To achieve many of the broadband accessibility and performance goals identified in the FCC’s National Broadband Plan, the Plan recognizes the necessity of lowering the costs incurred by service providers to gain access to and to utilize critical public and private infrastructure such as public roads, bridges, tunnels, utility poles, underground conduit and towers. The Plan concludes that federal, state and local governments and their regulatory agencies should take various steps to ensure that service providers are able to access and utilize poles, conduits, ducts and rights-of-way efficiently and at fair prices. The Plan’s recommendations on these issues are included in Chapter 6, which, along with the other parts of the Plan, is available at http://www.broadband.gov/download-plan.

OVERVIEW

The National Broadband Plan (the “Plan”) of the Federal Communications Commission (FCC) concludes that “[t]he cost of deploying a broadband network depends significantly on the costs that service providers incur to access conduits, ducts, poles and rights-of-way on public and private lands.” The Plan proposes that the FCC modify its attachment rate formulas to establish rental rates that are “as low and close to uniform as possible” and to lower the costs of the “make-ready” process. The Plan also proposes that the FCC adopt a comprehensive timeline for service providers to obtain access to poles, conduits, ducts and rights-of-way and improve the collection and availability of information regarding the location and availability of poles, conduits, ducts and rights-of-way.

 The Plan recommends that Congress amend Section 224 of the Communications Act to allow the FCC to establish a “harmonized access policy for all poles, ducts, conduits and rights-ofway.” The Plan also recognizes that the federal government can have “an important role in directly lowering the costs of future infrastructure deployment” by making “federal financing of highway, road and bridge projects contingent on states and localities allowing joint deployment of conduits by qualified parties, by authorizing federal agencies “to set the fees for access to federal rights-of-way on a management and cost recovery basis,” and by developing master contracts with standardized terms on key issues to expedite the placement of wireless facilities and towers on federal property.

IMPROVING UTILIZATION OF PUBLIC AND PRIVATE INFRASTRUCTURE

The Plan acknowledges that the time and costs routinely incurred by broadband service providers to negotiate agreements and obtain permits and leases for attachments to existing poles, ducts, conduits and rights-of-way and to construct and maintain broadband facilities on such infrastructure are material and often result in a deterrent to the timely and efficient deployment of broadband networks. While the Plan claims that the FCC has the authority “to improve the deployment process,” it recognizes that “all levels of government will be needed to put in place pro-deployment policies” to achieve the Plan’s broadband accessibility and performance goals.

The Plan concludes that the FCC’s existing jurisdiction under Section 224 of the Communications Act gives the FCC the authority to take certain actions now to encourage broadband deployment. The Plan notes that applying different attachment rate formulas based on whether the attacher is providing cable television or telecommunications services “distorts attachers’ deployment decisions” and creates unnecessary uncertainty when an attacher is contemplating expanding its network to add new capabilities or offering new services over its network.

Consequently, the Plan proposes that the FCC establish attachment rental rates for poles, ducts and conduit that are “as low and close to uniform as possible” consistent with the FCC’s current statutory mandate under Section 224 which requires separate rate formulas for attachments for cable television and telecommunications services. The Plan states that the Section 224 rate formula for cable providers produces a “just and reasonable and fully compensatory [rate] for utilities” and that the FCC should “revisit its application of the telecommunications carrier rate formula to yield rates as close as possible to the cable rate.” In this regard, the Plan constitutes a reversal of a 2007 Commission proposal to create a third rate formula for attachers transmitting broadband services over their networks.

The FCC’s past decisions recognize that “time is critical in establishing the rate, terms and conditions” for making attachments to poles, ducts, conduits and rights-of-way. While the FCC’s decisions provide some nominal guidelines for pole and conduit owners to respond to requests to attach to their facilities, there are no comprehensive FCC regulations “addressing the duration of the entire process for obtaining access” to this critical infrastructure. Because such activities often drag on for extended periods, thereby resulting in unreasonable delays in the deployment of broadband services to communities and anchor institutions, the Plan proposes that the FCC establish ”a federal timeline” covering “all forms of communications attachments” and “each step of the pole attachment process, from application to issuance of the final permit.”

The Plan also recognizes that the attachment “make-ready” process often is “a significant source of cost and delay in building broadband networks” and that “[r]eform of this inefficient process presents significant opportunities for savings.” After identifying various examples of unreasonable costs and delays incurred by competitive broadband providers, the Plan concludes that any reform of the makeready process “must address the obligations of existing attachers as well as the pole owners.” Consequently, to lower costs and speed up the make-ready process, the Plan proposes that the FCC establish (i) a schedule of charges for the most common categories of make-ready work (such as engineering assessments and pole construction); (ii) “the right to use space and cost saving techniques such as boxing or extension arms where practical and in a way that is consistent with the pole owners’ use of those techniques; (iii) the right to use independent, utility approved and certified contractors to perform surveys, engineering and make-ready work; (iv) mandatory timelines and rules to ensure that existing attachers take any necessary actions within a specified period to accommodate new attachers; and (v) a payment schedule for make-ready work that is linked to actual performance of the work instead of upfront payments.

The Plan also recognizes that the FCC’s existing dispute resolution process is significantly flawed. It proposes that the FCC establish a better, more timely, process for resolving access disputes. To expedite dispute resolution and serve the overarching goal of lowering costs and promoting the rapid deployment of broadband, the Plan suggests that the FCC consider institutional changes, such as the creation of a specialized forum within the FCC and a streamlined process with targeted deadlines for attachment and access disputes.

Because of the large number of private and public entities that own and control access to poles, ducts, conduits and rights-of-way and an even larger number of attachers to such infrastructure, the Plan claims that it is essential to collect and make available to broadband service providers information regarding the location and availability of such poles, ducts, conduits and rights-ofway. The Plan recognizes that to be useful such information must be kept current, and it proposes that the costs and responsibility of collecting and maintaining the data be “shared equitably by owners and users of these vital resources.”

The FCC’s current jurisdiction under Section 224 of the Communications Act is limited and its attachment regulations and policies do not apply to municipal and cooperatively owned utilities or in states that have adopted their own system of regulation of cable and telecommunications service attachments. The Plan stresses the need for a “coherent and uniform policy for broadband access to privately owned physical infrastructure.” Consequently, the Plan recommends that Congress amend or replace Section 224 “with a harmonized and simple policy that establishes minimum standards throughout the nation” but allow states to enforce attachment standards that are not inconsistent with federal law. The new federal statutory framework contemplated by the Plan would subject all poles, ducts, conduits and rights-of-way in the country to a minimum set of criteria established by federal law and would grant all broadband service providers the right of access to such critical infrastructure within standard timelines established by the FCC based on reasonable rates, terms and conditions. The Plan also proposes that Congress give the FCC the authority (i) to award damages for non-compliance with the revised statute and implementing regulations; and (ii) to compile and periodically update a comprehensive database of physical infrastructure assets.

The Plan asserts that “a comprehensive broadband infrastructure policy necessarily requires a coordinated effort among all levels of government.” Consequently, the Plan proposes that the FCC “establish a joint task force with state, Tribal and local policymakers to craft guidelines for rates, terms and conditions for access to public rights-of-way.” The joint task force would (i) “investigate and catalog current state and local rights-of-way practices and fee structures”; (ii) identify the public rights-ofway and infrastructure policies and fees that are consistent with the articulated national broadband goals; (iii) identify rights-of-way construction and maintenance practices that reduce overall capital and maintenance costs for all involved parties and that avoid unnecessary delays and costs; (iv) recommend appropriate guidelines for competitively neutral, nondiscriminatory and fair and reasonable rights-of-way practices and fees; and (v) recommend a process to resolve expeditiously right-ofway disputes. The Plan proposes that the joint task force would provide its report to the FCC within six months of its creation.

MAXIMIZING THE IMPACT OF FEDERAL RESOURCES

The Plan claims that the federal government can have “an important role in directly lowering the costs of future infrastructure deployment.” It concludes that the largest cost element of deploying broadband facilities is the “placement costs” associated with installing underground and aerial fiber cables and that substantial costs can be avoided if the construction of broadband facilities “are coordinated with other infrastructure projects in which the right-of-way (road, water, sewer, gas, electric, etc.) is already being dug.” Consequently, the Plan proposes that the federal government “make federal financing of highway, road and bridge projects contingent on states and localities allowing joint deployment of conduits by qualified parties.” It recommends that Congress adopt legislation requiring federally funded projects along rights-of-way incorporate “dig once” policies that encourage advance notification to give interested parties the opportunity to install conduit and cables while trenches are open.

The Plan also recommends that Congress authorize federal agencies “to set the fees for access to federal rights-of-way on a management and cost recovery basis,” and by developing master contracts with standardized terms on key issues to expedite the placement of wireless facilities and towers on federal property.

IMPLICATIONS

Although the Plan makes a number of policy and legislative recommendations expected to facilitate timely and more efficient access to poles, ducts, conduit and rights-of-way, many of these proposals have been around for years. While the FCC may implement some of the recommendations now (and may now finally have the motivation to take such actions), the impact of any FCC decision will be limited due to its existing jurisdiction under Section 224. States that currently regulate broadband pole and conduit attachment activities may have little financial incentive to adopt the Plan’s proposals or other broadband initiatives. Moreover, legislative action by Congress to broaden the FCC’s jurisdiction to allow it to adopt policies and regulations that would be applicable in all states and to all poles, conduits and rights-of-way, including municipal and co-op owned facilities, does not seem likely in the current political environment.

NEXT STEPS

At the FCC’s Open Meeting in which the Plan was presented by the FCC’s staff but not voted on by the individual Commissioners, the FCC’s staff indicated that a schedule of proposed rulemaking proceedings and other actions implementing the recommendations in the Plan would be released in the next several weeks.