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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Rules and Regulations
DOT, in consultation with appropriate State agencies, to establish a process for the registration of broadband infrastructure entities.
Multiple commenters asked that flexibility be given to allow States to rely on existing processes, avoid unnecessary duplication of effort, and limit the wasteful expenditure of limited State resources.
FHWA generally agrees with the commenters suggestion. The final rule reflects the statutory requirements of Section 607 of the MOBILE NOW Act 47 U.S.C. 1504 but allows States flexibility to rely on existing processes and avoid duplication of efforts to meet the requirements.
One State DOT requested clarification on the purpose and meaning of registration of broadband infrastructure entities and goals. The comment suggested that FHWA define goals with specific criteria.
Consistent with Section 607 of the MOBILE NOW Act, the final rule in 645.307a2 requires a State DOT to establish a process for the registration of broadband infrastructure entities that seek to be included in broadband infrastructure ROW facilitation efforts within the State. The final rule in 645.307a3 requires a State DOT to establish a process for electronically notifying broadband infrastructure entities of the STIP annually and as necessary to achieve the goals of the rule. FHWA has not included more specific goals or criteria in the rule in order to allow State DOTs the flexibility to implement this rule consistent with their respective State laws, policies, and practices.
One commenter requested clarification that the definition of broadband infrastructure entity is not limited to private companies but also includes any formal or informal entity serving broadband. As examples of such entities, the commenter cited municipal, State, and Tribal governments or agencies, associations of governments or agencies or intergovernmental bodies, rural electric cooperatives or public utilities, public-private partnerships, and non-profits.
Under 47 U.S.C. 1504a3 and 645.305, the term broadband infrastructure entity means any entity that A installs, owns, or operates broadband infrastructure; and B
provides broadband services in a manner consistent with the public interest, convenience, and necessity, as determined by the State. States have flexibility to determine which entities fit within this definition.
One State DOT asked for clarification regarding the registration process for
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broadband infrastructure entities that seek to be included. Specifically, the commenter asked whether FHWA will provide a list of qualifications that are necessary for a company to become registered, whether the broadband coordinator will handle the registration process and maintain the registration, whether the list of registered companies is disclosable under public records requests, and whether only registered broadband infrastructure entities will be permitted to occupy the State ROW.
States have flexibility to determine which entities fall within the definition of the term broadband infrastructure entity in 47 U.S.C. 1504a3 and any qualifications such entities need to have. States also have flexibility to establish a process, or use an existing process, for registration. Public records requests will be subject to applicable State laws, regulations, and policies.
This rule does not require that only registered broadband infrastructure entities be permitted to occupy the State ROW.
Comments on 645.307a3
Several comments concerned 645.307a3, which requires that a State DOT, in consultation with appropriate State agencies, establish a process to notify electronically broadband infrastructure entities identified under 645.307a2 of the STIP on an annual basis and provide additional notifications as necessary to achieve the goals of 23 CFR subpart C.
One State DOT recommended that FHWA place additional emphasis for States to utilize the STIP and States other mediumand long-range planning activities to convey Dig Once type opportunities to telecommunications companies as they plan and fund their construction of broadband.
Under the final rule, States have flexibility to establish a process, or use an existing process, to implement the registration and notification requirements. States may choose to convey Dig Once opportunities in connection with their STIP or their planning activities as they implement those requirements, and FHWA
encourages States to do so.
One commenter stated that to facilitate general notification as required by the rule, FHWA should encourage States to maintain publicly accessible databases of ongoing projects along with any third-parties that have been contracted to review applications for projects. A database, maintained on a deemed consented basis, would allow for self-policing of potential conflicts and increase accountability for these projects, the commenter added.

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States have flexibility to establish a process, or use an existing process, to implement the registration and notification requirements.
One State DOT asked why, since the STIP is made available for review and comment via electronic and other means, broadband infrastructure entities must be provided a separate, exclusive notice that is not necessarily afforded to other sectors of the public.
This rule implements the mandate provided by Congress in Section 607 of the MOBILE NOW Act and codified at 47 U.S.C. 1504b1C.
One State DOT asked if other notifications will be determined by the broadband utility coordinator and if metropolitan planning organizations MPO also will be required to notify broadband entities annually of the metropolitan transportation improvement programs.
Again, States have flexibility to establish a process, or use an existing process, to implement the registration and notification requirements, as well as to shape the role of the broadband utility coordinator. This rule applies to each State that receives funds under Chapter 1 of Title 23, U.S.C., including the District of Columbia and the Commonwealth of Puerto Rico. 47
U.S.C. 1504b1; 23 CFR 645.303. It does not apply to MPOs.
One State DOT noted that for a Dig Once program to be most effective, broadband entities would have to be required to register and then actively participate in the program. The commenter asserted that industry so far has shown no interest in joint trenching or Dig Once types of voluntary programs and that without more willingness on the part of industry, a proactive notification system prescribed by this rule would not be significantly more effective than the State DOTs current notice approach where the data on projects is posted and updated on their website.
In Section 607 of the MOBILE NOW
Act, Congress required FHWA to issue regulations that ensure that a State DOT, in consultation with appropriate State agencies, establishes a registration process for broadband infrastructure entities that seek to be included in broadband infrastructure ROW
facilitation efforts within the State. The final rule adopts the language of Section 607 as proposed but does not establish additional requirements. Nothing in the final rule limits a States ability to adopt additional registration requirements consistent with the regulation adopted through this rulemaking.

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