Promoting infrastructure investment and broadband deployment has been a top priority for Chairman Ajit Pai’s FCC. On July 12, 2018, the Chairman took a significant stride in advancing his agenda by releasing a draft report and order that would enact, among other things, a “one-touch make-ready” (OTMR) process for most third-party communications-provider attachments to utility poles.
Set for a vote at the Commission’s August 2, 2018 meeting, the new OTMR order would, in the FCC’s words, “fundamentally shift the framework” for attachments to poles owned by investor-owned utilities in the 30 states that are currently governed by federal law.
Following recommendations earlier this year by the Broadband Deployment Advisory Committee, the FCC described the order as a “large step and several smaller steps to improve and speed the process of preparing poles for new attachments.” The new OTMR process would give an entity seeking to make an attachment to a utility pole the choice either to perform all work necessary to prepare the pole for its facilities, called “make-ready” work, or follow the current practice where each attacher performs the necessary make-ready work on its own facilities. The OTMR option would only apply to “simple” make-ready work, and would not be available for “complex” work—defined as that likely to cause an outage or damage, or work involving electric-supply facilities that poses greater safety threats.
The order also would reaffirm the FCC’s longstanding policy of allowing attachers to overlash new wires onto their existing wires without first seeking approval from the pole owner, while still allowing pole owners to request “reasonable advance notice of overlashing.” The order would further clarify that attachers are not responsible for costs of repairing preexisting violations of safety or construction standards. And it would make clear that the FCC’s rules would preempt state and local laws that hamper the rebuilding or restoration of broadband infrastructure after disasters.
Finally, the FCC draft order is accompanied by a declaratory ruling that Section 253(a) of the Communications Act bars both express and de facto state and local moratoria on the deployment of telecommunications services and facilities nationwide.
If adopted, as it is expected to be, the FCC order and declaratory ruling will likely face judicial challenges by pole owners and possibly existing attachers. Even in those states that do not follow the FCC approach, the new federal pole attachment standards will likely reverberate widely and reorder pole attachment processes and relationships among new entrants, existing attachers, and pole owners.
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