Rule2024-00416
Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
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Published
January 12, 2024
Effective
February 12, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) establishes rules creating a new process for the Commission's review and assessment of pole attachment disputes that impede or delay broadband deployment in order to expedite resolution of such disputes, and providing communications providers with information about the status of the utility poles they plan to use as they map out their broadband buildouts.
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<title>Federal Register, Volume 89 Issue 9 (Friday, January 12, 2024)</title>
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[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2151-2171]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00416]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket No. 17-84; FCC 23-109; FR ID 195734]
Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) establishes rules creating a new process for the
Commission's review and assessment of pole attachment disputes that
impede or delay broadband deployment in order to expedite resolution of
such disputes, and providing communications providers with information
about the status of the utility poles they plan to use as they map out
their broadband buildouts.
DATES: Effective February 12, 2024, except for Sec. Sec. 1.1411(c)(4)
(amendatory instruction 2) and 1.1415 (amendatory instruction 4), which
are delayed indefinitely. The Commission will publish a document in the
Federal Register announcing the effective date for those sections.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact either Michele Berlove, Assistant Division Chief, Competition
Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#d5b8bcb6bdb0b9b0fbb7b0a7b9baa3b095b3b6b6fbb2baa3"><span class="__cf_email__" data-cfemail="95f8fcf6fdf0f9f0bbf7f0e7f9fae3f0d5f3f6f6bbf2fae3">[email protected]</span></a> or at (202) 418-1477, or Michael Ray, Attorney
Advisor, Competition Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#34595d575c5551581a46554d745257571a535b42"><span class="__cf_email__" data-cfemail="c4a9ada7aca5a1a8eab6a5bd84a2a7a7eaa3abb2">[email protected]</span></a> or at (202) 418-0357. For additional information
concerning the Paperwork Reduction Act proposed information collection
requirements contained in this document, send an email <a href="/cdn-cgi/l/email-protection#6f1b003f3d2e2f090c0c41080019"><span class="__cf_email__" data-cfemail="35415a656774755356561b525a43">[email protected]</span></a>or
contact Nicole Ongele at (202) 418-2991.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order in WC Docket No. 17-84, adopted December 13, 2023, and
released December 15, 2023. The full text of this document is available
for public inspection at the following internet address: <a href="https://docs.fcc.gov/public/attachments/FCC-23-109A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-109A1.pdf</a>. To request materials
in accessible formats for people with disabilities (e.g., Braille,
large print, electronic files, audio format), send an email to
<a href="/cdn-cgi/l/email-protection#90f6f3f3a5a0a4d0f6f3f3bef7ffe6"><span class="__cf_email__" data-cfemail="b7d1d4d4828783f7d1d4d499d0d8c1">[email protected]</span></a> or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530.
Synopsis
I. Introduction
1. Access to a broadband connection is a necessity of modern life.
With consumers more dependent than ever on fixed and mobile broadband
networks for work, healthcare services, education, and social
activities, the Commission remains committed to ensuring consumers
across the nation have meaningful access to broadband. With the support
of the Commission's universal service fund, the Infrastructure
Investment and Jobs Act, which included the largest ever Federal
investment in broadband, as well as other Federal and state broadband
deployment programs, more funding than ever is available to build the
necessary infrastructure to bring much-needed broadband services to
unserved and underserved areas in the United States. Key to these
broadband projects are the utility poles that support the wires and the
wireless equipment that carry broadband to American homes and
businesses.
2. Over the last several years, the Commission has taken
significant steps in setting the ``rules for the road'' for the
discussions between utilities and telecommunications companies about
the timing and cost of attaching broadband equipment to utility poles,
with the backstop of a robust complaint process when parties cannot
agree on the rates, terms, and conditions for pole attachments. (Note
that section 224(c) of the Communications Act of 1934, as amended (the
Act), exempts from Commission jurisdiction those pole attachments in
states that have elected to regulate pole attachments themselves. To
date, 23 states and the District of Columbia have opted out of
Commission regulation of pole attachments in their jurisdictions. The
Commission's pole attachment rules currently only apply to cable
operators and providers of telecommunications services and therefore do
not apply to broadband-only internet service providers. We recently
proposed to reclassify broadband internet access service as a
telecommunications service, which would, if completed, apply section
224 and the Commission's pole attachment rules to broadband-only
internet service providers.) In this item, we take additional steps to
speed broadband deployment by making the pole attachment process
faster, more transparent, and more cost effective. Specifically, we
adopt rules (1) establishing a new process for the Commission's review
and assessment of pole attachment disputes that impede or delay
broadband deployment in order to expedite resolution of such disputes,
and (2) providing communications providers with information about the
[[Page 2152]]
status of the utility poles they plan to use as they map out their
broadband builds.
II. Background
3. In 1996, as part of its implementation of the pole attachment
requirements located in sections 224(h) and 224(i) of the Act, the
Commission determined that when a modification, such as a pole
replacement, is undertaken for the benefit of a particular party, then
under cost causation principles, the benefiting party must assume the
cost of the modification. (Section 224(h) states that whenever the
owner of a pole, duct, conduit, or right-of-way intends to modify or
alter such pole, duct, conduit, or right-of-way, the owner shall
provide written notification of such action to any entity that has
obtained an attachment to such conduit or right-of-way so that such
entity may have a reasonable opportunity to add to or modify its
existing attachment. Any entity that adds to or modifies its existing
attachment after receiving such notification shall bear a proportionate
share of the costs incurred by the owner in making such pole, duct,
conduit, or right-of-way accessible. Section 224(i) states that an
entity that obtains an attachment to a pole, conduit, or right-of-way
shall not be required to bear any of the costs of rearranging or
replacing its attachment, if such rearrangement or replacement is
required as a result of an additional attachment or the modification of
an existing attachment sought by any other entity (including the owner
of such pole, duct, conduit, or right-of-way).) The Commission also
found that when a utility decides to modify a pole for its own benefit,
and no other attachers derive a benefit from the modification, the
utility must bear the full cost of the new pole. The Commission further
adopted a cost sharing principle for when an existing attacher uses a
modification by another party as an opportunity to add to or modify its
own attachments and applied this principle to utilities and other
attachers seeking to use modifications as an opportunity to bring their
own facilities into compliance with safety or other requirements. In
the 2018 Wireline Infrastructure Order (83 FR 31659-02, July 9, 2018),
the Commission reiterated that application of the cost sharing
principle.
4. On July 16, 2020, NCTA--the internet & Television Association
(NCTA) filed a Petition asking the Commission to clarify its rules in
the context of pole replacements. Specifically, NCTA asked the
Commission to declare that: (1) utilities must share in the cost of
pole replacements in unserved areas pursuant to section 224 of the Act,
Sec. 1.1408(b) of the Commission's rules, and Commission precedent;
(2) pole attachment complaints arising in unserved areas should be
prioritized through placement on the Accelerated Docket under Sec.
1.736 of the Commission's rules; and (3) Sec. 1.1407(b) of the
Commission's rules authorizes the Commission to order a utility to
complete a pole replacement within a specified time frame or designate
an authorized contractor to do so. NCTA argued that without Commission
action, the costs and operational challenges associated with pole
replacements will inhibit attachers from deploying broadband services
to Americans in unserved areas.
5. In the 2021 Pole Replacement Declaratory Ruling, although the
Wireline Competition Bureau declined to act on NCTA's Petition, finding
that ``it is more appropriate to address questions concerning the
allocation of pole replacement costs within the context of a
rulemaking, which provides the Commission with greater flexibility to
tailor regulatory solutions,'' it observed that the record developed in
response to the NCTA Petition revealed inconsistent practices by
utilities with regard to cost responsibility for pole replacements.
Accordingly, the Bureau clarified that, pursuant to Sec. 1.1408(b) of
the Commission's rules and prior precedent, ``utilities may not require
requesting attachers to pay the entire cost of pole replacements that
are not solely caused by the new attacher and, thus, may not avoid
responsibility for pole replacement costs by postponing replacements
until new attachment requests are submitted.'' The Commission
subsequently affirmed the Bureau's clarifications.
6. Last year, the Commission issued a Second Further Notice of
Proposed Rulemaking (Second FNPRM) (87 FR 25181-01, Apr. 28, 2022) in
this proceeding seeking comment on the universe of situations where the
requesting attacher should not be required to pay for the full cost of
a pole replacement and the proper allocation of costs among utilities
and attachers in those situations. (To the extent that the Fourth
Report and Order does not expressly address a topic that was subject to
comment in the Second FNPRM, that issue remains pending.) Specifically,
the Commission sought comment on the applicability of cost causation
and cost allocation principles in the context of pole replacements--
e.g., when is a pole replacement not caused (necessitated solely) by a
new attachment request, and when and how parties must share in the
costs of a pole replacement. The Commission also sought comment on the
extent to which utilities directly benefit from pole replacements,
including a utility's responsibility for the costs of pole upgrades and
modifications unrelated to new attachments and the effect of early pole
retirements on pole replacement cost causation and cost allocation
calculations. The Second FNPRM also sought comment on whether the
Commission should require utilities to share information with potential
attachers concerning the condition and replacement status of their
poles and other measures that may help avoid or expedite the resolution
of disputes between the parties, including whether to expand use of the
Commission's Accelerated Docket for pole attachment complaints and the
specific criteria that Commission staff should use in deciding whether
to place a pole complaint on the Accelerated Docket. (To the extent
that the Fourth Report and Order does not expressly address a topic
that was subject to comment in the Second FNPRM, that issue remains
pending.)
III. Report and Order
7. In the Fourth Report and Order, we adopt measures to expedite
resolution of pole attachment disputes that impede or delay broadband
deployment. Specifically, we (1) establish an agency-wide rapid
response team to provide coordinated review and assessment of such pole
attachment disputes and to recommend effective dispute resolution
procedures, and (2) adopt specific criteria to guide that team when
considering whether a complaint (or portion thereof) should be included
on the Enforcement Bureau's Accelerated Docket. We also require
utilities to provide information regarding pole conditions and
scheduled replacements to the extent that information is contained in
cyclical pole inspection reports that utilities already create and
maintain in the ordinary course of their business, or in pole
inspection reports created between cyclical reports. (Both pole
attachers and utilities made several other proposals, not addressed
herein, regarding the process for pole attachments and replacements and
ways they believe the process could be improved to reduce disputes and
promote broadband deployment.)
A. Accelerating Resolution of Pole Attachment Disputes That Impede or
Delay Broadband Deployment
8. We amend our rules to prioritize and expedite the resolution of
pole attachment disputes that impede or
[[Page 2153]]
delay broadband deployment by establishing a Commission intra-agency
rapid response team--called the Rapid Broadband Assessment Team
(RBAT)--to provide coordinated review and assessment of such disputes.
(We codify these amendments in part 1, subpart J, of the Commission's
rules (i.e., Pole Attachment Complaint Procedures) by redesignating
current Sec. 1.1415 as Sec. 1.1416 and adding a new Sec. 1.1415.
These rule amendments apply only to disputes involving pole attachments
of a cable television system or a provider of telecommunications
service and do not apply to disputes involving pole attachments of a
broadband-only internet service provider. They also do not apply to
disputes involving poles that are owned or controlled by a railroad,
the Federal Government, a state (including a political subdivision
thereof such as a municipality), or a cooperative association, or where
the poles at issue are located in a state, or the District of Columbia,
that has certified to the Commission that it regulates the rates,
terms, and conditions of pole attachments in that state or jurisdiction
pursuant to 47 U.S.C. 224(c). Should we adopt the proposal set forth in
the Open internet NPRM (88 FR 76048-01, Nov. 3, 2023) to reclassify
broadband-only internet service as a telecommunications service,
section 224 would once again apply to broadband-only internet service
providers deployments.) At the outset, we emphasize that we expect all
parties to comply with the Commission's pole attachment rules and to
negotiate in good faith to craft solutions that suit the needs of
attachers and utilities to facilitate deployment projects. We
recognize, however, that in some instances disagreements arise as to
the conduct of one or multiple parties, and we encourage parties in
those instances to avail themselves of the Commission's dispute
resolution processes to both facilitate the resolution of disputes and,
when necessary, use the formal adjudication process to develop
precedent upon which parties can rely to settle future potential
disputes. In this document, we amend our rules to create the RBAT in an
effort to make the Commission's pole attachment dispute resolution
process more responsive and adaptable with the goal of facilitating
deployment.
9. The RBAT will be charged with expediting the resolution of these
disputes by swiftly engaging key stakeholders, gathering relevant
information, distilling issues in dispute, and recommending to the
parties, where appropriate, an abbreviated mediation process, placement
of a complaint (or portion of a complaint) on the Accelerated Docket
based on consideration of specified criteria, and/or any other action
that the RBAT determines will help the parties resolve their dispute.
(The Schools, Health & Libraries Broadband (SHLB) Coalition suggests
that creation of the RBAT may result in a needless administrative step
and associated delay, and suggests that the RBAT, if created, be vested
with authority to resolve disputes without going through the additional
step of a complaint process. We decline to adopt this approach. The
RBAT is designed to assist parties in resolving their dispute
expeditiously without need for litigation. But if parties are unable to
reach a resolution, either through mediation or other means, our
existing complaint procedures, including the Accelerated Docket, ensure
a means of adjudicating the dispute in accordance with due process.)
10. In the Second FNPRM, the Commission sought comment on NCTA's
proposed adoption of policies ``favoring the placement of pole
attachment complaints arising in unserved areas on the [Commission's]
Accelerated Docket[,]'' a mechanism that requires the Commission to
quickly resolve disputes between parties within 60 days. (Under Sec.
1.736(a), complaint proceedings on the Accelerated Docket must be
concluded within 60 days, and are therefore subject to shorter pleading
deadlines and other modifications to the procedural rules that govern
formal complaint proceedings.) It also sought comment on measures that
would expedite the resolution of ``pole replacement[ ]'' disputes and
on criteria for determining more generally ``when pole attachment
complaints should be placed on the Accelerated Docket.'' Based on broad
record support among attachers for further streamlining our processes
as applied to disputes that impede or delay broadband deployment, we
conclude that the targeted measures outlined below are warranted and
will advance the Commission's goal of timely broadband deployment.
11. As the Commission observed in the Second FNPRM, our current
rules provide a 180-day deadline (or shot clock) for final action on
pole access complaints where a cable television system operator or
provider of telecommunications service claims that it has been denied
access to a pole, duct, conduit, or right-of-way owned or controlled by
a utility. (For purposes of this subsection, the Commission has defined
a ``pole access complaint'' as a complaint ``filed by a cable
television system or a provider of telecommunications service that
alleges a complete denial of access to a utility pole[,]'' and
clarified that ``[the] term [pole access complaint] does not encompass
a complaint alleging that a utility is imposing unreasonable rates,
terms, or conditions that amount to a denial of pole access.'') In
addition, a 270-day shot clock currently applies to final action on all
other pole attachment complaints (i.e., those alleging unjust or
unreasonable rates, terms, or conditions of attachment). Several
commenters assert that these timeframes are commercially unreasonable
for attachers seeking to deploy broadband networks, particularly in
rural or unserved areas. (Charter asserts that the ``[m]ere existence''
of a path allowing more routine use of the Accelerated Docket ``could
help broadband providers resolve disagreements without the need for
Commission intervention'' by ``provid[ing] attachers facing government-
imposed construction deadlines with a more credible option of seeking
relief, thereby reducing the one-sided leverage held by pole owners
today.'') NCTA submits that the need for expedited procedures has
gained greater urgency recently for ``providers . . . receiving
government funds to build out broadband under deadlines that afford no
time for a lengthy complaint process.'' A number of commenters
therefore propose more routine use of the Accelerated Docket, with its
60-day shot clock, especially for pole attachment disputes involving
time-sensitive deployments in unserved areas. Several commenters also
contend that the current Accelerated Docket rule does not sufficiently
motivate utilities to comply with their obligation to allow pole access
because it is unclear when Commission staff, in the exercise of their
discretion under Sec. 1.736(d) of our rules, will include a matter on
the Accelerated Docket. Crown Castle asserts that ``without certainty
that the complaint will be promptly resolved, the decision to bring a
formal complaint to the Commission involves business decisions about
whether the resolution will be too late to meaningfully assist the
deployment.'' On the other hand, other commenters argue that sweeping
or widespread imposition of the Accelerated Docket rule, with its
highly compressed timeframes, could raise potential fairness and due
process concerns given the complexity of the issues raised in most pole
attachment cases. (Other commenters question the necessity of new rules
(1) due to the relative infrequency of requests for Accelerated Docket
treatment, see, e.g., Edison Electric Institute Comments at
[[Page 2154]]
54 (challenging the need to further expedite ``denial of access''
complaints based on ``[t]he complete absence of [such] complaints
before the Commission''), or (2) due to the lack of evidence of
instances where dilatory actions of utilities have caused broadband
grant recipients to lose access to such funding.) After considering
these competing concerns, we find that the adoption of targeted dispute
resolution reforms, as set forth below, will address the expressed need
for quicker resolution of pole attachment disputes that may impede or
delay broadband deployment while ensuring sufficient fairness and due
process for all involved parties.
12. Disputes Subject to RBAT Review and Assessment Procedures. The
Commission asked in the Second FNPRM whether any new dispute resolution
procedures should be ``limited to complaints that raise only discrete
pole access issues'' and do not require consideration of ``whether a
rate, term, or condition of attachment is unjust or unreasonable.'' To
address the need for timely broadband deployment, particularly in
unserved or underserved areas, we apply the new procedures discussed
below to any pole attachment dispute that a party alleges is impeding
or delaying the deployment of broadband facilities. To provide greater
clarity regarding when such a dispute would be eligible for placement
on the Accelerated Docket, we also adopt below specific criteria that
will guide the RBAT in determining when a dispute is suitable for
accelerated disposition. In light of the strict time constraints of the
Accelerated Docket, disputes raising relatively straightforward legal
and evidentiary issues, as determined based on the RBAT's review of
these criteria, are more likely to be considered appropriate for
placement on the Accelerated Docket.
13. Although the record reflects differing views regarding which
disputes should be subject to new dispute resolution procedures, a
significant proportion of commenters seeking such reforms ask that we
limit the focus of any new procedures to disputes that are interfering
with active broadband deployment plans or projects. We adopt this
suggestion based on our conclusion that focusing on pole attachment
disputes that impede or delay a provider's ability to deploy new
broadband facilities will align with, and advance most directly, the
goal of timely broadband deployment. (Several utilities argue that
across-the-board application of dispute resolution reforms to an entire
category of disputes would fail to account for complexities in
individual cases. But such comments assume that Accelerated Docket
treatment would automatically apply to all disputes within the
identified category. In fact, under the reforms we adopt herein, such
disputes will receive individualized assessment and review (by the
RBAT) based on a totality of factors analysis.)
14. RBAT Review and Assessment of Disputes that Impede or Delay
Broadband Deployment. To expedite the resolution of pole attachment
disputes that impede or delay an active broadband deployment project,
we amend our rules to establish the RBAT, which will be comprised of
Enforcement Bureau and Wireline Competition Bureau staff with expertise
in the Commission's pole attachment rules and orders. We charge the
RBAT with prioritizing the resolution of any pole attachment dispute
that a party alleges is impeding or delaying the deployment of
broadband facilities (including where the party is also seeking
placement of the matter on the Accelerated Docket under Sec. 1.736).
In performing this role, the RBAT will gather and promptly review all
pertinent information submitted by the parties and provide guidance and
advice on the most effective means of resolving the parties' dispute.
Where appropriate, the RBAT will recommend to the parties an
abbreviated mediation process, placement of a complaint, or portion of
a complaint, on the Accelerated Docket, and/or any other action that
the RBAT determines will help the parties resolve their dispute. The
RBAT will recommend use of the Accelerated Docket where it determines,
based upon a totality of the criteria outlined below, that a complaint,
or portion thereof, is suitable for accelerated disposition. (The RBAT
may recommend placement of a dispute on the Accelerated Docket in the
exercise of the discretion afforded Commission staff ``to decide
whether a complaint, or portion of a complaint, is suitable for
inclusion on the Accelerated Docket.'' A prospective complainant may
accept the recommendation, with or without the consent of the other
party or parties to the dispute, by moving forward with the agreed upon
schedule and process established by Commission staff in the case.) To
request RBAT review and assessment of a dispute that a party to the
dispute contends is impeding or delaying deployment of broadband
facilities, the party must first notify the Chief of the Enforcement
Bureau's Market Disputes Resolution Division (MDRD) of the request by
phone and in writing. (The RBAT review and assessment process will be
available only to attachers and pole owners that are direct parties to
such dispute (including any legal counsel retained to represent a party
in that specific dispute). For parties seeking both RBAT review and
inclusion of a proceeding relating to broadband facilities deployment
on the Accelerated Docket, this initial notification by phone and in
writing would need to be made prior to filing the formal complaint and
would constitute the notification required under Sec. 1.736(b).) The
MDRD Chief will direct the party to a streamlined form on the MDRD
website--Request for RBAT Review and Assessment--and to instructions
for completing and electronically transmitting the form to the RBAT.
The form will elicit information relevant to the scope and nature of
the dispute, and to whether the dispute is appropriate for expedited
mediation and/or placement on the Accelerated Docket. (The form will
require a submitting party to provide: information identifying the
parties and the services they offer; the section(s) of the Act or
Commission rule or order alleged to have been violated; a brief
description of the parties' dispute (including how it relates to
broadband deployment plans or projects, whether such plans or projects
are subject to a deadline under a government funded broadband program,
whether the dispute arises in an unserved or underserved area, what
harm is occurring or is likely to occur as a result of the situation,
and what aspects of the dispute require immediate redress); the
specific relief sought; whether the parties have entered into a non-
disclosure agreement; the steps the party has taken to resolve the
matter with other parties to the dispute; a statement as to whether the
parties are amenable to mediation; and a statement indicating whether
the party intends to seek inclusion of the matter on the Accelerated
Docket. The form also will elicit information relevant to whether the
dispute is suitable for accelerated disposition including, for example,
the number of poles in question, the number and complexity of claims at
issue, and the likely need for discovery or expert affidavits. The RBAT
may request additional information from the submitting party if more
information is necessary to determine a course of action.)
15. Upon receipt of the completed Request for RBAT Review and
Assessment, the RBAT will schedule a meeting through a manner of the
RBAT's choosing, with all parties as soon as practicable. The RBAT may
[[Page 2155]]
request a written response from the other party or parties to the
dispute with respect to one or more issues raised by the party seeking
RBAT review. The RBAT also may request that one or both parties provide
the RBAT with documentation or other information relevant to the
dispute. (NCTA suggests that we specify the information the respondent
will be required to provide. We find this approach impracticable, as
the information required in a response will depend on the complainant's
allegations. We employ a more flexible approach that enables the RBAT
to request relevant information and documentation from either party, as
appropriate.) In the initial meeting, or in a meeting shortly
thereafter, the RBAT will provide guidance and advice to the parties on
the most effective means of resolving their dispute, including staff-
supervised mediation, use of the Accelerated Docket, and/or other
action. (Because mediation will be a prominent feature of the RBAT
review, we decline to adopt INCOMPAS's proposal that the 180-day
deadline for resolution of a pole access complaint be triggered by the
submission of the request for RBAT Review and Assessment. If mediation
succeeds, there will be no need for a complaint. If it does not, the
filing of a complaint will commence review period deadlines under the
relevant Commission rules.) To that end, the RBAT will attempt to
distill the issues in dispute and identify issues that are most
impacting a party's broadband deployment plans. For example, the RBAT
may encourage parties to focus on the resolution of one or more
threshold issues, or what appears to be the most urgent issue(s), if it
finds that doing so may help the parties to narrow their dispute.
Likewise, the RBAT may encourage parties, where appropriate, to
streamline the proceeding by agreeing to focus on ``test cases''--i.e.,
disputes over specific poles that the parties agree are representative
of disputes over multiple poles. In this way, deciding the issue as to
the test case will have broader impact.
16. Should the RBAT recommend staff-supervised mediation, it shall
be conducted pursuant to Sec. 1.737 of the Commission's rules. Because
Sec. 1.737 generally contemplates that mediations will be conducted by
MDRD staff, we delegate authority to the MDRD Chief, in consultation
with the RBAT, to modify or waive the procedures or requirements of
Sec. 1.737 as appropriate in this context, or as needed in light of
the facts or circumstances of a particular case. (Waiver is appropriate
for ``good cause,'' and is warranted only if both: (1) special
circumstances warrant a deviation from the general rule, and (2) such
deviation will serve the public interest.) The strict confidentiality
requirements will apply to all written and oral communications prepared
or made for purposes of a mediation pursuant to Sec. 1.737(f),
including mediation submissions, offers of compromise, and staff and
party comments made during the course of the mediation (Mediation
Communications). Through mediation, the RBAT will make every effort to
settle or narrow the issues in dispute as expeditiously as possible.
17. In the event that the parties are unable to settle their
dispute, and a prospective complainant seeks placement of its complaint
on the Accelerated Docket, the RBAT will decide whether the complaint
or a portion of the complaint is suitable for inclusion on the
Accelerated Docket based on the totality of the criteria set forth
below. Because of the very short deadlines that apply in Accelerated
Docket proceedings, Commission staff historically have carefully
evaluated whether a particular dispute is appropriate for expedited
disposition, resulting in the placement of relatively few cases on the
Accelerated Docket. In evaluating whether a matter is suitable for
expedited disposition, the RBAT must similarly be mindful of the due
process concerns raised by commenters, such as the Pennsylvania PUC,
regarding affording parties ``the opportunity to be heard at a
meaningful time and in a meaningful manner.'' In addition, although
mediation is generally voluntary, the RBAT may require that the parties
participate, if appropriate, in pre-filing settlement negotiations or
mediation under rule 1.737 as a condition for including a matter on the
Accelerated Docket. Finally, if the RBAT determines that a matter is
suitable for inclusion on the Accelerated Docket, the RBAT is
authorized to send appropriate matters to the Commission's
Administrative Law Judge (ALJ) for an expedited ``minitrial'' (i.e.,
trial-type hearing) as contemplated by Sec. 1.736(h).
18. Criteria for Placement on the Accelerated Docket. The
Commission sought comment in the Second FNPRM on the adoption of
specific criteria to guide Commission staff on ``when pole attachment
complaints should be placed on the Accelerated Docket.'' (For example,
the Commission asked if its policy should ``take into account the
number and complexity of the claims, need for discovery, need for
expert affidavits, and ability of the parties to stipulate to facts.'')
Based on the requests of several commenters for greater predictability
surrounding Accelerated Docket placement decisions with respect to pole
attachment disputes that impede or delay broadband deployment, we
establish criteria to aid the RBAT in making determinations regarding
the placement of such matters on the Accelerated Docket.
19. In light of the strict time constraints that apply in
Accelerated Docket cases, we decline to adopt a ``presumption,'' as
suggested by some commenters, that all pole access disputes for active
deployments be placed on the Accelerated Docket and, instead, entrust
the RBAT with this decision based on the criteria specified below.
(There is no basis for us to conclude that a dispute will be suitable
for the Accelerated Docket simply based on the number of poles at issue
as INCOMPAS's proposal suggests.) We agree with Dominion/Xcel that a
``one-size-fits-all policy'' would not adequately take into account the
complexity of the issues in particular complaint proceedings. We also
agree with the Coalition of Concerned Utilities that the 60-day
timeframe will be ``too short'' to resolve certain pole attachment
disputes, and thus ``blanket imposition'' of the Accelerated Docket
requirements would be unreasonable and ``raise due process concerns''
for utilities. Although Charter argues that the presumption could
simply be rebutted if a particular complaint raises unusually complex
issues, we reject this argument based on our experience with formal
complaints. In particular, when parties oppose the operation of a
presumption in a particular proceeding, these rebuttal efforts often
lead to significant additional argumentation attendant to resolving the
specific question of the presumption, thus unnecessarily complicating
resolution of the underlying issues in dispute. To avoid the potential
for unnecessary rounds of argumentation and to ensure that complaints
accepted onto the Accelerated Docket are suitable for decision under
the relevant time constraints, we reject proposals to create a
presumption that all pole access disputes for active deployments be
placed on the Accelerated Docket.
20. After careful consideration of the record on this issue, we
direct the RBAT to consider the factors below in determining whether to
accept onto the Accelerated Docket a pole attachment dispute that is
allegedly impeding or delaying a broadband facilities deployment plan
or project. The RBAT shall determine eligibility for placement on the
Accelerated Docket based on the totality of these factors:
[[Page 2156]]
<bullet> whether the prospective complainant states a claim for
violation of the Act or a Commission rule or order that falls within
the Commission's jurisdiction;
<bullet> whether the expedited resolution of a particular dispute
or category of disputes appears likely to advance the deployment of
broadband facilities, especially in an unserved or underserved area;
<bullet> whether the parties to the dispute have exhausted all
reasonable opportunities for settlement during any staff-supervised
mediation;
<bullet> the number and complexity of the issues in dispute;
<bullet> whether the dispute raises new or novel issues versus
settled interpretations of rules or policies;
<bullet> the likely need for, and complexity of, discovery;
<bullet> the likely need for expert testimony;
<bullet> the ability of the parties to stipulate to facts;
<bullet> whether the parties have already assembled relevant
evidence bearing on the disputed facts;
<bullet> the willingness of the prospective complainant to seek a
ruling on a subset of claims or issues (e.g., threshold or ``test
cases''); and
<bullet> such other factors as the RBAT, within its discretion, may
deem appropriate and conducive to the prompt and fair adjudication of
the complaint proceeding.
The first three of these criteria will help the RBAT to ensure
appropriate use of the Commission's processes in support of the goal of
timely broadband deployment and ensure that the parties have made a
sufficient effort to resolve or, at a minimum, identify and narrow the
disputed issues prior to filing a complaint. The remaining criteria
will help the RBAT to determine if a dispute is suitable for decision
under the strict time constraints of the Accelerated Docket, and also
require it to consider whether including a matter on the Accelerated
Docket would ensure the prompt and fair adjudication of the dispute. (A
responding party's refusal to stipulate to facts or cooperate in the
exchange of relevant information bearing on disputed facts will not
itself defeat a request for acceptance of a pole attachment dispute on
the Accelerated Docket.) By specifying the criteria that the RBAT must
consider in making its determination, we hope to make the Accelerated
Docket a more useful tool in the resolution of eligible pole attachment
disputes and provide prospective complainants with greater certainty
regarding which complaints will be deemed suitable for expedited
resolution.
21. We will closely monitor the impact of the dispute resolution
procedures adopted here and consider additional streamlining measures
should we observe ongoing delay tactics or other unreasonable practices
that hinder the ability of broadband providers to deploy new services
or facilities. (Two commenters suggest narrowing the list of criteria
to avoid delay tactics by utilities. We find that eliminating criteria
is unnecessary, however, as these criteria are holistic in nature, and
no single one will be dispositive. Moreover, the RBAT is not required
to credulously accept assertions from either party.)
B. Increasing Transparency by Providing Attachers With Utility Pole
Inspection Information
22. We next amend our pole attachment make-ready rules to require
utilities to provide to potential attachers, upon request, the
information contained in their most recent cyclical pole inspection
reports, or any intervening, periodic reports created before the next
cyclical inspection, for the poles covered by a submitted attachment
application, including whether any of the affected poles have been
``red tagged'' by the utility for replacement, and the scheduled
replacement date or timeframe (if any). (The record demonstrates that
utilities conduct inspections of their poles on a multi-year cycle,
either as part of normal network management or as required by state
law.) In the Second FNPRM, the Commission sought comment on requiring
utilities to provide more information about their poles to prospective
attachers, in order to reduce disputes. (Utilities did not challenge
the Commission's general jurisdiction to require them to provide
relevant information to prospective attachers, and ACA Connects
asserted the Commission has such authority.) Several attaching entities
indicated pole inspection information would be helpful in planning
deployments. (This requirement applies only in the states that have not
certified that they regulate pole attachments themselves. To the extent
such reports may include sensitive or confidential network or financial
information, we rely upon utilities and attachers to address the issue
through redactions or non-disclosure agreements.) We believe this new
requirement strikes a reasonable balance between additional
transparency for prospective attachers and ensuring the utilities'
expenditure of resources is no greater than necessary. As discussed
below, however, we also strongly encourage utilities to voluntarily
share pole-related information that is reasonably available and that
they track in the normal course of business, both before and after
receiving attachment applications, and we intend to continue to monitor
the record in this proceeding to determine if additional information
sharing mandates may be required.
23. For the purposes of the new transparency requirement, a
cyclical pole inspection report is any report that a utility creates in
the normal course of its business that sets forth the results of the
routine inspection of its poles during the utility's normal pole
inspection cycle, while a periodic pole inspection report is any report
that a utility creates in the normal course of its business that sets
forth the results of the inspection of any of its poles outside the
utility's normal pole inspection cycle. (Electric Utilities request
that the new rule not require utilities to provide periodic pole
inspection reports, arguing that the requirement will create confusion
and invite disputes. We find that the definition of ``periodic
inspection report'' is sufficiently clear and note that no other
utility commenters claimed the definition was vague or otherwise
problematic. We further find that this requirement is an important
aspect of the rule. Cyclical pole inspections typically occur several
years apart, sometimes by ten or more years, and periodic inspection
reports will contain more recent inspection information. We also
decline the Electric Utilities' request to seek further comment on
transparency requirements in lieu of adopting a rule on report sharing.
We find that the record is sufficient to adopt an information sharing
rule at this time and the rule we adopt strikes an appropriate balance
between providing attachers with additional helpful information while
not being overly resource-intensive for utilities. Indeed, several
utility parties are supportive of the new transparency requirement.) We
note that this new transparency requirement is consistent with the
existing practices of certain utilities to prepare such reports. When
asking for information about the status of a utility's poles for a
planned buildout, the attacher must submit its information request no
earlier than contemporaneously with an attachment application. The
utility will have ten business days to respond to the request. (The
utility has the same amount of time to determine whether the
application is complete.) This should allow sufficient time before the
make-ready survey for the attacher to revise or amend its application
as may be appropriate based
[[Page 2157]]
on the information it receives. (``The term make-ready means the
modification or replacement of a utility pole, or of the lines or
equipment on the utility pole, to accommodate additional facilities on
the utility pole.'' After receiving a complete attachment application,
a utility conducts a make-ready survey and provides a make-ready cost
estimate to the attacher. During the survey stage, ``the pole owner
conducts an engineering study to determine whether and where attachment
is feasible, and what make-ready is required.'')
24. We recognize that in some situations, the information provided
by utilities in their pole inspection reports may lead new attachers to
amend their attachment applications. In order to ensure that utilities
have enough time to review such applications, in situations when the
utility receives an amended attachment application prior to granting or
denying the original application, we will allow a utility the option to
restart the 45-day period for responding to the application on the
merits and conducting the survey. (The option to restart the time
period also applies to larger orders that are subject to a 60-day
timeframe.) Utilities electing to restart the 45-day application review
and survey period in this manner must notify the attacher within 5
business days of receipt of the amended application or by the 45th day
after the original application is considered complete, whichever is
earlier. (For example, if an amended application was filed on the 42nd
day following the utility's determination that the original application
was complete, the utility would only have three days, not five business
days, to notify the attacher that the utility is restarting the 45-day
application review and survey.) To avoid unnecessary delays and costs,
we strongly encourage attachers to notify utilities of their intent to
file, and to file, amended applications as quickly as possible after
receiving a pole inspection report from the utility. We also encourage
utilities to exercise their right to restart this 45-day period
judiciously and to review amended applications as quickly as possible
even when electing to restart the 45-day application review and survey
period. (Several parties asked that we require an automatic restart of
the 45-day response period or start the application process over in
such instances by requiring an attacher to file a new application
rather than an amended application. We decline these requests and find
that the procedures we adopt are sufficiently tailored to account for
the needs of utilities to review amended applications while not
needlessly slowing deployment. Under the new rule, utilities will
always have the option of electing to restart the 45-day review period;
but given that there may be instances where an amendment is minor or
otherwise will not require a restart of the 45-day period, we find it
reasonable to require utilities to actually review an amended
application to determine whether a restart is necessary given the
specific circumstances.) Regardless of whether the utility elects to
restart the 45-day response period, any additional survey costs
necessitated by the amended application, such as a second survey after
a survey for the original application has been completed, will be borne
by the new attacher consistent with the new attacher's obligation to
pay for make-ready costs associated with its application.
25. In connection with the new transparency requirement we adopt in
this final rule, we also require utilities to retain copies, in
whatever form they were created, of any such cyclical or periodic pole
inspection reports they conduct in the normal course of business, until
such time as the utility completes a superseding cyclical pole
inspection report covering the poles included in the attachment
application. In creating these obligations, we reiterate that utilities
are required to provide only the information they already possess and
track in the normal course of conducting pole inspections at the time
of the attacher's request for data. The new rule does not require
utilities to collect or create new information for the sole purpose of
responding to such requests or to provide all information they may
possess on the affected poles outside their pole inspection reports.
(Edison Electric Institute contends that ``access to critical
infrastructure by non-electric company personnel presents serious
safety, reliability, and homeland security hazards,'' and that
``existing law bars electric companies from releasing some information
about system infrastructure.'' It does not directly assert, however,
that utilities would be barred from disclosing information contained in
a pole inspection report. And it notes that most of the information is
``already available'' and an attacher ``can readily learn the
condition'' of poles by driving a proposed route. Although we do not
know exactly what information utilities may include in their pole
inspection reports, we anticipate that legal constraints on disclosure
of critical infrastructure information can be addressed, to the extent
that they arise, by the parties involved via appropriate redactions or
use of a non-disclosure agreement. We do not intend our new rule to
override laws precluding disclosure of certain information, but expect
utilities to work in good faith to provide potential attachers with the
information they can from their pole inspection reports.) We find this
new limited requirement achieves a balance between a potential
attacher's need for more information about the poles that it plans to
use as part of a broadband buildout and the utility's interest in
minimizing the burden of mandatory disclosures.
26. We conclude that requiring utilities to provide information
about the state of their poles to attachers will help improve the
attachment process and potentially reduce disputes. In particular,
having such information early in the process will help attachers
evaluate whether they want to adjust their plans in light of the poles'
conditions. At the same time, we recognize the potential burdens on
utilities that would result from imposing a mandate to compile
extensive information for every pole attachment application the utility
receives. We seek to strike a balance by (1) requiring utilities to
provide such information as they already collect in the normal course
of inspections done as part of managing their network and poles (which
the record indicates include which poles have been identified as
needing replacement), rather than having to gather information solely
for attachers or from many disparate sources, and (2) tying requests
for such information to poles contained in submitted attachment
applications.
27. In striking this balance, we agree with utilities that they
should not be required by rule to gather and provide extensive pole-
related data for every pole attachment application about matters they
do not track in the normal course of business through their
inspections. The record shows that many utilities do not create
specific maintenance or replacement schedules for poles. It also shows
that some utilities provide a range of pole-related information--
including whether any poles are red-tagged or otherwise identified for
replacement--when responding to an attachment application after
conducting a make-ready survey. We agree with the commenters asserting
that a pre-application survey conducted by the attacher, or a make-
ready survey conducted by a utility in response to a specific
attachment application, are often the best ways to ensure the potential
attacher and utility have up-to-
[[Page 2158]]
date, accurate information on the current state of poles. (We recognize
that a visual inspection may not necessarily provide all the
information an attacher might desire. This supports requiring
disclosure of pole inspection reports.) We also agree with Dominion/
Xcel, however, that the information contained in general survey or pole
inspection reports can be useful to prospective attachers in some
cases. Therefore, although we decline at this time to impose broader
duties on utilities to collect and provide more expansive pole-related
information for every attachment application, we will require utilities
to furnish already available information in pole inspection reports
concerning specific poles upon request at the time an attachment
application is submitted. (Some commenters support the balance struck
in this new rule. Electric Utilities, on the other hand, request that
any consideration of a rule to require disclosure of pole inspection
reports be deferred to a further notice of proposed rulemaking.)
28. While we do not at this time codify a requirement for utilities
to provide new attachers with information about poles prior to the
attacher submitting a pole attachment application, as requested by some
commenters, we understand that often utilities share pole information
with attachers prior to the application process, particularly
information not easily attained through visual inspection. We strongly
encourage this pre-application collaboration and cooperation because
there is value for both utilities and attachers in having the best
available pole information to inform deployment forecasts and
attachment requests. Although we recognize that some potential
attachers could benefit from obtaining pole-related information prior
to submitting an application, we decline to impose this requirement on
utilities given that the underlying requests for information would be
for preliminary build-out plans that may substantially change.
Furthermore, establishing a pre-application duty for utilities would
require the Commission to create a new process and timeline prior to
the codified make-ready process, which has always been triggered by the
filing of an application. Finally, given that prospective attachers
also have the ability to gather information about poles on prospective
routes through pre-application surveys and visual inspection of poles
on a prospective route, we find that imposing an additional pre-
application requirement on utilities is not justified at this time.
(Through such visual inspection, an attacher typically can learn the
age of a pole, whether it has been red tagged, when the most recent
inspection occurred, and a pole's load and potential suitability for
more attachments. As noted above, however, we also recognize that
visual inspection alone may not always provide all the information an
attacher may desire, thus supporting the new requirement that utilities
provide attachers with cyclical and periodic pole inspection reports.
For example, with regard to utility tags on poles, Crown Castle asserts
that ``not all poles are appropriately tagged or inspection tags may be
missing, damaged, or unable to be interpreted without additional
information from the pole owner.'')
29. We reject requests at this time that we mandate a variety of
other disclosure requirements on utilities. (Several attachers
requested that utilities be required to provide any relevant requested
information about their poles that they retain in the ordinary course
of business, which would go beyond pole inspection reports. While we
encourage parties to voluntarily share information, we find that
codifying a broad disclosure requirement for all information collected
in the ordinary course of business could force utilities to expend
significant resources to gather such information and could lead to
additional disputes and complaints related to information sharing.) We
agree with utilities that the most relevant information for purposes of
an attachment request is whether the poles at issue are available or
due for replacement. (Some utilities suspect that the purpose of many
of the attachers' requests is only to provide ammunition for rate
disputes with utilities, not to improve the attachment process.) For
example, some attacher commenters ask the Commission to require
utilities to create accessible databases (or establish a single
database for all utilities) with information on things like pole age,
condition, repair/replacement schedules, location, number of
attachments, standard rate structure, and applicable engineering
standards. They also ask that utilities be required to provide data
from the owners' periodic load analyses for poles; the age, height,
class, and condition of poles; and data on current attachments and
pending attachment requests for relevant poles. And ACA Connects asks
the Commission to require utilities to provide more details in their
make-ready cost estimates to support those costs. For the reasons
discussed below, we decline to adopt these requirements. With respect
to certain financial information requested by some commenters regarding
pole rates, we do not adopt new disclosure requirements, but make clear
that some financial information is already required to be disclosed
under our rules.
30. Before addressing these specific proposals, however, we note
some attachers express concern that, by adopting a requirement to
provide pole inspection reports but not codifying additional mandates,
we may be inadvertently discouraging utilities from voluntarily
providing pole-related information before receiving an attachment
application, which at least some utilities do today. We stress that our
actions in this final rule should not be understood to undermine or
disincentivize such voluntary sharing. To the contrary, voluntary
sharing of pole-related information is consistent with longstanding
Commission policy favoring transparency in the pole attachment context,
and we strongly encourage both utilities and attachers to collaborate
and voluntarily share information with each other whenever such
information is reasonably available and obtained in the normal course
of business. (We reject claims that our actions here are inconsistent
with the policy of promoting transparency, as Crown Castle asserts. To
the contrary, this Order increases transparency by adopting a new
disclosure requirement.) Voluntary sharing can be helpful to both
attachers and utilities to promote more efficient buildouts by
informing deployment forecasts, allowing more accurate applications,
and decreasing disputes or delays after an application is submitted.
(Such voluntary sharing also is helpful because ``not all pole owners
conduct these denominated inspections,'' yet attachers still could
benefit from receiving the kind of information that would have been
included in such inspections had they occurred.) Having better and more
accurate information prior to attachment applications will likely
reduce make-ready costs, the frequency and severity of disputes, and
improve the efficiency of the attachment process--benefiting both
attachers and utilities. We will continue to monitor the record in this
proceeding and will take further action if it becomes clear that
voluntary information sharing arrangements are insufficiently promoting
broadband deployment.
31. Database(s) of Pole Information. We decline (1) to require that
each utility create an accessible database with an array of data on all
its poles, or (2) to establish a single pole-information
[[Page 2159]]
database for all utilities. The Commission rejected previous calls for
a similar database requirement in 2011, in part based on the large
burden outweighing potential benefits. We find that the 2011 reasoning
remains valid. In particular, we find that the record continues to
demonstrate that the burdens and costs of creating such a database (if
a utility does not already have one) would be very large given the
number of poles many utilities own or jointly own and the scope of pole
data attachers seek, and that the alleged benefits of requiring such a
database would be reduced by the new requirement we adopt in this final
rule that utilities provide information from their pole inspection
reports. Commenters contend that requiring such a pole-related database
would help speed deployment by helping attachers plan better and avoid
intermediate steps for both attachers and utilities. Utilities,
however, assert that due to the very large number of poles they own or
co-own and the ever-changing nature of pole networks, maintaining a
fully up-to-date database would be almost impossible, and so the
information for any given group of poles in a database could easily be
out of date when the attacher needs it. One utility also submits that
granting access to such voluminous pole information could result in the
submission of incorrect applications. We find that the benefits of a
database requirement remain speculative at best given how difficult it
would be to keep such a large database up-to-date.
32. While some commenters argue that circumstances have changed
since 2011, with some state utility commissions adopting database
requirements for pole-related information, the states cited by these
commenters are limited and, in any event, all regulate pole attachments
at the state level pursuant to section 224(c) of the Act. As a result,
compliance with pre-existing state-specific database requirements would
likely offer little, if any, relief in complying with a newly imposed
Federal database requirement. To the extent any utilities may have
developed pole-related databases in states that do not regulate pole
attachments, the record indicates that attachers are interested in
specific types of data, not merely access to existing databases, which
would require utilities to absorb additional, and potentially
substantial, costs of either adding specific types of new data or
searching databases for specific data of interest to attachers. (ACA
Connects asserts that many utilities have developed pole-related
databases since 2011, but it does not identify utilities that have done
so in states that do not regulate pole attachments.) Again, we agree
with the utilities that the value of such database information to
attachers is highly unlikely to outweigh those burdens, as the
information may well be out of date by the time an attacher submits an
attachment request. Moreover, any added benefit would likely be minimal
in light of the new information-sharing requirement we adopt in this
final rule.
33. Loading Studies. According to NCTA, some utilities provide and
allow attachers to rely on loading studies included in the utilities'
cyclical pole inspection reports rather than making the attacher do its
own loading study, but other utilities do not. NCTA asserts that
``[w]here such studies have been conducted, pole owners should be
required to use that existing analysis rather than forcing a new
attacher to incur the expense and delay of performing a duplicative and
redundant study.'' We decline to adopt this proposal. To the extent
pole inspection reports include loading studies, attachers will have
access to such information under the new rule we adopt in this final
rule. (In cases where the loading study is not part of the inspection
report, we decline, at this time, to codify a requirement for a utility
to provide an attacher with a loading study as NCTA requests, but
strongly encourage utilities to provide such loading studies when
reasonably requested and readily available.) We will not, however,
dictate when a utility can require a loading study, as NCTA seems to
request, as we continue to believe, consistent with the 2018 Wireline
Infrastructure Order, that such studies ``can be important tools to
address safety, reliability, and engineering concerns.'' (NCTA also
asserts that a utility should have to bear the cost of a loading
analysis where none has been performed but the utility believes a study
is necessary before allowing an attachment, and that utilities can
instead recover the costs of such loading studies through annual
attachment rental fees. As that issue relates to cost recovery rather
than transparency, we do not address it here.)
34. Age, Height, Class, and Condition of Poles. We reject
attachers' request to require utilities to provide data on the age,
height, class, and condition of their poles, or the last date the pole
was inspected, make-ready was conducted, or a pre-existing violation on
the pole was fixed. The utilities state that they either routinely
provide this type of data with make-ready estimates, that the
information is accessible to attachers through their own pre-
application surveys or when the attacher accompanies the utility on a
make-ready survey, or that they do not track this data. To the extent
utilities' pole inspection reports include such data, that information
would be covered by the new transparency requirement we adopt in this
final rule and available to attachers upon request after an application
is filed. Given that attachers can often obtain this information either
from the utility or through their own survey or inspection, we reject
any additional requirement for pole condition information beyond that
which we have already outlined, but we strongly encourage utilities to
share this information when it is readily available and collected in
the normal course of business.
35. Existing Attachments and Pending Attachment Requests. We also
decline to require that utilities provide data on the number of
attachments or pending attachment applications for each pole covered by
an attachment request. As the utilities explain, pole networks are
dynamic and pole conditions frequently change. We find that the record
sufficiently demonstrates that attempting to keep a fully up-to-date
list of the number of attachments or pending applications on every pole
would be a very time-consuming and expensive proposition. (Some
attachers also sought to require pole owners to produce information on
utility transformers or voltage on a pole or the total attachment load
on the pole, but utilities either deny the usefulness of such
information or state that they do not track it.) Even if some utilities
track this information, requiring them to compile the information and
send it across a vast and shifting landscape of attachers and poles--
and to keep that information updated--would be a considerable burden.
Although attachers assert there would be some value in having this kind
of data earlier, even if it is old, we find that, as with the proposed
pole attachment database discussed above, any purported benefit is
outweighed by the potentially considerable cost utilities would have to
bear in complying with such a requirement.
36. Data Supporting Make-Ready Estimates. With regard to the
request that utilities be required to provide more detailed supporting
data in their make-ready estimates, particularly regarding the
utility's costs, we again decline to adopt any new requirement. Current
rules already require utilities to provide supporting cost details in
their make-ready cost estimates. If utilities are not complying with
those rules,
[[Page 2160]]
attachers remain free to invoke the complaint process or seek
mediation.
37. Financial Records Regarding Poles. We decline attachers'
requests to create new obligations requiring utilities to provide
additional financial data regarding poles and attachment rates,
including outside plant records (also called continuing property
records) as part of the rules being adopted at this time. (Continuing
Property Records are ``[o]utside plant records relevant to poles,''
typically ``including a detailed accounting of the units associated
with accounts used to report pole plant investment such as vintage
height, class, etc.'' Several attachers repeated these requests in
later submissions, asking that utilities be required to disclose a
range of information related to rates, rather than only the information
the utility relied on in computing rates, to enable attachers to, for
example, evaluate the validity of utilities' reliance on presumptions
in the pole attachment rate formula.) Attachers argue that such a duty
for utilities to provide information will reduce rate disputes or make
them easier to resolve. Our focus here, however, is on deployment
rather than rate disputes. Further, Sec. 1.1404(e) and (f) of the
Commission's rules--which we do not alter here--already require that
pole owners, upon request of a cable operator or telecommunications
carrier, provide the information they have relied on in calculating
rates, and information an attacher seeks to rely on in establishing
that a rate, term, or condition is not just and reasonable. The
Commission has explained that ``it is critical that attaching entities
have this information well in advance of executive-level discussions to
ensure that those pre-complaint negotiations have a chance of
success.'' (NCTA contends the former language in Sec. 1.1404(g) was
inadvertently removed in a prior rule revision. We disagree. The
Commission sought to ``streamline the rules in [Sec. ] 1.1404'' by
removing the long list of information specified in that section but did
not narrow the scope of information utilities must provide attachers.
In light of these existing rules and the policy stated by the
Commission in 2018, to the extent an attacher has a specific dispute
with a utility, it already can seek and obtain certain financial data
from the utility, prior to filing a complaint, under current rules.) We
therefore decline to impose a new, broader duty to disclose additional
financial records related to poles. (USTelecom, whose members include
both pole owners and attachers, argues that imposing a duty beyond
current law ``would not accelerate broadband deployment or reduce its
costs, but would likely have the opposite effect by diverting broadband
providers' capital away from their own broadband deployment to
subsidize their competitors' builds.'')
IV. Final Regulatory Flexibility Analysis
38. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Second FNPRM. The Commission sought written
public comment on the proposals in the Second FNPRM, including comment
on the IRFA. No comments were filed addressing the IRFA. This present
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Fourth Report and Order
39. In the Fourth Report and Order, the Commission adopts rules and
policy changes that will make the pole attachment process faster and
cheaper, particularly when poles have to be replaced during broadband
buildouts. In the last five years, the Commission took significant
steps in setting standards for the discussions between utilities and
telecommunications companies about the timing and cost of attaching
broadband equipment to utility poles, with the backstop of a robust
complaint process when parties cannot agree on the rates, terms, and
conditions for pole attachments. In the Fourth Report and Order, we
adopt rules (1) establishing a new process for the Commission's review
and assessment of pole attachment disputes that impede or delay
broadband deployment in order to expedite resolution of such disputes,
and (2) providing telecommunications companies with information about
the status of the utility poles they plan to use as they map out their
broadband builds.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
40. There were no comments raised that specifically addressed the
proposed rules and policies presented in the Second FNPRM IRFA.
Nonetheless, the Commission considered the potential impact of the
rules proposed in the IRFA on small entities and took steps where
appropriate and feasible to reduce the compliance burden for small
entities in order to reduce the economic impact of the rules enacted
herein on such entities.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
41. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
42. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. (Pursuant to 5 U.S.C. 601(3), the statutory definition of a small
business applies unless an agency, after consultation with the Office
of Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.) A ``small-business
concern'' is one which: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.
43. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the SBA's Office of
Advocacy, in general a small business is an independent business having
fewer than 500 employees. These types of small businesses represent
99.9% of all businesses in the United States, which translates to 33.2
million businesses.
[[Page 2161]]
44. Next, the type of small entity described as a ``small
organization'' is generally any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. The
Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or
less to delineate its annual electronic filing requirements for small
exempt organizations. (The IRS benchmark is similar to the population
of less than 50,000 benchmark in 5 U.S.C. 601(5) that is used to define
a small governmental jurisdiction. Therefore, the IRS benchmark has
been used to estimate the number of small organizations in this small
entity description. We note that the IRS data does not provide
information on whether a small exempt organization is independently
owned and operated or dominant in its field.) Nationwide, for tax year
2020, there were approximately 447,689 small exempt organizations in
the U.S. reporting revenues of $50,000 or less according to the
registration and tax data for exempt organizations available from the
IRS. (The IRS Exempt Organization Business Master File (E.O. BMF)
Extract provides information on all registered tax-exempt/non-profit
organizations. The data utilized for purposes of this description was
extracted from the IRS E.O. BMF data for businesses for the tax year
2020 with revenue less than or equal to $50,000 for Region 1--Northeast
Area (58,577), Region 2--Mid-Atlantic and Great Lakes Areas (175,272),
and Region 3--Gulf Coast and Pacific Coast Areas (213,840) that
includes the continental U.S., Alaska, and Hawaii. This data does not
include information for Puerto Rico.)
45. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as governments of cities, counties,
towns, townships, villages, school districts, or special districts,
with a population of less than fifty thousand. U.S. Census Bureau data
from the 2017 Census of Governments indicate there were 90,075 local
governmental jurisdictions consisting of general purpose governments
and special purpose governments in the United States. (The Census of
Governments survey is conducted every five (5) years compiling data for
years ending with ``2'' and ``7''.) (Local governmental jurisdictions
are made up of general purpose governments (county, municipal, and town
or township) and special purpose governments (special districts and
independent school districts).) Of this number, there were 36,931
general purpose governments (2,105 county, 18,729 municipal, and 16,097
town and township governments) with populations of less than 50,000 and
12,040 special purpose governments (independent school districts) with
enrollment populations of less than 50,000. (While the special purpose
governments category also includes local special district governments,
the 2017 Census of Governments data does not provide data aggregated
based on population size for the special purpose governments category.
Therefore, only data from independent school districts is included in
the special purpose governments category.) Accordingly, based on the
2017 U.S. Census of Governments data, we estimate that at least 48,971
entities fall into the category of ``small governmental
jurisdictions.'' (This total is derived from the sum of the number of
general purpose governments (county, municipal and town or township)
with populations of less than 50,000 (36,931) and the number of special
purpose governments--independent school districts with enrollment
populations of less than 50,000 (12,040), from the 2017 Census of
Governments--Organizations tbls. 5, 6 & 10.)
1. Internet Access Service Providers
46. Wired Broadband internet Access Service Providers (Wired ISPs).
(Formerly included in the scope of the Internet Service Providers
(Broadband), Wired Telecommunications Carriers and All Other
Telecommunications small entity industry descriptions.) Providers of
wired broadband internet access service include various types of
providers except dial-up internet access providers. Wireline service
that terminates at an end user location or mobile device and enables
the end user to receive information from and/or send information to the
internet at information transfer rates exceeding 200 kilobits per
second (kbps) in at least one direction is classified as a broadband
connection under the Commission's rules. Wired broadband internet
services fall in the Wired Telecommunications Carriers industry. The
SBA small business size standard for this industry classifies firms
having 1,500 or fewer employees as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms that operated in this industry
for the entire year. Of this number, 2,964 firms operated with fewer
than 250 employees. (The available U.S. Census Bureau data does not
provide a more precise estimate of the number of firms that meet the
SBA size standard.)
47. Additionally, according to Commission data on internet access
services as of June 30, 2019, nationwide there were approximately 2,747
providers of connections over 200 kbps in at least one direction using
various wireline technologies. (The technologies used by providers
include asymmetric and symmetric digital subscriber line (aDSL and
sDSL) (collectively xDSL), Other Wireline, Cable Modem, and fiber to
the premises (FTTP).) Other wireline includes: all copper-wire based
technologies other than xDSL (such as Ethernet over copper, T-1/DS-1
and T3/DS-1) as well as power line technologies which are included in
this category to maintain the confidentiality of the providers.) The
Commission does not collect data on the number of employees for
providers of these services, therefore, at this time we are not able to
estimate the number of providers that would qualify as small under the
SBA's small business size standard. However, in light of the general
data on fixed technology service providers in the Commission's 2022
Communications Marketplace Report, we believe that the majority of
wireline internet access service providers can be considered small
entities.
48. Internet Service Providers (Non-Broadband). Internet access
service providers using client-supplied telecommunications connections
(e.g., dial-up ISPs) as well as voice over internet protocol (VoIP)
service providers using client-supplied telecommunications connections
fall in the industry classification of All Other Telecommunications.
The SBA small business size standard for this industry classifies firms
with annual receipts of $35 million or less as small. For this
industry, U.S. Census Bureau data for 2017 show that there were 1,079
firms in this industry that operated for the entire year. Of those
firms, 1,039 had revenue of less than $25 million. (The available U.S.
Census Bureau data does not provide a more precise estimate of the
number of firms that meet the SBA size standard. We also note that
according to the U.S. Census Bureau glossary, the terms receipts and
revenues are used interchangeably.) Consequently, under the SBA size
standard a majority of firms in this industry can be considered small.
2. Wireline Providers
49. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
[[Page 2162]]
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers. (Fixed Local Service
Providers include the following types of providers: Incumbent Local
Exchange Carriers (ILECs), Competitive Access Providers (CAPs) and
Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs,
Interconnected VOIP Providers, Non-Interconnected VOIP Providers,
Shared-Tenant Service Providers, Audio Bridge Service Providers, and
Other Local Service Providers. Local Resellers fall into another U.S.
Census Bureau industry group and therefore data for these providers is
not included in this industry.)
50. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees. (The
available U.S. Census Bureau data does not provide a more precise
estimate of the number of firms that meet the SBA size standard.)
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 4,590 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,146
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
51. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. Providers of these services
include both incumbent and competitive local exchange service
providers. Wired Telecommunications Carriers is the closest industry
with an SBA small business size standard. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers. (Fixed Local Exchange Service Providers include the
following types of providers: Incumbent Local Exchange Carriers
(ILECs), Competitive Access Providers (CAPs) and Competitive Local
Exchange Carriers (CLECs), Cable/Coax CLECs, Interconnected VOIP
Providers, Non-Interconnected VOIP Providers, Shared Tenant Service
Providers, Audio Bridge Service Providers, Local Resellers, and Other
Local Service Providers.) The SBA small business size standard for
Wired Telecommunications Carriers classifies firms having 1,500 or
fewer employees as small. U.S. Census Bureau data for 2017 show that
there were 3,054 firms that operated in this industry for the entire
year. Of this number, 2,964 firms operated with fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 4,590
providers that reported they were fixed local exchange service
providers. Of these providers, the Commission estimates that 4,146
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
52. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees. (The
available U.S. Census Bureau data does not provide a more precise
estimate of the number of firms that meet the SBA size standard.)
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 1,212 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 916 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
53. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. (Competitive Local Exchange Service
Providers include the following types of providers: Competitive Access
Providers (CAPs) and Competitive Local Exchange Carriers (CLECs),
Cable/Coax CLECs, Interconnected VOIP Providers, Non-Interconnected
VOIP Providers, Shared Tenant Service Providers, Audio Bridge Service
Providers, Local Resellers, and Other Local Service Providers.) Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees. (The
available U.S. Census Bureau data does not provide a more precise
estimate of the number of firms that meet the SBA size standard.)
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31, 2021, there were 3,378 providers
that reported they were competitive local exchange service providers.
Of these providers, the Commission estimates that 3,230 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
54. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with an SBA small business size standard. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250 employees. (The available U.S. Census Bureau data
does not provide a more precise estimate of the number of firms that
meet the SBA size standard.) Additionally, based on Commission data in
the 2022 Universal Service Monitoring Report, as of December 31,
[[Page 2163]]
2021, there were 127 providers that reported they were engaged in the
provision of interexchange services. Of these providers, the Commission
estimates that 109 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of providers in this industry
can be considered small entities.
55. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The closest applicable industry with an SBA
small business size standard is Wired Telecommunications Carriers. The
SBA small business size standard classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 3,054 firms in this industry that operated for the
entire year. Of this number, 2,964 firms operated with fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 20
providers that reported they were engaged in the provision of operator
services. Of these providers, the Commission estimates that all 20
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, all of these providers can be considered
small entities.
56. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition for small businesses specifically applicable to
Other Toll Carriers. This category includes toll carriers that do not
fall within the categories of interexchange carriers, operator service
providers, prepaid calling card providers, satellite service carriers,
or toll resellers. Wired Telecommunications Carriers is the closest
industry with an SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. (The available U.S. Census Bureau data does
not provide a more precise estimate of the number of firms that meet
the SBA size standard.) Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 90 providers that reported they were engaged in the
provision of other toll services. Of these providers, the Commission
estimates that 87 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
3. Wireless Providers--Fixed and Mobile
57. The broadband internet access service provider category covered
by these new rules may cover multiple wireless firms and categories of
regulated wireless services. (This includes, among others, the
approximately 800 members of the Wireless internet Service Providers
Association (WISPA), including those entities who provide fixed
wireless broadband service using unlicensed spectrum. We also consider
the impact to these entities for the purposes of this FRFA, by
including them under the ``Wireless Providers--Fixed and Mobile''
category.) Thus, to the extent the wireless services listed below are
used by wireless firms for broadband internet access service, the
actions may have an impact on those small businesses as set forth above
and further below. In addition, for those services subject to auctions,
we note that, as a general matter, the number of winning bidders that
claim to qualify as small businesses at the close of an auction does
not necessarily represent the number of small businesses currently in
service. Also, the Commission does not generally track subsequent
business size unless, in the context of assignments and transfers or
reportable eligibility events, unjust enrichment issues are implicated.
58. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 594
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 511
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
59. Wireless Communications Services. Wireless Communications
Services (WCS) can be used for a variety of fixed, mobile,
radiolocation, and digital audio broadcasting satellite services.
Wireless spectrum is made available and licensed for the provision of
wireless communications services in several frequency bands subject to
part 27 of the Commission's rules. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with an SBA small business
size standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
(The available U.S. Census Bureau data does not provide a more precise
estimate of the number of firms that meet the SBA size standard.) Thus,
under the SBA size standard, the Commission estimates that a majority
of licensees in this industry can be considered small.
60. The Commission's small business size standards with respect to
WCS involve eligibility for bidding credits and installment payments in
the auction of licenses for the various frequency bands included in
WCS. When bidding credits are adopted for the auction of licenses in
WCS frequency bands, such credits may be available to several types of
small businesses based average gross revenues (small, very small and
entrepreneur) pursuant to the competitive bidding rules adopted in
conjunction with the requirements for the auction and/or as identified
in the designated entities section in part 27 of the Commission's rules
for the specific WCS frequency bands. (The Designated entities sections
in subparts D through Q each contain the small business size standards
adopted for the auction of the frequency band covered by that subpart.)
61. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an
[[Page 2164]]
auction does not necessarily represent the number of small businesses
currently in service. Further, the Commission does not generally track
subsequent business size unless, in the context of assignments or
transfers, unjust enrichment issues are implicated. Additionally, since
the Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
62. 1670-1675 MHz Services. These wireless communications services
can be used for fixed and mobile uses, except aeronautical mobile.
Wireless Telecommunications Carriers (except Satellite) is the closest
industry with an SBA small business size standard applicable to these
services. The SBA size standard for this industry classifies a business
as small if it has 1,500 or fewer employees. U.S. Census Bureau data
for 2017 show that there were 2,893 firms that operated in this
industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. (The available U.S. Census Bureau data does
not provide a more precise estimate of the number of firms that meet
the SBA size standard.) Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
63. According to Commission data as of November 2021, there were
three active licenses in this service. (Based on an FCC Universal
Licensing System search on November 8, 2021, search parameters: Service
Group = All, ``Match only the following radio service(s)'', Radio
Service = BC; Authorization Type = All; Status = Active. We note that
the number of active licenses does not equate to the number of
licensees. A licensee can have one or more licenses.) The Commission's
small business size standards with respect to 1670-1675 MHz Services
involve eligibility for bidding credits and installment payments in the
auction of licenses for these services. For licenses in the 1670-1675
MHz service band, a ``small business'' is defined as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and a ``very small business'' is defined as an entity that, together
with its affiliates and controlling interests, has had average annual
gross revenues not exceeding $15 million for the preceding three years.
The 1670-1675 MHz service band auction's winning bidder did not claim
small business status.
64. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
65. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The closest applicable industry with an SBA small
business size standard is Wireless Telecommunications Carriers (except
Satellite). The size standard for this industry under SBA rules is that
a business is small if it has 1,500 or fewer employees. For this
industry, U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated for the entire year. Of this number, 2,837 firms
employed fewer than 250 employees. (The available U.S. Census Bureau
data does not provide a more precise estimate of the number of firms
that meet the SBA size standard.) Additionally, based on Commission
data in the 2022 Universal Service Monitoring Report, as of December
31, 2021, there were 331 providers that reported they were engaged in
the provision of cellular, personal communications services, and
specialized mobile radio services. Of these providers, the Commission
estimates that 255 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
66. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum encompasses services in
the 1850-1910 and 1930-1990 MHz bands. The closest industry with an SBA
small business size standard applicable to these services is Wireless
Telecommunications Carriers (except Satellite). The SBA small business
size standard for this industry classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
67. Based on Commission data as of November 2021, there were
approximately 5,060 active licenses in the Broadband PCS service.
(Based on an FCC Universal Licensing System search on November 16,
2021, search parameters: Service Group = All, ``Match only the
following radio service(s)'', Radio Service = CW; Authorization Type =
All; Status = Active. We note that the number of active licenses does
not equate to the number of licensees. A licensee can have one or more
licenses.) The Commission's small business size standards with respect
to Broadband PCS involve eligibility for bidding credits and
installment payments in the auction of licenses for these services. In
auctions for these licenses, the Commission defined ``small business''
as an entity that, together with its affiliates and controlling
interests, has average gross revenues not exceeding $40 million for the
preceding three years, and a ``very small business'' as an entity that,
together with its affiliates and controlling interests, has had average
annual gross revenues not exceeding $15 million for the preceding three
years. Winning bidders claiming small business credits won Broadband
PCS licenses in C, D, E, and F Blocks.
68. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these, at this time we are not able to estimate the
number of licensees with active licenses that would qualify as small
under the SBA's small business size standard.
69. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR)
licenses allow licensees to provide land mobile communications services
(other
[[Page 2165]]
than radiolocation services) in the 800 MHz and 900 MHz spectrum bands
on a commercial basis including but not limited to services used for
voice and data communications, paging, and facsimile services, to
individuals, Federal Government entities, and other entities licensed
under part 90 of the Commission's rules. Wireless Telecommunications
Carriers (except Satellite) is the closest industry with an SBA small
business size standard applicable to these services. The SBA size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. For this industry, U.S. Census Bureau data
for 2017 show that there were 2,893 firms in this industry that
operated for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. (The available U.S. Census Bureau data does
not provide a more precise estimate of the number of firms that meet
the SBA size standard.) Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 95 providers that reported they were of SMR (dispatch)
providers. Of this number, the Commission estimates that all 95
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, these 119 SMR licensees can be considered
small entities. (We note that there were also SMR providers reporting
in the ``Cellular/PCS/SMR'' classification, therefore there are maybe
additional SMR providers that have not been accounted for in the SMR
(dispatch) classification.)
70. Based on Commission data as of December 2021, there were 3,924
active SMR licenses. (Based on an FCC Universal Licensing System search
on December 15, 2021, search parameters: Service Group = All, ``Match
radio services within this group'', Radio Service = SMR; Authorization
Type = All; Status = Active. We note that the number of active licenses
does not equate to the number of licensees. A licensee can have one or
more licenses.) However, since the Commission does not collect data on
the number of employees for licensees providing SMR services, at this
time we are not able to estimate the number of licensees with active
licenses that would qualify as small under the SBA's small business
size standard. Nevertheless, for purposes of this analysis the
Commission estimates that the majority of SMR licensees can be
considered small entities using the SBA's small business size standard.
71. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses
spectrum in the 698-746 MHz frequency bands. Permissible operations in
these bands include flexible fixed, mobile, and broadcast uses,
including mobile and other digital new broadcast operation; fixed and
mobile wireless commercial services (including frequency division
duplex (FDD)- and time division duplex (TDD)-based services); as well
as fixed and mobile wireless uses for private, internal radio needs,
two-way interactive, cellular, and mobile television broadcasting
services. Wireless Telecommunications Carriers (except Satellite) is
the closest industry with an SBA small business size standard
applicable to licenses providing services in these bands. The SBA small
business size standard for this industry classifies a business as small
if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017
show that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
72. According to Commission data as of December 2021, there were
approximately 2,824 active Lower 700 MHz Band licenses. (Based on an
FCC Universal Licensing System search on December 14, 2021, search
parameters: Service Group = All, ``Match only the following radio
service(s)'', Radio Service = WY, WZ; Authorization Type = All; Status
= Active. We note that the number of active licenses does not equate to
the number of licensees. A licensee can have one or more licenses.) The
Commission's small business size standards with respect to Lower 700
MHz Band licensees involve eligibility for bidding credits and
installment payments in the auction of licenses. For auctions of Lower
700 MHz Band licenses the Commission adopted criteria for three groups
of small businesses. A very small business was defined as an entity
that, together with its affiliates and controlling interests, has
average annual gross revenues not exceeding $15 million for the
preceding three years, a small business was defined as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and an entrepreneur was defined as an entity that, together with its
affiliates and controlling interests, has average gross revenues not
exceeding $3 million for the preceding three years. In auctions for
Lower 700 MHz Band licenses seventy-two winning bidders claiming a
small business classification won 329 licenses, twenty-six winning
bidders claiming a small business classification won 214 licenses, and
three winning bidders claiming a small business classification won all
five auctioned licenses.
73. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
74. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses
spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are
nationwide licenses associated with the 758-763 MHz and 788-793 MHz
bands. Permissible operations in these bands include flexible fixed,
mobile, and broadcast uses, including mobile and other digital new
broadcast operation; fixed and mobile wireless commercial services
(including FDD- and TDD-based services); as well as fixed and mobile
wireless uses for private, internal radio needs, two-way interactive,
cellular, and mobile television broadcasting services. (We note that in
Auction 73, Upper 700 MHz Band C and D Blocks as well as Lower 700 MHz
Band A, B, and E Blocks were auctioned.) Wireless Telecommunications
Carriers (except Satellite) is the closest industry with an SBA small
business size standard applicable to licenses providing services in
these bands. The SBA small business size standard for this industry
classifies a business as small if it has 1,500 or fewer employees. U.S.
Census Bureau data for 2017 show that there were 2,893 firms that
operated in this industry for the entire year. Of that number, 2,837
firms employed fewer than 250 employees. (The available U.S. Census
Bureau data does not provide a more precise estimate of the number of
firms that meet the SBA size standard.) Thus, under the SBA size
standard, the
[[Page 2166]]
Commission estimates that a majority of licensees in this industry can
be considered small.
75. According to Commission data as of December 2021, there were
approximately 152 active Upper 700 MHz Band licenses. (Based on an FCC
Universal Licensing System search on December 14, 2021, search
parameters: Service Group = All, ``Match only the following radio
service(s)'', Radio Service = WP, WU; Authorization Type = All; Status
= Active. We note that the number of active licenses does not equate to
the number of licensees. A licensee can have one or more licenses.) The
Commission's small business size standards with respect to Upper 700
MHz Band licensees involve eligibility for bidding credits and
installment payments in the auction of licenses. For the auction of
these licenses, the Commission defined a ``small business'' as an
entity that, together with its affiliates and controlling principals,
has average gross revenues not exceeding $40 million for the preceding
three years, and a ``very small business'' an entity that, together
with its affiliates and controlling principals, has average gross
revenues that are not more than $15 million for the preceding three
years. Pursuant to these definitions, three winning bidders claiming
very small business status won five of the twelve available licenses.
76. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone
Service is a wireless service in which licensees are authorized to
offer and provide radio telecommunications service for hire to
subscribers in aircraft. A licensee may provide any type of air-ground
service (i.e., voice telephony, broadband internet, data, etc.) to
aircraft of any type, and serve any or all aviation markets
(commercial, government, and general). A licensee must provide service
to aircraft and may not provide ancillary land mobile or fixed services
in the 800 MHz air-ground spectrum.
77. The closest industry with an SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. (The available
U.S. Census Bureau data does not provide a more precise estimate of the
number of firms that meet the SBA size standard.) Thus, under the SBA
size standard, the Commission estimates that a majority of licensees in
this industry can be considered small.
78. Based on Commission data as of December 2021, there were
approximately four licensees with 110 active licenses in the Air-Ground
Radiotelephone Service. (Based on an FCC Universal Licensing System
search on December 20, 2021, search parameters: Service Group = All,
``Match only the following radio service(s)'', Radio Service = CG, CJ;
Authorization Type = All; Status = Active. We note that the number of
active licenses does not equate to the number of licensees. A licensee
can have one or more licenses.) The Commission's small business size
standards with respect to Air-Ground Radiotelephone Service involve
eligibility for bidding credits and installment payments in the auction
of licenses. For purposes of auctions, the Commission defined ``small
business'' as an entity that, together with its affiliates and
controlling interests, has average gross revenues not exceeding $40
million for the preceding three years, and a ``very small business'' as
an entity that, together with its affiliates and controlling interests,
has had average annual gross revenues not exceeding $15 million for the
preceding three years. In the auction of Air-Ground Radiotelephone
Service licenses in the 800 MHz band, neither of the two winning
bidders claimed small business status.
79. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, the Commission
does not collect data on the number of employees for licensees
providing these services therefore, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
80. 3650-3700 MHz band. Wireless broadband service licensing in the
3650-3700 MHz band provides for nationwide, non-exclusive licensing of
terrestrial operations, utilizing contention-based technologies, in the
3650 MHz band (i.e., 3650-3700 MHz). Licensees are permitted to provide
services on a non-common carrier and/or on a common carrier basis.
Wireless broadband services in the 3650-3700 MHz band fall in the
Wireless Telecommunications Carriers (except Satellite) industry with
an SBA small business size standard that classifies a business as small
if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017
show that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. (The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.) Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
81. The Commission has not developed a small business size standard
applicable to 3650-3700 MHz band licensees. Based on the licenses that
have been granted, however, we estimate that the majority of licensees
in this service are small internet Access Service Providers (ISPs). As
of November 2021, Commission data shows that there were 902 active
licenses in the 3650-3700 MHz band. (Based on an FCC Universal
Licensing System search on November 19, 2021, search parameters:
Service Group = All, ``Match only the following radio service(s)'',
Radio Service = NN; Authorization Type =All; Status = Active. We note
that the number of active licenses does not equate to the number of
licensees. A licensee can have one or more licenses.) However, since
the Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
82. Fixed Microwave Services. Fixed microwave services include
common carrier, private-operational fixed, and broadcast auxiliary
radio services. (Auxiliary Microwave Service is governed by part 74 of
title 47 of the Commission's Rules. Available to licensees of broadcast
stations and to broadcast and cable network entities, broadcast
auxiliary microwave stations are used for relaying broadcast television
signals from the studio to the transmitter, or between two points such
as a main studio and an auxiliary studio. The service also includes
mobile TV pickups, which relay signals from a remote location back to
the studio.) They also include the Upper Microwave Flexible Use Service
(UMFUS), Millimeter Wave Service (70/80/90 GHz), Local Multipoint
Distribution Service (LMDS), the Digital Electronic Message Service
(DEMS), 24 GHz
[[Page 2167]]
Service, Multiple Address Systems (MAS), and Multichannel Video
Distribution and Data Service (MVDDS), where in some bands licensees
can choose between common carrier and non-common carrier status.
Wireless Telecommunications Carriers (except Satellite) is the closest
industry with an SBA small business size standard applicable to these
services. The SBA small size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. (The available U.S. Census Bureau data does
not provide a more precise estimate of the number of firms that meet
the SBA size standard.) Thus, under the SBA size standard, the
Commission estimates that a majority of fixed microwave service
licensees can be considered small.
83. The Commission's small business size standards with respect to
fixed microwave services involve eligibility for bidding credits and
installment payments in the auction of licenses for the various
frequency bands included in fixed microwave services. When bidding
credits are adopted for the auction of licenses in fixed microwave
services frequency bands, such credits may be available to several
types of small businesses based average gross revenues (small, very
small and entrepreneur) pursuant to the competitive bidding rules
adopted in conjunction with the requirements for the auction and/or as
identified in part 101 of the Commission's rules for the specific fixed
microwave services frequency bands.
84. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
85. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)). (The
use of the term ``wireless cable'' does not imply that it constitutes
cable television for statutory or regulatory purposes.) Wireless cable
operators that use spectrum in the BRS often supplemented with leased
channels from the EBS, provide a competitive alternative to wired cable
and other multichannel video programming distributors. Wireless cable
programming to subscribers resembles cable television, but instead of
coaxial cable, wireless cable uses microwave channels. (Generally, a
wireless cable system may be described as a microwave station
transmitting on a combination of BRS and EBS channels to numerous
receivers with antennas, such as single-family residences, apartment
complexes, hotels, educational institutions, business entities and
governmental offices. The range of the transmission depends upon the
transmitter power, the type of receiving antenna and the existence of a
line-of-sight path between the transmitter or signal booster and the
receiving antenna.)
86. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with an SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. (The available
U.S. Census Bureau data does not provide a more precise estimate of the
number of firms that meet the SBA size standard.) Thus, under the SBA
size standard, the Commission estimates that a majority of licensees in
this industry can be considered small.
87. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS licenses. (Based on an FCC
Universal Licensing System search on December 10, 2021, search
parameters: Service Group = All, ``Match only the following radio
service(s)'', Radio Service = BR, ED; Authorization Type = All; Status
= Active. We note that the number of active licenses does not equate to
the number of licensees. A licensee can have one or more licenses.) The
Commission's small business size standards with respect to BRS involves
eligibility for bidding credits and installment payments in the auction
of licenses for these services. For the auction of BRS licenses, the
Commission adopted criteria for three groups of small businesses. A
very small business is an entity that, together with its affiliates and
controlling interests, has average annual gross revenues exceed $3
million and did not exceed $15 million for the preceding three years, a
small business is an entity that, together with its affiliates and
controlling interests, has average gross revenues exceed $15 million
and did not exceed $40 million for the preceding three years, and an
entrepreneur is an entity that, together with its affiliates and
controlling interests, has average gross revenues not exceeding $3
million for the preceding three years. Of the ten winning bidders for
BRS licenses, two bidders claiming the small business status won 4
licenses, one bidder claiming the very small business status won three
licenses and two bidders claiming entrepreneur status won six licenses.
One of the winning bidders claiming a small business status
classification in the BRS license auction has an active license as of
December 2021. (We note that the number of active licenses does not
equate to the number of licensees. A licensee can have one or more
licenses.) We note that the number of active licenses does not equate
to the number of licensees. A licensee can have one or more licenses.
88. The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5) years. In
frequency bands where licenses were subject to auction, the Commission
notes that as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Further, the Commission does not generally track subsequent
business size unless, in the
[[Page 2168]]
context of assignments or transfers, unjust enrichment issues are
implicated. Additionally, since the Commission does not collect data on
the number of employees for licensees providing these services, at this
time we are not able to estimate the number of licensees with active
licenses that would qualify as small under the SBA's small business
size standard.
4. Satellite Service Providers
89. Satellite Telecommunications. This industry comprises firms
primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications. Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $35 million or less in annual
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms
in this industry operated for the entire year. Of this number, 242
firms had revenue of less than $25 million. (The available U.S. Census
Bureau data does not provide a more precise estimate of the number of
firms that meet the SBA size standard. We also note that according to
the U.S. Census Bureau glossary, the terms receipts and revenues are
used interchangeably.) Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 2021,
there were 65 providers that reported they were engaged in the
provision of satellite telecommunications services. Of these providers,
the Commission estimates that approximately 42 providers have 1,500 or
fewer employees. Consequently, using the SBA's small business size
standard, a little more than half of these providers can be considered
small entities.
90. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g., dial-up ISPs) or voice over internet protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $35 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. (The available
U.S. Census Bureau data does not provide a more precise estimate of the
number of firms that meet the SBA size standard. We also note that
according to the U.S. Census Bureau glossary, the terms receipts and
revenues are used interchangeably.) Based on this data, the Commission
estimates that the majority of ``All Other Telecommunications'' firms
can be considered small.
5. Cable Service Providers
91. Because section 706 of the Act requires us to monitor the
deployment of broadband using any technology, we anticipate that some
broadband service providers may not provide telephone service.
Accordingly, we describe below other types of firms that may provide
broadband services, including cable companies, MDS providers, and
utilities, among others.
92. Cable and Other Subscription Programming. The U.S. Census
Bureau defines this industry as establishments primarily engaged in
operating studios and facilities for the broadcasting of programs on a
subscription or fee basis. The broadcast programming is typically
narrowcast in nature (e.g., limited format, such as news, sports,
education, or youth-oriented). These establishments produce programming
in their own facilities or acquire programming from external sources.
The programming material is usually delivered to a third party, such as
cable systems or direct-to-home satellite systems, for transmission to
viewers. The SBA small business size standard for this industry
classifies firms with annual receipts less than $41.5 million as small.
Based on U.S. Census Bureau data for 2017, 378 firms operated in this
industry during that year. (The U.S. Census Bureau withheld publication
of the number of firms that operated for the entire year to avoid
disclosing data for individual companies (see Cell Notes for this
category).) Of that number, 149 firms operated with revenue of less
than $25 million a year and 44 firms operated with revenue of $25
million or more. (The available U.S. Census Bureau data does not
provide a more precise estimate of the number of firms that meet the
SBA size standard. We note that the U.S. Census Bureau withheld
publication of the number of firms that operated with sales/value of
shipments/revenue in all categories of revenue less than $500,000 to
avoid disclosing data for individual companies (see Cell Notes for the
sales/value of shipments/revenue in these categories). Therefore, the
number of firms with revenue that meet the SBA size standard would be
higher than noted herein. We also note that according to the U.S.
Census Bureau glossary, the terms receipts and revenues are used
interchangeably.) Based on this data, the Commission estimates that a
majority of firms in this industry are small.
93. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
94. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000. For purposes of the Telecom Act Standard, the Commission
determined that a cable system operator that serves fewer than 498,000
subscribers, either directly or through affiliates, will meet the
definition of a small cable operator. (In the 2023 Subscriber Threshold
Public Notice, the Commission determined that there were approximately
49.8 million cable subscribers in the United States at that time using
the most reliable source publicly available. This threshold will remain
in effect until the Commission issues a superseding Public Notice.)
Based on industry data, only six cable system operators have more than
498,000 subscribers. Accordingly, the Commission estimates that the
majority of cable system operators are small under this size standard.
We note however, that the Commission neither
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requests nor collects information on whether cable system operators are
affiliated with entities whose gross annual revenues exceed $250
million. (The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to Sec. 76.901(e) of the Commission's rules.) Therefore, we
are unable at this time to estimate with greater precision the number
of cable system operators that would qualify as small cable operators
under the definition in the Communications Act.
6. All Other Telecommunications
95. Electric Power Generators, Transmitters, and Distributors. The
U.S. Census Bureau defines the utilities sector industry as comprised
of establishments, primarily engaged in generating, transmitting, and/
or distributing electric power. Establishments in this industry group
may perform one or more of the following activities: (1) operate
generation facilities that produce electric energy; (2) operate
transmission systems that convey the electricity from the generation
facility to the distribution system; and (3) operate distribution
systems that convey electric power received from the generation
facility or the transmission system to the final consumer. This
industry group is categorized based on fuel source and includes
Hydroelectric Power Generation, Fossil Fuel Electric Power Generation,
Nuclear Electric Power Generation, Solar Electric Power Generation,
Wind Electric Power Generation, Geothermal Electric Power Generation,
Biomass Electric Power Generation, Other Electric Power Generation,
Electric Bulk Power Transmission and Control, and Electric Power
Distribution.
96. The SBA has established a small business size standard for each
of these groups based on the number of employees which ranges from
having fewer than 250 employees to having fewer than 1,000 employees.
U.S. Census Bureau data for 2017 indicate that for the Electric Power
Generation, Transmission, and Distribution industry there were 1,693
firms that operated in this industry for the entire year. Of this
number, 1,552 firms had less than 250 employees. (The available U.S.
Census Bureau data does not provide a more precise estimate of the
number of firms that meet the SBA size standard.) Based on this data
and the associated SBA size standards, the majority of firms in this
industry can be considered small entities.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
97. In the Fourth Report and Order, we (1) establish a new process
for the Commission's review and assessment of pole attachment disputes
that impede or delay broadband deployment in order to expedite
resolution of such disputes, and (2) adopt a new requirement that
utilities retain copies of their cyclical pole inspection reports and,
upon request, provide prospective pole attachers with the information
included in the most recent report regarding the poles affected by a
prospective attacher's submitted attachment application. Our new
requirements are minimally burdensome as they merely require (1)
parties seeking to have complaints placed on the Accelerated Docket to
submit a form to the newly-established Rapid Broadband Assessment Team
(RBAT) that will elicit information relevant to the scope and nature of
the dispute and to whether the dispute is appropriate for expedited
mediation and/or placement on the Accelerated Docket, and (2) utilities
to provide information they already collect in the normal course of
business for cyclical pole inspection reports.
98. Parties seeking both RBAT review and assessment of a dispute
that a party contends is impeding or delaying deployment of broadband
facilities, and inclusion of a proceeding relating to broadband
facilities deployment on the Accelerated Docket, the party must first
notify the Chief of the Enforcement Bureau's Market Disputes Resolution
Division (MDRD) of the request by phone and in writing. This initial
notification by phone and in writing would need to be made prior to
filing the formal complaint and would constitute the notification
required under Sec. 1.736(b). Additionally, the RBAT may require that
the parties participate, if appropriate, in pre-filing settlement
negotiations or mediation under Sec. 1.737 as a condition for
including a matter on the Accelerated Docket. We amend our pole
attachment make-ready rules to require utilities to provide to
potential attachers, upon request, the information contained in their
most recent cyclical pole inspection reports, or any intervening,
periodic reports created before the next cyclical inspection, for the
poles covered by a submitted attachment application, including whether
any of the affected poles have been ``red tagged'' by the utility for
replacement, and the scheduled replacement date or timeframe. The
record indicates that utilities already prepare such reports, making
this new transparency requirement consistent with the existing
practices. For these reasons, we believe that small and other utilities
will not have an issue complying with the new obligation.
99. The Commission does not have sufficient information on the
record to determine whether small entities will be required to hire
professionals to comply with its decisions, or to quantify the cost of
compliance for small entities with the Fourth Report and Order. While
some small entities may have some unique burdens, the Commission
anticipates the requirements for pole attachment disputes and data
collection by utility companies will have minimal cost implications
because many of these obligations are consistent with existing
Commission regulations to file disputes, and existing practices by
utilities to prepare pole inspection reports.
F. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
100. The RFA requires an agency to provide a description of the
steps the agency has taken to minimize the significant economic impact
on small entities including a statement of the factual, policy, and
legal reasons for selecting the alternative adopted in the final rule
and why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.
101. The Commission took steps to minimize significant economic
impact on small entities and considered alternatives to new rules and
processes adopted in the Fourth Report and Order that may impact small
entities. By establishing the RBAT, we addressed commenters' request
that we expedite the resolution of pole attachment disputes, the delay
of which may impose greater harm on small providers. In considering
alternatives to the rules, we declined to adopt certain proposals that
are burdensome, unnecessary, or would impose significant costs on
utilities with little or no benefit to broadband deployment. For
example, we agreed with utilities that they should not be required to
gather and provide pole-related data for matters they do not track in
the normal course of business through their inspections. We also
declined to require that small and other utilities provide new
attachers with information about poles prior to the attacher submitting
an application because this data would be speculative and the build-out
may never occur. Additionally, we declined to establish a
[[Page 2170]]
single pole-information database or require each utility to create a
database of all its poles. Similar to our prior decisions on this
matter, the record demonstrates that the burdens and costs of creating
such a database are considerable given that many utilities own or
jointly own poles. Further, the scope of pole data attachers seek
exists in information from pole inspection reports we require small and
other utility companies to provide in the Fourth Report and Order. We
considered and declined to require small and other utilities to provide
financial data regarding poles and attachment rates because this would
be overly burdensome for the utilities. We also considered but declined
to require small and other utilities to provide information on the age
or condition of the poles, or number of current or pending attachment
applications for each pole because it could be burdensome, unnecessary,
or unfeasible in some cases, and would impose significant costs on
utilities with little or no benefit to broadband deployment. Finally,
we declined to require small and other utilities to provide more
detailed supporting data in their make ready estimates because the
current complaint process should be sufficient to address a potential
dispute on this matter.
G. Report to Congress
102. The Commission will send a copy of the Fourth Report and
Order, including the FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act. In addition, the Commission will send a copy of the Fourth Report
and Order and Declaratory Ruling, including the FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the Fourth Report and Order (or summaries thereof) will also be
published in the Federal Register.
V. Procedural Matters
103. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
Accordingly, we have prepared a Final Regulatory Flexibility Analysis
(FRFA) concerning the possible impact of the rule changes contained in
the Fourth Report and Order on small entities. The FRFA is set forth
herein.
104. Congressional Review Act. The Commission will send a copy of
the Fourth Report and Order to Congress and the Government
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
105. Paperwork Reduction Act. This document may contain proposed
new or modified information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Specifically,
the rules adopted in 47 CFR 1.1411, 1.1415, and 1.1416 may require new
or modified information collections. All such new or modified
information collection requirements will be submitted to the Office of
Management and Budget (OMB) for review under Section 3507(d) of the
PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific
comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25
employees. In this document, we describe several steps we have taken to
minimize the information collection burdens on small entities.
VI. Ordering Clauses
106. Accordingly, it is ordered that pursuant to sections 1-4, 201,
202, 224, and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151-54, 201, 202, 224, and 303(r), the Fourth Report and Order
and Declaratory Ruling hereby is adopted and part 1 of the Commission's
Rules, 47 CFR part 1, is amended as set forth in Appendix A of the
Fourth Report and Order.
107. It is further ordered that the Fourth Report and Order shall
become effective 30 days after publication in the Federal Register,
except that the amendments to Sec. 1.1411(c)(4) and new Sec. 1.1415,
47 CFR 1.1411(c)(4), 1.1415, which may contain new or modified
information collection requirements, will not become effective until
the Office of Management and Budget completes review of any information
collection requirements that the Wireline Competition Bureau determines
is required under the Paperwork Reduction Act. The Commission directs
the Wireline Competition Bureau to announce the effective date for
Sec. 1.1411(c)(4) and new Sec. 1.1415 by subsequent Public Notice.
108. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the
period for filing petitions for reconsideration or petitions for
judicial review of the Fourth Report and Order will commence on the
date that a summary of the Fourth Report and Order is published in the
Federal Register, and the period for filing petitions for
reconsideration or petitions for judicial review of the Declaratory
Ruling will commence upon release of the Declaratory Ruling.
109. It is further ordered that the Commission's Office of the
Secretary, shall send a copy of the Fourth Report and Order and
Declaratory Ruling, including the Final Regulatory Flexibility Analysis
and Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
110. It is further ordered that the Office of the Managing
Director, Performance Evaluation and Records Management, shall send a
copy of the Fourth Report and Order in a report to be sent to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 1
Administrative practice and procedure.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
The Federal Communications Commission amends part 1 of title 47 of
the Code of Federal Regulations as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461.
0
2. Delayed indefinitely, amend Sec. 1.1411 by adding paragraph (c)(4)
to read as follows:
Sec. 1.1411 Timeline for access to utility poles.
* * * * *
(c) * * *
(4) Information from cyclical pole inspection reports. (i) Upon
submitting its attachment application, a new attacher may request in
writing that the utility provide, as to the poles covered by such
attachment application, the information regarding those poles contained
in the utility's most recent cyclical pole inspection reports, or, if
available, any more recent pole inspection report. The utility shall
[[Page 2171]]
provide the new attacher with this information within ten (10) business
days of the new attacher's written request.
(ii) Utilities shall retain copies of their pole inspection
reports, in the form they are created, until a superseding report
covering the poles included in the attachment application is completed.
(iii) For purposes of this section, a cyclical pole inspection
report is any report that a utility creates in the normal course of its
business that sets forth the results of a routine inspection of its
poles during the utility's normal pole inspection cycle.
(iv) After requesting and receiving pole inspection information
from a utility related to poles covered by its application, a new
attacher may amend an attachment application at any time until the
utility grants or denies the original application.
(A) A utility that receives such an amended attachment application
may, at its option, restart the 45-day period (or 60-day period for
larger orders) for responding to the application and conducting the
survey.
(B) A utility electing to restart the 45-day period (or 60-day
period for larger orders) shall notify the attacher of its intent to do
so within five (5) business days of receipt of the amended application
or by the 45th day (or 60th day, if applicable) after the original
application is considered complete, whichever is earlier.
* * * * *
Sec. 1.1415 [Redesignated as Sec. 1.1416]
0
3. Redesignate Sec. 1.1415 as Sec. 1.1416.
0
4. Delayed indefinitely, add a new Sec. 1.1415 to read as follows:
Sec. 1.1415 Dispute resolution procedures for pole attachment
disputes that impede or delay broadband deployment; functions of the
Rapid Broadband Assessment Team.
(a) An inter-bureau team, to be known as the Rapid Broadband
Assessment Team (RBAT), shall be established to prioritize and expedite
the resolution of pole attachment disputes that are alleged to impede
or delay the deployment of broadband facilities and to provide
coordinated review and assessment of such disputes. The RBAT shall
consist of one or more staff from the Enforcement Bureau and one or
more staff from the Wireline Competition Bureau. Senior staff in the
Enforcement Bureau and the Wireline Competition Bureau shall designate
individuals from their respective bureaus to serve on the RBAT.
(b) The RBAT shall prioritize the resolution of a pole attachment
dispute that a party seeking RBAT review has alleged is impeding or
delaying an active broadband deployment project, including where the
party is also seeking placement of the dispute on the Accelerated
Docket pursuant to Sec. 1.736. The RBAT shall gather and promptly
review all pertinent information submitted by the parties and shall
have discretion to decide the most appropriate process for resolving
the dispute, including recommending an RBAT-supervised mediation
process pursuant to Sec. 1.737, use of the Accelerated Docket, and/or
other appropriate action. Although RBAT-supervised mediation is
generally voluntary, the RBAT may require that the parties participate
in pre-filing settlement negotiations or mediation under Sec. 1.737 as
a condition for including a matter on the Accelerated Docket. The RBAT
may recommend to the parties use of the Accelerated Docket where it
determines, based upon a totality of the criteria outlined in paragraph
(e) of this section, that a complaint, or a portion of a complaint, is
suitable for inclusion on the Accelerated Docket.
(c) A party to a pole attachment dispute, prior to filing a formal
complaint, may request RBAT review and assessment of such dispute if
the party believes the dispute is impeding or delaying the deployment
of a broadband facilities project. The party seeking RBAT review and
assessment shall first notify the Chief of the Enforcement Bureau's
Market Disputes Resolution Division (MDRD) by phone and in writing of
the request. The MDRD Chief shall direct the requesting party to the
location of a form on the MDRD website--FCC-5653, Request for RBAT
Review and Assessment--and to instructions for completing and
electronically transmitting the form to the RBAT.
(d) Upon receipt of the completed Request for RBAT Review and
Assessment, the RBAT shall schedule a meeting, through a manner of the
RBAT's choosing, with all parties as soon as practicable. The RBAT may
request a written response from the other party or parties to the
dispute with respect to one or more issues raised by the party seeking
RBAT review. The RBAT also may request that the party seeking RBAT
review or any other party or parties to the dispute provide the RBAT
with documentation or other information relevant to the dispute. In the
initial meeting, or shortly thereafter, the RBAT shall provide guidance
and advice to the parties on the most effective means of resolving
their dispute, including RBAT-supervised mediation pursuant to Sec.
1.737; use of the Accelerated Docket; and/or any other appropriate
action. If the parties seek RBAT-supervised mediation, the MDRD Chief,
in consultation with the RBAT, may waive the procedures or requirements
of Sec. 1.737 as appropriate in this context, or as needed in light of
the facts or circumstances of a particular case.
(e) The RBAT shall have discretion to decide whether a complaint,
or a portion of a complaint, involving a dispute that a party alleges
to be impeding or delaying the deployment of broadband facilities is
suitable for inclusion on the Accelerated Docket pursuant to Sec.
1.736. In determining whether to accept a complaint, or a portion of a
complaint, on the Accelerated Docket, the RBAT shall base its decision
on a totality of the factors from the following list:
(1) Whether the prospective complainant states a claim for
violation of the Act, or a Commission rule or order that falls within
the Commission's jurisdiction;
(2) Whether the expedited resolution of a particular dispute or
category of disputes appears likely to advance the deployment of
broadband facilities or services, especially in an unserved or
underserved area;
(3) Whether the parties to the dispute have exhausted all
reasonable opportunities for settlement during any staff-supervised
mediation;
(4) The number and complexity of the issues in dispute;
(5) Whether the dispute raises new or novel issues versus settled
interpretations of rules or policies;
(6) The likely need for, and complexity of, discovery;
(7) The likely need for expert testimony;
(8) The ability of the parties to stipulate to facts;
(9) Whether the parties have already assembled relevant evidence
bearing on the disputed facts;
(10) Willingness of the prospective complainant to seek a ruling on
a subset of claims or issues (e.g., threshold or ``test cases''); and
(11) Such other factors as the RBAT, within its discretion, may
deem appropriate and conducive to the prompt and fair adjudication of
the complaint proceeding.
[FR Doc. 2024-00416 Filed 1-11-24; 8:45 am]
BILLING CODE 6712-01-P
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