July 12, 2018 * FCC FACT SHEET Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment Third Report and Order and Declaratory Ruling - WC Docket No. 17-84; WT Docket No. 17-79 Background: This Third Report and Order would adopt a new framework for the vast majority of pole attachments governed by federal law by instituting a “one-touch make-ready” (OTMR) regime, in which the new attacher may opt to perform all work to prepare a pole for a new attachment. OTMR should accelerate broadband deployment and reduce costs by allowing the party with the strongest incentive to prepare the pole to efficiently perform the work itself. This Declaratory Ruling would conclude that section 253(a) of the Communications Act prohibits state and local moratoria on telecommunications facilities deployment. What the Report and Order Would Do: • Permit new attachers to elect an OTMR process for simple make-ready for wireline attachments in the “communications space” on a pole. o Establish safeguards in the OTMR process to promote coordination among the parties and ensure that new attachers perform work safely and reliably. o Retain a multi-party process for other new attachments where safety and reliability risks are greater, while making some modifications to speed deployment. • Codify the Commission’s existing precedent that permits attachers to “overlash” existing wires without first seeking the utility’s approval while allowing the utility to request reasonable advance notice of overlashing. • Eliminate outdated disparities between the pole attachment rates incumbent carriers must pay compared to other similarly-situated cable and telecommunications attachers. • Make clear that the FCC will preempt, on an expedited case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster. What the Declaratory Ruling Would Do: • Conclude that state and local moratoria on telecommunications services and facilities deployment are barred by section 253(a) of the Communications Act because they “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” o Define “moratoria” barred by section 253(a) to include both express moratoria and de facto moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits. • Determine that moratoria are generally not protected by the exceptions to the section 253(a) prohibition. • Direct the Wireline Competition Bureau and Wireless Telecommunications Bureau to act promptly on petitions challenging specific alleged moratoria. * This document is being released as part of a “permit-but-disclose” proceeding. Any presentations or views on the subject expressed to the Commission or its staff, including by email, must be filed in WC Docket No. 17-84, which may be accessed via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/). Before filing, participants should familiarize themselves with the Commission’s ex parte rules, including the general prohibition on presentations (written and oral) on matters listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s meeting. See 47 CFR § 1.1200 et seq. Federal Communications Commission FCC-CIRC1808-03 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Accelerating Wireline Broadband Deployment by ) WC Docket No. 17-84 Removing Barriers to Infrastructure Investment ) ) Accelerating Wireless Broadband Deployment by ) WT Docket No. 17-79 Removing Barriers to Infrastructure Investment ) THIRD REPORT AND ORDER AND DECLARATORY RULING* Adopted: [] Released: [] By the Commission: TABLE OF CONTENTS Para. I. INTRODUCTION .................................................................................................................................. 1 II. BACKGROUND .................................................................................................................................... 5 III. REPORT AND ORDER ...................................................................................................................... 13 A. Speeding Access to Poles ............................................................................................................... 14 1. New OTMR-Based Pole Attachment Process ......................................................................... 16 2. Targeted Changes to the Commission’s Existing Pole Attachment Process ........................... 71 3. Treatment of Overlashing ...................................................................................................... 107 B. New Attachers are Not Responsible for Preexisting Violations .................................................. 112 C. Addressing Outdated Rate Disparities ......................................................................................... 114 D. Other Pole Attachment Issues ...................................................................................................... 121 E. Legal Authority ............................................................................................................................ 126 F. Rebuilding and Repairing Broadband Infrastructure After Disasters .......................................... 129 IV. DECLARATORY RULING .............................................................................................................. 130 A. Background .................................................................................................................................. 131 B. Discussion .................................................................................................................................... 134 1. Moratoria Violate Section 253(a) .......................................................................................... 135 2. Moratoria Are Generally Not Protected Under the Section 253(b) and (c) Exceptions ........ 143 * This document has been circulated for tentative consideration by the Commission at its August 2018 open meeting. The issues referenced in this document and the Commission’s ultimate resolution of those issues remain under consideration and subject to change. This document does not constitute any official action by the Commission. However, the Chairman has determined that, in the interest of promoting the public’s ability to understand the nature and scope of issues under consideration, the public interest would be served by making this document publicly available. The FCC’s ex parte rules apply and presentations are subject to “permit-but-disclose” ex parte rules. See, e.g., 47 C.F.R. §§ 1.1206, 1.1200(a). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules, including the general prohibition on presentations (written and oral) on matters listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s meeting. See 47 CFR §§ 1.1200(a), 1.1203. Federal Communications Commission FCC-CIRC1808-03 3. Authority to Act..................................................................................................................... 151 V. PROCEDURAL MATTERS .............................................................................................................. 159 VI. ORDERING CLAUSES ..................................................................................................................... 163 APPENDIX A – Final Rules APPENDIX B – Final Regulatory Flexibility Analysis I. INTRODUCTION 1. Today, we continue our efforts to promote broadband deployment by speeding the process and reducing the costs of attaching new facilities to utility poles.1 Now, more than ever, access to this vital infrastructure must be swift, predictable, safe, and affordable, so that broadband providers can continue to enter new markets and deploy facilities that support high-speed broadband. Pole access also is essential to the race for 5G because mobile and fixed wireless providers are increasingly deploying innovative small cells on poles and because these wireless services depend on wireline backhaul.2 Indeed, an estimated 100,000 to 150,000 small cells will be constructed by the end of 2018, and these numbers are projected to reach 455,000 by 2020 and 800,000 by 2026.3 2. In today’s order, we take one large step and several smaller steps to improve and speed the process of preparing poles for new attachments, or “make ready.” 4 Make-ready generally refers to the modification or replacement of a utility pole, or of the lines or equipment on the utility pole, to accommodate additional facilities on the pole. Consistent with the recommendations of the Broadband Deployment Advisory Committee (BDAC),5 we fundamentally shift the framework for the vast majority of attachments governed by federal law by adopting a new pole attachment process that includes “one- touch make-ready” (OTMR), in which the new attacher performs all make-ready work. OTMR speeds and reduces the cost of broadband deployment by allowing the party with the strongest incentive —the new attacher—to prepare the pole quickly to perform all of the work itself, rather than spreading the work across multiple parties. By some estimates, OTMR alone could result in approximately 8.3 million incremental premises passed with fiber and about $12.6 billion in