Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment

<RULE> FEDERAL COMMUNICATIONS COMMISSION <CFR>47 CFR Part 1</CFR> <DEPDOC>[WC Docket No. 17-84; FCC 23-109; FR ID 195734]</DEPDOC> <SUBJECT>Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Communications Commission. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In this document, the Federal Communications Commission (Commission) establishes rules creating a new process for the Commission's review and assessment of pole attachment disputes that impede or delay broadband deployment in order to expedite resolution of such disputes, and providing communications providers with information about the status of the utility poles they plan to use as they map out their broadband buildouts. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective February 12, 2024, except for §§ 1.1411(c)(4) (amendatory instruction 2) and 1.1415 (amendatory instruction 4), which are delayed indefinitely. The Commission will publish a document in the <E T="04">Federal Register</E> announcing the effective date for those sections. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For further information, please contact either Michele Berlove, Assistant Division Chief, Competition Policy Division, Wireline Competition Bureau, at <E T="03">michele.berlove@fcc.gov</E> or at (202) 418-1477, or Michael Ray, Attorney Advisor, Competition Policy Division, Wireline Competition Bureau, at <E T="03">michael.ray@fcc.gov</E> or at (202) 418-0357. For additional information concerning the Paperwork Reduction Act proposed information collection requirements contained in this document, send an email to <E T="03">PRA@fcc.gov</E> or contact Nicole Ongele at (202) 418-2991. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> This is a summary of the Commission's <E T="03">Fourth Report and Order</E> in WC Docket No. 17-84, adopted December 13, 2023, and released December 15, 2023. The full text of this document is available for public inspection at the following internet address: <E T="03">https://docs.fcc.gov/public/attachments/FCC-23-109A1.pdf.</E> To request materials in accessible formats for people with disabilities ( <E T="03">e.g.,</E> Braille, large print, electronic files, audio format), send an email to <E T="03">fcc504@fcc.gov</E> or call the Consumer & Governmental Affairs Bureau at (202) 418-0530. <HD SOURCE="HD1">Synopsis</HD> <HD SOURCE="HD1">I. Introduction</HD> 1. Access to a broadband connection is a necessity of modern life. With consumers more dependent than ever on fixed and mobile broadband networks for work, healthcare services, education, and social activities, the Commission remains committed to ensuring consumers across the nation have meaningful access to broadband. With the support of the Commission's universal service fund, the Infrastructure Investment and Jobs Act, which included the largest ever Federal investment in broadband, as well as other Federal and state broadband deployment programs, more funding than ever is available to build the necessary infrastructure to bring much-needed broadband services to unserved and underserved areas in the United States. Key to these broadband projects are the utility poles that support the wires and the wireless equipment that carry broadband to American homes and businesses. 2. Over the last several years, the Commission has taken significant steps in setting the “rules for the road” for the discussions between utilities and telecommunications companies about the timing and cost of attaching broadband equipment to utility poles, with the backstop of a robust complaint process when parties cannot agree on the rates, terms, and conditions for pole attachments. (Note that section 224(c) of the Communications Act of 1934, as amended (the Act), exempts from Commission jurisdiction those pole attachments in states that have elected to regulate pole attachments themselves. To date, 23 states and the District of Columbia have opted out of Commission regulation of pole attachments in their jurisdictions. The Commission's pole attachment rules currently only apply to cable operators and providers of telecommunications services and therefore do not apply to broadband-only internet service providers. We recently proposed to reclassify broadband internet access service as a telecommunications service, which would, if completed, apply section 224 and the Commission's pole attachment rules to broadband-only internet service providers.) In this item, we take additional steps to speed broadband deployment by making the pole attachment process faster, more transparent, and more cost effective. Specifically, we adopt rules (1) establishing a new process for the Commission's review and assessment of pole attachment disputes that impede or delay broadband deployment in order to expedite resolution of such disputes, and (2) providing communications providers with information about the status of the utility poles they plan to use as they map out their broadband builds. <HD SOURCE="HD1">II. Background</HD> 3. In 1996, as part of its implementation of the pole attachment requirements located in sections 224(h) and 224(i) of the Act, the Commission determined that when a modification, such as a pole replacement, is undertaken for the benefit of a particular party, then under cost causation principles, the benefiting party must assume the cost of the modification. (Section 224(h) states that whenever the owner of a pole, duct, conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible. Section 224(i) states that an entity that obtains an attachment to a pole, conduit, or right-of-way shall not be required to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way).) The Commission also found that when a utility decides to modify a pole for its own benefit, and no other attachers derive a benefit from the modification, the utility must bear the full cost of the new pole. The Commission further adopted a cost sharing principle for when an existing attacher uses a modification by another party as an opportunity to add to or modify its own attachments and applied this principle to utilities and other attachers seeking to use modifications as an opportunity to bring their own facilities into compliance with safety or other requirements. In the <E T="03">2018 Wireline Infrastructure Order</E> (83 FR 31659-02, July 9, 2018), the Commission reiterated that application of the cost sharing principle. 4. On July 16, 2020, NCTA—the internet & Television Association (NCTA) filed a Petition asking the Commission to clarify its rules in the context of pole replacements. Specifically, NCTA asked the Commission to declare that: (1) utilities must share in the cost of pole replacements in unserved areas pursuant to section 224 of the Act, § 1.1408(b) of the Commission's rules, and Commission precedent; (2) pole attachment complaints arising in unserved areas should be prioritized through placement on the Accelerated Docket under § 1.736 of the Commission's rules; and (3) § 1.1407(b) of the Commission's rules authorizes the Commission to order a utility to complete a pole replacement within a specified time frame or designate an authorized contractor to do so. NCTA argued that without Commission action, the costs and operational challenges associated with pole replacements will inhibit attachers from deploying broadband services to Americans in unserved areas. 5. In the <E T="03">2021 Pole Replacement Declaratory Ruling,</E> although the Wireline Competition Bureau declined to act on NCTA's Petition, finding that “it is more appropriate to address questions concerning the allocation of pole replacement costs within the context of a rulemaking, which provides the Commission with greater flexibility to tailor regulatory solutions,” it observed that the record developed in response to the NCTA Petition revealed inconsistent practices by utilities with regard to cost responsibility for pole replacements. Accordingly, the Bureau clarified that, pursuant to § 1.1408(b) of the Commission's rules and prior precedent, “utilities may not require requesting attachers to pay the entire cost of pole replacements that are not solely caused by the new attacher and, thus, may not avoid responsibility for pole replacement costs by postponing replacements until new attachment requests are submitted.” The Commission subsequently affirmed the Bureau's clarifications. 6. Last year, the Commission issued a <E T="03">Second Further Notice of Proposed Rulemaking</E> ( <E T="03">Second FNPRM</E> ) (87 FR 25181-01, Apr. 28, 2022) in this proceeding seeking comment on the universe of situations where the requesting attacher should not be required to pay for the full cost of a pole replacement and the proper allocation of costs among utilities and attachers in those situations. (To the extent that the Fourth Report and Order does not expressly address a topic that was subject to comment in the <E T="03">Second FNPRM,</E> that issue remains pending.) Specific ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 157k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━