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

By John D. Seiver

On May 24, 2013, five electric utilities filed a petition for certiorari in the U.S. Supreme Court seeking limited review of the D.C. Circuit’s February 2013 pole attachment decision that, among other things, upheld the FCC’s 2011 Pole Order giving Incumbent Local Exchange Carriers (ILECs) rights to “just and reasonable” rates, terms, and conditions for their attachments to electric utility poles (For more information on this order, visit our DWT advisory).

The DC Circuit decision also upheld the FCC’s lowering of telecommunications pole attachment rates and extending the refund period available to attachers who have been overcharged. The utilities’ petition only seeks review of the holding granting pole attachment rights to the ILECs. Accordingly, all other holdings in the decision—pertaining to pole attachment rates and refunds—are final.

The petition cites and relies on the Supreme Court’s recent City of Arlington decision on the scope of the FCC’s jurisdiction.

Responses to the cert petition are due June 28—pushing any decision to grant or deny cert to the Court’s next term, which commences in October.

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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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 The FCC’s April 7, 2011 Pole Attachment Report and Order and Order on Reconsideration was published in the Federal Register this morning, meaning that June 8, 2011 will be the effective date for most of the new rules it implements, which were described in DWT Advisories last month (see DWT’s Advisory on the Order here and our Advisory on how the Order affects wireless deployment here.). Three of the Order’s rules contain information collection requirements that must receive further clearance from the Office of Management and Budget before they will be implemented. These are rules 1.1420 (timeline for access to utility poles); 1.1422 (contractors for survey and make-ready); and 1.1424 (complaints by incumbent local exchange carriers). DWT has participated in all prior pole proceedings and will post new entries regarding the effective date of the remaining rules and utility challenges that are expected to be filed. Please let us know if you would like further information regarding the FCC’s April 7 Order.

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The FCC’s Technical Advisory Council (“TAC”) recently released eight new policy proposals intended to expedite broadband infrastructure deployment and a migration to IP networks. A copy of the recommendations is available here. Several proposals, if adopted, would have a direct (and potentially meaningful) impact on providers deploying next generation broadband network equipment, primarily by reducing federal and municipal delays in broadband network infrastructure deployment. However, the TAC also suggests opening dialogues on standardized metrics for measuring broadband performance other than speed, creating protected spectrum on which to offload wireless broadband data; and on the need to replace embedded legacy equipment that is not designed for IP.

The recommendations are the TAC’s top ideas for embracing “near term” opportunities for promoting private sector innovation and job creation without working through traditional regulatory processes. Thus, these proposals are notable as those which the TAC believes that the FCC can quickly adopt and implement without first undertaking the often long and rigorous rulemaking process.

1. Incent municipalities to expedite permitting and approval – FCC should publicize municipal best practices for broadband infrastructure and deployment, with a “race to the top” contest and public rankings of cities with the most broadband-friendly infrastructure approval processes.

2. Executive order to streamline broadband deployment on federal property – President should issue an Executive Order mandating a streamlined, single-agency, 60-day review and approval process for deployment of broadband infrastructure on federal property, in particular for Federal rights-of-way and antenna siting approvals.

3. Advocate rapid tower siting processes – FCC should signal states and municipalities to permit co-location “by right” and employ a shortened “shot clock” for co-locations on existing structure — or the FCC will do so.

4. Best practices for new broadband deployment technologies – FCC should educate States and municipalities about proven new broadband deployment technologies like distributed antenna systems (DAS), micro-trenching, and directional boring.

5. Model an online deployment coordination system – FCC should develop a web-based communication tool that municipalities can adopt to provide advance notice of planned infrastructure projects.

6. Adopt new metrics to measure broadband network quality – FCC should develop broadband “extended” service quality metrics (beyond throughput speed) to assist providers, consumers and policymakers in evaluating broadband capabilities for applications such as healthcare monitoring or emergency services.

7. Highlight stranded PSTN investments – FCC should initiate a public dialogue about the need to replace legacy PSTN equipment, including auto-dialers, alarm systems, ATMs, PoS terminals, etc., that are not designed for IP networks.

8. Promote “small cell” deployment – FCC should convene an industry-led forum to accelerate deployment of small cell wireless devices (i.e., DAS, femtocells, Wi-Fi) in commercial and government buildings and other high teledensity venues. TAC recommends the development of “universal architectures” for single devices to support multiple providers and a new a small cell band spectrum allocation to offload broadband network data with assurances of interference protection.

Chaired by Tom Wheeler, former head of the NCTA and CTIA (and now with Core Capital Partners), the TAC is a federal advisory council charged with identifying “important areas of innovation” and “informed technology policies” that support competitiveness and job creation. Its proposals do not have the force of law, and are not binding on the FCC. However, these recommendations are predicated upon the assumption that changes can occur through intergovernmental dialogue and collaboration, and that there are executive or administrative actions that can occur immediately, without formal rulemaking. The TAC’s recommendations will likely play a role in the FCC’s recent right-of-way and tower siting Notice of Inquiry proceeding, see DWT Alert, and other related proceedings.

For more information, please contact KC Halm, Scott Thompson,  Paul Glist, or Maria Browne.

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Following up on its National Broadband Plan promise of a year ago (see our advisory), today the FCC voted to adopt several pole attachment rule changes. While the text of the order has not yet been released, here is a brief summary of some of the key actions. We will post a more detailed analysis of this item shortly.  UPDATE: Our DWT Advisory on the FCC's order is now available here, as well as our Advisory on how the order impacts wireless deployment, which is available here.)      

We previously summarized the full set of pole attachment rule changes proposed in May of 2010. Among the changes adopted today are:

 

• The pole attachment rate formula for telecommunications service attachments will be altered so that the telecom rate will be nearly equal to the lower cable rate. 
• Utilities must complete the attachment make-ready process within 5 months after application, with an additional 60 days for large applications. This includes all time needed for pole surveys, cost estimate, acceptance, and construction. In addition, utilities must allow attachers to employ qualified independent contractors for such construction.  
• Going forward, ILECs will have the right to file formal complaints with the FCC concerning unjust and unreasonable electric utility pole attachment rates, terms, and conditions, but will not get automatic rights to regulated pole rates as do cable operators and CLECs.  
• The make-ready process for pole top wireless antennas must be completed within 6 months after application. In addition, wireless providers are entitled to the same rates as telecommunications providers. 

 

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The FCC has released its agenda for its April 7 Open Meeting.  As announced in its tentative agenda, the April 7 meeting will include adoption of an order altering FCC regulations governing pole attachments.  As we wrote earlier, this order will likely address most of the outstanding issues left over from the FCC's May 2010 pole attachment order, including attachment rates for telecom carriers and access and enforcement issues.

Other items on the agenda include:

• Report and Order on CMRS data roaming arrangement;
• Report and Order to detect and prevent fraud in provision of video relay service;
• Notice of Inquiry on access to government rights of way and wireless facility siting requirements;
• Notice of Inquiry on communication network reliability standards; and
• Proposed Rulemaking on gaps in wireless coverage;

 

 

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Yesterday, the FCC announced it will adopt an order altering its regulations governing pole attachments at its April 7 meeting. It appears that this order will address most of the outstanding issues left over from its May 2010 order on pole attachments, including attachment rates for telecom carriers, and access and enforcement issues, which we summarized here. 

In addition, it appears that the FCC will address pending petitions for reconsideration filed in response to its May 2010 order. Those petitions ask the FCC to clarify or reverse parts of the order dealing with utility obligations to allow third party attachers to employ boxing and bracketing techniques on a non-discriminatory basis, and whether pole replacements are properly understood as an expansion of capacity or a routine outside plant construction technique. 

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 On Dec. 23, 2010, the Federal Communications Commission (FCC) released its Report and Order (R&O), and the text of the net neutrality rules it adopted on Dec. 21, 2010. The rules are summarized in our prior advisory, but the R&O contains many important details and nuances. (For the full text of the order, see Report and Order).

 

Transparency

The R&O offers a detailed illustration of the wide ranging disclosure that wireline and wireless providers must provide of commercial terms, performance, and network management practices. The sample disclosure includes “typical frequency of congestion” for networks that manage congestion; how any specialized services may affect the last-mile capacity available for, and the performance of, broadband Internet access service; third-party device and application approval procedures for mobile broadband providers; security mechanisms; details on any inspection of network traffic, and the storage or transfer of such data; and practices for resolving end-user and edge provider complaints and questions. 

(Continue reading)

 

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This morning at its monthly open meeting, the Federal Communications Commission adopted net neutrality rules which largely adopt existing Internet traffic and management practices, impose new non-discrimination and transparency rules, but leave room for specialized or managed services and usage based billing. The order is notable for basing jurisdiction mostly on Title I and ancillary jurisdiction, rather than reclassifying broadband as a Title II common carrier service. (The order has not yet been released but we will include a link here once it is made available to the public, along with a DWT Advisory analyzing the order in more detail.  UPDATE: Fairly detailed press release is available on the FCC website, as well as the Commissioners' statements.)

As expected, the vote was adopted on a 3-2 partisan vote. Democratic Commissioners justified the order as a compromise necessary for maintaining the Internet as an open platform where innovation may occur without seeking permission, while providing certainty conducive to investment at the edge as well as in the broadband network core. In vigorous dissent, Republican Commissioners questioned any need for departing from the successful history of building and maintaining an open Internet by leaving it largely free of government regulation.
 

Continue Reading...

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Earlier today, Chairman Genachowski held a press conference to deliver his remarks on his proposed Open Internet rules, which are scheduled for vote at the FCC's December 21 open meeting.  The Chairman prefaced his summary of the rules by noting that they are in principle rooted in policy statements of past "Republican" Chairmen Powell and Martin, is consistent with President Obama's goal of keeping the Internet "open and free", and builds upon the framework first developed by Rep. Waxman earlier this year. 

In summary, the Chairman outlined the basic concepts of his proposal that grants consumers and innovators the right to:

1. Transparency, including basic information about how networks are managed;
2. Send and receive lawful Internet traffic (ie, prohibit blocking), and use devices (that are not harmful to the network) of their own choosing; and
3. A level playing field, including a bar to unreasonable discrimination in content transmission;

The rules also recognize providers' right to "reasonable" network management that will give providers the flexibility to address congestion and "illegal" traffic, as well as maintain incentives to build-out and innovate broadband networks.

The Chairman made clear that the rules do not adopt the "reclassification" option that would have reclassified broadband as a Title II service.

Also, the Chairman's rules draw a distinction between mobile and fixed broadband services.  The Chairman acknowledged that mobile services are still at an early stage of development, but are rapidly evolving so that the FCC will be prepared to act in the event that anti-competitive or anti-consumer practices arise.

UPDATE: The FCC has just released a statement by Commissioner McDowell condemning the Chairman's proposal.  His brief statement is available here.

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Last night the FCC released its tentative agenda for its next open meeting to be held December 21.  Two items are scheduled for consideration, the first being an Order (not a rulemaking or inquiry) adopting Open Internet rules, also known as net neutrality.  The text summarizing the agenda item is as follows:

Open Internet Order: An Order adopting basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression. These rules would protect consumers’ and innovators’ right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks.

Chairman Genachowski also circulated his proposal to the other FCC Commissioners late last night In anticipation of the December meeting to vote on the Order. 

The FCC website indicates that the Chairman will deliver remarks on his proposal, which is expected to begin at 10:30 am today.  A live webcast is available on the FCC's website at http://reboot.fcc.gov/live/.

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The FCC recently released a Public Notice in which it announced that the Wireline Competition Bureau will hold a workshop on the morning of Tuesday, September 28, 2010. The stated purpose of the Workshop is for the Commission and staff to learn from the experiences of state regulators regarding its proposed pole attachment regulations (W.C. Docket No. 07-245). More details about the Workshop topics and logistics are expected to be released soon. DWT attorneys will attend the Workshop and will report shortly thereafter about its highlights and major topics of discussion. 

For more information, please contact Jim Tomlinson.
 

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Today the FCC released a Public Notice seeking comments on what the FCC calls the "business broadband marketplace."  While this comment cycle is not directly related to any current FCC proceeding (the docket number - WC Docket No. 10-188 - was only created yesterday), the magnitude of information sought hints at the establishment of future regulatory policies, if not rules, regarding broadband service offerings to businesses, that may impact aspects of other Commission broadband initiatives.  Indeed, the Public Notice suggests that the Commission intends to institute regulatory policies over the business broadband marketplace, stating up front that the "business broadband marketplace...requires policies that enable...competitive retail markets, incentives for investments in facilities, and access where competitive infrastructure cannot be economically deployed."  In addition, the Public Notice indicates that the Commission recognizes that "[d]ifferences in the technology used to provide a particular service may cause that service to be subject to significantly different policies, which may undermine competition policy objectives."  This seems to suggest that the Commission prefers a single, uniform policy over broadband business services, regardless of the transmission, technology or facilities used.  (The Public Notice could also be a precursor to the Commission's forthcoming rulemaking in Q4 of this year regarding the collection and analysis of industry-wide data on key broadband metrics (subscribership, prices, performance) for business (and retail) customers.)

Basically, the Commission wants to know everything about "the universe of business broadband service inputs, where they are available, and how they are used."  The Public Notice specifically identifies a number of issues for which it seeks further information, including, among other things, (1) the different types of transmission services, technologies and facilities used to provide business broadband; (2) the various combination of services, technologies and facilities used; (3) trends in the business broadband marketplace, including pricing and technology trends; and (4) the impact of non-traditional marketplace participants (e.g., cable and wireless) and non-carrier wholesale customers (e.g., consumer electronics companies embedding broadband services in their devices) on the marketplace.

Comments are due October 15, 2010.  Reply comments are due November 4, 2010.

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This week the Federal Communications Commission issued three important items related to the National Broadband Plan, and broadband services generally. 

On September 1, the Commission issued a Public Notice to initiate a Further Inquiry Into Two Under-Developed Issues In The Open Internet Proceeding (GN Docket No. 09-191, and WC Docket No. 07-52).  The original Open Internet NPRM (which we discussed at length here) was released October 22, 2009 over two partial dissents, and was designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements.  As discussed in more detail in the Public Notice, comments submitted in this and other proceedings have prompted the Commission to further solicit public discussion regarding two "complex" issues that were addressed "in less detail" than other issues in the NPRM.   First, the Commission seeks additional comments about concerns and policies related to "managed" or "specialized" services.  The NPRM had appeared to be more sensitive to allowing innovation in IP managed services outside of Open Internet regulations, so the Further Inquiry could affect the regulations as originally proposed. 

Second, the Commission seeks additional comment on "how, to what extent, and when" its "openness principles" should apply to mobile wireless services.  The Public Notice specifically noted the fact that, since the NPRM was released in October, recent developments warranted updating the record on certain questions related to wireless, namely, the emergence of new business models by certain wireless carriers to introduce pricing plans that charge different prices based on consumers' level of data consumption, and Verizon's and Google's recent proposal for open Internet legislation that would exclude wireless.

Today, the FCC released an Order extending the deadline for filing reply comments in its pole attachment rulemaking proceeding (WC Docket No. 07-245) to Monday, October 4, 2010.  Reply comments previously were due on September 13, but in response to a petition for extension filed by an industry organization representing electric utilities, the Commission decided to extend the deadline by three weeks.

Also today, the Commission released its tentative agenda for its September open meeting.  According to the release, the Commission intends to discuss four items: (1) TV White Spaces Second Memorandum Opinion and Order; (2) E-Rate Broadband Order; (3) E911 Location Accuracy Second Report and Order; and (4) E911 Location Accuracy FNPRM and NOI.

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At long last, the FCC’s Further Notice of Proposed Rulemaking for Implementation of Section 224 of the Communications Act (pole attachments) was published in the Federal Register this morning, starting the clock for comments and replies.  Initial comments are due on Monday August 16, and replies are due on Monday September 13.

The FNPRM, originally adopted at the FCC’s May 20 open meeting, proposes a host of new rules governing the rates, terms and conditions of pole access to encourage broadband deployment and competition consistent with recommendations made in the National Broadband Plan.   In particular, the Commission proposes to (1) lower the telecommunications pole rent formula to establish more uniform rates applicable to “all” attachers; (2) adopt additional pole access rules that could make pole contract negotiations more difficult and increase penalties for unauthorized attachments; and (3) improve the enforcement process at the FCC.  For further information, read our earlier blog post and our DWT Advisory on the issue.

For additional information, please contact or Jim Tomlinson.

UPDATE: At the May 20 open meeting, the Commission actually adopted both an FNPRM and an Order regarding pole attachments. As discussed in more detail in our DWT Advisory, the brief Order made two distinct findings. First, the Commission clarified that Section 224 allows communications providers to use space- and cost-saving attachment techniques where practical and consistent with a pole owner's use of those techniques. Second, the Commission affirmatively held that the right to just and reasonable access to poles under Section 224 includes the right of timely access.

This morning's Federal Register indicates that only the FNPRM has been published (e.g., the publication is listed as Proposed Rules and not Final Rules, and only the text of the FNPRM has been published). However, the ordering clauses at the end of the publication state that the "Order and Further Notice of Proposed Rulemaking...is adopted." Nevertheless, we understand that the Order will be separately published in the Federal Register shortly.

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This morning the Federal Communications Commission held its monthly open meeting, this time to discuss the Commission's proposed reclassification efforts for broadband services.  In a three-to-two vote (Commissioners McDowell and Baker dissented), the Notice of Inquiry was adopted, and will seek comment on three ways to regulate broadband - under the Commission's Title I ancillary authority; under full Title II authority; or under the Chairman's "Third Way" approach which would impose limited Title II authority using the Commission's forbearance authority.  The NOI will also solicit the public for any other suggestions on how to regulate broadband.

It was announced during the meeting that comments to the NOI will be due by July 15, 2010, and reply comments due by August 12, 2010.

At this time, the NOI has not yet been released, but the FCC has released a News Release and statements from the Commissioners (but not the Chairman).  When the NOI is released, we will provide a more in-depth analysis.

UPDATE: The Notice of Inquiry has been released, and is available on the FCC's website with all the Commissioners' statements.

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This is a reminder that the FCC will hold its next open meeting on Thursday, June 17.  As we noted earlier, and as confirmed by the Commission's recent Meeting Agenda released this past Friday, this open meeting is expected to be quite entertaining, as it is dedicated to discussing a Notice of Inquiry to initiate an "open, public process to consider possible legal frameworks for broadband Internet services in order to promote innovation and investment, protect and empower consumers, and bring the benefits of broadband to all Americans" -- in other words, reclassification of broadband services as telecommunications services to implement the Commission's National Broadband Plan.

If you recall, last May, Chairman Genachowski released a statement indicating that, rather than reclassifying broadband services as telecommunications broadly, he would pursue a "third way approach" whereby only the "transmission components of broadband service" would be deemed telecommunications subject to select portions of Title II of the Communications Act.  This controversial approach will certainly be discussed at the June 17 meeting, in addition to any other proposals that the NOI may present.

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The FCC has released its tentative agenda for its June 17, 2010 open meeting.  Unlike recent agendas for April and May, this one is written such that the June meeting will be dedicated to one, and only one, issue - the reclassification of broadband access service as a telecommunications service.*  According to the agenda, the Commission intends to adopt a Notice of Inquiry to "begin an open, public process to consider possible legal frameworks for broadband Internet services...."  In particular, the agenda highlights three questions from the proposed NOI, paraphrased as follows:

1. Whether the information service classification for broadband Internet service remains legally sound and adequate for the Commission to perform responsibly;

2. The legal and practical consequences of classifying broadband Internet service as a telecommunications service subject to all the provisions of Title II; and

3. The Commission's "third way" approach to regulating broadband Internet service (or at least the transmission components of such service).

We previously blogged about this issue already when the Chairman first announced his "third way" approach to reclassification (see an opinion on the "third way" approach here), so we won't get into it again now.  But rest assured, June 17 should make for an interesting and eventful day at the FCC.

* Of course, the Commission may include additional agenda items as the June 17 date nears, but this issue is obviously big enough to keep everyone busy for the entire meeting.

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By James F. Ireland, James W. Tomlinson, and Christopher A. Fedeli

At its May 20, 2010, Open Meeting, the Federal Communications Commission (FCC) adopted an Order and Further Notice of Proposed Rulemaking (Order/FNPRM) to ensure nondiscriminatory, just, and reasonable rates, terms and conditions for access to investor-owned utility poles in the 30 states where such attachments are regulated by the FCC.

In its 94-page Order/FNPRM, the FCC adopts two new requirements relating to pole access and construction practices and proposes a host of new rules governing rates, terms and conditions of pole access to encourage broadband deployment and competition consistent with recommendations made in the National Broadband Plan (“Plan”).

(Continue reading)

* DWT ADVISORIES provide in-depth and comprehensive analyses of some of the most important communications issues today.  These Advisories are posted to the Broadband Law Advisor without e-mail notification.  However, if you would like to receive DWT ADVISORIES directly in your inbox, sign up on the ADVISORY subscription page.

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Today the FCC voted to adopt an Order and Further Notice of Proposed Rulemaking (FNPRM) on changes to its pole attachment rules, adding yet another chapter to the FCC's pole attachment saga.  Described by FCC Chairman Genachowski as "the blood and guts of broadband deployment," the pole attachment item was notable both for the level of technical detail it addresses, and for the decision to request additional comments on topics that have previously been briefed at considerable length.

What follows is a high level summary that consists mostly of information announced at today's open meeting and the accompanying press release.  The full Order and FNPRM have now been released, and DWT will post a summary of that text shortly.

In the meantime, highlights from today's Order include:

• The Commission holding that the process of make-ready utility pole construction may not be subject to untimely delay under the statute, and

• The Commission addressing the practice of "opposite side construction," also known as boxing the pole, where communications providers place attachments on both sides of a utility pole.

In addition, highlights from the FNPRM include:

• The FCC proposing to establish timelines for access for both cable wires and wireless antenna facilities, drawing on experiences of the New York and Vermont PSCs,

• The FCC specifically asking for detailed comments on the use of outside contractors to expedite make-ready construction,

• The Commission proposing to change the formal FCC complaint resolution process to eliminate disincentives for private parties to seek FCC resolution and to expand the FCC’s authority to act,

• The FCC asking for comments on various rate proposals, including a new FCC devised formula that would amend the telecom rate by providing a rate range consisting of an “upper bound” rate (the existing telecom formula), and a “lower bound” rate that would exclude pole capital costs (but not operational costs) from the rate calculation. Under this proposal, a telecom attacher would pay the higher of the “lower bound telecom rate” or the current cable rate, which the FCC expects would result in payment of the cable rate in most cases, and

• Rather than proposing specific pole rent rules for ILECs, the FCC requesting additional comments on several issues including whether ILECs are legally entitled to regulated pole rates, and whether the benefits ILECs enjoy under joint use contracts with electric utilities justify higher pole rents compared to cable and telecommunications attachers.

Among the many other items that appear to be addressed in the FNPRM are: “sign and sue,” unauthorized attachments, and additional remedies to resolve pole attachment complaints.

Chairman Genachowski strongly encouraged all parties to be active participants in the upcoming rulemaking proceeding addressing the FNPRM issues.  (Comment dates will be set upon publication of the FNPRM in the Federal Register, we will let you know when that happens.)  Commissioner Baker also asked interested parties to especially address: (1) how the FCC’s proposals to harmonize different pole attachment rates squares with the statutory framework; and (2) how various pole access proposals accommodate electrical safety issues.

Stay tuned for a more detailed summary of today’s Pole Attachment Order and FNPRM.

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At its May 20 open meeting today, the Commission continued its efforts to implement the recommendations of the Broadband Plan by unanimously adopting three more broadband-related proceedings to accompany the handful of proceedings adopted in April.

As expected, the Commission adopted a Notice of Proposed Rulemaking to initiate reforms to the Schools and Libraries Universal Service Support Mechanism (E-Rate) program to make broadband more accessible in schools and libraries and to cut red tape.  In addition to the anticipated items to streamline the E-Rate application process and index the e-rate cap to inflation, the FCC has decided to propose new rules to expand funding to wireless broadband connectivity for portable devices for students, as well as expanding funding for internal connections (possibly by eliminating the complex "2-in-5 year" rule). These items were originally slated for consideration in 1Q 2010. This proceeding follows the Commission's earlier adoption of its USF High-Cost NOI and NPRM in April.  (For further information, please contact Danielle Frappier.)

The Commission also adopted an Order and Further Notice of Proposed Rulemaking to ensure nondiscriminatory, just and reasonable access to utility poles by broadband providers, an issue that Commissioner Clyburn referred to as the "nuts and bolts" of broadband access. The Order resolves certain utility pole access issues, while the FNPRM asks for additional comments on pole attachment rates, FCC enforcement, and access timeframes.  (For further information, please contact or Jim Tomlinson.)

Also adopted today was a Report and Order (News Release only, the actual R&O has not yet been released) enabling robust mobile broadband use of 25 MHz of spectrum in the 2.3 GHz wireless communications service (WCS) band. (The Commission also adopted a not-yet-released Second Report and Order implementing rules for terrestrial repeaters to provide greater certainty for both satellite radio and WCS licensees.) (For more information, please contact Brendan Holland.)

(The other two proceedings considered at the open meeting were the Local Number Portability Report and Order and the 14th edition of the Mobile Wireless Competition Report.)

UPDATE: The FCC has now released the Report and Order on WCS wireless broadband and the Second Report and Order on terrestrial repeaters.

 

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The FCC has released the final agenda for its May 20 open meeting, which will begin at 10:30 am in Room TW-C305.

As indicated in its tentative agenda released late last month, the Commission will consider five new agenda items, including three broadband-related items concerning mobile broadband use in the WCS band, reforms to the E-Rate program to make broadband more accessible to schools and libraries, and implementation of Broadband Plan recommendations regarding pole attachments (which we had commented on earlier).

 

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In publicizing his decision to reclassify broadband as a Title II telecommunications service, FCC Chairman Genachowski took some pains to try to reassure the investment community that he was not making any sudden moves that should discourage broadband investment. But despite his efforts to try to limit the impact of his move, he has crossed a Rubicon that should never have been crossed. Broadband internet was never regulated under the Title II rules that grew up for the monopoly “Ma Bell” era, and for good reason.  It was because the Internet was allowed to grow in an unregulated competitive market that attracted massive investment by competing providers and delivered the astonishing broadband throughput that enables all the cool Internet business models. No student of technology should feel comforted when the government decides that technological innovation has gone far enough, and we can stop now and write it into rule. No student of regulatory history should be sanguine about promises to limit the scope of government once it asserts control. Every student of government should be alarmed when the government picks favorites, asserting control over the selected few parties who built the “core” of the Internet to today’s capabilities, to benefit its favored parties at the “edge,” claiming all the while that it is not touching the Internet or free speech, when it is in fact doing both. It has been only weeks since we and Google collectively scolded China for centralized government controls which are anathema to the Internet—and now we are inviting centralized government controls when it favors Google. We should be troubled, too, by some of the reasoning offered. It conspicuously avoids inconvenient facts, such as broadband never having been subject to “Ma Bell” regulation. It seeks to write for itself a new Title of the Communications Act that Congress never adopted, ignoring a Congressional mandate to leave the Internet “unfettered” by regulation. While the Commission will be inviting further comment, matters this profound should not be left to an unelected agency, no matter how bright and well-meaning. If we are to reconstruct communications and media law, we should be turning to Congress. And if we are straying towards a world in which the government decides which speech is free and which is not, we should be turning to the Bill of Rights to remind us of why the government is supposed to limit its reach in the first place.

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Following reports yesterday that Chairman Genachowski was now prepared to assert FCC jurisdiction over the Internet, the FCC released the Chairman's statement proposing a "third way" to regulate the Internet.  As anticipated by earlier reports, the Chairman's statement reveals that the FCC would not seek to impose Title II on Internet services in its entirety.  Rather, the FCC would only recognize the "transmission component of broadband service" as a "telecommunications service."  In addition, the FCC would only apply a "handful" of Title II provisions to Internet networks, specifically, Sections 201 (just and reasonable service and charges), 202 (non-discrimination), 208 (complaint procedures), 222 (customer privacy), 254 (universal service) and 255 (disability access).  In doing so, the Commission would forbear from applying many other sections of the Communications Act that, according to the Chairman, are "unnecessary and inappropriate for broadband access service." 

The "third way" approach is the FCC's attempt to find some middle ground between the status quo (Title I ancillary jurisdiction) and full reclassification of Internet access service as a telecommunications service under Title II.  Indeed, the Chairman admitted that "the extreme alternatives to this light-touch approach are unacceptable," and that "FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition."

The statement follows reports that Representative Waxman and Senator Rockefeller had delivered a letter to the Chairman yesterday indicating their support for the FCC's regulatory oversight of the Internet, which may have helped sway the Chairman to adopt this middle ground.  The statement also follows a letter from Commissioner McDowell to Rep. Waxman providing a brief history of the regulatory classification of Internet access services.  In that letter, Commissioner McDowell emphasized that, following the Supreme Court's Brand X decision upholding the FCC's classification of cable modem service as an information service, the Commission "without dissent" consistently classified broadband services as information services in the context of wireline, powerline, and wireless.

UPDATE: The FCC has also released an accompanying statement from the FCC's General Counsel Austin Schlick that provides the "legal thinking" behind the "third way" approach. 

In addition, Commissioner Copps released his statement on the proposal, in which he admitted that he "would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance."

UPDATE: Commissioners McDowell and Baker have released their joint statement, finding the Chairman's proposal "disappointing" and one that "deeply concerns" them.  Notably, the two Commissioners caution that the proposal will be shot down by the courts as exceeding the FCC's authority absent a "specific mandate from Congress."  If that is the case, the Waxman and Rockefeller letter to the Chairman would suggest that some members of Congress would then try to give the FCC that mandate.

UPDATE: Commissioner Clyburn's statement is now available on the FCC's website, which, not surprisingly, supports the Chairman's proposal.

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The FCC’s May 20, 2010 open meeting is expected to bring the next agency order on pole attachments, accompanied by a further notice of proposed rulemaking asking for additional comments about how the regulations should be revised.  The FCC will have its choice of subjects to tackle when it comes to pole attachments, as there are many proposed changes before the Commission in this area spanning thousands of pages of industry input. 

As we originally advised in 2007, the FCC’s original NPRM on pole attachments asked various questions, including: 

(1) If and how the different rate formulas for cable and telecom attachments should be changed,

(2) Whether ILECs should have the same rights as other communications providers under Section 224,

(3) What new rules for the attachment of wireless antennas to poles should be adopted, and

(4) Should regulations be adopted to enforce stricter application and make-ready timing requirements for communications providers wishing to attach equipment to poles. 

In August of 2009, a group of electric utilities filed a declaratory ruling petition asking the FCC to impose the higher telecom rate on all pole attachments used to provide VoIP. The FCC solicited comments on the petitions and again received thorough feedback. This was followed by months of regular lobbying concerning both the declaratory ruling petition and the NPRM. 

As discussed in our analysis of the Broadband Plan, to promote the national goals of expanding broadband deployment and adoption, the FCC has since indicated preferences for lowering the telecom rate to bring it closer to the cable rate, and for quicker pole access for communications providers, contrary to the proposals of pole owners.  Given this, the May 20 order and FNPRM will likely follow suit, although which of the above issues the FCC will resolve in its order and which it will push to the next round of notice and comment rulemaking remains an unanswered question. 

The Broadband Law Advisor is following these issues closely and will post updates when significant developments occur.

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The FCC has released its tentative agenda for its next open meeting to be held on May 20, 2010.  The agenda identifies five items, two of which are not directly related to the Broadband Plan -- Mobile Wireless Competition Report and Local Number Portability Report and Order.  (Note that the Wireless Report follows the FCC's last wireless competition report, released on Jan. 16, 2009, which relied primarily on 2007 data.  It is not clear from the tentative agenda whether this latest edition will be based on 2008 or more recent data.)

The remaining three broadband-related items are:

(1) WCS-SDARS Report and Order (enabling broadband use in WCS band)

(2) E-Rate NPRM (initiating reforms to E-Rate program)

(3) Pole Attachments Order and FNPRM (ensuring "nondiscriminatory, just, and reasonable access to utility poles")

Like its tentative agenda for the April 21 meeting, the FCC has not provided much more detail than this.  In the meantime, you can refer to DWT's Advisory on the Broadband Plan for further discussion of these upcoming issues and what to expect in these proceedings.

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The Commission has released its agenda for the April 21 open meeting (10:30 am, Room TW-C305).  The agenda mirrors the FCC's earlier tentative agenda released on March 31. 

According to the agenda, the Commission will consider six issues related to the Broadband Plan: (1) NOI and NPRM on USF reform, (2) Order on Reconsidation and FNPRM on mobile roaming arrangements for voice and broadband mobile services, (3) NOI on the availability of smart video devices for MVPD networks (ie, network gateways), (4) FNPRM on changes to the CableCARD rules, (5) NOI on broadband network survivability and security, and (6) NOI on establishing a cybersecurity certification program.  For more analyses on these and other broadband issues, please read our DWT Advisory on the Broadband Plan.

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In case you missed it, the Senate Commerce Committee's hearing with Chairman Genchowski on the Broadband Plan is now available on the Commerce Committee's website.  The FCC has also released the Chairman's prepared statement for the hearing.

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Although the DC Circuit's recent decision in Comcast v. FCC has raised significant questions concerning the Commission's jurisdiction over Internet access (read the DWT Advisory on the case), the Commission has moved forward with releasing a comprehensive schedule that proposes over 60 proceedings, workshops and other efforts to implement the recommendations in the Broadband Plan. The schedule anticipates the release of 16 reports and orders by the end of 2010 alonw, nine of which are expected to be released in the second quarter, in addition to numerous other proposed NPRMs, NOIs and FNPRMs. Some notable issues to be considered this year include pole attachments, TV white spaces, hearing aid compatibility and a clarification on interconnection. The FCC also intends to initiate an NPRM on CableCARD and an NOI on smart video devices in the second quarter of 2010, as well as NPRMs on USF, texting, intercarrier compensation and smart video devices by the end of 2010.

The 2010 schedule and the more comprehensive agenda which discusses the 60+ proposed action items, are available on the FCC’s broadband.gov website.  However, like the FCC's March 31 tentative agenda,  this comprehensive agenda still only offers teasers of what to expect in the upcoming proceedings, so there is not much more to report than what is available. (You can, in the meantime, refer to DWT’s Advisory on the Broadband Plan for more detailed analyses of the issues.)

The Chairman also took this opportunity to respond to reports that the DC Circuit's decision could derail the FCC’s broadband agenda. The Chairman is quoted as saying that the court’s decision “does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals.”  That, of course, remains to be seen -- as we concluded in our DWT Advisory, the court’s ruling likely sets the stage for further rulemakings, court cases and federal legislation to address, and clarify, the FCC’s regulatory role in high-speed Internet access, including a potential showdown on placing the Internet under Title II regulation.

 

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The FCC has released its tentative agenda for its next open meeting on April 21, 2010. The agenda identifies six potential items on the FCC’s plate related to the Broadband Plan. Specifically, the agenda indicates that the FCC plans to initiate the following proceedings at its April 21 meeting:

            (1) USF Reform NPRM and NOI

            (2) Mobile Roaming Order FNPRM

            (3) Network Gateway NOI

            (4) CableCARD NPRM

            (5) Broadband Network Survivability NOI

            (6) Cybersecurity Certification NOI

 

The agenda only provides brief, one-sentence summaries of what these proceedings will entail, so there is not too much to say for now. Please refer to DWT’s Advisory on the Broadband Plan for more further discussion of the Plan’s details and what you can expect in these proceedings.

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The U.S. Senate Committee on Commerce, Science, and Transportation has rescheduled its review of the National Broadband Plan to April 14, 2010.  This hearing was previously scheduled for Tuesday, March 23, 2010. Currently, Chairman Genachowski is the only witness scheduled to appear.  More meeting information is available on the Commerce Committee's website

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The FCC has made available the Chairman’s and the Commissioners’ prepared statements for the March 25 hearing before the House Committee on Energy and Commerce, Subcommittee on Communications, Technology and the Internet.

• Chairman Genachowski
• Commissioner Copps
• Commissioner Clyburn
• Commissioner Baker
• Commissioner McDowell

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The Senate Commerce Committee cancelled its hearing on the National Broadband Plan, which was originally scheduled for March 23, most likely due to the healthcare debates.  Reports indicate that the Committee will try and reschedule before the Easter break. We will post the new date as soon as it is released.

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By Robert G. Scott, Jr. and James M. Smith

On March 16, 2010, the Federal Communications Commission (FCC) presented to Congress its long-anticipated National Broadband Plan, as mandated by the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Thirteen months in the making and weighing in at nearly 400 pages, “Connecting America: The National Broadband Plan” (the “Plan”) has occupied a disproportionate share of the FCC’s time and energy for the last year and, given the breadth and sheer quantity of its analysis and proposals, it will continue to be the single greatest focus of the agency for years to come.

Section 6001 of the Recovery Act, signed into law by President Obama on Feb. 17, 2009, less than a month after his inauguration, mandated the dispersal of $7.2 billion through grant and loan programs to expand broadband deployment to, and adoption by, unserved and underserved areas and vulnerable populations. Those programs—the Broadband Technology Opportunities Program (BTOP) administered by the Department of Commerce and the Broadband Initiatives Program (BIP) administered by the Department of Agriculture—are underway, and by law, all of these grants must be awarded by September 30, and the projects completed within three years thereafter.

But Subsection 6001(k) of the Recovery Act also directed the FCC to submit to Congress a National Broadband Plan for the longer term, to pick up where these broadband deployment and other short-term projects leave off “to ensure that all people of the United States have access to broadband capability and [to] establish benchmarks for meeting that goal.”

Congress ordered the FCC to include (1) “analysis of the most effective and efficient mechanisms for ensuring broadband access” by all Americans, (2) “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure” by the public, (3) “an evaluation of the status of deployment of broadband service, including progress of projects supported by the [BTOP and BIP] grants,” and (4) “a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”

Continue reading DWT"s Analysis of the National Broadband Plan.

Download the National Broadband Plan. 

You can also directly access DWT's analysis of specific topics under the National Broadband Plan here:

• Broadband Deployment
• High-Cost Universal Service
• Intercarrier Compensation
• Mobile Broadband Services and Spectrum Initiatives
• Infrastructure Deployment -- Poles, Conduits, and Rights of Way
• Navigation Devices
• Privacy Advisory
• Cybersecurity
• E-Rate Upgrade
• Broadband Adoption
• Accessibility (Persons with Disabilities
• Smart Grid
• Consumer Disclosure
• Broadband Availability in Tribal Communities
• E-Health Records

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