2012 US Code
Title 47 - Telecommunications
Chapter 12 - BROADBAND (§§ 1301 - 1305)
Section 1301 - Findings

The Congress finds the following:

(1) The deployment and adoption of broadband technology has resulted in enhanced economic development and public safety for communities across the Nation, improved health care and educational opportunities, and a better quality of life for all Americans.

(2) Continued progress in the deployment and adoption of broadband technology is vital to ensuring that our Nation remains competitive and continues to create business and job growth.

(3) Improving Federal data on the deployment and adoption of broadband service will assist in the development of broadband technology across all regions of the Nation.

(4) The Federal Government should also recognize and encourage complementary State efforts to improve the quality and usefulness of broadband data and should encourage and support the partnership of the public and private sectors in the continued growth of broadband services and information technology for the residents and businesses of the Nation.

(Pub. L. 110–385, title I, §102, Oct. 10, 2008, 122 Stat. 4096.)

Pub. L. 110–385, title I, §101, Oct. 10, 2008, 122 Stat. 4096, provided that: “This title [enacting this chapter and amending section 1302 of this title] may be cited as the ‘Broadband Data Improvement Act’.”

Ex. Ord. No. 13616, June 14, 2012, 77 F.R. 36903, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and in order to facilitate broadband deployment on Federal lands, buildings, and rights of way, federally assisted highways, and tribal and individual Indian trust lands (tribal lands), particularly in underserved communities, it is hereby ordered as follows:

Section 1. Policy. Broadband access is essential to the Nation's global competitiveness in the 21st century, driving job creation, promoting innovation, and expanding markets for American businesses. Broadband access also affords public safety agencies the opportunity for greater levels of effectiveness and interoperability. While broadband infrastructure has been deployed in a vast majority of communities across the country, today too many areas still lack adequate access to this crucial resource. For these areas, decisions on access to Federal property and rights of way can be essential to the deployment of both wired and wireless broadband infrastructure. The Federal Government controls nearly 30 percent of all land in the United States, owns thousands of buildings, and provides substantial funding for State and local transportation infrastructure, creating significant opportunities for executive departments and agencies (agencies) to help expand broadband infrastructure.

Sec. 2. Broadband Deployment on Federal Property Working Group. (a) In order to ensure a coordinated and consistent approach in implementing agency procedures, requirements, and policies related to access to Federal lands, buildings, and rights of way, federally assisted highways, and tribal lands to advance broadband deployment, there is established a Broadband Deployment on Federal Property Working Group (Working Group), to be co-chaired by representatives designated by the Administrator of General Services and the Secretary of Homeland Security (Co-Chairs) from their respective agencies, in consultation with the Director of the Office of Science and Technology Policy (Director) and in coordination with the Chief Performance Officer (CPO).

(b) The Working Group shall be composed of:

(i) a representative from each of the following agencies, and the Co-Chairs, all of which have significant ownership of, or responsibility for managing, Federal lands, buildings, and rights of way, federally assisted highways, and tribal lands (Broadband Member Agencies):

(1) the Department of Defense;

(2) the Department of the Interior;

(3) the Department of Agriculture;

(4) the Department of Commerce;

(5) the Department of Transportation;

(6) the Department of Veterans Affairs; and

(7) the United States Postal Service;

(ii) a representative from each of the following agencies or offices, to provide advice and assistance:

(1) the Federal Communications Commission;

(2) the Council on Environmental Quality;

(3) the Advisory Council on Historic Preservation; and

(4) the National Security Staff; and

(iii) representatives from such other agencies or offices as the Co-Chairs may invite to participate.

(c) Within 1 year of the date of this order, the Working Group shall report to the Steering Committee on Federal Infrastructure Permitting and Review Process Improvement, established pursuant to Executive Order 13604 of March 22, 2012 (Improving Performance of Federal Permitting and Review of Infrastructure Projects), on the progress that has been made in implementing the actions mandated by sections 3 through 5 of this order.

Sec. 3. Coordinating Consistent and Efficient Federal Broadband Procedures, Requirements, and Policies. (a) Each Broadband Member Agency, following coordination with other Broadband Member Agencies and interested non-member agencies, shall:

(i) develop and implement a strategy to facilitate the timely and efficient deployment of broadband facilities on Federal lands, buildings, and rights of way, federally assisted highways, and tribal lands, that:

(1) ensures a consistent approach across the Federal Government that facilitates broadband deployment processes and decisions, including by: avoiding duplicative reviews; coordinating review processes; providing clear notice of all application and other requirements; ensuring consistent interpretation and application of all procedures, requirements, and policies; supporting decisions on deployment of broadband service to those living on tribal lands consistent with existing statutes, treaties, and trust responsibilities; and ensuring the public availability of current information on these matters;

(2) where beneficial and appropriate, includes procedures for coordination with State, local, and tribal governments, and other appropriate entities;

(3) is coordinated with appropriate external stakeholders, as determined by each Broadband Member Agency, prior to implementation; and

(4) is provided to the Co-Chairs within 180 days of the date of this order; and

(ii) provide comprehensive and current information on accessing Federal lands, buildings, and rights of way, federally assisted highways, and tribal lands for the deployment of broadband facilities, and develop strategies to increase the usefulness and accessibility of this information, including ensuring such information is available online and in a format that is compatible with appropriate Government websites, such as the Federal Infrastructure Projects Dashboard created pursuant to my memorandum of August 31, 2011 (Speeding Infrastructure Development Through More Efficient and Effective Permitting and Environmental Review).

(b) The activities conducted pursuant to subsection (a) of this section, particularly with respect to the establishment of timelines for permitting and review processes, shall be consistent with Executive Order 13604 and with the Federal Plan and Agency Plans to be developed pursuant to that order.

(c) The Co-Chairs, in consultation with the Director and in coordination with the CPO, shall coordinate, review, and monitor the development and implementation of the strategies required by paragraph (a)(i) of this section.

(d) Broadband Member Agencies may limit the information made available pursuant to paragraph (a)(ii) of this section as appropriate to accommodate national security, public safety, and privacy concerns.

Sec. 4. Contracts, Applications, and Permits. (a) Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (Public Law 112–96) contains provisions addressing access to Federal property for the deployment of wireless broadband facilities, including requirements that the General Services Administration (GSA) develop application forms, master contracts, and fees for such access. The GSA shall consult with the Working Group in developing these application forms, master contracts, and fees.

(b) To the extent not already addressed by section 6409, each Broadband Member Agency with responsibility for managing Federal lands, buildings, or rights of way (as determined by the Co-Chairs) shall, in coordination with the Working Group and within 1 year of the date of this order, develop and use one or more templates for uniform contract, application, and permit terms to facilitate nongovernment entities’ use of Federal property for the deployment of broadband facilities. The templates shall, where appropriate, allow for access by multiple broadband service providers and public safety entities. To ensure a consistent approach across the Federal Government and different broadband technologies, the templates shall, to the extent practicable and efficient, provide equal access to Federal property for the deployment of wireline and wireless facilities.

Sec. 5. Deployment of Conduit for Broadband Facilities in Conjunction with Federal or Federally Assisted Highway Construction. (a) The installation of underground fiber conduit along highway and roadway rights of way can improve traffic flow and safety through implementation of intelligent transportation systems (ITS) and reduce the cost of future broadband deployment. Accordingly, within 1 year of the date of this order:

(i) the Department of Transportation, in consultation with the Working Group, shall review dig once requirements in its existing programs and implement a flexible set of best practices that can accommodate changes in broadband technology and minimize excavations consistent with competitive broadband deployment;

(ii) the Department of Transportation shall work with State and local governments to help them develop and implement best practices on such matters as establishing dig once requirements, effectively using private investment in State ITS infrastructure, determining fair market value for rights of way on federally assisted highways, and reestablishing any highway assets disturbed by installation;

(iii) the Department of the Interior and other Broadband Member Agencies with responsibility for federally owned highways and rights of way on tribal lands (as determined by the Co-Chairs) shall revise their procedures, requirements, and policies to include the use of dig once requirements and similar policies to encourage the deployment of broadband infrastructure in conjunction with Federal highway construction, as well as to provide for the reestablishment of any highway assets disturbed by installation;

(iv) the Department of Transportation, after outreach to relevant nonfederal stakeholders, shall review and, if necessary, revise its guidance to State departments of transportation on allowing for-profit or other entities to accommodate or construct, safely and securely maintain, and utilize broadband facilities on State and locally owned rights of way in order to reflect changes in broadband technologies and markets and to promote competitive broadband infrastructure deployment; and

(v) the Department of Transportation, in consultation with the Working Group and the American Association of State Highway and Transportation Officials, shall create an online platform that States and counties may use to aggregate and make publicly available their rights of way laws and joint occupancy guidelines and agreements.

(b) For the purposes of this section, the term “dig once requirements” means requirements designed to reduce the number and scale of repeated excavations for the installation and maintenance of broadband facilities in rights of way.

Sec. 6. General Provisions. (a) This order shall be implemented consistent with all applicable laws, treaties, and trust obligations, and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) Independent agencies are strongly encouraged to comply with this order.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Memorandum of President of the United States, June 28, 2010, 75 F.R. 38387, provided:

Memorandum for the Heads of Executive Departments and Agencies

America's future competitiveness and global technology leadership depend, in part, upon the availability of additional spectrum. The world is going wireless, and we must not fall behind. The resurgence of American productivity growth that started in the 1990s largely reflects investments by American companies, the public sector, and citizens in the new communications technologies that are what we know today as the Internet. The Internet, as vital infrastructure, has become central to the daily economic life of almost every American by creating unprecedented opportunities for small businesses and individual entrepreneurs. We are now beginning the next transformation in information technology: the wireless broadband revolution.

Few technological developments hold as much potential to enhance America's economic competitiveness, create jobs, and improve the quality of our lives as wireless high-speed access to the Internet. Innovative new mobile technologies hold the promise for a virtuous cycle—millions of consumers gain faster access to more services at less cost, spurring innovation, and then a new round of consumers benefit from new services. The wireless revolution has already begun with millions of Americans taking advantage of wireless access to the Internet.

Expanded wireless broadband access will trigger the creation of innovative new businesses, provide cost-effective connections in rural areas, increase productivity, improve public safety, and allow for the development of mobile telemedicine, telework, distance learning, and other new applications that will transform Americans’ lives.

Spectrum and the new technologies it enables also are essential to the Federal Government, which relies on spectrum for important activities, such as emergency communications, national security, law enforcement, aviation, maritime, space communications, and numerous other Federal functions. Spectrum is also critical for many State, local, and tribal government functions. As the wireless broadband revolution unfolds, innovation can enable efficient and imaginative uses of spectrum to maintain and enhance the Government's capabilities.

In order to achieve mobile wireless broadband's full potential, we need an environment where innovation thrives, and where new capabilities also are secure, trustworthy, and provide appropriate safeguards for users’ privacy. These characteristics will continue to be important to the adoption of mobile wireless broadband.

This new era in global technology leadership will only happen if there is adequate spectrum available to support the forthcoming myriad of wireless devices, networks, and applications that can drive the new economy. To do so, we can use our American ingenuity to wring abundance from scarcity, by finding ways to use spectrum more efficiently. We can also unlock the value of otherwise underutilized spectrum and open new avenues for spectrum users to derive value through the development of advanced, situation-aware spectrum-sharing technologies.

I therefore am hereby directing that executive departments, agencies, and offices, and strongly encourage that independent agencies, take the following steps:

Section 1. The Secretary of Commerce, working through the National Telecommunications and Information Administration (NTIA), shall:

(a) collaborate with the Federal Communications Commission (FCC) to make available a total of 500 MHz of Federal and nonfederal spectrum over the next 10 years, suitable for both mobile and fixed wireless broadband use. The spectrum must be available to be licensed by the FCC for exclusive use or made available for shared access by commercial and Government users in order to enable licensed or unlicensed wireless broadband technologies to be deployed;

(b) collaborate with the FCC to complete by October 1, 2010, a specific Plan and Timetable for identifying and making available 500 MHz of spectrum as described in subsection (a) of this section. For purposes of successfully implementing any repurposing of existing spectrum in accordance with subsection (a) of this section, the Plan and Timetable must take into account the need to ensure no loss of critical existing and planned Federal, State, local, and tribal government capabilities, the international implications, and the need for appropriate enforcement mechanisms and authorities;

(c) convene the Policy and Plans Steering Group (PPSG) to advise NTIA on achieving the objectives in subsections (a) and (b) of this section. The Secretaries of Defense, the Treasury, Transportation, State, the Interior, Agriculture, Energy, and Homeland Security, the Attorney General, the Administrators of the National Aeronautics and Space Administration (NASA) and the Federal Aviation Administration, the Director of National Intelligence, the Commandant of the United States Coast Guard, and the head of any other executive department or agency that is currently authorized to use spectrum shall participate and cooperate fully, or in the case of independent agencies are strongly encouraged to, in the activities of the Department of Commerce in accomplishing subsections (a) and (b) of this section and promptly provide appropriate funding and staff resources for agency support to these efforts and the work of the PPSG; and

(d) submit, not later than 180 days after the Plan and Timetable described in subsection (b) of this section are completed, to the National Economic Council (NEC), the Office of Management and Budget (OMB), and the Office of Science and Technology Policy (OSTP) an interim report to assess progress against the Plan and Timetable developed in accordance with subsection (b) of this section. Additional interim reports shall be submitted 180 days after the submission of the first interim report and then annually thereafter until such time as the Plan and Timetable are completed. In preparing these reports, the Secretary of Commerce shall work cooperatively with the FCC and other relevant departments, agencies, and offices.

Sec. 2. The Director of OMB shall work with the Secretary of Commerce, through NTIA and in consultation with affected departments, agencies, and offices, to incorporate into the Plan and Timetable referred to in section 1(b) of this memorandum adequate funding, incentives, and assistance to enable executive agencies or other affected entities to accomplish the actions specified in section 1(a) of this memorandum.

Sec. 3. The Secretary of Commerce, working through NTIA, in consultation with the National Institute of Standards and Technology, National Science Foundation (NSF), the Department of Defense, the Department of Justice, NASA, and other agencies as appropriate, shall create and implement a plan to facilitate research, development, experimentation, and testing by researchers to explore innovative spectrum-sharing technologies, including those that are secure and resilient.

Sec. 4. The FCC is strongly encouraged to work closely with the Department of Commerce, through NTIA, to carry out this memorandum as it relates to the FCC, including the repurposing of nonfederal Government spectrum as appropriate and identifying the mechanisms necessary to ensure compliance with the FCC's decisions.

Sec. 5. The NEC, the OMB, and the OSTP (in consultation with the Department of Commerce, working through NTIA, FCC, and the National Security Staff) shall assess, based on the interim report developed pursuant to section 1(d) of this memorandum, whether there has been sufficient progress in achieving the objectives of this memorandum or whether some other mechanism, such as an independent review panel, is needed to address those areas where sufficient progress is not occurring. The NEC, the OMB, and the OSTP shall make any necessary recommendations to the President regarding such progress 45 days after receiving the initial interim report required by section 1(d) of this memorandum and, as appropriate, following subsequent reports.

Sec. 6.

(a) To the extent permitted by law and within existing appropriations, the Department of Commerce, through NTIA, shall provide administrative support for the interagency groups created in this memorandum.

(b) Nothing in this memorandum shall be construed to impair or otherwise affect the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(c) Nothing in this memorandum shall be construed to require the disclosure of classified information, law enforcement sensitive information, or other information that must be protected in the interests of national security.

(d) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(e) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 7. The Secretary of Commerce is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.