FCC Wireline Infrastructure Draft NPRM Doesn't Stir Up Much Opposition, Yet

An FCC draft wireline infrastructure rulemaking notice got more support than opposition heading into a scheduled vote Thursday, despite language proposing to roll back technology transition copper-retirement rules and streamline the process for discontinuing telecom services, which include safeguards backed by telco competitors (see 1704060046). In final lobbying before Sunshine Act restrictions took effect April 13, Verizon welcomed the agency's efforts to boost fiber deployment, and Google Fiber and the American Cable Association (ACA) voiced support while suggesting some tweaks to an NPRM section on pole attachments.

New York City voiced concerns about an accompanying notice of inquiry (NOI) to explore prohibiting state and local broadband barriers. There's also a request for comment on reversing a "functional test" standard for deciding whether network changes trigger discontinuance requirements under Section 214 of the Communications Act.

The wireline infrastructure item is expected to be approved by commissioners at their meeting Thursday, an ex-FCC official told us Monday. Commissioner Mignon Clyburn could have concerns, but even if she dissents -- and it's unclear if she will at this point -- it's "not going to slow the thing down," said the former FCC official, now a telecom attorney. Clyburn didn't comment Monday. Last week she called April "Industry Consolidation Month" (see 1704120062) in response to Chairman Ajit Pai's description of it being "Infrastructure Month" (see 1703300060). A wireless infrastructure NPRM, a business data service (BDS) order that sparked more opposition (see 1704140054) and other items are also on the meeting agenda.

BDS is getting more attention, but "it would be a mistake to underestimate the importance of the wireline and wireless infrastructure proceedings," both of which "contain proposals designed to remove various unnecessary, costly obstacles to broadband network deployment," said Free State Foundation President Randolph May Monday. "As far as I can tell, the opposition to the proposals in both proceedings has been pretty minimal," he emailed us. "I suspect this is because, on the one hand, many localities now recognize that the economic benefits resulting from speedier deployment of advanced broadband infrastructure outweigh whatever revenues are derived from fees collected, and, on the other hand, the proposals to eliminate outdated FCC regulatory impediments are overdue. I think Chairman Pai is showing a seriousness of purpose regarding focused actions to spur infrastructure deployment that minimizes the temptation of entities to obstruct just for the sake of obstruction."

Verizon urged the FCC to continue efforts to encourage infrastructure deployment and remove broadband deployment barriers. "[W]hile Verizon is already leading the way in deploying fiber networks and transforming our networks from copper to fiber, the Commission’s proposals suggest additional and helpful ways to encourage fiber investment, streamline the transition from copper to fiber, and remove obstacles as providers discontinue obsolete services," said a filing by the company posted Friday in docket 17-84 on a meeting with Pai and an aide on the infrastructure items.

"We care an awful lot about infrastructure policies and their impact on fiber and wireless deployment," Verizon Senior Vice President William Johnson told us Monday. "We’ve been very aggressive at deploying fiber and now have considerable experience migrating customers from copper to fiber under the existing rules. This means we understand where current processes could be improved. We’re hoping the FCC will adopt policies that will move the needle and encourage more infrastructure investment and deployment.”

Google Fiber said it's pleased Pai proposed "to take up poles" in the wireline item. It "suggested a few minor but important corrections to the description of the current rules regarding make-ready timing," said a filing on discussions company officials had with aides to Pai and Clyburn. "The handful of simple corrections identified" in an attachment "would prevent the item from injecting unnecessary uncertainty into the meaning of the current rules."

The ACA also said it supports launching the rulemaking because pole owners continue to erect barriers to its members upgrading and expanding their networks. "ACA is particularly heartened the NPRM addresses concerns about the speed of the pole attachment process and costs and timing of make ready, including by seeking to shorten the 'attachment timeline' the Commission adopted in 2011," said a filing on meetings with aides to Pai and Clyburn, plus with Wireline Bureau staffers. "While the NPRM raises many of its members’ concerns and proposed solutions, ACA representatives requested the Commission seek comment" on certain additional pole attachment proposals, "which would further the Commission’s goal of accelerating the deployment of next-generation networks and services by removing barriers to infrastructure investment."

The city of New York said it could comment on "numerous matters" in the draft wireline and wireless infrastructure notices, but for now it's focused on the wireline NOI's "inaccurate representation of the language in [Communications Act] Section 253(a) and the current state of the law interpreting that statutory provision." A filing by the city's Department of Information Technology & Telecommunications said: "[T]he Notice implies an ongoing split among federal circuit courts in which some circuits hold a current view that 253(a) can be plausibly read to bar state or local requirements that 'might' prohibit or effectively prohibit provision of a telecommunications service. The second sentence of Paragraph 109 of the draft Wireline Notice then inaccurately re-words Section 253(a) in a manner that invites that interpretation and implies an ambiguity as to the statute’s meaning. However, the Circuit split implied in the Wireless Notice does not exist." It said a 2001 9th U.S. Circuit Court of Appeals panel ruling, City of Auburn v. Qwest, was "unanimously" rejected by the 9th Circuit en banc in Sprint Telephony PCS v. County of San Diego in 2008.