FCC Approves Wireline and Wireless Infrastructure Orders and Further Wireline Rulemaking Notice at November Open Meeting

At its November 2017 Open Commission Meeting today, the FCC voted to adopt a Report and Order, Declaratory Ruling, and Further Notice of Proposed Rulemaking in its wireline broadband deployment docket (“Wireline R&O” and “Wireline FNPRM”) (FCC News Release) as well as a Report and Order in the wireless broadband deployment docket (“Replacement Utility Poles R&O”) (FCC News Release). While the text of these items has not yet been released, DWT summarized previously-released public drafts. As highlighted below, the items changed slightly from the October 26 drafts based on stakeholder input.

Wireline R&O

The Wireline R&O and FNPRM was approved on a 3-2 party line vote over dissent from Commission Democrats regarding changes to the copper retirement, network change notification, and Section 214(a) discontinuance process. The item also streamlines certain pole attachment rules. It will codify existing policy prohibiting the inclusion in pole rent of capital costs that have already been recovered from attachers through make-ready charges; establish a 180-day shot clock for Enforcement Bureau resolution of pole attachment complaints; and create a reciprocal system of infrastructure access providing incumbent LECs guaranteed access to poles owned or controlled by competitive LECs.

One possible ambiguity worth note is that the Commission did not specify during the meeting whether the shot clock for resolution of complaints would be limited to complaints regarding denial of pole access, as originally worded in the draft order, or whether the shot clock would be expanded to cover all complaints, as some parties had advocated. The Commission had also raised the issue of a shot clock on complaint resolution in a separate “pole procedures” NPRM. Accordingly, the final text of this item will need to be reviewed upon release.

Wireline FNPRM

The Wireline FNPRM requests comment on further modifications to pole attachment rules. One notable change from the initial October 26 draft came from Commissioner Carr, who thanked his colleagues for incorporating an edit into the FNPRM that would “codify our existing precedent that permits overlashing as of right,” which he said would help drive fiber deployment deeper in networks without the need for “costly and time-consuming regulatory approvals.”

Replacement Utility Poles R&O

The FCC unanimously voted to eliminate the historic preservation review process for replacement utility poles, provided the replacement poles meet certain criteria. Based on feedback received after releasing the initial draft, the Commission changed the criteria slightly to allow for greater flexibility related to where the poles are placed and how tall they can be. As updated, a replacement pole need not undergo historic preservation review, provided that (changes in bold):

1. The original pole itself is not historic;
2. The replacement pole will be placed in the same location as the original or no more than 10’ away and causes no new ground disturbance;
3. The replacement pole will be no more than 10 percent or 5’ taller than the original, whichever is greater; and
4. The replacement pole will have an appearance consistent with the original.

The Replacement Utility Poles R&O also consolidates rules for historic preservation review procedures, currently in a variety of rules and orders, into one rule. 

Update: We have provided an update on this advisory on the Broadband and Deployment law advisor blog. View it here.

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