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                            Before the
                FEDERAL COMMUNICATIONS COMMISSION
                    Washington, D.C.  20554

In the Matter of                   )
                              )
                              )                             
The Petition of the State of Minnesota  )
for a Declaratory Ruling Regarding the  )
Effect of Section 253 on an Agreement   )    CC Docket No. 98-1  
to Install Fiber Optic Wholesale        )
Transport Capacity in State Freeway     )
Rights-of-Way                 )
                              )
                              )


                   MEMORANDUM OPINION AND ORDER

     Adopted:  December 20, 1999             Released:  December 23, 1999
     

By the Commission:

                        TABLE OF CONTENTS

                                                        Paragraph


     I.  INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . .  1
     A.  Summary . . . . . . . . . . . . . . . . . . . . . . .  1
          B.  Background. . . . . . . . . . . . . . . . . . . . . .  5
               1.  Agreement Between Minnesota and Developer. . . .  5
               2.  The Telecommunications Act of 1996 . . . . . . .  8

     II.  DISCUSSION. . . . . . . . . . . . . . . . . . . . . . .   11
          A.  Overview. . . . . . . . . . . . . . . . . . . . . .   11
          B.  Applicability/Scope of Section 253(a) . . . . . . .   12
               1.  The Agreement Falls Within the Scope of Section 253  13
               2.  The Agreement Creates a Legal Requirement. . .   16
          C.  Section 253(a) Analysis . . . . . . . . . . . . . .   20
               1.  Precedent from the Texas Preemption Order. . .   21
               2.  Alternative Rights-of-Way. . . . . . . . . . .   23
                    a.  Gas, Electric, and Oil Pipeline Utility Rights-of-Way  24
                    b.  Railroad Rights-of-Way. . . . . . . . . .   25
                    c.  State Trunk Highway Rights-of-Way . . . .   26
                    d.  Cost Studies. . . . . . . . . . . . . . .   30
               3.  Existing Fiber Capacity and the Ability to Expand It  37
               4.  Making the Agreement "Functionally Non-Exclusive"  39
                    a.  Installation of Third Party Fiber . . . .   41
                    b.  Availability of Network Capacity for Purchase or Resale  42
                    c.  Availability of Conduit . . . . . . . . .   44
                    d.  Nondiscrimination . . . . . . . . . . . .   46
          D.  Section 253(b) Analysis . . . . . . . . . . . . . .   50
               1.  Competitive Neutrality of the Agreement. . . .   51
               2.  Necessity of the Agreement . . . . . . . . . .   54
                    a.  Public Safety . . . . . . . . . . . . . .   55
                    b.  Universal Service . . . . . . . . . . . .   58
          E.  Section 253(c) Analysis . . . . . . . . . . . . . .   59

     III.  PETITIONS FOR PREEMPTION . . . . . . . . . . . . . . .   64

     IV.  ORDERING CLAUSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
                            I.  INTRODUCTION
A.   Summary

     1.   In this Order, the Commission declines to grant a Petition for Declaratory Ruling (Petition)
filed on January 5, 1998, by the State of Minnesota (State or Minnesota).  Minnesota asks the
Commission to find that its Agreement with ICS/UCN LLC (Developer) and Stone & Webster
Engineering Corporation concerning access to certain rights-of-way is consistent with section 253 of the
Telecommunications Act.  The Agreement provides the Developer with exclusive physical access, for at
least ten years, to longitudinal rights-of-way along Minnesota's interstate freeway system.  In exchange
for exclusive physical access to these rights-of-way, the Developer commits to construct 1,900 miles of
fiber optic transport capacity throughout the State and to provide the State with a portion of that
capacity.  Minnesota plans to use these facilities to implement an intelligent transportation system and
carry state government communications.  

     2.   On January 9, 1998, the Commission issued a Public Notice seeking comment on the
Petition.  More than twenty states and/or state agencies submitted letters generally supporting Minnesota. 
The seventeen carriers that submitted comments unanimously opposed the Petition and asked the
Commission to preempt the Agreement.

     3.   Based on the current record, we cannot endorse this Agreement as requested by
Minnesota.  Minnesota fails to demonstrate that the Agreement neither prohibits nor has the effect of
prohibiting the provision of competitive telecommunications services by certain entities.  To the contrary,
the Agreement appears to have the potential to adversely affect the provision of telecommunications
services by facilities-based providers, in violation of the provisions of section 253(a).  As a result, the
Agreement is a matter of great concern to the Commission.  Indeed, the State's action, effectively granting
an exclusive license to Developer, appears fundamentally inconsistent with the primary goal of the
Telecommunications Act of 1996, to replace exclusivity with competition.

     4.   On the other hand, depending on how the Agreement is implemented, the potential
competitive effects that fuel our concerns may be largely or wholly ameliorated.  As discussed below, our
primary concern is that the Agreement may effectively preclude carriers from providing
telecommunications services by deploying their own facilities. This concern may be mitigated depending
on how the Developer implements provisions in the Agreement that it make excess capacity available for
lease or purchase at nondiscriminatory rates.  Although we do not grant requests to preempt at this time,
we will closely examine any future petitions if the Agreement is implemented in an anti-competitive
manner.

B.   Background

     1.   Agreement Between Minnesota and Developer

     5.   In February of 1996, MnDOT issued a request for proposals for the development of
telecommunications transmission capacity along State freeway rights-of-way, in exchange for exclusive
physical access to such rights-of-way.  In doing so, Minnesota stated that it sought to further four public
policy goals: (1) development of an intelligent transportation system (ITS) using transmission capacity
obtained through the Agreement; (2) extension of a fiber optic network to rural areas of the state; (3)
reduction of  "telecommunications costs to State government by exchanging rights-of-way access for
transmission capacity;" and (4) creation of increased competition by adding another fiber optic
telecommunications network in Minnesota.  Minnesota decided to award one entity exclusive physical
access to the freeway rights-of-way because of traffic safety concerns.  This approach differed from the
permit process used for access to the rights-of-way along the state trunk highways.

     6.   Minnesota selected Developer and entered into an Agreement granting Developer exclusive
physical access to the freeway rights-of-way.  As part of the Agreement, Developer plans to install fiber
optic rings in three regions of Minnesota.  The rings require approximately 1900 sheath miles of fiber,
approximately 1000 of which will be placed on freeway rights-of-way where Developer will have exclusive
physical access.  Developer plans to operate its network as a carrier's carrier, providing wholesale
transport capacity.  The Agreement prevents the Developer from offering "telecommunications services
directly or indirectly to the public," although an affiliate of the Developer may do so using Developer's
network.  The Agreement requires Developer to charge its affiliate "the same rates and charges as it does
for similarly situated, unaffiliated, non-interested customers and users of the Network or similarly situated,
unaffiliated, non-interested Collocating Customers."

     7.   The Agreement also requires the Developer to "collocate," i.e., install, fiber owned by third
parties at the same time Developer installs its own fiber.  Once Developer installs its fiber, however, the
trench where the fiber was placed will remain closed for a minimum of ten years.  Developer also must
maintain the third party fiber it installs.  In addition, Minnesota points out that Developer must make both
dark and lit fiber available for lease or purchase on a nondiscriminatory basis. 

     2.   The Telecommunications Act of 1996

     8.   The Telecommunications Act of 1996, as the Supreme Court recently noted, is "an
unusually important legislative enactment" that has changed the landscape of telecommunications
regulation.  Through this comprehensive amendment to the Communications Act of 1934, Congress
sought to establish "a pro-competitive, de-regulatory national policy framework designed to accelerate
rapidly private sector deployment of advanced telecommunications and information technologies and
services to all Americans by opening all telecommunications markets to competition."  Congress rejected
the historic paradigm of telecommunications services provided by government-sanctioned, heavily-
regulated monopolies in favor of a new paradigm that encourages the entry, through various means, of
efficient competing service providers into all telecommunications markets.

     9.   Among other things, the Telecommunications Act of 1996 amended the Communications
Act by adding section 253, which is designed to ensure that state and/or local authorities cannot frustrate
the 1996 Act's explicit goal of opening all markets to competition.  Section 253 specifically authorizes
the Commission to preempt state or local requirements that are contrary to section 253(a) unless they
come within certain exceptions.  

     10.  Section 253(a) provides that:

          No State or local statute or regulation, or other State or local legal requirement,
     may prohibit or have the effect of prohibiting the ability of any entity to provide
     any interstate or intrastate telecommunications service.

Section 253(b) creates an exception to section 253(a), providing that:

          Nothing in this section shall affect the ability of a State to impose, on a
     competitively neutral basis and consistent with section 254, requirements necessary
     to . . . protect the public safety and welfare . . . .

Section 253(c) also preserves state authority, stating that: 

          Nothing in this section affects the authority of a State or local government to
     manage the public rights-of-way or to require fair and reasonable compensation
     from telecommunications providers, on a competitively neutral and
     nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory
     basis, if the compensation required is publicly disclosed.

Section 253(d) directs the Commission to preempt the enforcement of state or local requirements
that are contrary to sections 253(a) or 253(b) "to the extent necessary to correct such violation or
inconsistency."

                         II.  DISCUSSION

A.   Overview

     11.  To determine whether the Agreement violates section 253 of the Act, we must first
consider whether the Agreement is subject to section 253.  If we find that the Agreement falls
within the scope of section 253, we must determine whether the Agreement may prohibit or have
the effect of prohibiting the ability of any entity to provide any telecommunications service.  If the
Agreement has that effect, the Commission must preempt it unless the Agreement comes within
the terms of the exceptions Congress carved out in sections 253(b) and (c).  Since Minnesota filed
the Petition at issue, it has the burden of demonstrating that the Agreement will not contravene
section 253(a), or, if it does, that the requirement falls within one of the exceptions in sections
253(b) and (c).

B.   Applicability/Scope of Section 253(a)

     12.  Despite Minnesota's argument to the contrary, we conclude that the Agreement
falls within the scope of section 253(a), regardless of whether the Developer is providing a
telecommunications service.  We cannot agree with the assertion by the Intelligent Transportation
Society of America (ITS America) that the Agreement fails to qualify as a state or local legal
requirement subject to section 253(a) of the Act.  

     1.   The Agreement Falls Within the Scope of Section 253

     13.  We cannot accept Minnesota's claim that the Agreement is not subject to section
253(a).  Minnesota argues, based on the Commission's decision in the New England Preemption
Order, that in order to fall within the scope of section 253(a), the Commission must make a
threshold determination that the requirement at issue restricts the provision of a
telecommunications service.  The state claims that the Agreement does not have such an effect
because (1) the Developer is an infrastructure provider, not a provider of telecommunications
services, and (2) the Agreement prohibits the Developer from providing telecommunications
services directly to the public.

     14.  Minnesota's focus on the purpose of the Agreement, and on what the Developer
will provide, is misplaced.  It is the Agreement's effect on the provision of telecommunications
service that is critical, not whether the Agreement could be characterized as dealing with
infrastructure development.  Parties opposed to the Agreement argue that, by restricting who may
deploy telecommunications infrastructure along freeway rights-of-way, the Agreement will have
the effect of prohibiting certain entities from providing telecommunications services.  As
described below, we conclude that the Agreement may have such an effect.

     15.  Our conclusion here is fully consistent with the New England Preemption Order. 
In that order the Commission found that the provision of payphones was a telecommunications
service, and that the city's restrictions prohibited a class of carriers from providing this
telecommunications service contrary to section 253(a).  Whether the state or local requirement
affected the provision of telecommunications services was the important issue, not the purported
subject matter of the restriction.  We use the same analysis here -- whether the requirement has
the effect of prohibiting the provision of any telecommunications service.  

               2.   The Agreement Creates a Legal Requirement

     16.  Similarly, we cannot agree with ITS America's argument that the Agreement does
not create a legal requirement to which section 253(a) could apply.  As we understand ITS
America's filing, ITS America asserts that section 253(a) would not be violated if Minnesota
acquired fiber optic capacity for its own purposes.  Because Minnesota could contract for fiber
capacity for itself, ITS America argues that Minnesota also has the authority to contract out the
management of its rights-of-way to a single entity on an exclusive basis.  Therefore, ITS
America argues that section 253 limits the Commission to reviewing Minnesota's procurement
laws.  ITS America contends that the Commission does not have the authority to "review
contractual arrangements entered into between the State and private parties pursuant to the lawful
exercise of its unchallenged procurement laws and procedures under section 253."  Thus,
according to ITS America the "only 'statute, regulation or other legal requirement' that could be
subject to section 253 scrutiny, would be the state's procurement laws or a state law that permits
the state or municipality to offer telecommunications services in competition with commercial
telecommunications service providers."  In other words, ITS America appears to be arguing that
the Agreement itself does not create a legal requirement subject to section 253(a).

     17.  We are not persuaded by ITS America's arguments.  We conclude that the
Agreement does rise to the level of a "statute, regulation, or legal requirement," and that section
253(a) applies to the Agreement itself, not just the State's procurement laws.  Although the
Agreement is not a statute or regulation, it grants Developer exclusive physical access to certain
freeway rights-of-way.  Awarding Developer exclusive physical access to these rights-of-way as
part of a contract legally binds the State to deny other entities permits for access to these freeway
rights-of-way.  Therefore, the Agreement between the Developer and the State creates a "legal
requirement" that prevents the State from granting potential competitors access to these freeway
rights-of-way.  In light of this, we see no reason why application of section 253(a) would be
limited to Minnesota's procurement statutes as opposed to the Agreement.

     18.  We conclude that Congress intended that the phrase, "State or local statute or
regulation, or other State or local legal requirement" in section 253(a) be interpreted broadly. 
The fact that Congress included the term "other legal requirements" within the scope of section
253(a) recognizes that State and local barriers to entry could come from sources other than
statutes and regulations.  The use of this language also indicates that section 253(a) was meant
to capture a broad range of state and local actions that prohibit or have the effect of prohibiting
entities from providing telecommunications services.  We believe that interpreting the term "legal
requirement" broadly, best fulfills Congress' desire to ensure that states and localities do not
thwart the development of competition.  Our conclusion, that Congress intended this language to
be interpreted broadly, is reinforced by the scope of section 253(d).  Section 253(d) directs the
Commission to preempt any statute, regulation, or legal requirement permitted or imposed by a
state or local government if it contravenes sections 253(a) or (b).  A more restrictive
interpretation of the term "other legal requirements" easily could permit state and local restrictions
on competition to escape preemption based solely on the way in which action was structured.  We
do not believe that Congress intended this result.

     19.  As discussed above, we will look at the effect of the state or local government's
action to determine whether section 253 is applicable.  In this case, Minnesota is not merely
acquiring fiber optic capacity for its own use; it is providing a private party with exclusive
physical access to the freeway rights-of-way.  The fact that Developer can use its facilities along
these rights-of-way to provide wholesale telecommunications capacity to others and retail
telecommunications service through an affiliate, has the potential to adversely affect competitors
that do not have similar access.  This situation is very different from a traditional government
procurement of telecommunications facilities or services.

C.   Section 253(a) Analysis

     20.  Minnesota fails to show that the Agreement does not have the potential to violate
section 253(a).  In particular, we are concerned that the Agreement has the potential to deprive
competitors of the ability to compete on a facilities basis.  As the Commission concluded in the
Texas Preemption Order, such a restriction would violate section 253(a).  

     1.   Precedent from the Texas Preemption Order

     21.  In the Texas Preemption Order, the Commission preempted state-imposed build-
out requirements on two separate grounds.  First, the Commission concluded that section 253(a)
bars state or local requirements that restrict the means or facilities through which a party is able to
provide service.  In particular, the Commission found that new entrants must be able to choose
whether to resell incumbent local exchange carrier (LEC) services, obtain incumbent LEC
unbundled network elements, utilize their own facilities, or employ any combination of these three
options.  The Commission reached this conclusion by reading section 253(a) and the statutory
definition of "telecommunications service" together.  When considered together, these sections
provide that no state or local requirement may prohibit or have the effect of prohibiting any entity
from providing any offering of telecommunications directly to the public for a fee regardless of
the facilities used.  By requiring competing carriers to provide service by building their own
facilities, the Texas law precluded the other forms of entry contemplated by the Act.  The
Commission found that other provisions of the Act supported this interpretation of section
253(a).  As a second, independent basis for the decision, the Commission found that
enforcement of the build-out requirements would have the effect of prohibiting certain carriers
from providing any telecommunications service contrary to section 253(a) because "the
substantial financial investment" required to meet the build-out requirement effectively precluded
any entry at all.

     22.  As discussed below, our concern that the Agreement may have the effect of
prohibiting facilities-based entry is premised on evidence in the record that utilizing rights-of-way
other than the freeway rights-of-way to install telecommunications infrastructure is substantially
more expensive than using the freeway rights-of-way.  The evidence in the present record
precludes us from concluding that the Agreement will not have the effect of prohibiting facilities-
based competition because of the availability of alternative rights-of-way, the existence of excess
fiber optic capacity, or access to Developer's capacity.  We are very concerned that giving
Developer exclusive physical access to rights-of-way that are inherently less costly to use has the
potential to prevent facilities-based entry by certain other carriers that cannot use these rights-of-
way.  This would be inconsistent with section 253(a) and the Commission's decision in the Texas
Preemption Order.  On the other hand, the Agreement could be implemented in a manner that
does not contravene section 253(a), as indicated elsewhere.

               2.   Alternative Rights-of-Way

     23.  Minnesota fails to convince us that the existence of alternative rights-of-way
means that the Agreement does not have the potential to prevent certain carriers from providing
facilities-based services.  Minnesota argues that, although the Agreement precludes competitors
from having physical access to freeway rights-of-way, carriers wishing to provide
telecommunications services can construct their own fiber optic facilities using alternative rights-
of-way.  Parties opposing grant of the Petition claim that "there are distinct cost advantages of
constructing a telecommunications network over freeway rights-of-way in Minnesota, as opposed
to using other rights-of-way that are purportedly available to competitors."  These commenters
claim that this cost differential is substantial enough to make it infeasible for a competitor to use
alternative rights-of-way to provide facilities-based services in competition with the Developer or
entities using Developer's services.  Evidence on the record indicates that the cost of using the
alternative rights-of-way is not competitive with using of the freeway rights-of-way, to serve
communities along the freeway's route.

          a.   Gas, Electric, and Oil Pipeline Utility Rights-of-Way

     24.  The record does not support Minnesota's contention that utility rights-of-way offer
suitable alternatives to use of the freeway rights-of-way.  Minnesota claims that there are many
sources of alternative rights-of-way within the state, including utilities, such as gas pipelines, oil
pipelines, and electric power lines.  Opponents claim that these utility rights-of-way do not
provide a practical alternative to freeway rights-of-way, because: (1) other than electric utilities,
they are under no legal requirement to allow telecommunications providers access to their rights-
of-way;  (2) utilities are potential competitors who may not want to share their rights-of-way
with other telecommunications providers; (3) many pipeline companies and electric utilities lack
perfected easements that would allow telecommunications uses of the property; (4) pipeline
companies and electric utilities seek to minimize the risk of accidents by locating their facilities
away from population centers, and, as a result, are not always the most direct route between
population centers; and, (5) pipeline companies and electric utilities may also deny access to
their rights-of-way for safety reasons or lack of space.  Minnesota has not refuted these claims
by its opponents.  Therefore, we cannot find that Minnesota has demonstrated that this set of
rights-of-way provides a viable, competitive alternative to the freeway rights-of-way.

          b.   Railroad Rights-of-Way

     25.  There is also conflicting evidence concerning Minnesota's claim that railroad
rights-of-way provide a practical alternative for facilities-based competitors.  The MTA asserts
that the railroads charge high fees for access to their rights-of-way.  The MTA also states that
railroad crews must be assigned to insure the safety of workers installing fiber optic cable.  In
addition, it asserts that installation of fiber optic facilities takes longer because work must be
stopped when trains pass through construction areas.  The MTA estimates that the cost of using
railroad rights-of-ways is twice that of using the freeway rights-of-way.  Minnesota counters
these arguments by stating that MCI and Sprint have installed fiber in railroad rights-of-way in
Minnesota and that Qwest plans to install fiber throughout the nation on railroad rights-of-way. 
Prior commercial use of railroad rights-of-way does not demonstrate that granting exclusive
physical access to freeway rights-of-way will not have the effect of making future fiber optic
construction on railroad rights-of-way economically unattractive in Minnesota.  Indeed, it appears
that some entities used the railroad rights-of-ways because the freeway rights-of-way were not
available and it was easier to negotiate the necessary access.  We conclude that Minnesota has
not refuted opponents' claims that using railroad rights-of-way would be substantially more
expensive than using the freeway rights-of-way to install fiber.

          c.   State Trunk Highway Rights-of-Way  

     26.  Based on the current record, we cannot agree with Minnesota that rights-of-way
on state trunk highways provide a reasonable, competitive, alternative to the use of freeway
rights-of-way for the installation of fiber optic facilities.  To the contrary, the record demonstrates
that freeway rights-of-way have inherent advantages over state trunk highway rights-of-way. 
Parties challenging the Agreement point to three factors that make it more efficient and less
expensive to use the freeway rights-of-way:  (1) it is less expensive and less time consuming to
negotiate and obtain permission to use freeway rights-of-way; (2) freeways connect major
population centers more directly than alternative rights-of-way; and, (3) it is less expensive to
install fiber on freeway rights-of-way because there are fewer obstacles such as cross streets, and
no other utilities in the right-of-way, for example.  Each of these differences is discussed below.  

     27.  It appears that it would be more costly and time-consuming to obtain permission
to use state trunk highway rights-of-way than to obtain permission to use the freeway rights-of-
way.  A carrier wishing to use the state trunk highway system would need to negotiate and obtain
permits from MnDOT and all of the municipalities through which the state trunk highway passes
in order to install fiber in these rights-of-way.  An entity using the freeway rights-of-way would
only need to obtain MnDOT's approval.  In this regard, we note that at least two requests for
preemption filed with the Commission have involved refusals by local officials to grant franchises
or rights-of-way permits required for local exchange competition.

     28.  It also appears, based on the present record, that it is more expensive to use the
state trunk highway rights-of-way rather than the freeway rights-of-way because the distance
between major population centers measured along state trunk highways is greater than the
distance between the same points measured along the freeways.  According to the MTA, the
distance over the trunk highway routes is approximately 10 percent greater than the distance over
the freeway routes.  As a result, even if the price of installing fiber on both types of rights-of-
way is the same per mile -- which, as discussed below, does not appear to be the case -- the cost
of using state trunk highway rights-of-way would be greater because the routing of the state trunk
highway is less direct than the routing of the freeways.  

     29.  It also appears to be more expensive to install fiber optic transmission facilities
along the state trunk highway system than it is to use freeway rights-of-way.  Opponents of the
Agreement note that freeways are controlled-access roadways with relatively little interference
from cross-streets and other obstacles, such as sewer lines, electric lines, gas pipes, or other
objects buried in the rights-of-way.  Because there are fewer obstacles, using the freeway rights-
of-way will require less engineering and planning than use of the state trunk highway rights-of-
way. 

          d.   Cost Studies

     30.  Both Minnesota and the MTA submit cost studies to support their respective
positions on the cost differential between using freeway rather than state trunk highway rights-of-
way.  Based on the evidence in the record, we are unable to determine whether the cost difference
would prevent the provision of telecommunications services by certain entities.  

     31.  At the outset, we cannot accept Minnesota's assertion that cost comparisons must
reflect Developer's state-wide transmission network, including installation costs for both rural and
urban areas.  In determining whether the Agreement could have the effect of prohibiting "any
entity" from providing telecommunications service, we conclude that it is appropriate to consider
point-to-point cost comparisons since a competitor may wish to use the freeway rights-of-way for
particular point-to-point connections.  For example, a local exchange carrier may wish to use the
freeway rights-of-way to connect its existing switch to facilities in another exchange in order to
provide competitive local exchange service.  Other carriers may only be interested in providing
facilities-based services to specific areas.  For such carriers, the relevant consideration in
determining whether they can compete effectively in providing such service is a point-to-point
comparison.  Therefore, in conducting this analysis, we will compare the cost of installing
capacity between specific points utilizing freeway rights-of-way versus using state trunk highway
rights-of-way between the same points, and not Developer's cost of installing a fiber network in
Minnesota.  

     32.  Minnesota fails to convince us that the cost differential between using the state
trunk highway rights-of-way and the freeway rights-of-way for the installation of fiber optic
facilities will be insubstantial when considered in the context of the competitive
telecommunications industry, and thus unlikely to adversely affect entry decisions.  MTA and
MFS assert that the cost of installing fiber along the freeway is approximately 30 percent less than
the cost of installing fiber along the state trunk highway.  Minnesota appears to concede that the
cost differential for fiber installation is between 11 and 21 percent.  

     33.  Moreover, these cost studies do not attempt to quantify all of the advantages of
using the freeway rights-of-way.  For example, they do not reflect the effect of the administrative
costs and delays of having to obtain multiple permits from multiple localities when using the trunk
highway system.  We also note that using the freeway rights-of-way may improve reliability and
lessen maintenance costs since fiber installed on the freeway rights-of-way is less likely to be
unintentionally cut because the right-of-way is not shared with other users.  For a carrier wishing
to provide competitive local exchange service from a remote switch, the reliability of the
connection to the remote switch could be critical.  A cut in this cable could result in widespread
service disruptions for its customers.

     34.  Minnesota also argues that the cost differential claimed by MTA shrinks to a
negligible amount once the Developer's full costs are taken into account.  Pursuant to the
Agreement, Developer will provide the state with a variety of benefits, including at least 20
percent of the network's lit capacity as well as some dark fiber without charge.  The Developer
must also bear maintenance costs, provide up to $5 million worth of facilities and services for
Minnesota's ITS applications and lay fiber in "less profitable" rural areas.  The Developer must
also pay prevailing wage rates, which competing companies do not.  According to the state, when
all of these costs are included, the Developer will not have a cost advantage over carriers utilizing
other rights-of-way.

     35.  We cannot agree with this analysis.  We believe the appropriate comparison must
be between what it would cost an efficient carrier to provide facilities-based services using
freeway rights-of-way versus state trunk highways.  We do not believe that it is appropriate to
include in this comparison the additional cost of the benefits that the state is able to extract from
Developer only in exchange for granting exclusive physical access to these valuable freeway
rights-of-way.  Indeed, the state's argument that the Developer's costs should reflect these benefits
is premised on the state's position that it would not permit anyone to use the freeway rights-of-
way unless they agreed to provide the requested benefits.  We believe such an extraction of
benefits in exchange for exclusive physical access to rights-of-way is fundamentally inconsistent
with the 1996 Act, which endeavors to replace exclusive monopoly rights with open competition.

     36.  Moreover, it would be an ironic result if a state could seek to avoid a finding of a
potential section 253(a) violation through the expedient of claiming it may impose excessive
requirements on users of public rights-of-way.  Section 253(c) was specifically designed to avoid
such a result.  That section permits states and local governments to avoid preemption for section
253(a) violations when the state or local government's management of public rights-of-way are
implicated, and the state requires "fair and reasonable compensation from telecommunication
providers . . . for use of public rights-of-way on a nondiscriminatory basis."  We do not believe
that the benefits extracted in exchange for access to the freeway rights-of-way in this instance
meet the "fair and reasonable compensation" standard laid out in section 253(c).

               3.   Existing Fiber Capacity and the Ability to Expand It

     37.  We also disagree with Minnesota's contention that the Agreement is consistent
with section 253(a) of the Act because competitors can readily obtain fiber optic capacity on
existing networks and resell it.  In support of this assertion, Minnesota argues that there is excess
fiber optic capacity in Minnesota, and that current capacity can be expanded.  Minnesota asserts
that only 15 percent of the fiber optic capacity in Minnesota is lit.  Furthermore, the State argues
that the most cost-effective means of increasing capacity is to upgrade the electronics on existing
systems, rather than install new fiber.  As a result, Minnesota argues that current competitors
will not face capacity constraints and that new entrants will be able to obtain transport capacity
for resale from Developer and other providers at competitive market-based prices.  

     38.  This argument, however, only addresses the potential for entry through resale.  As
discussed above, we believe that section 253(a) bars state or local action that makes any of the
three entry methods unavailable to competitors.  Minnesota's argument that current providers
can expand capacity at less cost than installing new fiber does not address the potential adverse
effect of the Agreement on new entrants that wish to provide telecommunications service by
constructing their own facilities.  Nor would Minnesota's argument address the effect of the
Agreement on an existing telecommunications service provider that wishes to expand the
geographic scope of its facilities.  The existence of spare fiber optic capacity merely indicates that
new entrants will be able to lease fiber optic capacity from other providers for the purpose of
resale, and that current facilities-based providers will be able to expand the capacity on existing
routes.

               4.   Making the Agreement "Functionally Non-Exclusive"

     39.  We conclude that Minnesota has not demonstrated that the Agreement imposes
requirements on the Developer that will have the effect of making the Agreement "functionally
non-exclusive," i.e., that it would not "have the effect of prohibiting the ability of any entity to
provide any . . . telecommunications services," and therefore would not contravene section
253(a).   Minnesota argues that the Agreement is "functionally non-exclusive" because it
requires the Developer to install collocated fiber for third parties and lease or sell network
capacity to telecommunications providers on a nondiscriminatory basis.  In light of these
safeguards, Minnesota contends that the restriction on physical access to freeway rights-of-way
does not prevent any entity from offering telecommunications services, and instead enhances the
competitiveness of the market by making available a new source of fiber optic transport.

     40.  The safeguards contained in the Agreement represent a laudable effort to reduce
the potential anti-competitive effects of the Agreement.  As discussed above, however, section
253(a):

     bars state and local requirements that restrict the means or facilities through which
     a party is permitted to provide service, i.e., new entrants should be able to choose
     whether to resell incumbent LEC services, obtain incumbent LEC unbundled
     network elements, utilize their own facilities, or employ any combination of these
     three options.  

Nonetheless, there is some ambiguity in the safeguards contained in the Agreement.  Accordingly,
we are unable to determine at this time if the Agreement prevents other facilities-based providers
from providing telecommunications services.

                         a.   Installation of Third Party Fiber

     41.  Requiring the Developer to install fiber for other carriers when it installs its own
fiber, does not fully overcome the Agreement's shortcomings.  The primary problem with this
solution is that the opportunity to collocate fiber is very limited.  In order to collocate fiber a
competitor must enter into a "User Agreement" with Developer before Developer begins installing
fiber.  If a competitor is unable to do this before the trench is closed, that competitor will be
excluded from collocating fiber in the freeway right-of-way for a period of at least ten years. 
During this ten year period we expect new carriers to be formed, and existing carriers to expand. 
Keeping the freeway rights-of-way closed for at least ten years will have a particularly adverse
impact on the ability of to-be-formed, start-up, and expanding carriers to offer
telecommunications services in Minnesota because they will be unable to place facilities in the
most efficient rights-of-way.  The ten year restriction forces new entrants to use more expensive
rights-of-way, provide service through resale, or "purchase" fiber from Developer.  In comments,
but not the Agreement, Minnesota claims that new entrants can purchase capacity on an
indefeasible right of user (IRU) basis. The Agreement, however, does not sufficiently spell out
the obligations of Developer in providing capacity to interested parties.

                         b.   Availability of Network Capacity for Purchase or Resale

     42.  Based on the present record, we cannot conclude that the Agreement requires that
Developer to sell network capacity in a manner that makes the Agreement functionally non-
exclusive.  Minnesota argues that sections 7.7 and 7.8 of the Agreement require the Developer to
sell both lit and unlit network capacity, stating that the "unlit network capacity is similar to the
bulk capacity made available on an IRU basis."  It is possible that under certain circumstances,
the ability of interested parties to purchase facilities on an IRU basis might be an adequate
substitute for the ability to construct facilities along a particular route.  The present record,
however, does not demonstrate that this is the case.  The language of the Agreement does not
clearly state whether the Developer must sell lit or unlit capacity on an IRU basis.  Even if
interested parties are able to purchase capacity in Developer's network, the present record does
not establish that this would be an adequate substitute for the ability to construct facilities along
the freeway rights-of-way.  For example, we do not know whether the Developer will charge
rates, terms, and conditions that are just and reasonable.  Although it is possible that the presence
of collocated fiber owned by third parties or other fiber capacity in the state would serve as a
competitive restraint on the prices Developer could charge for capacity, we cannot determine
beforehand if this will be the case.  

     43.  Furthermore, the record does not adequately address whether the ability to obtain
fiber on an IRU-like basis is an adequate substitute for physical access to the freeway rights-of-
way.  Regardless of whether a competitor collocates or "purchases" fiber from Developer, it will
not be able to access the facility to maintain and repair it.  Several commenters argue that the
ability to maintain and repair their own fiber is important to ensure quality of service and limit
costs.  Nevertheless, it is possible that this drawback is not significant because fiber optic cable
generally requires little maintenance and the likelihood of a cable cut along this right-of-way is
relatively low.  Moreover, Minnesota suggests that carriers currently swap capacity on fiber optic
transport networks.  The present record, however, is not adequate to allow us to conclude that
the ability of interested parties to collocate fiber or purchase facilities on an IRU basis is an
adequate substitute for the ability to construct facilities.

                         c.   Availability of Conduit

     44.  The availability of conduit space, through which competitors could pull their own
fiber, may also ameliorate the anticompetitive effects of limiting physical access to the freeway
rights-of-way to one provider for a period of ten years.  Minnesota claims that "[a]ny carrier has
the opportunity to purchase access [to] either the fiber-optic in the conduit owned by [Developer]
or to AT&T's conduit if they wish to pull through their own fiber cable."  While we are
encouraged to hear that the Developer is installing conduit in the trenches, we do not have
enough information about the availability of conduit to conclude that it makes the Agreement
functionally non-exclusive.  If conduit space were available to competitors in a manner consistent
with section 253, it would further ameliorate our concerns because it would enable competitors to
pull their own fiber through the conduit at a later time.  The current record however neither
indicates that the Developer is required to provide conduit nor that it will have the ability to
provide such conduit space.  

     45.  The record also indicates that the Developer is installing conduit on behalf of
AT&T.  This suggests that empty conduit space may be available from AT&T.  While this might
further ameliorate our concerns, the record does not provide the rates, terms and conditions
AT&T would offer for access to the conduit nor whether AT&T would even offer access to such
conduit.  As a result, we cannot determine, at this time, whether the availability of conduit
would ameliorate the anticompetitive concerns that may have been created by the Agreement.

          d.   Nondiscrimination

     46.  Minnesota fails to demonstrate that the Agreement's nondiscrimination provisions
are sufficient to protect collocators and entities reselling or purchasing Developer's capacity. 
As commenters note, the Agreement specifically states that it does not create third party rights. 
As a result, parties wishing to obtain facilities or service from Developer or collocate along the
freeway rights-of-way have no right to enforce the Agreement's nondiscrimination
requirements.  

     47.  In addition, it is not clear from the record whether the nondiscrimination language
of the Agreement provides Minnesota with sufficient oversight powers to ensure that the rates
will be fair and reasonable.  The Agreement allows the Developer to raise prices so long as they
are not discriminatory.  Aside from claiming that the charges were discriminatory, neither
Minnesota nor Developer's customers would have a basis to object to the level of charges.  Thus,
Developer could use its exclusive physical access to the freeway rights-of-way to extract
monopoly profits from the fiber capacity it leases or "sells" on an IRU-like basis, as well as from
installation and maintenance of collocated fiber.  

     48.  Moreover, if Developer creates an affiliated retail service provider, it could
effectively preclude third parties from benefitting from the less expensive rights-of-way by
charging all retail customers, including its affiliate, unduly high rates.  These charges would not
be discriminatory since they would apply to all retail customers, however.  While this would
reduce the profits of its retail affiliate, Developer could offset this by the increased profits on its
wholesale offering.  In contrast to this, competitors would simply have lower retail profits if they
used Developer's services and facilities.  In this way, Developer could retain the benefits of the
less expensive rights-of-way for itself and prevent competitors from benefitting from use of the
least expensive rights-of-way.  Again, the uncertainty over how the Developer will implement the
Agreement requires us to exercise caution at this point and not approve the Agreement as
consistent with section 253.

     49.  We conclude that Minnesota fails to demonstrate that the Agreement's
nondiscrimination provisions are sufficient to protect resellers and collocators.  Neither third
parties nor the State would be able to ensure that the Developer does not capitalize on the
monopoly powers granted it by the state.  It is possible that the Developer's charges and/or other
terms for the purchase of capacity will be reasonable, but, based on the present record, we cannot
determine whether this will be the case. 

     D.   Section 253(b) Analysis

     50.  We conclude that the Agreement is not protected by section 253(b), which 
preserves from preemption certain state or local requirements that are "competitively neutral," and
"necessary" to achieve the public interest objectives enumerated in section 253(b), even if the
requirements contravene section 253(a).  In particular, Minnesota has not convinced us that the
Agreement is competitively neutral.  We also note that Minnesota has not shown that the
restrictions on physical access to the freeway rights-of-way are necessary to protect the public
safety and welfare.

     1.   Competitive Neutrality of the Agreement

     51.  We cannot agree with the State's contention that the Agreement is competitively
neutral as required by section 253(b) because the State followed a public procurement process in
selecting the Developer.  In support of its position, Minnesota argues that the requirement for
competitive neutrality in section 253(b) only relates to how the requirement is imposed, not to the
substantive effect of the measure.  We do not believe that Congress intended to protect the
imposition of requirements that are not competitively neutral in their effect on the theory that the
non-neutral requirement was somehow imposed in a neutral manner.  Moreover, we do not
believe that this narrow interpretation is appropriate because it would undermine the primary
purpose of section 253 -- ensuring that no state or locality can erect legal barriers to entry that
would frustrate the 1996 Act's explicit goal of opening all telecommunications markets to
competition.  Therefore, we conclude that the proper inquiry is whether the effect of the
Agreement will be competitively neutral.  

     52.  We conclude that the Agreement is not competitively neutral because it grants  a
single entity, the Developer, exclusive physical access to the valuable freeway rights-of-way for a
period of ten years with an option to renew for another ten years.  This restriction on physical
access is likely, as we explained above, to disadvantage future facilities-based entrants.  In
reaching this conclusion, we recognize that it is not necessary for a state to treat all entities in the
same way for a requirement to be competitively neutral.  In fact, treating differently situated
entities the same can contravene the requirement for competitive neutrality.  In this case,
however, Minnesota has not demonstrated that there are differences in circumstances that warrant
granting exclusive physical access to the freeway rights-of-way to only one party.

     53.  Our conclusion in this regard is supported by the decision in the Texas Preemption
Order.  In that Order we found that certain facilities "build out" requirements were not
competitively neutral under section 253(b) because they "single[d] out [a specific class of carriers]
and require[d] them to construct their own facilities or purchase access to non-incumbent network
elements."  We also noted that "by imposing the costs of providing facilities based service only
on [certain carriers], the build-out provisions significantly affect[ed] the ability of [these carriers]
to compete against other certificated carriers for customers in the local exchange market." 
Here the Agreement forces a specific class of carriers to use alternative rights-of-way that appear
to be more costly than the freeway rights-of-way.  The only significant difference is that the lack
of competitive neutrality in this case is imposed by granting the Developer an advantage --
exclusive physical access to the freeway rights-of-way -- rather than imposing a disadvantage on a
certain class of carriers, as was the case in the Texas Preemption Order.  Furthermore, as
discussed above, Minnesota has not demonstrated that the nondiscrimination provisions of the
Agreement are sufficient to overcome the effect of granting one entity exclusive physical access to
the freeway rights-of-way and render the Agreement competitively neutral.

     2.   Necessity of the Agreement

     54.  Our conclusion that the Agreement is not competitively neutral is dispositive on
the question of whether the section 253(b) exemption applies.  We nonetheless take this
opportunity to raise concerns about Minnesota's claims that the Agreement is necessary to protect
public safety and advance universal service objectives.

          a.   Public Safety

     55.  We agree with the State's assertion that requirements protecting the traveling
public and transportation workers fall within the general class of requirements potentially
protected by section 253(b).  Minnesota is concerned that allowing construction on the freeway
rights-of-way will increase the number of accidents and fatalities on the freeway, and, as discussed
above, that allowing construction more than once every ten years will increase the risk to an
unacceptable level.  In this instance, however, opponents of the Agreement dispute certain
aspects of Minnesota's claims.  

     56.  The record indicates that in many rural areas, the freeway right-of-way extends a
considerable distance beyond the paved shoulder, permitting work to take place beyond the paved
shoulder.  A major highway study in the record also shows "that construction on either the
'Shoulder/Roadside' (i.e., on the shoulder or beyond the shoulder) did not increase accident rates
in on (sic) any road type."  According to this study, "[t]he impact of construction on shoulders
or roadsides was a 4.3% decrease [in accident rates] with rural freeways, [and] a 2.2% decrease
[in accident rates] with urban freeways," when compared with "normal" road conditions.  As
such, in areas with wide rights-of-way, the record does not show a correlation between
construction work off the highway shoulder and an increase in accidents.  Because the Agreement
requires construction away from the paved surfaces when rights-of-way are wide enough,
Minnesota's safety concerns appear to be overstated, except in areas with very narrow rights-of-
way.  

     57.  Moreover, it appears that installing fiber optic facilities has no greater safety
impact than typical roadside maintenance, such as removal of refuse, mowing of grass, sign
maintenance and replacement, fence repair, and/or culvert construction that occurs routinely.  In
fact, installing fiber is less intrusive than typical repairs which take place on the roadways such as
joint repair and patching, or snow removal, which are common in cold climates like Minnesota. 
Therefore, based on the record before us, we are unable to determine whether it is necessary to
limit installation of fiber to once every ten years on all parts of Minnesota's interstate freeway
system.  

          b.   Universal Service

     58.  While we applaud Minnesota's efforts to bring advanced services to rural areas, we
are concerned that the Agreement is not "necessary to preserve and advance universal service." 
Minnesota claims that one of the benefits of the Agreement is that it extends fiber optic capacity
into rural areas by requiring Developer to install fiber over the entire planned network.  As
discussed above, however, extracting benefits from the Developer in exchange for exclusive
physical access to rights-of-way is, we believe, fundamentally inconsistent with the 1996 Act. 
At the very least, Minnesota has not demonstrated that this method is necessary to deploy
advanced services.

E.   Section 253(c)
     59.  We cannot agree with Minnesota that the Agreement is protected from preemption
by section 253(c).  Section 253(c) provides that "[n]othing in this section affects the authority of a
State or local government to manage the public rights-of-way or to require fair and reasonable
compensation from telecommunications providers, on a competitively neutral and
nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the
compensation required is publicly disclosed by such government."  Minnesota contends that the
decision to grant exclusive physical access to Developer constitutes rights-of-way management
that Congress exempted from section 253 preemption.  Further, Minnesota claims that it is
managing the rights-of-way in a nondiscriminatory manner because Developer is a not a
telecommunications service provider.  Minnesota also asserts that the compensation required is
reasonable, competitively neutral and nondiscriminatory as required by section 253(c).  In
particular, it asserts that the open procurement process ensures that the state has not unfairly
favored one provider over another.  The state also argues that the nondiscrimination requirements
in the Agreement and the provisions for collocation of third party fiber mitigate any anti-
competitive effects of the Agreement.

     60.  We have serious reservations about whether the Agreement constitutes rights-of-
way management for purposes of section 253(c).  In particular, the legislative history of section
253(c) indicates that Congress intended to protect the states' traditional regulation of rights-of-
way.  The House Report states that section 253 "makes explicit a local government's continuing
authority to issue construction permits regulating how and when construction is conducted on
roads and other public rights-of-way."  In contrast to this, Minnesota has decided not to use a
permit process similar to that in effect for other state rights-of-way and instead has granted
exclusive physical access to this right-of-way to a single entity in return for valuable
consideration.

     61.  Even assuming that the Agreement constitutes rights-of-way management,
Minnesota has not demonstrated that the Agreement is protected by section 253(c).  Section 253
requires that both management of public rights-of-way and the requirement for compensation be
competitively neutral and nondiscriminatory in order for a state or local legal requirement to be
protected under section 253(c).  As discussed previously in relation to section 253(b),
Minnesota has not shown that the Agreement is "competitively neutral and nondiscriminatory." 
Therefore, even assuming that the Agreement constitutes protected rights-of-way management --
which we are not convinced, based on this record, that it does -- Minnesota has not shown that
such management is competitively neutral and/or nondiscriminatory.

     62.  Moreover, Minnesota has not shown that the compensation required for access to
the right-of-way is "fair and reasonable."  The compensation appears to reflect the value of the
exclusivity inherent in the Agreement, rather than fair and reasonable charges for access to the
right-of-way.  Nor has Minnesota shown that the Agreement provides for "use of public rights-of-
way on a nondiscriminatory basis."  

     63.  In addressing the status of the Agreement under section 253, we are responding to
Minnesota's request for a declaratory ruling on the Agreement.  Since we conclude that
Minnesota fails to demonstrate that the Agreement will not violate section 253(a) or that it is
protected by section 253(b), we must consider whether the Agreement is protected from
preemption by section 253(c) in order to fully respond to Minnesota's petition.  Our discussion of
these issues should not be interpreted as addressing potential issues involving the Commission's
jurisdiction under section 253(c).

                  III.  PETITIONS FOR PREEMPTION

     64.  Many of the parties opposing Minnesota's request for declaratory ruling also ask
the Commission to preempt the Agreement in their filings in this proceeding.  We do not resolve
these requests for preemption at the present time.  As our prior discussion makes clear, there are
aspects of the Agreement that have the potential to contravene section 253(a), and we invite
interested parties to comment on whether the Commission should preempt the Agreement
pursuant to its authority under section 253(d).  We believe that our consideration of any requests
for preemption would be aided by supplemental information concerning the practical effect of this
Agreement, and we urge parties to provide us with such information in their comments.














                      IV.  ORDERING CLAUSE

     65.  Accordingly, IT IS ORDERED that the Petition for Declaratory Ruling filed by the
State of Minnesota IS DENIED.

                              FEDERAL COMMUNICATIONS COMMISSION



                              Magalie Roman Salas
                              Secretary                            APPENDIX A

            Minnesota Petition for Declaratory Ruling
                        CC Docket No. 98-1
                        List of Commenters

                             Comments

Ameritech Corporation (Ameritech)
Association for Local Telecommunications Services (ALTS)
GTE Service Corporation (GTE)
GVNW, Inc. (GVNW)
KMC Telecom Inc. and KMC Telecom II, Inc. (KMC)
MCI Telecommunications Corporation (MCI)
MFS Network Technologies, Inc. (MFS)
Midwest Wireless Communications, L.L.C. (Midwest Wireless)
Minnesota Telephone Association (MTA)
National Cable Television Association (NCTA)
National Telephone Cooperative Association (NTCA)
New York State Telecommunications Association, Inc. (NYSTA)
Nextlink Communications Inc. (Nextlink)
RCN Telecom Services, Inc. (RCN)
SBC Communications Inc. (SBC)
Teleport Communications Group Inc. (TCG)
United States Telephone Association, The Organization for the Promotion and Advancement 
     of Small Telecommunications Companies, The Western Rural Telephone Association 
     and The Competition Policy Institute (USTA Joint Comments)
US West, Inc. (US West)

                          Reply Comments

Crown Castle International Corp. (Crown Castle Reply Comments)
ICS/UNC, L.L.C. (Developer Reply Comments)
Intelligent Transportation Society of America (ITS America Reply Comments)
MCI Telecommunications Corporation (MCI Reply Comments)
MFS Network Technologies, Inc. (MFS Reply Comments)
Minnesota Telephone Association (MTA Reply Comments)
Teleport Communications Group Inc. (TCG Reply Comments)
Time Warner Cable (Time Warner Reply Comments)
United States Telephone Association, The Organization for the Promotion and Advancement 
     of Small Telecommunications Companies, The Western Rural Telephone Association 
     and the Competition Policy Institute (USTA Joint Reply Comments)
Universal Communication Networks, LLC
U.S. Department of Transportation (US DOT Reply Comments)
US West, Inc. (US West Reply Comments)
Wilbur Smith Associates

               States, State Agencies, and other Commenters


Alabama Department of Transportation
American Association of State and Highway Transportation Officials (AASHTO)
Arizona Department of Transportation
City of Boston
Commonwealth of Kentucky Transportation Cabinet    
Commonwealth of Virginia, Department of Transportation
DPD Comprehensive Resources Planning
Indiana Department of Transportation    
Iowa Department of Transportation  
Kansas Department of Transportation
Kentucky Department of Transportation
Massachusetts Highway Department 
Mississippi Department of Transportation
Missouri Department of Transportation
Montana Department of Transportation
New Mexico State Highway and Transportation Department
New York State Thruway Authority
North Dakota Department of Transportation    
Rep. Phyllis Kahn, Rep. Jean Wagenius, and Rep. Irv Anderson, Minnesota House of     
Representatives
State of Alaska Department of Transportation and Public Facilities    
State of California Department of Transportation  
State of Delaware Department of Transportation    
State of Florida Department of Transportation
State of Idaho Transportation Department
State of Maine Department of Transportation
State of Minnesota Intergovernmental Information Systems Advisory Council
State of Montana Department of Administration     
State of Nebraska, Department of Roads  
State of New Jersey Department of Transportation       
State of North Carolina Department of Transportation 
State of Oregon Department of Transportation
State of Rhode Island and Providence Plantations, Department of Transportation  
State of Tennessee Department of Transportation 
State of Utah Department of Transportation
State of Vermont Agency of Transportation
State of Wisconsin Department of Transportation   
Texas Department of Transportation 
Washington State Department of Transportation