By Lisa Youngers, Executive Director
Over the past year, the Fiber Broadband Association (FBA) has dedicated substantial resources to participate in the Federal Communications Commission’s (FCC) efforts to accelerate wireline broadband deployment by removing barriers to infrastructure investment, including barriers that undermine the ability of broadband providers to attach to utility poles expeditiously and at a reasonable cost. FBA submitted extensive filings to the FCC raising numerous concerns with the pole attachment process and offering solutions to address those concerns. In addition, FBA’s President/CEO, Heather Gold, along with our counsel from Kelley Drye & Warren, Jennifer Wainwright, spent countless hours working with the FCC’s Broadband Deployment Advisory Committee (BDAC), which aired many of these same concerns and adopted numerous proposals to facilitate the pole attachment process. Given the importance of these issues for fiber deployment, I am heartened that the FCC just announced it will consider an order at its August 2nd meeting to address many of our concerns and adopt measures, including One-Touch Make-Ready (OTMR), to lower barriers to pole attachments. Let me highlight some key actions the FCC’s draft order proposes:
Permit New Attachers to Use One-Touch Make-Ready — Far too often, the make-ready process is a model of inefficiency, where new attachments are delayed and costs rise as multiple existing attachers each take a turn to “touch” the same pole. Moreover, under the existing make-ready process, existing attachers have no real incentive to move quickly to accommodate a new attacher, especially if the new attacher is a potential competitor. Because these substantial make-ready problems forestall broadband deployment, the FCC’s draft order proposes to permit new attachers to elect to use OTMR for simple make-ready for wireline attachments in the communications space, which should cover the vast majority of make-ready.
Codify the Commission’s Overlashing Precedent — The benefits of overlashing are clear: it significantly expedites and lowers the cost of fiber deployment. Overlashers possess strong incentives to attach responsibly to protect pole safety and reliability. After all, overlashers (or parties permitting third-party overlashing) already have existing attachments on the poles, and, in any event, pole owners can identify in post-overlashing inspections — and require remediation for — any “deficient” work. The Commission’s precedent is clear: providers overlashing consistent with generally accepted engineering practices need not submit an attachment application or comply with other utility conditions before overlashing. Yet, some utilities continue to throw roadblocks in the path of overlashers that increase deployment costs and result in delayed or abandoned buildouts. As a result, the FCC draft order codifies existing law permitting overlashing without an attachment application. The FCC proposal permits utilities to require 15 days advance notice but emphasizes the utility may not require an overlasher to obtain its approval prior to overlashing.
Define and Establish Processes for a “Complete” Application — The timeline for pole attachments adopted by the Commission in 2011 is triggered by a complete application, but the Commission neither set forth the information that would need to be provided in a complete application nor did it establish deadlines for application reviews by pole owners. As a result, requesting attachers often find themselves “at sea” when their applications are not processed promptly or rejected without any reason being provided. The BDAC recognized these shortcomings and adopted a proposed rule that defines the information required in an application so the utility can survey the affected poles and sets the time period for review of an application. The FCC’s proposed order adopts a rule consistent with the BDAC’s proposal.
Improve the Survey Process — All stakeholders recognize that pole owners, existing attachers, and new attachers often have conflicting objectives in the pole attachment process. The key is to establish practices that enable the parties to overcome these differences and lessen the risk that disputes will arise and escalate, especially when determining the extent to which make-ready work will be necessary. The FCC’s proposed order requires new attachers electing OTMR to conduct surveys using the pole owner’s approved contractor and if one is not available, a qualified contractor. And, for new attachers that do not elect OTMR, as the BDAC recommended, pole owners are required to permit new and existing attachers to participate in the survey conducted during the field inspections of poles.
Improve the Viability of the Self-Help Make-Ready Remedy for Attachers Not Electing OTMR — Requesting attachers, for a variety of reasons, may decide to forgo OTMR and give existing attachers an opportunity to undertake make-ready on their attachments according to the FCC’s pole attachment timeline. Requesting attachers, however, should have an adequate remedy if existing attachers fail to complete their work by the deadline, and the FCC’s existing self-help remedy rule has proven to be difficult to invoke. The BDAC sought to fix the flaws with the self-help remedy by first making the requesting attacher responsible for overseeing the make-ready work by the existing attachers and then permitting the requesting attacher to undertake make-ready using its own contractor if the existing attacher fails to complete its work. The FCC’s proposed order largely adopts this proposal, but it requires a new attacher to use a utility-approved contractor for complex make-ready or work above the communications space.
In addition to these proposed rules, the draft order, among other things, provides that new attachers are not responsible for pre-exisitng violations and that utilities must provide detailed information on make-ready costs. As you can see, the FCC’s proposed order, if adopted, would significantly lower barriers to pole attachments and thereby expedite fiber deployments. This is a very beneficial action, and I want to credit all the FBA members and staff that were involved in helping make this happen. I also want to thank Chairman Pai and the FCC staff for dedicating so much time to address the concerns FBA and others raised. The proposed order is a major “win” for fiber invesment and broadband deployment across the country.