FCC Clears OTMR Pole-Attachment, Pre-emption With Edits; Rosenworcel Knocks Details

The FCC adopted a one-touch, make-ready policy and other pole-attachment changes in a broadband infrastructure order and declaratory ruling approved 3-1 by commissioners at a Thursday meeting. The item also said the agency will pre-empt state and local legal barriers to deployment, including express and de facto moratoriums that prohibit entry or halt buildout. "No moratoriums. No moratoriums. Absolutely no moratoriums," said Commissioner Mike O'Rielly, who also noted some targeted edits to OTMR parts of a draft. Commissioner Jessica Rosenworcel agreed with OTMR in concept but partially dissented over "deficiencies in our analysis."

This seeks to streamline work to prepare poles for new attachments. "A broadband provider that wants to attach fiber or other equipment to a pole first must wait for, and pay for, each existing attacher to sequentially move existing equipment and wires -- this can take months, and the bill for multiple truck rolls adds up," said Chairman Ajit Pai, citing Rocket Fiber's efforts in Detroit. "OTMR promises to substantially lower the cost and shorten the time to deploy. ... It allows a new provider who wants to attach to a pole to move all the wires and equipment in just one 'touch.'" He said the order largely follows Broadband Deployment Advisory Committee recommendations.

By some estimates, OTMR could result in about 8.3 million more premises passed with fiber and about $12.6 billion in added fiber capital expenditures, said an agency release. Commissioner Brendan Carr said OTMR would also help spur 5G by bringing down the "cost of backhaul needed to connect all these small-cell deployments."

The order allows new attachers to use this plan for simple make-ready work for wireline attachments in the communications space of poles (below the electric space). It establishes safeguards to promote coordination among parties and ensure work is done safely and reliably, while retaining a multiparty process for more complex work, said Wireline Bureau attorney Annick Banoun. It codifies precedent allowing attachers to "overlash" existing wires; eliminating disparities between what incumbent telcos pay pole owners and other similarly situated providers pay them; and making clear the FCC will expeditiously pre-empt state and local laws that restrict broadband network restoration after disasters.

O'Rielly thanked Pai for accepting edits that "will not fundamentally alter" the direction. Instead, he said, they "will smooth some rougher parts of the OTMR by bolstering the recourse for damages or noncompliance resulting from OTMR work, ensuring that make-ready work damage to existing attachers’ facilities are rectified immediately, increasing post-OTMR inspection periods, allowing existing attachers to continue work on their networks during the advance notice period, reducing the burdens of per-pole estimates and invoices, permitting overlashing of facilities upon permission of the host without the pole owners advance approval." Some thought tweaks were coming (see 1808010059), given heavy lobbying (see 1807300040).

Concerns

"The devil's is in the details" of OTMR, said Rosenworcel, citing "a complex and heady mix of federal authority, state pre-emption, local realities, and the possibility of job losses for workers and service outages for consumers." She said the FCC, in its "rush to put out rules" was accepting too much ambiguity and not providing enough specific guidance, including on the differences between simple and complex make-ready work, "setting the stage for disputes and delays." The order fails to "give any voice" on such "tricky determinations" to existing attachers, who also should have been given a right to hold new attachers or contractors "accountable for the consequences of performing shoddy work," she said. The order gives "short shrift to employees covered by collective bargaining agreements," threatening "to invalidate private contracts negotiated between existing attachers and union workers."

Pai offered rebuttals. He cited Google Fiber saying stronger indemnification would tilt the playing field toward existing attachers; the company is happy to use union contractors approved by pole owners, but they aren't available in some places; and allowing existing attachers to determine what's simple make-ready work would obliterate the streamlining.

The order received initial positive reactions from: the American Cable Association, the American Consumer Institute, AT&T, CenturyLink, the Computer & Communications Industry Association, CTIA, Incompas, Public Knowledge, USTelecom and Windstream. The Communications Workers of America, electric utilities and NCTA were among the most concerned.

Moratorium Crackdown

A declaratory ruling, which appears mostly aimed at speeding deployment of small cells and other wireless infrastructure for 5G, says Section 253(a) of the Communications Act blocks blanket state and local moratoriums on telecom services and facilities deployment. Officials said the ruling moves the FCC beyond wireless shot clocks already in place, citing 253(a) and requiring action on wireline projects. Previous items had relied on Section 332, officials said.

O’Rielly and Carr said the order just makes clearer a longstanding stance against moratoriums. “It doesn’t break a tremendous amount of new ground,” Carr told reporters. “It’s helpful to re-emphasize the point.” The FCC takes “the commonsense step of repeating our long-standing view that moratoria on telecom deployments violate federal law,” Carr said during the meeting. “This decision will provide even greater certainty as we look to promote next-gen deployments.”

The commission is concerned about bad actors, O’Rielly said. A small group of state and local governments “have defied reason and actually slowed down or stifled deployment work to feed their own egos, power, or push for shakedown bounties,” he said. “This has been over a 30-year fight with some of these communities and the associations representing them, so you will excuse me if I don’t buy the arguments that all it takes is more cooperation and time working together.”

Rosenworcel slammed the ruling, citing Myrtle Beach, South Carolina. Laws there limit work on infrastructure projects during peak tourist times and hurricane season, she said. “These rules are limited in time and scope,” she said. “They are informed by local traffic and public safety authorities. They are reasonably related to the police powers of municipalities. And yet, going forward, three unelected officials sitting here today pre-empt these local policies because they believe Washington knows better.”

Rosenworcel was asked why she pointed to the city. “It’s in our record and it struck me as a good example,” she told reporters. “It doesn’t seem like the craziest thing to allow municipalities to make decisions like that.”

Beach Red Flag

“Myrtle Beach desires to find a happy balance between the needs of the community and the needs of the wireless providers,” not “one-sided” decisions, said a spokesman. It filed a letter this week in docket 17-84.

Myrtle Beach never declined to take or act on wireless industry applications for small-cells deployment, the spokesman said. The city denied all three small-cells applications it received due to insufficient technical detail but encourages wireless providers to apply, he said. The community is discussing with industry “a streamlined administrative process in which ‘safe harbor’ designs are identified as acceptable,” he said. Each side’s concerns are valid, and the industry talks are “our effort to reach a mutual agreement about methods and placements that are in the best interests of both parties,” he said. The mutual approach “could be considered as a role model.”

Rosenworcel is right that the moratoriums ruling “misses the mark on both law and policy,” said NATOA General Counsel Nancy Werner. “The Ruling is not a proper reading of Sections 253 or 332 of the Communications Act and virtually ignores that, in both Sections, Congress expressly (and appropriately) leaves local zoning and right of way decisions up to local government,” Werner emailed: Unelected federal officials shouldn’t “substitute their judgment for that of local elected officials on community-specific issues like public safety and economic opportunities.”

The National League of Cities "strongly disagrees" with O'Rielly characterizing local governments as obstacles to broadband deployment, said NLC Principal Associate-Technology and Communications Angelina Panettieri. She agreed with Rosenworcel that the decision will lead to more litigation, not less. “NLC remains concerned by the expansive approach the Commission has taken to its interpretation of the law regarding preemption, and we believe that the Commission is overreaching its statutory authority.”

Local governments join Rosenworcel "in being troubled by the ambiguities,” emailed Best Best local/telecom lawyer Gerard Lederer, with clients including Myrtle Beach. “We will share the final documents with our clients and explore opportunities for the Commission to resolve those ambiguities.”

Meeting Notebook

The FCC unanimously approved an order and NPRM seeking comment on the agency’s congressionally mandated reimbursement program for low-power TV, translators and FM stations affected by the post-incentive auction repacking. The item seeks comment on how to interpret the legislation authorizing the FCC to pay out the additional reimbursement, said staff. That was expected (see 1807300060). The draft reimbursement NPRM tentatively concluded that reimbursement to FM, LPTV and translators could come only from FY 2018 reimbursement funds under the legislation. “While Congress carefully outlined how it intended FY 18 monies to be spent, it provided less clarity for FY 19,” O’Rielly said. A T-Mobile-opposed tentative conclusion that LPTV stations reimbursed by third parties wouldn’t be eligible for reimbursement funds was also removed, O’Rielly said. The proposal seeks comment on providing graduated payments to FM stations, a proposal that was opposed by NAB, as was the original FCC interpretation of the statute. The NPRM recommends a reimbursement “mechanism” that's “substantially similar” to the process already being used for full-power TV stations, Class A's and MVPDs, said a fact sheet. The order portion “directs the Media Bureau to engage a contractor to assist in the administration of the Reimbursement Fund” and discusses the consumer education provisions of the reimbursement legislation, the sheet said. O’Rielly said the item now includes language indicating the FCC will coordinate repacking education efforts with broadcasters and strive not to be duplicative. The agency should be “responsible stewards” of the legislation’s $50 million in consumer education funding, he said.

The FCC adopted 4-0 a notice of inquiry on creating a $100 million telehealth pilot program. It wasn't without controversy as O'Rielly and Rosenworcel voiced concerns about statutory authority and other issues. The commission didn't indicate any significant changes to a draft. The NOI will explore establishing a USF program of pilot projects offering broadband-enabled telehealth services targeting low-income families and veterans, said a release. Comment is sought on the program's goals, statutory authority, budget, duration, accountability safeguards and other details. Commissioner Brendan Carr said the aim is to support the move toward "connected care everywhere" services, such as remote monitoring of patients outside of healthcare facilities. That can improve outcomes and drive cost savings, and the program could spur new broadband deployment, he said. O'Rielly is skeptical of authority to do pilot programs, would object to duplicating existing USF spending or other federal agency programs, and wants to ensure the FCC is credited for other agencies' savings to reinvest in its programs. He urged setting an overall USF budget and targeting unserved, not underserved, areas. Rosenworcel questioned Section 254 authority to conduct the program, which appears to rest solely within Lifeline statutory language. She said recent FCC proposals threaten to "gut" that low-income subsidy program by cutting off service to up to 7 million users, including veterans, seniors, victims of domestic violence, homeless people and Puerto Ricans. "Before this agency decides to give out $100 million in grants for a new health care pilot program, it has to answer for its actions," she said. "It cannot borrow from the authority of the Lifeline program for a new project without first reconciling the damage it has proposed to do to those who already depend on it." Carr said the $100 million wouldn't come from Lifeline funding but would be a one-time infusion of USF money. The Schools, Health & Libraries Broadband Coalition and USTelecom praised the action.

The FCC has funding for an upgrade of its software, including its auction software, but work on the software hasn't begun, Pai said at a news conference. “That’s one of the things we’re going to be looking at, is updating the auction software as we can,” he said. Questions have arisen about the software as the FCC launches the first high-frequency auctions and in the context of the 3.5 GHz band. O’Rielly said the FCC apparently isn't capable of auctioning census tracts in the citizens broadband radio service band. Under the Obama administration’s plan for the CBRS band, tracts would have been sold through sealed bids rather than a traditional spectrum auction, O’Rielly said. “A multiround auction is a much better way than a sealed bid auction by far,” he said. The size of blocks that can be sold depends on the specific auction, Pai said. The FCC shouldn’t use software as an excuse, Rosenworcel told reporters. “I just don’t know how it is that software is eating the world and is a functional part of everything we do and this agency can’t figure out how to update its software to make our spectrum auctions more modern,” she said. Rosenworcel repeated calls for an auction calendar. “The entire wireless ecosystem, from consumers to the wireless companies, to equipment manufacturers … would be better served if this agency had a public schedule for spectrum auctions,” she said. “All we have now is a glimpse of bands under consideration. We should organize our energies and focus on those that are coming first.” She also said the FCC should finalize the CBRS rules. “We need to auction some mid-band spectrum,” she said. “Other countries are far ahead of us.”

Commissioners were peppered with questions about the Sinclair/Tribune hearing designation order during post-meeting news conferences but said little. Pai said he hadn’t been contacted by the White House on the matter. He declined to answer a follow-up question on presidential input and said repeatedly he's unable to discuss most aspects of the HDO since it has been referred to an administrative law judge. Carr and O’Rielly said they learned of the HDO shortly before it was circulated and said they can’t discuss the proceeding. Rosenworcel declined to discuss Sinclair’s specific possible penalties but said a finding of a lack of candor can affect a broadcaster’s future applications.

Also at the meeting: a radio incubator order was approved 3-1: 1808020048; and two 5G items, including for a pair of auctions, were unanimously OK'd: 1808020025.