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Introduction & Summary
The applications and devices that utilize broadband access services are now integral parts of American life. The unprecedented connectivity we’re experiencing would be impossible without underlying broadband infrastructure, including cables, antennas and support structures. Still, high-speed broadband service has yet to reach many Americans, and users’ needs will continue to evolve as new technologies and services become available.
In addition to various technological and economic barriers to updating and expanding this connectivity, companies wishing to deploy new broadband infrastructure are forced to navigate multiple regulatory barriers imposed by government. Much of broadband deployment is regulated by the Federal Communications Commission (FCC), but state and local governments play a major role as well. From right-of-way access and zoning to construction permits and franchising, state and local barriers to infrastructure deployment can have a major impact on Americans’ access to broadband. This study evaluates all 50 states and assigns each a score based on how conducive their laws are to broadband deployment.
Regulatory Barriers to Broadband Deployment
Before existing infrastructure can be upgraded or new infrastructure deployed, a broadband provider must first obtain permission from the relevant state and local authorities. This process typically involves filing applications, paying fees and waiting for bureaucracies to process them.
Of course, processing applications and maintaining public rights of way imposes costs on state and local governments, so it is reasonable for them to recover these costs through appropriate fees. But if those fees go beyond cost and effectively become hidden taxes on consumer broadband bills, localities will see less deployment and higher prices. Similarly, if state or local governments take too long to process applications, it naturally leads to slower deployment and less competition.
Thus, the best way to promote broadband deployment, faster speeds and increased competition is to ensure that state and local approval processes are streamlined and efficient. While Congress could address the issue, many states have taken matters into their own hands, and others should be encouraged to follow suit. Instead of waiting on the federal government or leaving it up to state public-service commissions and local zoning authorities, state legislators should act swiftly to clear regulatory barriers, thereby allowing the broadband future to happen faster.
This scorecard examines laws that govern broadband infrastructure deployment in all 50 states and compiles these data into categories. In some categories, states were given points based on whether they had a law governing a specific aspect of broadband deployment. In categories that included costs or timelines, states were given points based on whether the cost or timeline provided in their law met a certain threshold. For example, a state may get one point for imposing a fee cap on permit applications, and a second point if the cap is $100 or less.
44 points were available in total, although no state received the maximum number of points. If a state has no law in place, effectively leaving that particular issue to the discretion of state and local regulators, no points were awarded. While regulators at the federal, state and local levels may work hard to promote broadband deployment, the broadband future should not rely on the discretion of bureaucrats. Good rules should be codified into law, because only laws can provide the type of long-term certainty needed to incentivize widescale deployment of broadband infrastructure. As such, we did not include any regulations in our analysis, including federal regulations issued by the FCC.
Although conflicting state or local regulations are preempted under the Supremacy Clause, states should strive to do better by going above and beyond what federal regulations require. For example, fees on video franchises and some construction permits are capped by FCC regulations, but these are just the baseline. To be true leaders in broadband deployment, states should make their approval processes as cheap and fast as possible while covering costs and protecting local citizens.
Access to Public Rights of Way
To deploy or upgrade broadband infrastructure, providers need access to public rights of way, like streets, sidewalks and railroads. Access to these rights of way should be non-exclusive to avoid one or more incumbent broadband providers unfairly excluding competition. Access to public rights of way should also be non-discriminatory to avoid warping the broadband market in favor of one provider or type of provider and interfering with consumer choice.
Fees for access to public rights of way should be low, predictable and limited to the costs incurred from upkeep and access administration. Also, applications to access rights of way and construct broadband infrastructure should be processed quickly, and reviewers should be subject to firm timelines, or shot clocks. Ideally, if a public authority fails to act on an application before a shot clock expires, a broadband provider should be allowed to gain the requested access without needing to file suit to compel action from the authority.
To provide cable video services, broadband providers must obtain franchises from either state or local authorities. Such franchises were originally given exclusively to cable companies, but advances in both wireline and wireless broadband technologies have enabled other broadband providers to venture into cable video services, too.
Federal law now prohibits exclusive franchise agreements and limits the fees and conditions that can be imposed on franchises, but state and local authorities can improve upon this baseline. For example, while franchise agreements can come with large upfront or annual fees, which are at least partially passed through to consumers, they could be issued at cost or for no charge at all. Unreasonable delays or moratoria in processing new franchise applications are already prohibited, but states should be encouraged to further streamline and expedite the franchising process.
Along with general approval to operate in public rights of way, broadband providers must obtain approval for each construction project they want to undertake in these areas. Such construction includes digging trenches, stringing wires along the ground or on utility poles, collocating wireless antennas on existing structures and deploying new structures to support broadband equipment. All this construction requires permission, and that means more applications, fees and delays.
As with other permits, fees for obtaining construction permits should be limited to the actual costs incurred by processing the permit applications and subject to a cap. Likewise, timelines for processing construction permits should be quick and subject to firm shot clocks, though legislators should keep in mind that the nature and degree of construction needed to deploy broadband infrastructure can vary considerably.
For example, attaching new equipment to existing support structures, a practice known as “collocation,” is much easier than building entirely new infrastructure, and the fees and timelines associated with these construction projects should reflect that. Deploying a single 200-foot cell tower is vastly different than deploying a fleet of 100 small cells, so permission processes should be updated to reflect changes in technology and network architecture by shortening timelines or allowing multiple small cell installations to be included in the same permit application.
On the other hand, governments still need adequate time and resources to ensure new construction does not threaten public health and safety by causing electrical outages or disrupting traffic flows. Additionally, states should allow cities to review permit applications for reasonable design and concealment concerns to preserve the aesthetic character of their public areas. Broadband providers have begun designing new devices to blend in seamlessly with their surroundings, and cities should work hand-in-hand with these providers to address siting concerns when they arise.
We also evaluated several measures that hinder broadband deployment, but do not fall neatly into any of those three major categories. For example, some cities have tried enacting moratoria on all future broadband deployment, which is prohibited under federal regulations, but state law should prohibit these, too. Similarly, federal regulations restrict cities’ ability to extract “in-kind” contributions (for example, requiring free service for government buildings or investments in other public works in exchange for right-of-way access) from broadband providers, but states should move to restrict these contributions as well.
Cities also frequently require broadband providers to undergo zoning reviews prior to new construction in public rights of way, which adds another regulatory barrier to the process. States can streamline this by exempting routine or minor construction work from such reviews.
Finally, states can further streamline deployment by adopting so-called “dig-once,” or “joint-trenching” laws, which require that all broadband providers receive public notice prior to any excavation in public rights of way. This allows multiple providers to access an excavated right of way during a single dig, increasing the efficiency of deployment and minimizing disruption to traffic flows.
This scorecard includes data through September 2018. Subsequent law changes will be updated in the 2019 edition. Over time, all states should strive to improve their legal frameworks for broadband deployment. Lowering barriers to infrastructure deployment is essential to creating modern communications networks that can maximize Americans’ access in an interconnected world.