TR Daily BDAC Tackles Pole Attachments, Muni Permitting, Other Issues
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Tuesday, January 23, 2018

BDAC Tackles Pole Attachments, Muni Permitting, Other Issues

Despite objections and concerns on some issues from pole owners, existing attachers, and municipal representatives, the FCC’s Broadband Deployment Advisory Committee today adopted recommendations from its competitive access working group and state and local regulatory barriers working group, deferring until tomorrow a vote on final changes to a previously vetted report from the working group on streamlining federal siting, as well as presentations on model codes for states and municipalities, which are not expected to be subjected to votes.

In a proposed minority report referenced briefly by San Jose (Calif.) Mayor Sam Liccardo during today’s discussions, he and other representatives of San Jose, McAllen, Texas, and New York City said that the BDAC’s reports “are grounded in a flawed theory that the FCC possesses certain legal authority that we believe, and a review of case law will affirm, that it does not possess. Moreover, because state and local interests were far outnumbered in both the BDAC itself and on the various working groups, the proposed ‘consensus reports’ more often than not reflect only industry’s interests while turning a blind eye to the position of municipalities. In some of the reports, capturing this legal conflict in footnotes was not workable as the legal fiction of the Majority was the basis for almost every recommendation buttressed with a threat of preemption should state or local government not toe the line or act in the timelines outlined by the Majority.”

In a tweet today, FCC Commissioner Mignon L. Clyburn criticized the state draft code for discouraging municipal-owned networks.

During remarks before the working group presentations began this morning, FCC Chairman Ajit Pai thanked the participants and said, “BDAC reflects a core tenet of my policymaking approach: that the decisions we make inside this building must reflect input and fresh ideas from outside these walls. The telecom policy expertise that resides at the Commission is truly world-class. But the FCC doesn’t have a monopoly on good ideas. Far from it.”

Ken Simon, senior vice president and general counsel of Crown Castle International Corp., who chairs the competitive access working group, presented the group’s report and the full BDAC-approved recommendations that included having the National Rural Electric Cooperative Association publish on its public website contact information for statewide electric cooperative managers. Mr. Simon noted that NRECA was represented on the working group “and they are willing to take that on.”

Another recommendation from the competitive access working approved by the BDAC included that the FCC should define what constitutes a “complete” application for pole attachments for the purposes of the timeline it set in 2011 for action by a utility based on the filing of a complete application.

The working group proposed that a utility have seven days to specify any items that are incomplete in the application, and three days to specify any further incomplete items after receipt of a resubmission.

Some BDAC members suggested that the timeline was too short, especially for small co-ops that might have only one person with the experience to review an application for completeness, who might be on vacation for a week.

Mr. Simon said he would accept changing the times to 10 days for original submissions and seven days for resubmissions as “a friendly amendment.”

The BDAC also accepted a recommendation that the FCC amend its rules to permit existing attachers and new attachers to be present for a utility’s field survey.

The competitive access working group also proposed “improving” requesting attachers’ self-help remedy if existing attachers don’t perform make-ready work within 60 days, by having the FCC amend its FCC rules to make clear that pole owners’ responsibility “goes to the issue of initial notification to the existing attacher” of the deadline, and requesting attacher contact info. After that, self-help actions by the requesting attacher would have to include providing notice to the utility and existing attacher so they could be present when work is done, Mr. Simon explained.

Representatives of existing attachers, such as Chris Nurse of AT&T, Inc., raised concerns about the lack of a remedy for damage to existing attachers beyond the cost of the facility. “What is our remedy if damage causes us to lose a million-dollar customer?” Mr. Nurse asked.

“Current self-help provisions don’t include indemnity, so we didn’t add it,” Mr. Simon said.

“That’s just not adequate protection. You could lose a FirstNet contract,” Mr. Nurse said, suggesting the addition of a provision for a performance bond or indemnification.

Mr. Simon said that the option of suing the contractor or attacher who caused the damage would still exist.

David Don of Comcast Corp. asked whether there were any “examples of where a bond requirement created a barrier to deployment.” He also urged that the new attacher be required to use a contractor from an approved list.

The group agreed to look at the working group’s recommendation on “one-touch make-ready” to see if its provisions could be incorporated to make the self-help recommendation more acceptable to all parties.

Those proposals included new FCC rules for a streamlined application, permitting and make-ready process for simple one-touch make-ready work in the communications space of the pole. Simple make-ready work is work for which there is no expectation of service outage, no splicing, and no relocation of existing attachments, Mr. Simon explained.

There was an objection to the title of the proposal, as the proposal actually included recommendations for complex work and for work in the power supply portion of the pole. Mr. Simon agreed that a title change would be acceptable.

Under the proposal, the new attacher would be responsible for all costs associated with attachment, including make-ready work, inspection, and damage to the existing attachment, with the exception for bringing existing attachments up to code, if they are not in compliance.

The working group also suggested that “there should be some consideration given to the designation or the creation of an independent third-party to enforce the make-ready process, maybe maintain the list of contractors, other than the pole owner,” Mr. Simon said.

As for the list of contractors, the group suggested that attachers be able to propose contractors to pole owners for approval.

Mr. Nurse of AT&T said that the company had jointly filed concerns with the Communications Workers of America, arguing that labor agreements requiring certain work to be done by unionized workers should be respected.

John Burchett of Georgia Fiber said that the filing amounted to AT&T “asking to be exempted from federal regulatory requirement because of a private contractual agreement.”

“AT&T isn’t proposing to be exempt from the process. We would complete work within Commission intervals,” Mr. Nurse said. “We’ll bear the consequence if we don’t meet the interval.”

Mr. Burchett said, “You’re exempting yourself [to allow] additional trips up the pole.” He also said that the working group’s proposal “is to take a mechanism that hasn’t worked in 60 days and push it down to 45 days without [any changes in the process] to make it work” in the shorter time period.

Eventually, the initial 15-day notice for simple make-ready work in the one-touch make-ready proposal was changed to 25 days before the BDAC approved it.

The BDAC returned to the self-help proposal, approving it with additions that the contractor used would have to be licensed, adding an insurance or bond requirement, and adding a right to object to a contractor who is not on the approved list.

The BDAC also approved a recommendation from the competitive access working group for the FCC to undertake further study of the possibility that underutilized E-rate infrastructure could be used to maximize availability of broadband in the surrounding community, weighed against the concern that doing so could incentivize E-rate providers to build excess capacity paid for by the E-rate fund.

However, the BDAC tabled a recommendation for the FCC to explore and develop incentives for adding additional capacity in construction projects that could be used for broadband for consideration after dealing with the model codes.

It approved a recommendation for the FCC to dedicate resources to study whether a common infrastructure database should be developed to be “launched by the Commission, as a public resource, with development to be funded by user fees.”

Robert Delroux of TDS Telecom suggested that the “tens of billions of dollars” that might be needed to construct the database would be better spent on building more infrastructure.

The working group on removing state and local regulatory barriers proposed a study of “whether a streamlined mediation and arbitration process administered by a neutral third party would expedite deployment by resolving disputes more quickly.” It also recommended that the FCC create a broadband readiness checklist, explore a broadband-ready certification for localities, “provide clarity on what constitutes excessive fee for ROW access and use,” and “explain its approach to preemption decisions so that all stakeholders are on notice to the potential role of this action.”

Mr. Delroux noted that the portion of the report on excessive fees contains “footnotes to represent the positions of municipalities.”

Mr. Delroux said that while the FCC has an obligation to preempt under some circumstances, preemption should be viewed as a last resort because “it’s more of a sledge hammer solution than it is a finesse solution.”

“This group decided that finding ways to cooperate” was more productive, he added.

One BDAC member raised the concern that some state constitutions prohibit charging less than fair market rates and that doing otherwise would be construed as providing a gratuity and thus would be a crime.

Karen Charles Peterson, a member of the Massachusetts Department of Telecommunications and Cable who represents the National Association of Regulatory Utility Commissioners on the BDAC, said that the proposal would impose burdens on states and that she couldn’t support it.

Mayor Liccardo noted that San Jose and McAllen (Texas) have submitted concerns.

“We don’t have a consensus here,” he said. “The primary question for cities is what’s wrong with a market rate. We didn’t expect when we paid for pizza today that it would be provided at cost.”

He added, “A below market rate is what we affectionately call a subsidy. Why shouldn’t we adopt a market rate? The FCC certainly adopts a market rate when it auctions spectrum, which is a public good that is scarce.”

Mayor Liccardo also argued that there is “no evidence” of a connection between broader deployment and lower fees.

“I don’t see any real obligations on industry to do much of anything to fulfill a mandate to provide … universal service. If that is our objective and there is no mandate on industry to do so, then government must charge fees,” he said.

Charles McKee of Sprint Corp. said, “This report to me is very middle of the road.”

The BDAC adopted the state and local permitting working group’s recommendations to the FCC to encourage earlier, more comprehensive collaboration, to provide clarity on the meaning of excessive fees, to study whether a streamlined mediation or arbitration process would expedite deployment, to explain its approach to preemption decisions, and to explore how to leverage experts.

Wireless Infrastructure Association President and Chief Executive Officer Jonathan Adelstein, who chaired the working group on streamlining federal siting, recapped the group’s report, which the BDAC approved in an earlier version at a previous meeting, and explained a few revisions that the working group had made in the interim, which will be discussed and voted on tomorrow. The revisions included adding a provision to allow federal agencies to extend the “shot clock” for acting on siting applications if they explain to applicants why they are doing so, and clarifying its recommendation that agencies ease permitting processes under historic and environmental reviews in previously disturbed areas. —Lynn Stanton, [email protected]

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