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August 3, 2021 Via Electronic Filing Jeffrey R. Gaudiosi, Esq. Executive

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August 3, 2021 Via Electronic Filing Jeffrey R. Gaudiosi, Esq. Executive 20 Church Street 20th Floor Hartford, CT 06103 Telephone: 860-525-5065 Fax: 860-527-4198 www.lockelord.com David W. Bogan Direct Telephone: 860-541-7711 Direct Fax: 866-877-2145 [email protected] August 3, 2021 Via Electronic Filing Jeffrey R. Gaudiosi, Esq. Executive Secretary Public Utilities Regulatory Authority 10 Franklin Square New Britain, CT 06051 Re: Docket No. 19-01-52RE01 - PURA Investigation of Developments in the Third Party Pole Attachment Process – Make Ready Dear Mr. Gaudiosi: CTIA1 hereby submits its comments in response to the Connecticut Public Utilities Regulatory Authority’s (“Authority’s”) June 23, 2021 Notice of Request for Written Comments (the “Notice”) in the above-referenced proceeding. CTIA appreciates the Authority’s willingness to investigate and implement improvements to the small cell antenna and wireless attachment process in Connecticut, including its proposal to implement a One Touch Make Ready (“OTMR”) and self-help process. CTIA respectfully provides the following responses to the Authority’s specific requests. I. Please provide an OTMR Proposal for Connecticut in the form of a redline version of an existing OTMR process, either the FCC’s guidelines in 47 C.F.R. § 1.1411(j) or guidelines currently being used in another jurisdiction (i.e. Vermont, Maine). CTIA suggests that the Authority’s overarching goal with its pole attachment rules should be to mirror as closely as possible the Federal Communications Commission’s (“FCC’s”) pole 1 CTIA – The Wireless Association® (“CTIA”) (www.ctia.org) represents the U.S. wireless communications industry and the companies throughout the mobile ecosystem that enable Americans to lead a 21st -century connected life. The association’s members include wireless carriers, device manufacturers, suppliers as well as apps and content companies. CTIA vigorously advocates at all levels of government for policies that foster continued wireless innovation and investment. The association also coordinates the industry’s voluntary best practices, hosts educational events that promote the wireless industry, and co-produces the industry’s leading wireless tradeshow. CTIA was founded in 1984. Atlanta | Austin | Boston | Brussels | Chicago | Cincinnati | Dallas | Hartford | Hong Kong | Houston | London | Los Angeles Miami | New Orleans | New York | Princeton | Providence | San Francisco | Stamford | Washington DC | West Palm Beach 94006944v.1 Jeffrey R. Gaudiosi, Esq. August 3, 2021 Page 2 attachment regime, which is presently in effect in at least 28 states.2 The FCC’s regime has proven fair and effective at balancing the needs of pole owners and pole attachers while promoting efficient broadband deployment. Having a consistent framework for pole attachments from state to state facilitates broadband deployment by promoting efficient use of resources. CTIA is encouraged that the Authority is examining the possibility of adopting rules conforming to 47 C.F.R. § 1.1411(j) to govern OTMR and self-help remedies, and encourages the Authority to pursue that path. Closely aligning the Authority’s rules with the FCC’s would help to ensure that Connecticut benefits from the FCC’s recent work to streamline deployment. Connecticut would not be alone in closely aligning its rules with the FCC. For instance, since the start of 2019, West Virginia adopted rules that are substantively identical to the FCC’s, and Pennsylvania simply incorporated the FCC’s rules by reference, including all precedent and future updates. Accordingly, both states have OTMR and self-help rules that mirror the FCC’s.3 CTIA encourages the Authority to take the same approach, and adopt rules closely mirroring 47 C.F.R. § 1.1411(j). II. Please provide copies of any reports in existence setting forth goals, successes, and failures of any aspect of another jurisdiction’s experience with an OTMR process. CTIA has no such reports and is unaware of any such reports in any jurisdiction. However, several other jurisdictions, such as Maine, Pennsylvania, and West Virginia, as well as the FCC, have recognized the benefits of OTMR and self-help rules.4 The proliferation of such rules in multiple jurisdictions is evidence that they are a widely accepted solution for promoting timely deployment. Among the benefits of OTMR is that it unburdens the pole owner, allowing the most motivated parties to expedite deployment should they choose to do so, while still promoting safe attachment practices.5 2 See Public Notice, States That Have Certified that they Regulate Pole Attachments, WC Docket No. 10-101 (March 19, 2020). The states not listed on the Notice are subject to federal jurisdiction, but additionally, a number of states that have reverse-preempted the FCC’s pole attachment authority have nonetheless adopted rules substantially similar to the FCC’s. 3 See Public Service Commission of West Virginia, Commission Order, General Order No. 261 (Dec. 5, 2019), as codified at 150 C.S.R. 38 et seq.; Pennsylvania Public Utility Commission, Final Rulemaking Order, L-2018-3002672 (Sep. 3, 2019), as codified at 52 Pa. Code §77.1 et seq. 4 See, e.g., Maine Pub. Util. Comm’n, Order Amending Rule and Statement of Factual and Policy Basis, Docket No. 2020-00281 (Apr. 8, 2021) at 13 (“The Commission is amending the Rule to add provisions for "one touch make- ready" (OTMR) […] OTMR is intended to streamline and accelerate the attachment of facilities to poles. […] As demonstrated by several attachers who are currently in the field attempting to complete pole attachments—in particular pole attachments that will lead to increased broadband availability in Maine—waiting for one or both pole owners to complete simple survey work is indeed causing delays in performing this essential work.”); See also Pennsylvania Public Utility Commission, Final Rulemaking Order, L-2018-3002672 (Sep. 3, 2019) at 38 (“The Commission rejects the suggestion […] to ignore the OTMR.) 5 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Third Report and Order and Declaratory Ruling, 33 FCC Rcd 7705 (2018) ("FCC OTMR Order") at paras 16-24. 94006944v.1 Jeffrey R. Gaudiosi, Esq. August 3, 2021 Page 3 III. Identify the major impediments to small cell antenna and wireless attachment deployment and comment on what changes to the existing framework will most effectively mitigate these impediments. The record in several prior proceedings before the Authority establishes that the failure of the pole owners to meet their obligations under the Authority’s defined timelines for deployment has proven a significant impediment to deployment. In its April 30, 2008 Decision in Docket No. 07-02-13, the Authority identified two phases in the utility pole attachment process, which are commonly referred to as the engineering phase and the make-ready phase.6 The Authority defined the engineering phase as involving the survey and engineering work necessary to determine the make-ready work required,7 while the make- ready phase was defined as including the work to prepare the utility pole(s) for proposed attachment(s), and it potentially involves shifting of existing attachments, installing replacement poles, wire bonding, and guying.8 The Authority required pole owners to complete the engineering phase within 45 days and to complete the make-ready phase within another 45 days, for a total interval of 90 days.9 Should pole replacement be required, the Authority allowed for a total of 125 days to complete the pole attachment process.10 Notwithstanding the Authority’s mandate, in its Final Decision in Docket 20-03-14, the Authority identified significant delays in processing pole attachment applications, and assessed significant penalties.11 The Authority cited the “substantial and continual delays in meeting the pole attachment timelines,” and found the “measures taken to address the backlog and prevent future delays have been insufficient.”12 The Authority rejected arguments by certain pole owners that the delays were a result of the failure of third-party attachers to shift facilities in a timely manner.13 Compliance filings submitted later in this proceeding demonstrate that these delays are ongoing, despite the fines assessed.14 In addition, New Cingular Wireless PCS, LLC d/b/a AT&T and Cellco Partnership d/b/a Verizon Wireless have both made recent compliance filings with the Authority that include data 6 See Docket No. 07-02-13, DPUC Review of the State’s Public Service Company Utility Pole Make-Ready Procedures-Phase I, Decision (April 30, 2008) at 15-16. 7 See id. 8 See id. 9 See id. at 18-19. 10 See id. at 19. 11 See Docket No. 20-03-14, PURA Investigation of Utility Pole Owners’ Compliance with Orders related to Pole Attachments, Final Decision (April 7, 2021). 12 Id. at 2, 4. 13 See id. at 14-15. Frontier asserted that third-party attachers were often responsible for delays in shifting facilities. The Authority rejected this argument, noting that it would not stay, suspend, or eliminate the assessed fine on the unproven claim that its failure to comply with the Authority’s deadlines was the result of third party attachers. 14 See e.g. Docket No. 20-03-14, PURA Investigation of Utility Pole Owners’ Compliance with Orders related to Pole Attachments, Connecticut Light and Power Company dba Eversource Energy Compliance Filing (June 30, 2021). 94006944v.1 Jeffrey R. Gaudiosi, Esq. August 3, 2021 Page 4 outlining the significant delays each has experienced in the construction of small cells for which the Authority has approved applications.15 While the Authority’s own processes for approving small cell applications are working well, Connecticut pole owners have not timely completed their work to enable wireless deployments. AT&T’s and Verizon Wireless’s compliance filings illustrate that the major impediments to wireless deployments remain the untimely installation of the electric power and backhaul circuits that wireless deployments require.
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