[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3703 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3703
To facilitate the installation of broadband infrastructure, and for
other purposes.
_______________________________________________________________________
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.
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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