The Need for Speed 2: FCC Releases Final NPRM to Accelerate Broadband Deployment

On April 21, 2017, the Federal Communications Commission (“Commission”) released its final version of the combined Notice of Proposed Rulemaking, Notice of Inquiry and Request for Comment  in the matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Deployment (“Final NPRM”),  adopted at the FCC’s April 20 Open Meeting. The Final NPRM, designed to facilitate and accelerate the deployment of next generation broadband networks, generally tracks the Commission’s March 30 draft NPRM (see our April 3 Advisory), with only a few material exceptions. The Commission made the following changes in the Final NPRM concerning pole attachments (copper retirement issues are not addressed in this Advisory):

• Publicly Available Pole Attachment Data. In a new Paragraph (27), the Commission asks whether “making more information publicly available regarding the rates, location, and availability of poles also could lead to faster pole attachment timelines.” The Commission seeks comment on the types of data that is currently publicly available and asks whether pole owners should be required to make pole rates available online or if the Commission should facilitate the creation of a centralized clearinghouse of pole attachment rate information.
• Municipal Utilities, Coops, and Railroads. In a new Paragraph (30), the Commission notes that some providers encounter difficulties in accessing poles, conduit and rights of way owned by municipalities, cooperatives and railroads, all of whom are exempt from Section 224. The Commission seeks comment on how it might expedite access to these heretofore unregulated entities’ infrastructure as well as information with respect to these entities’ cost and rate information and whether increased transparency overall might be useful in pole attachment contract negotiations. 
• Access to Conduit. In a new Paragraph (31), the Commission specifically asks for suggestions on ways to improve access to utility underground conduit through making more information available to potential attachers, including location, cost, and timing of utilities digging trenches.
• Access Complaint Resolution “Shot Clock.” The Commission maintains its proposal to establish a 180-day shot clock for the Enforcement Bureau to resolve a pole access complaint (47), deletes its suggestion that the shot clock would be an “informal target” and asks if a shorter timetable of “150 days, 120 days, 90 days, or an even shorter timeframe” would be reasonable. The Commission maintains its questions concerning whether the shot clock should apply to non-access pole complaints (51) (i.e., complaints about rates, terms and conditions).  The Commission also removed an earlier proposal requiring certain pre-complaint procedures (50) and instead seeks comment.
• Reciprocal ILEC Access to CLEC Poles. While the Commission maintains its request for comment on whether incumbent LECs could also demand access to competitive LEC poles, it softened its proposed decision (54) that sections 251 and 224 be read to avoid conflict, and instead seeks comment on whether they can be read to create a reciprocal right of access.

The Commission also made some significant changes to the NOI on Preempting State and Local Laws Inhibiting Broadband Deployment.  

• Excessive Fees. The NOI softens its view (104) on whether Section 622(i) would prevent the Commission from enacting rules to address “excessive” cable franchise fees, and now seeks comment on whether such franchise fees could be taken into account when determining whether other types of fees assessed under Section 253 are excessive. The Commission specifically asks (105) if there are “circumstances in which it may be excessive to require the provider to pay additional fees in connection with the introduction of additional services.”
• Section 253 – Municipal Utilities and non-FCC states. In an expanded view of possibly using Section 253 authority against municipalities, the Commission asks (108) if it could it could “use its authority under Section 253 to regulate access to municipally-owned poles when the actions of the municipality are deemed to be prohibiting or effectively prohibiting the provisions of telecommunications service.” Moreover, it then asks if it could also use its Section 253 authority “in states that regulate pole attachment under Section 224(c).” 
• State and Local Collaboration. The Commission added language to assuage concerns over its relations with state and local governments. For example, the Commission asks (111-112) what actions it can take to “work with states and localities to remove the barriers to broadband deployment,” including by way of the newly formed Broadband Deployment Advisory Committee. It also asks to what extent it should “rely on collaborative processes to remove barriers to broadband deployment before resorting to preemption.”

Comments will be due 30 days after publication in the Federal Register.