Nationwide Dig Once Act of 2021
Bill: H.R.3703 | Sponsor: Rep. Eshoo, Anna G. (D-CA)
Policy area: Transportation and Public Works

Summary:
Nationwide Dig Once Act of 2021
This bill requires states to incorporate broadband infrastructure in construction projects that are supported with federal highway funds. It also establishes a task force to evaluate the costs of a nationwide dig once requirement (a requirement to minimize the number and scale of repeated excavations relating to the installation of broadband infrastructure in rights-of-way).

To facilitate the installation of broadband infrastructure, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Nationwide Dig Once Act of 2021''.

SEC. 2. DIG ONCE FOR BROADBAND INFRASTRUCTURE DEPLOYMENT.

    (a) Definitions.--In this section:
            (1) Appropriate state agency.--The term ``appropriate State 
        agency'' means a State governmental agency that is recognized 
        by the executive branch of the State as having the experience 
        necessary to evaluate and facilitate the installation and 
        operation of broadband infrastructure within the State.
            (2) Broadband.--The term ``broadband'' has the meaning 
        given the term ``advanced telecommunications capability'' in 
        section 706 of the Telecommunications Act of 1996 (47 U.S.C. 
        1302).
            (3) Broadband conduit.--The term ``broadband conduit'' 
        means a conduit or innerduct for fiber optic cables (or 
        successor technology of greater quality and speed) that 
        supports the provision of broadband.
            (4) Broadband infrastructure.--The term ``broadband 
        infrastructure'' means any buried or underground facility and 
        any wireless or wireline connection that enables the provision 
        of broadband.
            (5) Broadband provider.--The term ``broadband provider'' 
        means an entity that provides broadband to any person, 
        including, with respect to such entity--
                    (A) a corporation, company, association, firm, 
                partnership, nonprofit organization, or any other 
                private entity;
                    (B) a State or local broadband provider;
                    (C) an Indian Tribe; and
                    (D) a partnership between any of the entities 
                described in subparagraphs (A), (B), and (C).
            (6) Covered highway construction project.--
                    (A) In general.--The term ``covered highway 
                construction project'' means, without regard to 
                ownership of a highway, a project funded under title 
                23, United States Code, and administered by a State 
                department of transportation to construct a new highway 
                or an additional lane for an existing highway, to 
                reconstruct an existing highway, or new construction, 
                including construction of a paved shoulder.
                    (B) Exclusions.--The term ``covered highway 
                construction project'' excludes any project--
                            (i) awarded before the date on which 
                        regulations required under subsection (b) take 
                        effect;
                            (ii) that does not include work beyond the 
                        edge of pavement or current paved shoulder;
                            (iii) that is less than a mile in length; 
                        or
                            (iv) that is--
                                    (I) a project primarily for 
                                resurfacing, restoration, 
                                rehabilitation, or maintenance;
                                    (II) a bicycle, pedestrian, 
                                transportation alternatives, sidewalk, 
                                recreational trails, or safe routes to 
                                school project;
                                    (III) an operational improvement 
                                (as such term is defined in section 101 
                                of title 23, United States Code);
                                    (IV) a project primarily to install 
                                signage; or
                                    (V) a culvert project.
            (7) Dig once requirement.--The term ``dig once 
        requirement'' means a requirement designed to reduce the cost 
        and accelerate the deployment of broadband by minimizing the 
        number and scale of repeated excavations for the installation 
        and maintenance of broadband conduit or broadband 
        infrastructure in rights-of-way.
            (8) Indian tribe.--The term ``Indian Tribe'' has the 
        meaning given such term in section 4(e) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5304(e)).
            (9) NTIA administrator.--The term ``NTIA Administrator'' 
        means the Assistant Secretary of Commerce for Communications 
        and Information.
            (10) Project.--The term ``project'' has the meaning given 
        such term in section 101 of title 23, United States Code.
            (11) Secretary.--The term ``Secretary'' means the Secretary 
        of Transportation.
            (12) State.--The term ``State'' has the meaning given such 
        term in section 401 of title 23, United States Code.
            (13) State or local broadband provider.--The term ``State 
        or local broadband provider'' means a State or political 
        subdivision thereof, or any agency, authority, or 
        instrumentality of a State or political subdivision thereof, 
        that provides broadband to any person or facilitates the 
        provision of broadband to any person in such State.
    (b) Dig Once Requirement.--Not later than 12 months after the date 
of enactment of this Act, to facilitate the installation of broadband 
infrastructure, the Secretary shall issue such regulations as may be 
necessary to ensure that each State that receives funds under chapter 1 
of title 23, United States Code, complies with the following 
provisions:
            (1) Broadband planning and notice.--The State department of 
        transportation, in consultation with appropriate State 
        agencies, shall--
                    (A) review existing State broadband plans, 
                including existing dig once requirements of the State, 
                municipal governments incorporated under State law, and 
                Indian tribes within the State, to determine 
                opportunities to coordinate covered highway 
                construction projects occurring within or across 
                highway rights-of-way with planned broadband 
                infrastructure projects;
                    (B) identify a broadband coordinator, who may have 
                additional responsibilities in the State department of 
                transportation or in another State agency, that is 
                responsible for facilitating the broadband 
                infrastructure right-of-way efforts within the State; 
                and
                    (C) establish a process--
                            (i) for the registration of broadband 
                        providers that seek to be included in the 
                        advance notification of, and opportunity to 
                        participate in, broadband infrastructure right-
                        of-way facilitation efforts within the State; 
                        and
                            (ii) to electronically notify all broadband 
                        providers registered under clause (i)--
                                    (I) of the State transportation 
                                improvement program on at least an 
                                annual basis; and
                                    (II) of covered highway 
                                construction projects within the 
                                highway right-of-way for which Federal 
                                funding is expected to be obligated in 
                                the subsequent fiscal year.
            (2) Coordination and compliance.--
                    (A) Mobile now act.--A State department of 
                transportation shall be considered to meet the 
                requirements of subparagraphs (B) and (C) of paragraph 
                (1) if such State department of transportation has been 
                determined to be in compliance with the requirements 
                established under section 607 of division P of the 
                Consolidated Appropriations Act, 2018 (47 U.S.C. 1504).
                    (B) Website.--A State department of transportation 
                shall be considered to meet the requirements of 
                paragraph (1)(C) if the State publishes on a public 
                website--
                            (i) the State transportation improvement 
                        program on at least an annual basis; and
                            (ii) covered highway construction projects 
                        within the highway right-of-way for which 
                        Federal funding is expected to be obligated in 
                        the subsequent fiscal year.
                    (C) Coordination.--The State department of 
                transportation, in consultation with appropriate State 
                agencies, shall by rule or regulation establish a 
                process for a broadband provider to commit to 
                installing broadband conduit or broadband 
                infrastructure as part of any covered highway 
                construction project.
                    (D) Appropriate state agency.--In lieu of the State 
                department of transportation, at the discretion of the 
                State, an appropriate State agency, in consultation 
                with the State department of transportation, may carry 
                out the requirements of paragraph (1).
            (3) Required installation of broadband conduit.--
                    (A) In general.--The State department of 
                transportation shall install broadband conduit, in 
                accordance with this paragraph (except as described in 
                subparagraph (F)), as part of any covered highway 
                construction project, unless a broadband provider has 
                committed to install broadband conduit or broadband 
                infrastructure as part of such project in a process 
                described under paragraph (2)(C).
                    (B) Installation requirements.--In installing 
                broadband conduit or broadband infrastructure as part 
                of a covered highway construction project, the State 
                department of transportation shall ensure that--
                            (i) installation pursuant to this paragraph 
                        of broadband conduit, broadband infrastructure, 
                        and means or points of access to such conduit 
                        or infrastructure (such as poles, hand holes, 
                        manholes, pull tape, or ducts) shall provide 
                        for the current and future safe operation of 
                        the traveled way, is consistent with part 645 
                        of title 23, Code of Federal Regulations, and 
                        any accommodation policies of the State under 
                        such part to reasonably enable deployment of 
                        such conduit, infrastructure, and means or 
                        points of access, and any Damage Prevention and 
                        Underground Facilities Protection or related 
                        requirements of the State;
                            (ii) an appropriate number of broadband 
                        conduits, as determined in consultation with 
                        the appropriate State agencies, are installed 
                        along the right-of-way of a covered highway 
                        construction project to accommodate multiple 
                        broadband providers, with consideration given 
                        to the availability of existing broadband 
                        conduits;
                            (iii) the size of each broadband conduit is 
                        consistent with industry best practices, 
                        consistent with the requirements of part 645 of 
                        title 23, Code of Federal Regulations, and 
                        sufficient to accommodate anticipated demand, 
                        as determined in consultation with the 
                        appropriate State agencies;
                            (iv) any hand holes and manholes necessary 
                        for fiber access and pulling with respect to 
                        such conduit are placed at intervals consistent 
                        with standards determined in consultation with 
                        the appropriate State agencies (which may 
                        differ by type of road, topologies, and 
                        rurality) the requirements of part 645 of title 
                        23, Code of Federal Regulations, and other 
                        applicable safety requirements;
                            (v) each broadband conduit installed 
                        pursuant to this paragraph includes a pull tape 
                        and is capable of supporting fiber optic cable 
                        placement techniques consistent with best 
                        practices and the requirements of part 645 of 
                        title 23, Code of Federal Regulations;
                            (vi) broadband conduit is placed at a depth 
                        consistent with requirements of the covered 
                        highway construction project and best practices 
                        and that, in determining the depth of 
                        placement, consideration is given to the 
                        location of existing utilities and cable 
                        separation requirements of State and local 
                        electrical codes; and
                            (vii) installation of broadband conduit 
                        shall not preclude the installation of other 
                        specific socially, environmentally, or 
                        economically beneficial uses of the right-of-
                        way, such as planned energy transmission or 
                        renewable energy generation projects.
                    (C) Programmatic review.--The State department of 
                transportation may make determinations on the 
                implementation of the requirements described in 
                subparagraph (B) on a programmatic basis.
                    (D) Access.--
                            (i) In general.--The State department of 
                        transportation shall ensure that any requesting 
                        broadband provider has access to each broadband 
                        conduit installed by the State pursuant to this 
                        paragraph, on a competitively neutral and 
                        nondiscriminatory basis and in accordance with 
                        State permitting, licensing, leasing, or other 
                        similar laws and regulations.
                            (ii) Socially beneficial use.--The 
                        installation of broadband conduit as part of a 
                        covered highway construction project shall be 
                        considered a socially-beneficial use of the 
                        right-of-way under section 156(b) of title 23, 
                        United States Code.
                            (iii) In-kind compensation.--The State 
                        department of transportation may negotiate in-
                        kind compensation with any broadband provider 
                        requesting access to broadband conduit 
                        installed under the provisions of this 
                        paragraph.
                            (iv) Safety considerations.--The State 
                        department of transportation shall provide for 
                        a process for a broadband provider to safely 
                        access to the highway right-of-way during 
                        installation and on-going maintenance of the 
                        broadband conduit and broadband infrastructure, 
                        including a traffic control safety plan.
                            (v) Communication.--A broadband provider 
                        with access to the conduit installed pursuant 
                        to this subsection shall notify, and receive 
                        permission from, the relevant agencies of State 
                        responsible for the installation of such 
                        broadband conduit prior to accessing any 
                        highway or highway right-of-way, in accordance 
                        with applicable Federal requirements.
                    (E) Treatment of projects.--Notwithstanding any 
                other provision of law, broadband conduit and broadband 
                infrastructure installation projects installed by a 
                State under this paragraph shall comply with section 
                113(a) of title 23, United States Code.
                    (F) Waiver authority.--
                            (i) In general.--A State department of 
                        transportation may waive the required 
                        installation of broadband conduit for part or 
                        all of any covered highway construction project 
                        under this paragraph if, in the determination 
                        of the State department of transportation--
                                    (I) broadband infrastructure, 
                                terrestrial broadband infrastructure, 
                                aerial broadband fiber cables, or 
                                broadband conduit is present near a 
                                majority of the length of the covered 
                                highway construction project;
                                    (II) installation of terrestrial or 
                                aerial broadband fiber cables 
                                associated with the covered highway 
                                construction project is more 
                                appropriate for the context or a more 
                                cost-effective means to facilitate 
                                broadband service to an area not 
                                adequately served by broadband and such 
                                installation is present or planned;
                                    (III) the installation of broadband 
                                conduit increases overall costs of a 
                                covered highway construction project by 
                                1.5 percent or greater;
                                    (IV) the installation of broadband 
                                conduit associated with the covered 
                                highway construction project is not 
                                reasonably expected to be utilized or 
                                connected to future broadband 
                                infrastructure in the 20 years 
                                following the date on which such 
                                determination is made, as determined by 
                                the State department of transportation, 
                                in consultation with appropriate State 
                                agencies and potentially affected local 
                                governments and Indian tribes;
                                    (V) the requirements of this 
                                paragraph would require installation of 
                                conduit redundant with a dig once 
                                requirement of a local government or 
                                Indian tribe;
                                    (VI) there exists a circumstance 
                                involving force majeure; or
                                    (VII) the installation of conduit 
                                is not appropriate based on other 
                                relevant factors established by the 
                                Secretary in consultation with the NTIA 
                                Administrator through regulation.
                            (ii) Contents of waiver.--A waiver 
                        authorized under this subparagraph shall--
                                    (I) identify the covered highway 
                                construction project; and
                                    (II) include a brief description of 
                                the determination of the State for 
                                issuing such waiver.
                            (iii) Availability of waiver.--Notification 
                        of a waiver authorized under this subparagraph 
                        shall be made publicly available, such as on a 
                        public website of the State department of 
                        transportation described in paragraph (2)(B).
                            (iv) Waiver determination.--
                                    (I) In general.--The State 
                                department of transportation shall be 
                                responsible for the waiver 
                                determination described under this 
                                paragraph, consistent with the 
                                regulation issued pursuant to this 
                                subsection, and may grant a 
                                programmatic waiver for categories of 
                                projects excluded under this 
                                subparagraph.
                                    (II) No private cause of action.--
                                The waiver determination described 
                                under this paragraph shall be final and 
                                conclusive. Nothing in this section 
                                shall provide a private right or cause 
                                of action to challenge such 
                                determination in any court of law.
            (4) Priority.--If a State provides for the installation of 
        broadband infrastructure or broadband conduit in the right-of-
        way of a covered highway construction project, the State 
        department of transportation, along with appropriate State 
        agencies, shall carry out appropriate measures to ensure that 
        an existing broadband provider is afforded access that is non-
        discriminatory, competitively neutral, and equal in 
        opportunity, as compared to other broadband providers, with 
        respect to the program under this subsection.
    (c) Guidance for the Installation of Broadband Conduit.--The 
Secretary, in consultation with the NTIA Administrator, shall issue 
guidance for best practices related to the installation of broadband 
conduit as described in subsection (b)(2) and of conduit and similar 
infrastructure for intelligent transportation systems (as such term is 
defined in section 501 of title 23, United States Code) that may 
utilize broadband conduit installed pursuant to subsection (b)(2).
    (d) Consultation.--
            (1) In general.--In issuing regulations required by this 
        subsection or to implement any part of this section, the 
        Secretary shall consult--
                    (A) the NTIA Administrator;
                    (B) the Federal Communications Commission;
                    (C) State departments of transportation;
                    (D) appropriate State agencies;
                    (E) agencies of local governments responsible for 
                transportation and rights-of-way, utilities, and 
                telecommunications and broadband;
                    (F) Indian tribes;
                    (G) broadband providers; and
                    (H) manufacturers of optical fiber, conduit, pull 
                tape, and related items.
            (2) Broadband users.--The Secretary shall ensure that the 
        entities consulted under subparagraphs (C) through (F) of 
        paragraph (1) include entities that have expertise with rural 
        areas and populations with limited access to broadband 
        infrastructure.
            (3) Broadband providers.--The Secretary shall ensure that 
        the entities consulted under subparagraph (G) of paragraph (1) 
        include entities that provide broadband to rural areas and 
        populations with limited access to broadband infrastructure.
    (e) Oversight.--
            (1) In general.--The Secretary shall periodically review 
        compliance with the regulations issued pursuant to this section 
        and ensure that State waiver determinations are consistent with 
        such regulations.
            (2) Efficient review.--The review described under paragraph 
        (1) may be carried out through the risk-based stewardship and 
        oversight program described under section 106(g) of title 23, 
        United States Code.
            (3) Effect of subsection.--Nothing in this subsection shall 
        affect or discharge any oversight responsibility of the 
        Secretary specifically provided for under title 23, United 
        States Code, or any other Federal law.
    (f) Additional Provisions.--
            (1) Applicability.--
                    (A) In general.--The portion of the regulation 
                issued pursuant to subsection (b) relating to the 
                provisions under paragraph (3) of such subsection shall 
                not take effect until a source of dedicated funding for 
                the installation and long term maintenance of broadband 
                conduit described in subsection (g)(2) is established.
                    (B) Applicability date.--Paragraphs (2) through (4) 
                of subsection (b) and subsection (d) shall apply only 
                to covered highway construction projects for which 
                Federal obligations or expenditures are initially 
                approved on or after the date on which regulations 
                required under this subsection take effect.
            (2) Rules of construction.--
                    (A) State law.--Nothing in this subsection shall be 
                construed to require a State to install or allow the 
                installation of broadband conduit or broadband 
                infrastructure--
                            (i) that is otherwise inconsistent with 
                        what is allowable under State law; or
                            (ii) where the State lacks the authority 
                        for such installation, such as any property 
                        right or easement necessary for such 
                        installation.
                    (B) No requirement for installation of mobile 
                services equipment.--Nothing in this section shall be 
                construed to require a State, a municipal government 
                incorporated under State law, or an Indian Tribe to 
                install or allow for the installation of equipment 
                essential for the provision of commercial mobile 
                services (as defined in section 332(d) of the 
                Communications Act of 1934 (47 U.S.C. 332(d))) or 
                commercial mobile data service (as defined in section 
                6001 of the Middle Class Tax Relief and Job Creation 
                Act of 2012 (47 U.S.C. 1401)), other than broadband 
                conduit and associated equipment described in paragraph 
                (3)(B).
            (3) Relation to state dig once requirements.--Nothing in 
        subsections (b), (c), (d), or (e) or any regulations issued 
        pursuant to subsection (b) shall be construed to alter or 
        supersede any provision of a State law or regulation that 
        provides for a dig once requirement that includes similar or 
        more stringent requirements to the provisions of subsections 
        (b), (c), (d), or (e) and any regulations promulgated under 
        subsection (b).
    (g) Dig Once Funding Task Force.--
            (1) Establishment.--The Secretary and the NTIA 
        Administrator shall jointly establish an independent task force 
        on funding the nationwide dig once requirement described in 
        this section to be known as the ``Dig Once Funding Task Force'' 
        (hereinafter referred to as the ``Task Force'').
            (2) Duties.--The duties of the Task Force shall be to--
                    (A) estimate the annual cost for implementing, 
                administering, and maintaining a nationwide dig once 
                requirement;
                    (B) propose and evaluate options for funding a 
                nationwide dig once requirement described in this 
                section that includes--
                            (i) a discussion of the role and potential 
                        share of costs of--
                                    (I) the Federal Government;
                                    (II) State and local governments 
                                and Indian tribes; and
                                    (III) broadband providers 
                                installing broadband conduit or 
                                broadband infrastructure under this 
                                section;
                            (ii) consideration of the role of existing 
                        dig once requirements on States, local 
                        governments, and Indian tribes and the role of 
                        private broadband investment, with a goal to 
                        not discourage or disincentivize such dig once 
                        requirements or such investment; and
                            (iii) evaluating the appropriate entity or 
                        entities responsible for maintaining the 
                        broadband infrastructure and conduit installed 
                        pursuant to a dig once requirement; and
                    (C) propose a cost-based model fee schedule for a 
                State to charge a broadband provider to access and use 
                conduit installed by such State pursuant to this 
                section that--
                            (i) shall consider costs (including 
                        administrative costs) associated with 
                        installation and long-term maintenance of the 
                        broadband conduit installed pursuant to this 
                        section;
                            (ii) may vary by topography, location, type 
                        of road, rurality, and other factors; and
                            (iii) may consider financial and market 
                        incentives for expanding broadband 
                        infrastructure.
            (3) Reports.--
                    (A) Interim report and briefing.--Not later than 9 
                months after the appointment of Members to the Task 
                Force under paragraph (4)(D), the Task Force shall--
                            (i) submit to Congress an interim report on 
                        the findings of the Task Force; and
                            (ii) provide briefings for Congress on the 
                        findings of the Task Force.
                    (B) Final report.--Not later than 3 months after 
                the submission of the interim report under subparagraph 
                (A), the Task Force shall submit to Congress a final 
                report on the findings of the Task Force.
            (4) Members.--
                    (A) Appointments.--The Task Force shall consist of 
                14 members, comprising--
                            (i) 2 co-chairs described in subparagraph 
                        (B);
                            (ii) 6 members jointly appointed by the 
                        Speaker and minority leader of the House of 
                        Representatives, in consultation with the 
                        respective Chairs and Ranking Members of--
                                    (I) the Committee on Transportation 
                                and Infrastructure of the House of 
                                Representatives;
                                    (II) the Committee on Energy and 
                                Commerce of the House of 
                                Representatives; and
                                    (III) the Committee on 
                                Appropriations of the House of 
                                Representatives; and
                            (iii) 6 members jointly appointed by the 
                        majority leader and minority leader of the 
                        Senate, in consultation with the respective 
                        Chairs and Ranking Members of--
                                    (I) the Committee on Environment 
                                and Public Works of the Senate;
                                    (II) the Committee on Commerce, 
                                Science, and Transportation of the 
                                Senate; and
                                    (III) the Committee on 
                                Appropriations of the Senate.
                    (B) Co-chairs.--The Task Force shall be co-chaired 
                by the Secretary and the NTIA Administrator, or the 
                designees of the Secretary and NTIA Administrator.
                    (C) Composition.--The Task Force shall include at 
                least--
                            (i) 1 representative from a State 
                        department of transportation;
                            (ii) 1 representative from a local 
                        government;
                            (iii) 1 representative from an Indian 
                        tribe;
                            (iv) 1 representative from a broadband 
                        provider;
                            (v) 1 representative from a State or local 
                        broadband provider;
                            (vi) 1 representative from a labor union; 
                        and
                            (vii) 1 representative from a public 
                        interest organization.
                    (D) Appointment deadline.--Members shall be 
                appointed to the Task Force not later than 60 days 
                after the date of enactment of this Act.
                    (E) Terms.--Members shall be appointed for the life 
                of the Task Force. A vacancy in the Task Force shall 
                not affect the powers of the Task Force and the vacancy 
                shall be filled in the same manner as the initial 
                appointment was made.
            (5) Consultations.--In carrying out the duties required 
        under this subsection, the Task Force shall consult, at a 
        minimum--
                    (A) the Federal Communications Commission;
                    (B) agencies of States including--
                            (i) State departments of transportation; 
                        and
                            (ii) appropriate State agencies;
                    (C) agencies of local governments responsible for 
                transportation and rights-of-way, utilities, and 
                telecommunications and broadband;
                    (D) Indian tribes;
                    (E) broadband providers and other 
                telecommunications providers;
                    (F) labor unions; and
                    (G) State or local broadband providers and Indian 
                tribes that act as broadband providers.
            (6) Additional provisions.--
                    (A) Expenses for non-federal members.--Non-Federal 
                members of the Task Force shall be allowed travel 
                expenses, including per diem in lieu of subsistence, at 
                rates authorized for employees under subchapter I of 
                chapter 57 of title 5, United States Code, while away 
                from the homes or regular places of business of such 
                members in the performance of services for the Task 
                Force.
                    (B) Staff.--Staff of the Task Force shall comprise 
                detailees with relevant expertise from the Department 
                of Transportation and the National Telecommunications 
                and Information Administration, or another Federal 
                agency that the co-chairpersons consider appropriate, 
                with the consent of the head of the Federal agency, and 
                such detailees shall retain the rights, status, and 
                privileges of the regular employment of such detailees 
                without interruption.
                    (C) Administrative assistance.--The Secretary and 
                NTIA Administrator shall provide to the Task Force on a 
                reimbursable basis administrative support and other 
                services for the performance of the functions of the 
                Task Force.
            (7) Termination.--The Task Force shall terminate not later 
        than 90 days after submission of the final report required 
        under paragraph (3)(B).
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