On Aug. 3 the Federal Communications Commission adopted a Report and Order and Declaratory Ruling which streamlined pole attachment procedures and preempted state and local laws regulations, and policies imposing a moratoria on telecommunications deployment. The FCC’s actions seek to speed the process and reduce costs associated with new utility pole attachments to facilitate broadband deployment across the country. So let’s break this all down for you.
Report and Order
In the Report and Order, the FCC implemented new rules streamlining the attachment of telecommunications equipment on utility poles – a process referred to as “make ready.” Specifically, for simple wireline pole attachments in the communications space of utility poles (i.e., the middle section of most poles), the FCC implemented new procedures referred to as “one-touch make ready” (OTMR), whereby new attachers move existing attachments and perform all other make ready work required for new attachments. The new procedures for OTMR attachments also speed up the approval and installation timelines for new attachments covered by the OTMR policy by: 1) reducing the approval timeframe for new OTMR attachments from 45 to 15 days; and 2) encouraging new attachers to complete all work within one trip – as opposed to the former 60-day make ready timeframe for wireline equipment in the communications space of utility poles.
The FCC’s OTMR procedures, however, do not apply to “complex” make ready work (i.e., work requiring relocation of existing equipment and work reasonably likely to lead to service outages) and new attachments to be installed above the communications space of poles – including small cell pole-top attachments necessary for 5G deployment. Nevertheless, the FCC adopted new policies for new attachments ineligible for the OTMR process that shorten the deployment timeline for affected equipment. For example, the FCC reduced the make ready timeframe for non-OTMR attachments in the communications space from 60 to 30 days, and shortened the make ready period for non-OTMR attachments above the communications space (e.g., small cell pole-top attachments) from 90 to 60 days. The new policies, however, do not appear to address directly the installation of distributed antenna systems (DAS) – which are installed in the generally unusable pole sections below the communications space – as the FCC otherwise declined to adopt a blanket ban on the installation of such devices in the “unusable spaces” of utility poles.
Finally, the FCC codified its longstanding policy that utility pole owners may not require attachers to obtain pre-approval for overlashing. That is, the process of tying additional cables to the cables already attached to a pole. The FCC observed that deployment timeframes for broadband services could be as little as a matter of weeks when overlashing pre-approval requirements are nonexistent – to as much as six months when a utility requires pre-approval for overlashing. Nevertheless, in an effort to mitigate safety concerns associated with overlashing, the FCC permitted utilities to establish reasonable pre-notification requirements for overlashing – including a requirement that attachers provide utilities with 15 days (or fewer) advance notice of any overlashing work.
The FCC’s new pole attachment rules appear to do more for streamlining the deployment process of wireline attachments – as opposed to wireless attachments which are just as essential to the success of 5G deployment. Accordingly, it remains to be seen whether the new rules will significantly improve wireless broadband as such equipment (e.g., small cell pole-top attachments) remains subject to much longer and more complex pole attachment processes and procedures associated with non-OTMR attachments. Furthermore, the FCC stated that, given the limited record on the issue, the Report and Order did not address the installation of DAS equipment in generally unusable pole sections below the communications space. Accordingly, the streamlining of DAS equipment pole attachments seems to remain an open issue before the FCC.
Nevertheless, as observed by commenters such as CenturyLink and the American Cable Association, prohibiting pre-approval procedures for overlashing should aid in generally speeding up 5G deployment timeframes across all equipment types by eliminating unnecessary administrative processes associated with such pole attachment work.
In its simultaneous Declaratory Ruling, the FCC clarified that state and local moratoria on telecommunications deployment violate Section 253(a) of the Communications Act – which provides that state and local authorities may not directly or indirectly prohibit the deployment of interstate and intrastate telecommunications service. In response to numerous complaints, the FCC clarified that both express and de facto moratoria are prohibited by Section 253(a) – even if imposed on a temporary basis. The FCC observed that such moratoria negatively affected the deployment of both wireline and wireless telecommunications services alike.
For purposes of the Declaratory Ruling, the FCC defined express moratoria as any state or local law, regulation, or policy which expressly prevents or suspends the acceptance, processing, or approval of telecommunications deployment (e.g., moratoria on small cell siting applications). Additionally, the FCC defined de facto moratoria as actions by state and local authorities that effectively halt or suspend the acceptance, processing, or approval telecommunications deployment (e.g., blanket refusals to process applications, refusals to issue permits for certain structures, claims that applications cannot be adopted until pending state, local, and federal legislation is adopted, etc.). The FCC clarified that, however, state and local “street-cut” requirements and “dig once” policies – sometimes referred to by providers as deployment moratoria – do not violate Section 253(a) if they also provide reasonable deployment alternatives for telecommunications providers.
Finally, the FCC also clarified that Sections 253(b) and (c) of the Act provide limited exceptions to the prohibition on telecommunications deployment moratoria by state and local authorities. Section 253(b) permits state and local authorities to impose express “emergency” moratoria on deployment if they are: 1) competitively neutral; 2) necessary to address a specific emergency, disaster, or public safety need; and 3) limited to geographic areas affected by a disaster or emergency. Section 253(c) additionally provides for an exception from 253(a) for state and local management of rights-of-way. The FCC, however, noted that Sections 253(b) and (c) only provide narrow exceptions to Section 253(a)’s moratoria prohibition, and require state and local authorities to demonstrate that any law, regulation, or policy prohibiting or impeding telecommunications deployment must be necessary to protect public safety or be essential to rights-of-way management.
The constitutionality of the FCC’s Declaratory Ruling concerning the scope of Section 253(a) prohibition on state and local telecommunication deployment moratoria will surely be challenged in the courts given the generally broad nature of the ruling. Accordingly, any future litigation involving Section 253(a) will clarify the scope of the Declaratory Ruling. Local authorities have vigorously challenged the FCC’s preemption of the way they do business in permitting tower site construction. Most recently in connection with the FCC’s rules speeding up action on siting permits for small towers. The FCC has broad authority under the Communications Act, but the Act expressly reserves basic site permitting authority to the local governments, so there is a balance that must be maintained. While the outcome is not a foregone conclusion, we expect that the FCC’s ruling will ultimately be upheld given the significant deference federal courts provide the FCC in interpreting provisions of the Communications Act.
The FCC’s new pole attachment rules promulgated by the Report and Order will be effective the latter of six months after the release of the decision, or 30 days after an announcement in the Federal Register of the Office of Management and Budget’s approval. The Declaratory Ruling, however, is effective as of the ruling’s release date.
Should you have any questions regarding the FCC’s pole attachment rules and its policies concerning broadband deployment, please contact Keenan Adamchak at firstname.lastname@example.org.