When a Fiber Cut Grounds Airports: A Real-World Lesson in Rights-of-Way, Infrastructure Risk and Contracting

Sometimes an abstract infrastructure risk becomes very real, very quickly.

 

On September 21, a telecommunications failure disrupted Federal Aviation Administration operations across the Northeast, triggering ground stops and significant delays at major airports including Newark, Philadelphia, Teterboro, JFK and LaGuardia.

 

FAA advisories formally identified an equipment outage as the cause of the ground stops.

 

What makes the incident particularly noteworthy for broadband providers, fiber operators, railroads, utilities, municipalities, infrastructure investors and their contractors is what happened underneath the surface.

 

According to Verizon, a fiber cable running adjacent to an Amtrak rail line in New Jersey was dug up and cut by construction contractors working in the area. Transportation Secretary Sean Duffy separately identified an Amtrak construction crew as responsible for the accidental cut. At this point, publicly available information does not establish the precise contractual relationships among the parties or whether Verizon had advance knowledge of the construction activity.

 

But those unanswered questions are precisely the point.

 

 

The consequences extended far beyond a damaged cable.

 

FAA Administrator Bryan Bedford explained that the Philadelphia-area air traffic control facility had first lost its primary telecommunications circuit. When the system attempted to transition to its backup, the FAA discovered that the backup fiber had been severed. The resulting loss affected communications and data supporting air traffic operations across some of the busiest airspace in the country.

 

That sequence provides an unusually vivid example of why telecommunications infrastructure planning cannot stop at obtaining permission to place facilities in a right-of-way.

It is also about protecting those facilities once they are there.

 

A fiber route may look like a line on a map or a provision in a right-of-way agreement. In practice, it may support airports, hospitals, emergency communications, financial networks, cloud infrastructure, wireless networks, government operations and thousands—or millions—of downstream users.

 

One excavator can therefore create consequences wildly disproportionate to the apparent size of the construction activity.

 

And when something goes wrong, everyone immediately starts asking the same questions:

 

And perhaps most importantly: what did the agreements between the parties say would happen if exactly this kind of event occurred?

 

Those questions become much harder—and substantially more expensive—to answer after the cable has already been cut.

 

 

Telecommunications companies understandably focus on the commercial objective when negotiating access to railroad, municipal, utility and other infrastructure corridors: Can we get the fiber installed? How quickly? And at what cost?

 

Those are important questions. But they are not enough.

 

A sophisticated right-of-way, easement, license, crossing or attachment arrangement should also address the operational life of the infrastructure after construction.

 

Depending on the circumstances, parties should be evaluating issues such as:

The right answer will vary dramatically depending on which side of the transaction a company occupies.

 

A railroad or property owner understandably wants to protect the safety and integrity of its corridor and limit interference with its own operations.

 

A broadband provider needs confidence that infrastructure representing millions of dollars of investment will not unknowingly become collateral damage from somebody else’s construction project.

 

A contractor needs clearly defined responsibilities and reliable facility information.

 

And an entity whose operations depend on communications infrastructure needs genuine resilience—not merely a diagram showing a “backup” connection.

 

 

The FAA incident also provides another important infrastructure lesson.

 

Redundancy is only useful when the redundant facilities do not share the same vulnerabilities.

 

The September 21 outage involved a failure of the FAA’s primary circuit followed by the discovery that the backup fiber path was unavailable because it had been severed.

 

For network planners, that should prompt questions about physical diversity, not simply network redundancy.

 

Are primary and backup facilities geographically diverse?

 

Do they occupy the same railroad corridor, conduit system, bridge crossing or construction zone?

 

Could a single excavation, fire, flood, bridge failure or construction project disable both?

 

Are backup facilities periodically tested?

 

Are network operators notified when construction threatens a supposedly redundant path?

 

Contract language alone cannot engineer a resilient network. But carefully negotiated access agreements, construction protocols and notice requirements can dramatically reduce the possibility that physical infrastructure becomes an unknown point of failure.

 

 

There is another predictable consequence of high-profile events like this one.

 

Infrastructure owners pay attention.

 

Railroads, municipalities, utilities and other right-of-way owners are already highly sensitive to safety, operational disruption and liability associated with third-party facilities. When an incident involving infrastructure located within or alongside a transportation corridor contributes to a disruption affecting major airports across the Northeast, it would be unsurprising to see property owners become even more cautious.

 

That can translate into more restrictive engineering standards, more detailed plans, expanded insurance requirements, additional construction supervision, tighter contractor controls, greater notice obligations, more demanding indemnification provisions and slower approval processes.

 

From the infrastructure owner’s perspective, those requirements may be a rational response to risk.

 

From the broadband provider’s perspective, however, they can increase deployment costs and materially affect construction schedules and economics.

 

That is why these issues are best addressed strategically—not transaction by transaction after engineering is complete and construction is ready to begin.

 

 

The best infrastructure legal strategy sits at the intersection of engineering, operations, commercial objectives and risk allocation.

 

Counsel can help identify issues that may not be obvious when reviewing a route map or construction schedule: access rights that disappear during emergencies, indemnification provisions that create potentially unlimited exposure, relocation clauses that shift enormous future costs, insurance requirements that cannot practically be satisfied, or construction-control provisions that make a theoretically available route operationally unworkable.

 

Just as importantly, experienced counsel can help the parties structure agreements that recognize legitimate concerns on both sides.

The goal should not be to eliminate all risk. That is rarely possible.

 

The goal is to understand the risk, determine who is best positioned to manage it, allocate it deliberately, and establish operational procedures that reduce the likelihood that anyone will ever need to litigate about it.

 

The events of September 21 offer a memorable reminder of why that matters.

 

A construction crew working along a rail corridor and a damaged fiber cable may sound like an ordinary construction incident.

 

When that fiber is part of critical telecommunications infrastructure, however, the consequences can ripple hundreds or thousands of miles away.

 

 

The CommLaw Group’s Broadband & Telecommunications Infrastructure Practice, led by Jim Booth and Leela Vangala, works with broadband providers, telecommunications companies, infrastructure owners and other industry participants on the legal and regulatory issues associated with deploying, protecting and operating communications infrastructure.

 

Our work includes rights-of-way and easement strategy, railroad and utility access, infrastructure agreements, fiber deployment, construction and contractor risk allocation, pole and conduit access, permitting, regulatory strategy, and the contractual issues that increasingly determine whether broadband infrastructure can be deployed efficiently and protected once installed.

 

We recently addressed many of these issues in our webinar, “Deploying Fiber Faster: Navigating Rights-of-Way in the AI & Broadband Infrastructure Era.”

 

For those who missed it, the webinar recording is available here: Watch “Deploying Fiber Faster: Navigating Rights-of-Way in the AI & Broadband Infrastructure Era”.

 

For companies deploying networks, negotiating access to infrastructure corridors, revisiting legacy ROW arrangements, or trying to reduce construction and operational exposure, the lesson from this week’s outage is simple: