Proposed Rule2025-16088
Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
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Published
August 22, 2025
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Commission adopted a Fourth Further Notice of Proposed Rulemaking (FNPRM or Further Notice) addressing deployment of broadband facilities on utility poles. It seeks comment on requiring attachers to deploy equipment on poles within 120 days of completion of make-ready work. It also seeks comment on whether the Commission should require attachers to make payment on an estimate to a utility within a specific period of time after acceptance. It additionally seeks comment on limiting the amount that final make-ready costs can exceed the utility's estimate without receiving prior approval from the attacher. It further seeks comment on whether to expand the availability of the one-touch, make-ready (OTMR) process to include complex survey and make-ready work. Moreover, it seeks comment establishing a deadline to on-board approved contractors. It also seeks comment on whether the Commission should define the term "pole" for purposes of Section 224 of the Communications Act of 1934, as amended, and whether the term should be construed to include light poles. Further, it seeks comment on legal authority to adopt each of the proposals as well as any other germane policy points or facts, and on how the costs, benefits, or burdens of any rules the Commission adopts might impact businesses of various sizes.
Full Text
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[Federal Register Volume 90, Number 161 (Friday, August 22, 2025)]
[Proposed Rules]
[Pages 40993-41016]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16088]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket No. 17-84; FCC 25-38; FR ID 308629]
Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission adopted a Fourth Further
Notice of Proposed Rulemaking (FNPRM or Further Notice) addressing
deployment of broadband facilities on utility poles. It seeks comment
on requiring attachers to deploy equipment on poles within 120 days of
completion of make-ready work. It also seeks comment on whether the
Commission should require attachers to make payment on an estimate to a
utility within a specific period of time after acceptance. It
additionally seeks comment on limiting the amount that final make-ready
costs can exceed the utility's estimate without receiving prior
approval from the attacher. It further seeks comment on whether to
expand the availability of the one-touch, make-ready (OTMR) process to
include complex survey and make-ready work. Moreover, it seeks comment
establishing a deadline to on-board approved contractors. It also seeks
comment on whether the Commission should define the term ``pole'' for
purposes of Section 224 of the Communications Act of 1934, as amended,
and whether the term
[[Page 40994]]
should be construed to include light poles. Further, it seeks comment
on legal authority to adopt each of the proposals as well as any other
germane policy points or facts, and on how the costs, benefits, or
burdens of any rules the Commission adopts might impact businesses of
various sizes.
DATES: Comments are due on or before September 22, 2025, and reply
comments are due on or before October 21, 2025.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated in this document.
Comments and reply comments may be filed using the Commission's
Electronic Comment Filing System (ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Interested
parties may file comments or reply comments, identified by WC Docket
No. 17-84 by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically by
accessing ECFS at <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by hand or messenger delivery, by
commercial courier, or by the U.S. Postal Service. All filings must be
addressed to the Secretary, Federal Communications Commission.
<bullet> Hand-delivered or messenger-delivered paper filings for
the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m.
by the FCC's mailing contractor at 9050 Junction Drive, Annapolis
Junction, MD 20701. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
<bullet> Commercial courier deliveries (any deliveries not by the
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis
Junction, MD 20701.
<bullet> Filings sent by U.S. Postal Service First-Class Mail,
Priority Mail, and Priority Mail Express must be sent to 45 L Street
NE, Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#dbbdb8b8eeebef9bbdb8b8f5bcb4ad"><span class="__cf_email__" data-cfemail="b1d7d2d2848185f1d7d2d29fd6dec7">[email protected]</span></a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: For further information about this
proceeding, please contact Michele Berlove, FCC Wireline Competition
Bureau, Competition Policy Division, at (202) 418-1477, or
<a href="/cdn-cgi/l/email-protection#660b0f050e030a03480403140a0910032600050548010910"><span class="__cf_email__" data-cfemail="0865616b606d646d266a6d7a64677e6d486e6b6b266f677e">[email protected]</span></a>, or Michael Ray, FCC Wireline Competition
Bureau, Competition Policy Division, at (202) 418-0357 or
<a href="/cdn-cgi/l/email-protection#bad7d3d9d2dbdfd694c8dbc3fadcd9d994ddd5cc"><span class="__cf_email__" data-cfemail="f79a9e949f96929bd985968eb7919494d9909881">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Further Notice of Proposed Rulemaking (FNPRM or Further Notice) in WC
Docket No. 17-84, FCC 25-38, adopted on July 24, 2025, and released on
July 25, 2025. The full text of this document is available for public
inspection at the following internet address: <a href="https://www.fcc.gov/document/fcc-aims-remove-barriers-broadband-deployment-and-investment-0">https://www.fcc.gov/document/fcc-aims-remove-barriers-broadband-deployment-and-investment-0</a>.
Providing Accountability Through Transparency Act. The Providing
Accountability Through Transparency Act, Public Law 118-9, requires
each agency, in providing notice of a rulemaking, to post online a
brief plain-language summary of the proposed rule. The required summary
of this FNPRM is available at <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</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#573134346267631731343479303821"><span class="__cf_email__" data-cfemail="c8aeababfdf8fc88aeababe6afa7be">[email protected]</span></a> or call the Consumer & Governmental Affairs
Bureau at (202) 418-0530.
Ex Parte Presentations. The proceeding shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must: (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda, or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
Regulatory Flexibility Act. The Commission has prepared an Initial
Regulatory Flexibility Analysis (IRFA) concerning the potential impact
of rule and policy change proposals on small entities in the Further
Notice of Proposed Rulemaking. The Commission invites the general
public, in particular small businesses, to comment on the IRFA.
Comments must be filed by the deadlines for comments on the Further
Notice of Proposed Rulemaking indicated on the first page of this
document and must have a separate and distinct heading designating them
as responses to the IRFA.
Paperwork Reduction Act. This document may also contain proposed
new or modified information collection requirements. The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the
general public and OMB to comment on any information collection
requirements contained in this document, as required by the PRA. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
Synopsis
I. Introduction
1. The Federal Communications Commission is focused on expanding
access to high-speed broadband services. One way the agency is
delivering on that goal is by accelerating the buildout of next-
generation infrastructure. Today, we continue our infrastructure
efforts by promoting fast and efficient deployment of broadband
facilities on utility poles. As the Commission previously noted, access
to the vital infrastructure of utility poles must be ``swift,
predictable, safe, and
[[Page 40995]]
affordable, to ensure that broadband providers can continue to enter
new markets and deploy facilities that support high-speed broadband.''
And as more and more consumers rely on mobile wireless services to
access broadband, pole access becomes increasingly essential for the
small wireless antennas and wireline backhaul on which these wireless
services depend.
2. The Commission has taken significant steps in recent years to
expedite the pole attachment process, but there is more work to be
done. We seek comment in the Further Notice on ways to further
facilitate the processing of pole attachment applications and make-
ready to enable faster broadband deployment and, in response to a
Petition for Declaratory Ruling filed by CTIA, seek comment on whether
light poles fall within the purview of Section 224(f) of the
Communications Act of 1934, as amended (the Act).
II. Background
3. Section 224(f) of the Act requires that utilities provide cable
television systems and telecommunications carriers with
nondiscriminatory access to their poles. (For purposes of this
statutory provision, ``utility'' is defined as ``any person who is a
local exchange carrier or an electric, gas, water, steam, or other
public utility, and who owns or controls poles, ducts, conduits, or
rights-of-way used, in whole or in part, for any wire communications.''
Railroads, cooperatives, and federally- and state-owned entities are
expressly excluded from this definition. The term ``pole attachment''
is defined as ``any attachment by a cable television system or provider
of telecommunications service to a pole, duct, conduit, or right-of-way
owned or controlled by a utility.'') Section 224(b)(1) of the Act
requires the Commission to set the rates, terms, and conditions for
pole attachments to provide that such rates, terms, and conditions are
just and reasonable. (Note that Section 224(c) of the Act exempts from
Commission jurisdiction those pole attachments in states that have
elected to regulate pole attachments themselves (so-called ``reverse
preemption''). To date, 23 states and the District of Columbia have
opted out of Commission regulation of pole attachments in their
jurisdictions.) The Commission has rules intended to ensure
nondiscriminatory pole access and just and reasonable rates, along with
a robust complaint process to ensure that our rules are enforced.
4. Pole Attachment Process. Attaching equipment to utility poles is
a multi-stage process. In the first stage, the utility reviews the pole
attachment application submitted by the communications attacher for
completeness. In the second stage, the utility must determine whether
to grant the complete application (review on the merits) and undertake
a survey of the poles for which access has been requested. In the third
stage, the utility must prepare for the attacher an estimate of the
cost of preparing the affected poles for the new attachments. In the
fourth stage, utilities (or the existing attachers, if they want to
move their own existing equipment) perform the work to make the
affected poles ready for the new attachments (also known as ``make-
ready'' work) and then the new attachers deploy their equipment on the
poles. The make-ready stage is the most time-intensive stage in the
pole attachment process. (Make-ready is defined as ``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.'' There are several different kinds of make-ready. Complex make-
ready refers to ``transfers and work within the communications space
that would be reasonably likely to cause a service outage(s) or
facility damage, including work such as splicing of any communication
attachment or relocation of existing wireless attachments. Any and all
wireless activities, including those involving mobile, fixed, and
point-to-point wireless communications and wireless internet service
providers, are to be considered complex.'' Simple make-ready is ``where
existing attachments in the communications space of a pole could be
transferred without any reasonable expectation of a service outage or
facility damage and does not require splicing of any existing
communication attachment or relocation of an existing wireless
attachment.'' There also is make-ready above the communications space
on a pole, typically involving work either in the electric space or at
the pole-top.)
5. Existing Timelines. The Commission's rules set forth deadlines
for each stage in the pole attachment process. A utility has up to 10
business days after receiving a new attachment application to determine
whether it is complete. (If the utility timely notifies the new
attacher that its application is not complete, it must specify all
reasons for finding it incomplete, and any resubmitted application
shall be deemed complete within 5 business days after its resubmission,
unless the utility notifies the attacher of how the resubmitted
application is insufficient. The new attacher may follow the
resubmission procedure as many times as it chooses so long as it makes
a bona fide attempt to correct the reasons identified by the utility,
and in each case the 5-day deadline shall apply to the utility's
review.) Upon receipt of a complete application, (A new attacher's
attachment application is considered complete if it provides the
utility with the information necessary under its procedures, as
specified in a master service agreement or in requirements that are
available in writing publicly at the time of submission of the
application, to begin to survey the affected poles) the utility has 45
days in which to make a decision on the application and complete any
surveys to determine whether and where attachment is feasible and what
make-ready is required. The utility then must provide an estimate of
all make-ready charges within 14 days of its response granting access
or, where the new attacher has performed the survey, within 14 days of
receipt of such survey. The new attacher has 14 days or until
withdrawal of the estimate by the utility, whichever is longer, to
accept the estimate and make payment. Once the utility receives payment
of the estimate, it then must notify existing attachers on the pole of
the new attachment. The existing attachers then must move their
equipment to make room for the new attachment within 30 days of
receiving notice from the utility for attachments in the communications
space or 90 days for attachments above the communications space.
(Different portions of the vertical pole serve different functions. The
bottom of the pole generally is unusable for most types of attachments.
Above that, the lower usable space on a pole--the ``communications
space''--houses low-voltage communications equipment, including fiber,
coaxial cable, copper wiring, and small wireless antennas. The topmost
portion of the pole--the ``electric space''--houses high-voltage
electrical equipment. Work in the electric space generally is
considered more dangerous than work in the communications space.
Historically, communications attachers used only the communications
space; however, mobile wireless providers increasingly are seeking
access to areas above the communications space to attach pole-top small
wireless equipment.) A utility must complete its make-ready work in the
same time periods, except it may take up to 15 additional days to
complete make-ready above the communications space. These deadlines
apply to all pole attachment requests up
[[Page 40996]]
to the lesser of 300 poles or 0.5 percent of the utility's poles in a
state (Regular Orders). For pole attachment requests larger than a
Regular Order and up to the lesser of 3,000 poles or 5 percent of a
utility's poles in a state, a utility may add 15 days to the survey
period and 45 days to the make-ready periods. For pole attachment
requests larger than the lesser of 3,000 poles or 5 percent of a
utility's poles in a state, our rules currently provide that the
utility and the attacher must negotiate in good faith the timing of the
pole attachment process. (Note that a utility may treat multiple
requests from a single new attacher as one request when the requests
are filed within 30 days of one another.) Utilities may deviate from
the pole attachment timelines in our rules--for the make-ready phase
only--for good and sufficient cause that renders it infeasible for the
utility to complete make-ready within the required timeline. (Utilities
may deviate from any of the pole attachment timelines in our rules
before offering the estimate of charges if the parties have no
agreement specifying the rates, terms, and conditions of attachment. In
addition, existing attachers may deviate from the timelines specified
in our rules during the performance of complex make-ready for reasons
of safety or service interruption that renders it infeasible for the
existing attacher to complete complex make-ready within the timelines.)
6. Self-Help. In certain instances, our rules allow the new
attacher to avail itself of self-help for surveys and make-ready work
when those pole attachment deadlines are not met. (Self-help is not
available for pole replacements.) For simple surveys and make-ready
work, our rules allow new attachers to perform the work themselves
using an approved contractor from a utility list; if the utility does
not maintain a list of approved contractors, the new attacher can hire
its own contractor as long as that contractor meets the qualifications
set forth in our rules and the attacher certifies as such to the
utility. (Utilities may, but are not required to, maintain a list of
approved contractors for surveys and simple make-ready work.) For
surveys and make-ready work that are complex or above the
communications space, an existing attacher still can avail itself of
self-help, but it must use a utility-approved contractor. (Utilities
are required to maintain an up-to-date ``reasonably sufficient list''
of approved contractors for self-help surveys and make-ready that is
complex or above the communications space.)
7. One-Touch-Make-Ready. In 2018, the Commission adopted a new
framework that allows attachers to control the surveys, notices, and
make-ready work necessary to attach their equipment to utility poles in
certain circumstances. In what is known as one-touch, make-ready
(OTMR), for an attachment involving simple make-ready, a new attacher
may elect to perform the work to attach its wireline equipment to the
communications space of a pole. (``Any and all wireless activities,
including those involving mobile, fixed, and point-to-point wireless
communications and wireless internet service providers, are to be
considered complex.'') This framework includes safeguards to promote
coordination among parties and ensures that new attachers perform the
work safely and reliably. As the Commission stated at the time, using
OTMR will save new attachers ``considerable time in gaining access to
poles (with accelerated deadlines for application review, surveys, and
make-ready work) and will save substantial costs with one party (rather
than multiple parties) doing the work to prepare poles for new
attachments.''
8. Recent Commission Action. In December 2023, the Commission took
additional steps to speed-up broadband deployment by making the pole
attachment process faster, more transparent, and more cost-effective.
Specifically, the Commission adopted rules: (1) establishing the Rapid
Broadband Assessment Team (RBAT) to provide coordinated review and
assessment of qualifying pole attachment disputes and recommend
effective dispute resolution procedures, and (2) requiring 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. Additionally, the Commission clarified
that a ``red tagged'' pole is one that the utility has identified as
needing replacement for any reason other than the pole's lack of
capacity and provided additional examples of when, under Section
1.1408(b) of our rules, a pole replacement is not ``necessitated
solely'' as a result of a third party's attachment or modification
request because the pole already requires replacement at the time of
the new request. The Commission also clarified the obligation to share
easement information and the applicable timelines for the processing of
attachment requests for 3,000 or more poles. (For the processing of
pole attachment requests, the Commission specifically clarified that
``when an application is submitted requesting access to more than the
lesser of 3,000 poles or 5 percent of a utility's poles in the state,
the lesser of the first 3,000 poles or 5 percent of the utility's poles
in the state of that application are subject to the make-ready timeline
set forth in Sec. 1.1411(g)(3), which gives utilities 45 additional
days beyond the standard make-ready timeline to process attachment
applications, so long as the attacher designates in its application the
first 3,000 poles (or 5 percent of the utility's poles in the state) to
be processed, which the utility must permit the attacher to do.'')
9. The rise in government funding for broadband deployment has
contributed to a significant increase in deployment of extensive new
broadband facilities, resulting in a significant increase in the number
of applications seeking to attach these facilities to large numbers of
utility poles. Both attachers and utilities acknowledge that these
increases, along with increases in privately funded projects, have put
greater demand on utility resources and the pool of qualified
contractors and have resulted in difficulties and delays in accessing
poles. As a result, the Commission sought comment in the Third Further
Notice (89 FR 1859; Jan. 11, 2024) on: (1) a tentative conclusion that
utilities should have an additional 90 days for make-ready work for
requests exceeding the lesser of 3,000 poles or 5 percent of the
utility's poles in a state; (2) whether the Commission should prohibit
utilities from limiting the number of poles included in a pole
attachment application and from limiting the number of applications an
attacher may submit at a time; (3) a proposal that the Commission add
additional time to the existing timelines for larger orders; (4)
whether the Commission should create additional make-ready timeline
tiers for attachment applications of different sizes; (5) a proposal
that a utility notify an attacher within 15 days after receiving a
complete application if it cannot conduct the survey within the
required 45-day period (so that the attacher can elect self-help for
the survey sooner); (6) whether the Commission should make self-help
available for the make-ready estimate process; and (7) the impact of
contractor availability when attachers seek to use their own
contractors for self-help and whether to amend the Commission's
[[Page 40997]]
rules to make it easier for attachers to use their own contractors for
self-help when there are no contractors available from a utility
contractor list. Comments on the Third Further Notice were due on
February 13, 2024, and replies were due on March 13, 2024.
10. CTIA Petition for Declaratory Ruling. In 2019, CTIA filed a
Petition for Declaratory Ruling in this proceeding. (The CTIA Petition
was also filed in the Wireless Telecommunications Bureau's Accelerating
Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment proceeding. The Wireline Competition and Wireless
Telecommunications Bureaus placed the CTIA Petition on public notice
and in response received dozens of comments, replies, and ex parte
presentations from communication providers and utility groups. The
Bureaus twice extended the comment deadlines.) CTIA requested three
declarations concerning pole attachments in its Petition: (1) that the
term ``pole'' in Section 224 includes light poles; (2) that utilities
may not impose ``blanket'' restrictions on access to portions of any
poles they own; and (3) that utilities may not seek bargained-for terms
and conditions that are inconsistent with the Commission's pole
attachment rules. The latter two issues were addressed in a Declaratory
Ruling released in July 2020. The question of whether the term ``pole''
encompasses light poles remains pending.
III. Further Notice of Proposed Rulemaking
11. We recognize the complexities attendant to the pole attachment
process, with each side of the equation facing their own particular
difficulties and concerns. Utilities and attachers have both proposed
additional actions the Commission might take to ameliorate those
concerns and thus make the process more efficient. We seek comment on
certain of these proposals to determine whether they might help further
the Commission's goal of expediting broadband deployment by reducing
barriers to infrastructure investment. To the extent not already
flagged below, we seek comment on our legal authority to adopt each of
these proposals as well as any other germane policy points or facts. We
also seek comment on how the costs, benefits, or burdens of any rules
we adopt might impact businesses of various sizes.
A. Deployment Within 120 Days of the Completion of Make-Ready Work
12. We seek comment on requiring attachers to deploy equipment on
poles within 120 days of completion of make-ready work. Utilities
assert that attachers do not promptly begin deployment after make-ready
is complete and, in some instances, fail to deploy at all. We seek
comment on the frequency with which attachers fail to deploy in a
timely manner or not at all after make-ready is complete and why this
occurs. (We note that the Electric Utilities provide two concrete
examples of attachers delaying deployment.) Utilities state that a
failure of attachers to deploy in a timely manner (or at all) is
inefficient because it both unnecessarily strains utilities that must
process applications and denies space to other attachers whose
applications were filed after those of the attacher at issue. The
Coalition for Concerned Utilities asserts that requiring attachers to
deploy in a timely manner will provide an incentive for them to more
carefully plan their deployments further in advance with utilities.
Would a rule requiring attachers to deploy equipment by no later than
120 days after completion of make-ready work alleviate this problem? Or
do commenters agree with USTelecom that imposing a fixed timeline for
deployment would instead ``increase disputes and eliminate the
coordination and flexibility that is essential to deployment''? If we
adopt a fixed timeline for deployment, is 120 days reasonable, or
should attachers be given more or less time? Should attachers be
required to begin deployment by the end of any timeframe that we adopt
or, as utilities argue, complete deployment by that time?
13. We seek comment on the potential repercussions for an attacher
that fails to deploy equipment within 120 days after the completion of
make-ready work. Would requiring these attachers to restart the pole
attachment process negatively impact broadband deployment such that any
benefit would be outweighed by the cost? Should we tie any potential
repercussion for attachers to whether a utility completed the prior
phases of the pole attachment process in a timely manner? If a utility
fully complied with the Commission's timelines, does the utility incur
any costs from an attacher's late deployment or failure to deploy?
Alternatively, rather than the Commission codifying rules on these
issues, should any deployment timeframes and noncompliance fees be
dealt with through the Commission's complaint process, the Rapid
Broadband Assessment Team, other enforcement mechanisms, or by the
parties in their pole attachment agreement? Should there be any
Commission rules, policies, or guidance governing the terms of such
provisions in a pole attachment agreement?
B. Deadline To Make Payment
14. We seek comment on whether we should require attachers to make
payment on an estimate to a utility within a specific period of time
after the attacher's acceptance of the estimate. Utilities suggest that
attachers should be required ``to pay all estimated make-ready costs,
in full, within 30 days of the date on which the estimate is accepted
by the attacher. If an attacher fails to make any payment within the
time frame specified in the rule, the applicable make-ready timeline
should be deemed waived.'' We seek comment on this request. Is such
action necessary and, if so, why? Is 30 days reasonable, or should we
specify a different time interval?
15. Under the Commission's rules, an attacher currently may accept
and pay a valid estimate any time after receipt, unless the utility
withdraws the estimate before acceptance. (Note, however, that a
utility must leave the estimate open at least 14 days after presenting
it to the attacher.) The timelines for make-ready, however, do not
begin to run until after the attacher makes payment. Therefore, the
pole access timeline is effectively paused until the attacher makes
payment. Utilities state that this leads to deployment delays that
create significant uncertainty and unpredictability that make it
difficult for them to determine how to allocate their resources
effectively. Utilities further explain that attachers' current payment
practices compound this difficulty, as attachers often ``make a single,
lump-sum payment for the total of all estimated make-ready costs for
multiple applications submitted weeks or months apart.'' This ``floods
the pole owner's make-ready queue'' and requires the utility ``to
determine which specific make-ready projects the lump-sum payments
should be allocated to before work begins.'' How common is it for
attachers to delay payment after accepting an estimate? In those
instances, why are attachers delaying payment to utilities? Will
imposing a deadline to make payment incentivize broadband deployment
and allow utilities to more efficiently allocate their resources?
16. NCTA and Altice ask that we prohibit utilities from requiring
full or
[[Page 40998]]
partial payment upon an attacher's acceptance, and instead implement a
payment schedule based on make-ready work progress, something the
Commission explicitly declined to do in 2011. They argue that
prohibiting prepayment will better incentivize utilities to meet
timelines for make-ready work, claiming that utilities frequently fail
to do so. Utilities disagree, explaining that they will instead be less
incentivized to complete work quickly if they can only recoup costs
later and that prepayment is the only way they can be certain that they
will recover make-ready costs. Should we prohibit utilities from
requiring full or partial up-front payment? Alternatively, should we
allow utilities to require that attachers pay a portion of make-ready
costs up-front and make further payments based upon make-ready work
progress? If so, what percentage of the estimate should be paid up-
front and as the work progresses? For example, NCTA cites to Utah's
approach, which requires attachers to pay 50% up-front, 25% after half
the work is done, and then the remaining 25% upon completion, but
allows attachers to elect to make full up-front payment. Are there
other examples of states limiting prepayment or basing payment on work
progress that we should consider? If we were to require a percentage of
the make-ready costs to be paid as work progresses, what specific
metrics should be used to define that progression? For instance, if the
Commission adopted a 50/25/25 payment schedule for make-ready costs,
should the determination of when the utility has completed half of the
make-ready work be based upon the number of poles for which make-ready
is completed by application? If we allow for partial upfront payment,
should we require a commitment from utilities to complete the work
within a specific timeframe? How should utilities demonstrate this
commitment? Would prohibiting utilities from requiring partial or full
prepayment violate Section 224 of the Act by ``precluding utilit[ies
from] full recovery of costs that [they] incur[ ] to provide pole
access?'' While utilities also observe that the Commission previously
declined to adopt any form of payment schedule for make-ready work in
the 2011 Report and Order, NCTA asserts that the subsequent record
supports its proposal. Do commenters agree with NCTA? Why or why not?
Have circumstances changed since 2011 such that the Commission's
concerns at that time either no longer exist or are outweighed by other
factors? Alternatively, rather than the Commission codifying rules on
these issues, should establishing payment deadlines and schedules
similarly be left to the parties in their pole attachment agreement? If
that is the better option, should there be any Commission rules,
policies, or guidance governing the terms of such provisions in a pole
attachment agreement?
C. Imposing a Cost Ceiling
17. We seek comment on limiting the amount that final make-ready
costs can exceed the utility's estimate without requiring the utility
to have obtained prior approval from the attacher. Attachers had
previously reported instances where the costs in final invoices for
make-ready work significantly exceeded those in accepted estimates,
often attributing this discrepancy to delays in utilities completing
the various pole attachment phases. While the Commission subsequently
required detailed make-ready cost estimates and post-make-ready
invoices, the record reflects continued attacher frustration with
utility delay and unexpectedly high final make-ready costs. Some states
that regulate pole attachments themselves have imposed a ceiling, or
upper limit, on the range of costs that a utility can incur while
completing make-ready work and bill to the attacher. For example, New
York requires that ``[m]ake-ready estimates shall be binding within a
certain range, specified by the parties, and then be trued up to actual
costs within the range.'' And Utah provides that ``if [an attacher]
accepts the make-ready estimate and make-ready construction time line,
the work must be done on schedule and for the estimated make-ready
amount, or less, and the [attacher] will be billed for actual charges
up to the bid amount.''
18. In practice, we believe that imposing any cost ceiling would
require a utility to gain an attacher's approval before the utility can
incur make-ready costs beyond those contemplated in the estimate. Do
commenters believe that a cost ceiling would incentivize utilities to
meet the Commission's pole attachment timelines to avoid price
increases that could lead to significantly higher costs than had been
estimated? Should the cost ceiling differ in any way for an attacher
that has exercised the self-help remedy we adopt today for the estimate
phase of the pole attachment process? What cost ceiling would best
motivate utilities and attachers to timely deploy broadband? If the
cost ceiling is a range, should it be a percentage of a make-ready
estimate, or would a dollar amount added on top of all estimates be
more appropriate? What percentage or dollar amount do commenters
believe is reasonable? Like Utah, should we prohibit utilities from
billing attachers for any true-up costs without prior attacher approval
rather than specifying a cost ceiling? Have any other reverse-
preemption states adopted different cost-ceiling approaches that we
should consider? Should a cost ceiling instead be a negotiable term of
the make-ready estimate, similar to New York's approach? Do pole
attachment agreements already include such cost ceilings? Would such
cost ceilings best be left to private agreement?
19. We seek comment on our tentative conclusion that adopting a
cost ceiling will prevent some disputes over unexpectedly high final
make-ready costs by increasing transparency between attachers and
utilities during the make-ready process. Do commenters agree? Does the
cost ceiling's impact on disputes depend on its size? To the extent
parties are already free to negotiate a cost ceiling, are disputes
regarding final invoices amenable to resolution through the Rapid
Broadband Assessment Team or the Commission's complaint process? If we
prohibit utilities from billing true-up costs without prior attacher
approval, should we combine that with a requirement that attachers
remit full or partial up-front payment for make-ready work? If we adopt
a cost ceiling, do we need to account for any conditions or provide
certain guardrails for attachers or utilities? If so, what would such
guardrails entail? Is there other Commission action regarding make-
ready estimates or final costs that would increase transparency between
utilities and attachers, encourage compliance with the Commission's
pole attachment timelines, or promote faster broadband deployment? Are
there concerns with imposing a cost ceiling at the federal level? For
example, reverse-preemption states have authority over their utilities
to require them to recoup any excess costs, presumably through
regulation of electric rates. Does the Commission's lack of similar
authority over utilities in Commission-regulated states counsel against
adopting cost ceilings?
D. Availability of OTMR for Complex Work
20. We seek comment on whether to expand the availability of the
OTMR process to include complex survey and make-ready work. (Electric
Utilities proposed that the Commission establish an ``enhanced'' OTMR
rule that would require new attachers to perform all required make-
ready within the communications space, whether simple or complex.
Attachers strongly oppose
[[Page 40999]]
this proposal because they claim it: (1) is counter to the purpose of
OTMR; (2) would eliminate their investment in current practices and
procedure while requiring further resources to adapt to the proposal;
(3) would revert control of the survey process; (4) would prevent
performance of make-ready in one touch for simple make-ready; and (5)
would force existing attachers to allow competitors to do work that
could reasonably cause a service outage or facility damage.) Under the
Commission's current rules, an attacher has the option to elect the
OTMR process for attachments involving simple make-ready, an election
the attacher makes in its application. When an attacher avails itself
of this option, it achieves certain efficiencies by not having to rely
on the utility to complete each phase of the pole attachment process
within the prescribed timelines. The record suggests that very few
attachers have elected to use OTMR since it was created in 2018.
According to utility commenters, one of the impediments is that it is
not available for complex work. We seek comment on whether attachers
would be more likely to elect OTMR if it were available for complex
work. Are there other obstacles to the use of OTMR that would prevent
its use even if it were available for complex work? For example, what,
if any, role does attacher reticence to touch third-party equipment
play in decisions to not make use of OTMR? If we were to make OTMR
available for complex work, would we need additional requirements for
contractors to safely perform complex work in the communications space,
such as any qualification requirements necessary for contractors to do
work on wireless equipment in the communications space? Would any
additional safeguards be necessary or appropriate for complex OTMR?
E. Deadline for On-Boarding Approved Contractors
21. In Section III.D of today's Report and Order, we improve the
self-help remedy by requiring utilities to respond to requests to add
additional qualified contractors to a utility's existing approved
contractor list within 30 days of receiving the request, while
recognizing that utilities may need to take additional steps to on-
board the contractors for work on the utility's poles. We understand
that utilities must ensure that the individuals working on their poles
are properly trained, have access to their internal systems, and do not
present a safety or security risk. Some utilities suggest, however,
that the process to on-board a newly approved contractor can take three
months to a year or more. That is little help to an attacher that has
invoked its right to self-help under our rules because a utility has
missed survey or make-ready deadlines, finds that none of the
contractors on the utility's approved list are available, and needs to
request the addition of qualified contractors to the list in order to
get the work done. In such a circumstance, an excessively long on-
boarding process could effectively thwart the goals of the self-help
remedy. We, therefore, seek comment on how much time it actually takes
for a utility to responsibly on-board a new contractor and whether we
should modify Section 1.1412 of the Commission's rules to set a
deadline for utilities to complete the on-boarding process. (We, thus,
decline EEI's request to remove this subject from this Further Notice.)
22. The Electric Utilities describe the processes used by two
utilities to on-board newly approved contractors. (The entities
represented in the comments filed by the Electric Utilities include
Southern Company, Oncor Electric Delivery Company LLC, Entergy
Corporation, Duke Energy Corporation, American Electric Power Service
Corporation, and Ameren Services Company.) At a high level, both
processes involve three steps. The first is to negotiate and execute an
agreement with the contractor, which the Electric Utilities state can
take between three and six months depending on the utility. The second
step is to on-board the newly approved contractor into the utility's
internal systems, including its pole attachment-related software
systems. This step can involve background checks, credential checks,
drug-screening, and can take one to four months depending on the
utility. The third step is to train the contractor's employees to use
the utility's software and to perform work on the utility's poles. The
Electric Utilities indicate that the time necessary to complete this
step depends on the utility and the role that the contractor will
perform. For instance, AEP may only need one to two weeks to train a
survey crew to use AEP's survey tools, but training engineering
employees may take between two and six months. Alabama Power, on the
other hand, only needs one to two weeks to train contractor engineers
before on-boarding is technically complete, but that contemplates an
additional six to 12 months of on-the-job training.
23. Do other commenters agree that these are generally the three
steps that need to be completed to on-board a contractor? Are there
other on-boarding steps not mentioned above? (Dominion/Xcel describe a
four step ``vetting and approval'' process: (1) ``Data Review'' that
takes four weeks and looks at seven categories of safety data
(including, but not limited to, OSHA 300 logs, fatalities, safety
programs, and citations) and four categories of environmental data
(including policy, performance, and mitigation plan); (2) ``Field
Evaluation'' that takes three weeks; (3) ``Formal Evaluation/All
Metrics'' that takes two weeks and looks at ``[c]ompany data
(employees, customers, references),'' ``Work experience (types,
voltages, related experience),'' ``Crew availability (relevant
experience, location),'' and equipment; and (4) ``Orientation and
Training'' that takes two weeks.) Are the steps the same for on-
boarding contractors that do survey and make-ready work? Do commenters
agree that the intervals of time mentioned by the Electric Utilities
reflect the amount of time actually needed to complete each step? Could
the steps be completed in a shorter amount of time? For instance, when
utilities execute an agreement with newly approved contractors, do they
typically use form agreements that require little modification from
contractor-to-contractor, and thus could be executed in a few weeks
versus the suggested one to four months? If it really takes months to
negotiate and execute agreements with newly approved contractors, why
is that the case? As a threshold matter, is it correct that the utility
is the entity responsible for executing an agreement with a contractor
and on-boarding the contractor when the contractor is proposed by an
attacher to perform self-help work? Can or does an attacher execute an
agreement with a proposed contractor to perform work on a utility's
poles and on-board that contractor to perform the work without the
utility's involvement? Stated differently, is it necessary for a
utility to also enter into an agreement with the proposed contractor to
ensure it retains the control necessary to ensure that work performed
on its poles does not create safety and reliability hazards? If only
the attacher enters into an agreement with the proposed contractor,
through what specific means could the attacher ensure that the
contractor complies with the utility's safety standards and technical
specifications, and do they have the experience necessary to do so for
work performed above the communications space?
24. We assume that if a contractor is able to make the
representations required by Section 1.1412(c) (e.g., it knows how to
read and follow licensed-
[[Page 41000]]
engineered pole designs for make-ready), it already has skilled
professional staff, and the training that takes place during the on-
boarding process is to ensure that the contractor's employees can use
utility-specific software systems and execute utility-specific
construction standards, protocols, and policies. Is that correct? If
so, could that training be completed in a matter of weeks versus
months? In the case of larger contractors that work with a number of
utilities, would some employees already be familiar with a particular
utility's systems and requirements or have a level of familiarity that
could expedite the training process? For instance, NCTA points to
mutual aid agreements in which utilities send crews to other parts of
the country where there are power outages due to natural disasters to
help restore power as examples of when contractors are able to work on
utility poles without extensive on-boarding processes. While NCTA
``recognizes mutual aid agreements exist for emergency circumstances''
and does not request ``the same process a utility may invoke in an
emergency,'' do such agreements indicate that it is possible for large
contractors with experienced staff to be on-boarded faster than
utilities suggest? If not, why not? Are there significant variations
between utility software systems, standards, and policies that require
months to address, or are the variations minor such that contractors
should be able to use them with minimal training? Could any of the
steps described by utilities be expedited by having them run on
parallel tracks? Are there steps in the on-boarding process that are or
could be expedited by the contractors themselves (e.g., any internal
vetting required for individual contractor employees)? On average, what
is the actual overall time needed to complete all steps to on-board a
newly approved contractor?
25. In seeking comment on these topics, our goal is to understand
the amount of time actually needed to complete the contractor on-
boarding process, based on the steps taken by different utilities, and
how that timing impacts an attacher's ability to invoke the self-help
remedy and request that utilities add additional qualified contractors
to their approved lists to complete the self-help work. Would the
Commission improve the viability of the self-help remedy by setting a
deadline for utilities to complete the on-boarding process for a
contractor that meets the requirements of Section 1.1412(c) of the
Commission's rules? If so, based upon all of the steps a utility needs
to take to address safety, reliability, and security concerns, what
should that deadline be?
F. Defining the Term ``Pole'' for the Purposes of Section 224
26. We seek comment on whether a light pole is a ``pole'' for
purposes of Section 224 of the Act. Neither Section 224 nor the
Commission's implementing rules define the term ``pole.'' In September
2019, CTIA filed a petition seeking a declaratory ruling that a light
pole is a ``pole'' under Section 224 and that, consequently, utilities
must afford nondiscriminatory access to light poles at rates, terms,
and conditions, consistent with Section 224 and the Commission's
implementing rules. In its Petition, CTIA argued, in short, that: (1)
light poles are optimal locations for small cells (For the purposes of
this Further Notice, we assume that the small cells referred to in
CTIA's Petition and comments filed in response to the Petition are
facilities meeting the definition of Small Wireless Facilities in Sec.
1.6002(l) of the Commission's rules, 47 CFR 1.6002(l), and we use that
defined term going forward.) and are likely to be the only feasible
location along rights-of-way where electric lines are buried; (2)
utilities are denying access to light poles, or are charging high fees
for access, in a manner that impedes deployment; (3) excluding light
poles from the definition of ``pole'' under Section 224 would be
inconsistent with the Commission's rules and congressional intent; (4)
construing Section 224 to apply to light poles would be ``consistent
with the real-world practice of commingling street lights and
communications attachments on the same poles; and (5) applying Section
224 to light poles would advance the public policy goals of promoting
competition and the deployment of infrastructure to support broadband
and 5G without harming utilities.
27. Promoting broadband and 5G deployments is one of our top
priorities. The Commission is committed to expediting and removing
obstacles to such deployments, and to that end, has recognized that
light poles are suitable hosts for Small Wireless Facilities. 5G
wireless networks rely on dense deployment of smaller antennas across
provider networks in locations closer to customers. Requiring
nondiscriminatory access to light poles for communications attachments
at rates, terms, and conditions that are just and reasonable could thus
be a significant positive step toward the Commission's connectivity
goals. The question of what constitutes a ``pole'' for the purposes of
Section 224 raises complex issues, however, so we take this opportunity
to refresh the record on the CTIA Petition and seek targeted comment on
whether the Commission should codify a definition of the term ``pole,''
whether any codified definition should include light poles, whether any
rule changes would be necessary to implement a definition that includes
light poles, and the impact that requiring nondiscriminatory access to
light poles at rates, terms, and conditions that are just and
reasonable would have on the deployment of broadband and 5G.
1. The best reading of the term ``pole'': an ordinary or technical,
industry-specific meaning?
28. We seek comment on the best reading of the term ``pole'' in
Section 224. We start by seeking comment on whether the term ``pole''
as used in the text of the Pole Attachment Act of 1978 (1978 Act) has
an ordinary meaning (e.g., one consistent with a common dictionary
definition) or a technical, industry-specific meaning (e.g., a utility
pole built for providers of electric and local exchange services to
attach their distribution facilities). (Courts may look beyond the
common meaning of statutory language ``where a statutory or regulatory
term is a technical term of art, defined more appropriately by
reference to a particular industry usage than by the usual tools of
statutory construction,'' in the which case ``the term should be
construed with reference to the actual context of the regulated
industry in question.'') The 1978 Act authorized the Commission to
regulate the rates, terms, and conditions of pole attachments to
provide that they are just and reasonable, and defined ``pole
attachment'' as ``any attachment by a cable television system to a
pole, duct, conduit, or right-of-way owned or controlled by a
utility.'' Congress defined a ``utility'' that may be subject to
Section 224 as ``any person whose rates or charges are regulated by the
Federal Government or a State and who owns or controls poles, ducts,
conduits, or rights-of-way used, in whole or in part, for wire
communication.'' (Congress excluded from the definition of utility
``any railroad, any person who is cooperatively organized, or any
person owned by the Federal Government or any State.'') Congress
further codified a standard for determining whether a pole attachment
rate is just and reasonable, stating, in pertinent part, that a rate is
just and reasonable ``if it assures a utility the recovery of not less
than the additional costs of providing pole attachments, nor more than
an amount determined by multiplying the percentage of the total
[[Page 41001]]
usable space . . . which is occupied by the pole attachment by the sum
of the operating expenses and actual capital costs of the utility
attributable to the entire pole . . . .'' ``Usable space'' is defined
in the statute as ``the space above the minimum grade level which can
be used for the attachment of wires, cables, and associated
equipment.''
29. Do these provisions, and the statute as a whole, show that
Congress intended the term ``pole'' to have an ordinary, common meaning
(as understood in 1978) or a technical or industry-specific meaning?
Were the only poles used in 1978 for cable television system
attachments traditional utility poles used for local distribution of
electric and telecommunications services, or were other poles used for
cable television system attachments as well? What poles were: (1) owned
or controlled by ``any person whose rates or charges are regulated by
the Federal Government or a State;'' (``State'' was defined in the
statute as ``any State, territory, or possession of the United States,
the District of Columbia, or any political subdivision, agency, or
instrumentality thereof.'') and (2) ``used, in whole or in part, for
wire communication'' in 1978? Is ``usable space'' a term of art and if
so, to what industries and/or for what purposes did it apply in 1978?
Are other words used in the 1978 Act terms of art? Is there other
language in the 1978 Act that the Commission should consider to
determine whether Congress intended the term ``pole'' to have an
ordinary, common meaning or a technical, industry-specific meaning when
the statute was enacted? In either case, what was that meaning?
30. The Telecommunications Act of 1996 (1996 Act) amended Section
224 to, in pertinent part, expand the definition of pole attachments to
include attachments by providers of telecommunications service and to
add a new requirement that utilities ``provide a cable television
system or any telecommunications carrier with nondiscriminatory access
to any pole, duct, conduit, or right-of-way owned or controlled by
it.'' Congress codified an exception to this nondiscriminatory access
provision, stating that ``a utility providing electric service may deny
a cable television system or any telecommunications carrier access to
its poles, ducts, conduits, or rights-of-way, on a non-discriminatory
basis where there is insufficient capacity and for reasons of safety,
reliability and generally applicable engineering purposes.'' Congress
retained its standard for determining whether a pole attachment rate is
just and reasonable and the definition of the term ``usable space''
used in that standard.
31. Some attachers have argued that the reference to ``any pole''
in the nondiscriminatory access provision enacted via the 1996 Act
demonstrates that Section 224 applies to any type of pole that is owned
or controlled by a utility. Specifically, they have argued that in the
absence of a statutory definition, ``pole'' should be given its
ordinary meaning, pointing to dictionary definitions, and that courts
construe the term ``any'' expansively to mean ``all.'' Thus, these
attachers have argued that the enactment of the ``any pole'' language
in the 1996 Act language evinces that all types of poles owned or
controlled by a utility are subject to the nondiscriminatory access
provision in Section 224(f)(1). Some have gone further and suggested
that while whether a person or entity owns or controls poles that are
``used . . . for any wire communications'' dictates that person's or
entity's status as a ``utility'' under Section 224(a)(1), as long as an
entity is a ``utility'' by virtue of its ownership or control of such
poles, it must provide access to all poles it owns or controls, even
those that are not used for wire communications. (We note that in the
1996 Act, Congress modified the language in the definition of
``utility'' to state ``any person who is a local exchange carrier or an
electric gas, water, steam, or other public utility, and who owns or
controls poles, ducts, conduits, or rights-of-way used, in whole or in
part, for any wire communications.'' It retained an exclusion for ``any
railroad, any person who is cooperatively organized, or any person
owned by the Federal Government or any State.'')
32. We seek comment on this view. In so doing, we take note of the
Eleventh Circuit's decision in Southern Company v. FCC. After the
enactment of the 1996 Act, the Commission adopted rules to implement
its requirements, including rules to implement the new
nondiscriminatory access provisions in Section 224(f). Construing that
statutory provision, the Commission found that the ``breadth of the
language contained in Section 224(f)(1) precludes us from making a
blanket determination that Congress did not intend to include
transmission facilities.'' In an order on reconsideration in 1999, the
Commission ``reaffirm[ed its] decision . . . that electric transmission
facilities are not exempted from the pole attachment provisions of
section 224.'' The Eleventh Circuit overturned this conclusion insofar
as it referred to transmission towers or other transmission plant,
stating in Southern Company that ``Congress intended to limit [section
224's] application to local distribution facilities.'' (In reaching
this conclusion, the Court found that poles are regular components of
local distribution systems and not interstate transmission systems,
which are regulated by the Federal Energy Regulatory Commission (FERC)
pursuant to the Federal Power Act (FPA). The Court noted that the FPA
divests FERC of jurisdiction over facilities used for local
distribution and that the primary facility used to carry transmission
wires (i.e., towers) is not mentioned in Section 224. The Court also
looked at Section 224's reverse preemption provision and noted that
states lack jurisdiction to regulate interstate transmission
facilities.)
33. Utilities have argued that Southern Company limits the
Commission's authority under Section 224 to the regulation of local
distribution poles only, and that the Commission does not have
authority to regulate other types of property that may be owned or
controlled by a utility and commonly called a pole, but that is not
used in local distribution. Attachers have argued that the Eleventh
Circuit did not go that far in Southern Company. They have argued that
the only issue before the Court was whether the Commission could
regulate interstate transmission facilities that are already regulated
by Federal Energy Regulatory Commission (FERC), not whether the
Commission has jurisdiction to regulate other poles that are local in
nature, such as light poles. Attachers have suggested that, in fact,
Southern Company supports their argument that the term ``pole'' should
be given an ordinary meaning because the Court stated in another part
of its opinion that: (1) the term ``any'' is construed expansively to
mean ``all'' unless Congress adds language limiting its breadth; and
(2) ``the lack of a limitation upon the adjective `any' means that
Section 224(f)(1) expands the Act's coverage to all `poles, ducts,
conduits, or rights-of-way owned or controlled by a utility.' '' The
Court made these statements when concluding that utilities must provide
nondiscriminatory access to all of their poles under Section 224(f)(1)
``regardless of whether the facility is presently being used for
telecommunications purposes,'' (The Court concluded that the definition
of a ``utility'' in the statute is not limited to entities that use
``all'' of their facilities for wire communications, and that ``the
natural inference'' from the lack of such limiting language is ``that a
utility is an
[[Page 41002]]
entity that owns or controls some facilities used for that purpose.''
The Court coupled that inference with the language of Section 224(f)(1)
to conclude that utilities must provide nondiscriminatory access to all
of their poles if they use some of them for wire communications.)
upholding a prior determination by the Commission that ``use of any
utility pole, duct, conduit, or right-of-way for wire communications
triggers access to all poles, ducts, conduits, and rights-of-way owned
or controlled by the utility, including those not currently used for
wire communications.''
34. Does Southern Company limit the Commission's jurisdiction under
Section 224 to the regulation of local distribution poles as utilities
have suggested, or does it recognize that Section 224 applies to any
type of pole that is owned or controlled by a utility, as some
attachers have suggested? Does the Court's conclusion that the
Commission's jurisdiction does not extend to facilities used for
interstate transmission necessarily limit the ``any pole'' language
used in Section 224(f)(1), i.e., does the decision eliminate a class of
poles subject to Section 224(f)(1)? Do attachers contend that the
``transmission facilities'' exempt from Section 224(f)(1) pursuant to
Southern Company are not and do not include poles? (In Southern
Company, the Court referenced an argument by the Commission that the
distinction between electric transmission facilities and electric
distribution facilities is not as clear as utilities argued, and
concluded that the fact that a pole may have some transmission
facilities attached to it ``does not exclude it from the coverage of
the Act. These local distribution facilities, festooned as they may be
with transmission wires, are plainly within the FCC's jurisdiction
under the terms of the Act.'' This appears to recognize that poles may
be used in some capacity for interstate transmission, but as stated
above, we seek comment on this point.) Does the Court's conclusion that
utilities must provide access to any pole irrespective of whether it is
currently being used for wire communications mean that utilities must
provide access to all poles of all types, irrespective of whether a
particular type ever has been or ever would be used for wire
communications? Or, given that Southern Company was decided in the
specific context of poles used for local distribution of electric
service, does the decision simply hold that a particular local
distribution pole does not need to have communications wires attached
for the Section 224(f)(1) access obligation to apply if any of the
utility's other local distribution poles have communications wires
attached? Does the fact that the Court interpreted the scope of the
``used, in whole or in part, for any wire communications'' language in
Section 224(a)(1) to interpret the scope of access required under
Section 224(f)(1) indicate that Section 224(a) is a limiting factor on
the ``any pole'' language of the latter provision? Fundamentally,
should Southern Company be viewed as definitively determining what
constitutes a ``pole'' for the purposes of Section 224 as opposed to
the reach of the Commission's jurisdiction with respect to particular
use cases or circumstances (e.g., use for interstate transmissions,
whether wire communications are currently attached)?
35. Does the text of the 1996 Act otherwise establish a clear
meaning of the term ``pole'' or demonstrate congressional intent to
limit or expand the meaning of that term? For instance, the exception
to the nondiscriminatory access provision in Section 224(f)(1) states
that ``a utility providing electric service may deny a cable television
system or any telecommunications carrier access to its poles . . . on a
non-discriminatory basis where there is insufficient capacity and for
reasons of safety, reliability and generally applicable engineering
purposes.'' Does the specific reference to utilities providing electric
service in the statutory text suggest that Congress had a particular
type of pole (i.e., a local distribution pole for electricity) in mind
when it enacted Section 224(f)? Or, does limiting the exception to
electric facilities simply ``reflect[ ] Congress' acknowledgment that
issues involving capacity, safety, reliability and engineering raise
heightened concerns when electricity is involved, because electricity
is inherently more dangerous than telecommunications services''? Does
other language in the text of Section 224 demonstrate that Congress
clearly intended a specific meaning for the term ``pole''?
36. If commenters argue that Congress' intent regarding the meaning
of the term ``pole'' as used in Section 224 is not clear from the text,
what extrinsic sources should the Commission consider to determine the
best reading of the statutory language? Does the statute's legislative
history clearly indicate the scope of poles that Congress intended to
be regulated under the statute? The Senate Report for the 1978 Act
indicates that Congress was concerned about electric utilities and
telephone companies using their monopoly ownership or control of
existing utility poles to extract exorbitant fees from cable system
operators for access to the existing poles they needed to distribute
their facilities. It states that the poles to which cable television
systems need to attach their facilities ``are usually owned by
telephone and electric utilities,'' and refers to poles used for the
provision of telephone and electric service when discussing a formula
to be used by the Commission to determine whether pole attachment rates
are just and reasonable. (For instance, the legislative history
discusses make-ready costs as ``those necessary to rearrange existing
telephone and power lines to maintain clearances between different pole
lines required by individual utility construction and safety standards
and National Electrical Safety Codes and to reinforce poles when
necessary to increase load capacity.'' The Report also explains how
``usable space'' factors into its formula, and states that ``on a
typical utility pole 35 feet in length there are 11 feet of usable
space (that space above the minimum grade level clearance used to
attach cable, telephone, and electric wires and associated
equipment).'' The Report also states that the jurisdictional reach of
the Commission under Section 224 ``extends only to those entities which
participate in the provision of communications space on utility
poles.'')
37. Do commenters interpret the Senate Report for the 1978 Act as
contemplating a particular type of pole that would be subject to the
Commission's jurisdiction under Section 224? We would expect the
legislative history of the 1978 Act to discuss existing poles owned and
controlled by providers of electric and telecommunication services as
obvious examples of structures to which cable system operators needed
to attach their facilities, but discussing certain types of poles may
not necessarily evidence congressional intent to exclude others. Are
there other statements from the legislative history of the 1978 Act or
the 1996 Act that indicate Congress's intent? We note that, in 1996,
the Commission held that the ``intent of Congress in Section 224(f) was
to permit cable operators and telecommunications carriers to
`piggyback' along distribution networks owned or controlled by
utilities, as opposed to granting access to every piece of equipment or
real property owned or controlled by the utility.'' Was that conclusion
correct? Are there other extrinsic sources the Commission should
consider if we
[[Page 41003]]
determine that the term ``pole'' is ambiguous and seek to adopt a
definition based on the best reading of the statutory language?
2. Whether the Best Reading of the Term ``Pole'' Specifically Includes
Light Poles
38. If the Commission were to give the term ``pole'' in Section 224
its ordinary, common meaning, such as ``a long slender usually
cylindrical object (such as a length of wood),'' objects falling within
that definition would arguably still need to satisfy explicit
requirements in the text of Section 224 to be subject to regulation
under that statute. In this section, we seek comment on whether light
poles meet those requirements, and whether they would qualify as local
distribution poles if the Commission were to conclude that its
jurisdiction is limited to regulating such poles.
39. Scope of Light Poles. We begin this inquiry by seeking comment
on the types of light poles that attachers seek to have regulated by
Section 224 and their characteristics, so that the Commission may
evaluate how the requirements of Section 224 would apply to them. We
assume that attachers are not concerned about poles that are already
subject to Section 224 because they are local distribution poles that
also have lamp attachments. Is that assumption correct? What are the
light pole structures that attachers seek access to under Section 224?
Are they limited to street lighting? Do they include area lighting
poles located away from streets (e.g., along walking paths, in parking
lots)? Do they include light poles on both private or public property,
e.g., in or out of the public rights-of-way? Would they include flag
poles owned or controlled by utilities and that have a lamp attachment?
Do the light poles that attachers seek to have regulated have
particular dimensions or features? Are they constructed using a
particular type of material? Do they already meet certain loading and
power requirements for communications attachments? Are they all
regulated by federal, state, or local government agencies or do they
include light poles that are unregulated? At a basic level, what are
the common attributes of light poles that attachers seek to have
regulated under Section 224 and why do commenters believe these
attributes should cause those light poles to be regulated? Would the
Commission need to define what constitutes a light pole if it were to
determine that light poles are subject to regulation under Section 224,
and if so, what should that definition be? How many light poles would
be brought within the Commission's jurisdiction if we determine that
they are poles within the meaning of Section 224? What else does the
Commission need to know to understand the type and scope of light poles
that attachers seek to have regulated under Section 224?
40. Owned or Controlled by a Utility. Section 224 only applies to
poles that are owned or controlled by a utility. What utilities own or
control light poles? Are most light poles owned or controlled by
electric utilities versus other types of utilities? The record on the
CTIA Petition indicates that many light poles are installed pursuant to
private agreements with third parties, including localities, that
confer rights and obligations on the third parties with respect to the
poles. Under those agreements, what entity owns the light pole and what
entity controls it? Are there arrangements where the light pole may be
owned by the utility but a third party controls it? Is the reverse
true, where a third party owns the light pole but a utility controls
it? Are there co-ownership and/or co-controller arrangements? Who are
the third parties that may have an ownership or control interest in a
light pole (e.g., private residential communities, private retailers or
venue owners)? How frequently is the third-party owner or controller of
the light pole a state or municipality, and what are the implications
of that given that Section 224(a) excludes states and ``any political
subdivision, agency, or instrumentality'' of a state from the
definition of ``utility'' subject to regulation under Section 224? How
frequently is the third-party owner or controller another entity
excluded from the definition of ``utility'' under Section 224(a)(1)?
What specific rights are conferred on third parties with respect to the
location, design, construction, modification, and removal of light
poles? Do the third-party agreements contain any express provisions
prohibiting utilities from providing access to light poles for
communications attachments, either at all or without the third party's
consent?
41. What percentage of light poles that attachers seek to have
regulated under Section 224 are installed pursuant to third-party
agreements? The record on CTIA's Petition indicates that attachers are
currently obtaining at least some access to light poles under private
agreements. How has that process worked, and could it serve as a model
for enabling access if it were mandated under Section 224(f)(1)? Who
are the parties to light pole access agreements when a third party has
some degree of ownership or control of the light pole? Just the
attacher and the utility, or does the third party also execute the
agreement? If the third party is a party to the agreement, how would
that impact the Commission's jurisdiction to adjudicate matters under
the access agreement, i.e., could the Commission require the third
party to comply with any ordered relief?
42. We observe that in the context of private easements, the
Commission has found that the extent of a utility's ownership or
control is a question of state law, and that ``consistent with the
purposes of Section 224, utility ownership or control of rights-of-way
and other covered facilities exists only if the utility could
voluntarily provide access to a third party and would be entitled to
compensation for doing so.'' Do commenters agree that the extent of a
utility's ownership or control of poles is also determined under state
law, and what are the implications of that for light poles that are
installed pursuant to private agreements with third parties? If the
Commission were to determine that at least some light poles are subject
to Section 224, would it have to create an exception for cases in which
utilities cannot provide access in exchange for a fee voluntarily and/
or unilaterally under state law?
43. Used, in Whole or in Part, for Wire Communications. Are light
poles used, in whole or in part, for any wire communications? If so,
for what specific forms of wire communication? We note that the
Commission has found that ``[a]lthough internal communications are used
solely to promote the efficient distribution of electricity, the
definition of `wire communication' is broad and clearly encompasses an
electric utility's internal communications.'' Do utilities use internal
wire communications for their light poles? If so, in what manner? If
light poles are not used in whole or in part for wire communications,
does that necessarily mean that light poles must be excluded from
regulation under Section 224? As stated above, in Southern Company, the
Eleventh Circuit agreed with the Commission that it is not necessary
for all of a utility's poles to be used for wire communications for the
nondiscriminatory access provision in Section 224(f)(1) to apply. Does
that mean that if a particular utility owns or controls both light
poles and local distribution poles, and uses any of them for wire
communications, that is enough to bring all of them under Section 224?
44. Local Distribution Poles. Crown Castle has suggested that light
poles are local distribution poles within the meaning of the Eleventh
Circuit's decision in Southern Company. Specifically, it observes that
``Street Lighting and Signal Systems'' are
[[Page 41004]]
facilities listed under ``Distribution Plant'' in FERC Form 1, the
comprehensive financial and operating report utilities submit annually
for electric rate regulation, market oversight analysis, and financial
audits, and a primary source of data in the Commission's pole
attachment rate formulas. (As discussed below, FERC Form 1 provides key
data inputs for the Commission's pole attachment rate formulas.)
``Poles, Towers, and Fixtures'' are listed separately under
``Distribution Plant,'' however. (FERC's rules for its Uniform System
of Accounts state that Account 364, used for ``Poles, Towers, and
Fixtures,'' ``shall include the cost installed of poles, towers, and
appurtenant fixtures used for supporting overhead distribution
conductors and service wires.'' Account 373, used for ``Street Lighting
and Signal Systems,'' ``shall include the cost installed of equipment
used wholly for public street and highway lighting or traffic, fire
alarm, police, and other signal systems.'') Does that suggest that
light poles are local distribution plant, but something different than
local distribution poles under FERC's Uniform System of Accounts? Or,
are those merely semantics? Is FERC's Uniform System of Accounts
dispositive with respect to what constitutes a local distribution pole?
What factors determine what constitutes a local distribution pole? In
Southern Company, the Eleventh Circuit considered a state public
service commission's description of an electric utility's distribution
system as being ``comprised of substations, underground cables, poles,
overhead conductors, transformers, service drops, and meters that
supply power to the customers.'' Are light poles part of an equivalent
local distribution system to provide lighting? If so, is that lighting
a similar public utility service, what are the components of the
distribution system, and who are the customers?
45. Prior Commission Statements. Some utilities have suggested that
the Commission has already determined that light poles are distinct
from utility poles for the purposes of Section 224, citing a proceeding
in which the Commission addressed exclusions from routine historic
preservation review under the National Historic Preservation Act
(NHPA). In the 2014 Infrastructure Order, the Commission considered the
impact wireless deployments have on the environment and historic
properties, and expanded the scope of existing structures excluded from
routine historic preservation review to include ``collocations on
existing utility structures, including utility poles and electric
transmission towers, to the extent they are not already excluded in the
Collocation Agreement,'' subject to certain criteria and limitations.
The Commission defined ``utility structures'' for the purpose of the
exclusion as ``utility poles or electric transmission towers in active
use by a `utility' as defined in Section 224 of the Communications Act,
but not including light poles, lamp posts, and other structures whose
primary purpose is to provide public lighting.'' The Commission
explained that ``[u]tility structures,'' as it was defining them for
purposes of the NHPA exclusion, ``are, by their nature, designed to
hold a variety of electrical, communications, or other equipment, and
they already hold such equipment. Their inherent characteristic thus
incorporates the support of attachments, and their uses have continued
to evolve with changes in technology since they were first used in the
mid-19th century for distribution of telegraph services.''
46. Does the Commission's decision to define ``utility structures''
for the specific purpose of exclusions from routine historic reviews
under the NHPA determine the scope of poles that may be regulated under
Section 224? What inference, if any, should we draw from the fact that
the 2014 Infrastructure Order expressly defined ``utility'' by
reference to the definition of that term in Section 224 of the Act, but
did not similarly expressly define ``pole,'' ``utility pole'' or
``utility structure'' by reference to language in Section 224? Was the
Commission focused on drawing distinctions relevant to the regulatory
context at issue--exclusion from historic preservation review under
NHPA--that could be entirely unrelated to the interpretation of a
``pole'' under Section 224 of the Act? We note that the Commission's
definition of ``utility structures'' includes ``electric transmission
towers,'' which are outside of the Commission's jurisdiction under
Section 224 pursuant to the Eleventh Circuit's holding in Southern
Company. We also note that since the 2014 Infrastructure Order, the
Commission has stated that ``light poles, traffic lights, utility
poles, and other similar property'' are suitable hosts for Small
Wireless Facilities. (We recognize, as utilities suggest, that the
Commission made this statement in the context of access to government-
owned property in state and local rights-of-way under Sections 253 and
332 of the 1996 Act. Nevertheless, the statutory basis for regulating
access does not alter the Commission's general conclusion that the
equipment is functionally suitable for wireless attachments.)
Nevertheless, we seek comment on whether the Commission's statements in
the NHPA proceeding and other relevant proceedings are consistent or
inconsistent with including light poles within a definition of poles
regulated by Section 224.
3. Applying the Commission's Rules to Light Poles and Other
Implementation Matters
47. Rule Application and Amendments. We seek comment on whether the
Commission's existing pole attachment rules can be applied to light
poles if we conclude that they should be regulated under Section 224
and whether there are any specific rules that would need to be amended
to do so. If commenters contend that some of the Commission's rules
cannot be applied to light poles, we ask that commenters identify the
specific rules at issue, the reasons the rule cannot be applied as
currently written, and any proposed amendments that would enable the
rule to be applied to light poles.
48. In particular, we seek comment on how the rate formulas that
the Commission has adopted to determine whether a pole attachment rate
is just and reasonable would apply to light poles. For instance, when
an attacher submits a complaint to the Commission that a particular
rate is unjust or unreasonable, it is required to submit data and
information supporting the complaint, including all information
necessary to apply the rate formulas, and those ``[d]ata should be
derived from ARMIS, FERC 1, or other reports filed with state or
federal regulatory agencies . . . .'' Two components of the
Commission's recurring rate formulas (Capital costs that the utility
recovers up-front via non-recurring make-ready fees are excluded from
the recurring pole attachment rates determined by these formulas) for
attachments to poles by telecommunications carriers are the Net Cost of
a Bare Pole (Net Cost of a Bare Pole = (Net Pole Investment/Total
Number of Poles) x .95 (for ILEC-owned poles) or x .85 (for Electric
Utility-Owned Poles).) and the Carrying Charge Rate, (Carrying Charge
Rate = Administrative + Maintenance + Depreciation + Taxes + Return
Elements, where:
Administrative Element = Total General and Administrative Expense/
Net Plant Investment;
Maintenance Element = Pole Maintenance Expense/Net Pole Investment;
[[Page 41005]]
Depreciation Element = (Gross Pole Investment/Net Pole Investment)
x Depreciation Rate for Gross Pole Investment;
Taxes Element = Tax Expense/Net Plant Investment;
Return Element = State Authorized Rate of Return (or FCC Authorized
Rate of Return if there is no State Authorized Rate of Return); and
Net Investment = Gross Investment-Accumulated Depreciation-
Accumulated Deferred Income Taxes with respect to a particular type of
plant.)
the product of which represents the annual expense incurred by the
utility in owning and maintaining poles regardless of the presence of
pole attachments. (The maximum just and reasonable rate for attachments
to poles by any telecommunications carrier or cable operator providing
telecommunications services is the higher of the rates determined by
using the formulas specified under Sec. Sec. 1.1406(d)(2)(i) and
1.1406(d)(2)(ii) of the Commission's rules. Typically, the Sec.
1.1406(d)(2)(i) formula yields the higher of these two rates. The two
formulas, re-written for ease of understanding, are: Sec.
1.1406(d)(2)(i) Telecom Rate = Space Factor x Net Cost of a Bare Pole x
Carrying Charge Rate x Cost Allocator, where:
Space Factor = (Space Occupied + (\2/3\ x Unusable Space/No. of
Attachers))/Pole Height;
Cost Allocator =
.66 where there are 5 attachers;
.56 where there are 4 attachers;
.44 where there are 3 attachers;
.31 where there are 2 attachers; and
an interpolated percentage where the number of attachers is not a
whole number.
Sec. 1.1406(d)(2)(ii) Telecom Rate = (Space Factor x Net Cost of a
Bare Pole x Maintenance and Administrative Carrying Charge Rate.)
Data used to calculate values for these two components include pole
investment, the number of utility-owned poles, total plant investment,
pole maintenance expense, pole depreciation rate, accumulated
depreciation, accumulated deferred income taxes, total general and
administrative expense, tax expense, and the rate of return. An
appurtenance factor (.85 for electric utility-owned poles) is used to
remove estimates of crossarm and other non-pole investment from the
pole investment account. (The specific FERC Form 1 accounts used in the
Commission's pole attachment rate formulas are set forth in the Pole
Attachment Rates, Terms, and Conditions Reconsideration Order, 16 FCC
Rcd at 12176, Appx. E-2.)
49. Are all the cost and other data necessary to run the
Commission's existing rate formulas available for light poles in FERC
Form 1 or other reports filed with state or federal regulatory
agencies? Utilities point out that FERC's Uniform System of Accounts
establishes separate investment accounts for ``Poles, Towers, and
Fixtures'' (Account 364) and ``Street Lighting and Signal Systems''
(Accounts 371 and 373). Do the latter accounts contain equivalent data,
such that the Commission could use these data to calculate rates for
light pole attachments? Would the investment data reflected in these
accounts have to be adjusted to remove investments other than
investment that is strictly for light poles (e.g., lamp investment) or
to remove signal system investments? Would the expense data reflected
in these accounts have to be adjusted to remove expenses other than
expenses that are incurred strictly to maintain light poles (e.g.,
labor expenses incurred to replace or clean lamps) or to remove signal
system expenses? As for depreciation expense, is the deprecation rate
needed to calculate the depreciation element reflected in the Carrying
Charge Rate routinely stated on FERC Form 1 for light poles in
particular? Do the Commission's rules mandate use of data from specific
FERC accounts (e.g., Account 364) in its rate formulas, to the
exclusion of data from accounts related to light poles (e.g., Account
373) or other accounts? Some utilities have argued that some light
poles are not regulated, suggesting that there is no accounting data
submitted for those poles to regulatory bodies that could be used in
the Commission's rate formula. Is that accurate? If that is the case,
what information could the Commission use in its pole attachment rate
formulas to determine whether an attachment rate is just and
reasonable? What other data issues may preclude use of the Commission's
pole attachment rate formula to determine a rate for attachment to
light poles?
50. A third component of the Commission's pole attachment rate
formula is the Space Factor, which apportions the annual expense the
utility incurs to provide space on a pole among all of the attachers
including the utility. It requires estimates of the space occupied by
an attachment, pole height, usable space, unusable space, and the
average number of attachers on a pole. (The fourth and final component
of the Commission's Telecom Rate formula in Sec. 1.1406(d)(2)(i) of
the Commission's rules, the cost allocator, reduces the rate that would
otherwise be calculated as the number of attachers decreases. It
operates to equate the rate obtained for attachments by
telecommunications carriers using the Commission's formula under Sec.
1.1406(d)(2)(i) to the rate for attachments to poles by cable operators
providing cable services using the Commission's formula for such
attachments under Sec. 1.1406(d)(1) of the Commission's rules, 47 CFR
1.1406(d)(1), given use of the Commission's rebuttable assumptions in
both formulas.) The Commission's rules contain rebuttable presumptions
that ``the space occupied by an attachment is presumed to be one foot.
The amount of usable space is presumed to be 13.5 feet. The amount of
unusable space is presumed to be 24 feet. The pole height is presumed
to be 37.5 feet.'' We are not convinced that these presumptions could
reasonably be applied to light poles. A 37.5-foot local distribution
pole, for example, would have a buried depth of approximately six feet,
reducing its otherwise usable space by an equal number of feet. In
contrast, some light poles are bolted into a concrete footing at or
above ground level, so otherwise usable space on these poles is not
lost underground. Moreover, local distribution poles historically were
built to accommodate attachments by incumbent local exchange carriers
and electric utilities, and more recently cable operators, and thus the
Commission's rebuttable presumptions were designed to reflect the
specific pole height and usable space requirements of these particular
attachers, rather than light poles. If these presumptions do not apply,
would the Commission need to adopt new presumptions specific to light
poles, or would attachers and utilities seek to rebut the existing
presumptions each time a rate complaint is filed? Do commenters believe
that the Commission's existing pole attachment rate formulas and FERC
Form 1 or data filed with other regulatory bodies are sufficient to
determine whether attachments to light poles are just and reasonable,
or would the Commission need to revise its rate formulas or specify use
of a different set of FERC Form 1 or other reported investment and
expense accounts to make that determination? The Commission's rate
formulas (other than the specific FERC Form 1 accounts and rebuttable
presumptions) reflect the specific requirements of the Section 224.
What discretion does the Commission have to revise these rate formulas
to better apply to attachments to light poles?
[[Page 41006]]
51. Are there any other rules that the Commission would need to
amend to regulate light poles under Section 224? Would we need to
examine whether our rules establishing deadlines for pole attachment
surveys, estimates, and make-ready are appropriate as-applied to light
poles? Are there provisions of the Commission's pole attachment rules
that have no relevance to light poles or that would unduly hamper
attachments to light poles?
52. Light Pole Replacements. As stated above, the record developed
in response to the CTIA Petition indicates that attachers are obtaining
at least some access to light poles through private agreements with
utilities. The record also indicates, however, that many light poles
need to be replaced to accommodate telecommunications attachments.
Section 224(f)(2) authorizes utilities to deny access to poles on a
nondiscriminatory basis ``where there is insufficient capacity and for
reasons of safety, reliability and generally applicable engineering
purposes.'' In Southern Company, the Eleventh Circuit ruled that,
pursuant to Section 224(f)(2), utilities are not required to expand
capacity on their poles to accommodate new attachments, rejecting the
Commission's prior determination that Section 224(f)(1) may require
utilities to replace poles to provide nondiscriminatory access to them.
Utilities have suggested that if the Commission were to determine that
light poles are ``poles'' within the meaning of Section 224, and that
utilities must provide nondiscriminatory access to light poles under
Section 224(f)(1), utilities will no longer be incentivized to work
with attachers to replace light poles to accommodate their attachments
and will simply deny access under Section 224(f)(2). Are attachers
concerned that including light poles within the definition of ``pole''
for the purposes of Section 224 would actually result in fewer
attachments to light poles than are currently completed pursuant to
private agreements, due to refusals by utilities to replace poles to
create capacity for their attachments? How many light poles need to be
replaced to accommodate communications attachments? Why are the pole
replacements necessary? (For instance, CCU has asserted that street
lights must be replaced ``because they were not designed or installed
to provide access for fiber, to mount equipment, to conceal equipment,
to disconnect power, or to provide necessary National Electrical Safety
Code [ ] clearances, all of which wireless attachments require,'' and
that ``most streetlight-only poles do not have separate raceways in
which to run communications fiber separate from electrical power, as
required by NESC.'') Are there particular types of light poles that
need to be replaced and others that do not? What are the categories of
costs of replacing a light pole to be able to host communications
attachments (e.g., construction, materials)? Are those costs
significantly different than those incurred when replacing a local
distribution pole? Do utilities contend that a fair allocation of the
costs would not be possible under the Commission's rules if light poles
were regulated under Section 224? Is there something the Commission can
do to keep any need to replace light poles to accommodate
communications attachments from being an impediment to
nondiscriminatory access under Section 224(f)(1)?
53. Reverse Preemption. Twenty-three states and the District of
Columbia have certified that they regulate pole attachments and have
complied with associated requirements to reverse preempt the
Commission's jurisdiction under Section 224(c) of the 1996 Act. We seek
comment on how defining the term ``pole'' to include light poles would
impact the regulation of pole attachments by those states. Would any
definition codified by the Commission apply to states that have reverse
preempted the Commission's jurisdiction? Do the pole attachment rules
and regulations adopted by such states encompass attachments to light
poles?
54. What if the reverse preemption states assert that they do not
regulate attachments to light poles and that they decline to do so?
Could jurisdiction over such attachments revert back to the Commission?
If so, what would the process for implementing that be? Should the
Commission require all states that have reverse preempted the
Commission's jurisdiction to date to refile the certifications required
under Section 224(c) to specify the pole attachment matters over which
they assert jurisdiction, including with respect to light poles? Should
the Commission amend its rules implementing Section 224(c) to require
states seeking to reverse preempt the Commission's jurisdiction in the
future to specify such details? What impact would bifurcating a state's
pole attachment jurisdiction have on pole attachment regulation in the
states and at the federal level, generally and/or specifically with
respect to attachments to light poles? Could a state that has reverse
preempted the Commission's jurisdiction over pole attachments determine
that light poles are not ``poles'' under Section 224 and should not be
regulated within its borders, irrespective of any determination by the
Commission?
55. Safety and Reliability. Utilities and other commenters have
contended that mandating access to light poles implicates safety and
reliability concerns that are not at issue with standard local
distribution poles. Attachers have pointed out that Section 224(f)(2)
authorizes utilities providing electric service to deny attachments
``for reasons of safety, reliability and generally applicable
engineering purposes,'' and have argued that such concerns should not
serve as an impediment to a threshold determination that
nondiscriminatory access to light poles must be provided pursuant to
Section 224(f)(1). What are the specific light pole attachment issues
that utilities claim present safety and reliability concerns and why
are they more significant than in the context of an electric utility's
local distribution pole? Is it equipment associated with Small Wireless
Facilities? If the issue is the need to run additional power to the
pole for the Small Wireless Facilities, are the safety concerns
mitigated if the utility that owns or controls the pole is the electric
utility that will either be handling that work or has expertise in that
work? We ask about the types of utilities that own or control light
poles above. Are there utilities that own or control light poles that
do not provide electric service and would not be able to deny access
under Section 224(f)(2)?
56. Types of Attachments. Section 224(a)(4) defines a pole
attachment, in pertinent part, as ``any attachment by a cable
television system or provider of telecommunications service to a pole .
. . owned or controlled by a utility.'' If the Commission were to
codify a definition of the term ``pole'' that includes light poles,
would that mean that utilities would have a legal obligation to provide
nondiscriminatory access to the light poles that they own and control
for any cable or telecommunications service attachments, and not just
for Small Wireless Facilities? Would wireline attachers seek access to
light poles for attachments? Would utilities uniformly deny such access
under Section 224(f)(2), or is there a way for wireline attachments to
be accommodated on light poles? Does the Commission have the authority
to condition any definition of the term ``pole'' that it adopts so that
access is limited to Small Wireless Facilities if the pole in question
is a light pole?
[[Page 41007]]
57. State and Local Regulation. Localities have argued that
requiring utilities to provide nondiscriminatory access to light poles
at rates, terms, and conditions that are just and reasonable pursuant
to Section 224 would interfere with local requirements applicable to
light poles, agreements that they have entered for the installation of
light poles, and the management of their rights of way. We seek comment
on the specific local requirements, agreements, and right-of-way
management concerns that would be impacted by regulating light poles
under Section 224 and why those concerns are unique to light poles.
Stated differently, how and why would regulating utility owned or
controlled light poles under Section 224 impinge on local requirements,
agreements, and rights-of-way management in a way that is different
than the current regulation of local distribution poles under Section
224? Is it because localities may contract with utilities for the
installation of light poles and have ownership or control rights under
those agreements? (We note that government owned property in public
rights-of-way, ``such as light poles,'' are subject to Sections 253 and
332(c)(7) of the Communications Act. Pursuant to those statutes, state
and local governments may not impose legal requirements that unlawfully
prohibit or have the effect of prohibiting the provision of
telecommunications or personal wireless services.) If so, could any
concerns that localities have about access to utility owned or
controlled light poles be addressed in an access agreement? The record
indicates that attachers are currently obtaining some access to light
poles under private agreements. How are the concerns of localities
currently being addressed when such agreements are reached, and why
could the concerns not be similarly addressed in the future if
nondiscriminatory access were mandated under Section 224(f)(1)?
F. Additional Legal and Policy Considerations
58. Current Efforts to Obtain Access to Light Poles for
Deployments. In general, Small Wireless Facilities have a range of
1,000 to 1,500 feet. As a result, 5G networks rely on a dense
distribution of antennas making point-to-point-to-point connections.
Attachers have claimed that utilities commonly deny access to light
poles or charge high fees for attachments in a manner that is impeding
deployments. Promoting deployment of infrastructure that supports
broadband and 5G is a priority for the Commission, so we seek specific
data about these denials of access and the impact they are having on
competition and connectivity. Specifically, we seek comment on the need
to mandate nondiscriminatory access to light poles to expedite and
expand the deployment of 5G technology and enable the densification
necessary to meet capacity, coverage, and performance needs. How
frequently are attachers being denied access to poles altogether? Has
that resulted in certain deployments being derailed entirely? Have
attachers been required to develop alternate plans to complete build
outs due to denials of access? How have denials of access to light
poles affected the ability of attachers to compete in certain areas? Is
there evidence that denials have resulted in coverage gaps, dropped
calls, data overloads, or otherwise resulted in poor service? What is
the impact of light pole access denials on the cost and pace of
deployment projects? What are the common reasons that utilities give
for denying a request to attach to a light pole? Where a utility denies
access to a light pole in a right of way, what alternative means of
establishing adequate network coverage are available to service
providers and what are the cost and deployment timeline differences
when service providers pursue these alternatives to light pole
attachments?
59. We ask that attachers provide specific examples of these
impacts, including identifying the types of light poles involved, the
utilities that own them, the geographic areas where access to lights
poles is being denied or delayed, and other details that will help the
Commission assess the consequences of the denials and delays. (We
remind commenters that they may request confidential treatment of
information submitted to the Commission consistent with Section 0.459
of the Commission's rules.) For example, AT&T has reported that ``three
electric utilities operating in Texas refuse to allow AT&T access to
light poles.'' AT&T has explained that it received assistance from one
Texas city that required the utility to remove its light poles so that
AT&T could install its own similar pole at its own expense, but even
then, there were delays resulting in increased deployment costs.
Verizon has stated that it has ``encountered a utility in Massachusetts
that refuses access to any of its metal light poles and a utility in
Wisconsin that does not allow attachments to any of its light poles.''
Who are the specific utilities that denied access in these examples and
what were their stated grounds upon which they denied access? What
other concrete examples are there of attachers being denied access, and
how long does it take attachers to receive responses to their requests?
60. We also seek comment on how frequently utilities approve access
to light poles and the terms under which those approvals are granted.
In particular, we seek specific data on the fees that utilities charge
for access to light poles and how those fees compare to attachments on
other facilities, such as local distribution poles. How are the fees
calculated? Are they based on costs, and if so, which costs? How are
the fees charged (e.g., annually, biannually) and what is the term of
the agreements under which they are charged? Are the fees significantly
higher than those charged for attachments to standard local
distribution poles? If so, what impact does that have on the attacher's
ability to compete and finance future deployments? What else should the
Commission consider when weighing the impact that regulating light
poles under Section 224 will have on expediting broadband and 5G
deployments?
61. Additional Costs and Benefits. We seek comment on the costs and
benefits of defining the term ``pole'' for the purposes of Section 224
generally and specifically to include light poles. Would it result in
additional administrative, operational, or capital costs for attachers,
utilities, and states that have reverse preempted the Commission's
jurisdiction over pole attachments? Are there other burdens
stakeholders would need to assume to comply with a definition of
``pole'' that includes light poles? How do these costs, benefits, or
burdens impact businesses of various sizes? What would the benefits of
codifying such a definition be? Is there a way to quantify the extent
to which deployments of broadband and 5G would be expedited if the
Commission were to require nondiscriminatory access to light poles? Do
attachers have data on the additional consumers that would be served
and service offerings that may be made newly available in certain areas
of the country? Would there be national security and other public
safety benefits? We ask that commenters address, as specifically as
possible, the full range of costs and benefits of determining that
light poles are ``poles'' for the purposes of Section 224.
62. Legal Authority. We tentatively conclude that the Commission
has authority to codify a definition of the term ``pole'' and to
determine whether the term includes light poles. The Commission has
previously codified definitions for statutory terms in Section 224,
including ``conduit'' and ``duct,''
[[Page 41008]]
consistent with Congress's directive in Section 224 that the Commission
``prescribe by rule regulations to carry out the provisions of this
section.'' The Commission has also adopted rules to implement
Congress's explicit delegation of authority to ``regulate the rates,
terms, and conditions for pole attachments,'' as well as to develop
procedures necessary for resolving complaints arising under the
Commission's substantive regulations, and to fashion appropriate
remedies. (The Commission has also established the Rapid Broadband
Assessment Team to prioritize and expedite the resolution of pole
attachment disputes that are alleged to impede or delay broadband
deployments.) It has also adopted rules to implement the
nondiscriminatory access provisions mandated by Congress in Section
224(f). We believe that codifying a definition of the term ``pole''
generally and to include light poles would be a proper exercise of the
same jurisdiction underpinning the adoption of those rules and seek
comment on that view.
G. Miscellaneous Issues
63. We seek comment more generally on any other causes for delay or
other issues that commenters believe will help facilitate deployments.
And we also seek comment on the extent to which application fees and
related costs that utilities impose upon prospective attachers before
an application is even accepted for filing may impact deployments by
smaller providers. To what extent do the fees that utilities charge to
file applications and the utilities' various pre-filing engineering
requirements inhibit broadband deployment? Are there specific examples
where these costs have prevented or delayed deployment? What, if any,
actions might the Commission take to address utility-imposed fees or
engineering requirements before the make-ready stage that inhibit
broadband deployment?
IV. Initial Regulatory Flexibility Analysis
64. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Federal Communications Commission (Commission) has
prepared this Initial Regulatory Flexibility Analysis (IRFA) of the
policies and rules proposed in the Fourth Further Notice of Proposed
Rulemaking (Further Notice) assessing the possible significant economic
impact on a substantial number of small entities. The Commission
requests written public comments on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the first page of the Further Notice. The Commission
will send a copy of the Further Notice, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In addition, the Further Notice and IRFA (or summaries thereof) will be
published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
65. The Further Notice seeks comment on proposals from utilities
and attachers that might further facilitate the pole attachment process
and, thus, broadband deployment. The Further Notice specifically seeks
comment on: (1) requiring attachers to deploy equipment on poles within
120 days of completion of make-ready work; (2) whether the Commission
should require attachers to make payment on an estimate to a utility
within a specific period of time after acceptance; (3) limiting the
amount that final make-ready costs can exceed the utility's estimate
without receiving prior approval from the attacher; (4) whether to
expand the availability of the one-touch, make-ready (OTMR) process to
include complex survey and make-ready work; (5) establishing a deadline
to on-board approved contractors; and (6) whether the Commission should
define the term ``pole'' for purposes of Section 224 of the
Communications Act of 1934, as amended, and whether the term should be
construed to include light poles. The Further Notice also seeks comment
on other policy considerations, including additional costs and benefits
that may impact small and other business.
B. Legal Basis
66. The proposed action is authorized 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).
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
67. 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 proposed rules, if adopted. 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. 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.
68. 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 Small Business
Administration's (SBA) 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.
69. 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. 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.
70. 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. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. 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.''
[[Page 41009]]
1. Internet Access Service Providers
71. Wired Broadband Internet Access Service Providers (Wired ISPs).
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.
72. 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 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.
73. Internet Service Providers (Non-Broadband). Internet access
service providers using client-supplied telecommunications connections
(e.g., dial-up ISPs) as well as 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 $40 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. Consequently, under the SBA size standard a majority
of firms in this industry can be considered small.
2. Wireline Providers
74. 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
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.
75. 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.
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.
76. 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. 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.
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.
77. 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.
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.
78. Competitive Local Exchange Carriers (CLECs). 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. Wired Telecommunications Carriers is the
closest industry with a 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. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of
[[Page 41010]]
December 31, 2021, there were 3,378 providers that reported they were
competitive local 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.
79. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with a 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. Additionally, based on Commission data in the
2022 Universal Service Monitoring Report, as of December 31, 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.
80. 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 a 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. 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.
81. 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 a 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. 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
82. The broadband internet access service provider category covered
by these new rules may cover multiple wireless firms and categories of
regulated wireless services. 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.
83. 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. 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.
84. 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.
Thus under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
85. 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.
86. 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
[[Page 41011]]
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.
87. 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. Thus under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
88. According to Commission data as of November 2021, there were
three active licenses in this service. 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.
89. 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.
90. 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. 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.
91. 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 a 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. Thus under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
92. Based on Commission data as of November 2021, there were
approximately 5,060 active licenses in the Broadband PCS service. 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.
93. 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.
94. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR)
licenses allow licensees to provide land mobile communications services
(other 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 a 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. 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.
95. Based on Commission data as of December 2021, there were 3,924
active
[[Page 41012]]
SMR 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.
96. 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 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. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with a 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. Thus under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
97. According to Commission data as of December 2021, there were
approximately 2,824 active Lower 700 MHz Band 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.
98. 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.
99. 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. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with a 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. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
100. According to Commission data as of December 2021, there were
approximately 152 active Upper 700 MHz Band 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.
101. 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.
102. 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.
103. 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. Thus under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
[[Page 41013]]
104. Based on Commission data as of December 2021, there were
approximately four licensees with 110 active licenses in the Air-Ground
Radiotelephone Service. 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.
105. 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.
106. 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. Thus under the SBA size standard, the Commission
estimates that a majority of licensees in this industry can be
considered small.
107. 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. 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.
108. Fixed Microwave Services. Fixed microwave services include
common carrier, private-operational fixed, and broadcast auxiliary
radio services. 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 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 a 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. Thus under the
SBA size standard, the Commission estimates that a majority of fixed
microwave service licensees can be considered small.
109. 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.
110. 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.
111. 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)).
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.
112. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with a 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. Thus under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
[[Page 41014]]
113. According to Commission data as of December 2021, there were
approximately 5,869 active BRS and EBS 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 licenses as of December 2021.
114. 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 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
115. 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 $44 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. Consequently, using the
SBA's small business size standard most satellite telecommunications
service providers can be considered small entities. The Commission
notes however, that the SBA's revenue small business size standard is
applicable to a broad scope of satellite telecommunications providers
included in the U.S. Census Bureau's Satellite Telecommunications
industry definition. Additionally, the Commission neither requests nor
collects annual revenue information from satellite telecommunications
providers, and is therefore unable to more accurately estimate the
number of satellite telecommunications providers that would be
classified as a small business under the SBA size standard.
116. 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 $40 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. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
5. Cable Service Providers
117. 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.
118. 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 $47 million as small.
Based on U.S. Census Bureau data for 2017, 378 firms operated in this
industry during that year. 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. Based on this data, the Commission
estimates that a majority of firms in this industry are small.
119. 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.
[[Page 41015]]
120. 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. 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 requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. 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
121. 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.
122. 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. Based on this data and
the associated SBA size standards, the majority of firms in this
industry can be considered small entities.
D. Description of Economic Impact and Projected Reporting,
Recordkeeping, and Other Compliance Requirements for Small Entities
123. The RFA directs agencies to describe the economic impact of
proposed rules on small entities, as well as projected reporting,
recordkeeping and other compliance requirements, including an estimate
of the classes of small entities which will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record.
124. In the Further Notice, we seek comment on ways to further
facilitate the approval process for pole attachment applications and
make-ready to enable quicker broadband deployment. Some of the matters
on which we seek comment may impose new or additional reporting or
recordkeeping and/or other compliance obligations on small entities.
Specifically, we seek comment on requiring attachers to deploy
equipment on poles within 120 days of completion of make-ready work and
the potential repercussions against attachers that fail to do so. We
also seek comment on whether we should require attachers to make
payment on an estimate to a utility within a specific period of time
after acceptance and, in particular, utilities' suggestion that
attachers should be required to pay all estimated make-ready costs, in
full, within 30 days of the date on which the estimate is accepted by
the attacher. If an attacher fails to make any payment within the time
frame specified in the rule, the applicable make-ready timeline should
be deemed waived. We also ask, more generally, how imposing a timeframe
in which an attacher must make payment after acceptance of an estimate
can incentivize faster broadband deployment. We also seek comment on
limiting the amount that final make-ready costs can exceed the
utility's estimate without receiving prior approval from the attacher,
providing some reverse pre-emption states as examples. Additionally, we
ask whether to expand the availability of the OTMR process to include
complex survey and make-ready work, rather than continue to limit the
process to simple survey and make-ready work. We also ask whether
setting a deadline for utilities to complete the on-boarding process
for a contractor would improve the viability of the self-help remedy in
the Commission's rules. Finally, as neither Section 224 nor the
Commission's implementing rules define the term ``pole'' and in
response to CTIA's petition for a declaratory ruling on the matter, we
seek comment on whether the Commission should define the term ``pole''
for purposes of Section 224 of the Act and whether the term should be
construed to include light poles. This information will help to inform
whether potential rule changes are necessary.
125. At this time, the Commission cannot quantify the cost of
compliance for small entities with the approaches discussed in the
Further Notice, or whether any compliance requirements will require
small entities to hire professionals beyond those necessary to comply
with the current rules. The Commission requests information on the
costs, benefits, and any cost savings related to the proposed rule
changes that may be associated with operational needs such as the
availability of qualified contractors and other workforce constraints
that may impact the speed and cost of deployment for utilities and
attachers.
E. Discussion of Significant Alternatives Considered That Minimize the
Significant Economic Impact on Small Entities
126. The RFA directs agencies to provide a description of any
significant alternatives to the proposed rules that would accomplish
the stated objectives of applicable statutes, and minimize any
significant economic impact on small entities. The discussion is
required to include alternatives such as: ``(1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
127. The Further Notice seeks comment on whether the Commission
should revise its rules to further facilitate the approval process for
pole attachment applications and make-ready to enable quicker broadband
[[Page 41016]]
deployment, including requiring attachers to deploy equipment on poles
within 120 days of completion of make-ready work and the potential
repercussions against an attacher that fail to do so. While we ask
whether we should impose a fee on those attachers, we alternatively
seek comment on whether deployment timeframes and noncompliance fees
would be better dealt with in the parties' pole attachment agreements
instead of our rules. We also seek comment on whether we should require
attachers to make payment on an estimate to a utility within a specific
period of time after acceptance and, in particular, utilities'
suggestion that we should require attachers make payment within 30 days
after acceptance. We alternatively ask whether we should adopt
attachers' suggestion that we prohibit utilities from requiring payment
upon an attacher's acceptance and instead implement a payment schedule
based on make-ready work progress. Additionally, while we seek comment
on limiting the amount that final make-ready costs can exceed the
utility's estimate without receiving prior approval from the attacher,
we ask in the alternative whether such cost-ceilings are better left to
private agreement. We further seek comment on whether to expand the
availability of the OTMR process to include complex survey and make-
ready work, and the obstacles to attachers using OTMR if it were
available for complex work. Also, while we seek comment on whether to
impose a deadline for utilities to on-board approved contractors, we
emphasize that our goals are to understand the overall amount of time
actually needed to complete the on-boarding process based on utility
procedure and the associated implications for the self-help remedy.
Finally, while seeking comment on whether a light pole is a ``pole''
for purposes of Section 224 of the Act, we consider several
alternatives, such as various interpretations of the term ``pole''
based on its meaning in federal legislation and associated legislative
history. The Commission also seeks comment on, and will consider, the
relative costs and benefits of any such revisions to its rules.
Information submitted in response to these requests for comment will
enable the Commission to evaluate the impact that revising its pole
attachment rules would have on smaller entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
128. None.
V. Ordering Clauses
129. Accordingly, it is ordered 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 Further Notice is
adopted.
130. It is further ordered that the Commission's Office of the
Secretary, shall send a copy of this Further Notice, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2025-16088 Filed 8-21-25; 8:45 am]
BILLING CODE 6712-01-P
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