The Federal Communications Commission has launched a proceeding to come up with clear standards for how utilities, telecoms, cable operators and others must share the costs of utility pole replacements. Cable operators argue that pole owners are offloading replacement costs onto pole attachers.

It is the latest among several moves — including a notice of proposed rulemaking —the FCC has made to try and speed the rollout of advanced communications and close the digital divide.

The notice solicited comment on: 1) how to determine whether and how utility pole owners benefit from certain pole replacements not necessitated by new attachment requests; 2) how to best “align” incentives between communications attachers and utilities; 3) the impact of requiring utilities to pay a portion of replacement costs; 4) how to avoid disputes or help expedite their resolution; and 5)  the scope of refunds the FCC should mandate for unreasonable or unjust attachment rates.

“Expediting access to utility poles is a critical element of extending broadband to unserved communities and closing the digital divide,” said NCTA–The Internet & Television Association. “As our industry works diligently to build gigabit networks in communities that have yet to be connected, we join with a wide range of parties including broadband providers, school and libraries and public interest groups in applauding the FCC for initiating this proceeding. If we are to accomplish universal connectivity in America in the coming years, further action to help providers obtain timely and reasonable access to utility poles is critical.”

NCTA has told the FCC that members trying to help close the rural digital divide “are being met by demands to pay the full cost of replacing a substantial number of poles. In many cases it appears that pole owners are using the entry of a broadband provider to offload the costs of modernizing their own networks,” NCTA said. “When this practice reached a point that it was starting to interfere with cable operators’ deployment plans, we raised it with the FCC and we appreciate that they are now going to consider the need for new rules.”

In a separate statement, Charter Communications, which has been arguing that discriminatory access to utility poles threatens the ability of broadband providers to close the digital divide, applauded what it said were the FCC's continued steps forward to speed deployment via “timely, fair and cost-effective access to utility poles.”

“Pole-attachment regulation significantly impacts how quickly a provider is able to connect families and small businesses to high-speed internet service, especially in unserved, rural areas that require access to multiple poles to connect each home,” Charter said. ”We greatly appreciate chairwoman [Jessica] Rosenworcel’s leadership in launching this proceeding, which is a critical first step in ensuring more people get online faster and achieving 100% connectivity across the U.S.” 

“USTelecom’s members have been providing voice and broadband service to Americans in rural areas for over a hundred years,“ said Jonathan Spalter, president of the trade group representing independent phone companies. “Access to poles has been, and will continue to be, a key ingredient and cost of serving rural America and no broadband provider should be required to subsidize the pole attachment costs of a competitor. We also strongly support the calls to ensure that all pole owners, including those owned by municipalities and electric cooperatives, are subject to the same rules of the Commission and states as the rest of the broadband provider community.”

“We applaud the FCC for initiating the pole replacement proceeding today," said Matthew Polka, president and CEO of ACA Connects, which represents smaller, independent cable operators. “By taking action here, the FCC will help close the broadband deployment gap and maximize use of government funding. Moreover, it will ensure both private pole owners and attachers are treated fairly by making all beneficiaries of pole replacements pay their fair share.”

“Altice USA applauds the FCC’s launch of a rulemaking proceeding to address pole replacement issues, which hamper deployment of broadband to unserved and underserved areas across the country,” said the broadband provider. “Delays, costs and disputes related to pole attachments and replacements have been consistent barriers to our efforts to connect new households and businesses to high-speed Optimum and Suddenlink Internet service. Reforming these rules at the FCC is an important step towards bridging the digital divide, and we look forward to FCC action on these issues.” ■

The Federal Communications Commission is launching an inquiry into how it can “prevent internet providers from engaging in digital discrimination.”

The agency was under a directive from Congress related to the tens of billions of dollars being handed out for broadband deployment and adoption in the Biden administration‘s infrastructure package.

“Your ZIP code shouldn’t determine your access to broadband,“ FCC chairwoman Jessica Rosenworcel said in outlining the agenda for the agency‘s March meeting, when there will be a vote on launching the notice of inquiry. Rosenworcel has already launched a cross-agency task force to work on the discrimination issue.

Also on the March agenda is a proposed rulemaking looking at how the FCC can speed broadband deployment and lower buildout costs by expediting pole-attachment disputes, with clear rules for when and how utility companies that are broadband “attachers” share the cost of pole replacement if that is needed to accommodate attachment requests.

Charter Communications, for one, was pleased the FCC was weighing into the pole-attachment issue. “Pole attachment regulation significantly impacts the length of time it takes to connect families and small businesses to high-speed internet service, especially in rural areas that require access to multiple poles for every home served,” the company said in a statement. “The FCC initiating this proceeding will be a critical step to achieving 100% connectivity in the U.S., because when poles can be accessed in a timely, fair and cost-effective way, more people get connected faster.” ■

Faced with the prospect of Connecticut expanding the state’s one-touch, make-ready (OTMR) policy for communications buildouts, the Communications Workers of America is pushing back, filing comments with the state's Public Utility Regulatory Authority arguing that OTMR threatens public safety and worker security.

In August 2018 the FCC voted unanimously, with one partial dissent by current acting chair Jessica Rosenworcel, to adopt a one-touch, make-ready (OTMR) policy for new broadband attachments on utility poles.

The idea behind OTMR is to speed broadband deployments while ensuring the pole work is done safely. For example, complex connections or ones where the safety risks are greater, such as high up on a pole, will still be subject to multi-touches.

At the time of the vote, then-FCC chairman Ajit Pai said pole attachments were one of the biggest barriers to broadband deployment, and that OTMR promises to ”substantially“ lower costs and reduce the time to attach. He likened the lack of OTMR to making separate round trips to the grocery store for each item on a shopping list.

CWA argues the “done safely” part is missing from the regime, as well as skilled CWA members when the make-ready is done by non-union workers.

“OTMR would allow telecommunication companies that want to put new equipment on utility poles to move existing equipment themselves without sufficient oversight from safety inspectors or the owners of the utility pole,” the union in its comments. “Meanwhile, these companies often use untrained third-party contractors for this work, undermining the collective bargaining agreements of the skilled telecom employees who originally installed the equipment.”

The union included photos of what it said was faulty contract work “throughout Connecticut,” including “hanging fiber cables, disconnected from the strands that hold them in the air; damaged utility poles; fiber cables left on public sidewalks and in snowbanks; lack of warning signs or cones when work is being conducted on public streets; poles improperly secured; and more.”

Smaller and midsized cable/broadband operators have asked the FCC to reject an effort by electric utilities to limit refunds to operators in pole attachment complaint proceedings, saying the FCC has clearly established that state rules about breach of contract claims applied in pole attachment complaint proceedings.

The Edison Electric Institute (EEI) petitioned the FCC for a declaratory ruling that the Communications Act trumps state statutes of limitations on such complaints--which involve the rates, terms and conditions of such attachments--and that refunds in those complaints should only apply from a period following good faith notice of a dispute.

But ACA Connects, which represents those small and midsized operators, begs to differ, it told the FCC this week. "Commission precedent and its rules further provide that a complainant in a pole attachment complaint proceeding may seek and receive relief, if warranted, going back for the entire statute of limitations period prior to the date of the complaint—not merely for a prospective period that commences with 'good faith notice' of a dispute," it said in its official opposition to the EEI petition, adding: "Because EEI's petition for declaratory relief is unfounded and procedurally flawed, the Commission should dismiss it without further consideration."

Also Read: FCC Opposes Private Suits Over Alleged Wireless Buildout Rule Violations

ACAC says the FCC has made clear that pole attachment complaints are similar to breach of contract actions, which means state statutes should apply in the states where the poles are placed.

EEI counters that pole attachment rate complaints are attempts to seek relief "outside the terms of their contracts," and that applying different state statutes would be "discriminatory, [and] lead to highly variable results, and regulatory uncertainty."

ACAC says that argument does not hold water.

The FCC's decision to streamline pole attachments have gone into effect.

The FCC voted in August 2018 (unanimously, though with one partial dissent) to adopt a one-touch, make-ready (OTMR) policy for new broadband attachments on utility poles.

The rules were scheduled to take effect 30 days after publication of the rules in the Federal Register, which happened April 19. That could not happen until the Office of Management and Budget had signed off on the reporting requirement per the Paperwork Reduction Act, which happened April 15.

The new rules took effect Monday, May 20

Related: Cable Ops Push for Codified Overlashing Rules

The third Report & Order and declaratory ruling allows new attachers -- like cable broadband providers and Google Fiber -- to perform all the "simple" work of preparing and attaching the wires.

The ruling also declared in no uncertain terms that states and localities are prohibited from imposing moratoria on broadband buildouts.

Related: Pole Attachment Delays Mar Broadband Infrastructure Rollouts

The item codified that new wires can overlash existing attachments to maximize the space available and regularizes the rate incumbents pay for attachments vs. cable and telco attachers.

Specifically, the new rules:

1. "Permit new attachers to elect an OTMR process for simple make-ready for wireline attachments in the “communications space” on a pole.

2. "Establish safeguards in the OTMR process to promote coordination among the parties and ensure that new attachers perform work safely and reliably.

3. "Retain a multi-party process for other new attachments where safety and reliability risks are greater, while making some modifications to speed deployment.

4. "Codify the Commission’s existing precedent that permits attachers to “overlash” existing wires without first seeking the utility’s approval while allowing the utility to request reasonable advance notice of overlashing."

The FCC voted Thursday (April 20) on a proposal to make it easier to deploy next-generation networks by removing barriers like access to poles and rights of way at the federal, state and local level.

It is a proposal, so the FCC will collect input on 1) making it easier to attach to poles by streamlining access via "one-touch" and "make-ready" rules; 2) reducing charges; 3) establishing a shot clock for consideration of pole attachment complaints; 4) adopting a rate formula; 5) require reciprocal access; 6) speeding up the retirement of copper plant and reducing regulatory "burdens" on that process; 7) eliminating requirements to maintain "outdated" equipment or legacy services.

The proposal would loosen some of the IP transition/cooper retirement regs imposed by the commission under former chairman Tom Wheeler.

The item also asks whether the FCC should have the authority to preempt state and local laws that pose barriers to broadband deployment and whether carriers should have to get permission to "alter or discontinue a service."

NCTA: The Internet & Television Association, praised the move.

“We appreciate the Commission’s efforts to remove outdated regulatory barriers that can slow the expansion of broadband networks. We share Chairman Pai’s goal of closing the digital divide among all Americans and believe that today’s deregulatory actions...will further speed the deployment of broadband networks so that all consumers can enjoy the transformative benefits of the internet.”

The American Cable Association also applauded the streamlining proposal.

"ACA members are now planning to spend billions - on top of billions already spent over the past decade - to meet the needs of their customers who demand higher speeds and more capable service," said ACA President Matt Polka. "But far too often ACA members have to delay or abandon their builds because entities that own or control critical infrastructure - such as poles, conduits, and rights-of-way -- take too long to approve access or charge unreasonable fees. ACA therefore supports today's FCC action to initiate a proceeding to examine these 'access' problems and develop solutions. The sooner we can lower these barriers, the sooner Americans living in all areas - served and unserved - will get access to broadband service that meets their needs."

“We are very encouraged by the FCC's efforts to promote infrastructure investment," said Kathy Grillo, Verizon SVP and deputy general counsel. "Next generation technologies will require massive fiber deployments and dense wireless networks to ensure that the United States continues to lead the world in broadband.  Chairman Pai has demonstrated that he is committed to policies that enable this investment and that attack unnecessary regulatory barriers. 

“We applaud the next steps in the technology transition from antiquated legacy copper-based networks to next-generation broadband networks and removing barriers to investment in wireline networks," said the Internet Innovation alliance.

"“Since 2014, Charter has invested over $16 billion in broadband infrastructure and we are committed to further expanding the reach of our high-speed broadband network," said Charter. "We appreciate the Commission’s efforts to provide a regulatory environment that will spur future infrastructure investment and look forward to working with the FCC to deliver high-speed broadband to more Americans."

WASHINGTON — Comcast has sued the mayor of Nashville, Tenn., the city and its head of public works over what the MSO said was an illegal attempt to move its pole attachments without Comcast's consent.

According to the lawsuit filed in the U.S. District Court for the Middle District of Tennessee, Comcast said Nashville also provided "far less" notice than either federal law or its contract with the city allows. Telco AT&T filed a similar suit last month.

The new ordinance was passed Sept. 20 and subsequently signed by Mayor Megan Barry. The idea behind it is to speed new communications competition, specifically Google Fiber.

The law makes it easier for new pole users to attach their own equipment. But Comcast said the ordinance amounts to unilateral interference with its equipment without its consent and on short notice — 15 days in some cases, 30 in others.

Google Fiber has been getting breaks from cities looking to boost competition to incumbent providers.

Comcast also takes issue with the fact that the ordinance does not allow it to approve the contractors who will move its equipment, so the MSO does not know whether those contractors meet its standards.

“Indeed, the Ordinance allows these encroaching attachers to do so even in cases in which the make-ready work is reasonably expected to cause service outages for Comcast’s customers — and still without Comcast’s consent, still without approved contractors or approved standards, and with the only caveat being that the encroaching attacher must give Comcast 30 rather than 15 days’ notice,” the suit said.

Comcast said the FCC has a comprehensive set of rules governing pole "make ready" processes — including a requirement of at least 60 days notice for “make ready” work and allowing the equipment owner to do that work. Comcast wants the ordinance to be invalidated as conflicting with federal law, and its enforcement to be permanently enjoined.

“From day one, we have been committed to working with local stakeholders on a collaborative solution that improves the pace of broadband deployment in Nashville,” said Comcast of the suit.  “Unfortunately, the City Council has chosen to adopt an ordinance that violates existing FCC rules, creates significant safety concerns and increases the likelihood for service disruptions. We prefer a business-to-business agreement that reduces permitting times, eliminates unnecessary requirements, improves field coordination between parties and speeds up the overall rate of make-ready work. One Touch creates enormous problems for consumers that we cannot let stand, and we have no choice but to pursue legal action that protects our customers and our network.”

As expected, AT&T last week sued Nashville soon after the city awarded final approval to a “One Touch Make Ready” ordinance that Google Fiber claimed was necessary for it to accelerate its deployment there.

The suit (PDF via DSL Reports), filed September 22 in the U.S. District Court for the Middle District of Tennessee Nashville Division, seeks declaratory and permanent injunctive relief to restrain the city from enforcing this new ordinance.

AT&T claims that the new rules conflict with and are is preempted by the pole attachment regulations of the FCC, and that the ordinance is invalid as a matter of Tennessee law because it conflicts with Metro Nashville’s Charter.  AT&T also held that the ordinance impairs AT&T’s existing contract with Metro Nashville, and that it would permit a third-party – Google Fiber, in this case, to temporarily seize AT&T’s property and possibly alter or relocate that property without AT&T’s consent.  

AT&T also argued that the ordinance would require the attacher to provide AT&T with 15 days prior notice of the attacher’s work. And if the attacher discovered that its work could cause a customer outage, AT&T would have 30 days to perform the necessary work, and possibly not give it enough time to avoid a service outage.

AT&T also argued that “even one instance of improper work on aerial facilities can easily cost AT&T more than $75,000.”

Per DSL Reports, Fluer Knowlsey, senior counsel of Alphabet’s Access group already expressed disappointment that AT&T had threatened to take the issue to court “in an effort to block Nashville’s efforts to increase broadband competition should the OTMR ordinance pass... In the event of OTMR litigation, Google Fiber will therefore be glad to share the capabilities of its in-house and outside attorneys, including some of the most experienced and accomplished regulatory attorneys in the industry."

Handing a victory for Google Fiber and delivering a setback of sorts for incumbent broadband providers such as AT&T and Comcast, the city of Nashville on Tuesday (September 6) awarded preliminary approval of so called “one touch make ready" utility pole reform rules, according to The Tennessean.

Nashville’s Metro Council voted in favor of the legislation on a count of 32 to 7, the paper said, noting that it represented the second of three votes required to pass the ordinance, and that AT&T has already threatened to file a lawsuit if the ordinance was given the green light and follow legal steps already taken in Louisville, Ky., after that city approved similar rules (AT&T claims that Louisville lacks the authority).

“If this ordinance passes with the amendment that Google is in support of, we will be sued…I’m 100 percent sure of that,” Metro Law Director Jon Cooper said, according to the paper.

"This is an extremely big step forward, an extremely big net positive for Nashville, for internet competition," Councilman Jeremy Elrod, a bill co-sponsor said, per The Tennessean. "It increases competition, increases telecom and internet investment for we as a city and our citizens as a whole."

Google Fiber, which backed the legislation, claims that the new rules are essential to accelerate its deployment in Nashville.

In a blog posted last week, Chris Levendos, director of national deployment and operations at Google Fiber, outlined the reasons behind its “incredibly slow progress” there, arguing that the current “make ready” process/policy required to attach a new line to a utility pole was a key cause. Google Fiber claimed that that of the 88,000 poles required to attach Google Fiber for its rollout, more than 44,000 will require make ready work, but lamented that just 33 of them have been made ready.

The proposed ordinance, Google Fiber held, “will reduce delay and disruption by allowing the necessary work to be done much more efficiently — in as little as a single visit.. The work would be done by a crew the pole owner has approved, instead of multiple crews from different companies working on the same pole over several months.”

AT&T, meanwhile, isn’t buying into Google Fiber’s complaints, and believes that Google Fiber’s recent actions play into the fact that building broadband networks isn’t for the faint of heart.

In a blog also posted last week, Joan Marsh, VP of federal regulatory at AT&T, noted that Google Fiber was threatening to stop its build in Nashville if the ordinance wasn’t passed and was resorting to “finger-pointing” and “ultimatums” in exchange for service.  

“Google Fiber will no doubt continue its broadband experiments, while coming up with excuses for its shortcomings and learning curves,” she wrote. “It will also no doubt continue to seek favoritism from government at every level…Instead of playing by the same rules as everyone else building infrastructure, Google Fiber demands special treatment and indeed in some places is getting it, unfairly.”

She also pointed to a report that Google parent company Alphabet, , amid the high costs and resources required to build wired broadband networks, was looking to reduce staff at Google Fiber amid the high costs and resources required to build wired broadband networks and its pursuit of less expensive wireless broadband alternatives. Google Fiber has not commented on that report, nor confirmed that it has any plans to reduce staffing.

Google has, however, asked the FCC to approve a plan to test high-speed wireless broadband services, and recently acquired Webpass, a company that leans on wireless systems to deliver broadband in several U.S. metro areas.