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 here):

• 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.

Read our complete advisory here.