The Commission has released the final text of the Wireline R&O and Wireline FNPRM as well as the final text of Replacement Utility Poles R&O. Please see our advisory discussing the items as they were presented and modified at the Commission’s November 16, 2017, meeting as well as our earlier advisory that analyzed the drafts circulated by the Commission in October in advance of the November meeting.
The final text of the Replacement Utility Poles R&O, which was released the day after the meeting, changed from the draft in two material respects (in bold) that were anticipated in our post-meeting advisory. Replacement communications poles are still deemed exempt from historic preservation review if they are no more than 10 percent or 5 feet taller and placed in essentially the same location as the original or no more than 10’ away. But while the draft item noted that there could be no new ground disturbance with the replacement pole “either laterally or in depth” “outside previously disturbed areas,” the final text moves the definition of “ground disturbance” to the paragraph allowing the new pole to be set up to 10 feet away, which would presumably allow for deeper setting of poles as required, for example, with a 5 foot taller pole, and “disturbance” of the ground up to 10’ away from the original pole. A literal reading of the prohibition on “additional ground disturbance” though could still cause some confusion.
The text of Wireline R&O and Wireline FNPRM, released November 29, also changed, to incorporate recent ex parte submissions and recommendations made by the Broadband Deployment Advisory Committee (BDAC) in its examination of several issues raised in the initial NPRM released in April, 2016, as well as substantively. Specifically, the final draft includes substantial revisions to the section in the FNPRM addressing overlashing and drop poles. First, the Commission deleted its request for comment on how utilities treat “service drops” – i.e., connections from an attacher’s facilities on the poles to the customer’s location. At the same time, it deleted its requests for comment concerning how overlashing is performed by attachers and treated by utilities, whether to limit overlashing to “new wires and cables,” and if a new regulatory approach was warranted. Instead, the Commission now seeks limited comments on its original suggestion that it “codify[ ] its longstanding precedent regarding overlashing,” adding that overlashing “has substantial competitive effects, ultimately leading to greater deployment and lower prices for consumers,” and “ that any concerns with overlashing should be satisfied by compliance with generally accepted engineering practices.” This change in direction is helpful to attachers who, the Commission noted, have been subject to pole owners’ advance approval requirements despite the Commission’s long-standing practice (upheld in the courts) that “neither the host attaching entity nor the third party overlasher must obtain additional approval from or consent of the utility for overlashing other than the approval obtained for the host attachment.”
Comments on the FNPRM are due January 17, 2018 and Replies are due February 16, 2018.