Tag Archives: pole attachments

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.

The Fight Over Wireless Pole Attachments

PoleAll around the country there are fights going on between pole owners, governments, and wireless carriers over pole attachments and related issues for small cell deployment. Small cells are the first new technology that is mostly interested in non-traditional attachments, but will soon be followed by a proliferation of companies also wanting to hang devices to transmit millimeter wave radios and wireless local loops. The fights cover a wide range of different issues:

Safety. Most current pole rules were created for the purposes of keeping it safe for technicians to work on poles, particularly during bad weather conditions. Some of the devices that carriers now want to hang on poles are not small. Some are the size of dorm refrigerators or even a bit larger. And these devices are connected to live electric wires. Adding such devices to poles can make it significantly harder for a technician trying to restore power during a rain or snow storm. Just maneuvering around such devices can be a major safety concern even in good weather.

New Poles / Taller Poles. There are reports of wireless carriers asking to install new poles as tall as 120 feet in city rights-of-way. For network deployments that include wireless backhaul it’s vital that each small cell or other device has a clear line-of-sight to other devices in the network – and being higher in the air can create the needed wireless network.

In most towns the poles are not taller than 60 feet and often shorter. Taller poles create a whole new set of problems. They might mean a whole new level of tree trimming or even eliminating taller trees – and many communities take great pride in their trees. And these new poles will need power, meaning stringing more wires in the air, which can detract from the aesthetics of a residential neighborhood as well as to create more issues with downed power lines and trees to keep trimmed.

This also raises the issue of the long-term impact of such new poles. Many cities have moved other utilities underground or have multi-year programs to migrate existing utilities underground. These new wireless-only poles also require a power feed, and at least some of them require a fiber feed. Can a carrier require a wireless pole/tower in a neighborhood where everything else is already underground? Can they insist that their poles be left standing during future conversions of neighborhoods to underground utilities?

There is also the issue of sharing such new poles. Cities fear that they will be swamped with requests for new poles from companies wanting to deploy wireless technologies. It’s not hard to picture an NFL city that might have a dozen different companies wanting to deploy wireless devices – and it’s not hard to picture this resulting in chaos and a proliferation of multiple new poles on the same streets as well as numerous new electric lines to connect all of the new devices.

Right to Say No. Cities largely want the right to decide what goes in their rights-of-way. This often has manifested with requirements that anybody that wants access to rights-of-way get some sort of a franchise. It also has meant the development of local ordinances that define the whole process of using rights-of-way from the permitting process through installation techniques. But the carriers are currently lobbying at the state level and at the FCC to make uniform rules to apply everywhere. If the FCC or a state passes blanket rules there are many cities likely to challenge such rules in court.

Fees for Attachments. The carriers are also lobbying heavily to define the fee structure for attachments of these sorts of new connections. Compensation has always been an issue and my guess is that at some point the FCC will step in here in the same manner they did in the past with other pole attachments.

General Irony. I find it ironic that AT&T is leading the battle to get good terms for attaching wireless devices. AT&T has been the primary entity that has been fighting hard against Google to keep them off AT&T poles. And now AT&T wants the right to force their way onto poles owned by others. But in the regulatory world if we have ever learned any lesson it’s that big companies don’t seem to have a problem with arguing both sides of the same argument when it suits their purposes.

Fighting Over Wireless Pole Attachments

PoleOne of the next big industry battles is going to be between pole owners and the cellular and other wireless providers that want to use poles for wireless transmitters or mini-cell sites. All five FCC Commissioners have said they are in favor of streamlining the process for wireless providers to get onto poles and to locate new towers, and this is not going to sit well with pole owners or with cities.

We will see two different types of wireless companies wanting to use poles. First are the fiber-based ISPs like Google Fiber that want to deploy wireless loops. These companies are looking at using the millimeter wave length spectrum recently released by the FCC to get broadband into the homes. This spectrum won’t carry big bandwidth very far, and so there is a general assumption that these providers will want to mount transmitters on poles in neighborhoods.

The other providers are the big cellular companies. They will also want to use the millimeter wave spectrum using 5G protocols to provide fast local loops and to support big data. They also will want to support 5G cellular, which will use the standard cellular spectrum. The cellular providers will want both transmitters on poles plus they are likely to want to build new urban cell towers.

There are a number of issues with pole mounted antennas that will need to be addressed. Urban poles are often already densely packed with wires and it’s not going to be easy to somehow make space for a new device among the many wires. The biggest concern of other wire owners is that these transmitters might create a safety hazard for linemen who have to make repairs on poles. For the most part nobody yet knows much about the actual size or power requirements for these devices, so it’s premature to speculate. But it’s certainly possible that adding new boxes on already crowded poles will add complications, particularly for line work done in bad weather.

We don’t know yet what the FCC specifically has in mind, but the only real way to ‘streamline’ the process will be to force pole owners to accept wireless transmitters without objection. Current pole attachment rules don’t have any specific provisions on how to deal with connecting wireless transmitters. Most current rules create very distinct zones for wires for telcos, cable companies, electric companies, municipalities and competitive overbuilders. So I have to assume that the FCC will develop a specific process for dealing with requests by wireless providers.

Anything the FCC does is going to be complicated by the fact that about half of the states have their own pole attachment rules. The FCC allowed states to do this, and states without their own rules use the FCC rules. The various states have come up with significantly differing pole attachment rules and processes and it would go against tradition if the FCC was to preempt any of the state-specific rules.

The FCC discussion also makes it sound like they are going to want to require some sort of expedited process to enable wireless providers to deploy their facilities quickly. In many cases the wireless companies are going to want these transmitters to be fiber-fed and also tie into power. I’m sure the FCC has been watching the huge fights between Google Fiber and pole owners and I’m sure they want to avoid these same fights for the wireless providers. But it would be ironic if the FCC makes these exceptions for the wireless companies while they did nothing to aid the fiber overbuilders that have gotten bogged down in pole disputes.

The cell companies are also going to want to build new traditional towers or get permission to hang devices on buildings and places other than poles. Some cities have taken a hard line over the years on how and where cellular companies can place new towers and so we can expect a jurisdictional fight if the FCC tries to overturn state and city rights on tower placement.

The FCC is correct that pole issues and tower placement can be barriers to efficiently deploying the next generation of wireless transmitters. But it somehow doesn’t feel right if the FCC bends all of the rules for the wireless companies while they have allowed fiber overbuilders to be delayed for years over disputes with pole owners.

 

 

Who Controls Access to Poles?

telephone cablesAT&T has sued the City of Louisville, KY over a recent ordinance that amends the rules about providing access to poles to a carrier that wants to build fiber. Louisville is hoping to attract Google or some other fiber overbuilder to the city.

But there has been no announcement that any such deal is in place. It seems the city is trying to make it more attractive for a fiber overbuilder to come to the city and so they passed an ordinance that allows a new fiber builder relatively fast access to poles. The ordinance gives a new fiber builder the right to rearrange or relocate existing wires on poles if the other wire owners on the poles don’t act to do so within 30 days.

AT&T opposes the measure, and their court case says, “The Ordinance thus purports to permit a third party… to temporarily seize AT&T’s property, and to alter or relocate AT&T’s property, without AT&T’s consent and, in most circumstances, without prior notice to AT&T.” They argue that a new attacher will cause service outages and create other problems with their network.

The real issue at hand in the case is if a City has the right to make rules concerning poles. Today there are basic pole rules issued by the FCC that lays forth the fact that a competitive telecom provider must be given access to existing poles, ducts and conduits. Such rights were provided by the Telecommunications Act of 1996. In reading the FCC rules you might think that a new attacher already has the rights that are being granted by Louisville. The FCC rules allow a new attacher to go ahead and put their wires on poles if the pole owners don’t act quickly enough to process the needed paperwork to allow this.

But the rub comes in when there is not a clear space on an existing pole. There are FCC and national electrical standards that require that there be certain spacing between different kinds of cables on poles, mostly to protect the safety of those that have to work in that space. If you’ve ever looked up at poles much you’ll notice that it’s not unusual for the distances between the different utilities to vary widely from pole to pole, meaning that whoever hung the cables was not paying a lot of attention to the spacing.

In the industry, when there is not enough of a gap to accommodate a new attacher, the existing wire owners have to move their wires to create the needed space. If there is not enough space after such a rearrangement then a new taller pole must be erected and the wires all moved to the new pole. The new attacher is on the hook for all rearrangement costs. This process is called ‘make ready’ work and is one of the major costs of getting onto poles in busy urban environments.

The FCC has granted states the right to make additional rules concerning pole attachments, and many states have done so. This lawsuit asks if a city has the same right to make pole attachment rules as is granted to the states – and so this is basically a jurisdiction issue. It’s the kind of issue that probably is going to have to eventually go to the Supreme Court if the loser of this first suit doesn’t like the court’s answer.

To put all of this into perspective, pole issues have often been one of the biggest problems for new telecom providers. Back in the late 1990s I had one client that wanted to get on about 10,000 poles and was told by the local electric company that they were only willing to process paperwork for about a hundred poles per week. I had another client back in that same time frame that was told by a rural electric company that they just didn’t have the time to process any pole attachment requests.

And as you can imagine, when getting on poles bogs down, a new fiber project also bogs down. This can be extremely costly for the company making the expansion because they will have already begun spending the money to build the new network and they will have a pressing need to start generating revenues to pay for it.

Across the country the conditions of poles vary widely. In some cities the poles are relatively short and they are crammed full of wires. In other cities the poles are taller and do not require much make ready work for a new attacher. But when the poles are not ready for a new attacher this can be a costly and time-consuming process. It’s going to be interesting to see if the courts allow a city to get involved in this issue in the same way that states can.

What’s Wrong with Title II Regulation?

FCC_New_LogoI’ve read a lot of the comments of the big carriers and their associations that explain why Title II regulation is a terrible thing. Today’s blog will discuss some of their bigger complaints.

Rate Regulation. Many commenters say they fear rate regulation, meaning that the FCC could become involved in setting their rates. I can’t see any merit in this argument. The FCC and state commissions have relaxed regulation on telephone service over the years and in many states have deregulated rates. There has never been any rate regulation on competitive telephone companies (CLECs) or VoIP providers who are free to charge anything they want. The FCC also brought cellular voice under Title II in 2007 and there has been no regulation of those rates. Basically the FCC’s philosophy is to let the free market and competition set rates whenever possible and this has been true everywhere in the industry. The FCC only steps in when there is blatant abuse, such as when unscrupulous payphone providers were were billing people many dollars per minute.

I think the real fear of the carriers is having the FCC get involved in disputes of the charges between the large ISPs and companies like Netflix. On that count I think they are right, but that is the whole idea behind net neutrality – to not let carriers use their market power to pick winners and losers among web content providers. This is not exactly rate regulation in the historic sense, but its very likely that under Title II that the FCC will be asked to mediate differences between carriers.

Taxes. Several opponents of Title II have floated the idea that putting Internet service under regulation will mean a whole new host of taxes. At least in the short term that claim has no merit. Congress has been excluding the Internet from taxation for fifteen years and just recently renewed the law that stops states and localities from taxing Internet service. This is not to say that Internet service under Title II will never be taxed, because politicians everywhere are always looking for a new tax base. But the fact that Congress has felt the need to pass and renew this law means that taxing the Internet doesn’t require Title II regulation. States and localities have found ways to tax almost everything over the years and will tax the Internet if Congress allows it, with or without Title II.

There probably is a legitimate concern that Internet service would become subject to the Universal Service Charge. But since that FCC has frozen the size of the USF Fund, any new USF taxes on Internet service would mean lower taxes on other telecom services with no net change in tax to the public. Frankly, since the USF funding is now being used to expand broadband coverage, Internet users ought to help pay for it.

Increased Regulatory Burden. The big companies say that being under Title II will increase regulatory burden. It’s hard to say what exactly that might mean, but they are probably right because regulators like to regulate. Interestingly, the large ISPs make this argument on behalf of small ISPs and not for themselves. And here I thought they didn’t like the small ISPs that compete with them!

Pole Attachments. Cable companies fear that being under Title II will mean an increase in the rates they pay to attach to poles. Apparently today they often get cheaper attachment rates then some regulated companies. I have a hard time sympathizing with this. Cable companies love to raise the issue of level playing field when they have to compete with a municipality. But that same level playing field concept would say that every company that leases space on a pole ought to pay the same rate. They are arguing to maintain an un-level playing field that happens to be in their favor.

Tariffs. Regulated telephone companies, including the CLECs must file tariffs. These documents define the terms and conditions under which the companies will sell service to the public. In the tariff a company must define things like their policies for disconnecting a customer who doesn’t pay their bill. I suspect that many states would use Title II as a reason to impose tariffs on cable companies. And I suspect that cable companies would get dragged into some state laws that require certain levels of customer service. Considering how crappy the cable companies treat the public I suspect the public would be in favor of this.

Uncertainty. The large companies complain that requiring them to be under Title II means many years of uncertainty until all of the consequences of such a ruling are worked out. That is certainly true, but that is not a reason not to not impose net neutrality. There is a huge amount of uncertainty in the cable industry already. I am sure that Google introducing gigabit broadband into their markets, or Dish Networks launching of an OTT product that includes ESPN are causing a lot more uncertainty inside cable boardrooms than concerns about complying with regulatory rules. I really can’t picture cable company Boards spending a lot of time worrying about net neutrality.