FCC BDAC Removing Regulatory Barriers

One of the sub-committees created by the FCC’s as part of its Broadband Deployment Advisory Committee (BDAC) effort looked at Removing State and Local Regulatory Barriers to broadband deployment. Here is a preliminary draft of their report, which is probably close to the final report. As noted in other blogs on the BDAC, the FCC is not obligated to address any of the issues identified by the sub-committee.

It’s an interesting document in that the sub-committee has made a detailed list of all of the common transgressions imposed by states and localities that have slowed broadband or wireless deployments in the past. It serves as a great primer of the kind of issues that a new network deployment might face. But to be fair, that was the mandate given to this group.

I have zero problems with the list of deployment issues and it seems thorough and accurate. But I don’t think the proposed solution is realistic. They basically recommend that the FCC should preempt states and localities for anything to do with broadband or wireless deployment. That’s not a surprising recommendation since the group was asked to list regulatory hurdles that should be eliminated. But there are numerous reasons why having the FCC preempt all local control of rights-of-ways connectivity is a bad idea. One reason I hate the idea is that this is at the top of the wish list for every DC telecom lobbyist for the big ISPs – and they seem to be getting their way too much these days.

With that said, the complaints listed are valid and I’ve seen many of these issues arise during new network deployments. I’ve worked with a number of communities that have processes or ordinances that are a barrier to broadband, and I always advise them to fix such problems if they are hoping for more broadband deployment in their community. But if I’ve learned anything from working around the country it’s that communities differ significantly, and I don’t favor a one-size-fits-all solution from the FCC that would take everything to do with rights-of-way, permitting and other issues out of the hands of local government.

But this document creates a great cautionary tale for cities, counties and states. Almost every sized community talks about having better broadband or about having more broadband competition. Many cities have looked at their various processes and rules and streamlined or eliminated rules that would be a barrier for somebody building fiber. Any community that is hoping to attract fiber construction should be proactive and look at these issues now. It’s quite possible that prospective fiber builders have investigated cities and taken them off of their list of potential markets without even talking to the cities.

Some of the issues discussed by this document can be real killers of fiber deployment. Some good examples include:

  • Permitting processes that are onerous, require a lot of paperwork and which have issues that make them hard to use, such as only being effective for a few weeks after issuance.
  • Other city practices that slow down construction. This could be burdensome traffic control processes, slow inspection of finished work, slow marking of existing utilities. One of the big killers for larger cities is an unwillingness to hire enough temporary city staff to process the volumes of paperwork associated with a large fiber project.
  • One interesting issue pointed out is that cities often don’t charge all utilities consistently. They might try to charge more or extract concessions from a new fiber provider that they don’t expect of existing utilities.

The sub-committee also addressed wireless deployments. While many cities have policies for large cell tower deployments, most cities have not developed any processes for dealing with the myriad smaller cell sites and 5G transmitters that carriers are going to want to deploy over the next decade. I would hope that considering the issues listed in this draft report will prompt more cities to develop friendlier policies and not wait until they have requests for connections and rights-of-way. I’ve talked to many cities who have said that they wish they had thought harder about fiber deployment before a network was built – and the time is now to get ahead of the curve for wireless deployments.

This document also ignores one of the biggest issues in the industry. The big ISPs all want rules that make it easier for them to build fiber or deploy new wireless devices – but they don’t necessarily support rules that make it easier for new competitors to build against their existing networks. I’ve repeatedly observed some of the big carriers like AT&T or Verizon argue for different rules on the local level than what they supposedly support at the national level. It will be interesting to see where these companies stand if the FCC tries to implement some of the proposed solutions.

FCC BDAC on Competitive Access

Today I discuss the draft proposal from the FCC’s Broadband Deployment Advisory Committee (BDAC) sub-committee that is examining competitive access. This draft report to the FCC is not yet final, but it details the issues and discussions of the group and is likely close to the finished work product.

This sub-committee is tackling some of the hardest issues in the industry. The pole attachment process has been a costly roadblock to implementation of new networks since the Telecommunications Act of 1996 allowed access of competitors to poles, ducts and conduits. The report considers a number of different issues:

The FCC Complaint Timeline. The FCC currently has no rules that require the agency to respond to a complaint from a carrier having problems connecting to poles. This deters attachers from making complaints since there is no guarantee that the FCC will ever resolve a given problem. The subcommittee recommends that the FCC adopt a 180-day ‘shot-clock’ to require rulings on attachment issues. The sub-committee is also recommending that the FCC react within 180 days to complaints about attachment rates and fees. The group wants to stop pole owners from capturing some capital costs twice. They claim some pole owners capitalize the cost for pole make-ready, which is paid by new attachers, and then build these costs again into the base pole attachment fees.

One Touch Make Ready. The sub-committee looked in depth at make-ready costs – the costs of a new attacher to get onto a pole. They are making numerous recommendations:

  • They want a simplified one-touch pole attachment process that streamlines the application, permitting and make-ready process. They would like to see all attachers agree to use only one contractor to speed up the make-ready process. They are also asking that the various parties agree to one contractor that is allowed to work in the power space, which is needed for some wireless attachments. They want make-ready rules to be uniform across all jurisdictions.
  • They want to require that the pole owner and all existing atachers be present during the feasibility survey, rather than having to coordinate visits with each existing attacher.
  • They want to speed up the time lines for reviewing and amending attachment requests.
  • They want to strengthen the FCC’s rules for ‘self-help’ which allow work to proceed when existing attachers don’t respond to attachment requests.

Fees and Rates. The sub-committee does not want the FCC to create a new pole attachment rate for a broadband connection – something they fear might be considered due to removing Title II regulation of broadband. They want ‘broadband’ attachments to be the same rate as telecom or cable attachments.

Recommendations for Other Infrastructure. The sub-committee would like to see an infrastructure database that identifies the owners of common telecom infrastructure like poles, ducts, trenches, street lights, traffic lights, towers, water towers, bridges, etc. This should include public buildings that might be useful for placement of 5G infrastructure. Knowing such a database will be expensive they have suggested ways to fund the effort.

Jurisdictional Issues. They want to see processes that streamline the jurisdictional differences for projects that crosses multiple local jurisdictions.

Use of Subsidized Infrastructure. Currently infrastructure built to serve schools or rural health care facilities is restricted to those specific uses if subsidized by the E-rate or Healthcare Connect Fund. The sub-committee wants such facilities to also be usable for other commercial purposes.

It’s hard to guess how much traction some of these recommendations might get at the FCC. Some of the jurisdictional issues, as well as the creation of an attachment database probably require Congressional action to solve. And some of the biggest ISPs like AT&T are both pole owners and fiber builders and it’s hard to know where they will support issues that will help them but which will also make it easier for their competitors. It’s also worth noting that the FCC is under no obligation to respond to the BDAC process. However, this particular sub-committee has taken a logical approach to some of the biggest problems with attachments, and these proposals deserve a hearing.

FCC BDAC Model State Code

This is the first in a series of blogs on the progress being made by the FCC’s Broadband Deployment Advisory Committee. The FCC created five working groups to make recommendations on rule changes needed to better promote broadband deployment. Today’s blog discusses the subcommittee considering model codes for states.

This draft report is roughly in the form of legislation recommended for adoption by states. This report largely reads like a wish-list of regulations wanted by the big ISPs. There are a few ideas in here that have been widely discussed for years along with some new ideas. I could write ten pages talking about the nuances of this draft report, but here are some of the highlights:

  • State Goals. The goals are innocuous and have a state pledging to promote broadband everywhere including in rural areas. But there is one interesting twist over the existing goals that a number of states have adopted that defines broadband as bandwidth adequate to meet the person, business, educational and economic needs of the state. This differs from current goals that often set a specific download speeds as the goal.
  • Statewide Franchising. The proposed regulations would do away with all local franchising and establish one statewide franchise authority. This is something that a number of states have already adopted. The proposed regulations have more teeth than most existing such rules and eliminate a locality from imposing any kind of restrictions on a broadband service provider.
  • Access to Government Assets. The rules would create a centralized Network Support Infrastructure Register in which local governments would have to list every asset that might be of use for broadband providers. This would include rights-of-ways, towers, buildings, etc. Governments would then have to provide access to these assets to any communication provider at affordable rates set by the state.
  • One Touch Make Ready. The rules contain one of the many variations on one-touch make ready for attaching to poles. These rules allow for short time frames for existing wire owners to comply with an attachment request before allowing an attacher to connect to poles using pre-approved contractors.
  • New Hoops for Municipal Broadband Infrastructure. Cities and counties must jump through a lot of hoops before building any broadband infrastructure. For example, before building a fiber to connect government buildings they would have to seek permission of the State through a process called a Minimum Network Specification Notice. Commercial providers would be able to intervene in this process and offer to build some or all of the desired infrastructure. This would largely stop municipalities from building private networks to serve their own needs and would let ISPs instead build the facilities and bill the municipalities for the use.

Municipalities would also have to jump through a series of hoops before being able to build a broadband network to serve customers. For example, a city would have to prove that what they propose could not be done better through some kind of public-private partnership or by a commercial provider. These kinds of restrictions have been pushed for years by ALEC, and where they are enacted they effectively stop municipalities from creating a broadband business.

Any broadband facilities built by a municipality would have to be made available on a cost-plus lease basis to a service provider. This would include dark fiber, towers, and space inside of government buildings.

  • Preempt Building Owner Rights. The rules require that building owners must provide access for communications providers to create a ‘network access point’ inside or outside of a building.
  • Priority for Wireless Infrastructure. The proposed rules would prohibit localities from restricting the deployment in any way of wireless towers or small cell site.
  • Paying for Rural Broadband. The report supports the idea of State Universal Service Funds and a new Rural Broadband Deployment and Maintenance Fund that would be used to support rural broadband service providers.

In summary, this represents the same wish list we’ve seen from the big ISPs and from their lobbying arms like ALEC. While many states have adopted some portion of these rules, nobody has adopted them all. It’s fairly obvious that the recommendations from this sub-committee are being driven by the big ISPs.

It’s worth noting that these sub-committees are advisory and the FCC doesn’t have to do anything with their recommendations. In this particular case, since these are proposed state rules the FCC would not have the authority to implement most of these recommendations, so these are really a ‘model’ set of regulations that the big ISPs would love to see enacted at the state level. However, by generating this through the FCC process these recommendations will be touted as being blessed by the FCC.

Local, State or Federal Regulation?

Last week the FCC clarified its intentions for the Broadband Deployment Advisory Committee (BDAC). This group was tasked with exploring a wide range of topics with the goal of finding ways to lower barriers for broadband deployment.

The BDAC was divided into subgroups with each examining issues such as speeding up access to poles and conduits, or how to streamline the morass of local regulations of such things as rights-of-ways that can slow down fiber deployment.

There has been a huge amount of buzz in the industry since the expectation has been that the FCC would act to impose federal rules that ‘fix’ some of the most important impediments to competition. That expectation was bolstered on several occasions by speeches made by new FCC Chairman Ajit Pai that hinted that the FCC was willing to take steps to lower barriers to broadband deployment.

But FCC Senior Counsel Nicholas Degani just clarified that the FCC’s intentions are not to create new regulations, but rather to create ‘model codes’ that they hope that cities and states around the country will use to make it easier to deploy broadband.

We’ll have to wait a while to see if the FCC really can refrain from issuing new regulations. Chairman Pai has said many times that he is in favor of ‘light touch’ regulation and the agency is in the process of relaxing or undoing many of the regulations from the past. But one thing that I have repeatedly seen from regulators over the years is that they love to regulate. It will take major restraint for the FCC to not try to ‘fix’ the many problems that the BDAC is highlighting. This will be the ultimate test to see if they really are anti-regulation.

Frankly, some of the issues that the BDAC has been exploring cry out for some sort of regulatory relief. For example, in some parts of the country it takes so long and is so expensive to get onto poles that it’s nearly impossible to implement a business plan that needs pole access. And it is extremely frustrating for a national company that deploys fiber everywhere to work with local rules that vary widely from city to city.

Part of what is pushing this effort is the fact that everybody expects a massive investment in new fiber over the next decade as fiber is built to bring bandwidth to homes and as we deploy 5G networks. Everybody recognizes that there are impediments that add delay costs to those deployments.

At the same time that the FCC has been looking at the issues there are numerous state attempts to create state regulatory rules to fix some of these problems. A number of states have already created regulations that are aimed at making it easier to do things like get access to poles. But state efforts vary widely in the motivation for new regulations. There are some states that are looking hard at imposing statewide rules that balance the needs of competitors, network owners and municipalities.

But there are other attempts prompted by the big cellular companies and ISPs to run roughshod over the rights of pole owners and municipalities. These efforts are being driven, in part, by model legislation developed by ALEC and funded by the big companies. Many of these rules are attempting to set low nationwide rates for pole attachments and also to force streamlined timelines that ignore local conditions.

Finally, there are efforts being made by many cities to make it easier to deploy broadband. Most cities understand that they need fiber everywhere to remain competitive with other cities. Yet these efforts are often ineffective because cities, by definition, have a lot of stakeholders to satisfy. When a City looks at changing local rules they end up have to give a lot of weight to issues such as the environment, aesthetics, historic preservation, safety, unions and others that make it impossible to create rules that favor fiber deployment over these other concerns.

Fixing these issues is a problem that may never find the right solution. We live in a country where cities across the board have been granted varying degrees of controlling things like rights-of-way that affect network deployments. Fiber deployment is not the first issue that has come along that has pitted federal, state and local regulators against each other when trying to solve the same problems. It’s not unlikely that if either the FCC or the states try to strongarm cities that we will see a pile of lawsuits challenging any egregious decisions. And that just leads to delays since disputed laws don’t go into effect. I hope we can find solutions that don’t lead to those lawsuits, because the worst kind of regulation is one that is in limbo in some court for years. Nobody is likely to make any significant new investment in that environment.

Tackling Pole Attachment Issues

In January the new FCC Commissioner Ajit Pai announced the formation of a new federal advisory committee  – the Broadband Deployment Advisory Committee (BDAC). This new group has broken into sub-groups to examine various ways that the deployment of broadband could be made easier.

I spoke last week to the Sub-Committee for Competitive Access to Broadband Infrastructure, i.e. poles and conduits. This group might have the hardest task of all because getting access to poles has remained one of the most challenging tasks of launching a new broadband network. Most of the issues raised by a panel of experts at the latest meeting of this committee are nearly the same issues that have been discussed since the 1996 Telecommunications Act that gave telecom competitors access to this infrastructure.

Here are some of the issues that still make it difficult for anybody to get onto poles. Each of these is a short synopsis of an issue, but pages could be written about the more detailed specifics involved each of these topics:

Paperwork and Processes. It can be excruciatingly slow to get onto poles for a fiber overbuilder, and time is money. There are processes and paperwork thrown at a new attacher that often seem to be done for no other reason than to slow down the process. This can be further acerbated when the pole owner (such as AT&T) is going to compete with the new attacher, giving the owner incentives to slow-roll the process as has been done in several cities with Google Fiber.

Cooperation Among Parties. Even if the paperwork needed to get onto poles isn’t a barrier, one of the biggest delays in the process of getting onto poles can be the requirement to coordinate with all of the existing attachers on a given pole. If the new work requires any changes to existing attachers they must be notified and they must then give permission for the work to be done. Attachers are not always responsive, particularly when the new attacher will be competing with them.

Who Does the Work? Pole owners or existing attachers often require that a new attacher use a contractor that they approve to make any changes to a pole. Getting into the schedule for these approved contractors can be another source of delay if they are already busy with other work. This process can get further delayed if the pole owner and the existing attachers don’t have the same list of approved contractors. There are also issues in many jurisdictions where the pole owner is bound by contract to only use union workers – not a negative thing, but one more twist that can sometimes slow down the process.

Access Everywhere. There are still a few groups of pole owners that are exempt from having to allow attachers onto their poles. The 1996 Act made an exception for municipalities and rural electric cooperatives for some reason. Most of these exempt pole owners voluntarily work with those that want access to their poles, but there are some that won’t let any telecom competitor on their poles. I know competitive overbuilders who were ready to bring fiber to rural communities only to be denied access by electric cooperatives. In a few cases the overbuilder decided to pay a higher price to bury new fiber, but in others the overbuilder gave up and moved on to other markets.

Equity. A new attacher will often find that much of the work needed to be performed to get onto poles is largely due to previous attachers not following the rules. Unfortunately, the new attacher is still generally on the hook for the full cost of rearranging or replacing poles even if that work is the result of poor construction practices in the past coupled with lax inspection of completed work by pole owners.

Enforcement. Perhaps one of the biggest flaws in the current situation is enforcement. While there are numerous federal and state laws governing the pole attachment process, in most cases there are no remedies other than a protracted lawsuit against a pole owner or against an existing attacher that refuses to cooperate with a new attacher. There is no reasonable and timely remedy to make a recalcitrant pole owner follow the rules.

And enforcement can go the other way. Many of my clients own poles and they often find that somebody has attached to their poles without notifying them or following any of the FCC or state rules, including paying for the attachments. There should be penalties, perhaps including the removal of maverick pole attachments.

Wireless Access. There is a whole new category of pole attachments for wireless devices that raise a whole new set of issues. The existing pole attachment rules were written for those that want to string wires from pole to pole, not for placing devices of various sizes and complexities on existing poles. Further, wireless attachers often want to attach to light poles or traffic signal poles, both for which there are no existing rules.

Solutions. It’s easy to list all of the problems and the Sub-Committee for Competitive Access to Broadband Infrastructure is tasked with suggesting some solutions to these many problems. Most of these problems have plagued the industry for decades and there are no easy fixes for them. Since many of the problems of getting onto poles are with pole or wire owners that won’t comply with the current attachment rules there is no easy fix unless there can be a way to force them to comply. I’ll be interested to see what this group recommends to the FCC. Since the sub-committee contains the many different factions from the industry it will be interesting to see if they can come to a consensus on any issue.