In the Matter of)

)

Request for Comments on )

Deployment of Broadband Networks)Docket No. 011109273-1273-01

And Advanced Telecommunications)

)

Michael FreedmanMartin L. Stern

Director, Government RelationsDaniel Ritter

Global Crossing Ltd.Lisa L. Friedlander

360 N. Crescent DrivePreston Gates Ellis & Rouvelas Meeds LLP

Beverly Hills, CA 90210-48021735 New York Avenue, N.W.

(310) 385-5200Suite 500

Washington, D.C.20006

(202) 628-1700

Dated: December 19, 2001

INTRODUCTION.. 1

DISCUSSION.. 3

I.Broadband Deployment Has Become the Central Communications PolicyObjective in America3

II.Government Rights-of-Way and Public Lands Practices Act as SignificantBarriers to the Deployment of Broadband Telecommunications Networks. 6

III.NTIA Should Act Now To Encourage Rapid Deployment of BroadbandInfrastructure. 10

CONCLUSION.. 11

In the Matter of)

)

Request for Comments on )

Deployment of Broadband Networks)Docket No. 011109273-1273-01

And Advanced Telecommunications)

)

Global Crossing Ltd. (“Global Crossing”), by its undersigned counsel, hereby submits these comments in response to the National Telecommunications and Information Administration’s (“NTIA”) Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications.[1]

INTRODUCTION

As part of its ongoing effort to obtain further information on broadband issues to assist the Administration in developing a domestic telecommunications policy, NTIA issued the Notice seeking comment on, among other things, the technical, economic and regulatory barriers to the deployment of advanced broadband networks.[2]Specifically, the Notice asks for comment on whether there are “local issues affecting broadband deployment,” including whether “fees for rights-of-way and street access reflect costs in addition to the direct administrative costs . . . ,” and whether there are “impediments to [accessing] federal lands and buildings that thwart broadband deployment.”[3]As discussed in greater detail below, these issues are of significant importance to Global Crossing and the entire telecommunications industry.

Over the five years since passage of the Telecommunications Act of 1996 (“1996 Act”),[4] rights-of-way practices by federal, state and local governments continue to present growing barriers to the deployment of advanced telecommunications capability.

Federal agencies, state governments, and local entities have been using their authority over rights-of-way and public lands to extract from telecommunications providers exorbitant fees, to impose conditions unrelated to the management of rights-of-way, and to delay significantly, or prevent outright, the deployment of crucial advanced telecommunications systems.

After years of deployment activity around the country, Global Crossing and others in the industry have experienced first-hand the full spectrum of government imposed obstacles to such deployment, on the state, local and national levels.[5]

Global Crossing therefore applauds NTIA’s efforts to develop a comprehensive broadband telecommunications policy for this Administration, including the agency’s “support for removing obstacles to broadband deployment.”[6]In view of the extraordinary importance of broadband deployment, Global Crossing urges NTIA, together with other Department of Commerce agencies and others within the Administration, to develop a cohesive federal policy that encourages competitive, facilities-based broadband deployment and eliminates the barriers that exist to the deployment of multiple, competing high-speed networks.At a minimum, NTIA should take a leadership role within the federal government and assist in establishing a central clearinghouse for all federal agency action that affects broadband deployment and access to public lands and federal, state and local control over rights-of-way.

DISCUSSION 

I. Broadband Deployment Has Become the Central Communications Policy Objective in America

The development of local, regional, national and international telecommunications networks has been the foundation of the nation’s transformation from the older manufacturing-based economy to the new information-based economy, with incalculable benefits for nearly every sector of society.It is impossible to overestimate the public benefits of the development of this infrastructure.In addition, broadband telecommunications capacity is a key element of the nation’s critical infrastructure – facilities that “are so vital that their incapacity or destruction would have a debilitating impact on the defense or economic security of the United States.”[7]Following the tragedy of September 11^th, policymakers and the media have increasingly noted the import of the broadband infrastructure to our national security.[8]

Yet the deployment of the broadband infrastructure necessary to deliver high-speed connectivity to large corporations, small businesses, schools, hospitals and family residences is still far from complete.In recent months, key members of Congress have articulated the urgent need for a broadband infrastructure deployment policy that eliminates barriers and fosters the continued deployment of competitive, advanced telecommunications networks.For example, in letters written to the Office of Management and Budget and NTIA,[9] Senators John Breaux (D-LA) and Trent Lott (R-MS) urged the adoption of a federal broadband policy that will result in valuable new services to consumers, stimulate economic growth, protect our country’s critical infrastructure and thus, its national security.

Thus, while it is fair to say that legislators, regulators and industry leaders are rarely unanimous on telecommunications policy issues, all would concur with FCC Chairman Michael K. Powell that widespread, accelerated broadband deployment has “become the central communications policy objective in America.”[10]Undoubtedly, “[b]roadband is on the tip of everyone’s tongue,”[11] including the President’s, who is a “believer” in broadband deployment as an essential goal of our government’s telecommunications policy, and understands “that new technologies and the deployment of high-speed networks are crucial to promoting America’s economic growth and our nation’s social well-being.”[12]

Hence, there is growing agreement and momentum at all levels of government that action is needed to ensure the continued deployment of broadband telecommunications networks – the backbone and access facilities integral to the provision of advanced telecommunications capabilities.Access to rights-of-way and public lands is critical to such deployment: ensuring such access should be an integral part of NTIA and the Administration’s efforts.

For such efforts to succeed, however, a unified, national policy is needed.Clearly, broadband deployment is not simply a local issue but is vital to our national interest and must be dealt with accordingly.Hence, NTIA’s leadership in seeking to articulate a broadband infrastructure deployment policy that encourages the consistent and continued deployment of multiple, competing high-speed networks and eliminates the barriers to such deployment is essential.

II. Government Rights-of-Way and Public Lands Practices Act as Significant Barriers to the Deployment of Broadband Telecommunications Networks

The contrast between the unanimous approbation of policies to encourage broadband deployment, and the reality of governmental obstacles to such deployment could not be more dramatic.In practice, the process of gaining access to federal, state and local rights-of-way, and obtaining the numerous permits and authorizations necessary to build high-speed, high-capacity networks is difficult and costly.As noted above, Global Crossing and other carriers recently submitted comments describing current examples from around the nation of misconduct by government entities in blocking and delaying broadband deployment, as well as simple attempts at extorting extraordinary fees for use of the public rights-of-way.[13]As Bruce Mehlman, Assistant Secretary for Technology Policy, U.S. Department of Commerce, has so aptly stated: “[b]roadband deployment readily comes into conflict with [state or municipal rules and demands] . . .and broadband often loses.” (emphasis added).[14]

The numerous difficulties faced by telecommunications providers when deploying advanced broadband networks are exacerbated by the ambiguities in Section 253 of the Communications Act, added by the 1996 Act to prevent state and local barriers to entry.In reality, however, the policy paradigm envisioned by Section 253 – whereby state and local governments would remove unnecessary barriers to competitive entry and collect only “fair and reasonable compensation” – has failed.Rather than abide by the intent of the 1996 Act, governmental units at the state and local levels have exploited Section 253’s ambiguities and limited scope to extract concessions to which they otherwise would not be entitled.[15]Moreover, because Section 253 does not apply to the federal government, federal agencies are unconstrained even by the requirements of current law applicable to state and local entities.

In particular, Global Crossing’s experience, as well as those of others in the industry, evidence the following problems with Section 253:

·The absolute bar contained in Section 253(a) applies to the provision of telecommunications services, a point which governments have used in arguing that the provision does not reach companies deploying next generation broadband networks.

·The reach of Section 253(c) has been subject to litigation regarding whether subsection (c) is a safe harbor for Section 253(a), and thus requires a showing that the statute or regulation is a bar to entry, or whether subsection (c) is an independent private right of action that establishes standards for reasonable rights-of-way management and compensation.

·The question of what is “fair and reasonable compensation,” and whether it is being required on a “competitively neutral and nondiscriminatory basis,” particularly with respect to compensation, has been subject to significant litigation.

·Section 253 applies only to rights-of-way, rather than public lands generally.

·Section 253 does not apply to the rights-of-way practices of the federal government.

·Carriers have been forced to waive their right to challenge unlawful terms and fees as a condition of receiving rights-of-way permits.

Indeed, the problem not only lies in the failure of Section 253 to achieve the purpose for which it was enacted, but with the attitude of governmental authorities.Broadband deployment will continue to suffer at the hands of federal, state and local entities as long as “government . . . sees broadband deployment and telecommunications . . . as a revenue stream.”[16]Too often, government agencies act not as policymakers, but as business adversaries seeking a profit – business adversaries with a monopoly on their right-of-way “product.”For example, permit costs, which used to account for about ten percent of the cost of constructing a new network now comprise upwards of 20 percent of the total cost.[17]

Furthermore, as noted by Mr. Mehlman, the problem is not limited to the local level as federal agencies have been equally guilty in seeking to “profit from broadband deployment,” with several entities currently facing criticism for demanding excessive rights-of-way fees, including the Bureau of Land Management, the Forest Service, and NTIA’s sister agency, the National Oceanic and Atmospheric Administration (“NOAA”).[18]The Breaux and Lott Letters, attached hereto as Exhibit B, focus on NOAA’s attempt to impose extraordinary and unprecedented fees for installation of fiber-optic submarine cables in National Marine Sanctuaries.[19]

Accordingly, a primary organizing premise behind any successful telecommunications deployment policy must be that government charges for broadband build-out must be limited to the actual costs imposed on government by that build-out.

Contrary to that claimed by some governmental bodies, telecommunications providers do not seek to impose unreimbursed costs upon government and the public as they develop their networks.Global Crossing, for one, fully supports recoupment of all actual and direct costs by federal, state and local governmental entities.Global Crossing also supports State and municipal rights to protect the health and safety of their citizens by reasonable regulation of the time, place and manner of broadband deployment.However, government should not be seeking a profit on the “deal,” or for that matter substantive regulatory control over deployment (by imposing conditions unrelated to the management of the rights-of-way).

As perusal of any daily newspaper shows, the economics of the industry have changed significantly.Simply stated, while some (although fewer) companies continue to invest in deploying broadband, the level and rate of investment have fallen dramatically, and market valuations of many telecommunications providers have dropped precipitously.When, as now, short term cost-benefit analyses have become central to the telecommunications deployment project process, substantial marginal costs for access to rights-of-way are ever more important.Simply stated, right-of-way charges can stop a deployment project dead in its tracks.

Finally, as the Federal Communications Commission has recognized, the “most substantial benefits to consumers will be achieved through facilities-based competition.”[20]Thus, at the core of the broadband debate is more than just resale, but the entry of multiple, competing broadband platforms, which has been advanced as the “ultimate objective” of our national telecommunications policy.[21]Ongoing access to rights-of-way and public lands is obviously an essential input into the deployment of such competing networks.

III. NTIA Should Act Now To Encourage Rapid Deployment of Broadband Infrastructure

Given the almost universally acknowledged benefits of broadband deployment (including economic growth and corresponding tax revenues that stem from a networked infrastructure), it is indeed ironic that governments should act so contrary to the public interest by holding up this critical deployment for additional up-front profits.NTIA should be commended for its continued “support for removing obstacles to broadband deployment.”[22]And at this moment, the agency has a real opportunity – with powerful momentum in the Administration, Congress and the public at large – to take concrete action.

Global Crossing urges NTIA to develop and set forth Administration principles to address the obstacles to widespread, accelerated broadband deployment.Global Crossing, together with other leaders in the telecommunications industry, have developed a series of fundamental principles, gleaned from years of deployment experience that are basic to the establishment of effective regulations and legislation in this area.[23]Once NTIA develops a policy, the Administration should follow up by actively encouraging Section 253 reform legislation to address regulatory and fee-based obstacles to deployment.

At a minimum, NTIA should take a leadership role within the federal government and assist in the establishment of a central clearinghouse for all federal agency action that affects broadband deployment and access to public lands and rights-of-way.NTIA’s expertise in devising a unified approach that best serves the objectives of national broadband deployment is needed at the table when other agencies establish policies and rules that assist – or hinder – the deployment of the U.S. broadband infrastructure.

CONCLUSION

Respectfully submitted,

GLOBAL CROSSING LTD.

By:___/s/Martin L.. Stern____

Michael FreedmanMartin L. Stern

Director, Government RelationsDaniel Ritter

Global Crossing Ltd.Lisa L. Friedlander

360 N. Crescent DrivePreston Gates Ellis & Rouvelas Meeds LLP

Beverly Hills, CA 90210-48021735 New York Avenue, N.W.

(310) 385-5200Suite 500

Washington, D.C.20006

(202) 628-1700

Dated: December 19, 2001