How to Deal With Florida s New Advanced Wireless Law

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1 How to Deal With Florida s New Advanced Wireless Law Florida League of Cities 91 st Annual Conference August 17-19, 2017 Thomas A. Cloud, B.C.S thomas.cloud@gray-robinson.com Copyright Thomas A. Cloud (2017). All rights reserved.

2 WHAT TO DO? THE TELECOM INDUSTRY SECURES YET ANOTHER NEW STATUTE OUR LEGISLATURE IMPOSES YET ANOTHER PREEMPTION OUR GOVERNOR WAITS UNTIL LATE JUNE TO IGNORE THE LEAGUE S VETO REQUEST YOUR FILL IN THE BLANK TELLS YOU ABOUT THE LAW YOU REALIZE YOUR CITY HAS MORE THAN ONE TELECOM LAW YOUR CLERK TELLS YOU THE LAW HASN T BEEN TOUCHED IN YEARS Copyright Thomas A. Cloud (2017). All rights reserved. 2

3 DON T PANIC THERE ARE ANSWERS TO YOUR QUESTIONS YOU HAVE TIME TO DEAL WITH IT WHILE THE LAW IS ALWAYS CONFUSING, YOU CAN MANAGE THIS YOU CAN GET THE HELP & ADVICE YOU NEED WITHOUT BANKRUPTING THE BUDGET STAY CALM AND ORDAIN ON Copyright Thomas A. Cloud (2017). All rights reserved. 3

4 TELECOM INDUSTRY HAS IMPRESSIVE TRACK RECORD OF GETTING WHAT THEY WANT FROM FLORIDA LEGISLATURE THE COMMUNICATIONS SERVICES TAX SIMPLIFICATION LAW (CABLE PREEMPTION) THE TELE-COMPETITION INNOVATION AND INFRASTRUCTURE ACT, CHAPTER , LAWS OF FLORIDA (RATE REBALANCING, VOIP DEREG, BROADBAND PREEMPTION) CONSUMER CHOICE ACT OF 2007, CHAPTER , LAWS OF FLORIDA (TERMINATED RATE REBALANCING) CONSUMER CHOICE AND PROTECTION ACT, CHAPTER , LAWS OF FLORIDA (NO MORE FPSC SERVICE OVERSIGHT) REGULATORY REFORM ACT OF 2011 (REMOVED VIRTUALLY ALL FPSC OVERSIGHT EXCEPT ISSUING CERTIFICATES) FLORIDA EMERGENCY COMMUNICATIONS NUMBER E911 STATE PLAN ACT, FS (13) (STATE SHOT CLOCK FOR CELL TOWERS) Copyright Thomas A. Cloud (2017). All rights reserved. 4

5 PRIOR TO 2017, NOTHING REQUIRED CITIES TO PERMIT CELL TOWERS IN RIGHT OF WAY NOTHING MANDATES OR REQUIRES CITIES TO GRANT ANYTHING FOR INSTALLATION OF TELECOMMUNICATIONS TOWERS IN CITY RIGHT OF WAY NOTHING MANDATES OR REQUIRES CITIES TO GRANT ANYTHING FOR INSTALLATION OF TELECOMMUNICATIONS TOWERS IN CITY RIGHT OF WAY MOST LOCAL GOVERNMENTS IN FLORIDA COULD RELY ON THEIR CELL TOWER ORDINANCES AS A PART OF THEIR LOCAL LAND DEVELOPMENT REGULATIONS THANKS TO THE 2017 LEGISLATURE, HOWEVER, THE RULES HAVE CHANGED Copyright Thomas A. Cloud (2017). All rights reserved. 5

6 ANATOMY OF THE ADVANCED WIRELESS INFRASTRUCTURE DEPLOYMENT ACT PERMIT PROCESS FOR COLLOCATION & INSTALLATION OF WIRELESS FACILITIES FACILITIES COVERED GENERAL EXEMPTIONS APPLICATION REVIEW PROCESS BASIS FOR DENIAL APPLICABLE CODES LIMITS TO CONDITIONS FEES PROHIBITIONS Copyright Thomas A. Cloud (2017). All rights reserved. 6

7 WIRELESS PERMIT PROCESS WIRELESS PROVIDERS COLLOCATE SMALL WIRELESS FACILITIES ON, UNDER, WITHIN, OR ADJACENT TO CERTAIN UTILITY POLES OR WIRELESS SUPPORT STRUCTURES WITHIN CERTAIN PUBLIC RIGHTS OF WAY WITH LOTS OF PROHIBITIONS & EXEMPTIONS CROWN CASTLE AMENDMENT INSTALL NEW UTILITY POLES Copyright Thomas A. Cloud (2017). All rights reserved. 7

9 GENERAL EXEMPTIONS COLLOCATION OF SWFS ON PRIVATELY OWNED ELECTRIC UTILITY POLES & SUPPORT STRUCTURES (DUKE, FPL, TECO, GULF POWER, CHESAPEAKE) COLLOCATION ON UTILITY POLE OWNED BY MUNICIPAL ELECTRIC UTILITY COLLOCATION OF SWFS ON ELECTRIC COOP OR MUNICIPALLY OWNED ELECTRIC DISTRIBUTION POLES COLLOCATION OF SWFS ON UTILITY POLES IN CERTAIN RETIREMENT COMMUNITIES (>5,000 POP. & DEED RESTRICTED & UNDERGROUND) COLLOCATION OF SWFS ON UTILITY POLES IN CERTAIN CITIES (BARRIER ISLAND & < 5 SQUARE MILES & < 10,000 POP. & 7.1 UG DEBT REFERENDUM (SAY WINTER PARK) FDOT RIGHT OF WAY WIRELINE BACKHAUL FACILITIES COAXIAL OR FIBER CABLE BETWEEN WIRELESS STRUCTURES (IE, WIRE) HORIZONTAL STRUCTURES TO WHICH SIGNAL LIGHTS OR TRAFFIC CONTROL DEVICES ARE ATTACHED Copyright Thomas A. Cloud (2017). All rights reserved. 9

10 MUNICIPAL ELECTRIC UTILITY COLLOCATION EXEMPTION Cities can t prohibit collocation of SWFs in ROW except as provided in this subsection (7)(c) Nobody is authorized to collocate on a utility pole owned by MEU (7)(l) No collocation without owner consent except on city poles not owned by MEU Law s title limited to authority utility poles Utility poles broadly defined Utility poles owned by a municipal electric utility or used to support municipally owned or operated electric distribution facilities are excluded from authority utility poles. Most cities that own/operate EDFs are an MEU No statutory definition of a MEU Cities that own EDFs are defined by (2), Fla. Stat., as an electric utility by virtue of being a municipal electric utility which owns, maintains, or operates an electric system within the state Since 1951, FPSC treats cities that own EDFs as an electric utility pursuant to (2), Fla. Stat. Chapter 366, Fla. Stat., treats electric utility and municipality as interchangeable Cities become a retail electric utility before qualifying as an electric utility subject to FPSC jurisdiction The exemption of utility poles used to support municipally owned or operated electric distribution facilities strongly implies exemption Copyright Thomas A. Cloud (2017). All rights reserved. 10

11 CROWN CASTLE AMENDMENT LAW NOT INTENDED TO OPEN DOOR FOR INSTALLATION OF NEW POLES CROWN CASTLE ASKED FOR WIRELESS INFRASTRUCTURE PROVIDER PROCESS A WIP MAY APPLY UNDER EXPEDITED SHOT CLOCK RULES ( IN ACCORDANCE WITH SUBPARAGRAPH (D)6 ) TO INSTALL NEW UTILITY POLE (7)(J) THE WIP IS SUBJECT TO ANY APPLICABLE CODES AND OTHER LOCAL CODES GOVERNING THE PLACEMENT OF UTILITY POLES IN THE PUBLIC RIGHTS-OF-WAY THIS WOULD INCLUDE ZONING, LAND USE, TELECOMMUNICATIONS TOWER, HISTORIC PRESERVATION, AESTHETIC, & FORESEEN ROAD EXPANSION STANDARDS DEFINITION OF COLLOCATION EXCLUDES THE INSTALLATION OF A NEW UTILITY POLE OR WIRELESS SUPPORT STRUCTURE IN THE PUBLIC RIGHTS-OF-WAY STILL SUBJECT TO 96 FEDERAL TELECOM ACT Copyright Thomas A. Cloud (2017). All rights reserved. 11

12 RX FOR SUCCESS MAKE SURE YOU HAVE ACCESS TO THE SAME KNOWLEDGE TELECOM DOES USE CAUTION WHEN CONSIDERING A MORATORIUM CHECK YOUR EXISTING CITY CODE & LAND DEVELOPMENT REGS TO DETERMINE WHAT YOU HAVE ASSESS YOUR CODES FOR WEAKNESSES AND STRENGTHS IF YOU NEED AN ORDINANCE, GET TO WORK NOW DON T WAIT DETERMINE WHO ON YOUR STAFF WILL RECEIVE RESPONSIBILITY FOR THE NEW SHOT CLOCK IF YOU RECEIVE APPLICATIONS, REACH OUT TO THE APPLICANT NOW DON T WAIT Copyright Thomas A. Cloud (2017). All rights reserved. 12

13 CLOUD S COMMUNICATIONS ORDINANCE CHECKLIST CONFIRM WHETHER YOU NEED COMPETENT SPECIAL COUNSEL TO ASSIST IN CREATING NEW OR MODIFYING EXISTING CITY/TOWN COMMUNICATIONS PROVISIONS FAMILIARIZE YOURSELF WITH CITY S NOMENCLATURE, FORMAT, & NUMBERING CHECK BOTH CHARTER & CODE FOR ENABLING/ENACTMENT LANGUAGE FOR ORDINANCE & ANY OTHER SPECIAL PROVISIONS FOR ORDINANCES USE PROPER NAME OF CITY OR TOWN CONFIRM WHETHER IT S A COMMISSION OR COUNCIL CONFORM SECTION NUMBERING & LETTERING SYSTEM CONFIRM ADOPTION OF CST BY RESOLUTION OR ORDINANCE CONFIRM WHETHER CITY IS A MUNICIPAL ELECTRIC UTILITY ASCERTAIN THE EXISTENCE & LOCATION OF ANY OLD CABLE REGULATION ORDINANCE PROVISIONS ASCERTAIN THE EXISTENCE & LOCATION OF TELECOM TOWER ORDINANCE FOR LATER CROSS REFERENCE IN SMALL WIRELESS FACILITIES ( SWF ) REGULATIONS & NEW UTILITY POLE ( NUP ) REGULATIONS ASCERTAIN THE EXISTENCE & LOCATION OF EXISTING HISTORIC PRESERVATION ORDINANCE FOR LATER CROSS REFERENCE IN SMALL WIRELESS FACILITIES ORDINANCE ASCERTAIN THE EXISTENCE & LOCATION OF REGISTRATION REGULATIONS & LEVY OF PASS THROUGH PROVIDER $500 PER LINEAR MILE FEE ( (6)(B), FS) DETERMINE WITH CITY ATTORNEY & STAFF WHETHER TO ADD REGISTRATION, NUP, & SWF PROVISIONS CHECK CITY CODE FOR CHAPTER REFERENCES TO SELECT MOST LOGICAL PLACE TO INSERT SELECTED REGULATIONS IN THAT CITY S CODE DETERMINE WHETHER CITY ISSUES PERMITS FOR CONSTRUCTION/INSTALLATION IN PUBLIC RIGHTS OF WAY (PROW) IF SO, LOCATE SECTION NUMBER OF PROW INSTALLATION PERMIT IN CODE DETERMINE NAME OF PROW INSTALL PERMIT FOR USE IN DEFINITIONS Copyright Thomas A. Cloud (2017). All rights reserved. 13

14 CLOUD S COMMUNICATIONS ORDINANCE CHECKLIST (CONTINUED) COMPARE PROW DEFINITIONS WITH ANY PRIOR DEFINITIONS IN YOUR CODE DETERMINE WHICH DEFINITION OF PUBLIC ROW TO USE DETERMINE WHICH OFFICIAL WILL REVIEW APPLICATIONS INTEGRATE SWF/NUP REGULATIONS INTEGRATE SWF/NUP REGULATIONS WITH REGISTRATION REGULATIONS INTEGRATE REGISTRATION & NUP REGULATIONS WITH TELECOM TOWER SECTIONS TO ORDINANCE INTEGRATE SWF/NUP REGULATIONS WITH HISTORIC PRESERVATION REGULATIONS REMEMBER TO ADD REFERENCE TO PASS THROUGH PROVIDER FEE IF REGISTRATION SYSTEM IS ADDED REMEMBER TO ADD REFERENCE TO CODE ENFORCEMENT PROVISIONS DETERMINE APPROPRIATE SIGNATURE/EXECUTION CLAUSES AS REQUIRED BY (3)(d), FS, DON T FORGET TO 10-DAY NOTICE OF SCHEDULING FIRST READING OF ORDINANCE GOVERNING A TELECOMMUNICATIONS COMPANY THAT TO SECRETARY OF STATE AT FLORIDA ADMINISTRATIVE CODE & REGISTER SECTION ONLINE USE TIMES NEW ROMAN, 10-POINT FONT WHEN PREPARING 14 CENT PER WORD NOTICE FORM Copyright Thomas A. Cloud (2017). All rights reserved. 14

15 GOING FORWARD WHETHER LEVYING POLL TAXES IN 1885, REFUSING TO REAPPORTION FOR 50 YEARS, OR ATTACKING HOME RULE, OUR STATE STRUGGLES AGAINST A PREDILECTION TO REACT TO THE REQUESTS OF THOSE WITH GREAT WEALTH THE GOAL OF THOSE LEADING THE ASSAULT ON HOME RULE IN THE 2017 LEGISLATURE IS THE CONCENTRATION OF POWER IN THE HANDS OF A FEW AT TIMES, FLORIDA RESEMBLES A MODERN DAY COMBINATION OF 19 TH CENTURY BOURBON RULE AND JIM CLENDINEN S ICONIC 1950s LABEL, PORK CHOP GANG TELECOM WILL ATTEMPT TO USE CONGRESS, THE FCC, & THE LEGISLATURE TO PERMIT PRIVATE INTERESTS TO USE TAXPAYER FUNDED ASSETS FOR PRIVATE GAIN THE LEAGUE S LEGISLATIVE EFFORTS THIS YEAR WERE NOTHING SHORT OF MIRACULOUS FUTURE SUCCESS WILL DEPEND ON COORDINATED EFFORTS WITH OTHER ALLIED ENTITIES & THE RESTORATION OF A MORE BALANCED LEGISLATURE Copyright Thomas A. Cloud (2017). All rights reserved. 15

Questions? Thomas A. Cloud, B.C.S. 407-843-8880 thomas.

17 FLORIDA LEAGUE OF CITIES 2017 ANNUAL CONFERENCE Attack of the Mini Cell Towers in Public Rights-of-Way August 17, 2017 GARY I. RESNICK GrayRobinson 401 East Las Olas Blvd., Suite 1000 Fort Lauderdale, Florida

18 2017: The Year of Wireless Broadband Infrastructure The growth in wireless data traffic is expected to grow 5 times by Over the next 7 years, advanced services, including 5G-capable networks, are expected to create up to 3 million jobs and result in $275 billion in network investment. Once these new networks are up and running, it is projected they will create another 22 million jobs and produce up to $12.3 trillion of goods and services by It is estimated that between 100,000 and 150,000 small cells will be deployed by the end of 2018, with 455,000 expected by 2020, and approximately 800,000 by And where will all of these small cells be deployed? IN YOUR COMMUNITY S PUBLIC RIGHTS-OF-WAY

19 What is a Small Cell? Low-powered cellular radio access nodes with limited range. Small cell refers to the Coverage area, not necessarily the size of the infrastructure. They are small compared to traditional macro towers. Often characterized as the size of a pizza box or no larger than a laptop or about the size of a paperback book. Recently enacted state legislation often defines small wireless facilities as antenna installations of no more than 6 cubic feet, with associated equipment no more than 28 cubic feet in volume. And watch out for 120-foot monopoles!

21 But Not Everything is Perfect 5G wave frequencies do not travel easily through buildings so small cell antennas will have to be densely placed on utility poles, street lights, signage structures, and other structures in the public rights-of-way. This is referred to as densification. 5G still requires macro towers. 5G requires a lot of fiber backhaul to get network data to a point where it can be distributed over a network. Small cell 5G is best suited for densely populated areas it is not a fix for the lack of connectivity in rural and unserved America.

State Preemption of Local ROW Authority Over Wireless Infrastructure Industry-supported legislation discussed or introduced in approximately two dozen states to date.

23 State Preemption of Local ROW Authority Over Wireless Infrastructure Industry-supported legislation discussed or introduced in approximately two dozen states to date. Bills enacted in Arizona, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Minnesota, North Carolina, Ohio, Texas and Virginia. Court fight ongoing in Ohio; recent decision by one court finds legislation violated the state s single subject rule Bills currently moving through the legislative process in California, Pennsylvania, Rhode Island and Wisconsin. Florida Bill Signed By Governor June 26.

26 Florida HB 687: Advanced Wireless Infrastructure Deployment Act Establishes a process by which wireless providers which includes both service providers AND those that build or install wireless equipment, facilities, and support structures may place small wireless facilities in the public rights-of-way that are under the control of a county or municipality. The Act specifically excludes the Florida Department of Transportation rights-of-way. The Act became effective July 1, 2017.

27 The Act provides that: Except as provided, a city or county cannot: Prohibit, Regulate, or Charge for the collocation of small wireless facilities in the public rights-of-way.

29 What is a Small Wireless Facility? The Act defines as: Deployments with enclosed or exposed antennas no more than 6 cubic feet in volume; and All other associated wireless equipment that is no more than 28 cubic feet in volume

33 Requirements for Processing Applications The authority has 14 days to determine if an application is complete, and, if not, to provide notice to the applicant of the specifically identified missing information. A complete application must be approved or denied within 60 days. The parties may mutually agree to extend the 60-day application review process (Practice hint: get any agreement to extend the period in writing). Failure to grant or deny the application within the 60-day review period results in a deemed granted application.

34 Notification Procedure Approval or denial must be made by electronic mail Approval required unless complete application fails to meet authority s applicable codes If application denied, authority must provide written basis for the denial and the specific code provision(s) on which the denial was based Documentation for the denial MUST be sent to the applicant on the SAME DAY the authority denies the application Applicant may cure deficiencies within 30 days; authority then has 30 days to approve or deny

35 Consolidated Applications At the applicant s discretion, a consolidated application may be filed for the collocation of up to 30 small wireless facilities in a single application. If approved, a consolidated application results in the issuance of a single permit. The authority may, at its option, remove from a consolidated application any facility for which incomplete information has been received or that is subsequently denied by the authority.

36 Requests for Application Modifications Within 14 days after an application is filed, the authority may propose a new location for the proposed installation. Parties may negotiate the new location, and any objective design standards, for 30 days. If the applicant accepts the modification, they must notify the authority and the application is deemed granted for the new location. If no agreement is reached, the applicant must notify the authority and the original application must be acted on within 90 days from the date of filing. Any required notifications must be in writing and provided via electronic mail.

37 Height Limitations An authority may limit the height of a small wireless facility to no more than 10 feet above the pole or structure on which the small wireless facility is to be collocated. A new pole is limited to the height of the tallest existing utility pole, as of July 1, 2017, located in the same ROW and within 500 feet of the proposed new pole. If there is no existing pole within 500 feet, the new pole is limited to 50 feet.

38 An Authority may deny an application for collocation of a small wireless facility if it: Materially interferes with the safe operation of traffic control equipment; Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes; Materially interferes with the ADA or similar federal or state standards concerning pedestrian access or movement; Materially fails to comply with the 2010 edition of the FL DOT Utility Accommodation Manual; or Fails to comply with applicable codes.

39 What are Applicable Codes? Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes solely to address threats of destruction of property or injury to persons; Local codes or ordinances adopted to implement this Act; Objective design standards adopted by ordinance.

40 What are Objective Design Standards? May require new or replacement poles be of similar design, material, and color; May require ground-mounted equipment to meet reasonable spacing requirements; May require a small wireless facility to meet reasonable location context, color, stealth, and concealment requirements. NOTE: Authority may waive such standards if not reasonably compatible to a particular location or impose an excessive expense. Any waiver request must be granted or denied within 45 days of receipt.

43 Cities and Counties May Impose Reasonable and Nondiscriminatory Provisions Adopted by Ordinance Addressing: Registration, permitting, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, authority liability, and authority warranties

44 Fees & Compensation Permit Fees: Most Florida cities/counties waived permit fees in exchange for a higher Communications Services Tax per Section (3). Costs and fees cannot be Imposed for: Routine maintenance Replacement of equipment of substantially same or smaller size Placement of micro wireless facilities (max of 24x15x12 inches) on suspended cables by an authorized communications provider with authorized access to the ROW and remitting taxes under Chapter 202 Compensation for Use of ROW: CST and pass through provider fees are not affected by the Act. Collocation Charge: Collocation on authority utility poles may not exceed $150 per pole annually.

46 Undergrounding of Facilities A wireless provider shall comply with an authority s nondiscriminatory undergrounding requirements that prohibit above-ground structures in the public rights-of-way. NOTE: An authority may waive any such requirements. A word of caution: The FCC has signaled its concern that undergrounding requirements conflict with the installation of wireless facilities under the Communications Act.

47 Enforcement of Historic Preservation Zoning Regulations and HOA Restrictions An authority may enforce historic preservation regulations under federal law and local codes, administrative rules, or regulations adopted by ordinance in effect on July 1, 2017, that are applicable to a historic area designated by the state or local authority. NOTE: A city or county may waive any such ordinances or requirements. HOA Restrictions Apply

48 New Utility Poles / Wireless Support Structures Wireless infrastructure provider may apply to place utility pole in ROW. Must include attestation that will be used to collocate a small wireless facilities and will be used by a wireless service provider to provide service within 9 months after the date applications is approved. Height is limited to tallest utility pole in ROW within 500 feet, or if none, 50 feet. Wireless Support Structure defined as a freestanding structure, such as monopole, guyed or self-supporting tower or another existing or proposed structure designed to support or capable of supporting wireless facilities. Does not include a utility pole. These are subject to your land use regulations for towers per , F.S. Can be prohibited or subject to distance separations, hierarchies, stealth as other towers.

49 Exclusions and Restrictions The Act does not apply to: Collocations on privately owned utility poles or utility poles owned by electric cooperatives or municipal electric utilities. Privately owned wireless support structures or other private property without the consent of the owner. Retirement communities with more than 5,000 residents with underground utilities for electric transmission or distribution. Coastal barrier islands of less than 5 square miles, fewer than 10,000 residents, with voter approved debt to finance undergrounding of electric utilities.

public rights-of-way Wireless Notice of Proposed Rulemaking (WT Docket Nos.

50 Current Efforts by the FCC to (Further) Preempt Local ROW Authority Mobilitie Petition for Declaratory Ruling (WT Docket No ) Waiting for Commission action that could establish guidelines on what constitutes fair and reasonable compensation for the use of public rights-of-way Wireless Notice of Proposed Rulemaking (WT Docket Nos and Comments June 15, 2017; reply comments July 17, 2017 Wireline Notice of Proposed Rulemaking (WC Docket No ) Comments June 15, 2017; reply comments July 17, 2017 Expect Action in late Fall or early 2018.

51 Potential FCC Impact on State Legislation Could impose shorter timelines within which to act on wireless broadband infrastructure deployment applications Could impose limits on undergrounding authority Could impose limits on historical preservation authority Could impose limits on third party consultants for review process Could impose limits on local authority over Wireless Support Structures Could impose stronger deemed granted remedy Could impose restriction on use of moratoria Could impose limit on local authority over design standards / aesthetics Could impose limits on carve outs -- DOT ROW, Coastal Communities ROW, Retirement Communities ROW, and HOA ROW And more...

52 So, Now What? Review and amend existing codes to comply with HB 687, federal law, and FCC regulations and that they are as strong as they can be. Review current wireless broadband infrastructure application processes to ensure you can comply with required timeframes. Review applications to make sure you are asking for all the information you are entitled to obtain from the applicant. Develop objective design standards that fit your community s needs and interests. Consider undergrounding and location options.

CHAPTER Committee Substitute for Committee Substitute for House Bill No. 687

CHAPTER Committee Substitute for Committee Substitute for House Bill No. 687 CHAPTER 2017-136 Committee Substitute for Committee Substitute for House Bill No. 687 An act relating to utilities; amending s. 337.401, F.S.; authorizing the Department of Transportation and certain local