appellant's separate appendix
TRANSCRIPT
In the
SUPRElVIE COURT OF VIRGINIA
at Richmond
Record No. 030312
l\1CI WORLOCOM NETWORK SERVICES, INC.,
rIa in! iff~, J pp!.!l I ant,
v. OSP CONSULTANTS, INC.,
Dc(e mlu nl -ilppe II ee
On C~rtificd Question from United States Court of Appeals for the Fourth Circuit
APPELLANT'S SEPARATE APPENDIX
J::~mes .1. Proszek Anthony J. Jorgenson HALL, ESTILL, HARD\VICK, GABLE, GOLDEN & 1\F:LSO:\f, P.C. 320 South Boston A venue. Suite 400 Tulsa. OK 74103-3 70S (918) 594-0400
David Smorodin V. Nicole Bynum WORLDCOM, INC. 1133 19th Street. N . W. Washington. DC 20036 (202) 736-6000
Caroline E. Petro PIPER i\IARBl'R\' IU1DNlCh: & WOLFE LLP 1200 [l)th Street. N.\\'. Washington. DC 20036-2412 (202) 861-3845
John !vlc Dermott HALL, ESTILL, HARDWICK, GABLE, GOLDEN & Nf~LSON, P.C. 1120 20111 Street N.v\· .. Suite 700 Washingtun. DC 20m6-3406 (202) 973-1200
ATTORNEYS FOR PLAI~TIFF-APPELLANT MCI WORLDCOM NETWORK SERVICES, INC.
In the
SUPREME COURT OF VIRGINIA
at Richmond
Record No. 030312
MCI WORLDCOM NETWORK SERVICES, INC.,
Plaintiff-Appellant,
v. OSP CONSULTANTS, INC.,
Defendant-Appellee.
On Certified Question from United States Court of Appeals for the Fourth Circuit
APPELLANT'S SEPARATE APPENDIX
James J. Proszek Anthony J. Jorgenson HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 320 South Boston Avenue, Suite 400 Tulsa, OK 74103-3708 (918) 594-0400
David Smorodin V. Nicole Bynum WORLDCOM, INC. 1133 19th Street, N.W. Washington, DC 20036 (202) 736-6000
Caroline E. Petro PIPER MARBURY RUDNICK & WOLFELLP 1200 19th Street, N.W. Washington, DC 20036-2412 (202) 861-3845
John McDermott HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 1120 20th Street N.W., Suite 700 Washington, DC 20036-3406 (202) 973-1200
ATTORNEYS FOR PLAINTIFF-APPELLANT MCI WORLDCOM NETWORK SERVICES, INC.
Table of Contents
1. Motion of Appellant MCI WORLDCOM Network Services, Inc. to Supplement the ·Record on Appeal I the Fourth Circuit United States Court of Appeals .................................................. APPELLANTS' -0001 - 0006
2. MCI WORLDCOM Network Services, Inc.'s Supplemental Appendix in the Fourth Circuit United States Court of Appeals ........................................................................... APPELLANTS'-0007- 0051
3. Reply of Appellant MCI WORLDCOM Network Services, Inc. to Appellee OSP Consultants, Inc.'s Response to Appellant's Motion to Supplement the Record on Appeal in the Fourth Circuit United States Court of Appeals .................................................. APPELLANTS'-0052 - 0062
2
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
MCI WORLDCOM NETWORK SERVICES, INC.,
Plaintiff/ Appellant,
v.
OSP CONSULTANTS, INC.,
Defendant/ Appellee.
MOTION OF APPELLANT MCI WORLDCOM NETWORK SERVICES, INC. TO SUPPLEMENT THE RECORD ON APPEAL
Appellant, MCI WORLDCOM Network Services, Inc. ("MWNS"),
respectfully moves this Court to allow MWNS to supplement the record on appeal
with the relevant portions of the following studies and reports to respond to the
public policy arguments raised by the National Utility Contractors Association
("NUCA") in the amicus brief NUCA filed in support of Appellee, OSP
Consultants, Inc. ("OSP"), seeking affirmance of the district court's decision:
A. U.S.D.O.T., Research and Special Programs Admiffis.tration, "Common Ground: Study of One-call Systems and Damage Prevention Best Practices" (Aug 1999);
B. Alliance For Telecommunications Industry Solutions, "Keeping the Network Alive and Well: Solving the Problem of Cable Dig-Ups" (Feb. 1996);
C. National Transportation Safety Board, "Safety Study: Protecting Public Safety Through Excavation Damage Prevention" (Dec. 1997);
APPELLANTS'-0001
D. Fiber Cable Focus Group, "Fiber Cable Dig-Ups: Causes and Cures" (June 1993) (presented as a part of the Federal Communications Commission's Network Reliability Council Compendium of Technical Papers, "Network Reliability: A Report to the Nation" (June 1993));
E. Alliance for Telecommunications Industry Solutions, Network Reliability Steering Committee, "Fixing Facility Outages: Building the Tools to Make it Happen" (Nov. 1997);
F. Telecommunications Industry Benchmarking Consortium, "Network Protection Practices for Subsurface Facilities'.' (June 1994). 1
In support of its motion, MWNS states:
1. By Order dated August 29, 2002, the Court granted NUCA leave to
file a brief as amicus curiae. In that brief, NUCA raised two public policy
arguments: (1) that an award of loss of use damages under the facts of this case
would create a precedent with serious detrimental consequences to underground
contractors; and (2) an award of loss of use damages under the facts of this case
would create a perverse disincentive to telecommunications companies to protect
or make timely repairs to their underground facilities.
2. In a Corrected Order filed September 3, 2002, the Court granted
MWNS leave to file a supplemental brief on or before September 16, 2002, to
respond to NUCA's amicus brief.
1 Copies of the relevant portions of these studies and reports are contained in a proposed Supplemental Appendix submitted herewith.
2 APPELLANTS'-0002
3. In its supplemental brief, MWNS contends the Court should refuse to
consider NUCA's public policy arguments because neither MWNS nor OSP, the
parties to the appeal, raised these arguments, the arguments do not involve
jurisdictional issues and the arguments do not raise any exceptional circumstances.
MWNS further contends in its supplemental brief that if the Court does consider
NUCA' s public policy arguments, those arguments should be rejected because
NUCA has not identified any evidence in the record that the issues were raised
below and cites no evidence in the record, empirical studies, statistical evidence, or
authorities supporting its public policy arguments.
4. Finally, MWNS contends in its supplemental brief that if the Court
does not reject NUCA' s public policy arguments due to the lack of any support,
those public policy arguments, as shown by the studies and reports identified
above, are contrary to reality. Since those public policy arguments were not raised
below, there was no reason for MWNS to have presented those studies and reports
to the district court prior to the appeal.
5. This Court has the discretionary power, when the interests of justice
demand it, to supplement the record on appeal, even to include evidence not
reviewed by the court below. ~'Dakota Industries. Inc. v. Dakota Sportswear,
Inc., 988 F.2d 61, 63 (8th Cir. 1993); First Alabama Bank of Montgomery, N.A. v.
Parsons Steel, Inc., 825 F.2d 1475, 1487 (11th Cir. 1987); cert. denied sub nom.
3 APPELLANTS'-0003
McGregor v. First Alabama Bank of Montgomery, N.A., 484 U.S. 1060 .(1987);
Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984). Because NUCA's
public policy arguments were not raised until NUCA filed its amicus brief in this
appeal, MWNS did not present these studies and the reports listed above to the
district court. These studies and reports are, however, germane to, and are
necessary to now refute, NUCA's public policy arguments. If the Court does deem
it proper to consider NUCA's public policy arguments even though the parties did
not raise them either in the district court or in this appeal, the interests of justice
require that MWNS be all<;>wed to supplement the record with the reports and
studies necessary to refute NUCA' s public policy arguments.
6. MWNS's counsel has contacted OSP's counsel and NUCA's counsel
to advise them of MWNS 's intent to file this motion. NUCA' s counsel has advised
NUCA does not object to this motion. OSP's counsel has advised that OSP objects
to this motion and intends to file a response objecting to it.
WHEREFORE, MWNS respectfully requests that this Court grant it leave to
supplement the record on appeal with the proposed supplemental appendix
submitted with this motion.
4 APPELLANTS'-0004
5
and
Caroline E. Petro PIPER MARBURY RUDNICK & WOLFELLP 1200 19th Street, N.W. Washington, DC 20036-2412 Telephone (202) 861-3845 Facsimile (202) 689-7590
and
David T. Smorodin V. Nicole Bynum WORLDCOM, INC. 1133 19th Street, N.W. Washington, DC 20036 Telephone (202) 736-6000
ATTORNEYS FOR PLAINTIFF/ APPELLANT, MCI WORLDCOM NETWORK SERVICES, INC.
APPELLANTS'-0005
CERTIFICATION OF FILING AND SERVICE
I hereby certify that I filed and served the foregoing Response Brief of
Appellant MCI WORLDCOM Network Services, Inc. and the proposed
Supplemental Appendix referred to therein on the following persons:
Office of the Clerk, Patricia S. Connor United States Court of Appeals For the Fourth Circuit
Jeffrey R. DeCaro
Lewis F. Powell Jr. U.S. Courthouse Annex 1000 East Main Street, Suite 501 Richmond, Virginia 23219-3517
DeCARO, DORAN, SICILIANO, CALLAGHER & DeBLASIS, LLP 4601 Forbes Boulevard, Suite 200 Lanham, MD 20703-0040 Attorney for Defendant/ Appellee OSP Consultants, Inc.
David J. Cynamon SHAW PITTMAN LLP 2300 N. Street, l'JW Washington, DC 20037 Attorney for Amicus Curiae National Utility Contractors Association
by sending via Federal Express to said Court Clerk the original of the Response
Brief, along with the required number of copies, and to the individual counsel the
required number of copies by first class mail placed in a sealed envelope addressed
to them at the address set forth above and deposited in the United States Post
Office at Tulsa, Oklahoma, on the I 3 day of September, 2002, with postage .
prepaid. Between said Post Office and the addresses listed, there is regular service
by U.S. Mail.
289535.1:531142:00323
lame~ J. Proszek ./
1HA.Ifl, EST(LIJHARD~I. K, GABLE, -...GO£DEN & 'NELSON, ~-326 South Boston Avenue, Suite 400 Tulsa, OK 74103-3708 Attorneys for Plaintiff-Appellant MCI WORLDCOM Network Services, Inc.
APPELLANTS' -0006
-I
I
CASE NO. 02-1262
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
MCI WORLDCOM NETWORK SERVICES, INC.
Plaintiff-Appellant.
V.
OSP CONSULTANTS, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Virginia Honorable Judge Claude M. Hilton
SUPPLEMENTAL APPENDIX
James J. Proszek Anthony J. Jorgenson
Caroline E. Petro (VSB #30220) PIPER RUDNICK LLP
HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 320 South Boston Avenue, Suite 400 Tulsa, OK 74103-3708 Telephone (918) 594-0400
David T. Sn1orodin Chief Litigation Counsel V. Nicole Bynum Associate Litigation Counsel WORLDCOM, INC. 1 13 3 19th Street, N. \V. Washington. DC 20036 (202) 736-6000
1200 19th Street, N.W. Washington~ DC 20036-2412 Telephone (202) 861-3845
ATTORNEYS FOR PLAINTIFF-APPELLANT MCI WORLDCOM NETWORK SERVICES, INC.
APPELLANTS' -0007
TABLE OF CONTENTS
Tab Document Pages
A U.S.D.O.T., Research and Special Progran1s Administration, "Common Ground: Study of One-call Systems and Damage Prevention Best Practices" (Aug 1999); 1-5
I .... , B Alliance For Telecommunications Industry Solutions, j
.J
"Keeping the Network Alive and Well: Solving the •.I
Problem of Cable Dig-Ups" (Feb. 1996); I
6-9 . ·I
~~:!
c National.Transportation Safety Board, "Safety Study: Protecting Public Safety Through Excavation Damage Prevention" (Dec. 1997); 10-16
D Fiber Cable Focus Group, "Fiber Cable Dig-Ups: Causes and Cures" (June 1993) (presented as a part of the Federal Communications Commission's Network Reliability Council Compendium of Technical Papers, "Network Reliability: A Report to the Nation" (June 1993));. 17-29
E Alliance for Telecommunications Industry Solutions, Network Reliability Steering Committee, "Fixing Facility Outages: Building the Tools to Make it Happen" (Nov. 1997); 30-34
F Telecommunications Industry Benchmarking Consortium, "Network Protection Practices for Subsurface Facilities"
.·~·t
. ~"'' (June 1994) . 35-44
289998.1 :531 I 42:00323 APPELLANTS'-0008
COMMON GROUND
Study of One-Call Systems and Damage Prevention. Best Practices
August 1999
Sponsored by the United States Department of Transportation; Research and Special Programs Administration; Oftice of Pipeline Safety, as authorized by the Transportation Equity Act for the ll't Century (TEA 21)
APPELLANTS'-0009
0001
ACKNOWLEDGMENTS
The Common Grotmd report was prepared by over 160 individuals, representing a wide range of interests, organizations, and viewpoints on preventing damage to tmdergrotmd facilities. The project was initiated by the U.S. Department of Transportation's Office of Pipeline Safety (OPS). OPS is an element of the Department's Research and Special Programs Administration.
The following OPS staff members were directly involved in the project.
Richard B. Felder, Associate Administrator for Pipeline Safety
Stacey Gerard, Steering Team Member
John C. Hess, Project Manager
Eben Wyman, Linking Team Member
Zach Barrett, One-Call Center Operations Task Team Member
Terri Binns, Compliance Task Team Member
Mary Jo Cooney, Public Education and Awareness Task Team Co-Chair
Arme-Marie Joseph, Planning and Design Task Team Member
Christina Sames, Mapping Practices Task Team Co-Chair
Lisa Kokoszka provided administrative oversight for OPS' operations.
Cycla Corporation staff supported all phases of the study and provided expert assistance in the reportwriting process. Cycla personnel participating were: Jim von Herrmann, Herb Wilhite, Jean Damero~ Mary Lockhart, Andy McClymont, Chris McClymont, Dorian Stansberry, Sue vonHernnann, and Skip Brown. Iun Quilliam, fonnerly ofCycla, worked in the initial phase of the study.
The One-Call Study Internet-based computer system that enabled participants across the Nation to have direct and immediate access to all project infonnation was developed and maintained by Cycla's Randy Pearson.
Arrowhead and Telecommtmications, Inc., supported OPS' personnel in this work. Janice Morgan arranged facilities for the scores of meetings held across the Nation during the project Karen Munden and Peggy Thompson skillfully shared the administrative burden throughout the year.
APPELLANTS' -0010
0002
TABLE OF CONTENTS
FOREWORD ........................................ .' ....................... i
CHAPTER 1 Common Ground Study BackgroWld and Process ........................... 1
CHAPTER 2 Planning and Design Task Team Best Practices ............................ 15
!j· CHAPTER 3 One-Call Center Task Team Best Practices ............................... 35 :j
CHAPTER 4 Locating and Marking Task Team Best Practices ........................... 57
CHAPTER 5 Excavation Task Team Best Practices ................................... 81
CHAPTER 6 Mapping Task Team Best Practices .................................... 101
CHAPTER 7 Compliance Task Team Best Practices .................................. 111
CHAPTER 8 Public Education and Awareness Task Team Best Practices . . . . . . . . . . . . . . . . . . 129
CHAPTER 9 Reporting and Evaluation Task Team Best Practices . . . . . . . . . . . . . . . . . . . . . . . . 145
CHAPTER 10 Conclusions ..................................................... 163
APPENDIX A Emerging Technologies ............................................ 171
APPENDIX B Transportation Equity Act for the 2Pt Centwy (TEA 21) ................... 195
APPENDIX C Glossary of Terms/Definitions ....................................... 205
:~ APPENDIX D Acronyms ...................................................... 209
APPENDIX E References ..................................................... 211
APPENDIX F Common Growtd Study Team Member Biographies ....................... 217
INDEX .................................................................... 251
APPELLANTS'-0011
0003
·i
Common G'ound: Damage Prevention Best Practices Report
CHAPTER I Common Ground Study Background and Process
1.1 BACKGROUND INFORMATION- DAMAGE TO UNDERGROUND FACILITIES
Damages to underground facilities are usually preventable and most frequently occur due to a breakdown in the damage prevention process. The responsibility for preventing excavation damage is shared by all stakeholders, and includes elements such as plarming, effective use of one-call systems, accurate location and marking of underground facilities, adherence to safe digging pmctices, proper placement of facilities, and strong public education and awareness. Damage to Wlderground facilities can affect the vital services and products delivered through those facilities. Underground facility damage can result in injucy and death, as well as severe property damage and loss of vital services and products, such as telecommunications, water and sewer, electric power, cable television, and the flow and supply of liquid petrolewn and natural gas. Damage can cause vital facility outages for homes, businesses, hospitals, air traffic control operations, and emergency service providers.
At the heart of damage prevention is improved infonnation accuracy and consistency in communication between excavators and operators of underground facilities. One-call systems provide a reliable and efficient process for excavators to notify facility owners/operators of planned excavations. The one-call process allows operators with facilities in the vicinity of a proposed excavation site to mark the location of their equipm~t and facilities in advance of the excavation. This gives excavators knowledge by which to excavate safely.
Damage prevention practices vary significantly among states, one-call centers, excavators, facility owners/operators, regulatory agencies, designers, and other stakeholders associated with or impacted by undergro\Uld facilities. States have a variety of unique laws and regulations governing the practices, enforcement, and perfonnance analysis data related to WldergrolUld facilities' damage prevention.
1.2 LEGISLATIVE AUTHORITY FOR STUDY
lbe Transportation Equity Act for the 21st Century (TEA 21) was signed into law on June 9, 1998, as Public Law 105-178. TEA 21, Title VII, Subtitle C -Comprehensive One-Call Notification (see Appendix B) was intended to reduce damage to undergrowtd facilities during excavation and to reduce the attendant risks to the public and the environment that are associated with excavation activities.
Section 61 OS of 1EA 21 authorized the United States Department of Transportation (DOT) to undertake a study of damage prevention practices associated with existing one-call notification systems. The Study
APPELLANTS' -0012
Chapter I Common Ground Study Background and Process 0004
Common Ground Damag~ Prevmtion Bat Practica Repon
Team Member (cont.) Repraeatiag (cont.) Employer (cont.)
Lew Hurlbutt AGA Southern California Gas CoJSempra Energy
William G. (Bill) Kiger OCSI Pennsylvania One Call system, Inc.
Richard G. (Rick) Marini, Co- NAPSR New Hampshire Public Utilities chairperson Commission
Truman Murray A.G.A. Jackson Utility Division
Harry Short NRWA Van Buren Municipal Utilities
Robert F. (Bob) Smallcomb NAPSR Massachusetts Department of Public Utilities
John Sterrett INOAA Tennessee Gas Pipeline
George Trujillo NUCA Trujillo Construction, Inc.
Lynn Whitford State DOTs OK Dept. of Transportation
Others that participated in the Task Team's discussions but did not participate in the consensus decision process include:
Team Participant (cont.) Represeatia1 (cont.) Employer (cont.)
Glynn Blanton, Linking Team Liaison
NARUC Tennessee Regulatory Authority
7.5 FINDINGS- BEST PRACTICES
Note: By citing a particular state and/or a particular section from a state's one-call statute or regulations . as the source of the best practice, the Compliance Team is not endorsing a particular state's entire one-call statute or system, nor is it rejecting a similar provision in a state statute that is not included as a source. The citations are simply evidence of tbe existence of such a practice and should be considered solely for the concept or procedure described irrespective of other provisions of the particular state's one-call law or system.
Following is the list of practices developed by the Compliance Task Team for which consensus among the Task Team members has been achieved.
1. 2. 3. 4.
s.
Public and Enforcement Education Incentives Penalties Damage Recovery • Right of Recovery • Alternative Dispute Resolution Enforcement
Chapter 7 Compliance TtUk Team Best Practicu
APPELLANTS'-0013
115
0005
. _)
l
l.
Alliance for Telecommunications Industry Solutions
Network Reliability Steering Committee
Facilities Solution .Team Report
Results and Recommendations Pertaining to
Facilities Reliability
February 1996
Team Leader: Louis Scerbo Bell core
Project Manager: John Healy Bell core
..
. ... .
APPELLANTS'-0015
0007
cable electro~cs, radio facility equipment, and other. With the new categorization, the Data Analysis Subteam detennined that cable electronics outages are higher in the last two years than in the previous three years and recommended that the Cable Electronics Subteam be resurrected to look at these outages.
The goal of the Cable Damage Prevention Subteam was to develop comprehensive proactive guidelines which are non-legislative in nature and are aimed at preventing facility outages.
The Cable Damage Prevention Subteam completed the following four documents:
1. Minimum Damage Prevention Guidelines - Excavation Procedures for Underground Facilities
2. Minimum Performance Guidelines for One-Call Notification Systems
3. Facility Owners Minimum Guidelines for Location and Protection of Below Ground Fiber Optic Cable
4. Guidelines for Prospective Excavation Site Delineation and Facility Owner Markout.
These guidelines define minimum standards for each of the parties with a role in damage prevention.
Over 50% of the facility outages are categorized as Fiber Cut Dig-Ups. Nearly 50% of the Fiber Cut Dig-Ups occurred because the excavator either failed to notify the facility owner or provided inadequate notification. One-Call legislation is aimed at reducing these outages. The Facilities Solution Team recommended federal One-Call legislation in its earlier report. In July, 1996, Casimir Skrzypczak, then President of NYNEX Science and Technology Inc., in his testimony in support of One-Call legislation before a House Subcommittee, outlined four reconunended principles of OneCall legislation that the Facilities Solution Team continue to use today. These principles cover 1) notice and responsibility, 2) simplicity and flexibility, 3) broad applicability and 4) industry funding.
The Facilities Solution Team continues to champion One-Call legislation at the federal level and at the state level. The Facilities Solution Team endorses the passage of strong and effective federal One-Call legislation to set minimum standards for the states to achieve in administering One-Call systems. There ·are two One-Call bills before Congress which work to achieve the goal of protecting underground telecommunications facilities and meet the recommended principles of legislation as stated by Mr. Skrzypczak. The Facilities Solution Team supports both bills and is working to ensure that a One-Call bill is passed which applies to all excavators and facility providers4
•
The only way to ensure that reconunendations are acted on is by constant vigilance and continued, dedicated effort. Past work appears to be paying off. The Facilities Solution Team, as part of the A TIS/NRSC, stands ready to help ensure that its recommendations are acted upon, to periodically analyze the effectiveness of its recommendations, and to respond to any new reliability concerns that arise on telecommunications facilities.
4 Update: The One-CaJl bill S. 1115 (see Appendix G) was passed unanimously by the U.S. Senate on November 9,
1997.
APPELLANTS'-0016
4 0008
_.j
j
.. )
Cut Dig-Ups was done to identify the root cause of many of these problems. The goal was to determine how many of these dig-ups might have been prevented if a call to a One-Call Agency was made or if the facility owner was otherwise notified. Figure 7, below, illustrates the results.
Root Causes of Fiber tCable Dig-Ups Cable
Unlocated Other
Inaccurate Cable Locate
18%
Excavator Digging Error
20%
9%
No/Inadequate Notification
51%
Figure 7: Percent of Fiber Cable Dig-Ups by Root Cause
The major root cause of Fiber Cable Dig-Ups is No Notification or Inadequate Notification by the excavator. Over 50% of the dig-ups resulted from an excavator's failure to call their local one-call center before digging. This is a higher percentage than· what was reported to the Network Reliability Council by the Fiber Cable Focus Group. That group analyzed FCC and industry data on service interruptions and unanimously endorsed pursuit of national one-call legislation. While effective one-call laws are not the only solution to network outages, the telecommunications industry agrees that better laws will go a long way toward improving network reliability.
The State of Texas illustrates well the link between lack of effective one-call legislation and network outages. Texas has no one-call law, and 20% of all fiber cable dig-ups across the country occur in that state. Figure 8 provides the present status of one-call legislation in each state and Figure 9 provides the number of FCC Reportable Fiber Cable Dig-Ups by state for the period 7/1/92 to 9/30/95.
: •' ..
APPELLANTS'-0017
11 0009
:; I
j
NATIONAL TRANSPORTATION SAFETY BOARD WASHINGTON, D.C. 20594
SAFETY STUDY
PROTECTING PUBLIC SAFETY THROUGH· EXCAVATION DAMAGE PREVENTION
PB97 -917003 NTSB/SS-97 /01
.. ·-
APPELLANTS'-0018
6931
0010
National Transportation Safety Board. 1997. Protecting Public Safety Through Excavation Damage Prevention. Safety Study NTSB/SS-97/01. Washington, DC. 106 p.
Pipeline accidents result in fewer fatalities annually than accidents in the other modes of transportation; however, a single pipeline accident has the potential to cause a catastrophic disaster that can injure hundreds of persons, affect thousands more, and cost millions of dollars in terms of property damage, loss of work opportunity, community disruption, ecological damage, and insurance liability. Excavation and construction activities are the largest single cause of accidents to pipelines. In 1994, the Safety Board and the Research and Special Programs Administration jointly sponsored a workshop that brought together industry representatives to identify and recommend ways to improve State excavation damage prevention programs. The Board conducted the current safety study to analyze the findings of the 1994 workshop, to discuss industry and government actions undertaken since the workshop, and to formalize recommendations aimed at further advancing improvements in excavation damage prevention programs. The safety issues discussed in the report include (a) the essential elements of an effective excavation damage prevention program; (b) the accuracy of information regarding buried facilities; and (c) system measures, reporting requirements, and data collection. Safety recommendations concerning these issues were made to the Research and Special Programs Administration, the Federal Highway Administration, the American Public Works Association, the Association of American Railroads, the American Short Line Railroad Association, the American Society of Civil Engineers, and the Associated General Contractors of America.
The National Transportation Safety Board is an independent Federal agency dedicated to promoting aviation, railroad, highway, marine, pipeline, and hazardous materials safety. Established in 1967, the agency is mandated by Congress through the Independent Safety Board Act of 1974 to investigate transportation accidents, determine the probable causes of the accidents, issue safety recommendations, study transportation safety issues, and evaluate the safety effectiveness of government agencies involved in transportation. The Safety Board makes public its actions and decisions through accident reports, safety studies, special investigation reports, safety recommendations, and statistical reviews.
Information about available publications may be obtained by contacting:
N a tiona! Transportation Safety Board Public Inquiries Section, RE-5 1 490 L'Enfant Plaza, S.W. Washington, D.C. 20594 (202)314-655 1
Safety Board publications may be purchased, by individual copy or by subscription, from the National Technical Information Service. To purchase this publication, order report number PB97-917003 from:
National Technical Information Service 5285 Port Royal Road Springfield, Virginia 22161 (703 )605-6000
APPELLANTS·-oo19
0011
-.)
j
Protecting Public Safety Through Excavation Damage Prevention
Safety Study
NTSB/SS-97/01 PB97-917003 Notation 6931 December 1997
191-HS'~
~~' '2 . 0 .,. ~ .c,; •\,.../ _, ,.9
~&0,..-
National Transportation Safety Board 490 L'Enfant Plaza, S.W. Washington, D.C. 20594
APPELLANTS' -0020
0012
Contents iii
Contents
Executive Summary .............................................................................................................................. v
Chapter 1: Introduction ...................................................................................................................... 1
Chapter 2: Overview of Subsurface Infrastructure and Regulatory and Legislative Initiatives ................................................................................... 5 Subsurface Infrastructure ................................................................................................................................ 5 Regulatory and Legislative Initiatives ............................................................................................................. 7
Chapter 3: Damage Prevention Practices .................................................................................. 11 Mandatory Participation ..... .. ................... .... . .. . .. . . . . . . .. .. .... . . . . . . . ............. ......................... ...... .... . . . . . . ........ .. . . . . . . 11 One-Call Notification System ....................................................................................................................... 18
Function and Structure of the Centers .................................................................................................. 18 Methods of Operation .......................................................................................................................... 19 Excavation Notification Tickets ........................................................................................................... 20
Effective Sanctions ....................................................................................................................................... 21' Excavation Marking ...................................................................................................................................... 24
Pre-Marking ......................................................................................................................................... 25 Marking Standards ............................................................................................................................... 25
Employee Qualifications and Training ......................................................................................................... 26 Training and Educating Excavation Personnel ..................................................................................... 26 Emergency Response Planning ............................................................................................................ 30
Discussion ..................................................................................................................................................... 31
Chapter 4: Accuracy of Information Regarding Buried Facilities .................................. 33 Underground Detection Technologies .......................................................................................................... 33 VerticaVDepth Location ............................................................................................................................... 35 Directional Boring/frenchless Technology .................................................................................................. 36 Mapping ........................................................................................................................................................ 38 Subsurface Utility ·Engineering ..................................................................................................................... 41
Chapter 5: System Performance Measures ............................................................................... 45 Risk Exposure ............................................................................................................................................... 45 Accident Reporting Requirements of RSP A ................................................................................................. 4 7 Accident Causes ............................................................................................................................................ 49
Conclusions ............................................................................................................................................. 55
Recommendations ................................................................................................................................. 57
APPEt.:LANTS'-0021
0013
iv Contents
Appendixes .............................................................................................................................................. 63 A: NTSB Investigations of Accidents Caused by Excavation Damage, Since 1985 ................................. 63 B: Excerpts From Federal Regulations Pertaining to Excavation .............................................................. 64 C: Characteristics of Current State Laws on Excavation Damage Prevention ........................................... 67 D: Reports of Workshop Groups on Excavation Damage Prevention ....................................................... 81 E: Example of Universal DaiiJllge Report Fonn ........................................................................................ 91 F: Industry Practices and Procedures for Excavation Damage Prevention ............................................... 93 G: NTSB Safety Recommendations Related to RSPA Accident Data ..................................................... 104
Acronyms Used in the Report
AGA AGCA AOPL APGA API APWA ASCE ASLRA CFR DOT DPU FAA FHWA GPS GRI INGAA MnOPS NARUC NPRM NRSC NULCA OCSI OPS OPSO OSHA RSPA SUE TIGER ULCC
American Gas Association Associated General Contractors of America Association of Oil Pipe Lines American Public Gas Association American Petroleum Institute American Public Works Association American Society of Civil Engineers American Short Line Railroad Association Code of Federal Regulations U.S. Department of Transportation Department of Public Utilities Federal Aviation Administration Federal Highway Administration global positioning system Gas Research Institute Interstate Natural Gas Association of America Minnesota Office of Pipeline Safety National Association of Regulatory Utility Conunissioners Notice of Proposed Rulemaking Network Reliability Steering Committee National Utility Locating Contractors Association . One-Call Systems International Office of Pipeline Safety Office of Pipeline Safety Operations Occupational Safety and Health Administration Research and Special Programs Administration Subsurface utility engineering topographically integrated geographic encoding and referencing Utility Location and Coordinating Council
. : ...
APPELLANTS'-0022
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:j I
2 Chapter 1 Introduction
require San Juan Gas Company, Inc., to correct identified safety deficiencies; and the failure of Enron Corporation to adequately oversee the operation of San Juan Gas Company, Inc. Contributing to the loss of life was the failure of San Juan Gas Company, Inc., to adequately inform citizens and businesses of the dangers of propane gas and the safety steps to take when a gas leak is suspected or detected.
In 1994, a tragic pipeline accident occurred in Caracas, Venezuela. A 22·ton trenching device, working on a road construction project, struck a 10-inch gas transmission line. An occupied bus and cars stopped by the road construction were engulfed in flames. Fifty-one persons were killed and 34 injured. The next year, in April1995, construction work on a subway system in Taegu, Korea, ruptured a gas line, killing 103 persons. These accidents occurred in systems that do not operate under U.S. regulations, but they illustrate the catastrophic consequences that can result from excavation damage to underground facilities. 4
Excavation and construction activities are the largest single cause of accidents to pipelines. Data maintained by the U.S. Department of Transportation (DOT), Research and Special Programs Administration (RSPA), Office of Pipeline Safety (OPS), indicate that damage from outside force is the leading cause of leaks and ruptures to pipeline systems, accounting for more than 40 percent of the reported failures.5 According to the data, two-thirds of these failures are the result of third-party damage; that is, damage caused by someone other than the pipeline operator. Reports from the 20m World Gas Congress confirm that excavator damage is also the leading cause of pipeline accidents in other countries. 6
·
According to the Network Reliability Steering Committee (NRSC), an industry group appointed by the Federal Communications Commission, excavation damage is also the single largest cause of interruptions to fiber cable service. Network reliability data, compiled since 1993 by NRSC, show that more than half _of all facility outages are the result of excavation damage (53 percent), and in more th~ half of those cases (51 percent), the excavator failed to notify the facility owner or provided inadequate notification. 7 The Safety Board's review of NRSC frrst quarter data for 1997 indicates that this relationship has not changed. In addition to being expensive and inconvenient, disruption of the telecommunications network can have signifj.cant safety implications, such as impact on traffic control systems, health services, and emergency response
4 The National Transportation Safety Board does not have the authority to investigate pipeline accidents in other countries.
5 Transportation Research Board, National Research Council. 1988. Pipelines and Public Safety. Special Report 219. Washington, DC.
6 Dipl.~Ing, Klees Alfred; Wasserfaches, e.V. 1997. The Safety Concept of Public Gas Supply in Germany. In: Proceedings, 20th IGU World Gas Conference; Copenhagen.
7 Alliance for Telecommunications Industry Solutions/Network Reliability Steering Committee. 1996. Results and Recommendations Pertaining to Facilities Reliability. Facilities Solutions Report. Washington, DC. February.
APPELLANTS'-0023
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Chapter 1 Introduction 3
activities. The Federal Aviation Administration's (FAA) study of cable cuts in 1993 documented 1,444 equipment outages or communications service disruptions resulting from 590 cable cuts nationwide over a 2-year period. The majority of cable cuts were related to construction and excavation activities.8 For 1995, the FAA's National Maintenance Control Center documented cable cuts that affected 32 air traffic control facilities, including five en route control centers. Cable cuts for the first 8 months of 1997 affected air traffic control operations for a total of 158 hours. 9
The Safety Board has long been concerned about the number of excavationcaused pipeline accidents. Because of several excavation-caused pipeline accidents that occurred between 1968 and 1972,10 the Safety Board sponsored a symposium on pipeline damage prevention. Many of the proposals developed at that April1972 symposium led to a Safety Board special study on damage prevention 11 and recommendations that resulted in many of the concepts and systems that have now been implemented to minimize excavation-caused damage to pipelines; for example, the local utility location and coordinating councils (ULCCs) established by the American Public Works Association (APW A). Since that symposium, the Safety Board has continued to support the initiatives of the APW A, the States, and the national organizations to reduce excavation damage to pipelines. The Safety Board has been an advocate of strong damage prevention· programs through its recommendation process and through testimony before Congress and State legislatures, and before groups and trade associations interested in pipeline safety, such as the Interstate Natural Gas Association of America (INGAA), the American Public Gas Association (APGA), the Association of Oil Pipe Lines (AOPL), the American Gas Association (AGA), and the American Petroleum Institute (API).
The combined efforts of industry, the States, the Safety Board, and other Federal agencies led to a decrease in the number of accidents during the 1980s. Nevertheless, excavation-caused damage remains the largest single cause of pipeline accidents. Appendix A lists excavation-caused accidents investigated by the Safety Board since 1985. The Board is currently investigating three other accidents that involved excavation: Gramercy, Louisiana; Tiger Pass, Louisiana; and Indianapolis, lndiana. 12
8 Federal Aviation Administration, Safety and Quality Assurance Division, Associate Administrator for Aviation Safety. 1993. Cable Cuts: Causes, Impacts, and Preventive Measures. Special Review. Washington, DC. 30 p.
9 Federal Aviation Administration, National Maintenance Control Center AOP-100. 1997. Adhoc Report of facility/service outages associated with cable cuts, 7/1/95-8/22/97.
10 A gas explosion in Annandale, Virginia, on March 24, 1972, occurred just 1 month before the symposium.
11 National Transportation Safety Board. 1973. Prevention of Damage to Pipelines. Special Study NTSB/PSS-73/0 1. Washington, DC.
12 NTSB accident Nos. DCA96FP004 (Gramercy, Louisiana; May 24, 1996); DCA97FPOO 1 (Tiger Pass, Louisiana; October 23, 1996); and DCA97FP005 (Indianapolis, Indiana; July 21, 1997).
APPELLANTS'-0024
0016
Network Reliability: A Report to the Nation
Compendium of Technical Papers
Presented by the Federal Communications Commission's
Network Reliability Council
June 1993
APPELLANTS'-0026
0018
Meaage tram PauiiL Henson Chairman
FCC Network Reliability Council
The Network Reliability Council (Council) wu chartered by the FCC "to pNYide recommendations both for the FCC and for the telecommunications industry that, when implemented, will help prevent public telephone network outapa from occurring."
The Council eatabli1hed focus teams compoted of experu both iaaide ad outaide the telecommunications induatry to conduct in-depth ltudia or aeven network .reliability area deemed to be of highest priority based on hiatorical data, !lamely:
Fiber Cable Syatem• (roc:u• on cable cute) Sipaling Network Syate1111 Switching Sytteru (focua on 1oftware) Disital Crou-Connect Sya&em Power Syatellll E-911 Syatem Fire Prevention
The Councilalao chartered a Threshold ReportiJII Group to formulate recommendation• on outqe reporting, ud a Mutual Aid and Restoration Croup to compile a compendium or method• and procedure. for providing mutual aid and restoration.
The purpoM of thi• Compendium oF Technical Papen ia to provide induatry melllhen, leptlatora, regulaton, academia, ad the pnenl public a complete relennee document ol the detailed Technical Papen and reports prepared by the focua team• and other workiq FOUPI• Thil Compendium il pr.ented to you by the NetWork Reliability Council for your infonnation and uae.
You are eneourapd to atucly and auaa the applioahility or the reeoaamenclationa for implemelraation in your eompaay. Not e•ry recotnnMJulalion will be appropriate for ewry compuy in tlYfrl circumatance9,,~~t ~ken .. u a whole, the Council expecu that thele findiap aad recommendation• will~a~tain and coiuinuoully . :.· , .
"' .. ! .. ~. ,.. ..
improYe network reliability. · 0 1 • ~
The Coucil ia proud of ita accomplilhmenta and coatributiou iD furtherins the reliability o£ the nation·~·' public telecom•uaicatioaa network. The Council is aJ.o eonradent that the neelleat indutry cooperation and prseroua ialormation 1bariq, which wu 10 crucial to the aucoeulul completion of itl work, will continue. You are eacourapd to continue your involftftlellt ia thilimpo.rtaat efFort.
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Network Reliability: A Report to the Nation
Compendium of Technical Papers
Contents Section
Fiber.Optic Cable Dig-Upa: Caueaand Cures A
Sipaling Network Syatema Committee Technical Paper B
Software and Switching System Reliability: Cause, Cure or Both? C
Digital Croaa-Conneet SysteJU D
Power Focus Team Analysis E
Network Reliab~lity Council E-911 Foe111 Group Report F on 9-1-1 'Service Delivery Reliability
Fire Prevention ill Telecommuaicatiou Facilities G
Mutual Aid and Restoration Apoeenaeata H
Fiul Recommendation of the Threshold Reportiq Group I of the Network Reliability Council
Section papa 1n labeled with their corrapoadiq letter on the lower, riJht-hand corner. Each section bepna with a detaUed table of coateata.
APPELLANTS'-0028
• 0021
FIBER OPTIC CABLE DIG-UPS: - CAUSES AND CURES
Daniel E. Crawford President • Network Services
MCI Telecommunications Corporation 1801 Pennsylvania Ave., NW
Wubington, D. C. 20806 (202) 887·2235
APPELLANTS'-0029
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Table of Contents
Section
1. Executive Summar:-y ............................................. .
1.1 Overview and key messages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Background . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . . 2
2.1 The Fiber Cable Focus Group - motivation, goals. and obJecave . . . . . . . . . . . . . •. . . • . . . . . . . . . . . • • . . . . . . . . . . . . . . . . . . . . . . 2
2.1.1 Focus Group motivation . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.1.2 Focus Group goals and objectives . . . • . . . . . . . . . ·. . . . . .. . . . . . . . . . . . . 3
2.2 Organization of this presentation . . . . • . • .. . . . .. . • . . . . . . . . . . . . . . • . . . . . . 3 --
3. Team Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 4
4. Data Collection and Analysis Metbodolo&Y . . . • • • . • . • . . • . . • • . . . . . • • • . • . . 4
4.1 Data collecdon emphasis and goals • • . . . • . . . . • . . . . . . . . • . . . . . . . . . . . . . 4
5.
4.2 Dam collection periocl . • • . • • • • • • • • • • . • . . . • . • • . • . • • • • • • • • . . • . . . . . S 4.3 Data collection pr~me • • • • • • • • • • • • • • • • • • • • • • • • • . . • • . • • . . . • . . . • S 4.4 Analydcalll!etbods . • • • • . • • • • • • • • • • . • • • • • • • • • • • . • • • • • • • • . • . • . . . S 4.5 Results of fiber optic cable data analysis • • • • • • • • • • • • • • • • • • • • • • . • • . • . . S
4.5.1 SUIIU'IIUY of findinas • . • • • • • • • • • • • • • • . • • • • • • • • • . • • • • • • • • • • . . . S
Causes of Fiber Optic Cable Damqe . . • . . • . . • • . . . . . . . . . . . . . . • . • . . . . . . 6
· S.l De1ailed failure causes. definidODS ad root causes • . • . • • . . . . . • . • • • . . . . . . 6 5.2 Fi'ber op1ic cable di&·tJPS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 10
S .2.1 Root causes of dia·ups . . • . • . • . • . . . . • . . • • . . . . . • . . . . . . . . . . . . . . . 10 5.2.2 Effect of cable deplb on diJ·up probabilicy • • • • • • • • • . • • . . • • • • • • • . • . . 12 5.2.3 Effect of permanent martins on dig-up probability • • • • • . . • . • • • • • • • • . . 13 5.2.4 failure cause:s by iDJcall•lion • • • • • .• • • • • • • • • • • • • • • • • • • . • • • • • • . . . • lS 5.2.5 Causes of larp outaaa . • . . • . • . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.3 CompiJiscm of Je1adve failure probability amoaa in.slallalions. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • . • • • . • • . • • • • • • • . 17
5.3.1 Comparins aaial widl sub-surface cable ••••••••••••••••••••••••••• 18 .· 5.3.2 Comparins direct buried with UDdeqround cable • • • • • • • • • • • • • . • • • . • . . 18 5.3-' Comparina public with privlle ript-of-way .........•.............. 20
S.4 Repair data •••.....••••.••••.••.••••.•.•••. · . • . • • • . • . . . . . . . . . . 20
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8.
9.
10.
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Key Lessons Learned and Recommended Best Practices . . . . . . . . . . . . . . . . . . . 21
6.1 Key lessons learned, best practices, new approaches ................. 21 6.1.1 Best practices to prevent fiber cable damage caused by
digging .... . ................ 24 6.1.2 Best practic~s to prevent- fiber cable damag:; caused by
other than digging . . . . . . . . . . . . . . . . . . . . 6.1.3 Details • key lessons learned and best practices 6.1.4 Effective countenneasures . . . . . . . . . . . . . . ..
.:.
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Metrics . . . . . . . . . . . . . . . . . . . . . . . ... • ~ . . . . . • . . . . . . • . . • . . . . . . . . . . . 29
7.1 Metrics to measure the effectiveness of solution recommendations . . . . . . . . . . . . . . . . . . . . . . . • • • • • • . • • • • • • • • • • . . . 29
Path Forward ..................................... • . . . . . . . . . . 29
8.1 Benchmarking .................................. • • • • • . • • • • . 29
Condusions . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . • • • . • . . . • . . . . . . . 30
9.1 9.2 9.3
Call-before-you-dig as SOP (Standard Operadna Procedure) Best practices Benchmarking ... . ..
30 31 31
Acknowledpments • . . . . . . • . . . • . • • . • . • • • • . . . • • • • • • • • • • • • • . . • . • . . . . 31
RefermCIS' • • • • • • • • • . • . • • . • . • . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . . . 31
Fipres and Exhibits ................. . .......... . • . . . . • • . . . . . 31
Appa~dices . . . . . . . . . .. . . . • . . . . . • . . . . ............. • ••••••••.•. 32
Appendix 1 . . . . . . . . . . . . . . . . . o' • 33 Appendix 2 . . . . . . . . . . . . .... . .... 37 Appendix 3 . . . . . . . . . . . . . 39 Appendix 4 .... . ... . . . . . . . . .... 49 Appendix 5 . . . . . . . . . . . . . . . . . . . ... 53 Appendix 6 . . . . . . .... . . . . .. . . .. . . . . . ... . . . . . ... 67 AppeDCUx 7 . . . . . . .... •• . . . . . . . ..... 71
. .tJ lcaary or TerniS . . . . . . . . . . • • • • • • . • • • • • • • • • • . • • • • • • • • • • • • • • • • • • • • . . • . . . 77 \
ii
0024
APPELLANTS'-0031
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FIBER OPTIC CABLE DIG-UPS • CAUSES AND CURES
Mr. Dan Crawford President, Network Services
MCI J"elecommunications Corporation 1801 Pennsylvania A venue Washington, D.C. 20006
1. Executive Summary
1.1 Overview and key messages.
As sub-committee member on NO~T, the f'iber Cable Focus Group collected and analyzed industry data concerning service interruptions resultina from· cable failures caused by di&·ups. The Group also reviewed the practices of other utility companies and outside groups such as • cme-ca11• associations. Through these activities and a statisticalaDalysis of industry data, the Group bas determined that several primary activities can mitipte or cenaiDly reduce cable dig-ups.
Fiber optic cables, whose size is ofteD las tbaD oae inch in diameter, routiDely carry tens of tbonpnds of telephone calls over J)ass strlllds sJiabtly more thick than a human hair. Damqe to fiber opdc cables can shut down vi111 communications links to airports, emefiCDC)' services, IDd Duclar power facilities.. With advances iD SONET tranmrillions and ATM switchin& tecbnolOaia comes tuper.llld higher concentrations of traffic placed ao fiber cables. Therefore, protiCti"l dille Wll "information hiabways• takes aa ever iDc:reasia& significance. To improve tbe reliability of dille critical hish capacity liDb, the Necwark lteUabDlty Council's F'tber Cable Pocus Graup collrJ:ted IDd analyzed fiber cable failun: data. suneyed aistiD& utility damqe preWDtiaa leci•ll!j(ll. ad held· discussions with key zepusseulldws of die damap prevendon industry.
Based OD these findinp ad discussioas, tbe Graup recommends: 1) a meqtheDiDa of·udlity ctamaae prevention leaisJadoa c:all-before.yau-dia enhancement, 2) broad aDd UDiform imp1em&aUadaD
of "Best Practices" to minimize cable damage standardized practices and procedures, and ~ endorsement of a benchmarking study • to identii innovative approaches to fiber cable damag prevention and/or assess the need to revise existin. practices.
Damag~ Prevention Legislation
Dig-ups are the largest cause of fiber cable failure: and account for nearly 60 95 of the failures repo~ by the industry. Examining the root causes of fibes cable di&·ups reveals that 3395 of reporied dig-ups resulted from tbe excavators' failure to notify the facility owner before cliging Slaned. Although over 40 SlateS bave damage prevention laws requiring sucb prior DOdficadoa, the laws ue seneraUy ~ not adequately enforced, and provide little provision far pUaidve damases in the event of excavator neaJilence. Therefore, the Group recommends enforcemeat, enactmellt, ancUor revision of federal, stare, aDd local damqe prevention laws. Puqmpb 9.1 of this paper details the intent of this
· Jeais)atioa. · ·
1
Stnma damap prevention legislation is essential for !lducbla tbe number of cable dig-ups. However, 40S·:of the reponed cJia·ups occumld in spite of priar DGdfication by tbe excavator, accurate cable locadaa, ad ptuper tempOrary markiD& of the subsudJM:e Clble mate. 1befelore, in addition to - stteqtbened damaae preventicm lepsJmcm, tile Group bas identified a compilalion of best p!IC!ices as procedures which, if uniformly complied.. with l1ld broadly implemented, em be effecliw in minjmiziq occmrences of fiber cable
APPELLANTS.-0032
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~·oil owing is a summary of the significant findings ;~ ~ r.he da~ analysis:
-~ig-ups were the single largest cause of reponed :- cable damage accounting for 589b of the Jrted failures.
Failure of the excavator to provide prior . lotific:ation was responsible for 33% of the reported ~,f~g-up failures.
..\ Of the reponed dig-ups, 40" occumd in spite o~· prior notification by the excavator, accurate cable ·btes, and proper temporary marking of the sub~arface cable routes.
·:~ Only one reported dig-up failure can be directly ""tributed to improper burial depth, however the :~rrelation between burial depth and failure
:,bability has not been detennined.
; 1 Aerial cable was damaged by a wide variety of
pses.
·· Tbe causes of cable damage 1eadina to Jarp ~es were not substantially different flam c:anses
•f damage leadina to outaaes of lesser impact.
·I There was DO sipificaDt differmce in tbe :lative failure probabWty between sub-surface and ial fiber cables.
> There was DO sjpificant differmce Dl 1be i '"~ve failum probability due to all failure causes · •· .ween direct buried cables IDd cables iasratJed in ·~~erpoUDd ducts. <:J
·, Differences were obserwd in tbe tellliw -obability of failure due to di&-ups betweeD direct
ted and underpouDd cable. These diffeleaces. :;1;probably iDfluenced by cfiffereaces m aeoampby ~~ l may not solely be due to 1be pz eSCDCe of tbe f structure.
\he mam time required to restaze servk:e after }ble failure is ccmsiderably Jess tblll tbe mean
ne required to completely mpair a damapd cable.
'
S. Causes or Fiber Optic Cable Damage
This paper centers on fiber cable failures caused by "dig-ups" and the factors which contribute to and can best account for such incidents. Cable dig-ups typically occur during excavation work at construction sites such as business office complexes, housing developments, public works (e.g., roads, highways, malls, facilities such as spons arenas, airpons and others). Cable dig-ups can also occur on private propeny (e.g., farms) or can result from excavating activities undocumented by federal, state, or county licensing authorities.
S .1 Detailed failure causes, definitions and root causes.
Throuab rebruary 12, 1993, 160 failure reports were received in response to the Focus Group's dala request. Nearly 100" of these failures resulted from a broken fiber or cable. This fincUng is consistent with results of Bellcore 's :Field Tracking Study which indicates that over 93 S of cable failures reported between 1990 and 1992 resulted from a brobn fiber or cable. Otbcr types of failures which occur in the field include high loss iDduced by pressme on optical fibers (known as micrabendinl), sheath damage, and procedml mors not resultiq iD facility damage.
There is a wide variety of extema1 events reported to baw ·caused· fiber ·IJid· ·other· cables to fail IDd frequc:atly a c:haiD of eveats can lad up to cable failme. Por example, a di&-up can ~ because tbe diailll coatriCtOr failed to provide prior nodficatioD. Therefme, iD the data lllllysis presented here, failure causes have been categorized acccmliDa to immediate causes and root cat'W. AD immediate cause is the fiDa1 eveat, such as a dig-up, which di!ecdy '3nses tbe faDure. 1be root cause is tbe c:dtica1 evat, e.a., lack of proper notification, which eventually leads to a failure.
Table 1 lists tbe immediate causes of fiber optic cable failures 1eported to the Group. Every cause !elpODSible for mme ·tban one l1!pOfted failure i:J
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Immediate Failure Causes
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sol- 160 Reported Failures
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0 ~ Dig-Up Process Rodent Fire Flood Trees
··Vehicle Power Una Sabotage Firearm Excav. Other
Immediate Cause of Failure Flgure1
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extrinsic damage caused by human activity. TJlese .l included failures caused by tree trimming, j ~~liberate· cable severing in emergency situations, ;; ··.d other unusual situations. This category also ::adudes 10 failures where the causes were either
1' not reponed or not documented.
!5 .2 Fiber optic cable dig-ups. I
A major emphasis of the Focus Group's data request was to gather detailed information on cable ~ig-ups. This involved detennining the root causes of dig-ups and studying the effects of cable
'· tnstallation and damage prevention practices on . :reducing the probability. of dig-ups. ...
.~ .2.1 Root causes of dig-ups.
Of the 93 cable dig-ups reponed, 61 !epOrts ~ntained sufficient information to-assign a probable
£}oot cause. Root causes are listed in Table 2 and .. ~resented graphically in Pigure 2. . It should be ~embered tbat these failure tep0rts were ~ubmitted by the facility owner, not the excavator. In at least one instance the circumstances ~rrounding the dia·up (as JepOrted by the telephoae
company) bave been disputed by the excavator.
(able ·2. Root Causes or Fiber Optle Cable Dieups
pot Cause lofRepons S ofTotal
~gging&mr 24 39.3 p Notification 20 32.8
Cable Unlocated 7 11.5 \:;accmate Locate 6 9.8 :. :a,rrect Notificatioll 3 4.9 )hallow Cable 1 1.6
I ~
~ ~jtaJs 61 100.0
~ shown iD Table 2, the leadinJ lOOt cause of -boned cable dig-ups is excavator mor(s) made luring digina. These failures occumc1 after tbe
fility owner was notified and tbe mute properly oeated aDd marked. 1be second Jarpst mot cause
10
is excavator failure to provide notification prior to digging. The following defines each root cause and discusses various details of the reponed failures.
Digging Error
This root cause of cable damage is considered a digging error if: the contractor provided accurate prior notification, the route was accurately located and marked, and the cable was buried at a proper depth with sufficient clearance from other subsurface structures. One failure where the contractor provided notification but did not wait for the cable to be located was also considered a digging error.
ANSI standard EIAITIA-590, Standard for Physical Location and Protection of Below·Ground Fiber Optic Cable Plani, contains procedural recommendations for excavators to follow when digging near sub-surface cable. In particular, these procedures specify diging with hand tools within a •tolerance zone,. specified at 18 m. from the ·edge of the facility (unless otherwise specified by local saue or county laws).
Of tbe 24 dia-ups whose ·root cause was a diging error, cmly one report indicated tbat digging was perfonned with hand tools within the tolerance zone wbile 13 reports imlicated that band diginJ had not been perfonned at all.
Some companies requile tbat a representative · ftmaiD DD-iite"1D .monitor. "Ill 'excavation; ·Of the 24 · repo~led cq-ups where raot cause was a digiDJ mar, tbne reportS iDdicaJed tbat a representative of tbe lelephoae company was em-site wbile diging WIS )WMUued wbile 14 iepm1S indicated that a repnrmanve was DOt em-site.
No Notification
&lsur:iq tbat excavators pmvide consistent, accurate, IDd prior notification of excavatiOD · activities 1D tbe facility owner, or other responsible orpDizaticm such as a •cme-ca11• agency, is one of tbe principal lilies of defense for preventiq cable dia·ups.
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Root Causes of Fiber Optic Cable Dig-Ups
61 Dig-Up Reports
Nq Notification 32.8%
Digging Error 39 _ .. -....--
. Shallow Cable 1.6% ·
Cable Unlocated 11.5%
Incorrect NotlftcaUon 4·'fr.accurate Locate 9.8%
Flgure2
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Alliance for Telecommunications Industry Solutions
Network Reliability Steering Committee
}.,ixing Facility Outages: Building the Tools to. Make It Happen
Facilities Solution Team Report
Results and Recommendations
November 1997
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1 0030
! . i
!
Team Leaders: John Healy
Louis Scerbo
Bell core
2
APPELLANTS'-0038
0031
1. Executive Summary
Facility failures continue to be the leading contributor to outages in the Public Switched Network. Approximately 50% of the FCC-reportable1 service outages and their impact have been caused by facility outages. The ATIS/NRSC2 Facilities Solution Team was chartered to determine the causes of those facility outages and to recommend ways to reduce their number and impact.
The Facilities Solution Team is made up of representatives of telecommunications service providers (lnterExchange Carriers and Local Exchange Carriers), several large utilities, the insurance industry, contractors' associations, and the Department of Transportation (DOT). One of the major changes implemented since February of 1996 has been the expansion of the membership to organizations outside the telecommunications industry. The major reason for the expansion was that accomplishing the goals of Facilities Solution Team could not occur without the cooperation of all the organizations involved with installing, maintaining, and using facilities. The team was broken into four subtearns: the Data Analysis Subteam, the Damage Prevention Subteam, the Legislative Subteam, and the New Technology Subteam.
The Facilities Solution Team published a comprehensive report of their findings and recommendations in February 1996. The report entitled Keeping the Network Alive and Well: Solving the Problem of Cable Dig-Ups provided 24 recommendations on ways to reduce the number and impact of facility outages. This is the second report aimed at reducing the number and the impact of facility outages.
Overall, the number of facility outages is down from the previous year. Of equal interest, the impact of facility outages is down:
~ Report Year 3 Report Year 4 7/1/95. 6/30/96 7/1/96 • 6/30/97
Number of Facility Outages 100 85
Facility Outage Impact 882 635 (Outage Index3
)
Although these changes are not statistically significant, they indicate that progress has been made.
The Data Analysis Subteam has developed a new categorization for facility outages. The goal was to clarify the categories and to reduce the number of outages classified as "Other''. The new categories are sub-terrestrial cable dig-ups, sub-terrestrial cable washout, sub-terrestrial cable damage other, aerial cable cuts, submarine cable cuts, cable placing/removing, splices/connectors,
1 Per Federal Communications Commission CC Docket 91-273.
2 Alliance for Teleconununications Industry Solutions/Network Reliability Steering Committee.
3 Per Committee Tl Technical Report No. 42, Enhanced Analysis of FCC-Reportable Service Outage Data, August 1995.
3
APPELLANTS'-0039 0032
• I
. J
cable electronics, radio facility equipment, and other. With the new categorization, the Data Analysis Subteam detennined that cable electronics outages are higher in the last two years than in the previous three years and recommended that the Cable Electronics Subteam be resurrected to look at these outages. ·
The goal of the Cable Damage Prevention Subteam was to develop comprehensive proactive guidelines which are non-legislative in nature and are aimed at preventing facility outages.
The Cable Damage Prevention Subteam completed the following four documents:
1. Minimum Damage Prevention Guidelines - Excavation Procedures for Underground Facilities
2. Minimum Performance Guidelines for One-Call Notification Systems
3. Facility Owners Minimum Guidelines for Location and Protection of Below Ground Fiber Optic Cable
4. Guidelines for Prospective Excavation Site Delineation and Facility Owner Markout.
These guidelines defme minimum standards for each of the parties with a role in damage prevention.
Over 50% of the facility outages are categorized as Fiber Cut Dig-Ups. Nearly 50% of the Fiber Cut Dig-Ups occurred because the excavator either failed to notify the facility owner or provided inadequate notification. One-Call legislation is aimed at reducing these outages. The Facilities Solution Team recommended federal One-Call legislation in its earlier report. In July, 1996, Casimir Skrzypczak, then President of NYNEX Science and Technology Inc., in his testimony in support of One-Call legislation before a House Subcommittee, outlined four recommended principles of OneCall legislation that the Facilities Solution Team continue to use today. These principles cover 1) notice and responsibility, 2) simplicity and flexibility, 3) broad applicability and 4) industry funding.
The Facilities Solution Team continues to champion One-Call legislation at the federal level and at the state level. The Facilities Solution Team endorses the passage of strong and effective federal One-Call legislation to set minimum standards for the states to achieve in administering One-Call systems. There are two One-Call bills before Congress which work to achieve the goal of protecting underground telecommunications facilities and meet the recommended principles of legislation as stated by Mr. Skrzypczak. The Facilities Solution Team supports both bills and is working to ensure that a One-Call bill is passed which applies to all excavators and facility providers4
•
The only way to ensure that recommendations are acted on is by constant vigilance and continued, dedicated effort. Past work appears to be paying off. The Facilities Solution Team, as part of the A TISINRSC, stands ready to help ensure that its recommendations are acted upon, to periodically analyze the effectiveness of its recommendations, and to respond to any new reliability concerns that arise on telecommunications facilities.
4 Update: The One-Call billS. 1115 (see Appendix G) was passed unanimously by the U.S. Senate on November 9, 1997.
APPELLANTS'-0040
4 0033
7. Legislative Results and Recommendations
The Legislative Subteam of the Facilities Solution Team was established to secure comprehensive federal and state One-Call statute. While all the states in the continental U.S. have some form of One-Call legislation, not all state laws effectively protect telecommunications facilities; many exempt the major contributors to damages, and there are profound inconsistencies in the laws that preclude effective protection.
Fiber Cut Dig-Ups are the largest category of facility outages. Over 50% of facility outages are caused by dig-ups (see Figure 9 in the Data Collection Section). Further analysis of Fiber Cut Dig-Ups was done to identify root causes. The goal was to determine how many of these dig-ups might have been prevented with a call to a One-Call Center or if the facility owner was otherwise notified. Figure 12, below, illustrates the results.
Root Causes of Fiber Cable Dig-Ups
Other Cable unlocated 2% Shallow cable
7%
Inaccurate cable locate 18%
Inadequate/no notification
46%
Figure 12: Percent of Fiber Cable Dig· Ups by Root Cause
Currently there is no federal One-Call statute. Recall that Figure 7 showed that the number of outages with Inadequate or No Notification as the root cause has been very flat over. the l~s~ four years. With the above noted inconsistencies in state statutes, a federal law to establish mmunum
· standards would be useful in reducing fiber cable dig-ups.
The Facilities Solution Team advocates three principles for the protection of underground teleconununications facilities:
• All excavators should call the appropriate One-Call center before excavating.
• All facility providers should respond to requests to mark their facilities.
APPELLANTS'-0041
22 0034
.. _,l
. : ··. .
NETWORK
PROTECTION
PRACTICES
FOR
SUBSURFACE
F A C I L I T I E S illllilllllitilil;l{l
....,) .,;,···;. · .... •.•
SPONSORm BY MEMBERS
OF THE TEUCOMMUNICATIONS
INDUSTRY BENCHMARKING
CONSORTIUM (TIBCJ IN CONNEOlON WITH
E.!./ ERNST & YOUNG T 1111 < J\1\ll'.'\U .H/C J'\'o ( CJ'\.,l 'l Tl'\l.
APPELLANTS'-0042
0035
Network Protection Practices for Subsurface Facilities
Sponsored by members of the Telecommunications Industry Benchmarking Consortium (TIBC)
in conjunction with Ernst & Young
For Additional Copies Con.ct: AJJiance for Telecommunications Industry Solutions
1200 G Street, N.W., Suite 600 WasbinP,n. D.C. 2000&
202/828-6880
June SO, 1994
APPELLANTS'-0043
0036
.i !
TABLE OF CONTENTS
Section PaeeNo. I. Overview of the Project ..................................................................................... 1
II. Selection of Externals ........................................................................................ 4
III. Process/Industry Matrix of Practices ................................................................ 7
IV. Description of Leading Practices .................................................................... 15
• Administrative and Support Processes ..................................................... 16
• Traiili.ng 8Ild Contractor Qualifications .................................................... 21
• Facility Installation .................................................................................... 23
• Facility Maintenailce .................................................................................. 30
• Facility Locating ......................................................................................... 33
• Call-Before-You-Dig ................................................................................... 37
V. Highlights of One-Call I.,egislation ......................•.......................................... 43
VI. Relevance of Practices to the Telecommunications Industry ........................ 49
vn. Conclusions . . .. . .... .... ... ... .. .................•.............. ... .. ............. .... ....... ... ... . .. . ... ... .. . . 58
Appendix 1: Profiles of External Benchmarking Partners ........................... 61
Appendix 2: Cross-Section of NYCT Fiber-Optic Cable ................................ 66
Appendix 3: Sample MFS Telecom Construction Drawing Cross-Section ... 68
Appendix 4: Sample External Entity Profile Survey .................................... 71
Appendix 5: Glossary of Terms .....•....••.........•.•............•.................................. 87
APPELLANTS' -0044
0037
. : ..
LIST OF EXHIBITS
Exhibit Page No. 1 External Benchmarking Partners ..................................................................... 6
2 Process/Industry Matrix of Practices ................................................................ 9
3 Summ.aey of Wanling Tape Practices ............................................................. 29
4 1994 Analysis of Selected One-Call Legislation ............................................. 46
0038
APPELLANTS'-0045
.j -. ·~
l ;
I ~
~ i i
I
I'
I. OVERVIEW OF •rHE PROJECT
• :J> • ..
0039
APPELLANTS'-0046
I. OVERVIEW OF THE PROJECT
History of the Project
Late in 1991, the Federal Communications Commission (FCC) chartered the Network Reliability Council (NRC) in response to major outages in the public switched telephone network during the summer of that year. Its mission is "to provide recommendations both for the FCC and for the telecommunications industry that, when implemented, will help prevent public telephone outages from occurring." The NRC began its work in February, 1992, with participation from the executive officers of most major U.S. local exchange carriers, interexchange carriers, equipment suppliers, corporate and government large users, state regulators, and consumer advocacy groups. The NRC operated at that time under the direction of its own Network Reliability Steering Committee (NO REST).
The NRC established seven focus groups to investigate areas critical to network reliability:
• Fiber Cable Systems • Signaling Network Systems • Switching Systems • Digital Cross-Connect Systems • Power Systems • E-911 Systems • Fire Prevention
The Fiber Cable Focus Group included "Fiber Optic Cable Dig-Ups- Causes and Cures" as its contribution to Network Reliability: A Report to the Nation, a compendium of technical papers. In that paper, the Focus Group discussed various approaches to minimizing third-party damage and recommended "an industry-wide benchmarking activity to identify the most successful of these approaches" in industries external to telecommunications.
The benchmarking study recommended in the Fiber Cable Focus Group's paper has been sponsored by the members of the Telecommunications Industry Benchmarking Consortium (TIBC) in conjunction with Ernst & Young. The TIBC sponsors of the study are shown in the table on the following page.
This report, which focuses on underground network reliability in industries external to telecommunications, is hereby presented to the Alliance for Telecommunications Industry Solutions (ATIS) for distribution throughout the industry.
·.· .
APPELLANTS'-0047
6/30194 -2- I. Ovel'View of the Project
0040
AGT Limited Ameritech Services AT&T Bell Atlantic Bell Canada BellSouth GTE Telephone
TIBC Sponsors
Hongkong Telecom, Ltd. MCITelecom NYNEX
Pacific Bell Southern New England Telephone Southwestern Bell Sprint Corporation
This report, which focuses on underground network reliability in industries external to telecommunications, is hereby presented to the Alliance for Telecommunications Industry Solutions (ATIS) for distribution throughout the industry.
Scope of this Report
This report focuses on a qualitative description of practices employed by companies . other than traditional local exchange or interexchange carriers that enhance the security and reliability of network facilities or mission-critical systems. Since this study is qualitative in nature, any demonstration of effectiveness of these practices by establishing a correlation between performance measures and practices is beyond the scope of this report. Rather, practices are described that appear, prima facie, to be effective or that may be effective if adopted by the telecommunications industry.
This report opens with a brief description of the methodology used to select fifteen benchmarking partners external to the telecommunications industry. The practices related to network reliability that are currently in place at the benchmarked companies are then summarized in a Process/Industry Matrix of Practices and described in greater detail in a "Leading Practices" section that follows. A separate section contains highlights of research into Call-Before-You-Dig legislation in the fifty states. The report concludes with an analysis of the relevance of practices to the telecommunications industry and observations on the future of reliability practices for subsurface facilities.
6/30/94 -3-
APPELLANTS'-0048
I. Overview of the Project
0041
• As described earlier in this report, there are numerous ways for the One-Call center to promote itself and for telecommunications companies and other facility owners to engage in their own promotional activities. Several interviewees reported Utility Coordination Councils to be effective, and others recommended enlisting the support of powerful building contractor associations. Convincing all facility owners to join a One-Call center is another challenge, as many small municipalities decline to join.
• There is evidence, however, that convincing excavators to call One-Call is only half the battle. Several respondents commented that most third-party damage is done by companies that did, in fact, call the One-Call center, but then did not proceed with proper caution. For example:
- A spokesperson for MISS DIG estimates that 50 percent of damage results from failure to call and 50 percent from failure to hand-dig, provide protection, or otherwise comply with safe practices.
A study by four interexchange carriers revealed that, in 20 out of 85 damage incidents, a One-Call center was not notified.
- In a 1989 study of interexchange carrier damages, one-third involved failure to call.
- One natural gas distributor participating in this ATIS report estimated that two-thirds of the damages suffered by its network involved excavators that had called a One-Call center.
• The question is: Why has the Call-Before-You-Dig process failed to achieve its desired results in certain instances? Quite simply, it is often less expensive for an excavator-whether he has called a One-Call center or not-to dig up facilities and pay the price than it is to excavate with greater prudence. The economics weighing in favor of damaging facilities are compelling:
- It is often less expensive for the excavator to damage facilities than not, especially if damage to the facilities will not damage the machinery or cause bodily harm to the operator.
- A low-bidding excavator is on a tight time schedule and cannot afFord to:
• • Bury facilities in a straight line unless it is also the path of least resistance
• • Hand-dig within 18 inches of existing facilities APPELLANTS'-0049
6/30194
• • Bury facilities to a uniform, required depth . 0042
-56-VI. Relevance of Practices to the
Telecommunications Industry
·-- ..... ...-...-. .. . .
• The contracting utility may not be willing to pay its contractor to do the above.
- Local district attorneys have little incentive to aggressively pursue ofFenders.
• Penalties are too low to modify excavators' behavior.
- Repair bills are paid by insurance companies.
- Franchised utilities are often hesitant to exact restitution from their municipal benefactors-often the worst offenders.
• As major users of contract excavators themselves, telecommunications companies have control over part of the problem. They can also advocate for stronger One-Call legislation. Ordinances or legislation can be at the local, state, or federal level. For example, a group of pipeline companies in El Paso, Texas, has successfully initiated amendments to numerous city ordinances (including in E1 Paso itself) requiring a One-Call confirmation number prior to issuance of a construction permit. Some states follow the same practice. Highlights of state legislation and a brief discussion of proposed federal legislation appear in Section V.
6130/94 -57-
APPELLANTS'-0050
0043
VI. Relevance of Practices to the Telecommunications Industry
The study indicates that a significant amount of damage is still caused by excavators who have, in fact, called a One-Call center. Therefore, it is apparent that encouraging excavators to contact One-Call centers, which then generate tickets in a more targeted manner, is only a partial solution. Third-party damage will not be significantly reduced until the fundamental economics of dig-ups are changed, whether it be through legislative action or through some other means. One can expect that certain contractors under pressure to earn a profit will continue to dig up facilities if this is the least expensive course of action open to them.
APPELLANTS'-0051
0044
6130194 -60- VU. Conclusions
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
MCI WORLDCOM NETWORK SERVICES, INC.,
Plaintiff/ Appellant,
v.
OSP CONSULTANTS, INC.,
Defendant/ Appellee.
I
REPLY OF APPELLANT MCI WORLDCOM NETWORK SERVICES, INC. TO APPELLEE OSP CONSULTANTS, INC.'S RESPONSE TO
APPELLANT'S MOTION TO SUPPLEMENT THE RECORD ON APPEAL
Appellant, MCI WORLDCOM. Network Services, Inc. ("MWNS")~ submits
this reply to the response of Appellee, OSP Consultants, Inc. ("OS·P"), in
opposition to MWNS's motion to supplement the record on appeal.
I. THIS COURT HAS INHERENT POWER TO SUPPLEMENT THE RECORD ON APPEAL
In reliance on Fed. R. App. P. lO(e), OSP argues that MWNS's tnotion
should be denied because MWNS has not shown that the studies and reports for
which it seeks leave to supplement the appellate record were omitted by error or
accident. MWNS, however, is not relying on Rule 1 O(e), but rather on the Courfs
inherent equitable power to allow supplementation of the record with materials not
reviewed by the district court when it is in the interests of justice to do so. See,
APPELLANTS'-0052
~' CSX Transp., Inc. v. City of Garden City, _235 F.3d 1325, 1330 (11th Cir.
2000); Hinson v. Edmond, 192 F.3d 1342, 1344 n.2 (11th Cir. 1999), amended,
205 F.2d 1264 (11th Cir. 2000); Miller v. Benson, 51 F.3d 166, 168 (8th Cir.
1995). Regardless of the scope of Rule 1 0( e), this Court thus does have the power
to supplement the record on appeal when justice so requires. See also Dickerson v.
State of Alabama, 667 F.2d 1364, 1367 n.5 (lith Cir.), c_ert. denied, 459 U.S. 878
(1982) (discussing the relationship between Rule IO(e) and the Court's inherent
·equitable powers to supplement the appellate record).
II. BECAUSE NUCA'S AMICUS BRIEF RAISES ISSUES THAT WERE NOT RAISED BY EITHER MWNS OR OSP IN THE DISTRICT COURT, IT IS IN THE INTERESTS OF JUSTICE TO ALLOW MWNS TO SUPPLEMENT THE RECORD ON APPEAL TO RESPOND TO NUCA'S ARGUMENTS
Whether an appellate record should be supplemented under the particular
circumstances of a given case is a 1natter that is left to the appellate court's
discretion. CSX, 235 F.3d at 1330; Dickerson, 667 F.2d at 1367. Appellate courts
have been willing to do so when the· suppletnental materials were not considered
below because neither party had raised an issue to which those materials were
relevant and there was therefore no reason to introduce those 1naterials below.
In CSX, CSX filed suit against the City for indemnification. The district
court awarded summary judgment to the City on the ground the City's failure to
procure insurance rendered its agreetnent to indemnify CSX null and void. Neither
2 APPELLANTS'-0053
the City nor CSX had raised this argument in the record presented to the district
court. On appeal, CSX 1noved to supplement the record to show the City had
insurance. The City objected, arguing CSX knew of the City's insurance coverage
·and should have introduced it into the district court record in oppositio~ to the
City's tnotion for su1nmary judgment. 235 F.3d at 1329-30. The Court stated the
district court's opinion was the first time the insurance issue was raised and
sustained CSX's motion to supplement the appellate record. Id. at 1330-31. The
Court further stated:
While we rarely exercise our authority to enlarge the appellate record, the Supreme Cou11 has reminded the appellate courts that:
[T]he rules of practice and procedure are devised to promote the end of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably under all circumstances decline' to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
ld. at 1331 (quoting Honnel v. Helvering, 312 U.S. 552,557 (1941)).
In Hinson, the parties were directed, while the case was on appeal, to file
supplemental briefs regarding the applicability of a Supreme Court decision that
neither had argued in the district court.. 192 F .2d at 1344 and n.2. In his brief on
this new issue, one of the parties requested that the case be remanded to the district
court so that a certain contract which he claimed was relevant to the issue could be
3 APPELLANTS'-0054
added to the record. The Court treated this request as a motion to supplement the
record and, under its inherent power to supplement the record on appeal, directed
the parties to submit a copy of the contract, even though that contract was not part
of the record in the district court. 192 F.2d at 1344 and n.2. ·
In Miller, the appellees filed a 1notion to strike ce1tain docu1nents the
appellant had included in an addendum to his brief because those documents had
not been presented to the district court and ·were thus not a part of the record
. below. In denying the 1notion, the Court stated:
Generally, an appellate court cannot consider evidence that was not contained in the record below. However, this rule is not etched in stone. When the interests of justice demand it, an appellate court may order the record of a case enlarged.
51 F .3d at 168 (quoting Dakota Industries, Inc. v. Dakota Sportswear, Inc., 988
F.2d 61, 63 (8th Cir. 1993)).
Indeed, this Cou11, itself, has sustained such a motion. In Pruitt v. Ca1npbell,
429 F .2d 642 (4th Cir. 1970), the appellant moved to enlarge the appellate record
to include the record of a hearing in a state court criininal action that had not been
. a part of the record in the district court. This Court held that the record of the state
court hearing had some bearing on the case and sustained the 1notion. ld. at 643.
In the present case, NUCA, in its amicus brief, raised two public policy
arguments that neither MWNS nor OSP raised in the district court: ( 1) that
awarding MWNS loss of use damages would purpo11edly created a precedent with
4 APPELLANTS'-0055
serious detrimental consequences to underground contractors; and (2) awarding
MWNS loss of use da1nages would allegedly create a perverse disincentiye to
telecommunications companies to protect or make timely repairs tp their
underground facilities. Because these argu1nents were not raised in the' district
court, there was no reason for MWNS to have introduced the materials with which
it now seeks to supple1nent the appellate record in the district court. 1 These
materials are, however, necessary to respond to these arguments that were not
raised below. It is therefore in the interests of justice to allow MWNS to
supplement the appellate record with those 1naterials. See CSX, 235 F.3d
at 1330-31; Hinson, 192 F.3d at 1344; Miller, 51 F.3d at 166.
'\ III. THE PORTIONS OF THE STUDIES AND REPORTS MWNS SEEKS TO ADMIT ARE NEITHER SELF-SERVING NOR MISLEADING
OSP argues the Court should deny MWNS's 1notion because the excerpts of
those studies on which MWNS seeks to rely are purportedly self-serving because
MWNS is a member of the organizations which participated in those studies. This
contention ignores the realities of those studies.
The Coininon Ground Study (one ofthe reports with which MWNS seeks to
supplement the record) was sponsored by the Research and Special Programs
1 OSP argues in its response to MWNS 's motion that OSP did, in fact, raise these issues at pp. 19-23 of OSP's appellate brief. Contrary to OSP's contention, there is no mention of these arguments in OSP's appellate brief or in any of the cas.es cited
·at pp. 19-23 of OSP's brief.
5 APPELLANTS'-0056
Administration of the United States Department of Transportation Office of
Pipeline Safety. The study was prepared in accordance with, and at the direction
and authorization of, the Transportation Equity Act of the 21st Century, Public
Law I 05-178 that was signed into law on June 9, 1998. The study included
representatives from all facets of the industry, both underground facility operators
and excavators, including NUCA. The NTSB Safety Study (another of the reports
. with which MWNS seeks to suppletnent the appellate record) was prepared by the
. National Transportation Safety Board, an independent federal agency that was
mandated by Congress through the Independent . Safety Board Act of 197 4 to
investigate transportation accidents, determine probable causes of the accidents,
issue safety recommendations, and study transportation safety issues. The NTSB
apparently felt that a number of the other studies with which MWNS seeks to
supple1nent the record were reliable as the NTSB cited the findings in those reports
in its study.
OSP's claim that the excerpts from these studies on which MWNS relies are
somehow inaccurate or misleading is equally without 1nerit. · For exan1ple, OSP
claiins that a n1odel statute proposed in the February 1996 ATIS Study purpo1tedly
rejects loss of use as a measure of damages and limits a telecommunications
company's datnages to "the total cost to repair the damaged facilities, lost revenue,
[and] punitive damages." OSP conveniently omits that portion of the model
6 APPELLANTS'-0057
legislation stating that a person who damages underground facilities "shall be
liable to the operator of the subsurface facility for any claim for da111:ages
proximately caused by the excavator's failure to comply, including but not limited
. to the total cost to repair the damaged facilities, lost revenue, punitive damages and
reasonable attorJ?,eys' fees .... " Alliance for Telecom1nunications Industry
Solutions, "Keeping the Network Alive and Well: Solving the Problem of Cable
Dig-Ups" (Feb. 1996) at App. E-7, E-8 (emphasis added).
OSP also claims that the USDOT's Common Ground Study actually
supports NUCA's argtnnent that allowing a telecommunications company· to
recover damages for loss of use would be bad for the public. Contrary to OSP's
claim, the Common Ground Study specifically reco1nmends damage prevention
laws that include financial penalties and the right to recover· damages and costs
when a person's violation of those laws results in damage to underground facilities
as "best practices" that should be implemented. See U.S.D.O.T., Research and
Special Programs Administration, "Common Ground: Study of One-Call Syste1ns
and Damage Prevention Best Practices" (Aug. 1999) at 115, 120-23.2
2 As the record before this Court on appeal demonstrates, the damage to MWNS 's facility in this case occurred when OSP dug directly over the orange paint marks on the ground showing the location of MWNS's cable, a clear violation of Virginia's Damage Prevention Act and OSP's express promise to MWNS that it would use only hand-digging around MWNS's cable. Transcript at 9-15,
.App. at 77-83; see Va. Code§ 56-265.24(A).
7 APPELLANTS'-0058
IV. THE MATERIALS WITH WHICH MWNS SEEKS TO SUPPLEMENT THE RECORD TO RESPOND TO NUCA'S ARGUMENTS
NUCA's public policy arguments, boiled down to their essence, are that
allowing a telecommunications company to recover the damages it suffers when an
excavator severs its cable will somehow be bad for the public. The studies and
reports with which MWNS seeks to supplement the record provide e1npirical
evidence that excavators who, like OSP has done here, fail to comply with damage
prevention laws and t~en damage underground telecommunications facilities pose
a serious risk to public health and welfare, a risk that will not be significantly
reduced until it becon1es 1nore expensive for the excavator to da1nage those
underground facilities than it is to si1nply dig safely. The 1naterials with which
MWNS seeks to supplement the record are therefo~e directly responsive to
NUCA's argun1ents.
V. NUCA ITSELF HAS NOT OBJECTED TO MWNS'S MOTION TO SUPPLEMENT THE APPELLATE RECORD
Finally, the materials with which MWNS seeks to supplement the record are
necessary to respond to arguments that NUCA, not OSP, has 1nade. NUCA.has not
objected to MWNS 's n1otion. This circumstance provides further support for the
supplementation of the record MWNS seeks. See Young v. City of Aueusta,
Georgia, 5~ F.3d 1160, 1168 (11th Cir. 1995); Martinez v. Mafchir, 35 F.3d 1486,
1492 n.6 (1Oth Cir. 1994).
8 APPELLANTS'-0059
CONCLUSION
For the reasons set fo1th in this reply and in MWNS 's motion ·to ·supplement
the appellate record, MWNS respectfully requests that this Court grant it leave to
supplement the record on appeal with the proposed supph~1nental appendix MWNS
submitted with its motion.
Respectfully su b1nitted,
and
Caroline E. Petro PIPER MARBURY RUDNICK & WOLFELLP
9
1200 19th Street, N.W. Washington, DC 20036-2412 Telephone (202) 861-3845 Facsimile (202) 689-7590
and
APPELLANTS'-0060
David T. Smorodin V. Nicole Bynum WORLDCOM, INC. 1133 19th Street, N.W. Washington, DC 20036 Telephone (202) 736-6000
ATTORNEYS FOR PLAINTIFF/ APPELLANT, MCI WORLDCOM NETWORK SERVICES, INC.
10 APPELLANTS'-0061
CERTIFICATION OF FILING AND SERVICE
I hereby certify that I filed and served the foregoing Reply of Appellant MCI
WORLDCOM Network Services, Inc. to Appellee OSP Consultants, Inc.'s
Response to Appellant's Motion to Supplement the Record on Appeal:
Office of the Clerk, Patricia S. Connor . United States Court of Appeals For the Fourth Circuit Lewis F. Powell Jr. U.S. Courthouse Annex 1000 East Main Street, Suite 501 Richmond, Virginia 23219-3517
David J. Cynamon SHAW PITTMAN LLP 2300 N. Street, NW Washington, DC 20037 Attorney for Amicus Curiae National Utility Contractors Association
Jeffrey R. DeCaro DeCARO, DORAN, SICILIANO, CALLAGHER & DeBLASIS, LLP 460 I Forbes Boulevard, Suite 200 Lanham, MD 20703-0040 Attorney for Defendant/ Appellee OSP Consultants, Inc.
by sending via Federal Express to said Court Clerk the original of the Reply, along
with the required number of copies, and to the individual counsel the required
number of copies by first class mail placed in a sealed envelope addressed to them
at the address set forth above and deposited in the United States Post Office at
·Tulsa, Oklahoma, on the Cf day of October, 2002, with postage prepaid.
Between said Post Office and the addresses listed, there is regular service by U.S.
Mail.
293813.1:531142:00323
CK, GABLE, .c.
APPELLANTS' .. Q062