Tag: BDAC

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Regulation - What is it Good For?

Excess Dark Fiber

A few weeks ago I wrote about a recommendation from one of the BDAC subcommittees to expand the base for the fees collected to fund the Universal Service Fund. BDAC is the acronym for the Broadband Deployment Advisory Committees created by FCC Chairman Ajit Pai to advise on ideas to promote better broadband.

That BDAC subcommittee is the one that is tasked with developing Model State Codes – ideas for states to consider in legislation. The subcommittee came up with another real doozy of an idea. In their latest draft report to the FCC in Article 4 – Rights to Access to Existing Network Support Infrastructure,  the group suggests that broadband could be more affordably expanded if excess fiber built by municipalities was made available to commercial providers for cheap prices.

The BDAC subcommittee suggests that any excess municipal fiber that is not in a 50-year fiber plan must be made available for lease to other carriers. The group also oddly proposes that this would also apply to municipal buildings, I guess to save carriers from having to build huts. I can think of a hundred reasons why forcing government buildings to house carriers is an extremely dumb idea, but let’s look closer at the fiber idea.

The BDAC suggestion clearly comes from the big ISPs who would love to get their hands onto municipal fiber for a bargain price. The way I know that the idea comes from the big ISPs is that they are suggesting that this would only be applied to municipal fiber. If the group had been looking for ways to improve broadband deployment they would have expanded this idea to include all excess dark fiber, regardless of the owner.

I always hear that one of the reasons we don’t have more fiber-to-the-home is that there is not enough fiber already in our communities. I don’t think that’s true. If I look at my city of Asheville, NC I would bet there is already fiber within a quarter mile of everybody in the City. The City might own fiber to connect schools or other government buildings. There is probably some fiber that supports public-safety networks and traffic lights. The incumbent cable company and telco deploys fiber to get to neighborhood nodes. There is fiber built to reach to large businesses. There’s fiber built to get to cellular towers. There is certainly fiber built to places like our large regional hospital complex, the universities, and various federal government office buildings. There is fiber owned by the electric company, and perhaps also by the gas and water companies. And as a regional hub at the nexus of a few major highways, there is likely long-haul fiber passing through here on the way to somewhere else, plus NCDOT fiber used for more local uses.

I’m positive that if all of this fiber was mapped that Asheville would look like a fiber-rich City – as would many places. Even rural counties often have a surprising amount of existing fiber that satisfies these same kinds of purposes. Yet most existing fiber was built to satisfy a single purpose and isn’t available for all of the other ways that fiber could benefit a community. Asheville might be fiber rich, but that fiber is off-limits to somebody interested in building fiber-to-the-home.

That’s the implied justification for the BDAC suggestion – that excess fiber shouldn’t sit idle if it could benefit better broadband. That’s also the basis for my suggestion of expanding this concept to all fiber, not just to government fiber. If AT&T builds a 24-fiber cable to a cell tower and will never use more than a few strands, then why shouldn’t they be required to sell the excess fiber capacity for cheap if it benefits the community?

The idea of forcing big ISPs to make fiber available is not a new one. In the Telecommunications Act of 1996, Congress required the big telcos to unbundle their excess dark fiber and make it available to anybody. However, the telcos actively resisted that order and began immediately to petition the FCC to soften the requirement, and as a consequence, very little dark fiber has ever been provided to others. I helped a few dozen companies try to get access to telco dark fiber and only a few succeeded. However, Congress was on the right track by recognizing that idle dark fiber is a valuable asset that could benefit the larger community.

I wrote a blog a few weeks back that talked about how Romania has the best broadband in Europe based upon hundreds of small ISPs that have built fiber just in their immediate neighborhood. I think that if all of the excess fiber capacity in a city was made available that it would unleash all sorts of creative entrepreneurs to do similar things. I know I would consider building a fiber network in my own neighborhood if there was a way for me to backhaul to a larger partner ISP.

However, the BDAC suggestion is not quite as altruistic as it might sound – the BDAC subcommittee is not worried that the public is missing out on the benefits from excess dark fiber. Remember that the big ISPs largely control the BDAC committees and I think this suggestion comes from AT&T and Comcast that want to punish any city with the audacity to build fiber to compete with them. This requirement would allow the big ISPs to take advantage of those competitive networks to effectively squash municipal competition.

But we shouldn’t let the vindictive nature of the suggestion erase the larger concept. I’ve rarely gotten a chance in our industry to say that, “What’s good for the goose is good for the gander” – but this is that opportunity. The BDAC has correctly identified the fact that broadband deployment would be easier everywhere if we could unleash the capacity of unused dark fiber. The BDAC subcommittee just didn’t take this idea to the natural conclusion by applying it to all existing fiber. I’m certain that if a state embraced applying this concept to all fiber that we’d see the big ISP screaming about confiscation of capital – which is exactly what it is.

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Regulation - What is it Good For?

Broadening the USF Funding Base

The funding mechanism to pay for the Universal Service Fund is broken. The USF is funded from fees added to landline telephones, cell phones and on large business data connections that are still billed using telco special access products (T1s and larger circuits). The USF fee has now climbed to an exorbitant month tax of 20% of the portion of those services that are deemed to be Interstate by the FCC. This equates to a monthly fee of between a dollar or more for every landline phone and cellphone (the amount charged varies by carrier).

The funding mechanism made sense when it was originally created. The fee at that time was assessed on landlines and was used to built and strengthen landline service in rural America. When the USF fee was introduced the nationwide penetration rate of landlines in urban America was over 98%, and the reasoning was that those with phone service ought to be charged a small fee to help bring phone service to rural America. The concept behind universal service is that everybody in the country is better off when we’re all connected to the communications network.

However, over time the use of the Universal Service Fund has changed drastically and this money is now the primary mechanism that FCC is using to pay for the expansion of rural broadband. This pot of money was used to fund the original CAF II programs for the big telcos and the A-CAM program for the smaller ones. It’s also the source of the Mobility Fund which is used to expand rural cellular coverage.

Remember the BDAC? That’s the Broadband Deployment Advisory Committees that was created by Chairman Ajit Pai when he first took the reins at the FCC. The BDAC was split into numerous subcommittees that looked at specific topics. Each BDAC subcommittee issued a report of recommendations on their topic, and since then little has been heard from them. But the BDAC subcommittees are still meeting and churning out recommendations.

The BDAC subcommittee tasked with creating a State Model Code has suggested the broadening of the funding for the USF. This is the one committee that is not making recommendations for the FCC but rather suggesting ideas that states ought to consider. The Committee has suggested that states establish a fee, similar to the federal USF fee and use the fee to expand broadband in each state. Many states have already done something similar and have created state Universal Service Funds.

The recommendation further suggests that states tax anybody that benefits from broadband. This would include not just ISPs and customers of ISPs, but also the big users of the web like Netflix, Google, Amazon, Facebook, etc. The reasoning is that those that benefit from broadband ought to help pay to expand broadband to everybody. The BDAC recommended language has been modified a few times because the original language was so broad that almost everybody in the country would be subject to the tax, and we’ve learned over years that taxation language needs to be precise.

This is not the first time that this idea has been floated. There are many who suggested in the past to the FCC that USF funding should be expanded to include broadband customers. Just as telephone customers were charged to fund the expansion of the telephone network it makes sense to tax broadband customers to expand broadband. But this idea has always been shot down because early in the life of the Internet the politicians in DC latched onto the idea of not taxing the Internet. This made sense at the time when we needed to protect the fledgling ISP industry – but that concept is now quaintly obsolete since Internet-related companies are probably collectively the world’s biggest industry and hardly need shielding from taxation.

AT&T is a member of this BDAC subcommittee and strongly supports the idea. However, AT&T’s motivations are suspect since they might be the biggest recipient of state USF funds. We saw AT&T lobbyists hijack the state broadband grant program in California and grab all of the money that would have been used to build real rural broadband in the state. The big carriers have an overly large influence in statehouses due to decades of lobbying, and so there is a concern that they support this idea for their own gain rather than supporting the idea of spreading broadband. We just saw AT&T lobbyists at the federal level sneak in language that makes it hard to use the e-Connectivity grants from competing with them.

But no matter how tainted the motivation of those on the BDAC committee, this is an idea with merit. It’s hard to find politicians anywhere who don’t think we should close the broadband gap. It’s clear that it’s going to take some government support to make this work. Currently, there are a number of state broadband grant programs, but these programs generally rely annually on allocations from the legislature – something that is always used annually as a bargaining chip against other legislative priorities. None of these grant programs have allocated enough money to make a real dent in the broadband shortfalls in their states. If states are going to help solve the broadband gap they need to come up with a lot more money.

Setting up state USF funds with a broad funding base is one way to help solve the rural broadband divide. This needs to be done in such a way that the money is used to build the needed fiber infrastructure that is needed to guarantee broadband for the rest of the century – such funds will be worthless if the money is siphoned instead to the pockets of the big telcos. It makes sense to assess the fees on a wider base, and I can’t see any reasonable objection against charging broadband customers but also charging big broadband-reliant companies like Netflix, Google, Amazon, and Facebook. The first state to try this will get a fight from those companies, but hopefully the idea of equity will win since it’s traffic from these companies that is driving the need for better broadband infrastructure.

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Regulation - What is it Good For?

Prices for Wireless Pole Attachments

The FCC’s advisory BDAC group looking at pole attachment issues gathered prices for wired and wireless pole attachments. Their goal was to understand the range of attachments prices and to see if the group could come up with a consensus pricing recommendation to the FCC. Wired pole attachments are the annual fee that the owner of a wired network (telco, cable company, fiber) pays for each place one of their wires connects to a pole. Wireless pole attachments are the fees charged for putting some kind of wireless transmitter on a pole.

There were no surprises for wired pole attachments. The group looked at 577 different attachments and found that the average price was $17.58 per year for each wired pole attachment while the median was $15.56. These are similar to the prices I see all over the country.

Wireless attachments varied a lot more. The BDAC group looked at 407 samples of wireless pole attachment prices from around the country and the average price was $505.56 while the median price was $56.60. For the median to be that low means that the sample was stacked with low readings.

That’s easy to understand if you look at wireless pole attachment rules around the country. Three states – Arizona, Indiana and North Carolina have capped the annual price of a wireless pole attachment at $50 per year, while Texas capped it at $20. Other states like Colorado, Delaware and Virginia cap rates at actual cost. For the median price to be that low means that just less than half of the of the 407 same prices were likely from this group of states. And this means that that no conclusions can be drawn from the results of the BDAC’s sampling – it was definitely not a random or representative sample – yet the BDAC group summarized the results as if it was, and even calculates a standard deviation.

Thirteen states have already acted to limit the cost for wireless attachments, mostly through legislation. Florida and Rhode Island have capped the cost of a wireless pole attachment at $150; Minnesota set the rate at $175 and Ohio set the maximum rate at $200. Kansas says the rate must be ‘competitively neutral’ and Iowa caps the rate at the FCC rate.

One of the biggest issues with arbitrarily setting wireless pole attachment rates is that the wireless devices being put onto poles vary by size and can use between 1 and 10 feet of pole space. Regulators have traditionally used the concept of allocating costs by the amount of usable space taken by a given connector, and in fact uses the term ‘pole real estate’ to describe the relationship between space used and price paid. Any attachment that uses more of the pole real estate should expect to pay more for the attachment – largely in a linear relationship.

The results of the sample might have been more valid has the group not included prices for places where the legislators have capped or limited rates. Also, the big wireless companies are part of the BDAC group and I have to suspect that they brought in the worst case examples they could find where they are paying the highest prices. This exercise proved nothing other than that the price for wireless connections are higher in states where the rates are not capped.

It’s not surprising, but the BDAC group was unable to secure a consensus on prices or pricing methodology for the FCC. Unsurprisingly the network operator – those who attach to poles – think rates should be cost based. Pole owners think rates ought to be market based.

There are, of course, many other factors to consider in setting pole attachment rates. In the case of wireless connections there are concerns about the safety of working near the wireless devices after storm damage. There are also significant concerns in cities about aesthetics.

The battle in setting these rates is still heating up. An additional fifteen states – AK, CA, CT, GA, HI, IL, ME, MO, NE, NM, PA, WA and WI – have considered pole attachment legislation that didn’t pass. There is the possibility of the FCC trying to set rates and there have been drafts of several bills in Congress that have considered the idea. Since this seems to be the primary focus of the wireless companies there will be a lot of lobbying on the issue.

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Regulation - What is it Good For?

Light Poles and 5G

There is a lot of regulatory activity right now concerning wireless providers adding small cell site and 5G electronic to poles. A few states have adopted legislation setting low prices for such connections and similar bills are moving through many state legislatures. There is discussion at the FCC for mandating nationwide rules on some of the issues, and one of the FCC’s BDAC advisory groups was created to look at these specific issues.

One topic I haven’t seen covered in any of these efforts is how to deal with light poles – that is poles that don’t carry wires. I think this is a germane issue for many reasons. There are many poles that have been built solely for the purpose of providing street lights and I don’t think these poles are automatically covered by any of these regulatory or legislative efforts.

I’ve recently looked again at the various pole attachment rules to see if I’m right. One of the primary laws affecting pole attachments was the Pole Attachment Act of 1978 that determined a price structure for pole attachments and that authorized the FCC to develop specific rules for pole make-ready which included in Section 224 of the FCC rules. The right for carriers to use poles was bolstered significantly by the Telecommunications Act of 1996 that granted carriers the ability to use the poles, conduits and rights-of-way of existing utilities. That act defined poles as structures that carry telecommunications wires.

In many cases light poles fall naturally into this definition. In my neighborhood the streetlights are placed at the top of existing utility poles that carry wires for the various utilities. Clearly such light poles are covered by the FCC rules. One has to wonder how useful these poles are for 5G since light fixtures occupy the coveted top space on the poles that wireless carriers want to use, but from a regulatory perspective such poles are covered.

There are a lot of light poles that don’t fit into the current regulatory regime. A lot of light poles have been erected in neighborhoods where the other utilities are buried. These poles are not designed to carry wires. They are connected to the buried power lines to provide electricity for the street lights, but otherwise have no connection to other utility wires. A similar class of poles are ornamental ones. The last neighborhood I lived in had street lights that looked like they came straight out of a Sherlock Holmes story – metal poles with a big light globe at the top.

I’ve read the FCC rules several times this week and I can’t see where poles that aren’t intended to carry wires fall under FCC jurisdiction. Such poles often can’t even easily accommodate pole connections and might be made out of metal or concrete.

Cities of all sizes have required utilities to bury wires. The regulatory question is if the FCC will try to claim jurisdiction over poles that were built in such neighborhoods to only support street lights? This would pull millions of light poles under FCC jurisdiction, something that shouldn’t be done without deliberation.

The 5G legislation I’ve seen doesn’t recognize these issues. Some of these laws grant carte blanc authority to wireless carriers to deploy 5G networks without regard to local oversight. This could results in 5G transmitters being added to ornamental poles. It might mean constructing new poles in neighborhoods where the other utilities are buried. It could even allow wireless carriers to string fiber between such new poles, even though other utilities are buried. 5G networks are also going to want an unobstructed line-of-sight to buildings and wireless carriers might use aggressive tree trimming to get the paths they want. Such deployments are going to be wildly unpopular to homeowners and local governments.

None of this is going to happen without a big fight. Current federal pole attachment rules derive from acts of Congress, and anything short of a new federal law on the issues can’t easily change what has been done in the past. It’s questionable if the FCC can preempt state and local laws concerning pole attachments without a new federal law since earlier legislation granted states to optionally claim jurisdiction over pole issues.

One thing that is clear to me is that any new laws need to carefully consider all of the issues. A law that just gives carte blanc authority for wireless carriers to do whatever they want to going to be widely unpopular and will eventually get huge pushback. Even the idea of expanding regulatory authority over standalone light poles would likely be challenged as a state versus federal issue, meaning big court fights. I’m seeing a mad regulatory rush to give wireless carriers the ability to deploy 5G, but there are numerous issues involved that demand careful deliberation if we want to do this right.

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Regulation - What is it Good For?

Preemption of Local Telephone Rules

The FCC voted yesterday that telecom deployments are now exempt from any environmental or historic preservation reviews. This is seen as the first step at the FCC making it easier to deploy 5G.

It’s an interesting rule change because in my experience those rules have more often applied to federally funded broadband projects than to local ones. For example, the BTOP stimulus grants added costs to every project by requiring both environmental and historic preservation reviews – even when it was obvious they didn’t apply. The vast majority of telecom deployments want to put fiber or telecom equipment into already-established rights-of-way. It’s hard to justify doing an environmental review when fiber is to be laid on the shoulder of an existing road or on poles. And the vast majority of 5G equipment will be on utility poles, light poles or buildings, so it’s hard to think that there can be much environmental impact from using established rights-of-way.

But that doesn’t mean that there is never a reason for a locality to have these requirements. Consider my town of Asheville, NC. There is a neighborhood around the Biltmore mansion that has strict zoning codes to keep it looking historic. The City ought to have the option to review and approve 5G or any utility deployments that might clutter the historic nature of such an area. Cities have often forced utilities into the ground in historic districts, but 5G transmitters can’t be put underground, by definition. I’ve seen some proposed small cell transmitters that are large and unsightly, and it doesn’t seem unreasonable for a community to have some say into where such gear can be used. Do we really need to see unsightly telecom equipment in Williamsburg, the Gettysburg battlefield or near the Liberty Bell? Local communities also need to have some say before a telecom deployment disturbs graves or archaeological sites.

The same goes for an environmental review. A better rule would be to only allow an environmental review when new telecom facilities are to be built into virgin rights-of-way – and where there is some local concern. We don’t really want to allow somebody to lay fiber through a sensitive wetland or bird sanctuary without some local say in the deployment.

These rules are the first step in what is perceived as the FCC desire to preempt all local control over 5G deployments. This FCC created various Broadband Deployment Advisory Committees (BDAC) to look at various industry issues and one of these committees looked at ‘Removing State and Local Regulatory Barriers”. It’s fairly obvious from the name of the group that they made a long list of local regulations that should be preempted.

That BDAC group essentially recommended that the FCC override all local control of rights-of-ways or any kind of review of telecom infrastructure deployment. Their recommendations read like a wish list from the lobbyists of the large cellular carriers and ISPs. If the FCC enacts all of the BDAC group’s recommendations, they will have handed over control of the 5G deployment process to wireless carriers and ISPs with no local say in the process.

I am certainly sympathetic to carriers that encounter major barriers to infrastructure deployment. I will have a blog coming soon on a particular egregious abuse of local authority that is greatly increasing the cost of a rural fiber deployment. But I’ve worked with hundreds of fiber deployments and mostly local rules are sensible and realistic. For example, cities have legitimate concerns over fiber deployments. They usually insist in getting records so that they have some record of what is deployed under their streets. They often require contractors to use sensible traffic control and to clean up after construction. And they often have fees which compensate the city for processing permits, for locating existing utilities and for inspecting the construction. If these kinds of rules are overridden by the FCC we’ll soon see horror stories of fiber builders who dig up streets and then walk away with no consequences. In my experience local rules are needed to stop utilities from taking shortcuts to save money.

I was talking to a colleague about this topic and they asked if we really need to be concerned as much about 5G as we are about fiber deployments. After some thought my answer is yes – the same sort of common sense local rules need be allowed for 5G. I picture a future where there will be multiple companies deploying 5G into neighborhoods. It’s not hard to picture wireless devices of various sizes hanging from every available pole and structure. It’s not hard to envision wireless providers erecting 100’ poles on streets to reach above the tree canopy. It’s not hard to envision 5G providers drastically trimming trees to give them line of sight to homes. I know I want my city to have some say in this before AT&T and Verizon make a mess out of my own street.

I am sure these new rules will be challenged in court. The legal question will be if the FCC has the authority to override local laws on these issues. I have no idea of how the law might apply to environmental or historic preservation reviews. But if the FCC tries to do the same with 5G pole attachments they run smack into the Telecommunications Act of 1996 which gives States (and by inference, localities) the ability to craft their own local laws concerning poles, conduits and rights-of-way. It’s always a tug of war when the FCC tries to override states and the courts are almost always the final arbiter of these attempts.

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Regulation - What is it Good For?

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.

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Regulation - What is it Good For?

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.

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Regulation - What is it Good For?

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.

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Regulation - What is it Good For? The Industry

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.

Categories
Regulation - What is it Good For? Technology

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.

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