In response to COVID-19, local governments across the country have imposed moratoria on work in the ROW, or have closed permitting offices or public works departments altogether. In some places, we understand that utility locate services are no longer operational.
Utility pole and conduit owners have warned that, due to work force reductions and other COVID-19 priorities, they cannot process pole attachment and conduit occupancy applications according to governing timelines, if at all. Obviously, these closures and work force reductions have significant potential to disrupt the regular business of communications service providers, and critically could prevent the repair or expansion of capacity and services at a time when robust broadband service is even more necessary than ever.
Indeed, the Department of Homeland Security Cyber and Infrastructure Security Agency (CISA) has issued guidance identifying “communications systems supported by technicians, operators, call -centers, wireline and wireless providers, cable service providers, satellite operations, … ” as part of the Critical Infrastructure workforce during COVID 19 recognizing the importance of “maintaining the businesses and services that enable continued economic and social vitality.”
A number of states, including California, New York, Maryland, and Michigan have followed suit.
What to do?
Although government closures may create roadblocks, there are often municipal code or franchise provisions that allow operators to perform emergency work without first obtaining a local permit.
Given the current crisis, and the fact that communications networks have been recognized by the Department of Homeland Security as Critical Infrastructure, those provisions can likely be utilized to perform necessary repairs, maintenance, and upgrades to networks to allow communications companies to continue to offer essential communications services. Of course, investigation of specific circumstances is necessary before taking any emergency construction or maintenance action.
Often critical network construction involving service restoration, plant extensions and capacity increases will require cooperation of utility pole and conduit owners in addition to local governments. Depending on the nature of the work involved and the location and regulatory status of the utility involved, there may be ways to ensure that projects do not come to a halt due to overwhelmed utility work crews.
For example, many utilities are subject to “one touch make ready,” “self-help,” and notice-only overlashing requirements (this is true for investor owned utilities and telephone companies in more than 30 states), which can expedite construction and ensure essential work is timely completed. There may also be contract provisions that address unique circumstances such as emergency conditions currently disrupting industry operations or that suspend certain performance requirements in force majeure situations. Such provisions may provide additional options to perform necessary work.
Attorneys at Davis Wright Tremaine are available to assist you during these challenging times.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.