New “One Touch Make-Ready” Regime Proposed with Shortened Timeframes and Revised Terms for Completing Pole Attachments Draft Declaratory Ruling Would Prohibit State and Local Moratoria on Wireline and Wireless Deployment

Last spring, largely responding to claims by Google Fiber that existing attachers and sequential make-ready costs and delays were impeding broadband deployment, the FCC circulated a proposal for substantial changes to its pole attachment make-ready rules and associated timelines to accelerate the deployment of new networks and attachments to utility poles. A few jurisdictions around the country also adopted new accelerated make-ready policies with mixed success. Now, in a draft Third Report and Order and Declaratory Ruling scheduled for an August 2 vote, the FCC has proposed its own “one touch make-ready” (“OTMR”) process to speed up attachments for both wireline and wireless attachments to utility poles. The draft order would allow new attachers to use their own utility-approved or qualified contractors to perform “simple” make-ready on existing attachments in the communications space. It would also create a “self-help” remedy authorizing new attachers to directly hire utility-approved contractors to do “complex” communications make-ready and work above the communications space, including in the power supply space, depending on the extent to which the pole owner and incumbent attachers do not meet the new accelerated timelines.

In addition to OTMR, the draft Order substantially shortens timeframes for all make-ready work and codifies existing rules prohibiting advance approval for overlashing and imposing limits on advance overlashing notice requirements. The draft Order also expressly prohibits pole owners from charging new attachers or overlashers for correcting pre-existing safety violations or using such non-compliance to delay attachment or overlashing and requires all make-ready estimates and final invoices to be detailed and itemized.

In a separate declaratory ruling designed to help speed the deployment of competitive facilities and services, the draft also proposes to preempt any state or local government express or de facto moratoria on processing telecommunications facilities deployment as a violation of Section 253 of the Communications Act. If adopted, this Declaratory Ruling would be a significant victory for companies seeking to deploy communications facilities in local rights of way.

Pole attachments have had their fair share of the FCC’s attention in two recent dockets (wireline and wireless infrastructure), with changes to pole attachment complaint procedures, revisions to the telecommunications attachment rate formula, extensive proposals by the FCC’s Broadband Deployment Advisory Committee, and now with this proposal for accelerating broadband deployment through OTMR and a ban on local moratoria on facility deployment.

The draft Order provides as follows:

1. OTMR:

a. Pre-Construction Survey: A new attacher (after reaching a pole attachment agreement with the pole owning utility) may elect OTMR, giving the new attacher the responsibility to perform pre-construction surveys and the right to perform “simple” make-ready in the communications space using a utility-approved or qualified contractor. The new attacher must provide 3-days advance notice of the survey to existing attachers and pole owners, all of whom may attend and observe the survey. The new attacher’s contractor is responsible for determining in the survey whether required work constitutes “simple” make-ready, defined in the proposed rules as work in the communications space involving transfers of communications lines that require no splicing and that would not likely result in a service outage or require relocation of wireless facilities. If the pole owning electric utility (not an ILEC) objects to the “simple” designation in writing with supporting evidence, the work is deemed complex, and is excluded from the OTMR process.

b. Pole Permit Application: After conducting the OTMR survey, the new attacher submits a pole permit application to the utility which then has 10 business days to determine if the application is complete and notify the new attacher of any specific deficiencies. If there is no timely determination of a deficiency, the application is deemed complete. A resubmission of a previously deficient application is deemed complete within 5 business days, unless new deficiencies are specified by the pole owner. The pole owner must determine within 15 days (which runs from submission of a complete application, not any determination of completeness) whether to grant a complete application (down from 45 days under existing rules) for applications encompassing up to the lesser of 300 poles or .5 percent of the pole owner’s state-wide inventory. Applications covering more than either 300 poles or .5 percent of the pole owner’s state-wide inventory (up to 3000 or 5 percent of inventory) must be processed in 30 days (down from 60 days). Timeframes for processing applications covering in excess of 3000 poles or 5 percent of the pole owner’s inventory (whichever is lesser) must still be negotiated in good faith. Applications not acted upon by the pole owner in governing timeframes are “deemed granted.” Any denial “must be specific and include all relevant evidence and information supporting its denial and must explain how such evidence and information relate to a denial of access for reasons of safety, reliability, lack of capacity, or engineering standards.”

c. Commencement of “Simple” OTMR Work: After an application is granted or “deemed” granted, and upon 15 days prior notice to pole owners and existing attachers of the date and time of the make-ready, a description of the work involved, the name of the contractor being used, and an opportunity to observe the make-ready work, the new attacher may commence OTMR work. Pole owners and existing attachers have a right to be present during OTMR work. A new attacher must immediately notify an affected attacher or pole owner in the event that make-ready work damages facilities, causes an outage, or could reasonably be expected to interrupt service. OTMR does not apply to “complex make-ready,” which is defined to encompass any transfers or work within the communications space that would be reasonably likely to cause a service outage or facility damage, including splicing of communications lines, or to relocation of wireless equipment. OTMR also would not apply to make-ready above the communications space or pole replacements.

d. Post Inspection: Within 15 days of completing OTMR the new attacher must notify the affected utility and existing attachers, giving them 30 days to inspect the work. If damage is found, the utility or existing attacher has 14 days from completion of the inspection to notify the new attacher of any damage, which the utility or existing attacher may either repair at the new attacher’s expense, or require the new attacher to repair within 14 days of notice. The FCC declined to adopt a rule requiring new attachers to indemnify existing attachers for outages, finding instead that contract and tort laws provided sufficient remedies. As set forth below, utility-approved contractors are required to be adequately insured and/or bonded.

2. Choice of Contractor. For survey and simple make-ready work, OTMR attachers must choose from a list of “utility-approved” contractors. If no “approved” list is provided, OTMR attachers may use “qualified” contractors who meet criteria set forth in the rules. A qualified contractor must agree to follow published utility safety codes or the NESC where published codes are not available; acknowledge it can read and understand licensed engineered pole designs for make-ready; agree to abide by OSHA rules; agree to meet existing utility safety and reliability thresholds; and be adequately insured or bonded. A pole owner may disqualify any contractor for reasons of safety and reliability including having a record of prior significant safety violations. There is no requirement for the new attacher to use union workers for OTMR even if the pole owner must do so itself for make-ready it performs. The new attacher must certify that the chosen contractor meets the requirements prior to the survey or in the make-ready notice. An existing attacher may not veto a new attacher’s contractor but it may work with the pole owning utility to include certain contractors on the utility approved contractor list.

3. Ordinary Application Review and Make-Ready. The FCC draft Order would maintain the 45-day period for reviewing and approving or denying applications for non-OTMR projects, but the utility must use “commercially reasonable efforts” to give notice of the time for any surveys. The proposal also shortens the timeframes for non-OTMR make-ready work in the communications space, from 60 days to 30 days for applications up to the lesser of 300 or .5 percent of the utility’s poles in a state, and from 105 days to 75 days for larger orders; and above the communications space, from 90 to 60 days for applications up to lesser of 300 or .5 percent of the utility’s poles in a state and from 135 to 105 days in the case of larger orders. A utility may have an additional 15 days to complete make-ready. Multiple applications submitted within 30 days of each other may be considered to be one application. Load studies for new applications are not prohibited, but the FCC includes vague cautions that they must be reasonable, nondiscriminatory and applied fairly and efficiently. The draft Order also imposes responsibility on the new attacher to coordinate with existing attachers to encourage completion of make-ready within the prescribed timeframes. An existing attacher may deviate from the time limits during performance of complex make-ready for an additional 30 days for documented reasons related to safety or service interruption that render completion within the time limits infeasible.

4. Self-help Remedy. If a utility fails to meet the revised timeframes for non-OTMR surveys or make-ready work, the new attacher may hire a qualified contractor to complete the survey or make-ready work. The new attacher must use commercially reasonable efforts to provide the affected utility and existing attachers 3 business days’ notice of any field inspection (survey) and 5 business days’ notice of impending make-ready, so they may be present. Contractors for self-help make-ready that is complex or above the communications space must be selected from a list of authorized contractors maintained by the utility, to which list new and existing attachers may request that qualified contractors be added. The utility may not unreasonably withhold its consent for such additions.

5. Bifurcation. If the new attacher electing OTMR determines that the make-ready involves both simple and complex work, then the new attacher may bifurcate the work by completing the simple work under OTMR while waiting on the complex make-ready to be done under the ordinary make-ready rules. The new attacher can also elect to have the entire project done under the ordinary make-ready process.

6. Overlashing. The new rules would codify the FCC ‘s existing overlashing policy, and forbid utilities from imposing substantial advance notification requirements or requiring burdensome and unnecessary engineering and pole loading studies before overlashing. The proposal would:

  • Reaffirm that no prior approval for overlashing is permissible;
  • Limit advance overlashing notice to 15 days or less, to the extent any notice is required;
  • Prohibit utilities from imposing “quasi- application or quasi- pre-approval requirements on attachers, such as requiring engineering studies” (an overlasher is “responsible for its own equipment and shall ensure that it complies with reasonable safety, reliability, and engineering practices.”);
  • Authorize the utility to conduct its own engineering study during the advance notice period to determine whether the overlashing creates a capacity, safety, reliability or engineering issue;
  • Authorize the utility to deny access to a pole for overlashing during the specified advance notice period only if it provides the attacher with specific documentation that the overlash creates a capacity, safety, reliability or engineering issue; and
  • Require the overlasher to address any such issues timely documented by the utility prior to proceeding with the overlash.

7. Pre-existing non-compliance. The FCC clarifies that utilities may not hold new attachers responsible for the cost of correcting pre-existing violations, even where the new attachment may precipitate correction of the violation. It also states that utilities may not deny new attachers access to the pole or delay make-ready based on safety concerns arising from a pre-existing violation.

8. Pole owner construction standards. While the FCC declined to adopt attacher requested limits on pole owner construction standards, it did provide some relief for new attachers employing contractors to perform OTMR make-ready work. Qualifying contractors may use NESC standards where the pole owner has not published or otherwise made its standards available.

9. LEC Pole Attachment Rates. The FCC revised its rules to establish a presumption that for newly negotiated agreements between incumbent LECs and utilities, the incumbent LEC will be eligible for comparable rates, terms and conditions as CLECs and cable operators, unless the utility rebuts the presumption with evidence that the LEC receives benefits that materially advantage it over other telecommunications attachers. Under the FCC’s 2011 rule changes, ILECs bore the burden of overcoming a presumption that, because of their pole owner status, they were not similarly situated to CLEC attachers and therefore not entitled to CLEC pole attachment rates; that presumption is now reversed except for joint-use agreements.

10. Other Proposals. The FCC draft considers but rejects three proposals raised by commenters, including requiring uniform permit applications, establishing a web-based pole tracking system, and imposing limits on utility-specific construction standards. On a fourth proposal, the FCC found that it did not have a sufficient record to prohibit blanket bans on attachments of equipment in the unusable space but is open to revisiting the issue.

11. Network Restoration. Finally, in a stand-alone section after OTMR and pole make-ready provisions, the FCC asserts authority under sections 253 and 332 to preempt state and local requirements that inhibit network restoration after a disaster, and commits to exercising that authority “on an expedited adjudicatory case-by-case basis where needed.”

The draft declaratory ruling provides:

Preemption of State and Local Moratoria. The FCC’s draft also proposes to adopt a declaratory ruling holding that state and local government moratoria that explicitly or effectively prohibit the deployment of wireless or wireline facilities violate Section 253 of the Communications Act, 47 U.S.C. § 253. The proposed declaratory ruling is an important step by the FCC to address a significant problem that has adversely affected the deployment of new wireless facilities and services.

The draft declaratory ruling responds to issues raised in both the Wireline Infrastructure Notice of Inquiry and the Wireless Infrastructure NPRM regarding moratoria and delays by state and local governments. The record developed in those proceedings demonstrated a significant and widespread problem of both local governments adopting explicit moratoria, pursuant to which they refused to accept or act on applications to deploy facilities, and de facto moratoria, where local governments simply would not act on applications or would create extensive delays. Although in many respects the draft restates and relies on established standards and interpretations, in light of the record of continued moratoria and delays, the FCC is proposing this draft declaratory ruling to hopefully put the issue to rest.

As a threshold matter, the FCC makes clear that Section 253 applies to both wireless and wireline telecommunications services. That conclusion, which is consistent with prior FCC orders and court decisions, is nonetheless important as many local governments have argued that Section 253 does not apply to wireless facilities in the public rights-of-way.

Based on the record, the FCC holds that both express and de facto moratoria violate Section 253. The FCC proposes to define “express” moratoria as written “legal requirements that expressly, by their very terms, prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services and/or facilities.” The FCC proposes to define “de facto” moratoria as state or local actions “that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” The FCC explains that situations cross the line into de facto moratoria where the delay continues for an “unreasonably long or indefinite amount of time such that providers are discouraged from filing applications, or the action or inaction has the effect of preventing carriers from deploying certain types of facilities or technologies.” Examples of de facto moratoria identified by the FCC include “blanket refusals to process applications, refusals to issue permits for a category of structures, frequent and lengthy delays of months or even years . . ., and claims that applications cannot be granted until pending local, state, or federal legislation is adopted.” Ultimately, the FCC explains that de facto moratoria exist “if applicants cannot reasonably foresee when approval will be granted because of indefinite or unreasonable delay. . . .”

The FCC rejects the argument that all “temporary” moratoria are permissible simply because they are of a limited, defined duration. Notably, the FCC rejects the justification used by many local governments that moratoria are necessary for “planning purposes or government study.” The FCC emphasizes that Congress “severely limit[ed]” the authority of state or local governments and “Congress did not countenance generalized government study and planning.”

The draft declaratory ruling also finds that moratoria are not protected by the exceptions found in either Section 253(b) or Section 253(c) “with rare exceptions.” Notably, the draft declaratory ruling finds that most moratoria are not competitively neutral because they “will favor incumbents over new entrants and existing modalities over new technologies.” This finding rebuts assertions by local governments that they are allowed to impose regulations that treat all “new entrants” the same or treat “all wireless” installations the same. The draft declaratory ruling recognizes that Section 253 prohibits local governments from favoring one group of providers or a particular technology.

The draft declaratory ruling also emphasizes that it is “even less likely” that moratoria can be saved under Section 253(c) as necessary to manage the public rights of way. The FCC emphasizes that Section 253(c) protects only “certain activities that involve the actual use of the right-of-way.”

There are significant details in draft Third Report and Order and Declaratory Ruling as well as changes to rules that will have to be digested by local governments as well as pole owners and existing attachers. The draft may be edited and amended before being adopted, and it is likely that numerous entities will seek changes in ex partes up to the Sunshine cutoff a week before the August open meeting. We will update when a final Report and Order and Declaratory Ruling are adopted.