Broadband Law Advisor Blog : Broadband Lawyers & Attorneys : Davis Wright Tremaine Law Firm : National Broadband Plan Adoption & Infrastructure Updates

At this time of year when state legislative sessions have ended or are coming to a close, there are usually one or two bills making their way to governors for signature that, in some form or another, regulate pole owning electric cooperatives and/or municipalities for pole attachment purposes. As a general matter, electric cooperatives and municipalities are not usually subject to pole attachment regulation. For example, the federal Pole Attachment Act, as amended by the Telecommunications Act of 1996, codified at 47 U.S.C. § 224, exempts electric cooperatives and municipalities from federal pole regulation. 47 U.S.C. §224(a)(1). The Pole Attachment Act governs attachments on investor-owned utility poles only. While some “FCC states” (states whose investor-owned utilities are regulated by the FCC for pole attachment purposes) and some “certified states” (states that have preempted federal regulation of pole attachments), regulate cooperatives and/or municipalities for pole attachment purposes, many do not. As a result, it is often up to communications attachers to push for new laws regulating pole attachment practices by municipally and cooperatively owned utilities.

Over the last decade, due to efforts by communications attachers, more and more state legislatures have passed pole attachment laws covering cooperatives and municipalities because they understand that cost-efficient broadband deployment is hindered by unregulated pole owners that are not required to provide access to poles on just and reasonable rates, terms and conditions. This year, the Texas and Missouri state legislatures passed bills covering poles owned by electric cooperatives and municipalities, respectively.

The Texas bill, H.B. 3355, requires electric cooperatives to negotiate pole attachment agreements in good faith and that any rate, term or condition demanded by the cooperative be just and reasonable. The bill also requires pole owners to provide access, which can only be denied for insufficient capacity or for reasons of safety, reliability or generally applicable engineering purposes. The Missouri bill, H.B. 345, requires that the rates, terms and conditions of pole attachments, including those related to access, be nondiscriminatory, just and reasonable. The bill requires that the annual pole attachment rent be charged on a “per pole” basis and capped at the federal cable formula, as applied by the Federal Communications Commission, unless the pole owner can demonstrate that the federal cable formula and other direct payments made by the attacher do not allow the pole owner to recover its costs.

Neither bill supersedes the provisions of contracts existing prior to the effective date of the respective bills. 

Other states that have recently passed laws covering electric cooperatives and/or municipalities include: California, North Carolina and Virginia. Please contact us if you would like more information on laws covering pole owning electric cooperatives and municipalities.

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At last month’s Broadband Acceleration Initiative workshop, outgoing FCC Chairman Genachowski announced that the FCC would soon release a notice launching an inquiry into pole attachment costs as part of its effort to further reduce barriers to broadband build-out. This announcement followed on the heels of the Chairman’s issuance of the Gigabit Cities Challenge, which urges broadband providers and state and municipal community leaders to establish ultra-fast, affordable broadband connections in at least one community in every state by 2015.

Pole attachment delays and costs routinely have been cited by broadband providers as barriers to swift and ubiquitous deployment of networks. The Congressionally directed National Broadband Plan released in 2010 recognized that the cost of deploying a broadband network depends significantly on the costs that service providers incur to access poles, conduits and rights of way. The FCC sought to address these concerns in its April 2011 order (affirmed by the D.C. Circuit January 2013) lowering rental rates for telecommunications attachments and imposing timeframes on pole owners for processing attachment applications.

However, recent statements by small cable operators and broadband newcomers, including broadband grant recipients and Google, Inc. – that utility pole attachment practices factor into a company’s deployment decisions – appear to have prompted the FCC to take another look at pole attachment related costs and their impact on deployment of gigabit networks. Buford Media attributed its decision to shut down four systems in Arkansas and Texas to high costs for pole attachment fees. We will keep you apprised of any developments in this area, including when the notice initiating the FCC proceeding is released.

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You would be forgiven if you thought the status of exclusive agreements for exclusive broadband cable service to “multiple dwelling units” such as condominiums and planned communities (MDUs) was settled. In 2007, the Federal Communications Commission (“FCC”) issued a ruling broadly declaring that such exclusivity agreements are “null and void,” and adopted a rule that prohibits the enforcement or execution of “any provision in a contract that grants to it the exclusive right to provide any video programming service (alone or in combination with other services) to a MDU.” We detailed the FCC’s exclusivity orders in previous posts here and here, and the court’s decision upholding the FCC on appeal here.

Despite the seemingly straight-forward application of this rule to ban exclusive MDU service, conflicts over broadband service to MDUs persist. The issue continues to surface both in negotiation of expiring agreements (where MDU management tends to demand compensation in exchange for exclusivity or simply tells the existing provider to leave and enters into a “non-exclusive” agreement with another provider) and in court disputes. At a recent FCC workshop promoting so-called gigabit networks, investors and service providers told the FCC that access to MDUs continues to be an obstacle to broadband deployment and investment.

Most recently, on April 5, 2013, in Lansdowne on the Potomac Homeowner’s Association v. OpenBand at Lansdowne, the United States Court of Appeals for the Fourth Circuit affirmed an order of the district court striking down an arrangement that gave a broadband service provider the exclusive right to provide video, voice, and Internet service to a large planned development. Exclusivity was assured through a convoluted series of entities and agreements designed to insulate the exclusive service rights from potential challenges under the FCC’s rule, which had been a proposal but not a rule when the agreements were structured.

The court concluded that the provider had “engaged in what amounts to an elaborate game of regulatory subterfuge featuring an array of procedural defenses, the use of various corporate entities to escape the definition of an OVS operator, and an artifice to evade the FCC order by structuring its exclusive arrangement using a web of sub-agreements.” The court declared the exclusivity provisions null and void as required by the FCC’s rule, and issued an injunction prohibiting their enforcement against the homeowners’ association and the homeowners themselves.

The Lansdowne case may discourage some developers and service providers from entering agreements designed to circumvent the FCC’s prohibition on exclusive service agreements. But because exclusive service is extremely profitable for the provider and affiliated developers, disputes are unlikely to disappear altogether.

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 Throughout the nation, wireless carriers attach their facilities to electric transmission towers, despite the fact that they do not have statutory rights to do so. The rights of wireless carriers to attach to electric facilities generally stems from the federal Pole Attachment Act, as amended by the Telecommunications Act of 1996 (“the Act”), codified at 47 U.S.C. § 224. While wireless carriers have rights to attach under the Act, carrier rights do not extend to transmission towers. Southern Company v. Federal Communications Commission, 293 F.3d 1338, 1343-46 (11^th Cir. 2002). This lack of rights gives transmission tower owners significant bargaining power over wireless carriers and often results in unbalanced license agreements heavily skewed in favor of the tower owner.

For example, license agreements typically subordinate the wireless attacher’s use of space on transmission facilities to the needs of the tower owner. It is not uncommon to find provisions requiring an attacher to remove or relocate its equipment upon 90 days’ notice from the tower owner when the owner needs the space for its own use or planned future uses. Removing wireless facilities in such a short time frame can severely hamper a wireless carrier’s ability to locate, secure, obtain permitting for and construct an alternative site in order to ensure continuous coverage.

Wireless carriers in New Jersey were forced into such a situation just last year when Public Service Gas and Electric Company (“PSE&G”) sent 90 day removal notices to wireless attachers along a transmission path that had been slated for replacement. PSE&G had no plans for temporary or permanent relocation of the wireless attachments on other PSE&G facilities. Given the timeframes for local zoning and permitting, the wireless carriers had no reasonable means for ensuring that coverage and service (including access to emergency services) would not be compromised. The wireless attachers were compelled to raise the issue with the New Jersey Board of Public Utilities, which in turn led to a settlement in which PSE&G agreed to cooperate with the wireless attachers to ensure wireless coverage would not be interrupted.

There is a relatively simple way for wireless attachers to ensure they are not caught off guard in such situations. In order to better anticipate a transmission tower owner’s future planned use of facilities to which they are attached, wireless carriers should monitor the planning processes of the Regional Transmission Organizations (“RTOs”). RTOs are entities approved by the Federal Energy Regulatory Commission (“FERC”) to both operate transmission networks in centrally dispatched control areas, and maintain reliability within established reliability standards. Most electric companies across the country have turned over the operational control of their electric transmission systems to RTOs. In order to ensure the transmission system will continue to meet reliability standards, the RTOs will typically engage in regional transmission planning processes to determine when transmission facilities will need to be upgraded and/or replaced. These planning processes are open to the public. Wireless attachers can and should monitor these planning processes in order to know in advance when an RTO will require transmission tower owners to replace facilities. In this way wireless attachers will be in a better position to work with tower owners in advance of receiving removal/relocation notices.

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By Randy Lowe and Michael Sloan

Many healthcare providers (HCPs) do not have access to broadband facilities that are capable of supporting bandwidth-hungry telemedicine applications – either because it is simply unavailable or too expensive. Congress recognized this problem when it created the Health Care Support component of the Universal Service Fund. In December 2012, the FCC changed the program to make it more useful to HCPs seeking to expand their telemedicine offerings. Specifically, the FCC created the Health Care Connect Fund (HCF), which aims to distribute $400 million annually to rural HCPs and their non-rural partners.

The purpose of the HCF is to expand broadband access to HCPs and to encourage the development of state and regional broadband networks for telemedicine. The HCF will support the cost of (1) broadband and other advanced services; (2) upgrading existing facilities to higher bandwidth; (3) equipment necessary to create HCP networks or use broadband services; and (4) HCP-owned infrastructures where shown to be the most cost-effective option.

The HCF will allow eligible HCPs the option of purchasing services or designing and building networks if they can demonstrate that their choice is the most cost-effective option (the option for building new networks is available only to members of a consortium). Infrastructure funding, which is capped at $150 million each year, may be used in combination with services purchased from commercial service providers. Only consortia will be permitted to receive support for new infrastructure builds. Urban HCPs will be permitted to participate in those consortia with Rural HCPs so long as the Urban HCPs are not a majority of the participants. The HCF will pay 65 percent of eligible costs, with the participating HCPs required to pick-up the remaining 35 percent. While the HCP contribution obligation is not insignificant, the FCC specifically approved a variety of creative ways for HCPs to finance their 35 percent share of the costs.

Participants in the precursor to the HCF, the Rural Healthcare Pilot Program, can seek HCF funding beginning July 1 of this year. The FCC is expected to finalize the applications for the HCF by the end of the summer and funding will begin for new participants on January 1, 2014.

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By Maria Browne and Brad Guyton

Updated September 12, 2012 at 10 AM EST

On August 17, the Federal Communications Commission (FCC) extended to January 1, 2014 the date for video programming providers (VPDs) to comply with new captioning functionality requirements imposed under the 21st Century Communications and Video Accessibility Act (CVAA). The functionality requirements, which enable the end user to manipulate the appearance of captions, apply to any VPD that provides applications, plug-ins or devices in order to deliver video programming.

The FCC declined, however, to extend the timeframe for complying with rules requiring the rendering or pass-through of closed captions. VPDs must meet the FCC’s rendering/pass-through requirements by the current deadline of September 30, 2012.

The FCC made these moves via an order that addressed two different waiver requests submitted by the Digital Media Association (DiMA). First, DiMA requested a limited waiver extending the deadline for compliance with various user configuration requirements for captions, including presentation, character color, character opacity, character size, fonts, caption background color and opacity, character edge attributes, caption window color, language, and preview and setting retention. The FCC granted a limited waiver of this deadline (moving it to January 1, 2014, as noted above), easing the nearly industry-wide burden on VPDs by providing additional implementation time. As a result, VPDs now have until 2014 to rewrite software or meet any other technical challenges to provide full captioning functionality.

Second, DiMA requested a limited waiver of rules regarding the rendering (that is, decoding closed captions for display) of captions by all VPDs that do not currently provide closed captioning. This request was denied by the FCC. Because not all VPDs needed the requested relief and the industry has been on notice about the upcoming requirements since the CVAA was passed nearly two years ago, the current deadline of September 30, 2012 will remain in effect. Thus, VPDs have until the end of this September to ensure that their software, applications, or plug-ins (or the devices upon which content is played) decode or pass through the required closed captions to display properly for the end user.
 

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By Maria Browne

The FCC’s Consumer and Governmental Affairs Bureau seeks public comment by July 25, 2012, to inform preparation of the FCC’s biennial report to Congress required by the Twenty-First Communications Video Accessibility Act of 2010 (CVAA), concerning the accessibility of telecommunications and advanced communications services and equipment to individuals with disabilities. Specifically, the FCC seeks comment on, among other things:

• The level of compliance with Sections 255, 716, and 718 of the Communications Act (Act) by telecommunications and interconnected VoIP providers, as well as providers of advanced communications services, such as text messaging, video conferencing and non-interconnected VoIP;
• An evaluation of the extent to which any accessibility barriers still exist with respect to new communications technologies; and
• An assessment of the effect of the recordkeeping and enforcement provisions of Section 717 of the Act on the development and deployment of new communications technologies.

Links to the Public Notice:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.doc
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.pdf
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.txt

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Earlier this month, the Video Programming Accessibility Advisory Committee (VPAAC) released its Reports on Video Description, Access to Emergency Information, and User Interfaces, Video Programming Guides and Menus.  These reports respectively summarize the VPAAC's investigation and recommendations regarding these topics.

This week, the FCC announced that it is seeking the public's general reactions to these reports. 

With respect to access to emergency information and video description, the FCC has asked for general feedback:

We seek comment on the portions of the VPAAC Second Report that address access to emergency information and device capabilities with respect to the provision of video description and emergency information. How should these portions of the VPAAC Second Report inform our forthcoming rulemakings? In particular, we ask commenters to indicate whether they agree with the pertinent recommendations in the VPAAC Second Report, and if so, why. Are there additional issues that the Commission should consider as it prepares to commence these rulemakings?

Initial comments are due May 24.  (Full press release availabler here.)

 The FCC's request for comment on the VPAAC's report related to user interfaces, video programming guides and menus is essentially the same:

We seek comment on the portion of the VPAAC Second Report that addresses the above
issues pertaining to making user interfaces, video programming guides, and menus accessible on video programming apparatus and navigation devices. How should this portion of the VPAAC Second Report inform our Notice of Proposed Rulemaking about user interface, video programming guide, and menu accessibility? In particular, we ask commenters to indicate whether they agree with the pertinent recommendations in the VPAAC Second Report, and if so, why. Are there additional issues that the Commission should consider as it prepares to commence this rulemaking?  

Initial comments are also due May 24.  (Full press release available here.)

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By Maria Browne

Last week, the Federal Communications Commission’s proceeding to  consider proposed improvements to the structure and efficiency of the video relay service (“VRS”) program was published in the Federal Register, thus setting the deadline for initial comments by March 2, 2012, and replies  by March 19, 2012.

VRS allows persons with hearing or speech disabilities or who are deaf-blind to use American Sign Language to communicate in near real time through a communications assistant, via video over a broadband Internet connection. The stated goal of the FCC’s proposals is “to ensure that VRS provides functionally equivalent communications services to its users – particularly given advances in commercially-available technology – and remains immune from the waste, fraud, and abuse that has threatened its long-term viability.”

The FCC identified two fundamental flaws with the existing VRS program: (1) no real opportunity for VRS providers to compete for other providers’ VRS users, and (2) VRS users’ lack of access to off-the-shelf VRS access technology. The FCC has proposed numerous options to address these problems including

• Using the TRS Fund to provide discounted broadband Internet access to the VRS user community;
• Revising the compensation structure for marketing of VRS services;
• Creating VRS access technology standards that are conceptually similar to the part 68 standards for traditional CPE;
• Mandating off the shelf VRS technology;
• Funding iTRS access technology with TRS fund;
• Changing the current compensation mechanism to reduce incentives for fraud and abuse; and
• Establishment of a VRS user database.

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