‘Dig Once’ Bill Narrowly Survives Contentious Rules Hearing

'Dig Once' bill sponsor Sen. Nereida Rivera-O’Reilly. (File photo)
‘Dig Once’ bill sponsor Sen. Nereida Rivera-O’Reilly. (File photo)

The Senate Rules and Judiciary Committee on Thursday approved the controversial “Dig Once” legislation in spite of strong objections and the potential threat to federally funded projects.

Voting in favor of the bill were Sens. Jean Forde (D-STT), Positive T.A. Nelson (ICM-STX) and Janelle Sarauw (I-STT). Sens. Myron Jackson (D-STT) and Novelle Francis (D-STX) voted no. Sens. Janette Millin Young (D-STT) and Sammuel Sanes (D-STX) were absent.

“The ‘Dig Once’ legislation came about as an effort to better direct and better control the digging of our roads by utility companies so that it would protect our infrastructure, so there would be better coordination of those efforts and better collaboration,” said bill sponsor Sen. Nereida Rivera-O’Reilly (D-STX).

O’Reilly’s bill claimed victory in committee only after hours of heated back-and-forth. What was supposed to be a simple piece of legislation “mushroomed into a situation,” in the words of Francis, who chairs the committee.

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The “Dig Once” legislation seeks to minimize disruption and costs related to the laying of underground conduits by cutting into the ground only once and allowing multiple entities, including private companies, to benefit from the resulting conduits. Since the Virgin Islands Water and Power Authority is the primary entity laying down underground conduits at this time, the bill practically mandates WAPA install spare conduits that will be shared with telecommunications providers.

The bill makes various amendments to current law, but two stand out. First, it mandates that a when a government agency installs or works on conduits within the public rights-of-way, it has to make sure the conduits are large enough to accommodate cables or lines owned by communication providers, such as Viya and viNGN. It also mandates that communications providers be allowed to install their own conduits at their own expense.

Testifiers came out both in support of and opposition to the bill. While all agreed with the concept of digging conduits once to minimize infrastructure damage, the other provisions are causing serious concerns with certain parties. The Virgin Islands Next Generation Network, or viNGN, sounded alarm bells against allowing private companies such as Viya to install their own cables in the same conduits as viNGN’s.

“This bill, if passed, will allow the largest internet service provider in the territory access into federally funded underground conduits at no charge in an effort to gain a competitive advantage against viNGN and its 16 ISP customers,” said viNGN President and Chief Executive Officer H. Mark McGibbon.

As a public corporation wholly owned by the Public Finance Authority, viNGN sells bandwidth at wholesale prices to some 16 internet service providers, or ISPs, in the territory. The ISPs, in turn, sell the bandwidth to their customers. According to McGibbon, on top of the risk of losing federal dollars, allowing private internet service providers to lay their own cables in the same conduits would drive viNGN out of business.

In a written statement, Viya fought back against this assertion.

“Nothing in Bill No. 32-0204 would impact viNGN’s operations, except the requirement that it coordinate with other communications providers when it installs, relocates, or improves conduit; and give other communications providers the option to install their own conduit or secure access to viNGN’s conduit at cost-based rates. It is hard to see how such requirements would drive viNGN out of business,” the Viya statement read.

McGibbon also asserted that the “Dig Once” bill also seeks to reclassify viNGN as a “communications provider” subject to PSC regulation, from its current classification as a government agency, a move designed to allow Viya to benefit from federal funding it cannot apply for, said McGibbon.

“Only government and non-profit organizations qualify for Stafford Act Disaster Relief Funds. The president of the United States authorizes these federal funds only to government agencies and non-profit organizations. Since [Viya] is a commercial company, it cannot apply for these funds. Bill No. 32-0204 is an attempt to skirt around the Stafford Act to allow this giant ISP to acquire benefit of these funds by way of [this bill],” McGibbon said.

Viya, however, asserted that the company is “not seeking any funds from FEMA directly or indirectly.” Rather, it is taking “advantage of the opportunity presented by FEMA to harden their infrastructure and coordinate their infrastructure installation activities for the benefit of the public,” according to the Viya statement.

PSC legal counsel Boyd Sprehn pushed back against viNGN’s narrative, saying Viya had been mandated by the PSC to lay down telecommunication infrastructure to the tune of $75 million even before viNGN was created. Sprehn also said there is nothing in the legislation that allowed interference with existing conduits, just new ones.

“There seems to be a great deal of fear-mongering regarding the telecommunications and there’s very little substance to that,” Sprehn said.

WAPA officials had their own misgivings. While the utility supports the bill’s concept, WAPA Director of Transmission Niel Vanterpool said it is impractical for every undergrounding project to provide conduits large enough for communication carriers, especially since conduits for power cannot be shared in the first place, and since funding might not always be available. They recommend changing the bill’s language to address spare conduits instead of making every conduit of sufficient size.

WAPA also recommends some reciprocity. The bill as written does not require communications providers digging their own conduits to make the same accommodations for government entities. WAPA officials suggested imposing the same requirements on communication providers if the goal was to minimize damage to infrastructure.

Defeated Amendments
Amendments to the bill, however, did not pass muster with the committee. The amendments would have required electrical power or telecommunication services provider to register with the PSC. They would also have required these entities to inform Department of Public Works of any undergrounding activity before commencing work, and the PSC to provide notice to all other providers of the planned undergrounding so they can coordinate with the original entity planning the dig.

The amendments would also have required the PSC to determine that the projects are cost-effective. WAPA officials also balked at the requirement that the PSC must find the project cost-effective. Vanterpool said this creates a problem for projects already approved by the federal government and found to be non-cost effective by the PSC.

“If that occurs, what recourse would the authority have if it has already been approved for or received federal funding? Must WAPA now advise the federal government it cannot utilize the funds? It would appear that the PSC’s jurisdiction could conflict with the mandates tied to the federal funds,” said Vanterpool, recommending the removal of that amendment from the bill.

WAPA officials also echoed viNGN’s concerns about the bill’s impact to any federally funded projects. Federal dollars, they said, are designated for specific purposes and if WAPA deviated from that, say, by allowing a private company to benefit from the project, it may mean having to return the federal funds.

The bill forwarded to the the full Senate did not contain said amendments.

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