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As FCC Chairman Ajit Pai recently noted, when it comes to telecommunications, “physical infrastructure isn’t an option. It’s a necessity.” That necessity has prompted the Commission, at the direction of its new infrastructure leader, Commissioner Brendan Carr, to take steps to try to ensure that regulation encourages—and does not inhibit—private-sector investment. As part of its push to expedite infrastructure deployment, the FCC will use its August meeting today to address pole attachments and state and local barriers to deployment.
In particular, a draft Report and Order released earlier this month shows that the Commission plans to “fundamentally” transform the way in which the federal government regulates pole attachments. The Commission also proposes to issue a Declaratory Ruling to invalidate state and local moratoria that stand in the way of infrastructure projects. The Commission’s proposals have sparked considerable interest from a wide variety of industry and government stakeholders, ensuring that the meeting will be watched closely.
Report and Order on Utility Poles
Utility poles are crucial to the national telecommunications infrastructure: By carrying attachments, these poles “accommodate equipment used to provide a variety of services, including electric power, telephone, cable, wireline broadband and wireless.” But the attachment process is complex and, for safety, technical and practical reasons, connecting a new attachment often requires changes to existing equipment.
Since 1978, the Commission has set the ground rules for how those changes are made. The Commission’s current rules, which apply in the 30 states that do not regulate pole attachments themselves, set forth a multi-stage process for connecting a new attachment to a utility pole. The process relies heavily on pole owners and existing attachers, which have an extensive role in surveying and making changes to their property.
In recent years, however, new entrants that seek access to utility poles to provide additional communications services or densify existing networks have complained about the duration of the attachment process. Some have asked for FCC authority to make attachment-related changes to utility poles themselves. The FCC plans to address this question, and consider so-called “one-touch make ready” (OTMR) rules that give new attachers the right to perform all work on a utility pole that is necessary to affix a new attachment. The proposed OTMR rules would enable new attachers to complete new attachments in as little as 40 days.
Existing attachers have expressed concern about the Commission’s proposed rules Among other things, they have pointed out that in areas where they are already subject to local OTMR rules, they receive insufficient notice of work on their attachments and lack protection against hasty work that could damage networks and disrupt service.
In an attempt to address some of these issues, the Commission’s proposed rules would require new attachers to provide at least 15 days of notice to existing ones before making any changes, and would also obligate new attachers to provide notice once work is complete to allow for prompt inspection.
Additionally, the Commission’s proposed Report and Order will not extend the new OTMR rules to pole work above the “communications space”—where work is more dangerous. For work above the communications space, the Commission’s old rules will continue to apply, albeit with shorter timelines. Nonetheless, existing attachers continue to have reservations about the proposal.
Declaratory Ruling on State and Local Moratoria
As telecommunications providers continue to build out and densify networks, many have increasingly run up against state and local laws and ordinances that impede new project deployment. Some jurisdictions, for example, expressly prohibit the approval of permits necessary to deploy telecommunications services. Others are less explicit, but effectively delay or halt the construction process through delays or arbitrary permit denials.
In the Declaratory Ruling under consideration, the Commission proposes to rule that state and local moratoria, whether express or de facto, temporary or permanent, violate Section 253 of the Communications Act, which preempts state and local regulations that “prohibit or have the effect of prohibiting the ability of any entity to provide . . . telecommunications service.” Under the Commission’s proposed order, the only exception to this prohibition on moratoria would be for limited restrictions that are necessary to coordinate disaster response and recovery.
Importantly, the proposed Declaratory Ruling will help to clarify the Commission’s understanding that Section 253 does not limit the Commission’s general interpretive authority, a clarification that could enable the Commission to take on other regulatory barriers to investment and development in the future.
The proposed Report and Order and Declaratory Ruling are significant developments in the Commission’s effort to promote the deployment of telecommunications infrastructure. But as the number of comments on the issue suggests, it remains to be seen whether the Commission’s OTMR rules will ultimately strike the right balance between safeguarding existing networks on the one hand and promoting development on the other.
By Roger C. Sherman and Karthik P. Reddy, Attorneys, Jenner & Block
August 2, 2018