Broadband Experts Raise Concerns About Right-of-Way Issues Over Railroads

Broadband officials and experts raised concerns Wednesday about the role of railroad crossings in broadband deployment. Panelists during a Broadband Breakfast webinar cited delays in right-of-way application decisions from railroad owners as one of the main obstacles and backed establishing a national framework to address the issue as states prepare to dole out funding through NTIA's broadband, equity, access and deployment program and other federal funding.

"Dealing with railroads is not just expensive but produces costly delays" in broadband deployment, said Troutman Pepper's Alan Poole. One item that needs to be addressed is the "nature of the right-of-way" for railroads because they are considered "quasi-private" entities, Poole said. There's "a good argument" to be made that no fee should be imposed on a broadband or telecom provider if it's "piggybacking along an established" ROW, he said.

Some Incompas members have found railroad crossings to be "really harming their ability to deploy" broadband, said Caroline Boothe Olsen, director-communications and legislative affairs. "If we're truly trying to bridge the digital divide, the railroad should not be the thing that stands in our way," Olsen said. The group has been working with lawmakers, the FCC and the Federal Railroad Administration to "provide that regulatory framework necessary to ensure that broadband and telecom providers aren't charged unnecessary fees, their deployment is not impeded, and any fees that they are charged are based on actual, real costs specifically related to that deployment," she said.

"We should have a regulatory framework and we can get to a solution," Olsen said, because ROW access across railroads is a "huge impediment to deployment." Poole agreed and said there's a "need to have this process somewhat similar in all states." Firefly Fiber Broadband President-CEO Gary Wood expressed concern about the use of third parties to navigate ROW applications with railroad companies. "That shouldn't be what you have to depend on," Wood said, adding that there should be a "standard process" instead of needing to find a "sherpa to lead you through it."

"We're willing to work with the railroads on making sure things are safe and well-planned," Wood said: "But we need to be able to do that faster." Olsen raised concerns about the lack of accountability for railroad companies regarding their timeliness of addressing permitting applications from providers. "It's really no skin off their back," she said, but when an application is reviewed, "for the most part they're awful to deal with." Local railroad owners "are reacting very differently" by acting quickly on applications because they are "benefiting from the service and understand the need," Wood said.

One solution could be establishing a "uniform determination" of the types of railroad ROWs, Poole said, adding that it's "hard not to see" the FCC's current proceeding on establishing fair pole attachment cost allocation rules as an analog to addressing ROW fees. "Let us get moving," Wood said: "We have broadband that we have to get built and the clock is ticking." If funding goes back to Washington because it went unused as a result of ROW application delays, "then the shot clock has definitely gone off and we all lose," he said.