The Federal Communications Commission today approved new rules that could let Google Fiber and other new Internet service providers gain faster access to utility poles.
The FCC’s One Touch Make Ready (OTMR) rules will let companies attach wires to utility poles without waiting for the other users of the pole to move their own wires.
Comcast urged the FCC to “reject ‘one-touch make-ready’ proposals, which inure solely to the benefit of new entrants while unnecessarily risking harm to existing attachers and their customers.”
FCC Chairman Ajit Pai rejected this argument, saying that startups are unnecessarily delayed when they have to wait for incumbent ISPs before hanging wires.
For a competitive entrant, especially a small company, breaking into the market can be hard, if not impossible, if your business plan relies on other entities to make room for you on those poles. Today, a broadband provider that wants to attach fiber or other equipment to a pole first must wait for, and pay for, each existing attacher to sequentially move existing equipment and wires. This can take months, and the bill for multiple truck rolls adds up. For companies of any size, pole-attachment problems represent one of the biggest barriers to broadband deployment.
One Touch Make Ready could also help speed deployment of cellular broadband, because carriers intend to place small cells on utility poles as they upgrade from 4G to 5G, commissioners said. Verizon supported OTMR, saying that the pole-attachment process is becoming more important as carriers add more 4G equipment and upgrade to 5G.
But the FCC changes won’t solve the problem of slow deployment everywhere. FCC pole-attachment rules apply only to privately owned poles, as opposed to poles owned by municipalities and cooperatives. The FCC rules also don’t apply in states that have opted out of the federal regime in order to use their own methods of regulating pole attachments. Twenty states and Washington, DC, have previously opted out of the federal pole-attachment rules, while pole attachments in the other 30 states are governed by FCC rules.
The rule change won’t necessarily spur more Google Fiber deployment, since the ISP has other financial problems and has largely stopped expansion of fiber into new cities.
Comcast and AT&T fought local OTMR rules
Some local governments had already imposed their own One Touch Make Ready rules, with mixed success. Nashville’s OTMR ordinance was thrown out by a court, handing a victory to AT&T and Comcast. But AT&T lost a similar court case against Louisville and Jefferson County in Kentucky.
AT&T said it supported OTMR at the FCC level but asked for limitations that would have slowed the process and made it more expensive, such as a requirement that new attachers pay for engineering analyses when “overlashing” wires. The FCC rejected that suggestion, saying that “utilities may not use advanced notice requirements to impose quasi-application or quasi-pre-approval requirements, such as requiring engineering studies.”
Still, the FCC is adopting One Touch Make Ready only for “simple attachments.” A shortened version of the old process will apply to attachments that are “complex,” meaning they are likely to cause outages or damages. A shortened version of the old process will also apply on the upper parts of a pole, where high-voltage electrical equipment is kept.
Previously, existing pole users had to perform make-ready work within 60 days (or within 90 days for work on the upper parts of a pole). Those timelines are being shortened to 30 days and 60 days. If existing pole users don’t meet their deadlines, new attachers will be allowed to perform all the work themselves.
All three Republican commissioners voted for the rule changes, while Democrat Jessica Rosenworcel approved the plan in part and dissented in part. Rosenworcel said she supports OTMR but said the commission’s plan has too much ambiguity, potentially leading to “disputes about just what deployments qualify for one-touch make-ready procedures.”
Rosenworcel also criticized the FCC for not mandating that utility pole work be performed by union workers. She said that the decision “threatens to invalidate private contracts negotiated between existing attachers and union workers.”
The FCC’s majority disagreed, saying in its decision that “New attachers that are not parties to a CBA [collective-bargaining agreement] have no obligations under such a CBA. It is the new attacher’s contractor that will be performing the make-ready work, so the CBA is not implicated.”
Despite today’s vote, the FCC hurt the cause of faster pole attachment when it deregulated the broadband industry last year, according to Electronic Frontier Foundation (EFF) Legislative Counsel Ernesto Falcon. The FCC’s anti-net neutrality vote removed the classification of broadband as a common carrier service—that now-repealed classification “ensure[d] that every broadband provider has the legal right to gain access to many of the poles that run along our roads,” the EFF wrote last year.
“I wonder if the anti-net neutrality crowd understands that Title II’s regulation of poles and conduit is now limited to telephone/cable TV thanks to [the] Restoring Internet Freedom Order,” Falcon tweeted today. “The ISPs that are broadband-only will not get the benefit, thus limiting its positive impact.”
As Falcon mentioned, the FCC’s pole-attachment processes provide access to cable TV providers and telecommunications carriers, but Pai’s FCC determined that broadband isn’t a telecommunications service in order to kill the Obama-era net neutrality rules.
FCC preempts some local rules
The OTMR rule change was passed as part of a larger rulemaking. That rulemaking also says that “the FCC will preempt, on an expedited case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster.”
The rulemaking also determines that federal law preempts state and local moratoriums on the deployment of telecommunications services. The FCC defined moratoriums as “both express moratoria and moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits.”
Rosenworcel said that the “legal analysis here is seriously lacking,” and she said the preemption could have negative real-world consequences. She continued:
Take Myrtle Beach, South Carolina, just for example. It’s a coastal community. There are laws that limit the ability of private entities to dig up roads during certain times of the year, namely during the height of hurricane season and during peak tourist times. These rules are limited in time and scope. They are informed by local traffic and public safety authorities. They are reasonably related to the police powers of municipalities. And yet, going forward, three unelected officials sitting here today preempt these local policies because they believe Washington knows better.
Republican Commissioner Michael O’Rielly blamed cities and towns for “outrageous practice[s]” that prevent broadband deployment. “Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums, which is just another word for ‘mindless delay’ or ‘extortion attempts to generate some local officials’ wish list,'” O’Rielly said.
As an example, O’Rielly criticized cities and towns for requiring telecom providers to contribute to “digital inclusion funds” that boost residents’ access to technology. O’Rielly said these are “political slush funds and raise the cost of service for consumers.”