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The Invisible Proceeding – Removing Barriers to Broadband Deployment

Posted by Andrew Regitsky

Jul 28, 2017 10:00:00 AM

broadband_globe.jpgTuesday, your faithful scribe made the ultimate sacrifice – sitting through hours of C-Span’s coverage of the U.S. House of Representatives grilling the FCC about various topics in the latest Congressional oversight hearing.  As to be expected, the most popular topic among the Congressmen and women was the proposed net neutrality rules.  A close second, however, was the Commission’s efforts to bring broadband to rural Americans.  In fact, for Representatives from states that are heavily rural, this was clearly issue number one. 

Perhaps because this blog originates from heavily-wired Northern Virginia, we have tended to play down broadband availability as a problem.  That ends today.  The FCC is poised to issue an order in Docket 17-84, “Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment,” and it’s time we gave this issue the attention it deserves.

The Commission began this proceeding by released a Notice of Proposed Rulemaking (NPRM) on April 21, 2017, with the goal of:

[B]etter enabl[ing] broadband providers to build, maintain, and upgrade their networks, which will lead to more affordable and available Internet access and other broadband services for consumers and businesses alike. Today’s actions propose to remove regulatory barriers to infrastructure investment at the federal, state, and local level; suggest changes to speed the transition from copper networks and legacy services to next-generation networks and services; and propose to reform Commission regulations that increase costs and slow broadband deployment. (Docket 17-84, at para. 2).

Here are the major proposals the Commission makes to maximize broadband deployment:

A. Pole Attachment Reforms

The agency proposes reforms which would reduce pole attachment costs and speed access to utility poles, including:

Streamlining and accelerating the established Commission timeline for processing pole attachment requests, which currently takes up to five months.

Reducing pole attachment “make-ready” costs and make these costs more transparent.  The Commission notes that make-ready charges must be just and reasonable under Section 224(b)(1) of the Act.  Currently, however, these charges are not subject to any mandatory rate formula set by the Commission.  Therefore, it seeks ways to reduce make-ready charges and “encourage utilities, existing attachers, and new attachers to resolve more make-ready pole attachment cost and responsibility issues through private negotiations.” (Id., at para. 32).

Requiring that in all cases the “just and reasonable rate” under Section 224(b) for ILEC attachers should presumptively be the same rate paid by other telecommunications attachers - a rate calculated using the most recent telecommunications rate formula.  This would eliminate the numerous disputes regarding whether ILEC rates are consistent with Section 224(b) of the Act.

Establishing a 180-day “shot clock” for Enforcement Bureau resolution of pole access complaints filed under Section 1.1409 of the Commission rules.

B. Copper Retirement and the Network Change Notification Process

Section 251(c)(5) of the FCC’s rules require ILECs to provide public notice of network changes, including copper retirement, that would affect a competing carrier’s performance or ability to provide service.  Therefore,  

[t]he Commission proposes revisions to our Part 51 network change disclosure rules to allow providers greater flexibility in the copper retirement process and to reduce associated regulatory burdens, to facilitate more rapid deployment of next-generation networks. We also seek comment on streamlining and/or eliminating provisions of the more generally applicable network change notification rules.  (Id. at para. 56).

Specifically, the Commission proposes to permit ILECs to retire copper with a 90-day network notification.  For years, 90-days was the required window until the Commission doubled it in the 2015 Technology Transitions Order. 

The Commission also makes the following proposals:

Requiring an incumbent LEC to serve its notice only to telephone exchange service providers that directly interconnect with the incumbent LEC’s network, as was the case under the predecessor rules, rather than “each entity within the affected service area that directly interconnects with the incumbent LEC’s network. 

Providing greater flexibility regarding the time in which an incumbent LEC must file the requisite certification.

Reducing the waiting period to 30 days where the copper facilities being retired are no longer being used to serve any customers in the affected service area. (Id., at para 63).

Finally, the Commission proposes eliminating Section 51.325(c) of its rules, which prohibits ILECs from disclosing any information about planned network changes to affiliated or unaffiliated entities prior to providing public notice.

C. Streamlining the Section 214(a) Discontinuance Process

Section 214(a) requires carriers to obtain authorization from the Commission before discontinuing, reducing, or impairing service to a community or part of a community.  The Commission notes that carriers complain that exit approval requirements are extremely intrusive.  Therefore, it proposes targeted measures to shorten timeframes and eliminate unnecessary process encumbrances that force carriers to maintain legacy services they seek to discontinue.  Specifically, the Commission proposes to:

Reduce the period the industry can file comments about discontinuing a service to 10-days.

Automatically grant all applications seeking to grandfather low-speed legacy services on the 25th day after public notice unless the Commission notifies the applicant that such a grant will not be automatically effective.

D. Prohibiting State and Local Laws Inhibiting Broadband Deployment

The Commission proposes to use its authority under Section 253 of the Act, to promote the deployment of broadband infrastructure by preempting state and local laws that inhibit broadband deployment.  Specific proposals include:

Prohibiting state or local moratoria on market entry or the deployment of telecommunications facilities.

Adopting rules to eliminate excessive delays in negotiations and approvals for rights-of-way agreements and permitting for telecommunications services.

Adopting rules prohibiting excessive fees and other costs that may have the effect of prohibiting the provision of telecommunications service.

Adopting rules prohibiting unreasonable conditions or requirements in the context of granting access to rights-of-way, permitting, construction, or licensure related to the provision of telecommunications services.

Adopting rules banning bad faith conduct in the context of deployment, rights-of-way, permitting, construction, or licensure negotiations and processes.

The industry comment period for this proceeding ended on July 17, 2017 when reply comments were filed.  As is the norm with this FCC, ILECs agreed with virtually all the proposals.  However, almost all other commenters were critical of the Commission.  For example, state commissions were extremely unhappy with the Commission’s proposals to usurp state rules under Section 253, while associations that represent telecommunications service users gave a thumb down to any attempts to shorten the interval in which ILECs could discontinue services.  Almost all commenters (other than ILECs) were critical of the agency’s pole attachment proposals.

Such industry disagreement puts the Commission in a tough position.  It is under extreme pressure from Congress to accelerate broadband deployment.  However, as usual, it may find even its most well-intentioned proposals facing legal challenges, since that is what our industry has evolved (or devolved) to.  How sad for the public waiting (and waiting) for broadband!   

By Andy Regitsky, CCMI

Telecom Under Trump

Topics: regulatory updates, FCC, Broadband

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