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FCC Seeks “Large Step” Toward Advancing Broadband Infrastructure Goals With Draft One-Touch Make-Ready Order

Promoting infrastructure investment and broadband deployment has been a top priority for Chairman Ajit Pai’s FCC. On July 12, 2018, the Chairman took a significant stride in advancing his agenda by releasing a draft report and order that would enact, among other things, a “one-touch make-ready” (OTMR) process for most third-party communications-provider attachments to utility poles.

Set for a vote at the Commission’s August 2, 2018 meeting, the new OTMR order would, in the FCC’s words, “fundamentally shift the framework” for attachments to poles owned by investor-owned utilities in the 30 states that are currently governed by federal law.

Following recommendations earlier this year by the Broadband Deployment Advisory Committee, the FCC described the order as a “large step and several smaller steps to improve and speed the process of preparing poles for new attachments.” The new OTMR process would give an entity seeking to make an attachment to a utility pole the choice either to perform all work necessary to prepare the pole for its facilities, called “make-ready” work, or follow the current practice where each attacher performs the necessary make-ready work on its own facilities. The OTMR option would only apply to “simple” make-ready work, and would not be available for “complex” work—defined as that likely to cause an outage or damage, or work involving electric-supply facilities that poses greater safety threats.

The order also would reaffirm the FCC’s longstanding policy of allowing attachers to overlash new wires onto their existing wires without first seeking approval from the pole owner, while still allowing pole owners to request “reasonable advance notice of overlashing.” The order would further clarify that attachers are not responsible for costs of repairing preexisting violations of safety or construction standards. And it would make clear that the FCC’s rules would preempt state and local laws that hamper the rebuilding or restoration of broadband infrastructure after disasters.

Finally, the FCC draft order is accompanied by a declaratory ruling that Section 253(a) of the Communications Act bars both express and de facto state and local moratoria on the deployment of telecommunications services and facilities nationwide.

If adopted, as it is expected to be, the FCC order and declaratory ruling will likely face judicial challenges by pole owners and possibly existing attachers. Even in those states that do not follow the FCC approach, the new federal pole attachment standards will likely reverberate widely and reorder pole attachment processes and relationships among new entrants, existing attachers, and pole owners.

OTMR Process and Timeline

  • Attachers seeking to make new attachments may elect the OTMR process for poles requiring only “simple” make ready work. OTMR is not available for “complex” make-ready work or for any projects involving electric-supply facilities.
  • The FCC distinguishes simple make-ready work from complex work. Complex make-ready is defined as that (i) likely to result in a service outage; (ii) likely to damage existing facilities; (iii) requiring splicing of an existing attacher’s wire; (iv) involving placement relocation of a wireless facility attached to the pole, including small-cell pole-top attachments; or (v) requiring pole replacements.
  • New attachers determine whether the make-ready work is simple or complex at the time they conduct an initial survey of the proposed attachment location.
  • If a new attacher chooses the OTMR process for simple make-ready:
    • The new attacher must use a utility-approved or otherwise “qualified” contractor to perform the work. But existing attachers have no right to veto the contractor a new attacher selects to work on the facilities they own.
    • The new attacher must conduct the initial survey and give the pole owner and existing attachers 3 days’ advance notice, so they may observe the survey.
    • The new attacher must elect OTMR in its pole attachment application and identify the simple make-ready work to be performed.
    • The pole owner has 10 days to determine whether an attachment application is complete, and must grant or deny the request within 15 days (30 days for larger requests). This changes the FCC’s previous review periods of 45 and 60 days, respectively.
    • The new attacher must provide the pole owner and existing attachers 15 days’ notice before commencing OTMR work, and allow them to observe the work. This notice period may run concurrently with the pole owner’s evaluation of the application. But the pole owner or existing attachers cannot complete the make-ready work on their own during the 15-day period.
    • Within 15 days after completing the work, the new attacher must notify the pole owner and existing attachers that the make-ready has been completed, after which they have 30 days to inspect the make-ready work.
    • The pole owner and existing attachers have 14 days to notify the new attacher of any necessary repair work, and may either do the repair and bill the new attacher, or require the new attacher to fix the damage within 14 days of notice.
    • The rules do not require new attachers to indemnify existing attachers.
  • For complex work, or when a new attacher does not select OTMR for simple work, the order also would modify existing procedures as follows:
    • The pole owner must provide at least 3 days’ notice of any surveys to new attachers and existing attachers, so they may observe the survey. Utilities are allowed to use surveys previously prepared by new attachers.
    • Existing attachers have 30 days to conduct make-ready work involving their facilities (75 days for large requests).       Pole owners have 60 days to conduct work involving electrical supply facilities (105 days for large requests).
    • Existing attachers can deviate from the new timeframes for “reasons of safety or service interruption,” but must “immediately” notify the new attacher and other existing attachers, and complete the work within 60 days (or 105 days for large requests).
    • The new attacher, not the pole owner, is responsible for coordinating with existing attachers to ensure make-ready work is completed within the deadlines.
    • The new attacher may engage in “self-help” by completing surveys and make-ready work for all attachments anywhere on the pole—including the installation of wireless 5G small cells—if the pole owner or existing attachers do not meet required deadlines.
    • The new attacher must provide at least 3 days’ advance notice when it conducts a self-help survey, and 5 days’ advance notice when it performs self-help make-ready work, as well as notice no later than 15 days after the make-ready work is complete.
    • A new attacher electing self-help for simple work may use a pole owner-approved or “qualified” contractor. For self-help involving complex work, the new attacher must use a pole owner-approved contractor.
    • Pole owners must provide detailed estimates and final invoices to new attachers regarding make-ready costs.

Overlashing

  • The order would reaffirm longstanding FCC policy rejecting pole owner attempts to require attachers to submit permit applications and obtain approvals for overlashing, a common and efficient construction technique used by service providers to quickly expand their network capacity.
  • Pole owners, may, but are not required to, establish reasonable pre-notification requirements, including that attachers provide 15 days’ (or fewer) advance notice of overlashing work.
  • Pole owners may assess whether a planned overlash would create any capacity, safety, reliability or engineering issue, and, if so, provide detailed documentation within the 15 day advance notice period. But pole owners may not use advance notice requirements as a guise to require attachers to undertake engineering studies.

Preexisting Safety Violations

  • Importantly, the draft order confirms that new attachers are not responsible for the costs associated with bringing poles or third-party equipment into compliance with current safety and pole owner construction standards, to the extent such poles or third-party equipment were out of compliance prior to the new attachment.
  • This rule follows longstanding FCC policy that new attachers are responsible only for actual costs incurred to accommodate their attachments. This likely will mitigate the risk of new attachers shouldering costs of infrastructure upgrades or remediation of existing safety violations they did not cause—an issue that has given rise to numerous commercial disputes and delays in service deployment over the years.

Section 253 Declaratory Ruling

  • The FCC’s declaratory ruling would prohibit any moratoria by states or local governments on the deployment of telecommunications services or facilities as prohibited barriers to entry under Section 253(a) of the Communications Act (47 U.S.C. § 253(a)).
  • The ruling applies to “both express moratoria and de facto moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits needed to deploy communications services or facilities.”

Next Steps

If the Commission adopts the draft report and order at the August 2, 2018 meeting as expected, these new rules will go into effect 30 days after publication in the Federal Register. The declaratory ruling would take effect immediately. Also, although it is unlikely to delay the order from taking effect, the Commission’s order may be subject to judicial review.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

TRENDING LEGAL ANALYSIS


About this Author

Dave Thomas, Telecommunications Attorney, Sheppard Mullin, Law Firm
Partner

Mr. Thomas is a partner in the Business Trial Practice Group in the firm's Washington D.C. office.

Mr. Thomas has a national practice in the telecommunications and broadband communications industries. His practice focuses on the deployment of competitive networks and services, with a particular emphasis on representing broadband providers in matters involving local franchising, rights-of-way, pole attachments, and similar issues.

202-469-4918
Paul A. Werner, Litigation Attorney, Sheppard Mullin, Law firm
Partner

Mr. Werner is a partner in the Business Trial Practice Group in the firm's Washington D.C. office.

Mr. Werner is a seasoned first-chair litigator, whose prodigious representations over the past decade have been before all levels of courts and administrative tribunals, federal and state, and spanned a wide range of complex litigation matters. These matters have run the gamut from high-stakes, “bet the company” commercial disputes to disputes involving statutory, constitutional, communications, energy, environmental, insurance, intellectual property, false advertising, privacy and administrative law issues.

202-469-4910
J. Aaron George, Litigation Lawyer, Sheppard Mullin, regulatory matters
Associate

Mr. George’s practice focuses on representing clients in complex business litigation and technical regulatory matters. He has represented clients before federal and state trial and appellate courts, administrative tribunals, and state and federal administrative agencies. He has practiced before federal courts in California, Florida, Georgia, Louisiana, Minnesota, Pennsylvania, and the District of Columbia, state trial and appellate courts in North Carolina, Texas, and Virginia, and administrative agencies in Arkansas, California, Kentucky, Louisiana, Ohio, and Texas, and before the Federal...

202.218.0028
W. Ray Rutngamlug, Corporate Practice Lawyer, Sheppard Mullin
Special Counsel

W. Ray Rutngamlug is a special counsel in the Corporate Practice Group in the firm's Washington, D.C. office, advising clients on a wide range of transactional and regulatory communications related matters.

Ray's practice focuses on the negotiation of a broad spectrum of communications service agreements, including for providers and large-scale users of communications services. Ray regularly assists some of the nation's largest cable MSOs in drafting and negotiating agreements for access to utility poles and other facilities necessary for the provision of voice, high-speed internet...

202-772-5305
Abraham Shanedling, litigation, lawyer, Washington DC, Sheppard Mullin Law Firm
Associate

Abraham Shanedling is an associate in the Business Trial Practice Group in the firm's Washington, D.C. office.

Areas of Practice

Mr. Shanedling represents clients in complex litigation and technical regulatory matters across various industries, including communications regulatory issues and disputes for communications sector clients. Mr. Shanedling has represented clients before federal and state courts across the country as well as federal and state administrative agencies. He has honed his litigation...

202.747.2644