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Petition of Ctia - the Wireless ) Association to Update and Clarify ) Case 16-M-0330 Wireless Pole Attachment ) Protections )

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Petition of Ctia - the Wireless ) Association to Update and Clarify ) Case 16-M-0330 Wireless Pole Attachment ) Protections ) BEFORE THE NEW YORK STATE PUBLIC SERVICE COMMISSION PETITION OF CTIA - THE WIRELESS ) ASSOCIATION TO UPDATE AND CLARIFY ) CASE 16-M-0330 WIRELESS POLE ATTACHMENT ) PROTECTIONS ) COMMENTS OF THE CABLE TELECOMMUNICATIONS ASSOCIATION OF NEW YORK The Cable Telecommunications Association of New York, Inc. (“CTANY”), an industry trade association representing the interests of cable operators and competitive telecommunications service providers in New York, respectfully submits these comments on behalf of its members Charter Communications Operating, LLC (“Charter”) and Altice USA, Inc. (“Altice USA”) in response to the Commission’s November 12, 2019 Notice Seeking Comments in the above- captioned proceeding (“Notice”).1 Charter and Altice USA (collectively “Companies”) have decades of experience deploying networks using utility poles and managing other rights of way related issues nationwide, including in New York, and present these comments to assist the New York Public Service Commission’s (“PSC” or “Commission”) efforts “to enhance[] both wireline and wireless pole attachment policies.”2 Reasonable and efficient pole attachment procedures and policies are essential to the ability of CTANY’s members to install, extend and operate advanced communication services networks and new technologies throughout our state. As explained herein, targeted enhancements to the Commission’s existing pole attachment rules and policies would significantly contribute to the timely and efficient deployment of wireline and wireless 1 Petition of CTIA – The Wireless Association to Initiate a Proceeding to Update and Clarify Wireless Pole Attachment Protections, Notice Seeking Comments, Case 16-M-0330 (March 14, 2019). 2 Id. at 1. 4841-0589-8160v.1 0108600-000030 4851-0345-5921v.2 0108600-000030 facilities, and spur competition and innovation, while protecting the integrity and reliability of existing networks, which will serve to benefit all New York residents and businesses. I. EXECUTIVE SUMMARY For more than 35 years, the Commission has promoted the development and deployment of cable, telecommunications (both wireline and wireless), and other advanced communications networks through a range of regulatory actions including its pole attachment orders and policies. In 1997, for example, the Commission adopted the Federal Communication Commission’s (“FCC”) pole attachment rate formula and certain other operational rules, recognizing that “[s]ince the enactment of the Telecommunications Act of 1996 there has emerged a clear need for ‘cooperative federalism’ in this and other areas of telecommunications so as to provide consumers the full benefit available from the development of competitive markets.”3 The Commission’s 2004 “Order Adopting Policy Statement on Pole Attachments” and “Policy Statement on Pole Attachments” (together, “2004 Order”) further “streamline[d] the process by which attachments to utility poles are made in order to promote the deployment of competitive telecommunications networks.”4 Specifically, the rules adopted in the 2004 Order served to expedite the pole attachment process and reduce the costs of deploying networks using utility poles by, among other things, establishing application, survey and make-ready timeframes, entrusting attachers to hire contractors to perform certain tasks and employ time and cost-saving construction methods, and adopting an alternative dispute resolution process.5 3 Certain Pole Attachment Issues Which Arose in Case No. 94-C-0095, Opinion No. 97-10, Case 95-00341, at 6 (June 17, 1997) recon. denied, Order Denying Petitions for Reconsideration and Rehearing (Oct. 7, 1997) (“1997 Order”). 4 Proceeding on Motion of the Commission Concerning Certain Pole Attachment Issues, Order Adopting Policy Statement on Pole Attachments, Case 03-M-0432, at 1 (Aug. 6, 2004) (“NY 2004 Pole Order”). 5 2004 Order at 21-35. 2 4851-0345-5921v.2 0108600-000030 In recent years, however, the volume of pole attachment activity in New York has increased substantially creating significant application backlogs and highlighting deficiencies with the current pole attachment rules and remedies. Today, New York faces unprecedented pole attachment activity from Buffalo to Montauk Point. Significant growth in consumer demand for advanced wireline and wireless services has led communications providers to expand their networks (on new and existing utility poles).6 In addition, the State of New York has entered into a number of ambitious programs to encourage broadband deployment. Among these initiatives is the $500 million New NY Broadband Program.7 Most recently, Governor Cuomo announced a new initiative to address infrastructure gaps that are creating dead zones in cell service across the state.8 At the same time, New York’s two largest cable companies, Charter and Altice USA, are investing substantial private capital to fund large-scale network upgrades (as in the case of Altice USA’s Fiber to the Home initiative) and/or comply with build-out efforts pursuant to Commission merger approvals. As part of its merger with Time Warner Cable (“TWC”), for example, Charter agreed to build out its network to 145,000 premises in unserved and underserved areas of New York.9 Similarly, Altice USA 6 In addition to providing cable, phone and broadband services to New York residences and businesses, CTANY members’ also provide critically important backhaul solutions for wireless carriers. 7 See NEW YORK BROADBAND OFFICE, https://nysbroadband.ny.gov/ (establishing grant funding to support projects that deliver high-speed Internet access to unserved and underserved areas of New York State at speeds of 100 Megabits-per-second (Mbps)). 8 See https://www.democratandchronicle.com/story/news/2020/01/08/how-cuomo-wants-improve-cell-service-and- end-dead-zones-across-ny/2846065001/ 9 Joint Petition of Charter Communications and Time Warner Cable for Approval of a Transfer 0f Control of Subsidiaries and Franchises, Pro Forma Reorganization, and Certain Financing Arrangements, Order Granting Joint Petition Subject to Conditions, Case 15-M-0388 ( NY PSC Jan. 8, 2016). 3 4851-0345-5921v.2 0108600-000030 committed to extending its network to specific communities in Long Island and the Hudson Valley.10 From a broad policy perspective, it is not clear whether the level of wireline construction now occurring in the State represents the “new normal” or how increased wireless deployments will impact these activities. At a minimum, our state is facing several more years of substantial pole attachment activity—from both wireline and wireless companies—that will require rules that not only promote efficiency, but also ensure that pole owners have the resources required to meet this heightened level of activity and attachers have effective remedies to address any lack of resources and to prevent/minimize outages. At the same time, the rules must include safeguards necessary to protect existing attachers’ substantial investment in broadband networks serving our state’s residents and businesses. To this end, CTANY respectfully requests that the Commission reaffirm and build upon its previous actions to improve the existing pole attachment process, by adopting regulations that address among other things: Collaborative field processes to enhance enforceable timeframes for processing applications, and performing surveys and make-ready, including the appointment of a single pole administrator for managing jointly-owned poles and facilitating participation by existing attachers; The timely delivery of power to attacher power supplies; Enforceable access timeframes to accommodate large projects in a business-as-usual environment, similar to those adopted by the FCC and other certified states; 10 Joint Petition of Altice N.V. and Cablevision Systems Corporation and subsidiaries for Approval of a Holding Company Level Transfer of Control of Cablevision Lightpath, Inc. and Cablevision Cable Entities, and for Certain Financing Arrangements, Order Granting Joint Petition Subject to Conditions, Case 15-M-0647 (NY PSC June 15, 2016). 4 4851-0345-5921v.2 0108600-000030 Use of qualified contractors hired by attachers to ensure that survey and make-ready work is performed timely when utility employees and/or utility contractors are unavailable; and Pole owner notification to attachers prior to rate tariff filings to ensure lawful rates. CTANY believes that these and the other targeted enhancements discussed in more detail below will enable the Commission to achieve its goal of establishing pole attachment processes that continue to facilitate rapid deployment of new and existing technologies, while maintaining high standards of safety and reliability. II. BACKGROUND In delivering upon commitments to expand and upgrade their communications networks to bring advanced services to unserved and underserved communities, both Charter and Altice USA have greatly increased their aerial plant construction in New York. Since Charter began expanding its network following its merger with TWC, it has constructed over 6,000 miles of plant. Altice USA began substantial work on its FTTH initiative, built a new network in Oak and Gilgo beaches, and extended its plant to additional residences and businesses in the Town of Milan in Dutchess County and to requesting households in its franchise areas. Insofar as much of this construction activity is occurring in more remote parts of New York State, the number of poles implicated in these large-scale construction programs is very significant (build-out
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