TR Daily FCC Adopts OTMR Pole Attachment Policy, Affirms Preemption
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Thursday, August 2, 2018

FCC Adopts OTMR Pole Attachment Policy, Affirms Preemption

Over the partial dissent of lone Democratic Commissioner Jessica Rosenworcel, the FCC today adopted a one-touch make-ready (OTMR) policy for attaching telecom and cable facilities to utility poles in the 30 states that don’t regulate pole attachments themselves, and said that “blanket” state and local moratoria on telecom services and facilities deployment are barred by section 253(a) of the 1996 Telecommunications Act.

The Commission also said it would preempt, “on a case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster.”

Commissioner Rosenworcel supported the OTMR policy generally but opposed some of its details as well as the preemption of state and local moratoria, arguing that officials at the local level are better positioned to assess competing concerns such as public safety.

The OMTR policy will enable the new attacher to have all movement of existing attachments performed at once, rather than waiting for the existing attachers to each have their own facilities moved sequentially, saving time and money. It will apply to “simple” make-ready actions, which exclude any movement of attachments above the communications space of the pole.

The action should help enable deployment of small cells and wireline backhaul for 5G service, the FCC said in a press release.

The text of the third report and order and declaratory ruling in WC dockets 17-84 and 17-79 was not available at TR Daily’s news deadline.

During her presentation of the item at today’s FCC meeting, Annick Banoun, an attorney-adviser in the Wireline Competition Bureau’s Competition Policy Division, said that the pole attachment report and order would “ensure that access to this vital infrastructure is swift, predictable, safe, and affordable.”

She noted that the order would allow new attachers to “overlash” existing wires and “eliminate outdated disparities between the pole attachment rates incumbent carriers must pay compared to other similarly-situated cable and telecommunications attachers.”

In her separate statement on the item, Commissioner Rosenworcel said, “We are dealing with a complex and heady mix of federal authority, state preemption, local realities, and the possibility of job losses for workers and service outages for consumers. Getting it right is essential. I believe that in some ways, this decision runs roughshod over the details when clearer and more specific direction is required.

“First, in our rush to put out rules, this agency accepts too much ambiguity in the one-touch make-ready regime we adopt today. Ideally these policies would be crystal clear so that there are no disputes about just what deployments qualify for one-touch make-ready procedures. But I am concerned that is not the case here. And I believe this is going to slow down deployment — not speed it up. Indeed, even determining what counts as simple make-ready work is not so simple. That’s because our definitions of simple and complex processes do not provide enough real-world guidance to attachers and utilities, setting the stage for disputes and delays. Worse, we decide not to give any voice in this process to the parties that are well-positioned to make these tricky determinations—the existing attachers. This is hard to justify,” she continued.

“Second, we could do more to protect jobs and safety. By giving short shrift to employees covered by collective bargaining agreements, this decision threatens to invalidate private contracts negotiated between existing attachers and union workers. But going forward, this agency could put those employees out of work. This is not right. Moreover, it is not an outcome we can simply ignore,” she added.

“Third, we should give more thought to what happens to existing attachers on poles. With only superficial analysis, we conclude that existing contract and tort law will protect their interests. This is not so simple because in many cases there is no privity of contract between these parties. Our one-touch make-ready regime—and the public at large—would be better served by mechanisms that would allow existing attachers to hold a new attacher or contractor accountable for the consequences of performing shoddy work, especially when they lead to consumer outages,” Commissioner Rosenworcel said.

“Finally, I fear that for all our desire to expedite deployment all this decision will do is speed the way for litigation. Nowhere is this clearer than in the declaratory ruling. This agency determines that state or local requirements that prevent or have the effect of suspending the processing of siting applications for new communications infrastructure violate Section 253(a) of the Communications Act and are preempted. The legal analysis here is seriously lacking. A basic [canon] of statutory interpretation requires that this agency give meaning to all relevant portions of the law. Interpretations that support statutory consistency are valued over those that do not. And yet, there is no way to square this declaratory ruling regarding Section 253(a) with Section 253(d). That’s because Section 253(d) provides the express mechanism for this agency to preempt state and local requirements on a case-by-case basis after notice and opportunity for public comment. Moreover, our interpretation of Section 253(a) preemption all but reads Section 332(c) out of the law, which provides a specific due process remedy for the failure to act on wireless facilities siting,” she added.

“So what does that mean in the real world? Take Myrtle Beach, South Carolina, just for example. It’s a coastal community. There are laws that limit the ability of private entities to dig up roads during certain times of the year, namely during the height of hurricane season and during peak tourist times. These rules are limited in time and scope. They are informed by local traffic and public safety authorities. They are reasonably related to the police powers of municipalities. And yet, going forward, three unelected officials sitting here today preempt these local policies because they believe Washington knows better.

“This is unfortunate. Because I believe we need smart one-touch make-ready policies—and others like it—to expedite the deployment of more broadband and wireless services in more places. We need to find a modern way to balance the needs for national deployment policies with local realities so that across the board government authorities support what we need everywhere—digital age infrastructure. I believe there is a thoughtful way to do this, but the reasoning in today’s decision falls short,” Commissioner Rosenworcel continued.

“While I approve our adoption of one-touch make-ready policies in concept, the deficiencies in our analysis are too significant for me to offer my full support. As a result, I approve in part and dissent in part,” she concluded.

In his separate statement, Chairman Ajit Pai said, “OTMR promises to substantially lower the cost and shorten the time to deploy broadband on utility poles. It allows a new provider who wants to attach to a pole to move all the wires and equipment in just one `touch.’ It’s a bit like having to go to the grocery, the dry cleaner, and the bank. The slow way to do this would be to visit each business but return home each time. The rational thing we all do is to do each errand, one after the other, all on one trip. That’s essentially what OTMR is.

“Also, we make clear today that it is a violation of federal law for states or localities to impose moratoria on broadband deployment. There may be many reasonable ways local governments can regulate network deployments in their jurisdiction, but blocking competition and better services for American consumers is not one of them,” Chairman Pai continued.

“Now, we would not have arrived on this pro-competitive path without the tireless work of the Broadband Deployment Advisory Committee, or BDAC. One of the major recommendations from the BDAC’s work was that the Commission should adopt an OTMR regime. And I’m pleased that today’s Order largely follows the path prescribed by the BDAC. I know there were many long hours of debate, and plenty of genuine disagreements, but at the end of the day the BDAC was able to coalesce around a solid, balanced policy. I promised the members of the BDAC early on that they wouldn’t just be marking time. And I stood by my word. Make-ready is not make-work—it is a major step toward better, faster, and cheaper Internet access for all Americans,” he added.

In his separate statement, Commissioner Mike O’Rielly spoke out strongly in favor of preemption, saying that “a select group of State and local governments have defied reason and actually slowed down or stifled deployment work to feed their own egos, power, or push for shakedown bounties. This is unacceptable. Today, the Commission takes its second step in our larger effort to confront the practices of these bad actors. This has been over a 30-year fight with some of these communities and the associations representing them, so you will excuse me if I don’t buy the arguments that all it takes is more cooperation and time working together.”

He continued, “In addition to the existing provisions of section 332, today’s item declares section 253 as a statutory authority for prohibiting applicable moratoriums. While I know it will be challenged in court, my simple reaction is hallelujah. Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums, which is just another word for ‘mindless delay’ or ‘extortion attempts to generate some local officials’ wish list.’ And, the record is replete with examples of such out-of-bound practices, such as digital inclusion funds, that unnecessarily create political slush funds and raise the cost of service for consumers.”

As for the OTMR provisions of the item, Commissioner O’Rielly thanked Chairman Pai “and his team for making a few key edits to the one touch make ready provisions. My revisions will not fundamentally alter the direction of the item or undermine its necessary efforts. Instead, it will smooth some rougher parts of the OTMR by bolstering the recourse for damages or non-compliance resulting from OTMR work, ensuring that make-ready work damage to existing attachers’ facilities are rectified immediately, increasing post-OTMR inspection periods, allowing existing attachers to continue work on their networks during the advance notice period, reducing the burdens of per-pole estimates and invoices, permitting overlashing of facilities upon permission of the host without the pole owners advance approval, amongst others.”

He added, “I look forward to further actions later this year by Commissioner Carr to further extend wireless buildout relief, including other preemptive measures, to complement our work here today.”

Chairman Pai has tasked Commissioner Carr with being the point person in the agency’s wireless infrastructure streamlining efforts.

In his separate statement, Commissioner Carr said, “At the FCC, we have been working to streamline and reduce barriers to these small cell deployments. And today’s decision is another good step in that direction. By making it easier for providers to safely and efficiently attach broadband-capable fiber and cable lines to utility poles, we can bring down the cost of the backhaul needed to connect all these small cell deployments.

“In this decision, we also take the commonsense step of repeating our long-standing view that moratoria on telecom deployments violate federal law. This decision will provide even greater certainty as we look to promote next-gen deployments in communities across the country,” Commissioner Carr added.

Asked during a press conference after the meeting about Commissioner Rosenworcel’s concerns about preemption of local decisions such as those in Myrtle Beach, Chairman Pai said that “section 253 affords the FCC ample authority under both its plain terms and the spirt of Congress” to take “appropriate and necessary” action to preempt state and local actions that prohibition or have the effect of prohibiting broadband deployment, “including in Myrtle Beach.”

However, Commissioner O’Rielly, when asked about a restriction such as Commissioner Rosenworcel described, barring road excavation at certain times of the year, said, “I don’t see how that would be a moratorium in my view.”

Commissioner Carr said that “it’s always going to come down to a question of whether it’s an effective prohibition.” He also suggested that the statements in today’s item don’t change things much because “it’s long been the view of the Commission that moratoria act as an effective prohibition.”

Public Knowledge took a view of the preemption actions similar to that of Commissioner Rosenworcel.

PK Policy Counsel Allie Bohm said, “We applaud the FCC for creating a one-touch, make-ready option for simple make-ready work and for shortening make-ready deadlines and streamlining processes. However, we are concerned that today’s order may wrest important controls from state and local governments. While we can all agree that states and localities should not stand in the way of broadband deployment, local officials are best positioned to understand and address their unique community needs. We worry that the Order’s preemption provisions will inhibit states and localities from addressing legitimate local concerns, such as historic preservation and protecting local rights-of-way.”

There was broad support for the action from industry.

Jonathan Spalter, president and chief executive office of the U.S. Telecom Association, said, “The Commission’s reforms to archaic pole attachment regulations are a big win for America’s broadband consumers. Marketplace rate parity will help spur broadband deployment and competition in all areas of the country — including for our most rural communities and families.”

Scott Bergmann, CTIA’s senior vice president–regulatory affairs, said, “CTIA commends Chairman Pai and the FCC for acting to streamline next-generation wireless deployments. The Commission’s ruling clarifying that moratoria are prohibited under the Communications Act will help accelerate network investment for business and consumers, generate billions of dollars for the U.S. economy and create jobs across the country.”

Will Johnson, Verizon Communications, Inc.’s SVP–federal regulatory and legal affairs, said, “Today's FCC action is great news for consumers seeking access to next-gen fiber and wireless networks. The FCC’s adoption of one-touch make-ready for pole attachments makes good common sense and will make it quicker and easier to deploy broadband. This streamlined process for attaching fiber to poles, along with the other reforms adopted today, will remove a significant legacy barrier that has added unnecessary costs, delay, and complexity to deployment. Similarly, the FCC’s finding that federal law bars state and local moratoria on the deployment of broadband facilities demonstrates the FCC’s commitment to ensuring that providers can deploy the facilities necessary for advanced wireless and wireline networks.”

Joan Marsh, AT&T, Inc.’s executive VP–regulatory and state external affairs, said, “Staying ahead of today’s technology advances requires speed to market and a level playing field for all competitors. To that end, today’s order seeks to balance these two requirements, while ensuring worker safety and quality craftsmanship. The order promotes fair competition by placing all providers on a path to pole attachment rate parity and incorporates many improvements to the new one-touch-make-ready (OTMR) pole attachment process. While certain cable moves are allowable under the new OTMR process, we will assure any work performed on our facilities by third-party contractors meets the high bar the AT&T workforce has established when performing this work.”

David Bartlett, CenturyLink, Inc.’s VP–federal government affairs, said, “CenturyLink applauds the FCC, under the leadership of Chairman Pai, for taking much needed steps to reduce pole attachment costs that can be a barrier to network investment. Obtaining parity in the pole attachment fees paid by different broadband providers will help lower broadband deployment costs and encourage providers to make consumer-focused network investments.”

Windstream President and CEO Tony Thomas said that the OTMR policy “will make the often-cumbersome process of attaching cables to existing utility poles much more efficient.” He added, “I’m also pleased that the FCC is addressing the disparate rates that incumbent local exchange carriers (including Windstream) and other telecommunications providers pay to attach to poles. That’s only fair, after all.”

However, Mr. Thomas said that “more can be done to encourage broadband deployment. The FCC must address the fact that electric co-ops and other unregulated providers can still charge much higher attachment fees. For example, in one state Windstream pays around $6 per pole attachment to other telecoms and investor-owned electric utilities, while paying around $24 per pole to several co-ops.”

Incompas CEO Chip Pickering said, “By streamlining the process for pole attachments, the FCC is sending the right signal to consumers and businesses who crave more broadband competition. For too long, new network builders have been held back by infrastructure roadblocks, slowing down the deployment of lower cost, faster speed fiber networks. We hope today’s action by the FCC is the start of an ‘all of the above’ deployment strategy that preserves the bridge to broadband and helps bring more competition, investment and innovation to urban centers and rural America.”

Wireless Infrastructure Association President and CEO Jonathan Adelstein said, “The FCC’s conclusion that the Telecommunications Act prohibits state and local moratoria on telecommunications services and facilities deployment is a strong step to expand broadband deployment. Next generation 5G technology will require the deployment of many more facilities. Today’s action will lower one of the barriers to infrastructure deployment and help all local communities reap the benefits of wireless broadband. In addition, the FCC’s approval of a Report and Order that will allow one-touch make-ready for most pole attachments will greatly reduce delays and lower costs of broadband infrastructure deployment.”

Cinnamon Rogers, the Telecommunications Industry Association’s SVP–government affairs, said that TIA “appreciates today’s action by the Commission to prohibit state and local moratoria on broadband infrastructure deployment. 5G networks will bring faster and more reliable services and new applications to the American public, and those networks will depend upon greater densification of broadband infrastructure including small cell deployments. Many states and localities are already embracing the infrastructure deployment that will make these networks possible, and today’s action by the Commission will help ensure that all Americans can similarly benefit.”

Computer & Communications Industry Association President and CEO Ed Black said, “In the global race to 5G, we just got a burst of speed. These reforms will boost competition by helping network providers build out more quickly and with fewer costs. CCIA applauds the Commission for pursuing this policy in a balanced manner and promoting the deployment of high-speed networks.”

Mobile Future Executive Director Margaret McCarthy said, “Expanding the reach of next generation networks requires speeding up processes that can hinder rolling out infrastructure. Today the FCC addressed a key barrier to network deployment by adopting a ‘one touch make ready’ policy that will streamline pole attachments, a critical input that can bring down costs and accelerate build out. Mobile Future thanks the Commission for its focus on infrastructure and urges further reforms to help connect every American to our 5G future.”

American Consumer Institute President and CEO Steve Pociask said, “Today’s approval of FCC Chairman Pai’s ‘One-Touch, Make-Ready’ proposal is a big win for consumers. This rulemaking will allow for faster, more streamlined and more cost efficient processes surrounding network buildout of revolutionary 5G networks. It’s frameworks like this that will put America on a path towards continued global leadership for unparalleled digital innovation.”

Other entities that applauded the FCC’s action on wireline and wireless broadband deployment today included the Fiber Broadband Association and Consumer Action for a Strong Economy (CASE). —Lynn Stanton, [email protected]

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