FCC Acts to Reduce Costs and Speed Deployment of Broadband Infrastructure

On August 3, 2018, the Federal Communications Commission (“FCC”) adopted rules to streamline the process of attaching telecommunications infrastructure to utility poles, ducts, conduits and rights of way (“pole attachments”). The FCC’s Order adopted new federal “one-touch make-ready” or “OTMR” rules for simple attachments in the communications space of the pole and new rules for non-OTMR attachments, including complex attachments and attachments above the communications space. Further, the FCC issued a Declaratory Ruling preempting state and local moratoria on new infrastructure and service deployment. The FCC’s actions should expedite the process and reduce the costs of deploying broadband infrastructure, including fiber deployments, 5G wireless services and small cell networks.

How Do the New FCC Rules Benefit Broadband Service Providers?

The OTMR rules allow the new attacher with the strongest incentive to oversee the one-touch process for all attachers. By electing to use the new OTMR rules, wireline service providers can obtain “simple” wireline attachments on the communications space of poles in a more efficient manner (“simple” attachments are those not likely to cause service outages or damages and do not involve splicing of existing attachments or relocation of wireless attachments). These rules improve the process in many ways, including:

  • Shorter and clarified deadlines for the utilities’ application review, surveys and notices prior to commencement of make-ready work;
  • Shorter timeframes for existing attachers and utilities to prepare the pole for the make-ready work;
  • Use of a single utility-approved contractor to conduct surveys and perform make-ready work; and
  • Enhanced self-help remedies if the utility or existing attachers fail to meet their deadlines.

The FCC also improved the process for wireline and wireless providers seeking “complex” pole attachments or attachments above the communications space of the pole, or electing not to use the OTMR rules, including:

  • Clarifying and improving the application process;
  • Shortening the deadline for completion of make-ready work by the utility for complex attachments in the communications space;
  • Establishing self-help remedies for all new attachers, including self-help rights for wireless attachers above the communications space if the utility has failed to complete the make-ready order;
  • Codifying that new attachers are not responsible for remedying pre-existing safety, reliability or pole owner construction standards;
  • Requiring detailed estimates and final invoices of make-ready costs; and
  • Codifying that an attacher is not required to obtain approval from the utility for overlashing.

How Does the FCC Preemption Help Providers Deploy Broadband Infrastructure?

The FCC’s Declaratory Ruling preempts both express state and local moratoria against the deployment of new wireless or wireline facilities or services, and de facto moratoria such as dilatory tactics by local authorities that effectively block processing or approval of construction applications or permits.

Broadband providers facing local or state moratoria should consider re-engaging with local authorities to discuss the significance of the FCC’s new ruling. If those efforts prove ineffective, the service provider may consider seeking an FCC or court order to invalidate the local moratorium and to direct local authorities to take appropriate remedial action.

Timing

The new FCC pole attachment rules will take effect on the later of February 3, 2019, or 30 days after Federal Register publication of the approval of the new rules by the Office of Management and Budget.

The FCC’s Declaratory Ruling went into effect on August 3, 2018.