FCC Edits to OTMR, Pole-Attachment Order Tweaked Details, Didn't Change Course
The FCC tweaked details but is moving ahead with one-touch, make-ready (OTMR) and other pole-attachment policies in an order and declaratory ruling aimed at streamlining processes and speeding broadband deployment. Although edits addressed some of the many concerns electric-utility pole owners and communications industry attachers had about a draft item, they didn't fundamentally change the agency's direction, according to stakeholders and our basic review of the 120-page final text in docket 17-84 issued Aug. 3. It was adopted the previous day, with Commissioner Jessica Rosenworcel partially dissenting (see 1808020034).
The changes gave utilities more time to head off attacher "self help" in the power space of poles, clarified that incumbent telcos can be presumptively entitled to lower rates when renewing contracts with utilities, modified and clarified various other decisions, and delayed the effective date of the new pole-attachment rules for at least six months. "We're pleased with the changes," said Ross Lieberman, American Cable Association senior vice president. He said the text includes various ACA suggestions incorporating order decisions into the rules themselves, tightening the regulations and providing more clarity. Final edits didn't change the order's "general contours," said a communications industry attorney, citing "minor tweaks" to OTMR.
The order approved OTMR for "simple" make-ready work in the communications space of poles (with "accelerated" deadlines), which the FCC believes will speed new attachments by eliminating sequential work to move existing attachments, though some parties worry about new disputes and delays. The order also codified a rule that a utility may not require attachers to obtain its approval to "overlash" lines, but it can require "reasonable advanced notification." The commission regulates utility pole attachments in 30 states. Twenty states and the District of Columbia decided, under the Communications Act, to regulate pole-attachments themselves.
At least some FCC decisions are expected to face legal challenges. "Of course, this is going to get litigated," said another communications industry attorney, citing localities as among possible petitioners, given the agency declaration that express and de facto state and local moratoriums on telecom deployment would be pre-empted. Commissioner Mike O'Rielly welcomed a fight over pre-emption. "While I know it will be challenged in court, my simple reaction is hallelujah," he said Aug. 2. "Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums." Local officials and others are still weighing their options, but the CEO of the U.S. Conference of Mayors Aug. 3 blasted the FCC's local intervention and called on it to reconsider (see 1808030050).
O'Rielly said Aug. 2 the final edits "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, amongst others."
Self Help, ILEC Rates
Utilities object to the FCC's move to allow new attachers to use "self-help remedies" in the power space, which under the draft would have kicked in 60 days after make-ready notification (105 days for larger orders). The final text delays such self-help until 90 days after notification (135 days for larger orders). "They gave us a little more time, but it's still a problem," said Brett Kilbourne, Utilities Technology Council general counsel. “The public safety, worker safety, and reliability implications of losing control over the electric space cannot be overestimated," emailed Thomas Magee, a Keller and Heckman attorney for the Coalition of Concerned Utilities. "While the final order makes helpful changes to address these concerns, we much prefer this electric space self-help remedy be removed entirely.”
The text clarified that make-ready work requiring pole replacements isn't eligible for self-help, Kilbourne noted. Maintaining pole integrity with new attachments is a key concern. "Of course we’re worried about the electric space, but if the poles go down, it’s going to take everybody down," said another utility attorney. "And even if just the power goes out, nobody has broadband.” More broadly, "it was gratifying to see some adjustments made" in the OTMR and regular pole-attachment processes “to at least acknowledge some of the practical issues," the attorney added. "But we're still pretty skeptical. Commissioner Rosenworcel really nailed it in saying 'the devil in the details.'”
The FCC addition of pole-attachment agreement renewals to possible ILEC rate relief also concerned utilities but was welcomed by telcos. The draft eyed giving ILECs a rebuttable presumption, in "newly negotiated" agreements with utilities, to the comparable (lower) rates, terms and conditions of "similarly-situated" telecom competitors and cable telecom providers. The final text also extended the presumption to "newly-renewed" agreements. Rate parity with other telecom providers was USTelecom's top priority, said Kevin Rupy, vice president-law and policy, suggesting the change would give ILECs more negotiating leverage. That could have a "substantial" impact over time, Kilbourne said.
The final text modified various other pole-attachment details, including by allowing existing attachers and utilities to seek expedited FCC review of requests to suspend new attacher "OTMR privileges due to a pattern or practice of substandard, careless, or bad faith conduct while performing attachment work." The order clarified that utilities and existing attachers -- which must be notified of any equipment damage or outages caused by new attachments -- can either repair the problem themselves and bill the new attacher or require the new attacher to make the fix "immediately" (instead of the draft's 14 days), with make-ready work suspended until the job is completed. Utilities and existing attachers will have at least 90 days (instead of 30) to inspect make-ready work, and then 14 days to notify new attachers of any damage or code violations; whereupon they can fix the problem themselves and bill the new attachers or require them to fix it within 14 days.
The FCC built in a transition for implementing the new pole-attachment procedures. Citing the complexity of incorporating changes to systems, AT&T said the effective date should be delayed 12 months, "with an additional 6 months transition to modify estimate and invoice systems." The order said the "pole attachment-related portions" of the order and its rules "shall become effective on the latter of (1) six months after the release of this item or (2) 30 days after the Commission publishes a notice in the Federal Register announcing approval by the Office of Management and Budget of the rules adopted herein containing modified information collection requirements."
The order didn't address Communications Workers of America objections about the impact on collective bargaining and safety. "It's a radical and very risky order," said CWA Research Director Debbie Goldman. "It puts worker and public safety at risk, and will substitute low-wage, poorly trained, unaccountable contractors for good, middle-class jobs." Existing attachers, during a 15-day OTMR notice period, can move their equipment, but must do so "on their own dime," she said. "Who would do that?" She noted existing attachers don’t get to dispute contractor determinations on whether make-ready work is simple or complex, though utilities do.
The FCC order brings OTMR rules to Nashville and West Virginia, jurisdictions that tried to make such rules earlier but lost in litigation brought by incumbents (see 1806190057 and 1711270051). "The FCC’s new order would apply [broadly] some of the same OTMR principles" that Nashville made in an ordinance that AT&T and Comcast challenged and a federal court reversed, said Nashville Metro Government Legal Director Jon Cooper. "Ideally, the FCC would have acted before the city was faced with this issue, or before the court’s ruling in the subsequent litigation, but the order would certainly clarify the matter going forward."