FCC Issues Draft Wireline and Wireless Infrastructure Orders and Further Wireline Rulemaking Notice ahead of November Meeting

by Davis Wright Tremaine LLP
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Davis Wright Tremaine LLP

On October 26, 2017, the FCC released drafts of a Report and Order and Further Notice of Proposed Rulemaking in the wireline broadband deployment docket (the “Draft Wireline Order” and “Draft Wireline FNPRM”) and a Report and Order in the wireless broadband deployment docket (the “Draft Wireless Order”). The release of these two items suggests that Chairman Pai will push broadband acceleration on an issue by issue basis – even while the Broadband Deployment Advisory Committee (“BDAC”) is still considering related issues – rather than in one broader order in each rulemaking. The motivations and efficacy of this approach can be debated, but one concrete impact of this approach, if the Commission pursues it, will be to split potential reconsideration requests and appeals on each item’s issues. These items are scheduled to be considered at the Commission’s November 16th open meeting. 

DRAFT WIRELINE ORDER

The Draft Wireline Order would resolve several issues that are important to entities attaching facilities to utility poles. Specifically it would:

  • Exclude capital costs recovered by pole owners via make-ready fees from pole attachment rates. With this amendment to section 1.1409(c) of the pole attachment rules, the Commission will codify longstanding precedent that reimbursed make-ready expenses cannot be part of the pole rental calculation and thus recovered again through pole attachment rent. For example, if a pole owner has recovered capitalized make-ready costs it may not include that recovered cost as part of the pole investment used to calculate the pole rental rate.
  • Establish a 180-day shot-clock for resolution of pole access complaints. The shot clock would start upon the filing of an access complaint, but the Commission may pause the shot clock when actions outside the Enforcement Bureau’s control delay review of a complaint (such as parties’ requests for extension of time to provide information or for settlement discussions). This shot clock would apply only to pole access complaints and not to complaints alleging unreasonable rates, terms and conditions of attachment; however, a shot clock for the latter is still under consideration by the Commission in a separate proceeding regarding proposed changes to the procedural rules governing pole attachment complaint proceedings filed under Section 224.
  • Provides reciprocal access for ILECs attaching to poles owned by other LECs. This rule revises the Commission’s prior conclusion that LECs cannot use section 251(b)(4) to gain access to CLEC poles, ducts, conduit, and rights-of-way the way CLECs may gain access to the same ILEC infrastructure. The Commission’s prior conclusion was based on its interpretation that Section 224(a) does not provide incumbent LECs with nondiscriminatory access to utility infrastructure. The Commission’s new interpretation would provide a “reciprocal system of infrastructure access” by reading Section 251(b) to create a right of incumbent LECs to access poles, ducts, conduit and rights-of-way owned by competitive LECs, with Section 224 then governing the rates, terms and conditions of access.

DRAFT WIRELINE FNPRM

The Commission requests further comment on critical deployment issues involving attachers’ overlashing and service drops. Specifically, it seeks comment concerning the extent to which utilities delay broadband deployment by requiring pre-approval for overlashing existing facilities and connecting service drops and whether it should update, clarify and/or codify existing precedent addressing overlashing. 

Citing cable commenters, the FNPRM notes that Commission precedent does not allow utilities to require pre-approval for overlashing, but recognizes that is not the experience of many attachers in the field. The Commission asks for examples of when and where utilities require pre-approval or permit applications for overlashing. The Commission also asks if codifying existing precedent would spur broadband deployment and what such a codification would look like. The Commission also asks whether changed circumstances warrant revising overlashing precedent and whether it should clarify what constitutes overlashing, and whether strand-mounted wireless small cells should be subject to any different treatment.

Responding to the comments that some utilities require separate applications prior to connecting service drops, the Commission seeks comment on whether it should adopt rules limiting such pre-approval.

Finally, the FNPRM also references the recent natural disasters that have damaged communications infrastructure, seeking comment on possible preemption of state or local laws that inhibit storm recovery efforts. Comments will be due 30 days after publication in the Federal Register.

DRAFT WIRELESS ORDER   

The Draft Wireless Order would create an exemption from historic preservation review when utility poles are replaced with substantially identical poles that support wireless facilities.  Specifically, replacement utility poles would be excluded from review if the original pole itself is not a historic property and if the replacement pole will be placed in the same location and hole as the original pole, will have an appearance consistent with the original pole, and will cause no new ground disturbance. The Draft may need further refinement, however, because, as currently proposed, the requirements that the replacement pole be placed in the same hole and that construction entail no new ground disturbance may be practically infeasible or impossible to achieve. This requirement might also limit the installation of a taller or heavier class pole, as the regulation prohibits any replacement pole’s new ground disturbance “either laterally or in depth.”

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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