California Communications Infrastructure Update: A Look Back at Regulatory Developments in 2021

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2021 was a very active year for regulatory developments related to communications infrastructure in California. Several proceedings of the California Public Utilities Commission (CPUC) were intended to: (i) enhance communications network resiliency; (ii) close the digital divide; and (iii) improve access to utility poles.

The following is a high-level summary of the major regulatory developments in these areas in the Golden State in 2021.

Enhancing Communications Network Resiliency

Wireless Resiliency Plans Filed

In late January 2021, California's four facilities-based wireless providers filed Wireless Resiliency Plans for 2021 with the CPUC. The plans were required by CPUC Decision 20-07-011, which generally requires California's facilities-based wireless providers to develop comprehensive resiliency strategies to prepare for catastrophic disasters and power outages by:

  • (1) Equipping their facilities located in the state's Tier 2 and 3 High Fire-Threat Districts (HFTDs) with 72 hours of backup power; and
  • (2) Posting on their websites outage maps during disasters and public safety power shutoff (PSPS) events.

The backup power mandate for wireless providers became effective in July 2020. (Rulemaking 18-03-011)

Wireline Resiliency Decision Issued

In February 2021, the CPUC followed up and issued Decision 21-02-029, which generally requires wireline communications providers to also to develop comprehensive resiliency strategies to prepare for catastrophic disasters and power outages by: (1) equipping their facilities in the Tier 2 and 3 HFTDs with 72 hours of backup power; and (2) posting on their website outage maps during disasters and PSPS events.

The backup power mandate for wireline providers became effective in October 2021 for a limited number of facilities. By August 2022, wireline providers must equip all of their facilities in the Tier 2 and 3 HFTDs with 72 hours of backup power, unless a waiver is secured. Facilities-based wireline providers filed their Emergency Operations Plans (in April 2021) and Wireline Resiliency Plans (in August 2021) with the CPUC. (Rulemaking 18-03-011)

Closing the Digital Divide

Statewide Middle Mile Network Initiated

In July 2021, the California Legislature adopted SB 156, which allots $3.25 billion for the construction of a new statewide open-access middle-mile broadband network. The legislation instructs the CPUC to issue a staff report recommending priority locations for the middle-mile network.

In the fall, the CPUC took comments on issues related to the middle-mile network in its ongoing Broadband Infrastructure rulemaking. (Rulemaking 20-09-001)

Federal Funding Account Broadband Infrastructure Grants Initiated

SB 156 also creates a Federal Funding Account (FFA) into which state and federal funds can be deposited, including $2 billion in federal funds intended to extend last-mile facilities to unserved and underserved areas in California. The CPUC is tasked with implementing the program, and SB 156 generally requires FFA funds to be granted consistent with federal deadlines.1

In the fall, the CPUC received comments on the FFA program in the Broadband Infrastructure rulemaking. (Rulemaking 20-09-001)

California Advanced Services Fund (CASF) Developments

In January 2021, the CPUC adopted Decision 21-01-003, which establishes rules for providing two levels of CASF funding to eligible broadband providers that received Rural Digital Opportunity Fund Phase I funding. In March 2021, the CPUC adopted D.21-03-006, requiring all middle-mile infrastructure projects receiving CASF funds to provide open access service and updating rules for making Right of First Refusal claims in the CASF program.

In May 2020, the CPUC received 54 applications requesting approximately $533 million from the CASF Broadband Infrastructure Grant Account, and in 2021, the CPUC awarded approximately $100 million in such grants. (Rulemaking 20-08-021)

Improving Access to Utility Poles

Track 2 Decision in Pole Database Investigation Issued

In October 2021, the CPUC issued Decision 21-10-019, which requires pole attachers and the state's five major pole owners (AT&T, Frontier, PG&E, SCE, and SDG&E) to work cooperatively to add pole attachment data to the major pole owners' existing pole databases. The decision sets out a two-phase process for the addition of this data, with the first phase expected to be completed in approximately May 2023 and the second phase expected to be completed in approximately October 2024. (Investigation 17-06-027)

OTMR Comments Filed

In March 2021, the Administrative Law Judge issued a ruling requesting comments on possible new One-Touch Make-Ready (OTMR) requirements in California as part of its proceeding investigating access by competitive communications providers to utility poles and conduits. The ruling proposes new rules that would implement new OTMR processes in California and mandatory intervals for steps in the make-ready process.

Parties filed opening and reply comments on the ruling in April and May 2021. (Investigation 17-06-028)

Other Action

Post-Disaster Service Restoration Filings Mandated

In October 2021, the CPUC issued Decision 21-10-020, which requires communications service providers to submit regulatory filings if their facilities have been damaged by a disaster, including wildfires. The filings must explain the extent of the damage and service restoration efforts. The decision also requires providers to meet in person with local government officials to discuss the service restoration process. (Rulemaking 20-09-001)

2022 promises to be an equally active year. All of the CPUC proceedings referenced above remain open. We will provide a follow-up advisory that looks forward to expected developments in 2022.

* * *

This advisory is intended to serve as a high-level overview of the most significant developments related to communications infrastructure regulations in California in 2021.

FOOTNOTE

1  Money from the Federal Coronavirus State and Local Fiscal Recovery Fund (SLFRF), from which the majority of the FFA funds are drawn, must be obligated between March 3, 2021 and December 31, 2024, and expended to cover such obligations by December 31, 2026.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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