BEFORE THE PUBLIC UTILITIES COMMISSION FILED OF THE STATE OF 04/28/21 04:59 PM

Order Instituting Investigation into the Creation of a Shared Database or Statewide Investigation 17-06-027 Census of Utility Poles and Conduit in (June 29, 2017) California.

Order Instituting Rulemaking into Access by Competitive Communications Providers to California Utility Poles and Conduit, Rulemaking 17-06-028 Consistent with the Commission’s Safety

Regulations.

REPLY COMMENTS OF CTIA ON RULING REQUESTING COMMENTS ON “ONE-TOUCH MAKE-READY” REQUIREMENTS IN CALIFORNIA

GOODIN, MACBRIDE, SQUERI & DAY, LLP Jeanne B. Armstrong 505 Sansome Street, Suite 900 San Francisco, California 94111 Telephone: (415) 392-7900 Facsimile: (415) 398-4321 Email: [email protected]

Attorneys for CTIA Dated: April 28, 2021

1 / 11 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Investigation into the Investigation 17-06-027 Creation of a Shared Database or Statewide (June 29, 2017) Census of Utility Poles and Conduit in California.

Order Instituting Rulemaking into Access by Competitive Communications Providers to California Utility Poles and Conduit, Rulemaking 17-06-028 Consistent with the Commission’s Safety Regulations.

REPLY COMMENTS OF CTIA ON RULING REQUESTING COMMENTS ON “ONE-TOUCH MAKE-READY” REQUIREMENTS IN CALIFORNIA

Pursuant to the Administrative Law Judge’s Ruling Requesting Comments on "One-Touch

Make- Ready" Requirements in California, issued in the above captioned proceeding on March 9,

2021, ("Ruling"), CTIA provides the following reply comments.

I. INTRODUCTION

Initial comments in this proceeding demonstrate broad support for the California Public

Utilities Commission’s (“Commission’s”) proposal to integrate the Federal

Communications Commission's ("FCC’s") one-touch make-ready ("OTMR") and self-help procedures (collectively, the “OTMR Rules”) into the Commission’s Right-of-Way ("ROW")

Rules (the “Proposal”). This support affirms that the Commission’s Proposal is a positive step to enhance competition and promote broadband deployment in California, and the Commission has chosen wisely to track the FCC regime for streamlining the attachment process that has proven effective across much of the nation already. Accordingly, the Commission should proceed expeditiously to adopt the Proposal without changes.

1

2 / 11 Commenters opposing or seeking to delay the Commission’s adoption of the OTMR

Rules cite baseless safety concerns, a tactic used in other states and before the FCC, and some

ask for workshops to re-litigate these issues in yet another jurisdiction. But given the extensive

record already compiled nationwide on OTMR and self-help safety, and specifically, at the FCC,

workshops will only delay the Commission’s efforts to streamline broadband deployment.

A number of commenters suggested changes to the Proposal. These suggested changes,

even where well-intentioned and pro-deployment, would negate the major advantages of the

Commission adopting the FCC’s rules, which are tried, tested, and most importantly, operative in

the majority of states nationwide. The Commission should therefore not deviate from the FCC’s

OTMR Rules.

II. THE COMMISSION SHOULD MOVE EXPEDITIOUSLY TO ADOPT THE PROPOSAL AS DRAFTED

In initial comments, CTIA expressed its full support for integration of the FCC’s OTMR

Rules into the Commission’s ROW Rules.1 Similar comments from other stakeholders indicate broad support for the Commission’s adoption of the OTMR Rules. Like CTIA, the Joint ILECs and Fiber expressed support for the Proposal as written.2 Verizon supported the Proposal with very minor changes only.3 There was also strong support for the Commission’s adoption of

1 See Comments of CTIA on Ruling Requesting Comments on “One-Touch Make-Ready Requirements in California” (“CTIA Comments”). 2 See Opening Comments of Frontier California Inc (U 1002 C) Citizens Telecommunications Company of California Inc. DBA of California (U 1024 C) Frontier Communications of the Southwest (U 1026 C) (“Frontier”) Consolidated Communications of California Company (U 1015 C) Pacific Bell Telephone Company DBA AT&T California (U 1001 C) (Collectively, “Joint ILEC Parties”) on March 9, 2021 ALJ Ruling (“Joint ILEC Parties Comments”); Comments of Inc. on the March 9, 2021 Administrative Law Judge’s Ruling Requesting Comments on “One-Touch Make-Ready” Requirements in California. 3 See Opening Comments of Cellco Partnership (U 3001 C), MCIMetro Access Transmission Services Corp. (U 5253 C) and XO Communications Services, LLC (U 5553 C) to Administrative Law Judge’s Ruling (“Verizon Comments”). 2

3 / 11 OTMR Rules from CCTA, Crown Castle, Race, and Sonic, although all these parties offered

suggested changes to the Proposal, largely towards the shared goal of streamlining broadband

deployment.4

Even among the investor-owned utilities (“IOUs”), there was some level of support for

OTMR principles in acknowledgment of the benefits OTMR has for utilities.5 PG&E “generally supports the adoption of OTMR requirements and the important objectives it is intended to accomplish,”6 and SDG&E, with caveats, believes “that OTMR could expedite high speed broadband deployment given the fast turnaround times for application review and attachers completing the survey work.”7

Among commenters, only CWA/CUE and SCE opposed the Proposal outright.8 These commenters mainly cited alleged, unsupported safety issues roundly rejected in other jurisdictions as their reason to oppose the OTMR Rules,9 and both PG&E and SDG&E asked the

Commission to consider safety issues prior to adoption as well.10 But as will be discussed in the

4 See Comments of the California Cable and Telecommunications Association [“CCTA”] on Administrative Law Judge’s Ruling Requesting Comments on “One-Touch Make-Ready” Requirements in California; Comments of Crown Castle Fiber LLC (“Crown Castle Comments”); Comments of Race Telecommunications, Inc. (U-7060-C) on “One-Touch Make-Ready” Requirements in California; Opening Comments of Sonic Telecom, LLC (U-7002-C) on Administrative Law Judge’s Ruling Requesting Comments on “One-Touch Make-Ready” Requirements in California (“Sonic Comments”). 5 See CTIA Comments at 3-4. 6 Opening Comments of Pacific Gas and Electric Company [“PG&E”] (U39) on Administrative Law Judge’s Ruling Requesting Comments on “One-Touch Make-Ready” Requirements in California (“PG&E Comments”) at 1. 7 Comments of San Diego Gas & Electric Company [“SDG&E”] (U 902 E) on Administrative Law Judge’s Ruling Requesting Comments on One-Touch Make-Ready Requirements in California (“SDG&E Comments”) at 6. 8 See Joint Comments of Communications Workers of America, District 9 and the Coalition of California Utility Employees [“CWA/CUE”] on “One-Touch Make-Ready” Proposal (“CWA/CUE Comments”); Southern California Edison Company’s [“SCE”] (U 338-E) Opening Comments on Ruling Requesting Comments on “One-Touch Make-Ready” Requirements in California (“SCE Comments”). 9 See CWA/CUE Comments at 3-4, SCE Comments at 5-6. 10 See PG&E Comments at 2; SDG&E Comments at 1. 3

4 / 11 following section, there is a comprehensive nationwide record on OTMR and self-help that the

Commission can rely upon to allay such concerns.

The broad support for the Commission’s adoption of OTMR and self-help provisions in

its ROW Rules affirms that the Commission’s Proposal is a smart and reasonable step to remove

barriers to broadband deployment in California. The Commission should therefore adopt the

Proposal without delay.

III. GIVEN THE BROAD RECORD COMPILED ON OTMR AND SELF-HELP NATIONWIDE OVER THE LAST THREE YEARS, WORKSHOPS ARE UNNECESSARY

Parties opposing the Commission’s adoption of the Proposal cited concerns about the

safety of the OTMR Rules, with many claiming the Commission needs more data on the safety

of the OTMR Rules before it can proceed. For example, SCE said it was “concerned that the

March 9, 2021 Ruling seems to have already pre-determined that the OTMR procedures can be

adopted after only two rounds of written comments,”11 calling for a series of workshops to

“identify the [FCC’s] provisions suitable for adoption in California, and address safety issues.”12

SDG&E called for workshops to ensure that the Proposal is consistent with the Commission’s safety rules in General Order 95.13 And even the Safety and Enforcement Division seems to have been influenced by this narrative, saying the Commission should conduct more analysis of

“potential safety implications of OTMR.”14

The issue at hand, however, is not an insufficient record on utilities’ safety claims. In an

attempt to restrict communications providers’ access to their poles, utilities have repeatedly

11 SCE Comments at 2. 12 Id. at 3. 13 See SDG&E Comments at 4. 14 Opening Comments of the Safety and Enforcement Division on Administrative Law Judge’s One Touch Make Ready Ruling at 4. 4

5 / 11 raised unfounded safety concerns (with minimal supporting evidence) before both the FCC and

states that have successfully implemented OTMR and self-help on their own. Rather, the issue is

that all these jurisdictions have found the utilities’ claims unpersuasive. Unfortunately, that has

not stopped the IOUs in this proceeding from repeating those claims before the Commission in

another attempt to extract rules more favorable to their interests.

The FCC, for example, undertook a wide-ranging analysis of safety issues when it issued

its August 2018 Order implementing OTMR and self-help,15 building off the FCC’s multiple steps taken during the Obama administration to streamline infrastructure siting and remove barriers to broadband deployment.16 The FCC’s “simple” vs. “complex” make-ready dichotomy, recommended after study by the FCC’s Broadband Deployment Advisory Committee, was designed to ensure that more complicated attachments, such as wireless antennas that require particular expertise to deploy, were given separate treatment, and their recommendation had

“substantial support in the record.”17 After extensive comment by utilities in the docket, the FCC

rejected arguments that its changes would lead to unsafe attachment:

“We are not convinced by the arguments made by some commenters that OTMR will allow make-ready work to be performed by new attachers that lack adequate incentives to perform quality work, and therefore will increase the likelihood of harm to equipment integrity and public safety. As other commenters explain, the new attacher and its chosen contractor have an incentive to perform quality work in order to limit risk, keep workers safe, and avoid tort liability for damages caused by substandard work.”18

15 See In the Matter of Accelerating Wireline Broadband Deployment to Infrastructure Investment et al., Third Report and Order and Declaratory Ruling, 33 FCC Rcd 7705 (adopted Aug. 2, 2018) (“FCC OTMR Order”). 16 See, e.g., In the Matter of Implementation of Section 224 of the Act, A National Broadband Plan, Report and Order, Order on Reconsideration, 26 FCC Rcd 5240 (adopted Apr. 7, 2011) (“2011 FCC Infrastructure Order”); In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies et al., Report and Order, 29 FCC Rcd 12865 (adopted Oct. 17, 2014). 17 FCC OTMR Order at para. 15. 18 Id. at para 25. 5

6 / 11 The FCC also found what actual evidence that was presented in support of safety

concerns was “anecdotal” and “unpersuasive.”19

The efficacy of the FCC’s OTMR Rules has also led a number of other states that have assumed jurisdiction over pole attachments to follow the FCC’s lead by implementing the FCC’s

OTMR Rules (or ones substantially similar) in their states. For example, in recent years, ,

Pennsylvania, , and West Virginia have all incorporated one-touch make-ready and attacher self-help provisions into their pole attachment rules.20 Electric utilities offered the same

arguments in each of those dockets, and each of those state commissions found them similarly

unpersuasive.21 California should follow the lead of these states, where adoption of the FCC’s

OTMR Rules has helped accelerate broadband deployment without sacrificing safety.

The FCC also highlighted the numerous safeguards it implemented to help ensure that

OTMR and self-help would be performed safely, including:

• Allowing utilities to maintain lists of approved contractors and requiring that self-help work be conducted by such contractors,22

• Requiring any contractors performing OTMR and self-help to meet both the utility’s safety and operational guidelines and those promulgated by the National Electric Safety Code and the Occupational Safety and Health Administration, among others,23

19 See id. at para. 25. 20 See, e.g., Maine Public Utilities Commission Docket Nos. 2019-00028 and 2020-00281; Pennsylvania Public Utility Commission, Docket No. L-2018-3002672; Vermont Public Utility Commission, Case No. 19-0252-RULE; and Public Service Commission of West Virginia, General Order No. 261. 21 See, e.g., Pennsylvania Public Utility Commission, Final Rulemaking Order, Docket No. L-2018- 3002672 (Aug. 29, 2019) at 17, (“Moreover, the Commission considers the public interest in all proceedings before it, and we are keenly aware of our responsibility to ensure that public utility service is provided in a safe, adequate, and reliable manner.”) 27 (“Adoption of the federal rules, including the proposed mechanism for adopting future changes to those rules, supports the cooperative state-federal goal of deployment of broadband across the Commonwealth, while also considering the safety, adequacy, and reliability of electric service in a manner that is consistent with due process.”); Maine Public Utilities Commission, Order Amending Rule and Statement of Factual and Policy Basis, Docket No. 2019-00028 (Nov. 6, 2019) at 3-6 (summarizing positions of parties re: safety before adopting amendments to rules). 22 See FCC OTMR Order at para. 25. 23 See id. at para. 39. 6

7 / 11 • Providing utility (and existing attacher) representatives advance notice of work on the pole and the opportunity to be present for the survey and make-ready work,24

• The aforementioned “simple/complex” dichotomy for OTMR and self-help, and others.

These safeguards are mirrored in the Proposal, providing pole owners with the same regulatory guardrails.25 And these regulatory safeguards are accompanied by the important fact that attachers have as much incentive to ensure that attachments are performed safely: for the safety of their workers and contractors, the security of their networks, and of course, the liability regime attendant with the work being performed.

SCE makes the misleading admonition that there is not a record to warrant access timelines “whereby applications would be automatically approved even if they are unsafe.”26

First, the implication that there is an insufficient record on the safety impact of “shot clocks”

disregards that the FCC first imposed access timelines on utilities over a decade ago, in 2011.27

After seven years, instead of indicating that these timelines had produced safety issues, the evidence instead showed the FCC hadn’t gone far enough to deal with systemic utility access

delays – leading to rules further streamlining the FCC’s survey and make-ready processes in

2018.28 But regardless, while SCE wants the Commission to believe otherwise, the bottom line is

24 See id. at paras. 54, 67. 25 See Proposal at Section IV.H.4 (requiring utilities keep a list of authorized contractors); Section IV.H.6 (setting minimum qualifications for contractors, including compliance with utility guidelines and the Commission’s General Order 95 attacher safety guidelines); Section IV.E.1 (requiring notice to affected utilities of failure to survey and allowing utilities to be present at survey); and Section II (incorporating the FCC “simple”/”complex” make-ready distinctions). 26 SCE Comments at 3 (emphasis in text). 27 See 2011 FCC Infrastructure Order, at para. 3 (“In its efforts to identify barriers to affordable telecommunications and broadband services, the Commission has recognized that lack of reliable, timely, and affordable access to physical infrastructure—particularly utility poles—is often a significant barrier to deploying wireline and wireless services. There are several reasons for this. First, the process and timeline for negotiating access to poles varies across the various utility companies that own this key infrastructure. The absence of fixed timelines and the potential for delay creates uncertainty that deters investment.”) 28 See FCC OTMR Order at para. 79 et seq. (adopting “significant incremental improvements” to the timelines put in place in 2011 for the survey/make-ready process.) 7

8 / 11 that there is nothing in the Proposal, or in the FCC’s implementation of OTMR and self-help

remedies, that robs utilities of the ultimate control of the safety of their networks, a principle

enshrined in both federal and California law.29 Assertions to the contrary are an attempt for utilities to provide post-facto justification for the core issue, for which ample evidence does

exist: that pervasive access delays on the part of utilities have hampered the ability of broadband

providers to deploy their networks, both in California and nationwide.30 Were it not for such delays, the FCC’s multiple actions to streamline deployment (and indeed, the instant proceeding) would not be necessary. No application, safe or unsafe, will ever be automatically approved – and indeed, no self-help remedy will ever be required – if the utility is meeting its reasonable, required timelines for access.

The Commission should not allow its positive work to remove barriers to deployment to be delayed in order to re-litigate unpersuasive safety claims on which a comprehensive record is available and the safeguards in the Proposal would prevent. Accordingly, there is no need for the

Commission to implement workshops regarding the Proposal.

29 See 47 U.S.C. 224(f)(2) (“a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non- discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes”); see also Cal. Pub. Util. Comm’n, Commission-Adopted Rules Governing Access to Rights-of-Way and Support Structures of Incumbent Telephone and Electric Utilities at Section VI.A.1 (“Nondiscriminatory access is access on a first-come, first-served basis; access that can be restricted only on consistently applied nondiscriminatory principles relating to capacity constraints, and safety, engineering, and reliability requirements.”) 30 See, e.g., FCC OTMR Order at para. 8 (“A number of commenters allege that pole attachment delays and the high costs of attaching to poles have deterred them from deploying broadband … Commenters in particular point to the make-ready stage of our current timeline as the largest source of high costs and delays in the pole attachment process.”) 8

9 / 11 IV. MODIFICATIONS TO THE PROPOSAL WOULD UNDERMINE THE EFFICACY OF THE FCC’S PROVEN AND SUCCESSFUL OTMR RULES

In addition to workshops, the IOUs asked for a number of changes to the FCC’s field-

tested OTMR Rules, such as significantly longer deadlines, higher fees, and modifications to the

“large order” threshold.31 These unnecessary changes would only increase barriers to broadband

deployment and should be rejected out of hand. Some other commenters asked instead for

adjustments to the Proposal in the spirit of going further to streamline deployment in

California.32 While CTIA commends the intentions behind these suggestions, they should also be

rejected by the Commission.

As CTIA noted in its comments, the major advantage of the Commission adopting the

Proposal, which substantially mirrors the FCC’s OTMR Rules, is the consistency and efficiency

a proven, nationwide OTMR and self-help regime brings.33 Nationwide carriers are already familiar with the FCC’s rules, making the terms of the Proposal familiar to them. In turn, this consistency incents increased deployment in California, where attachers will know that the

Commission is taking steps to prevent unnecessary delays in pole access. Even well-intentioned changes to the FCC’s regime would disrupt this consistency, and worse, could introduce unforeseen issues to the detriment of stakeholders.

The Commission therefore should move expeditiously to adopt its Proposal without any changes. However, if the Commission does choose to make any changes to Staff’s Proposal, it should re-issue the Proposal for comment prior to consideration by the Commission so all stakeholders have a chance to review the changes and advise the Commission on what potential impacts they would have on deployment.

31 See, e.g., PG&E Comments at 2, SDG&E Comments at 2-4, SCE Comments at 7-10. 32 See, e.g., Crown Castle Comments at 8-15, Sonic Comments at 31-39. 33 See CTIA Comments at 6-7. 9

10 / 11 V. CONCLUSION

The Commission’s Proposal to implement OTMR Rules in California is a prudent and

necessary step towards removing barriers to infrastructure deployment, as evidenced by the

adoption of such rules by the FCC and a number of reverse-preemption states. The Commission

should move expeditiously to adopt the Proposal without any changes.

Respectfully submitted April 28, 2021, at San Francisco, California.

By: /s/ Jeanne B. Armstrong Jeanne B. Armstrong

GOODIN, MACBRIDE, SQUERI & DAY, LLP 505 Sansome Street, Suite 900 San Francisco, California 94111 Telephone: 415.392.7900 Email: [email protected]

Attorneys for CTIA

3100/015/X226498.v1

10

Powered by TCPDF (www.tcpdf.org) 11 / 11