I 117th CONGRESS 1st Session H. R. 3703 IN THE HOUSE OF REPRESENTATIVES June 4, 2021 Ms. Eshoo (for herself, Mr. McKinley , and Mr. Delgado ) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To facilitate the installation of broadband infrastructure, and for other purposes.

1. Short title This Act may be cited as the Nationwide Dig Once Act of 2021 . 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).