        pre-application meeting, then the agencies should review the
        application and notify the applicant within 60 days as to
        whether the application is complete.[^54]

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```
-   Target Time Frame for Final Decisions on Small, Uncomplicated
    Projects[^55]

    -   For small, uncomplicated rights-of-way projects, agencies should
        strive to grant or deny a proposal within 60 days of receiving a
        complete application.[^56]

-   Target Time Frame for Final Decisions on Large, Complex Projects

    -   For larger, complex projects, the agency(ies), in consultation
        with the applicant and other affected parties, should establish
        a schedule of processing time frames and notify the applicant of
        that schedule within 60 days after the application is deemed
        complete.

***Implementation:*** By August 2004, every federal agency with land
management responsibilities should implement the target time frames as
part of their internal practices for processing rights-of-way
applications. To help ensure that agencies meet these targets, agencies
should report to their respective Secretaries, or his/her designee, on
an annual basis, with the first report due December 31, 2004, regarding
the number of permits or easements that were issued within the targets
and the number of permits or easements that were issued outside the
targets. If applicable, the report should also explain why the target
time frames were not met and should contain recommendations for
improving timeliness in the future. By incorporating an annual reporting
requirement, these target time frames will benefit not only
rights-of-way applicants, but also agency personnel by providing an
opportunity to demonstrate success and/or the need for additional
information or resources.

> 2\. [Identification of Lead Federal Agency]{.underline}

***Issue:*** Applicants also voiced the concern that, when projects
affect more than one federal agency, coordination between agencies is
often unpredictable. Varying local priorities, agency requirements,
staffing levels, funding, and land-use planning decisions complicate
agency cooperation and coordination. A lack of coordination between
federal agencies often results in delays and imposes unnecessary costs
on the applicant.

***Recommendation:*** The Working Group recommends that, for
rights-of-way projects that involve more than one federal agency, the
agencies involved should designate a lead agency immediately following
the pre-application meeting described above and before an application is
filed. Agencies should use the following factors in the selection of a
lead agency: (1) amount of land crossed, the difficulty of crossing
certain land, and the impact to the land and resources; (2) the
personnel and financial resources available to process expeditiously the
rights-of-way application; (3) the expertise of the various agencies;
and (4) the agency that manages the federal land over which there is the
greatest degree of controversy or concern with respect to the proposed
project. The responsibilities of the lead federal agency would include
managing communications with all affected government agencies; managing
the budget and personnel resources devoted to an application; ensuring
that deadlines are met; and coordinating with all the other federal,
state, local, and tribal agencies involved in the project with respect
to related processes, approvals, and permits. One of the most important
responsibilities of the lead agency is to serve as the primary contact
for the applicant, who should work directly with the lead agency.

***Implementation:*** The Working Group recommends that by August 2004,
federal land management agencies adopt internal operating practices to
ensure that a lead agency is designated for multi-agency projects. For
most projects, these operating practices need not be extensive and
should not require the adoption of any new rules. On particularly
complex projects, agencies may wish to set forth the details of the
responsibilities of the lead federal agency in a letter, memorandum of
understanding, or other document mutually agreed to by all the affected
federal agencies.[^57]

3. [Project Managers]{.underline}

***Issue:*** Stakeholders also have noted that the rights-of-way process
within a federal agency is slowed when several people at the agency have
responsibility for different parts of the process, but there is no clear
leader on the project. Consequently, delays occur because of a lack of
coordination and communication. The applicant in such cases often must
deal with multiple agency personnel, with resulting inefficiencies for
both the applicant and the agency. The lack of clear leadership on a
given project within an agency makes inter-agency coordination more
difficult as well.

***Recommendation:*** To improve timeliness, the Working Group
recommends the use of project managers by federal agencies. The
responsibilities of the project manager would include managing the
budget and personnel resources devoted to processing an application and
facilitating the permit's issuance; ensuring that target time frames are
met; coordinating with all other federal, state, local, and tribal
agencies involved in the project; and serving as the primary point of
contact for industry, contractors, and other government entities.
Project managers can provide skills and expertise with respect to
regulations, requirements, and contacts that are usually not retained at
every field office. Project managers are also extremely useful for
agencies that are involved in multi-agency projects, as they can improve
and simplify inter-agency coordination. As with lead agencies,
applicants should avail themselves of the benefits of the single contact
point that project managers provide. BLM has successfully utilized
national project managers who coordinate large/complex project
proposals, and other agencies may benefit from consulting with BLM about
its experience.

***Implementation:*** All federal agencies with land management
responsibilities should (1) implement the use of the project manager
approach for large, complex projects; and (2) designate project manager
responsibilities, where appropriate, in employees' work plans. Federal
agencies should provide training for personnel, if necessary, to carry
out the duties of a project manager.

> 4\. [Utility Corridor Planning]{.underline}

***Issue:*** In constructing their networks, broadband providers are
often confronted with the challenge of finding suitable, cost-effective
routes for laying fiber optic cables, or other linear communications
media, while minimizing any potential environmental or historic
preservation impacts that may slow an agency's review process. Energy
companies have faced similar issues in laying pipelines, and many of
those companies have embraced the use of utility corridors as the most
optimal solution.[^58]

***Recommendation:*** As a way to help streamline the rights-of-way
process for broadband companies, the Working Group recommends that
companies take advantage of previously designated rights-of-way utility
corridors when possible. Congress addressed the issue of rights-of-way
utility corridors in Section 503 of the FLPMA. Section 503 states that
the Secretary of the Interior shall designate corridors to minimize
adverse environmental impacts and the proliferation of separate
rights-of-way.[^59] In addition, the National Energy Policy and
Executive Order 13213 requires BLM to emphasize rights-of-way planning
and corridor designations.[^60] Since 1979, the Western Utility
Group[^61] and others have worked in cooperation with BLM and the Forest
Service to identify and designate corridors in their land management
plans.[^62]

In recognition of the benefits of utility corridor designation, the
Working Group recommends that the federal land management agencies
encourage the telecommunications sector, agencies with environmental and
regulatory responsibilities, state transportation department officials,
and state historic preservation officials to participate in the land and
resource planning processes and proceedings that federal agencies use to
designate utility corridors. The Working Group suggests that federal
agencies reach out to telecommunications entities in their utility
corridor designation process. Utility corridors provide a way for
various stakeholders to work together to identify rights-of-way across
federal lands that may be used by more than one company. In many
instances, using a designated utility corridor can significantly
expedite the processing of rights-of-way for new telecommunication
transmission facilities by eliminating the need to do extensive
environmental and other impact studies required for new sites, and
thereby result in time and financial savings for the applicant. The
Working Group recognizes that utility corridors may not always present
the most efficient or cost-effective route for rights-of-way applicants
and these applicants should retain the flexibility to apply for other
routes. Nonetheless, the Working Group encourages applicants to use
utility corridors wherever practicable.

***Implementation:*** The federal agencies should promote the use of
designated utility corridors to all potential applicants by means of
public awareness through postings on their Web sites,[^63] as well as
information provided to applicants at the pre-application meeting.
Postings on agency Web sites could include a fact sheet that includes
maps and descriptions about the location of existing and planned utility
corridors and provide information about how interested
telecommunications companies and other stakeholders can get involved in
these federal land management planning processes. While BLM and the
Forest Service already actively participate in the Western Utility
Group's current *Western Regional Corridor Study*, other Federal land
management agencies should also become more active participants*.*

> 5\. [Communications Site Plans]{.underline}

***Issue:*** In addition to employing linear facilities that may stretch
for tens or hundreds of miles, such as fiber optic cables,
communications providers also rely on facilities located at a single
geographic point. These facilities may include buildings or towers that
house or support communications equipment. These physical structures are
also known as communications sites.[^64] A communications site plan,
developed by an agency, sets forth the conditions for multiple tenants'
use of such a facility.

Communication sites are critical for the wireless industry, which has a
growing need for additional antenna sites, including in remote
communities once considered too isolated for the investment of
infrastructure capital.[^65] However, to avoid congestion as well as to
address aesthetic concerns, agencies desire to limit the number of
communications sites. Most federal agencies advocate maximizing an
existing communications site to reduce the proliferation of sites and
ensure compatibility among communications uses.

In the past two years, BLM has completed site management plans on over
60 mountain tops. BLM uses in-house land surveyors and geographic
information system (GIS) mapping specialists to perform the site survey
and to prepare detailed site maps of the mountain tops.

***Recommendation:*** The Working Group recommends that federal land
management agencies encourage co-location of communications facilities
on existing designated communications sites, where feasible for the
agency and the applicant, similar to the practice currently employed by
BLM and the Forest Service. The advantage for rights-of-way applicants
is that co-location on an existing communications site allows a
potential tenant to co-locate in a private facility without agency
review, when the facility owner determines that the proposed use is
compatible with the site plan and existing communications uses at the
site.[^66] The Working Group encourages federal agencies to continue
using communications site plans that facilitate appropriate access to
federal property for the siting of mobile service antennas. Agencies
should give special consideration to potential broadband use for
extending service to rural communities. Agencies must retain the
discretion to reject inappropriate siting requests, ensure protection of
public property, and ensure timely removal of equipment and structures
at the end of service.[^67]

***Implementation:*** All relevant federal land management agencies
should continue to prepare and maintain a communications site plan for
each designated communications site. The federal agencies should explore
the option of obtaining fee retention authority, similar to that given
to BLM, for use in establishing communications site planning programs.
In addition, the federal agencies should work closely with industry and
other users to ensure that the communications site plans remain
effective and inclusive of all needs of both industry and the Federal
Government. The federal land management agencies should promote private
sector awareness of these communications sites and should include maps
on their Web sites showing the location of existing communications
sites.[^68] NTIA should post a fact sheet on the central federal
rights-of-way Web site that (1) explains the current status of the
Federal Government's communication site plans, (2) includes maps showing
the location of existing or planned communications sites, and (3)
provides information about the potential role for interested
telecommunications companies and other stakeholders.

B.  [Fees and Other Charges]{.underline}

## As an applicant goes through the rights-of-way process, the applicant generally encounters two types of fees: (1) the recovery of costs incurred by federal agencies in processing and monitoring rights-of-way, and (2) the assessment of rental payments or other compensation for the applicant's use of federal land.[^69] In reviewing current procedures used by federal rights-of-way managers, the Working Group identified areas where federal agencies should streamline their practices, improve processes with respect to calculating reasonable fees, provide information in a more customer-friendly way, and promote predictability and accountability. These issues are discussed below. 

## 

##  [Cost Recovery]{.underline} 

***Issue:*** By statute and administrative directive, federal agencies
are required to recover the cost of providing goods, services, or
resources to the public, including permits for rights-of-way.
Specifically, Title V of the Independent Offices Appropriations Act of
1952 allows federal agencies to recoup costs from identifiable "special
beneficiaries" where the services benefited particular recipients as
compared to the general public.[^70] OMB Circular No. A-25 establishes
federal policy regarding fees assessed for government services and for
sale or use of government goods or resources.[^71] For cost recovery for
rights-of-way uses, the circular requires that federal agencies assess
and collect user charges that will be sufficient to recover the full
cost to the Federal Government of providing a good, service, or
resource. This recovery may include a variety of costs, such as those
for verifying and evaluating information submitted by the applicant,
inspecting and monitoring installation and maintenance, and conducting
environmental and engineering studies. In most cases, federal agencies
calculate and recover these costs separately from a land use fee, also
known as a rental fee, or some other consideration given in exchange for
use of the rights-of-way.

In practice, federal agencies have widely divergent policies and
procedures for assessing, collecting, and spending cost recovery fees
associated with rights-of-way management.[^72] For example, BLM has
detailed regulations on the use of cost recovery schedules for smaller
projects, and case-specific cost recovery procedures for larger
projects. The Forest Service currently collects processing and
monitoring fees on a voluntary basis from applicants and permit holders,
but by the end of fiscal year 2004, it intends to finalize a set of cost
recovery regulations and fee schedules concurrently with BLM's pending
revisions to its long-standing regulations and procedures. The end
product will be a higher degree of consistency in the assessment of
processing and monitoring fees between these two agencies.

Other agencies use a variety of different approaches. For example, an
applicant for an easement on military lands pays cost recovery, although
the Navy must recover its costs in the fiscal year in which the costs
are incurred. In the case of the Army Corps of Engineers, customers pay
according to an established fee schedule, although the Army Corps of
Engineers permits deviations from the schedule in certain circumstances.
If NOAA chooses to assess a special use permit fee under the National
Marine Sanctuaries Act, it must include assessments for administrative
costs, monitoring costs and fair market value. The National Park Service
provides local offices with the discretion to determine their own cost
recovery fee rates based on actual costs incurred. BIA does not
currently recover costs related to rights-of-way on Indian lands,
although it has the authority to do so under 25 U.S.C. §413.

As the preceding examples demonstrate, federal agencies have adopted a
variety of approaches to implementing cost recovery. In the Working
Group's discussions with stakeholders, many applicants \-- particularly
those dealing with multiple agencies \-- viewed the varied approaches to
be inefficient, confusing, and frustrating. In response to these
concerns regarding cost recovery, the Working Group sets forth three
recommendations. The recommendations address the following three aspects
of cost recovery: (1) the entity responsible for cost recovery; (2)
general principles applicable to cost recovery; and (3) specific
techniques for standardizing and simplifying cost recovery.[^73]

***Recommendation #1:*** First, the Working Group has identified the
need to clarify which federal agency will be responsible for cost
recovery on projects involving more than one agency. The Working Group's
recommendation is that for small, uncomplicated projects, individual
agencies should continue to be responsible for recovering their own
costs, subject to the principles and techniques discussed below. For
larger inter-agency projects,[^74] improved efficiency may result from
the lead agency performing cost recovery on behalf of all affected
federal agencies (see discussion above). By sharing resources and
simplifying cost recovery procedures where multiple federal land
management agencies are involved, federal agencies can better use their
skilled staff, reduce duplication, and make communications easier for
applicants, who would benefit from a single point of contact for the
federal agencies.

> ***Implementation:*** For larger inter-agency projects where the
> federal agencies have designated a lead agency, the affected federal
> agencies should agree on consolidating cost recovery duties and
> placing them with the lead agency. Federal agencies should develop a
> standard inter-agency agreement or memorandum of understanding
> regarding inter-agency cost recovery procedures that will apply in
> most cases, unless there are unique aspects to the project that
> require changes to the standard inter-agency agreement. The
> significantly different statutory missions of some federal agencies,
> such as BIA and NOAA, may require specific provisions in the
> inter-agency agreements that take into account the agency(ies)'
> different approaches to cost recovery.

***Recommendation #2:*** Second, the Working Group recommends that the
federal agencies act in accordance with a set of general principles
applicable to cost recovery pertaining to rights-of-way management.
Specifically, the Working Group recommends that these agencies develop
and implement regulations that result in a cost recovery process that
meets the following criteria:

-   Promote predictability and consistency.

-   Are based on a transparent and reliable cost recovery system that
    helps ensure accountability.

-   Feature reasonable fees that reflect an agency's costs and
    efficiency.

-   Afford ease of use by the customer (*e.g*., a ready contact;
    provides for a lead agency approach where multiple jurisdictions are
    affected; a clear published explanation of the process).

-   Foster ease of use by the agency (simple formula for
    implementation).

***Implementation:*** All relevant federal land management agencies
should commence rulemakings, as necessary and appropriate, for the
purpose of developing and implementing regulations for rights-of-way
cost recovery processes that incorporate the above criteria. These
agencies should initiate these rulemakings by December 2004.

***Recommendation #3***: Third, the Working Group recommends specific
techniques for standardizing and simplifying cost recovery relating to
rights-of-way management. In particular, applicable agencies should
implement the following practices and procedures:

-   [An activities-based costing system using accepted accounting
    principles.]{.underline} Such a formal, reliable cost-accounting
    system would promote accountability and confidence for both agencies
    and applicants. Adopting this system across the various
    rights-of-way agencies would foster a similar costing basis, thereby
    minimizing distortions and unjustified differentials.

-   [Fee schedules]{.underline}[^75] [for small, uncomplicated
    projects.]{.underline} Establishment of such schedules would enhance
    predictability and ease of use by agencies and their customers,
    reducing the number of complaints.

-   [Case-specific cost estimates and assessments for large, complex
    projects.]{.underline} Working Group members generally agreed that
    the agencies' need for flexibility and specificity in estimating the
    costs of such diverse projects should be paramount; fee schedules
    would be easier to use but would not accommodate the need for
    costing accuracy and flexibility in large-scale projects. Drawing
    costs for large, complex projects from a transparent and reliable
    cost recovery system would instill confidence in applicants and
    agencies alike.

-   [A readily accessible source of information (*e.g*., Web site),
    describing for applicants the agency's cost recovery regulations,
    policies, and procedures]{.underline}. This transparency would
    inform and reassure applicants, particularly those new to the
    federal rights-of-way process. Agencies, too, would benefit from
    enhanced efficiency in their operations, as well as greater ease of
    use and improved relations with their applicants.

-   [A specific list of costs to be recovered that will include, but not
    be limited to, an agency's costs for the following
    activities]{.underline}:

> \(1\) Verifying information submitted on the application.
>
> \(2\) Reviewing plans, conducting field reviews, and collecting data.

(3) Conducting environmental and engineering studies.

(4) Mitigating impacts to federal lands, facilities, and resources.

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(5) Amending resource management plans.

(6) Inspecting and monitoring installation, maintenance, construction,
    and

> restoration.

This list should reside in the respective agencies' rules and be posted
on their Web sites. Identifying specific types of costs in advance would
help applicants in planning projects and also save time and effort for
affected agencies.

***Implementation:*** All relevant federal land management agencies
should commence rulemakings, as necessary and appropriate, for the
purpose of standardizing and simplifying rights-of-way cost recovery,
incorporating the practices and procedures set forth in the
recommendation above. These agencies should initiate such rulemakings by
December 2004.

1.  [Rental Payments/Compensation]{.underline}

*Issue:* In addition to cost recovery fees, rights-of-way applicants
also encounter other land use fees, such as rental fees. Specifically, a
variety of statutes and regulations direct federal agencies to assess
and collect rent, or obtain consideration for, the use of federal lands,
including for rights-of-way.[^76] As a starting point for calculating
rental payments, most statutes embrace the principle of fair market
value. For example, the statutes applicable to BLM and the Forest
Service require that rent for the use of public land and national forest
system land be based on "fair market value, as determined by the
Secretary."[^77] Other agencies have different, but similar, legal
authority. OMB Circular A-25 provides guidance as well, requiring "user
charges based on market prices . . . that need not be limited to the
recovery of full cost and may yield net revenues."[^78]

In practice, there are several approaches to establishing fair market
value that government agencies commonly use in rights-of-way
management.[^79] The two primary ways of calculating rental payments are
(1) rental fee schedules and (2) real estate appraisals. BLM and the
Forest Service rely primarily on regulatory rental fee schedules to set
annual rental payments for linear applications and communications sites.
In general, the communications industry has expressed few problems with
the linear rental fee schedules used by BLM and the Forest Service, but
the annual rates in those schedules are currently out-of-date. BLM and
the Forest Service currently update rates based on the annualized change
in Implicit Price Deflator-Gross Domestic Product (IPD-GDP).[^80]
However, efforts to update the rental fee schedules during the last four
years have raised concerns about the level of and the basis for the
rates.[^81] The communications industry also has generally supported the
Forest Service/BLM rental schedule for communications sites (such as for
wireless telecommunications uses),[^82] which is adjusted each year by
the annualized change in the Consumer Price Index-Urban (CPI-U).[^83]

In addition to employing rental fee schedules, a number of agencies
routinely use real estate appraisals or nonfederal market rent studies
or surveys to determine the annual land use fee for a license or
permit[^84] or the amount of consideration for the conveyance of an
easement.[^85] A few agencies, however, limit their use of real estate
appraisals to establish rental fees for high value rights-of-way.
Besides direct monetary payments, in-kind compensation has also been
used in certain circumstances. For example, the Federal Highway
Administration's state department of transportation partners have used a
barter approach, in some situations receiving the use of fiber optic
capacity instead of cash rents as consideration.

General rental fee schedules and individual real estate appraisals each
have their strengths and weaknesses. The Working Group's discussions
with stakeholders revealed that an agency's use of case-specific real
estate appraisals or market rent surveys require fact-intensive
inquiries, which can slow the application process and may result in
value estimates significantly different than expected by a right-of-way
applicant. In some cases, appraisals can be complicated by the lack of
market rental data, the limited availability of appraisal expertise, and
inconsistent appraisal methodologies among or within agencies, all of
which can cause a wide range of outcomes for apparently similar
projects. For determining the precise consideration owed for a
right-of-way, however, appraisals have the potential to provide the most
accurate results. By contrast, generalized rental schedules may not work
as well for large, complex projects but are attractive because they are
relatively easy to use and they provide greater certainty to applicants.

In addition, utility corridor rights-of-way may pose significant
challenges to determining correct valuation. Recent studies in
California and Arizona concluded that corridor markets are basically
"immature and characterized by divergent methodologies and valuation
results."[^86] Among the problems cited: (1) confidentiality agreements
inhibit the free flow of information; (2) appraisers may either be
uninformed concerning telecommunications corridor rights-of-way or rely
solely upon one method to solve all appraisal problems; and (3) valuers
may rely upon local markets that may not contain information appropriate
to a particular appraisal problem.[^87]

In response to these concerns regarding rental payments, the Working
Group sets forth three recommendations. The recommendations address the
following three aspects of rental payments/compensation: (1) the entity
responsible for rental payments; (2) general principles applicable to
rental payments; and (3) specific techniques for standardizing and
simplifying rental payments.

***Recommendation #1:*** First, the Working Group seeks to clarify which
federal agency will be responsible for rental payments on projects
involving more than one agency. The Working Group's recommendation is
that for small, uncomplicated inter-agency projects, individual agencies
would continue to be responsible for administering rental payments,
consistent with the principles and techniques discussed below. For
larger inter-agency projects, improved efficiency may result from the
lead agency collecting rental payments from an applicant on behalf of
all affected agencies (see previous discussion on lead agency).[^88]
Implementing this recommendation will redound to the benefit of both
applicants and agencies through establishment of a single point of
contact, better use of agency resources, and significant time savings.

***Implementation:*** For larger inter-agency projects where the federal
agencies have designated a lead agency, the affected federal agencies
should agree on consolidating rental payment duties and placing them
with the lead agency. The details of the rental payment procedures may
be set forth in a memorandum of understanding among the agencies or
other appropriate inter-agency document.

***Recommendation #2:*** Second, the Working Group recommends that the
federal agencies act in accordance with a set of general principles
applicable to rental payments. The Working Group recommends that
agencies responsible for rental payment functions develop and implement
regulations, or make revisions to policies and practices that result in
rental payment procedures that meet the following criteria:

-   Promote predictability and consistency.

-   Provide for a transparent compensation system that helps ensure
    accountability.

-   Use a reasonable market-based rights-of-way valuation approach.

-   Provide for agency discretion to make adjustments to rental fees for
    purposes of achieving the agency's mission.

-   Afford ease of use by the customer (ready contact; provides for a
    lead agency approach where multiple jurisdictions occur; a clear
    published explanation of the process).

-   Foster ease of use by the agency.

***Implementation:*** All relevant federal land management agencies
should commence rulemakings, as necessary and appropriate, for the
purpose of developing and implementing regulations for rights-of-way
rental payment processes that incorporate the above criteria. These
agencies should initiate these rulemakings by December 2004.

***Recommendation #3***: Third, the Working Group recommends greater use
of rental fee schedules where periodic rental payments are required.
Rental schedules provide a standardized mechanism for determining rental
fees, thereby removing a great deal of time-consuming, subjective
judgment from the valuation process. Thus, rental fee schedules can
result in more efficient use of resources, timely processing of
rights-of-way applications, and a more transparent process for all.
However, the Working Group recognizes that greater use of fee schedules
may not be appropriate for some applications, for which other valuation
methods may be better suited.

More specifically:

-   With respect to *linear featured broadband facilities*, all federal
    land management agencies should adopt, where practicable, policies
    and procedures for rental fees based on the fee schedule rates
    approach used by BLM and the Forest Service. BLM and the Forest
    Service should update their rental fee schedules for wireless and
    linear broadband equipment on federal lands.

-   With respect to rental fees for *communications sites* (such as for
    wireless telecommunications equipment), the Working Group recommends
    that all federal agencies that authorize the operation of wireless
    telecommunications facilities on federal lands adopt a rental rate
    schedule based on the Forest Service/BLM schedule for communications
    site uses, thereby establishing an annual rental fee for use and
    occupancy of federal lands. 

-   In both cases, federal agencies should retain authority to grant an
    exception, as appropriate, to the use of fee schedules (*e.g.,* to
    perform individual appraisals or undertake agreements to receive
    services instead of cash) in order to foster efficiencies or other
    benefits (such as allowing barter for public services such as safety
    messages, 911, or other operational uses), or to further the
    agency's mission. This would not limit the existing statutory
    authority agencies may have to establish rental rates or the amount
    of consideration for conveyances of easements.

-   Agencies should use rental fee schedules where practicable. In
    addition to the above stated exceptions, however, agencies should
    consider obtaining an appraisal rather than refer to a rental rate
    schedule if the valuation problem is complex, the value of the
    rights to be granted is likely to substantial, or the conveyance of
    an easement is contemplated. [^89]

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-   In order to provide consistency in rental fees and avoid duplicating
    efforts, federal agencies should share information about
    methodologies for determining fair market rental values, and other
    information, as they develop and update rental fee schedules and as
    they perform individual appraisals. Avoiding duplication should
    enhance efficiency in processing rents and ensure greater
    consistency among agencies.

***Implementation:*** All relevant federal land management agencies that
are not currently using fee schedules or who are using them infrequently
should commence rulemakings, as necessary and appropriate, for the
purpose of greater use of fee schedules in determining rights-of-way
rental payments. Agencies should initiate these rulemakings by December
2004.

D. [Compliance]{.underline}

As the trustee of public lands, the Federal Government is responsible
for preserving, to the extent possible, the natural state of wilderness,
coastal, and other protected lands, [^90] and for sustaining the
productivity of the lands' renewable and other resources.[^91] At the
same time, most federal land management agencies are obligated to
optimize the lands' utility by accommodating multiple uses, including
recreational and commercial uses, which benefit the Nation.[^92] To
ensure that the government appropriately balances its dual
responsibilities, a variety of laws permit private sector use of federal
land but require rights-of-way holders to restore land, to the extent
possible, to its original condition following installation of a
commercial facility. Certain environmental and historic preservation,
protection, and restoration measures are required. Land management
agencies, in turn, incorporate these requirements as conditions of the
right-of-way.

Although permit holders have a legal duty to properly install and
maintain their facilities, their commercial interests give them an added
incentive to do so. Permit holders generally recognize that obtaining
authorization to locate their equipment on federal lands depends upon
their adherence to the permit's terms. They are usually well aware of
these terms since they frequently negotiate compliance and other
requirements during the NEPA and NHPA review process prior to the
permit's approval. Therefore, in the Working Group members' experience,
monitoring and related compliance activities are ordinarily the least
problematic aspects of rights-of-way administration at the federal
level.

Nonetheless, the Working Group has identified some aspects of monitoring
and compliance that federal land managers could improve. Based on our
discussions with stakeholders and our own research, the Working Group
found that compliance issues fall into the following main categories:
(1) ensuring the proper installation and maintenance of facilities, (2)
addressing unanticipated costs, and (3) imposing penalties for
noncompliance.

> 1\. [Ensuring Proper Installation and Maintenance of
> Facilities]{.underline}

***Issue:*** During a project's initial construction, agency staff
ordinarily ensure that the linear or site facility installation complies
with pre-approved specifications and any accompanying agreements or site
plans. Following construction, agencies often rely on field personnel to
inspect the facilities periodically. In the rare instance of abandonment
or termination of a right-of way, field personnel would also inspect for
proper facilities removal and premises restoration.

BLM and the Forest Service, two of the largest federal land management
agencies, function through a decentralized system of field office
operations. BLM's workforce comprises 10,000 employees located at its
headquarters and national centers, and over 180 state and field offices
to oversee more than 261 million acres of public lands located primarily
in the western states and Alaska plus a total of 700 million acres of
subsurface mineral estate.[^93] As of August 2002, the agency was
handling a total of about 85,000 rights-of-way. Over the last several
years, BLM has experienced an annual ten percent increase in the number
of rights-of-way applications received, and has processed about 5,500
such matters each year.[^94] Similarly, the Forest Service, through a
network of nine regional offices, manages 155 national forests and 20
grasslands totaling 192 million acres.[^95] Through its special uses
program, the Forest Service has approved more than 72,000 authorizations
for more than 150 types of uses, including telecommunications and
utility rights-of-way.[^96]

The breadth of these agencies' responsibilities to balance the public's
many uses of the extensive and diverse national lands they administer
may limit at any given time the human or financial resources available
in the field to address compliance matters. In reality, rights-of-way
compliance monitoring is one of many tasks of agencies' field personnel,
who prioritize monitoring among their other mission critical
responsibilities, such as, for example, battling forest fires,
responding to other emergencies, and assisting tourists. For the most
part, field personnel seem to handle routine right-of-way compliance
satisfactorily. In field offices lacking staff with the necessary
expertise or the funds for such activities, however, additional
resources could help to improve post-construction compliance monitoring.

Federal agencies' capacity to fund compliance activities varies widely.
Some agencies have imposed fees for this purpose. For example, BLM has
implemented a fee schedule to reimburse the government for the cost of
monitoring its simpler projects, which it classifies in categories of
increasing complexity from I-IV. The fees in these categories range from
\$50 to \$200 to monitor the project's construction, operation,
maintenance, and termination and for the protection and rehabilitation
of the affected lands.[^97] BLM designates as category V projects those
that are large, complex, and require the gathering of original data to
comply with NEPA and other statutes, and at least three field
examinations.[^98] The Category V permit holder pays the monitoring fee
and other costs on a periodic basis before the government incurs
them.[^99] NOAA, which administers sub-marine rights-of-way for
communications cables, and the Army Corps of Engineers are other
examples of agencies that charge specific fees for monitoring
rights-of-way.

By contrast, under the Department of the Navy's current practice, that
agency may only recover costs associated with rights-of-way
administration during the fiscal year in which the construction
occurred. Therefore, the Navy must recover up front any costs for
routine compliance monitoring or other activities incurred during
subsequent fiscal years. The Navy administers relatively few
rights-of-way, which mitigates to some extent the potential burden that
this practice might impose on its resources.

Recognizing that agencies rely on their field personnel to perform an
array of duties that can shift depending upon the office's needs at a
particular time, the Working Group recommends the following measures to
enhance staffing and funding for rights-of-way administration and
compliance monitoring.

***Recommendation #1:*** First, federal agencies with staff involved in
granting and monitoring rights-of-way should make formal training on
these issues available to them. Whether offered by the agencies
themselves or by outside organizations, such training would particularly
benefit field personnel who rarely handle rights-of-way matters. The
training would help to familiarize them with these issues and emphasize
the importance of their prompt response. Both BLM and the International
Rights of Way Association offer training that is open to individuals
outside of their organizations.[^100] Several years ago BLM extended to
16 weeks its training for professional realty specialists at the Lands
Academy of the National Training Center. The academy offers a beginning
session each year and an additional two sessions at different times
during the year. The agency expanded the course to increase the base
knowledge of its workforce.[^101] BLM currently offers several training
courses for BLM, Forest Service, and industry participation. Those
courses cover managing major rights-of-way projects, electric systems,
pipeline systems, and wireless telecommunications. BLM and the Forest
Service also offer a course to BLM/Forest Service managers called
National Lands Training for Managers and Program Leaders. The Working
Group strongly encourages all federal land management agencies to make
available to their staff these or other relevant training opportunities
that may exist.

***Implementation:*** By August 2004, all federal agencies offering
training on rights-of-way administration should begin to publicize on
their Web sites and through other effective means the availability of
rights-of-way training and the eligibility requirements to attend. In
addition, by August 2004, all federal land management agencies,
regardless of whether they provide in-house training, should designate
staff to identify regularly and disseminate promptly information about
rights-of way training opportunities to the appropriate staff.

***Recommendation #2:*** Second, federal agencies should inform grantees
of the option of hiring reputable third-party contractors, who in
conjunction with agency compliance monitors, ensure that grantees
properly perform planning and environmental studies, and initial phase
construction work to the agency's satisfaction. These contractors are
not substitutes for federal personnel, but work closely with them as
agents of rights-of-way applicants. A knowledgeable contractor may be an
invaluable resource to help applicants navigate an agency's
rights-of-way process, and thereby minimize delays that could result
from incomplete or unsatisfactory submissions. Therefore, contractors
may expedite facility construction by preparing rights-holders for
compliance inspections and other monitoring activities, including
reporting to federal land managers the grantee's observance of work plan
requirements. Given agencies' limited resources, their personnel can be
most effective when working with experienced contractors. Rights-of-way
applicants may receive desired approvals more quickly, which may lower
long run project costs.

The Working Group in no way intends to suggest that agencies require the
use of third-party contractors. Instead the suggestion results from
successful dealings of BLM and the Forest Service with third-party
contractors. The agencies noted in particular that contractors'
experience with NEPA's lengthy processes and complex procedures enables
the contractors to prepare necessary documents and to check their
client's compliance with any NEPA requirements included in the grant
before any formal inspections by federal rights-of-way administrators.

***Implementation:*** By August 2004, through postings on their Web
sites and through communications with applicants and grantees, federal
agencies should begin to notify rights-of-way applicants of the option
of hiring reputable third-party contractors, who in conjunction with
agency compliance monitors, will ensure that grantees properly perform
planning and environmental studies, and initial phase construction work.

***Recommendation #3:*** Third, for multi-agency projects, the
appointment of a lead agency would improve coordination of compliance
matters. Similarly, more efficient compliance could occur if federal
land management agencies appoint a project manager to improve
intra-agency communications. A lead agency or project manager can
develop comprehensive rights-of-way compliance requirements that enable
the agencies involved to adequately assess whether the right-holder has
fulfilled installation, restoration, maintenance, and other obligations.
By

coordinating the agencies' various reporting and monitoring
requirements, lead agency personnel and project managers minimize the
burden on rights-of-way permit holders. They can also advance projects
by organizing government personnel and budget resources to maximize
their use and expedite projects. In that way, lead agencies and project
managers can supplement field office staff to ensure availability of the
necessary expertise for compliance monitoring and other purposes.

***Implementation:*** As previously described in section III. B.2. of
this report, by August 2004, federal agencies should adopt internal
operating procedures for designating a lead agency when federal, state,
local, and/or tribal authorities are participating in a project. For
complex projects, the government entities should memorialize the lead
agency's responsibilities in a memorandum of understanding, other
inter-agency agreement, or written correspondence. In addition, agencies
should incorporate project manager responsibilities into the work plans
of appropriate employees and train them to perform these tasks (see
above discussion on lead agency and project managers).

***Recommendation #4:*** Fourth, federal agencies should require
grantees to submit periodic compliance reports, which will facilitate
necessary inspections and reduce the need for some physical
monitoring.[^102] The reports would provide concise status updates and
limited, but essential, information that the agencies need for their
compliance monitoring. NOAA, for example, requires post-installation and
annual status reports. The report information could help to better focus
undersea cable inspections, using expensive remotely operated vehicles
or manned submersibles, primarily in areas where problems are likely to
arise. In addition, BLM and the Forest Service require communications
site rights-of-way holders to provide an annual inventory of a site's
tenants. The agencies then use the inventory, among other things, to
verify authorized users on sites where multiple users are sharing
facilities on the right-of-way. The information in these and similar
reports can assist federal land managers in fulfilling their monitoring
responsibilities, while assisting industry members in discharging their
maintenance and compliance duties. Early detection of potential problems
will help both parties to resolve them more easily before they develop
into more serious issues.

***Implementation:*** Federal agencies that do not routinely require
compliance reports should incorporate the requirement into their
rights-of-way procedures. Some agencies may determine that adopting a
new rule requiring telecommunications rights-of-way holders to file
periodic reports requires notice and comment. If so, such agencies
should initiate rulemaking, as necessary and appropriate, by December
2004.

***Recommendation #5:*** Fifth, the Working Group recommends that all
agencies recover their monitoring and compliance costs under the
specific statutes governing their agencies and/or the broad authority
granted them pursuant to the easement granting authority of 40 U.S.C.

§ 1314, as recodified by Public Law 107-217.[^103] NOAA, BLM, and the
Army Corps of Engineers currently charge such fees and the Forest
Service is promulgating cost recovery regulations similar to BLM's.
However, until the Forest Service finalizes and adopts such regulations,
it will continue to use voluntary fee collection agreements to recover
the costs of conducting some of its monitoring activities, primarily on
large scale projects.

The Working Group recommends that agencies that have not adopted rules
to execute their authority to recover monitoring fees follow the
guidance provided in OMB Circular

No. A-25. The circular directs agencies to recover the full costs of
managing federal rights-of-way, including monitoring and other
compliance activities. Therefore, as described previously in section
III. C.1. on "Cost Recovery," federal agencies should clearly identify
the costs they seek to recover and adopt the recommended techniques for
streamlining cost recovery.

***Implementation:*** By December 2004, any relevant federal land
management agency that does not recover its monitoring and compliance
costs should commence a rulemaking, as necessary and appropriate, to
adopt rules to execute its authority to recover such costs.

2.  [Addressing Unanticipated Costs]{.underline}

###  *Issue:* In the Working Group's experience, federal grantees rarely abandon uncompleted projects or fail to seek renewal of expiring rights-of-way or re-assignment for successor companies. Having determined that access to federal lands is essential to their ability to provide service, rights-of-way holders are usually reluctant to relinquish this access barring extraordinary circumstances. To do so could adversely affect their or their successor's service, and abandoning a grant might jeopardize future rights-of-way applications or other government benefits. In the unusual case in which an agency must remove an abandoned installation or one located on an expired or terminated right-of-way, the government may incur unforeseen expenses. 

###  Although unlikely, if a company de-commissions a site on federal land, it has usually agreed in advance to the restoration measures it will undertake.[^104] If, however, a rights holder abdicates its responsibility to return the property to its previous condition, the Federal Government would then assume the task and the associated costs. Similarly, an agency could confront unanticipated costs if a grantee fails to restore government property to its previous condition following rights-of-way construction. Agencies may avoid even infrequent and, usually minimal, rights-of-way compliance expenditures, by requiring a bond or other means of securing performance.

NOAA's recent experience with submarine cables demonstrates the
difficulty that may arise without the protection of a bond. NOAA did not
require performance bonds from two companies that had received
permission to install fiber optic cable in two different national marine
sanctuaries. Post-installation surveys and monitoring of one of the
submarine cables revealed unburied cable in some places along its route.
At other locations, portions of cable were suspended, in one instance up
to several feet above the seabed. Exposed and inadequately buried cables
can present a hazard to commercial fishermen who might snag their
fishing gear, and to fish and marine mammals that might then become
entangled. Both cable companies sought protection in bankruptcy or
insolvency proceedings and were unable to pay for monitoring and other
fees required by their permits. A qualified buyer has assumed
responsibility for one of the cables and payments have resumed; however
the other cable system (the one with exposed segments) remains the
subject of a bankruptcy proceeding.

***Recommendation:*** The Working Group recommends that agencies use
their authority under 40 U.S.C. § 1314, or other appropriate statutes,
to impose reasonable, but adequate, bonding requirements to secure
fulfillment of a grantee's compliance obligations. Circumstances might
require agencies to engage expert advice to help forecast the costs of
maintaining rights-of-way or removing structures from them, which will
help the agencies to establish feasible bond amounts.

***Implementation:*** By August 2004, any relevant federal land
management agency that has not adopted rules to implement its authority
to impose reasonable, but adequate, bonding requirements should commence
a rulemaking, as necessary and appropriate, to adopt such rules.

3\. [Imposing Penalties for Noncompliance]{.underline}

***Issue:*** The integrity of the government's rights-of-way programs
depends in part upon the government's ability to compel a grantee's
compliance with its obligations under the right-of-way grant. If a
grantee fails to comply with the terms and conditions of a rights-of-way
grant, then the government may seek to remedy the violation and to deter
others by imposing fines or terminating the grant.

Agencies may suspend a right-of-way authorization until the grantee
complies within a fixed time period with applicable terms and
conditions.[^105] In addition, all land management agencies have the
authority to terminate a right-of-way grant for cause, but rarely use
this power. Their reluctance to do so may result from concerns about
service interruptions to innocent third parties. Authority to suspend or
terminate rights-of-way grants, while helpful, may not be sufficient to
obtain compliance from a recalcitrant rights-holder that intentionally
and continually violates the terms of the grant. In such egregious
instances, the government should have a strong enforcement tool at its
disposal, particularly when termination is not a viable option.

***Recommendation:*** Fines offer an effective way of satisfactorily
punishing compliance violators, while deterring future violations. NOAA,
for example, has the authority under the National Marine Sanctuaries Act
to impose civil penalties up to \$120,000 per day per violation, and to
seek criminal penalties in limited circumstances. The Forest Service,
which has no specific regulatory framework to impose fines, may, as a
last resort, seek criminal citations that may require a fine.

***Implementation:*** All federal land management agencies should,
within a year of the date of this report, determine their ability to
impose fines or other penalties for noncompliance. If an agency has no
such ability and determines that it requires such authority to enhance
its compliance program, then that agency should also determine what
steps are necessary to secure such authority.

**Conclusion**

The Working Group has provided a series of recommendations \-- covering
information access and collection, timely process, fees, and compliance
\-- that we believe will improve rights-of-way management for all
affected parties, while fostering greater broadband deployment across
this Nation. In the months ahead, the Working Group will assist the
federal agencies and other stakeholders in implementing our
recommendations to help meet the President's challenge of ensuring
affordable access to broadband technology for all Americans by 2007.

To ensure that the recommendations in this report are implemented in a
timely manner, the Working Group believes that it is important to review
the federal agencies' progress in adopting the recommendations.
Specifically, the Working Group recommends that OMB ask each of the
federal land management agencies to prepare a report of their efforts to
implement the Working Group's recommendations. The individual reports
should list specific steps that each agency took, as well as any
additional steps that still need to be taken to implement the
recommendations. The reports should be submitted to OMB no later than
twelve months from the release date of this report.

The Working Group again wishes to extend our sincere thanks to all of
the individuals who participated in this effort. Through your continuing
efforts, we will help bring the promise of broadband to the American
people.

![](media/image1.wmf){width="1.5in" height="1.4916666666666667in"}

National Telecommunications and Information Administration

U.S. DEPARTMENT OF COMMERCE

1401 Constitution Avenue, N.W.

Washington, D.C. 20230

\(202\) 482-7002

www.ntia.doc.gov

[^1]: Federal Communications Commission, *High-Speed Services for
    Internet Access: Status as of June 30, 2003* at 1 *at*
    http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/hspd1203.pdf
    (December 2003). The FCC defines "high-speed lines" as those that
    "provide the subscriber with transmissions at a speed exceeding 200
    kilobits per second (kbs) in at least one direction."

[^2]: President George W. Bush, Remarks on Home Ownership at Expo New
    Mexico, *at* (

    <http://www.whitehouse.gov/news/releases/2004/03/20040326-9.html>
    (March 26, 2004).

[^3]: President George W. Bush, Remarks at the Waco Economic Forum
    Plenary Session, *at*
    <http://www.whitehouse.gov/news/releases/2002/08/20020813-5.html>
    (August 13, 2002).

[^4]: ^?^ *Id.*

[^5]: On December 12, 2001, the President held the first meeting of
    PCAST. Leading private sector and academic experts composed PCAST,
    which was co-chaired by Presidential Science Advisor John Marburger
    and Floyd Kvamme.

[^6]: President's Council of Advisors on Science and Technology,
    *Building Out Broadband: Findings and Recommendations*, *at*
    [http://www.ostp.gov/PCAST/FINAL Broadband Report With
    Letters.pdf](http://www.ostp.gov/PCAST/FINAL Broadband Report With Letters.pdf)
    (Dec. 13, 2002).

[^7]: *Id.* at 9.

[^8]: Obtaining rights-of way for telecommunications projects is also an
    issue at the state and local levels. *See* [NARUC's]{.smallcaps}
    Study Committee on Public Rights-of-Way, *Promoting Broadband Access
    Through Public Rights-of-Way and Public Lands* (presented at the
    2002 NARUC Summer Meetings in Portland, Oregon on July 31, 2002);
    Christopher R. Day, *The Concrete Barrier at the End of the
    Information Superhighway: Why Lack of Local Rights-of-Way Access is
    Killing Competitive Local Exchange Carriers*, 54 FED. COMM. L.J. 461
    (2002); William Malone, *Access to Local Rights-of-Way: A Rebuttal*,
    55 FED. COMM. L.J. 251 (2003). To assist rights-of-way stakeholders
    in understanding and improving the authorization process for
    constructing new communications networks that carry broadband
    Internet and other communications services, NTIA released an
    electronic report on state and local rights-of-way. *See*
    <http://www.ntia.doc.gov/ntiahome/staterow/statelocalrow.html> (last
    visited March 26, 2004).  Intended as a resource for state and local
    land managers, communications providers, and other rights-of-way
    stakeholders, the report provides information about the laws,
    regulations, policies, and practices that affect state and local
    management of rights-of-way.  The electronic report includes a
    state-by-state matrix that identifies the rights-of-way laws
    relating to jurisdiction, compensation, timelines,
    nondiscrimination, mediation, and condemnation in all fifty states
    and the District of Columbia.  The report also includes an evolving
    compendium of rights-of-way "success stories," explaining how
    industry and government have devised creative new approaches to
    facilitate access to public rights-of-way.  NTIA's electronic report
    is intended to help advance the dialogue on rights-of-way management
    at the state and local level, with the goal of promoting broadband
    deployment across the United States.

[^9]: *See* <http://www.fs.fed.us/> (last visited March 26, 2004).

[^10]: *See* <http://www.noaa.gov/> (last visited March 26, 2004).

[^11]: *See* <http://www.ntia.doc.gov/> (last visited March 26, 2004).

[^12]: *See* <http://www.usace.army.mil/> (last visited March 26, 2004).

[^13]: *See* <http://www.navy.mil/> (last visited March 26, 2004).

[^14]: The U.S. Fish and Wildlife Service (FWS) is an agency of the
    Department of the Interior, but did not participate in the Working
    Group. FWS is the principal federal agency responsible for
    conserving, protecting, and enhancing fish, wildlife and plants and
    their habitats for the continuing benefit of the American people.
    The Service manages the 95-million-acre National Wildlife Refuge
    System, which encompasses 544 national wildlife refuges, thousands
    of small wetlands, and other special management areas. It also
    operates 69 national fish hatcheries, 63 Fish and Wildlife
    Management offices and 81 ecological services field stations.

[^15]: *See* <http://www.blm.gov/nhp/> (last visited March 26, 2004)

[^16]: *See* <http://www.nps.gov/> (last visited March 26, 2004).

[^17]: *See* <http://www.doi.gov/bureau-indian-affairs.html> (The site
    \<[www.bia.gov](http://www.bia.gov/) \>is temporarily unavailable
    due to the Corbell litigation, *see infra* fn. 49) (last visited
    March 26, 2004).

[^18]: *See* <http://www.fhwa.dot.gov/> (last visited March 26, 2004).

[^19]: *See* http://www.gsa.gov/Portal/gsa/ep/home.do?tabId=0 (last
    visited March 26, 2004). The U.S. General Services Administration
    (GSA) is a major federal landholding agency that manages Federal
    real property. It is not, however, a federal land managing agency
    responsible for overseeing tracts of public lands. While GSA's
    portfolio contains various types of real property, including
    unimproved real property over which it may grant rights-of-way,
    easements, or leaseholds, most of the portfolio consists of
    federally-owned and leased office buildings and warehouse space in
    urban and suburban areas. Accordingly, this report's recommendations
    are generally inapplicable to GSA, except for those related to
    linking the rights-of-way portal that NTIA will develop to the
    Firstgov website that GSA administers.

[^20]: As part of its larger and ongoing efforts to promote broadband
    deployment, on October 12, 2001, NTIA held informal public
    discussions with telecommunications companies and other stakeholders
    to gather information about the status of broadband deployment in
    the United States. The participants discussed cable open access,
    broadband deployment in underserved rural areas, demand and supply
    for advanced services, technical and economic roadblocks to
    broadband deployment, and regulatory methods for stimulating supply
    and demand. In November 2001, NTIA issued a Request for Comments on
    these and related issues. *See Deployment of Broadband Networks and
    Advanced Telecommunications*, NTIA Docket No. 011109273-1273-01, RIN
    0660-XX13, *at* <http://www.ntia.doc.gov/ntiahome/broadband/> (last
    visited March 26, 2004).

[^21]: National Environmental Policy Act of 1969, as amended, 42 U.S.C.
    § 4321 *et seq.*

[^22]: National Historic Preservation Act of 1966, as amended, 16 U.S.C.
    § 470 *et seq.*

[^23]: ^?^ All public comments submitted to the task force are posted on
    the CEQ Web site, *at*
    http://ceq.eh.doe.gov/ntf/comments/comments.html (last visited March
    26, 2004).

[^24]: ^?^ *See* The NEPA Task Force Report to the Council on
    Environmental Quality, *Modernizing NEPA Implementation,*
    *at,*<http://ceq.eh.doe.gov/ntf/report/index.html> (last visited
    March 5, 2004).

[^25]: ^?^ *Id.* at *vii.*

[^26]: **^?^** 43 U.S.C. § 1701 *et seq.* FLPMA does not apply to Indian
    land, however. The Secretary of Interior grants rights-of-way over
    Indian land under the Act of February 5, 1948, 25 U.S.C. §§ 323-328,
    and the Indian Land Consolidation Act, 25 U.S.C. § 2218. Similarly,
    FLMPA does not govern rights-of-way in national parks. Sections 5
    and 79 of the United States Code and applicable regulations control
    such rights-of-way grants.

[^27]: ^?^ The FLPMA defines "public lands" as

    > any land and interest in land owned by the United States within
    > the several States and administered by the Secretary of the
    > Interior through the Bureau of Land Management, without regard to
    > how the United States acquired ownership, except -- (1) lands
    > located on the Outer Continental Shelf; and (2) lands held for the
    > benefit of Indians, Aleuts, and Eskimos." 43 U.S.C. § 1702.

[^28]: ^?^ 43 U.S.C. § 1761(a)(5).

[^29]: *Id.* at § 1765(a)(ii).

[^30]: *Id.* at §1765(b)(i).

[^31]: *Id.* at §1764.

[^32]: The General Services Administration requested this legislation,
    which vested in all executive agency heads the authority to grant
    easements similar to that which previously only the Secretaries of
    the military departments, the Atomic Energy Commission, the
    Administrator of Veterans Affairs, and the Attorney General enjoyed.
    S. REP. 87-1364 (1962), 1962 U.S.C.C.A.N. 3870 at 3871. The Senate
    Report notes that the new law would "improve the . . . Government
    procedures for granting of easements. At present these procedures
    are unrealistic and result in undue delay to both the Federal
    Government and those dealing with it. Enactment of this bill \[H.R.
    8355\] will provide effective procedures in dealing with requests
    for easements . . . . " *Id.* at 3872.

[^33]: Public Law 107-217 revised, codified, and enacted without
    substantive change certain general and permanent laws, including
    Public L 87-852, as title 40, United States Code, 'Public Buildings,
    Property, and Works.' H.R. REP. 107-479 (2002), 2002 U.S.C.C.A.N.
    827. Public Law 107-217 is codified at 40 U.S.C. § 101 *et* *seq.*

[^34]: 40 U.S.C. § 1314(b) 2002 Supp. (emphasis added) (see Appendix A
    for text of entire provision). This provision excludes rights-of-way
    on public lands and National Forest system lands in accordance with
    the repeal of its predecessor, Public Law 87-852, under Section 706
    (a) of FLPMA. *See* 90 Stat. 2743, 2793.

[^35]: 40 U.S.C. § 101(2).

[^36]: *Id*. at § 113. "Except as otherwise provided in this section,
    the authority conferred by this subtitle is in addition to any other
    authority conferred by law and is not subject to any inconsistent
    provision of law." *Id.* at § 113(a).

[^37]: 16 U.S.C. § 1431 *et seq.*

[^38]: *Id.* at § 1441(a)(1).

[^39]: *Id.* at § 1441(d).

[^40]: *Id.* at § 1441(e).

[^41]: 42 U.S.C. § 4321 *et seq*.

[^42]: 16 U.S.C. § 470 *et seq.*

[^43]: 16 U.S.C. § 1531 *et seq.*

[^44]: ^?^ 42 U.S.C. § 4321.

[^45]: 16 U.S.C. § 470h-2(a)(2).

[^46]: 16 U.S.C. § 1531 (a)(2)-(a)(3).

[^47]: Other examples of such laws include: National Wildlife Refuge
    System Administration Act of 1966, as amended, (16 U.S.C. §§ 668dd
    -668ee); the Coastal Zone Management Act of 1972, as amended (16
    U.S.C. § 1451 *et seq.*); the Archaeological and Historic
    Preservation Act of 1974, as amended (16 U.S.C. § 469 *et seq*.);
    Section 404 of the Federal Water Pollution Control Act (Clean Water
    Act), as amended (33 U.S.C. § 1344); Section 10 of the Rivers and
    Harbors Act of 1899, as amended (33 U.S.C. § 403); and the
    Comprehensive Environmental Response, Compensation, and Liability
    Act of 1980, as amended (42 U.S.C. § 9601 *et seq*.).

[^48]: *See, e.g.,* BLM's Web site, *at*
    <http://www.blm.gov/nhp/what/lands/realty/row.htm> (last visited
    March 26, 2004).

[^49]: *See* <http://www.firstgov.gov/Business/Business_Gateway.shtml>
    (last visited March 26, 2004).

[^50]: The Working Group recognizes that the Bureau of Indian Affairs
    does not currently have a presence on the Internet. Specifically,
    the Bureau of Indian Affairs was disconnected from the Internet in
    December 2001, by order of U.S. District Court Judge Royce Lamberth,
    who cited security concerns and the need to protect data maintained
    under the Trust Asset and Accounting Management System. *See*
    Randall Edwards, *Interior shuffles BIA, adds tech division*,
    [Federal Computer Week]{.smallcaps}, June 30, 2003, at 12, *at*
    <http://www.fcw.com/fcw/articles/2003/0630/news-bia-06-30-03.asp>.
    Upon re-establishment of the Bureau's Internet presence, the Working
    Group recommends that the Bureau update its Web site as described
    above.

[^51]: A map is requested as part of the application form.

[^52]: The Working Group notes that applicants should continue to be
    responsible for providing information to the federal agencies for
    NEPA analyses, NHPA requirements, threatened and endangered species
    inventories, and any other clearances that may be required. The
    Working Group recommends that the federal agencies allow applicants
    to provide this information using experts from their own companies
    or expert third-party contractors.

[^53]: The NEPA/NHPA checklist lets the applicant know early in the
    process what environmental and historical preservation concerns need
    to be addressed before the rights-of-way permit will be granted. For
    sample NEPA compliance checklists, please see NOAA's checklist, *at*
    <http://www.ecs.noaa.gov/documents/nepaChecklist.html> (last visited
    March 26, 2004) and the U.S. Fish and Wildlife Service's checklist,
    *at* <http://training.fws.gov/fedaid/toolkit/3-2185.pdf> (last
    visited March 26, 2004). Information on compliance with the NHPA is
    available from the Advisory Council on Historic Preservation, *at*
    [http://www.achp.gov](http://www.achp.gov/) (last visited March 26,
    2004). Typically, when it is determined that a federal undertaking
    will have an adverse effect on a property listed or eligible for
    listing in the National Register of Historic Places, the federal
    agency and the applicant enter into a Memorandum of Agreement (MOA)
    with the State Historic Preservation Officer and other consulting
    parties setting forth agreed-upon mitigation measures. Sample MOAs
    that have been signed by the FCC's Wireless Telecommunications
    Bureau are available online, *at*
    <http://wireless.fcc.gov/siting/environ-nhpa-agreement.html> (last
    visited March 26, 2004).

[^54]: This time frame is consistent with existing processing standards
    of BLM and the Forest Service. *See* BLM Manual 2801, R/W Management
    and Handbook H-2801-1 and FSH 2709.11, Special Use Handbook, Chapter
    10.

[^55]: The determination of whether a project is small and uncomplicated
    or large and complex depends on a variety of factors, such as the
    number of agencies involved, the type of geographic area covered,
    and the extent of environmental impact, among other considerations.
    This is an area of federal agency discretion.

[^56]: *See* *e.g*., BLM Manual 2801, R/W Management and Handbook
    H-2801-1.

[^57]: When the Federal Energy Regulatory Commission (FERC) licenses
    large energy projects that involve several federal agencies, FERC
    often puts together a communications protocol so that all agencies
    and the permittee have a common understanding of how various
    communications are to occur between interested parties. *See, e.g.,*
    Appendix C, Federal Energy Regulatory Commission, *Communications
    Protocol: Lake Chelan Hydroelectric Project*, FERC [No]{.smallcaps}.
    637 (May 1, 1998; revised March 6, 2001).

[^58]: A utility corridor is "a parcel of land either linear or aerial
    in character that has been identified by law, Secretarial Order, the
    land-use planning process, or by other management decision, as being
    a preferred location for existing and future rights-of-way grants
    and suitable to accommodate more than 1 type of right-of-way or more
    rights-of-way which are similar, identical or compatible." Western
    Governors' Association, *Briefing Paper on Utility Corridors*, at
    2-3,
    [http://www.westgov.org/wieb/electric/Transmission%20Protocol/SSG-WI/util_corr.pdf](http://www.westgov.org/wieb/electric/Transmission Protocol/SSG-WI/util_corr.pdf)
    (last visited March 26, 2004).

[^59]: 43 U.S.C. § 1763.

[^60]: Implementation guidance for this action is articulated in
    Instruction Memorandum No. 2002-196 (June 25, 2002).

[^61]: The Western Utility Group is an industry group.

[^62]: *See* Western Utility Group, *Western Regional Corridor Study*
    (1993).

[^63]: Agencies should post information within six months of the release
    of this report.

[^64]: Forest Service, FSH 2709.11: Special Uses Handbook (October
    2002).

[^65]: *Id.*

[^66]: Forest Service, FSH 2709.11: Special Uses Handbook (October
    2002).

[^67]: See, GSA Bulletin FPMR D-242, Placement of Commercial Antennas on
    Federal Property, 62 Fed. Reg. 32,611 (1997). GSA Bulletin
    FMPR-D-242, Supplement 1, 64 Fed. Reg. 30523 (1999), extended the
    bulletin's expiration date indefinitely.

[^68]: The Working Group recognizes that many agencies have important
    security concerns. Consequently, such concerns may inhibit agencies
    that maintain communication sites co-located with, or comprising,
    critical infrastructure from broadly disseminating the location of
    such sites on a public Web site. In such instances, agencies should
    post on their Web site contact information for staff who can assist
    interested parties in identifying sites where they might co-locate
    their communications facilities. Agencies should do updates within
    six months of the release of this report.

[^69]: Certain applicants are exempt from some fees. Telephone local
    exchange carriers that apply for a right-of-way permit for
    facilities that are eligible for Rural Utilities Service financing
    are exempt from paying rights-of-way rents on any federal lands that
    are subject to § 504(g) of FLPMA, 43 U.S.C. § 1764(g). *(footnote
    continued on next page)*

    This exemption applies to any eligible facility, regardless of
    whether the applicant is a non-profit or for-profit telephone local
    exchange carrier. The exemption applies only to rental fees, so the
    applicant would still be subject to permit processing fees.

[^70]: 31 U.S.C. §§ 9701 and 1111.

[^71]: *See* Appendix D for a copy of OMB Circular No. A-25. OMB
    Circular No. A-25 provides all executive departments in the Federal
    Government with administrative direction in implementing the
    authority to recover costs as set forth in Title V of the
    Independent Offices Appropriations Act of 1952, 31 U.S.C. §§ 9701
    and 1111, and Executive Order Nos. 8248 and 11,541.

[^72]: Concerning building access, GSA does not charge
    telecommunications vendors for the agency personnel\'s time or
    effort in working with them, but GSA does expect these vendors to
    cover a variety of ancillary costs, such as utility expenses,
    equipment room build outs, security clearances, radio emissions
    safety assurance, confirmation of no interference with electronic
    equipment operating in or near the building, and changes to the
    installation "blueprint" based upon structural impediments,
    aesthetic issues, or tenant concerns.

[^73]: As noted earlier, (*see supra* fn.19) the issue of access to
    federal buildings is outside the scope of this report. We refer to
    the "telecommunications-in-buildings" approach of the GSA, however,
    as part of the Working Group's description in two specific areas:
    cost recovery and also rental fees (see below).

[^74]: As an example of the demarcation between small, uncomplicated
    rights-of-way ("minor") projects and large, complex interagency
    ("major") rights-of-way projects, BLM since the 1970s has used a
    threshold of 50 hours. In this context "hours" refers to the time
    needed by agency personnel to process applications and monitor
    authorizations.

[^75]: For an explanation of "fee schedules" please see the section on
    Rental Payments/Compensation.

[^76]: Most of these statutes and their associated regulations provide
    agencies with the discretion to waive all or part of a rental fee,
    pursuant to specific fee waiver criteria. Other statutes may also
    exempt rental fees for certain uses or rights-holders. The Army
    Corps of Engineers, for example, does not collect periodic rental
    payments for the grant of an easement. 31 U.S.C. § 9701. The General
    Services Administration may grant an easement without consideration,
    or with monetary or other consideration, or with exceptions if the
    head of the agency considers this necessary to protect the interests
    of the federal government. 40 U.S.C. § 1314. For American
    Indian-owned land subject to BIA approval, rights-of-way are
    acquired via easements involving a one-time payment. 25 C.F.R. §
    169.

[^77]: The primary statutory authority for the two agencies with respect
    to telecommunications and fiber optics for the granting of
    rights‑of‑way over National Forest System and BLM-administered
    public lands is Title V of the FLPMA, 43 U.S.C. § 1764.

[^78]: Requests for exceptions to this requirement can be made to OMB.
    Please see Appendix D for a copy of OMB Circular A-25.

[^79]: For a basic discussion of four general approaches to
    rights-of-way valuation, with particular emphasis on fiber optics
    easements, *see* Chapter III, "Valuing Rights of Way," National
    Oceanic and Atmospheric Administration, *Fair Market Value Analysis
    for a Fiber Optic Cable Permit in National Marine Sanctuaries*,
    August 2002. It is noteworthy that GSA takes a different approach to
    determine rental payments for building access than for rights-of-way
    access to federal lands. GSA is authorized to negotiate
    reasonable compensation for accessing federally- owned buildings. 
    For rooftop antenna placements, the amounts charged typically take
    into account such factors as building location, height, population
    served, and line of sight.  Insofar as the placement of antennas by
    GSA customers (*i.e.,* other federal agencies) is concerned, GSA
    charges for rooftop and other space needed based upon prevailing
    commercial rates.  GSA also requires a written agreement, which
    specifies the terms and conditions under which customers will access
    the building and install and maintain the telecommunications
    equipment. *See* GSA Bulletin FPMR D-242, Placement of Commercial
    Antennas on Federal Property, 62 Fed. Reg. 32,611, 32613 (1997).

[^80]: Statisticians and economists use GDP (Gross Domestic Product)
    deflators to remove the influence of price changes and to record
    only real changes to the economy. Stated differently, this deflator
    is a price index that is used as a means of adjusting "nominal"
    (money) GDP to obtain real GDP, which represents output of physical
    goods and services. This replaced a similar deflator based on Gross
    National Product (GNP).

[^81]: The House of Representatives has passed legislation during each
    of the last two sessions of Congress to require that any revision of
    the rental schedule be similar to the current schedule, in which the
    annual rates are based on a percentage of the estimated fee simple
    value of the land being occupied.

[^82]: For illustrative purposes, the 2003 Communications Site Fee
    Schedule (excerpted from Forest Service, FSH 2709.11: Special Uses
    Handbook, October 2002 (Chapter 30, "Fee Determination")) may be
    found in Appendix E.

[^83]: CPI-U is an index of changes in the prices of goods and services
    to typical urban-based consumers and is premised upon the cost of
    the same goods in a base period. For linear rights-of-way rental fee
    rates, the Forest Service and BLM annually update those rates.

[^84]: A permit is a permission granted by the property owner to use the
    property, subject to the terms and conditions of the permit. A
    permit grants no interest in the property, is nonexclusive, and is
    often revocable.

[^85]: An easement is an interest in land owned by another that entitles
    the holder to a specific limited use (*e.g.,* to cross the land).
    The use may be in perpetuity or for a stated period of time and
    usually involves the initial payment of consideration to the
    property owner.

[^86]: *See* C.P. Bucaria and R.G. Kuhs, *Fiber Optic Communication
    Corridor Right of Way Valuation Methodology*, [The Appraisal
    Journal]{.smallcaps}, April 2002, at 2.

[^87]: *Id.*

[^88]: BIA's mission is unique among the federal land managing agencies.
    As the lead agency for implementing the United States' fiduciary
    responsibility for trust and restricted fee lands owned by Native
    Americans, BIA distributes all appropriate right-of-way payments to
    the owners whose property is being crossed in accordance with their
    ownership interest in the property. Therefore, it is recognized that
    any funds derived from Indian lands held in trust must be handled in
    a manner that is consistent with the federal government's fiduciary
    responsibilities, such as, for example, by carefully segregating
    trust from non-trust funds.

[^89]: Where an agency finds a need to use appraisals, reference to the
    *Uniform Appraisal Standards for Federal Land Acquisitions*
    (December 2000)*,* promulgated by the Interagency Acquisition
    Conference, may be helpful in mitigating some of the problems
    identified with the use of appraisals.

[^90]: *See, e.g*., 43 U.S.C. § 1701(a)(8), which sets forth a
    Congressional policy declaration that:

    > the public lands be managed in a manner that will protect the
    > quality of scientific, scenic, historical, ecological,
    > environmental, air and atmosphere, water resource, and
    > archeological values; that where appropriate, will preserve and
    > protect certain public lands in their natural condition; that will
    > provide food and habitat for fish and wildlife and domestic
    > animals; and that will provide for outdoor recreation and human
    > occupancy and use.

[^91]: In contrast to other federal land managing agencies, BIA
    administers rights-of-way on lands owned by Indian tribes or
    individuals, and balances preservation of the trust resource with
    economic development in fulfilling its role.

[^92]: *See, e.g*., 16 U.S.C. §532, which provides that:

    > The Congress hereby finds and declares that the construction of an
    > adequate system of roads and trails within and near the national
    > forests and other lands administered by the Forest Service is
    > essential if increasing demands for timber, recreation, and other
    > uses of such lands are to be met . . . and that such a system is
    > essential to enable the Secretary of Agriculture to provide for
    > intensive use, protection, development, and management of these
    > lands under principles of multiple use and sustained yields of
    > products and services.

    However, some federal agencies have a narrower mission. The National
    Park Service's establishing legislation instructs that agency to
    "conserve the scenery and the natural and *(footnote continued on
    next page)*

    historic objects and the wildlife therein and to provide for the
    enjoyment of the same in such manner and by such means as will leave
    them unimpaired for the enjoyment of future generations." 16 U.S.C.
    § 1.

[^93]: U.S. Department of the Interior, Bureau of Land Management,
    *Annual Report FY02: Balancing Today's Need for Tomorrow's Public
    Lands,* at preface, *at*
    <http://www.blm.gov/nhp/info/stratplan/AR02.pdf> (last visited March
    26, 2004) (public lands administered by the BLM include "millions of
    acres of open rangelands; geological formations containing the oil,
    gas, and coal resources needed to sustain our economic well-being;
    wilderness and recreation areas with spectacular scenery and
    opportunities for solitude; nearly 117,000 miles of fishable
    streams; high forested slopes; alpine tundra; majestic canyons; and
    rugged badlands").

[^94]: Federal Rights of Way Working Group Survey Response of the Bureau
    of Land Management (BLM Survey Response), at 1 (on file with NTIA).
    For rights-of-way, BLM has inventoried and prioritized
    energy-related rights-of-way applications; hired four rights-of-way
    project managers, all stationed in the West, to expedite major
    rights-of-way applications; and expanded rights-of-way training for
    BLM staff and industry. *[BLM]{.smallcaps} FY02 Annual Report* at 3.

[^95]: *See* <http://www.fs.fed.us/aboutus/> (last visited March 26,
    2004).

[^96]: [U.S. D]{.smallcaps}epartment of Agriculture, Forest Service,
    *Obtaining a Special-Use Authorization with the Forest Service*,
    *at* <http://www.fs.fed.us/recreation/permits/broch.htm> (last
    visited March 26, 2004).

[^97]: 43 C.F.R. § 2808.4.

[^98]: *Id.* at § 2808.2-1(a)(5).

[^99]: *Id*.

[^100]: *See* <http://www.ntc.blm.gov/> (last visited March 26, 2004)
    and <http://www.irwaonline.org/education/> (last visited March 26,
    2004).

[^101]: ^?^ BLM Survey Response at 4 (on file with NTIA).

[^102]: The Federal Highway Administration periodically accommodates
    grantees on highway easements. These grantees are not required to
    submit compliance reports unless they are installing equipment for
    ongoing telecommunications operations.

[^103]: *See* Appendix A, discussed *supra* at fn. 34.

[^104]: "In the unlikely event that a service provider removes an
    antenna site, the necessary steps are taken to restore the property
    to its original state. This generally includes removal of all
    equipment and restoration of the property's grounds and surrounding
    areas. Typically, the level of restoration will be negotiated during
    the initial approval process. The removal of an antenna site is,
    however, an unlikely prospect." Cellular Telecommunications &
    Internet Association, U.S. Department of the Interior, Bureau of
    Land Management, and U.S. Department of Agriculture, Forest Service,
    *Siting Wireless Telecommunications Facilities* (2002 ed.) at 93.

[^105]: *See, e.g.*, FLPMA § 506, 43 U.S.C. § 1766 (describing the
    powers of the Secretaries of the Interior and Agriculture to suspend
    and terminate rights-of-way and easements for abandonment or failure
    to comply with any condition of the grant, or applicable rule, or
    regulation).