One Touch Make Ready

Earlier this month in WC Docket No. 17-84 and WT Docket No. 17-79 the FCC released new rules for one touch make ready (OTMR) for connecting wires to poles. These new rules allow a new attacher to a pole to use a single contractor to perform simple make-ready work, which they define as work where “existing attachments in the communications space of a pole could be transferred without any reasonable expectation of a service outage or facility damage and does not require splicing of any existing communication attachment or relocation of an existing wireless attachment.” These new rules will go into effect on February 1, 2019 or sooner, after 30 days, if the new rules are published in the Federal Register announcing approval by the Office of Management and Budget.

The OTMR rules don’t apply to more complex make-ready work where poles need to be replaced or where existing cables must be cut and spliced to accomplish the needed changes. The new rules don’t cover wireless attachments, so this is not an order that lets wireless companies place devices anywhere on poles at their choice (something the wireless companies are lobbying for). These rules also don’t apply to any work done above the power space at the top of poles.

For those not familiar with make-ready, a new attacher must pay to rearrange existing wires if there is not enough space on the poles for the new wire to meet safety standards. In most cases this can be accomplished by shifting existing wires higher or lower on the pole to create the needed clearance.

Possibly the most interesting part of the new order is that the FCC says that a new attacher is not responsible for the cost of fixing problems that are due to past attachers being out of compliance with safety codes. The reality is that most make-ready work is due to past attachers not spacing their wires according to code. This FCC language opens the door for new attachers to argue that some of the cost of make-ready should be charged to past attachers. Anybody who wants to make such claims needs to photograph and document existing violations before doing the work. I can foresee big fights over this issue after the make-ready work is completed.

 These rules end some of the practices that have made it time consuming and costly to put a new wire on a pole. Existing rules have allowed for sequential make-ready, where each existing utility can send out a crew to do the work, adding extra time as each separate crew coordinates the work, as well as adding to the cost since the new attacher has to pay for the multiple crews.

The new rules don’t apply everywhere and to all pole owners. There is still an exception for poles owned by municipalities and by electric cooperatives. The rules also don’t automatically apply to any state that has its own set of pole attachment rules. There are currently 22 states that have adopted at least some of their own pole attachment rules and the states still have the option to modify the new FCC rules. Expect delays in many states past the February 1 effective date as states deliberate on the issue. Interestingly, there are also two cities, Louisville, KY and Nashville, TN, that have already adopted their own version of OTMR and the order does not say if local governments have this right.

The order considerably shortens the time required to perform simple make ready. There are many nuances in the new time line that make it hard to condense to a paragraph, but the time lines are considerably shorter than the previous FCC rules. The FCC also shortened the time line for some of the steps for complex make-ready. Unfortunately, in many cases it’s the complex make-ready time lines that will still impact a project, because a few poles needing complex make ready can delay implementation of a new fiber route.

The order encourages pole owners to publish a list of contractors that are qualified to do the make ready work. The new rules also define the criteria for selecting a contractor in the case where the pole owner doesn’t specify one. Pole owners can veto a suggested contractor from the new attacher, but in doing so they must suggest a qualified contractor they find acceptable. Not mentioned in the order is the situation where a utility insists on doing all work themselves.

As a side note, this order also prohibits state and local governments from imposing moratoria on new wireless pole attachments. The ruling doesn’t stop states from imposing new rules, but it prohibits them from blocking wireless carriers from getting access to poles.

Overall this is a positive order for anybody that wants to add fiber to existing poles. It simplifies and speeds up the pole attachment process, at least for simple attachments. It should significantly hold down pole attachment costs by allowing one contractor to do all of the needed work rather than allowing each utility to bill for moving their own wires. There are still some flaws with the order. For instance, although the time frames have been reduced, the pole attachment process can still take a long time when complex pole attachment work is needed. But overall this is a much needed improvement in the process that has caused most of the delays in deploying new fiber.

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.

A Further Muddying for Pole Attachments

The issue of putting fiber on poles just got a little more complicated. A U.S. District Court recently overturned a One Touch Make Ready law that had been passed in Nashville, Tennessee to enable easier access to poles by Google Fiber.

The Nashville Metro Council passed the One Touch ordinance last year, and the new law was immediately challenged by AT&T and Comcast, the two large incumbent providers in the area. The law suit is complicated because it looks at two sets of poles – the 20% of the poles in the market owned by AT&T and the 80% of poles owned by Nashville Electric Service (NES), a municipal electric provider.

For the AT&T poles the judge ruled that the law violated federal pole attachment rules. The Telecommunications Act of 1996 gave states the optional authority to regulate poles, but the State of Tennessee never took on that responsibility, so the poles in the state are still subject to FCC pole attachment rules. This differs from an earlier lawsuit in Louisville, Kentucky where that state had preempted FCC pole attachment rules. Here it seems pretty clear that the Metro Council doesn’t have the authority to override FCC rules.

The lawsuit also claimed that the ordinance was in violation of local rules. AT&T claimed that the city charter did not explicitly give the Metro Council the authority to set rules for the NEC poles. The court said that NES had the exclusive right by charter to regulate public rights-of-ways. The court said it agreed with the AT&T allegations but did not make a firm ruling since NES was not a named party in the lawsuit.

The Metro Council originally passed the One Touch ordinance because AT&T and other pole attachers like Comcast were slow-rolling Google Fiber requests to get onto poles. Even today, a few years later, there are thousands of outstanding requests by Google Fiber to get onto poles. The One Touch ordinance would have given Google Fiber the ability to attach to poles and to then handle the paperwork retroactively.

This suit got resolved at a time when the FCC is considering One Touch rules concerning wireless connections. The FCC is thinking about granting the same rights to wireless carriers that this ordinance would have given to Google Fiber and other fiber overbuilders. The FCC recognizes that pole attachments are perhaps the major impediment for the promised coming implementation of 5G networks.

Incumbent pole owners have been able to thwart fiber overbuilders for the last few decades. They can deploy numerous delaying tactics that still fit within the FCC pole attachment guidelines. It’s not clear if the contemplated FCC rules will also make it easier for fiber overbuilders – but my guess is that they won’t. This FCC is clearly favoring the big ISPs and wireless carriers – and so they are likely to grant the rules that the big companies want.

This potential dichotomy between the treatment of wireless attachers and fiber attachers is ironic, because 5G networks are going to require a lot of new fiber. The wireless companies are not going to be building all of the needed new fiber and are hoping for others to build for them. But if those fiber builders encounter the same resistance seen by Google Fiber, then One Touch rules for wireless transmitters will not alone solve the 5G deployment issues.

One of the most interesting aspect of the pole attachment issue is that Verizon and AT&T are two of the largest builders of fiber. These companies scream bloody murder when they encounter the kinds of delays in building fiber that AT&T is causing for Google Fiber in numerous markets around the country. But AT&T clearly wears two hats and they argue for easy pole attachments where they are building fiber and for maintaining barriers to other fiber overbuilders when they own the poles.

None of this is going to be easily solved without Congressional action. There are still going to be states that can preempt federal pole attachment rules if they so choose. And the FCC is going to find themselves unable to overcome the state/federal jurisdictional issue when they try to make a nationwide One Touch rule for 5G. Expect a lot more lawsuits before this gets resolved.

The Vision of Next Century Cities

Next Century Cities is an organization comprised of 166 mayors of cities that have the mission statement to make sure that all of their citizens have access to fast, affordable and reliable Internet access. The members range from small towns to NFL cities. They recently published their 2017 Policy Agenda that highlights the issues that they think are the biggest impediments to meeting their broadband goals. These goals are worth some thought since they differ from the wish list of most other stakeholders in the industry.

Restore Local Authority. Cities want to have a hand in finding their own broadband solutions and they don’t want to be restricted by state or federal law from doing so. I would note that the vast majority of cities do not want to be a retail ISP, but they still want to have the ability to make the investments needed to meet their broadband goals. They want to be able to form meaningful public-private partnerships. And more than anything else they want the legal authority to find broadband solutions.

Competition in Multi-Dwelling Units (MDUs). Cities with any significant percentage of citizens living in MDUs are concerned that those citizens are often not getting the same quality broadband products or having the same array of choice as single family homes. For example, even where fiber has been built, overbuilders often skip MDUs that present construction or operational issues. Cities are also still concerned about the proliferation of exclusive contracts between MDU owners and ISPs.

Anti-Monopoly and Competition. Mayors are concerned by what they see as shrinking competition. In many cities the cable companies have won the broadband battle against the telco. Where there are no significant third-party fiber overbuilders the mayors see broadband becoming a monopoly product. The cities generally are against the mergers of gigantic ISPs.

High-Quality Low-Income Internet Access. Cities are still looking for ways to solve the digital divide. They understand that there is a significant percentage of the population that doesn’t have broadband because they can’t afford it. They are currently dismayed by what they perceive as the FCC walking away from the Lifeline program that can subsidize broadband service in low income households.

Small Cell/5G/DAS. Cities are grappling with how to best foster and physically accommodate the coming proliferation of wireless transmitters that will be spread through the community to distribute 5G and millimeter wave spectrum. They are anticipating a host of new wireless broadband products, but they have concerns about how to deal with numerous wireless providers wanting to utilize the same key locations.

One Touch Make Ready. Cities are in favor of regulatory changes that make it easier for fiber overbuilders to get onto poles or into existing conduits. The ‘one touch make ready’ concept would greatly speed up the process and reduce the costs of the pole attachment process. It would give a new fiber builder the ability to more easily move wires of existing carriers to speed up the construction process. In cities with numerous existing carriers on pole lines the cost and time involved in gaining approval and of implementing the changes needed to accommodate a new carrier can be numbingly slow.

Infrastructure Investment. Cities want to be included in broadband infrastructure spending that might come from any federal infrastructure plan. They fear that any broadband money will be aimed only at rural areas and the FCC still estimates that there are more than 10 million people in large urban areas that can’t buy bandwidth that meets the FCC’s 25/3 Mbps threshold. And while smaller rural towns and cities might have broadband that meets that test, they often have older networks that are far below the standards of metropolitan areas.

Summary. Of all of the various stakeholder groups involved in broadband infrastructure deployment, cities the most focus on getting quality broadband to everybody. That focus puts them into opposition with incumbent ISPs on some issues. Experience shows us that cities are often more aligned with new overbuilders, at least to the extent that those ISPs don’t want to only cherry-pick the most lucrative customers in the city. Because of various state restrictions, cities vary widely in how much influence they have over broadband. But cities everywhere are the ones that determine some of the key processes in broadband deployment such as permitting and local construction practices. And that means that their goals must be recognized by anybody wanting to deploy new broadband in cities.

The Broadband Battle in Nashville

PoleThere is a regulatory battle going on in Nashville that is the poster child for the difficulty of building new fiber networks in urban areas. The battle involves Google Fiber, AT&T, Comcast, and the Metro Council and Mayor of Nashville, all fighting over access to poles.

Google Fiber wants to come to Nashville and needs access to existing poles. About 80% of the current poles are owned by the city-owned Nashville Electric Service with the other 20% belonging to AT&T.

The Metro Council recently enacted a new ordinance called the One Touch Make Ready (OTMR) law. This law would speed up the process called make-ready, which is the process for making room for a new wire to be hung on poles. Under the new rules, Google Fiber or other new pole attachers would be free to move wires belonging to another utility to make room for their new wires. And the new attacher must pay for the needed changes, at whatever rate the other wire owners bill them.

The FCC took a stab at this problem a few years ago and they allow a new attacher to add their cables to a pole without approval if the paperwork process takes too long. But those rules only apply to poles that don’t need any make-ready work – and in an urban area most poles need some amount of make-ready work to make room for a new wire.

Current make-ready rules require that the owner of each existing wire be notified so that they can move their own wire, as needed. As you might imagine, this means an overbuilder must issue  a separate request for multiple wire owners for each individual pole that needs to be modified, including detailed instruction the changes that must be made. Other pole owners are giving an opportunity to disagree with the recommended changes. And this whole paperwork process can’t even begin until the pole owner has first inspected each pole and decided on a make-ready solution.

As you can easily imagine, since many of the other companies with wires on poles don’t want competition from Google Fiber or any other new competitor, they do everything legally possible to delay this process.

What I find ironic about this process is that the current wire owners can drag their feet even if their own existing wires are in violation of code. The various industry codes dictate a specified distance between different kinds of wires in order to make it safe for a technician to work on the wires, particularly during bad weather. I’ve found that most poles in an urban area have at least one existing code violation.

It’s also ironic that the cable company can drag their feet in this process. I’ve heard numerous stories about how the installers for the original cable networks often went rogue and installed their wires without getting formal permission from the pole owners. At that time the telcos and cable companies were not competitors and so nobody made a big fuss about this.

It’s been reported that one City Council member tried to stop the new law from going into effect by introducing an alternate proposal – which supposedly was written by AT&T. That alternative law gave the incumbents 45 days to make changes, but also limited the fast pole response to 125 poles per week. In a City the size of Nashville there are tens of thousands, and possibly even more than 100,000 poles that might need to be changed – and so that limit basically means that it would take many years, even possibly decades for a new fiber provider to build a city-wide network.

The new One Touch rule would allow Google Fiber or others to make the necessary changes to poles if the incumbent wire owners don’t act quickly enough to move their wires. AT&T has already sued the City to block the new ordinance. They argue that the City has no authority to order this for the AT&T-owned poles. They also argue that this change will disrupt their service and put their customers out of business. The lawsuit is, of course, another delaying tactic, even should the City prevail.

There is little way to predict how the courts might decide on this. It’s a messy topic involving a complex set of existing and technical industry practices. Both sides have some valid concerns and good arguments to make to a court. Both sides also have access to the best lawyers and it will be an interesting court fight. But perhaps the most important thing to consider is that the existing rules can mean that it’s not economically feasible to build a new fiber network in a City – if so then something needs to change.