Home/Federal/Federal Register/2025-16332

Rule2025-16332

Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

August 26, 2025

Effective

September 25, 2025

Issuing agencies

Federal Communications Commission

Abstract

In this document, a Fifth Report and Order adopted by the Federal Communications Commission (Commission) establishes rules ensuring greater collaboration and cooperation between utilities and attachers, establishing a timeline for large pole attachment requests, revising and improving the pole attachment timeline, and establishing a deadline for the contractor approval process. In addition, the Commission denies in part and grants in part a Petition for Clarification and/or Reconsideration from the Edison Electric Institute of portions of the Commission's December 2023 Fourth Report and Order, Declaratory Ruling, and Third Further Notice of Proposed Rulemaking. Finally, the Commission denies a Petition for Reconsideration from the Coalition of Concerned Utilities of a portion of the Fourth Report and Order.

Full Text

<html>
<head>
<title>Federal Register, Volume 90 Issue 163 (Tuesday, August 26, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 163 (Tuesday, August 26, 2025)]
[Rules and Regulations]
[Pages 41726-41756]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16332]

[[Page 41725]]

Vol. 90

Tuesday,

No. 163

August 26, 2025

Part IV

Federal Communications Commission

-----------------------------------------------------------------------

47 CFR Part 1

Accelerating Wireline Broadband Deployment by Removing Barriers to
Infrastructure Investment; Final Rule

Federal Register / Vol. 90, No. 163 / Tuesday, August 26, 2025 /
Rules and Regulations

[[Page 41726]]

-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 17-84; FCC 25-38; FR ID 308601]

Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, a Fifth Report and Order adopted by the
Federal Communications Commission (Commission) establishes rules
ensuring greater collaboration and cooperation between utilities and
attachers, establishing a timeline for large pole attachment requests,
revising and improving the pole attachment timeline, and establishing a
deadline for the contractor approval process. In addition, the
Commission denies in part and grants in part a Petition for
Clarification and/or Reconsideration from the Edison Electric Institute
of portions of the Commission's December 2023 Fourth Report and Order,
Declaratory Ruling, and Third Further Notice of Proposed Rulemaking.
Finally, the Commission denies a Petition for Reconsideration from the
Coalition of Concerned Utilities of a portion of the Fourth Report and
Order.

DATES: Effective September 25, 2025, except that the amendments to
Sec. Sec. 1.1403(b), 1.1411(c) through (k), and 1.1412(a) and (b), (e)
of the Commission's rules, which may contain new or modified
information collection requirements, will not become effective until
the Office of Management and Budget completes review of any information
collection requirements that the Wireline Competition Bureau determines
is required under the Paperwork Reduction Act. The Federal
Communications Commission will publish a document in the Federal
Register announcing the effective date.

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#c9a4a0aaa1aca5ace7abacbba5a6bfac89afaaaae7aea6bf">[email&#160;protected]</a>, or Michael Ray, FCC Wireline Competition
Bureau, Competition Policy Division, at (202) 418-0357 or
<a href="/cdn-cgi/l/email-protection#caa7a3a9a2abafa6e4b8abb38aaca9a9e4ada5bc">[email&#160;protected]</a>. For additional information concerning the
Paperwork Reduction Act proposed information collection requirements
contained in this document, send an email to <a href="/cdn-cgi/l/email-protection#52020013123431317c353d24">[email&#160;protected]</a> or contact
Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fifth
Report and Order 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://docs.fcc.gov/public/attachments/FCC-25-38A1.pdf">https://docs.fcc.gov/public/attachments/FCC-25-38A1.pdf</a>. To request
materials in accessible formats for people with disabilities (e.g.,
Braille, large print, electronic files, audio format), send an email to
<a href="/cdn-cgi/l/email-protection#a5c3c6c6909591e5c3c6c68bc2cad3">[email&#160;protected]</a> or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530.

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 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. Today, we take further action to advance the goal of ubiquitous
high-speed broadband by revising our pole attachment rules to eliminate
barriers to efficient broadband deployment by building on the work
begun in the Commission's December 2023 Fourth Report and Order,
Declaratory Ruling, and Third Further Notice of Proposed Rulemaking.
Specifically, we adopt rules (1) ensuring greater collaboration and
cooperation between utilities and attachers, (2) establishing a
timeline for large pole attachment requests, (3) improving the pole
attachment timeline, and (4) speeding up the contractor approval
process. We also 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). We then deny in part
and grant in part a Petition for Clarification and/or Reconsideration
from the Edison Electric Institute of portions of the Declaratory
Ruling. Finally, we deny a Petition for Reconsideration from the
Coalition of Concerned Utilities of a portion of the Fourth Wireline
Infrastructure Order, 89 FR 2151 (Jan. 12, 2024).

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

[[Page 41727]]

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 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

[[Page 41728]]

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 Sec.
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 Coalition of Concerned Utilities (CCU) sought
reconsideration of the Commission's decision in the Fourth Wireline
Infrastructure Order requiring utilities to provide their recent
cyclical pole inspection reports upon request to attachers. The Edison
Electric Institute (EEI) sought clarification and/or reconsideration of
certain aspects of the Declaratory Ruling and asked that the Commission
``(1) clearly define the narrow circumstances in which a utility pole
owner is required to provide a copy of its easement to an attacher that
seeks to access a pole within such easement; and (2) remove or clarify
its ruling that a `pole replacement is not `necessitated solely' by an
attachment request' if a utility's previous or contemporaneous change
to its internal construction standards necessitates replacement of an
existing pole.'' Both petitions remain pending.
10. 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 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.
11. 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. Report and Order

12. In this Report and Order, we adopt new requirements that will
aid attachers and utilities in planning for larger broadband
deployments and in allocating critical contractor resources to ensure
that large broadband deployments are completed in an efficient and
timely manner. During this critical time of infrastructure deployment
and with both utilities and attachers seeking guidance from the
Commission, these requirements represent a multi-pronged, holistic

[[Page 41729]]

approach that will best balance the difficulties faced by utilities in
processing large applications against attachers' need for speedier
deployments, as follows: (1) requiring attachers to provide written
notice to utilities of forthcoming pole attachment orders that are
greater than the lesser of 300 poles or 0.5 percent of the utility's
poles in a state up to the lesser of 6,000 poles or ten percent of a
utility's poles in a state; (2) providing that an attacher that fails
to provide timely advance notice of such orders must, upon prompt
notice from the utility, still wait the relevant advance notice period
before the applicable timeline begins; (3) imposing a meet-and-confer
requirement following the requisite advance notice for orders exceeding
the lesser of 3,000 poles or five percent of a utility's poles in a
state up to the lesser of 6,000 poles or ten percent of a utility's
poles in a state; and (4) establishing a new set of timelines for
utilities to complete each pole access phase for large orders.
13. We also revise our pole attachment timelines as follows: (1)
require utilities to notify attachers within 15 days of receiving a
complete application if they know or reasonably should know that they
cannot meet the survey deadline, and require utilities to notify
attachers within 15 days of payment of the estimate, and existing
attachers to notify utilities and new attachers within 15 days of
receiving notice from the utility, if they know or reasonably should
know that they cannot meet the make-ready deadline; (2) add a self-help
remedy for make-ready estimates, provided certain safeguards are met;
and (3) prohibit utility-imposed limits on application size and
frequency that have the effect of restricting the number of pole
attachments attachers may seek in a given timeframe. We also adopt
improvements to the contractor approval process. Our current rules
require that a utility may not unreasonably withhold its consent to an
attacher request to add qualified contractors to the utility's list of
contractors approved to do pole work. (As the Commission stated in the
Third Wireline Infrastructure Order, ``to be reasonable, a utility's
decision to withhold consent must be prompt, set forth in writing that
describes the basis for rejection, nondiscriminatory, and based on fair
application of commercially reasonable requirements for contractors
relating to issues of safety or reliability.'') To ensure promptness in
the utility's contractor decision-making, we require utilities to
respond to a request to add contractors to a utility-approved list
within 30 days of receiving the request. We note, however, that the
parties are free to negotiate for a longer approval period. (Parties
have always been free to reach negotiated agreements with terms that
differ from our rules.)

A. Advance Notice and Meet-and-Confer Requirements

14. Both attachers and utilities cite the need for better
coordination in the pole attachment process. And the Commission has
always encouraged ``a high degree of pre-planning and coordination
between attachers and pole owners, to begin as early in the process as
possible.'' (We note that the advance notice and meet and confer
requirements adopted here are an outgrowth of the large order
management issues on which the Commission sought comment in the Third
Further Notice, particularly: (1) seeking comment on utility concerns
related to large-order processing, especially workforce availability
and the submission of multiple applications at the same time; (2)
asking about steps the Commission could take to facilitate the pole
attachment process for larger orders; (3) asking about other ways to
assist utilities in processing the expected increase in large
applications; and (4) seeking comment on factors identified by
USTelecom as reasons to give utilities additional time to process
larger orders--permitting delays, workforce shortages, staffing issues,
and the coordination required among attachers to make room for a new
attachment.) To that end, we adopt a requirement that attachers provide
written advance notice to utilities of Mid-Sized Orders associated with
a single network deployment (For Mid-Sized Orders only, the advance
notice requirement is limited to instances where the order threshold
would be exceeded by pole attachment application(s) that are part of a
single network deployment project being undertaken by the new
attacher.) and Large Orders. (Several commenters advocate that we
extend the advance notice requirement to orders involving government-
funded broadband projects, while EEI supports advance notice for Large
Orders, but limited only to those involving government-funded broadband
projects. We disagree with EEI's proposed limitation, as we find that a
prior notice requirement will benefit the processing of both Mid-Sized
Orders associated with a single network deployment and Large Orders for
all broadband projects, including privately funded projects. We note
that government-funded orders more than likely are Large Orders or Mid-
Sized Orders associated with a single network deployment and thus
already will be covered by the advance notice requirement.
Additionally, attachers give no proposed definition of a government-
funded project, nor any size limitation on such an order, and also put
the onus on the utility to determine whether an order is associated
with a government-funded project (i.e., allegedly because such grants
are in the public domain and easily verifiable). Moreover, many
government-funded projects will involve areas where the utilities are
cooperatives that are not subject to our rules.) Mid-Sized Orders are
orders exceeding the lesser of 300 poles or 0.5 percent of a utility's
poles in a state up to the lesser of 3,000 poles or 5 percent of a
utility's poles in the state. Large Orders are orders exceeding the
lesser of 3,000 poles or 5 percent of a utility's poles in a state up
to the lesser of 6,000 poles or 10 percent of a utility's poles in a
state. We require the written advance notice to be sent as soon as
practicable, but not less than 15 days in advance of submitting a Mid-
Sized Order or 60 days in advance of submitting a Large Order, and that
it shall set forth detailed information that will allow the utility to
properly assess the potential resource needs for the order. While we
expect the notice to be as detailed as possible, at the very least it
must contain (1) the attacher's contact information; (2) description of
the proposed deployment area(s) and anticipated route(s); (3) an
anticipated build-out schedule; and (4) a request to meet and confer
with the utility within 30 days of the date of the notice for a Large
Order. (There are three categories of information requested by
Dominion, UTC, and USTelecom that we do not find should be required for
the advance notice, although such information could be helpful to share
with the utility, if available at the time of the notice: (1) in the
case of a government-funded project, all deployment plans prepared in
connection with the attacher's application for funds; (2) a list of all
contractors that the attacher seeks to have pre-approved for one-touch
and self-help make-ready work; and (3) a list of all permits and
authorizations necessary for the proposed deployment and their status.
The lists of contractors, permits, and authorizations may not be
readily discernable until after the Mid-Sized or Large Order is
submitted, while the detailed deployment plans for government-funded
projects can be shared after the advance notice is sent.) We do not
adopt a meet-and-confer

[[Page 41730]]

requirement for Mid-Sized Orders. We also clarify, as requested by
NCTA, that ``minor changes to routes should not necessitate new notice
and/or a new meet-and-confer, but that the attacher and utility should
jointly work to accommodate these changes.''
15. Smaller orders, up to the lesser of 300 poles or 0.5 percent of
the utility's poles in a state (Regular Orders) will not be subject to
this requirement, as such orders do not implicate as many resources as
larger orders. We also do not impose this new requirement on orders
that exceed the lesser of 6,000 poles or 10 percent of a utility's
poles in a state (Very Large Orders) and instead require the parties to
engage in good faith negotiation of the attachment timelines for such
orders. We do, however, encourage prior notice for Very Large Orders
given their attendant complexities and the benefits of coordination and
collaboration between the parties.
16. In adopting a written advance notice requirement for Mid-Sized
Orders associated with a single network deployment and Large Orders, we
acknowledge the concerns of utilities that ``[w]ithout ample advanced
notice, there is a risk that attachers may flood pole owners with
applications predictably leading to delays due to scarcity of
resources.'' The record does not reflect opposition to this requirement
for Large Orders, and both utilities and attachers generally agree that
it will be useful for all parties. However, we disagree with attachers
who argue that we should not apply an advance notice requirement for
Mid-Sized Orders. (We disagree with NCTA's assertion that ``[p]rior to
the release of the Draft Order, utilities had not requested that
advanced notice requirements apply to smaller or mid-size orders.'' We
note that both EEI and the Electric Utilities advocated for an advance
notice for Mid-Sized Orders during the comment period.) Instead, we
agree with utilities that a written advance notice requirement will
promote broadband deployment and lead to greater efficiency in the
processing of not just Large Orders but also Mid-Sized Orders
associated with a single network deployment, especially with regard to
allocating important contractor resources. As CCU notes, ``[a]dvance
notice would enable utilities to better prepare by, for example,
working to secure as many additional contractor resources as possible
to support the negotiated timeframes.'' However, in recognition that
applying the prior notice requirements to Mid-Sized Orders risks
slowing the process for completing these orders, which according to
commenters are often not scheduled in advance and can regularly exceed
300 poles in a thirty-day period, we shorten the advance notice period
for Mid-Sized Orders associated with a single network deployment to 15
days. And in light of attachers' concern that ``[t]he 300 poles in a
30-day period threshold, if it included even unrelated `business as
usual' builds, would require notice nearly every month,'' we limit the
advance notice requirement for Mid-Sized Orders to when the threshold
would be exceeded by pole attachment application(s) that are part of a
single network deployment project being undertaken by the new attacher.
17. If an attacher submits an application to the utility without
giving the required the advance notice, then the utility may promptly
notify the attacher that it is treating the application as the
requisite advance notice, that the application will commence the
advance notice period, and, if it is a Large Order, that the attacher
must request the meet-and confer required by our rules. If the attacher
fails to request the meet-and-confer described below, then the advance
notice period will not begin to run until such request is made. At the
end of the advance notice period, the new attacher can submit a new
application or notify the utility that it is continuing with its
original submission as its application, and the utility may not charge
any additional or increased application fee. Failure by the utility to
give prompt notice that it is treating the attacher's application as
the advance notice will result in the application proceeding to be
processed under the applicable timelines without an advance notice
period or meet-and-confer requirement. This approach still will provide
utilities with the advance notice they assert is routinely lacking. (We
note that if disputes arise regarding the sufficiency of the attacher's
notice (especially with regard to the adequacy of the required
information in the notice), the parties can resort to the RBAT to
resolve such conflicts.) Although we encourage advance notice from
attachers to utilities for larger orders as early in the process as
possible, we find that a minimum of 15 days is needed for the utility
to begin planning for how to process Mid-Sized Orders associated with a
single network deployment, and a minimum of 60 days is needed for Large
Orders, which present more complications that the parties will need to
iron out in the ensuing meet-and-confer. (Utilities generally agree
that 60 days is the minimum amount of time needed for an advance notice
of Large Orders. We find that 60 days' advance notice for Large Orders
strikes the right balance between giving the utility enough time to
begin planning for the new project and the time at which an attacher's
plans become more concrete and less likely to change. We also find that
the advance notice for Mid-Sized Orders associated with a single
network deployment should be shorter than the notice for Large Orders,
as such orders are smaller and presumably easier to process.) It also
will require responsiveness on the part of utilities, which attachers
assert is often not forthcoming. We expect that this requirement will
foster a more collaborative approach to the pole attachment process and
increase efficiency and planning in processing larger orders, resulting
in speedier broadband deployment.
18. We reject utilities' request that if an attacher fails to
comply with the advance notice requirement, then it forfeits the right
to have its application processed under the Mid-Sized and Large Order
timelines and instead will have to negotiate timelines for their
application in good faith with the utility. We find that such a penalty
is too onerous. The impact of failure to comply with the advance notice
requirement is readily ameliorated by utilities' ability to deem the
associated application to constitute the attacher's advance notice,
still requiring the parties to meet and confer (as described below)
within the specified period of time after a Large Order is filed, and
tolling for the length of the advance notice period the applicable pole
attachment timeline, which includes the time the utility has to review
the associated application for completeness and begin its review on the
merits.
19. To further enhance collaboration between the parties, we
require attachers and utilities to meet and confer within 30 days after
written advance notice is given to negotiate in good faith the
mechanics and timing by which Large Orders will be processed. We
encourage the parties to discuss and plan, among other things, the
utility's ability to meet deadlines for an order, the availability of
contractors (particularly the need for, and availability of, electric
space contractors to the extent necessary), a prioritization of the
poles to be worked on, the status of local permitting efforts, and
estimated timelines for the work. We also require that the parties find
a mutually agreeable day and time for the meeting (which can be in-
person, virtual, or by phone), and to conduct the meeting, within the
30-day period after the attacher sends written advance notice.

[[Page 41731]]

Any allegations of bad faith by either party in fulfilling this
requirement can be referred to the RBAT for resolution. We agree with
utilities that such a pre-planning requirement will ``enable utilities
and attaching entities to prepare for larger orders or better yet avoid
the need to submit larger orders altogether and instead submit
applications in stages.'' (UTC in particular supports the idea that
``processing applications incrementally is more efficient and enables
utilities to process as many applications as quickly as possible and
avoids the situation where if there is a hold-up with one application,
then the attachers' entire project is held up'' and that a pre-planning
requirement will enable the parties ``to prioritize the work
appropriately so that resources can be allocated and projects can be
completed as efficiently as possible with the resources that are
available.'')

B. Large Orders

20. While we do not change the existing timelines for processing
pole attachment applications for Regular Orders and Mid-Sized Orders,
(The pole attachment deadlines for all four phases of the pole
attachment process apply to all requests for Regular Orders. Utilities
currently get an extra 15 days for the survey process and an extra 45
days for the make-ready process for Mid-Sized Orders. There currently
are no required timelines for the processing of orders exceeding the
lesser of 3,000 poles or 5 percent of a utility's poles in a state;
rather, the current rules require the parties to negotiate such
timelines in good faith. Note also that attachers have the right to
engage in self-help for surveys and make-ready work if utilities fail
to complete those items by the deadlines established in our rules.) we
agree with attachers that fixed timelines are necessary for some level
of pole attachment applications above 3,000 poles (or 5 percent of a
utility's poles in a state). Presently, our rules require attachers and
utilities to negotiate in good faith the timelines for such
applications, but today we shift away from an uncertain negotiation
method and adopt a new level of defined timelines for processing
applications exceeding the lesser of 3,000 poles or 5 percent of a
utility's poles in a state, up to the lesser of 6,000 poles or 10
percent of a utility's poles in a state. We define this grouping as
Large Orders, and the timelines we adopt are as follows:

Large Order Timeline
------------------------------------------------------------------------
Pole access phase Time for completion
------------------------------------------------------------------------
Application Completeness Review........ 10 business days after receipt.
OTMR Application Review................ 10 business days for
completeness, 45 days on the
merits after application is
complete.
Survey/Review on Merits................ 90 days after application is
complete.
Estimate............................... 29 days after survey.
Communications Space Make-Ready........ 120 days after attacher
payment.
Above Communications Space Make-Ready 180 days after attacher
(Power space). payment.
------------------------------------------------------------------------

For orders that exceed the lesser of 6,000 poles or 10 percent of a
utility's poles in a state (Very Large Orders), we leave in place the
requirement that utilities and attachers negotiate in good faith the
pole attachment timelines for such orders. However, consistent with the
Commission's clarification in the Declaratory Ruling, the lesser of the
first 6,000 poles (or 10 percent of the utility's poles in the state)
of that application are subject to the new make-ready timelines that we
adopt today for Large Orders, so long as the attacher designates in its
application the first 6,000 poles (or 10 percent of the utility's poles
in the state) to be processed, which the utility must permit the
attacher to do.
21. We adopt the 6,000 pole cap for the expanded timeline for Large
Orders after consideration of comments from parties on both sides of
the equation. In particular, we agree with NCTA's judgment that ``[i]n
NCTA members' experience, the cap should not be less than 6,000 poles
or 10% of the utilities' poles in the state to correspond with NCTA
members' collective experience to date deploying funded broadband
projects.'' Dominion/Xcel also advocate for a 6,000 pole cap on the
next level of applications subject to a timeline, while noting that
their ultimate preference is for the Commission to refrain from
adopting a timeline for orders over 3,000 poles.
22. We agree with attacher commenters that an additional defined
timeline layer is needed to process these Large Orders. As NCTA
asserts, having defined timelines only for applications up to 3,000
poles, and requiring attachers to negotiate the timing of applications
exceeding this threshold, fails to provide the required certainty and
expediency necessary to meet critical broadband buildout needs and
requirements. As the Commission noted when it first adopted timelines
to govern the pole attachment process, ``in the absence of a timeline,
pole attachments may be subject to excessive delays.'' Since that time,
when the Commission established a good-faith negotiation solution for
the processing of orders exceeding the lesser of 3,000 poles or 5
percent of a utility's poles in a state, circumstances have changed,
with an established nationwide priority on broadband deployment and the
need for communications attachers to move quickly to achieve the needed
buildouts.
23. Utilities' opposition to an additional layer of defined
timelines for Large Orders centers on the desire for flexibility,
especially with regard to the allocation of contractor resources for
pole attachment work; as USTelecom notes, no utility can ``escape the
realities of workforce shortages, staffing issues, permitting delays,
supply chain difficulties, and the need to divert resources to address
storms or other emergencies, which can add time to a deployment
project.'' While we recognize these realities and the benefits of
flexibility, we address utilities' concerns by adopting the advance
notice and meet-and-confer requirements that will jump start the pole
attachment process for Large Orders earlier than under our current
rules, a requirement that utilities have identified as crucial to
adopting timelines for Large Orders. With additional planning added to
the process on the front end (especially with regard to planning for
contractor resources), and given the over-arching need of
communications attachers to deploy broadband as quickly as possible, we
find that a defined pole attachment timeline for Large Orders will
greatly facilitate the pole attachment process. And we agree that in
adopting new timelines for Large Orders, ``the parties will remain free
to negotiate alternative solutions.''
24. Timelines for Large Orders. We find that the new timelines for
Large Orders strike a balance between a utility's need for sufficient
time to

[[Page 41732]]

process such orders and an attacher's need for a quicker pole
attachment process in order to meet buildout deadlines. For ease of
reference, the pole attachment timelines for all sizes of orders will
now be as follows:

Pole Attachment Timelines
----------------------------------------------------------------------------------------------------------------
Pole access phase Regular orders Mid-sized orders Large orders
----------------------------------------------------------------------------------------------------------------
Application Completeness Review.. 10 business days......... 10 business days........ 10 business days.
OTMR Application Review.......... 10 business days for 10 business days for 10 business days for
completeness, 15 days on completeness, 30 days completeness, 45 days
the merits after on the merits after on the merits after
application is complete. application is complete. application is
complete.
Survey/Review on Merits.......... 45 days after application 60 days after 90 days after
is complete. application is complete. application is
complete.
Estimate......................... 14 days after survey..... 14 days after survey.... 29 days after survey.
Communications Space Make-Ready.. 30 days after attacher 75 days after attacher 120 days after attacher
payment. payment. payment.
Above Comms Make-Ready (Electric 90 days after attacher 135 days after attacher 180 days after attacher
Space). payment. payment. payment.
----------------------------------------------------------------------------------------------------------------

25. While we adopt the Commission's proposal in the Third Further
Notice to add 90 days to the make-ready timelines for Large Orders,
(The proposed additional 90 days for make-ready were in addition to the
make-ready deadlines for Regular Orders (i.e., 30 days for
communications space make-ready and 90 days for make-ready above the
communications space).) we also find it necessary to adopt longer
timelines for other stages of the pole attachment process, not just the
make-ready phase. As a result, we add incremental days for the
application review, survey, and estimate phases of the pole attachment
process for Large Orders in recognition of utilities' concerns that as
pole attachment orders become larger, they become more complex and thus
require even more time to complete. The new timelines we adopt for
Large Orders are the same as those proposed by NCTA, but are shorter
than the Large Order timelines proposed by USTelecom (USTelecom
proposes incremental timelines for each 300-pole batch over 3,000 poles
in an order, which would be added to the timelines for Regular Orders:
(1) Review of Application for Completeness--for each increment of 300
poles over 3,000 poles, the utility has 10 additional business days to
determine whether an application is complete; (2) Survey/Application
review on the merits--for each increment of 300 poles over 3,000 poles,
the utility has 45 additional days to decide whether to grant a
complete application and to complete any surveys; (3) Estimate--for
each increment of 300 poles over 3,000 poles, the utility has 14
additional days to provide an estimate of make-ready charges; (4)
Attacher acceptance--for each increment of 300 poles over 3,000 poles,
the attacher has 14 additional days, or until withdrawal of the
estimate by the utility, whichever is later, to approve the estimate
and provide payment; (5) Make-ready for attachments in the
communications space--for each increment of 300 poles over 3,000 poles,
there are 30 additional days to complete make-ready work for
attachments in the communications space; and (6) Make-ready for
attachments above the communications space--for each increment of 300
poles over 3,000 poles, there are 90 additional days to complete make-
ready work for attachments above the communications space, and a
utility may take an additional 15 days to complete the make-ready.) and
Dominion/Xcel Energy, (We note that Dominion/Xcel generally are opposed
to additional pole attachment timelines for Large Orders, but are
proposing timelines in the alternative ``if the Commission is compelled
to reach this result.'' Dominion/Xcel also caveat that their proposed
timeline should be limited to broadband projects funded by government
programs and expressly conditioned on their proposed notice
requirement. The Dominion/Xcel timeline for Large Orders would provide:
(1) 30 days for application completeness review; (2) 75 days for OTMR
application review; (3) survey/application review on the merits 150
days after application is complete; (4) estimate due 30 days after the
survey is completed; (5) communications space make-ready within 165
days after attacher payment; and (6) make-ready work above the
communication space within 285 days after attacher payment.) which we
find are too lengthy to help attachers efficiently meet broadband
buildout deadlines. For example, the proposed Dominion/Xcel timelines
would extend the total make-ready time period to over five months for
utilities and existing attachers to complete make-ready work for
attachments in the communications space and to over nine months for
utilities to complete work for attachments above the communications
space. Given that make-ready timelines follow several months already
afforded to utilities by the Commission's rules for assessing the
completeness of applications, deciding the merits of an application,
performing surveys, and providing make-ready estimates, adding an
additional 5-7 months for make-ready would extend the pole attachment
process to almost a year, thereby unnecessarily delaying the process.
While some utility commenters oppose the Commission's proposal for
additional make-ready time for Large Orders, we conclude that the 90-
day increase in the make-ready deadlines for Large Orders strikes a
balance between getting attachers onto poles faster while still making
it more likely that a utility will be able to meet our pole attachment
timelines. The new timelines we adopt today would mean that Large
Orders would be processed more slowly than if an applicant broke the
requests up into two smaller applications and submitted them separately
a month apart. As a result, attachers will have an incentive to submit
smaller orders that allow utilities to better manage their workflows
and contractors and thus complete applications in a timely manner.
26. To the extent utilities need additional time for make-ready
work, we note that the Commission's rules allow for deviations to the
make-ready deadlines ``for good and sufficient cause that renders it
infeasible for the utility to complete make-ready within the time
limits specified in this section.'' (While utilities are concerned
about the increased complexities associated with

[[Page 41733]]

increasingly larger orders and the inability to predict what might
arise in the course of the work related to these orders, the advance
notice and meet-and-confer requirements will go a long way toward
obviating these concerns.) USTelecom requests that we provide
additional examples of what constitutes ``good and sufficient cause''
for deviations to the make-ready timelines, but we decline to do so at
this time. Our rules currently provide that a utility may deviate from
the make-ready timeline ``for good and sufficient cause that renders it
infeasible for the utility to complete make-ready within the
[specified] time limits.'' (When so deviating, the utility must
``immediately notify, in writing, the new attacher and affected
existing attachers,'' and identify the affected poles and provide a
detailed explanation of the reason for the deviation and a new
completion date.'' The utility shall deviate from the time limits
specified in this section for a period no longer than necessary to
complete make-ready on the affected poles and shall resume make-ready
without discrimination when it returns to routine operations. A utility
cannot delay completion of make-ready because of a preexisting
violation on an affected pole not caused by the new attacher.'') In
interpreting this provision, the Commission in 2011 stated that
``utilities may toll the timeline to cope with an emergency that
requires federal disaster relief, but may not stop the clock for
routine or foreseeable events such as repairing damage caused by
routine seasonal storms; repositioning existing attachments; bringing
poles up to code; alleged lack of resources; or awaiting resolution of
regulatory proceedings, such as a state public utilities commission
rulemaking, that affect pole attachments. Aside from these examples of
very serious occurrences that impede make-ready on the one hand, and
routine events that do not justify tolling the timeline on the other
hand, a utility must exercise its judgment in invoking a clock stoppage
in the context of its general duty to provide timely and
nondiscriminatory access.'' We find that this previous guidance on what
constitutes ``good and sufficient cause'' under our rules affords
sufficient flexibility while still providing the certainty and
expediency needed to ensure timely broadband buildouts.
27. While our overall approach provides for shorter timelines than
utilities might otherwise prefer, the advance notice and meet-and-
confer requirements that we adopt today should obviate any attendant
concerns and help both sides set more realistic expectations. For
example, USTelecom advocates for the status quo regarding the pole
attachment timelines for Large Orders, stating that ``[n]egotiated
timelines let companies anticipate the challenges that will likely
arise in a project, discuss potential solutions or workarounds, and
tailor a realistic timeline that accounts for them.'' However, the
status quo results in delay because timeline negotiations do not even
begin until after a Large Order is filed. Under the approach we adopt
today, attachers are required to provide utilities with advance notice,
and attachers and utilities then must meet and confer before a Large
Order is submitted, thereby capturing the efficiencies identified by
USTelecom much earlier in the pole attachment process.
28. The advance notice and meet-and-confer requirements also will
help utilities when multiple attachers submit applications in the same
timeframe. As Dominion/Xcel identifies the problem, it is hard to
manage utility resources ``to the extent that sudden upticks in its
workload arise from multiple modest-sized orders, submitted
simultaneously by multiple attachers.'' But, as Dominion/Xcel note,
``[t]o ensure that adequate resources are available to process
applications submitted in connection with massive deployments, DEV
[already] requests that attachers provide prior notice of expanded
orders as soon as the details of such orders are known--and some
attachers honor this request.'' As we now mandate advance notice and
meet-and-confer requirements before the submission of Large Orders,
utilities and attachers can work out beforehand any resource problems
caused by multiple such orders being submitted by different attachers
around the same time.
29. Negotiated Timelines for Very Large Orders. We agree with NCTA
that the parties should engage in good faith negotiations for the
timelines applicable to Very Large Orders, which we have defined as
orders exceeding the lesser of 6,000 poles or 10 percent of a utility's
poles in a state. While ACA Connects argues for established timelines
for Very Large Orders, we find NCTA's position to be a reasonable
accommodation between utilities and attachers for dealing with orders
of that size. We reject NCTA's request that, if the utility fails to
establish a reasonable timeline for Very Large Orders, the timeline for
Large Orders will then govern. We find that there may be reasons beyond
the utility's control, including the possible failure of attachers to
agree to a reasonable timeline, that may prevent the establishment of a
timeline for Very Large Orders.

C. Improvements to the Pole Attachment Timeline

30. Utility and existing attacher notification requirement to
enable quicker self-help for surveys and make-ready. We require
utilities to notify new attachers within 15 days of receipt of a
complete application if they know or reasonably should know that they
cannot meet the survey timelines. We further require utilities to
notify new attachers as soon as practicable but no later than 15 days
after payment of the estimate if they know or reasonably should know
that they cannot meet the make-ready timelines. (We disagree with NCTA
that the 15-day make-ready notification deadline should begin on
completion of the survey. As USTelecom points out, at completion of the
survey, ``utilities will lack insight into several relevant facts . . .
including when the make-ready period will begin (something that depends
on when the attacher pays a make-ready estimate) and whether third-
party attachers will comply with deadlines for moving their attachments
(something that occurs during the make-ready period).'') Similarly,
existing attachers shall notify the utility and the new attacher as
soon as practicable but no later than 15 days after receiving notice
from the utility pursuant to Sec. 1.1411(e) of our rules that the
existing attacher knows or reasonably should know that it cannot meet
the make-ready deadline. Existing attachers giving such notice also
must notify the utility of their inability to meet the make-ready
deadline, and we note that existing attachers already receive notice of
payment of the estimate when the utility sends them make-ready letters
pursuant to Sec. 1.1411(e). Where a utility or existing attacher
notifies the new attacher that it is unable to meet the survey or make-
ready timelines, the new attacher may then elect self-help for the work
that the notifying party cannot do pursuant to Sec. 1.1411(i)(1) (for
surveys) or Sec. 1.1411(i)(3) (for make-ready) of our rules upon
receipt of the notice rather than having to wait until the relevant
timeline period runs. However, if either a utility or an existing
attacher does not give advance notice to the new attacher that it will
be unable to meet the survey or make-ready deadlines, then the new
attacher must wait until the end of the survey or make-ready timelines
in our rules before availing itself of any self-help remedies for that
party's work. Attachers can submit to the RBAT any allegations that the
utility or existing attachers knew or reasonably should

[[Page 41734]]

have known that the survey or make-ready work could not be completed on
time and advance notice was not timely given.
31. In the Third Further Notice, the Commission sought comment on
NCTA's proposal ``that the utility notify an attacher 15 days after
receiving a complete application that it cannot conduct the survey
within the required 45-day period so that the attacher can elect self-
help for the survey sooner.'' Specifically, the Commission asked
whether utilities can ``feasibly be required to inform attachers within
15 business days of receiving a completed application that they will be
unable to conduct a survey, estimate, or make-ready within the required
time period.'' While utilities argue that it is not feasible for them
to determine whether they can meet the survey or the make-ready
deadlines so soon after their timetable begins, attachers assert that
utilities ``generally know immediately upon reviewing an application
whether they will be able to facilitate the pole access process in a
timely manner'' and that such advance notice is key to speeding up the
pole attachment process because they can then invoke the self-help
option sooner.
32. We agree with Altice that the Commission has recognized the
importance ``for attachers to receive swift access to utility poles so
that they can efficiently deploy networks in new markets. To achieve
this goal, early communication is essential, particularly with respect
to whether utilities will be able to process applications within the
Commission's established timeframes.'' As Crown Castle notes, ``[t]his
change will be productive for utilities because it will allow them to
dispense with surveys that they will not be able to complete, and it
benefits attachers by accelerating their access to the pole.'' By the
same token, we take heed of the fact that utilities may not know within
15 days of receipt of a complete application whether they will be able
to meet the make-ready deadline. While the advance notice and Large
Order meet-and-confer requirements will help utilities and attachers
level-set expectations for potential Mid-Sized Orders associated with a
single network deployment and Large Orders, certain factors remain
outside the utilities' control, including the timing of the new
attacher obtaining required local permits and third-party attachers'
compliance with the deadlines for moving their attachments to make room
for the new attachers' equipment. We thus have tied that notice
obligation to a later point in the process where utilities will have
greater certainty regarding their ability to meet the make-ready
deadline and have qualified the two separate notification requirements
based on whether the utility knows or should know that it cannot meet
the deadlines. We also extend the 15-day notice requirement to existing
attachers who play a key role in the make-ready process. As UTC notes,
``existing attachers on the pole may not be able to meet the make-ready
timelines, which in turn will also affect the ability of the utility to
meet the make-ready timelines.''
33. With these changes to the proposed action, the advance notice
and Large Order meet-and-confer requirements should help obviate the
utilities' concerns that 15 days may be too short to give notice of
being unable to meet the survey and make-ready deadlines, as the pre-
planning and coordination that now will occur should give utilities
earlier insight into the scope of a project and the viability of the
associated deadlines. We also note that in utilities' experience, the
self-help remedy is rarely, if ever, used, but we want to provide
attachers with access to the tools they need to deploy broadband
quickly and cheaply.
34. We reject Altice's proposal requiring utilities that miss the
survey and make-ready timelines to refund attachers for any pre-paid
and uncompleted survey and/or make-ready work within 30 days of missing
the 15-day notice deadline, with interest dating back to the date the
pre-payment was made. Altice's proposed remedy could penalize the
utility for missed deadlines that may be beyond the control of the
utility, especially when make-ready is dependent on existing attachers
moving their equipment. In addition, the parties already have a true-up
mechanism, usually in their pole attachment agreements, for the refund
of any sums paid for work that ultimately is not done.
35. Self-help for the estimate phase. In order to further improve
the pole attachment timeline, we adopt a self-help remedy for make-
ready estimates where the utility is unable to meet the estimate
timelines, provided there are certain safeguards as proposed by utility
commenters. Currently in our rules, utilities have 14 days after giving
notice of granting the new attacher's complete application or receiving
the new attacher's self-help survey to complete an estimate of make-
ready costs and present the estimate to the attacher. (``Where a new
attacher's request for access is not denied, a utility shall present to
a new attacher a detailed, itemized estimate, on a pole-by-pole basis
where requested, of charges to perform all necessary make-ready within
14 days of providing the response required by paragraph (c) of this
section, or in the case where a new attacher has performed a survey,
within 14 days of receipt by the utility of such survey.'') Although
note that herein we have adopted a 29-day period for the estimate phase
for Large Orders. A utility may withdraw the estimate beginning 14 days
after it is presented if the attacher has not yet accepted that
estimate, and the new attacher may accept the estimate and make payment
any time after receiving it unless it has been withdrawn. However,
unlike for surveys and make-ready work, there currently is no self-help
remedy for attachers if utilities miss the deadline to present the
estimate of make-ready costs. In the Third Further Notice, the
Commission sought comment on NCTA's proposal to make self-help
available for the estimate process. In the ensuing record, both
utilities and attachers supported this concept as a way to speed the
pole attachment process and ensure broadband projects do not get stuck
at the estimate phase.
36. To respond to the concerns articulated by some utility
commenters, we adopt certain safeguards for a self-help remedy in the
estimate context. Specifically: (1) the attacher must wait until the
utility's 14-day estimate deadline (or 29 days in the case of Large
Orders) has expired before exercising the self-help remedy; (2) the
attacher must provide notice that it is exercising its self-help remedy
for an estimate; (3) the self-help estimate is to be performed by an
approved contractor in accordance with Sec. 1.1412(a) and (b) of our
rules; (4) this remedy is not available for pole replacements; and (5)
utilities have the right to review and approve the estimates at the
attacher's expense, but such expenses must be reasonable and based on
only the actual costs incurred by the utility in reviewing the
estimate. We agree with commenters that new attachers should be able to
use utility-approved contractors to perform self-help estimates for
make-ready work above the communications space because ``[w]ithout
having the estimate for electric space make-ready, the estimate for
communications space make-ready is of little practical use. Make-ready
in both the communications and power spaces is necessary to allow
attachment to a pole.'' For self-help make-ready estimates above the
communications space, the new attacher must use a utility-approved
contractor pursuant to Sec. 1.1412(a) of our rules, and we note that
the utility's ability to refuse

[[Page 41735]]

acceptance of the attacher's estimate obviates any concern over the
accuracy of any potential make-ready estimates for work above the
communications space.
37. In addition, we adopt a requirement that utilities make a
written decision on a self-help estimate within 14 days of receipt or
before it is withdrawn by the attacher, whichever is later, noting that
this is the same amount of time that a new attacher has to accept an
estimate from the utility before the utility has the option to withdraw
the estimate. If the estimate is accepted by the utility, then it is
subject to the reconciliation process set forth in Sec. 1.1411(d)(3)
of our rules. If the estimate is not accepted by the utility, then the
utility must detail in writing the reasons for non-acceptance. The
attacher then can submit a revised estimate to the utility without
restarting the pole attachment timeline. If the self-help process does
not result in an accepted estimate, then the attacher can resort to the
RBAT to have the utility generate an estimate pursuant to Sec.
1.1411(d) of our rules.
38. Utility limits on the size or frequency of pole attachment
applications. While we agree with USTelecom that reasonable application
processing requirements provide benefits to utilities and attachers, we
prohibit utilities from imposing application size limits in combination
with application frequency limits that have the practical effect of
restricting the number of pole attachments attachers may seek in a
given timeframe. In determining the applicable pole attachment
timelines for Regular, Mid-Sized, Large, and Very Large Orders,
utilities have the ability to ``treat multiple requests from a single
new attacher as one request when the requests are filed within 30 days
of one another.'' However, the Commission noted in the Third Further
Notice the concern raised by NCTA that utilities may ``limit[ ] `the
size of an application or the number of poles included in an
application so as to avoid the timelines.' '' More specifically, NCTA
noted that even though the rules contemplate attachers filing and
utilities considering large orders, various utilities have imposed
limits on application size and frequency that may prevent attachers
from applying for the attachments they need within the timeframes in
the Commission's rules.
39. When the Commission first adopted pole attachment timelines in
2011, it addressed utilities' desire for flexibility by creating three
size-categories of applications and allowing utilities to ``treat
multiple in-state requests from a single attacher during a 30-day
period as one request.'' While the subsequent record shows that
utilities use application size and frequency limits to effectively
manage application workflow, we want to ensure that such limits do not
have the effect, whether intended or not, of restricting the number of
pole attachments attachers may seek in a given 30-day period. Utilities
still are able to accumulate together all orders received from an
attacher within a 30-day period in order to determine the correct
timeline for processing the combined orders, but those applications
must be processed in accordance with our rules. (As the Commission
clarified in the Declaratory Ruling, ``when an application is submitted
requesting access to the larger 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.'') For example, if an attacher has a
3,500 pole project, the utility cannot impose limits on the size and
frequency of the attacher's pole attachment application(s) that would
prevent the attacher from submitting a 3,500 pole order in a 30-day
period. While the utility can limit the size of a pole attachment
application and can treat all applications filed by the attacher in a
30-day period as one application, the limits cannot have the effect of
preventing the attacher from applying to access 3,500 poles in a 30-day
period (although the utility can process the application(s) under the
Large Order timeline). We agree with Crown Castle that ``attachers
should be allowed to file applications that make sense for their
deployment plan, particularly for deployments under RDOF, BEAD, or
other programs.'' Indeed, some utilities already adhere to this rule,
thus demonstrating that it is reasonable. For example, Dominion Energy
and Xcel Energy explain they ``follow administrative policies that
prescribe a maximum number of poles per application, but also permit an
attacher to submit an unlimited number of applications at its
discretion.''

D. Deadline for Utilities To Respond to Requests To Add Contractors to
Utility Lists

40. We amend Sec. 1.1412 of the Commission's rules to establish a
firm deadline by which utilities must respond to requests by attachers
to add additional qualified contractors to their existing lists.
Specifically, we require utilities to respond to such requests within
30 days of receipt by the utility. The response must state whether the
proposed contractor meets the requirements in Sec. 1.1412(c) of the
Commission's rules and will be added to the utility's approved list of
contractors following the completion of the utility's on-boarding
process. (We seek comment in the Further Notice below on contractor on-
boarding processes, the time required to complete such processes, and
whether the Commission should adopt a deadline for the completion of
that process.) If a utility fails to respond to an attacher's request
to add a proposed contractor to its approved list within 30 days of
receipt, the attacher's request will be deemed approved.
41. In the Third Further Notice, the Commission sought comment on
whether it should modify the self-help rules to enable attachers to
access poles more quickly. The self-help remedy allows attachers to
perform surveys and make-ready work using utility-approved contractors.
(Note that in this item, the Commission is extending the self-help
remedy to the estimate phase as well.) For surveys and make-ready work
that is complex or above the communications space, a utility must make
available and keep up-to-date a reasonably sufficient list of
contractors that it has authorized to perform such work on its poles. A
new attacher engaging in self-help for complex or above the
communications space make-ready must use a contractor from this list to
perform the work. Attachers may, however, request that additional
contractors meeting the minimum requirements of the Commission's rules
be added to the utility-approved list, and utilities may not
unreasonably withhold their consent. For surveys and make-ready work
that is simple, utilities may--but are not required to--provide a
reasonably sufficient list of contractors they authorize to perform
such work. If a utility provides such a list, attachers must use a
contractor from that list. Attachers may request that utilities add
contractors that meet the minimum qualifications of the Commission's
rules to their lists, and utilities may not unreasonably withhold their
consent. (If a utility does not provide a list of

[[Page 41736]]

approved contractors for self-help surveys and make-ready that is
simple, or none of the contractors on the utility-approved list are
available within a reasonable time, attachers may retain their own
contractors that meet the minimum qualifications of the Commission's
rules to perform the work.) To be reasonable, a decision to withhold
consent ``must be prompt, set forth in writing that describes the basis
for rejection, nondiscriminatory, and based on fair application of
commercially reasonable requirements for contractors relating to issues
of safety or reliability.''
42. Some attachers contend that certain utilities may not be
promptly responding to attacher requests to add additional qualified
contractors. They state that utilities take months to respond to such
requests, if they respond at all. Indeed, NCTA states that it took one
of its members 6 to 8 months to qualify just one contractor with a
utility. Attachers argue that these delays are not due to a shortage of
qualified contractors for utilities to approve. Rather, NCTA asserts
that the ``utility approval process isn't working,'' and Crown Castle
notes that it has identified qualified contractors but has been
``unable to use them because the utility fails or refuses to approve
the proposed contractor within a reasonable timeframe.'' Accordingly,
attachers argue that utilities should be given a firm deadline to
respond to attacher requests to add additional contractors to their
approved lists to prevent untimely responses from delaying broadband
deployments. Specifically, attachers have asked that the Commission
require utilities to respond to such requests within either 21 or 30
days of the submission of the request. They further request that if
utilities do not respond to the attacher's request by the deadline,
that the attacher's request be deemed approved. NCTA argues that,
``[a]bsent such a remedy, utilities will continue to lack any incentive
to comply, forcing attachers to file complaints just to enforce bright-
line rules.''
43. The Commission authorized attachers to request that additional
qualified contractors be added to utility-approved lists ``to prevent
the utility list from being a choke-point that prevents deployment.''
We conclude that failing to respond to an attacher's request to add an
additional contractor for months creates such a choke-point and failing
to respond at all certainly does. Indeed, we find that the Commission's
prior direction that decisions to withhold consent be ``prompt'' means
that utilities may not simply hold requests in abeyance without
providing a response at all. (We, thus, disagree with USTelecom that
there is no need for the Commission to establish a deadline to respond
to attacher requests to add additional qualifications because the
Commission has already stated that such responses must be ``prompt.'')
To conclude otherwise would defeat the purpose of allowing attachers to
request that qualified contractors be added to utility-approved lists.
44. Thus, we amend Sec. 1.1412 of the Commission's rules to
require that utilities respond to any request by an attacher to add an
additional contractor to a utility-approved list within 30 days of
receipt of the request. (Because attachers currently have a remedy to
retain their own contractors if a utility does not maintain an approved
list of contractors for self-help surveys and make-ready that is
simple, the deadline that we adopt today is particularly important for
requests to add contractors to utility-approved lists for self-help
surveys and make-ready that is complex or above-the communications
space. We, thus, decline to limit the deadline to contractors that
would perform work that is in the communications space, as some
utilities have requested. We also decline the Electric Utilities'
request that we revise Sec. 1.1412(a) and (b) of our rules to apply to
self-help work above and below the communications space, respectively,
rather than to self-help work that is complex and above the
communications space and self-help work that is simple, respectively.)
The response must state whether the proposed contractor has been
approved based on the requirements in Sec. 1.1412(c) of the
Commission's rules and will be on-boarded by the utility to work on its
poles, after which the contractor will be added to the utility's
approved list. We find that 30 days is enough time for utilities to
evaluate whether a proposed contractor meets the minimum qualification
requirements of the Commission's rules based on the information
submitted by the attacher and to provide the response described above.
To ensure swift compliance with this deadline by utilities, we require
that requests to add attachers to utility-approved lists be deemed
approved if a utility fails to respond to such requests by the 30-day
deadline, and that the utility promptly on-board the contractor as
necessary to commence work on the utility's poles. (Notwithstanding
statements from utilities that contractors working on their poles must
execute agreements with utilities, NCTA asserts that ``it is the
attaching entity, not the utility, that is responsible for contracting
with and onboarding the contractor and for the tasks the Electric
Utilities identify as most time consuming.'' We find that the
information in the record is insufficient for the Commission to
determine the exact steps that must be taken to onboard a contractor to
work on a utility's poles, how long those steps should take, and who
the parties responsible for completing those steps are or should be. As
stated above, we seek comment on these points in the Further Notice.)
We find that a deemed approved remedy is appropriate to enable
attachers to make meaningful use of the self-help remedy to timely
complete their deployments when survey, estimate, and make-ready
deadlines under our rules have been missed.
45. Some utilities argue that the Commission should not adopt a
deadline to approve or deny requests to add additional contractors to
their lists because it can take three months to a year or more to on-
board contractors to perform surveys and make-ready work. We are not
persuaded by this argument. We agree with NCTA that the process of
approving the addition of a contractor that meets the requirements of
Sec. 1.1412(c) of the Commission's rules is distinct from the ``on-
boarding'' requirements described by utilities, such as negotiating an
agreement with the new contractor, providing employees of the new
contractor with access to the utility's internal systems, and training.
Section 1.1412(c) requires the proposed contractor to: (1) agree to
follow published safety and operational guidelines of the utility, if
available, but if not, to follow National Electrical Safety Code
guidelines; (2) acknowledge that it knows how to read and follow
licensed-engineered pole designs for make-ready, if required by the
utility; (3) agree to follow all local, state, and federal laws and
regulations including, but not limited to, requirements regarding
Qualified and Competent Persons under the Occupational and Safety
Health Administration rules; (4) agree to meet or exceed any uniformly
applied and reasonable safety and reliability thresholds set by the
utility, if made available; and (5) demonstrate that it is adequately
insured or will establish an adequate performance bond for the make-
ready it will perform, including work it will perform on facilities
owned by existing attachers. (Dominion/Xcel suggests that the minimum
qualification requirements in Sec. 1.1412(c) of the Commission's rules
are not sufficient as applied to contractors that perform complex or

[[Page 41737]]

above the communications space make-ready work. The Commission decided
otherwise when it authorized attachers to request that utilities add
``any contractor that meets the minimum qualifications in paragraphs
(c)(1) through (5) of this section'' to their lists of contractors
authorized to perform self-help surveys and make-ready that is above
the communications space and complex, and stated that utilities may not
unreasonably withhold their consent. In so doing, the Commission did
not ``mandate specific qualification requirements for third-party
cont[r]actors that perform work on or in the vicinity of electric power
facilities . . . .'' To the contrary, Sec. 1.1412(c) of the
Commission's rules requires contractors to agree to ``follow published
safety and operational guidelines of a utility, if available'' and ``to
meet or exceed any uniformly applied and reasonable safety and
reliability thresholds set by the utility, if made available.'' The
Commission's rules thus require compliance with any such reasonable,
nondiscriminatory requirements as-set by the utility for work that is
complex and above the communications space.) We find it is reasonable
to assume that a utility could review information submitted to
demonstrate a proposed contractor's agreement to these requirements and
issue a decision within 30 days that either approves the contractor
contingent on completion of the utility's on-boarding process or denies
the contractor based on the sufficiency of that information.
46. Some utilities argue that allowing a ``deemed approved'' remedy
if utilities miss this deadline will necessarily create safety concerns
for workers and the public and risk the reliability of electric
distribution systems. We disagree. As an initial matter, we do not
believe it will be difficult for utilities to avoid a deemed approved
result by simply complying with the deadline. The response we require
merely requires the utilities to review information submitted by
attachers to determine if the proposed contractor has made the
representations required by Sec. 1.1412(c) of the Commission's rules.
We acknowledge that utilities thereafter may need to take steps to on-
board and train the contractors to perform work on their poles, and
that the contractor will not be added to the utility's approved list
until that process is complete. In recognition of potential safety
concerns associated with work in the supply space, that process may
differ in certain respects for contractors that will conduct work above
the communications space as compared to contractors that will be
working in the communications space. But, the first step is to approve
or deny the contractor based on the requirements of Sec. 1.1412(c) of
the Commission's rules within 30 days of receiving a request from an
attacher, and we do not view that as burdensome--particularly given
that utilities insist that attachers rarely invoke the self-help remedy
or request to add contractors to utility-approved lists.
47. Further, if an attacher does not submit information sufficient
to demonstrate that a contractor has made the representations required
by Sec. 1.1412(c) of the Commission's rules, utilities may respond to
the attacher within 30 days with a denial, provided that it is ``set
forth in [a] writing that describes the basis for rejection,
nondiscriminatory, and based on fair application of commercially
reasonable requirements for contractors relating to issues of safety or
reliability.'' (As explained above, this is the standard that the
Commission adopted in 2018 to assess whether a utility's withholding of
consent to add additional contractors to its approved list is
reasonable. We, therefore, decline Dominion's request to exclude the
language ``fair application of commercially reasonable'' from the rule
amendment that merely codifies the existing standard. Further, we
disagree with Dominion's assessment that the rules we adopt today do
not ``contemplate a utility's independent evaluation of any attacher-
proposed contractor on the basis of its own standards, processes, and
protocols to ensure safety and reliability.'' Section 1.1412(c)(4) of
the Commission's rules requires the contractor to agree ``to meet or
exceed any uniformly applied and reasonable safety and reliability
thresholds set by the utility, if made available,'' 47 CFR
1.1412(c)(4), and our new rules require proposed contractors to
successfully complete a utility's on-boarding process (including its
evaluation and training requirements) before they are added to the list
of contractors approved to work on the utility's poles. The rules we
adopt today, therefore, provide ample opportunity for a utility to
evaluate a contractor based on its own standards, processes, and
protocols to ensure safety and reliability before the contractor is
authorized to perform self-help work.) Finally, as has always been the
case, the parties are free to negotiate for a longer review period for
contractor approvals if needed. (Parties have always been free to reach
negotiated agreements with terms that differ from our rules.)
48. Given that complying with the deadline imposes minimal burden
on utilities, the parties' ability to extend the deadline by agreement,
and the right utilities have to deny a proposed contractor within the
deadline if the information submitted by the attacher is insufficient
to determine whether the contractor has made the representations
required by Sec. 1.1412(c) of the Commission's rules, we find
utilities have ample opportunity to avoid any potential risks of having
contractors deemed approved to work on their poles.
49. While we believe it is important to improve the self-help
remedy by expediting action on requests to add additional qualified
contractors to utility-approved lists, (As explained herein, the Third
Further Notice sought comment on whether the Commission should modify
the self-help remedy to enable attachers to access poles more quickly,
and the record indicates that setting a deadline that ensures a prompt
response to requests to add qualified contractors to utility-approved
lists would promote that objective. We, thus, decline the request of
some utilities to seek comment on such a deadline in the Further Notice
rather than adopt one here.) we recognize that there may be
circumstances where a utility may need to disqualify a contractor that
was previously approved by a utility or deemed approved due to
reasonable safety or reliability concerns, as is the case when an
attacher selects its own contractor to perform surveys and simple make-
ready if a utility does not provide a list of approved contractors or
the contractors on that list are not available within a reasonable
time. We understand that having the right to disqualify contractors
causing reasonable safety and reliability concerns is particularly
important for work that is complex and above the communications space.
We, therefore, make clear that utilities may disqualify a contractor
that was previously approved by a utility or deemed approved based on
reasonable safety or reliability concerns related to a contractor's
failure to meet the minimum qualifications described in Sec. 1.1412(c)
of the Commission's rules or to meet the utility's uniformly applied
and reasonable safety or reliability standards. (We decline Dominion's
request to remove qualifying language from the safety and reliability
standards that may be applied to disqualify a contractor. We are
concerned that this could lead to discriminatory disqualifications of
contractors if the standards applied in disqualification

[[Page 41738]]

decisions are not uniformly applied and reasonable. We, thus, grant
Dominion's request insofar as it seeks removal of a requirement that
safety and reliability standards be ``public and commercially
reasonable,'' but require that disqualification decisions be based on a
contractor's failure to meet the minimum qualifications described in
Sec. 1.1412(c) of the Commission's rules or to meet the utility's
uniformly applied and reasonable safety and reliability thresholds,
consistent with Sec. 1.1412(c)(4) of the Commission's rules.) We view
this as consistent with the right afforded to utilities under our rules
to have a representative present when self-help work is performed by a
contractor and to ``monitor a contractor's work and insist that the
work meet utility specifications for safety and reliability, including
requirements that may exceed NESC standards'' on a nondiscriminatory
basis. Although attachers and utilities are obligated to try to resolve
any disagreements, electric utilities are entitled to make final
determinations in disputes over capacity, safety, reliability, and
generally applicable engineering purposes, consistent with Section
224(f)(2) of the Act. (By making it clear that utilities may disqualify
a contractor that was previously approved by a utility or deemed
approved based on reasonable safety or reliability concerns, we fully
address the concern raised by Dominion/Xcel that Section 224(f)(2) of
the Act ``necessarily encompasses the right of a utility pole owner to
prohibit an attacher's use of third-party contractors that have not
been fully evaluated and approved by the utility to perform the work
for which they were retained on the utility's poles.'' The rule we
adopt today requires that utilities respond within 30 days to a request
to add additional contractors to utility-approved lists based on
whether attachers submit sufficient information to demonstrate the
contractor's agreement to the requirements in Sec. 1.1412(c), which
incorporates the utility's published safety and operational guidelines
and uniformly applied and reasonable safety and reliability thresholds.
Regardless of whether a contractor is approved by a utility or ``deemed
approved'' due to a failure to provide a timely response, the
contractor will not start work on the utility's poles until the
successful completion of the utility's on-boarding process (e.g., any
required training). And, after that, the utility retains the right to
remove the contractor from its approved lists due to noncompliance with
safety and reliability requirements on a nondiscriminatory basis.
Utilities, thus, retain ample and ultimate control over contractors
working above the communications space on their poles.) Accordingly,
whether a contractor is added to a utility's approved list by the
utility or at the request of an attacher, the utility ultimately has
the authority to determine whether the contractor remains on the list
on a going-forward basis consistent with these standards and the
Commission's rules. (We note that our rules require utilities to ``keep
up-to-date'' their lists of contractors authorized to perform self-help
surveys and make-ready.)
50. If a utility disqualifies a contractor that was previously
added to its approved list at the request of an attacher or deemed
approved pursuant to the requirements we adopt today, (We disagree with
Dominion that the rule we adopt today does not permit utilities to deny
a contractor for safety and reliability reasons. As we state above, the
utility will have 30 days to deny a request to add the contractor to
the utility-approved if the attacher fails to submit sufficient
information to determine that the contractor has made the
representations required by Sec. 1.1412(c) of the Commission's rules.
If the utility does not respond with a denial or an approval by that
deadline, then the contractor will be deemed approved, but may
nonetheless be disqualified (i.e., have the approval rescinded) based
on reasonable safety or reliability concerns related to a contractor's
failure to meet the minimum qualifications described in Sec. 1.1412(c)
of the Commission's rules or to meet the utility's uniformly applied
and reasonable safety or reliability standards. Further, as we have
made clear, a proposed contractor will not be added to the utility's
list of contractors approved to perform self-help work until it has
successfully completed the utility's on-boarding process, which may
include additional evaluations and training. Accordingly, none of the
requirements we adopt today will allow a contractor to appear on a
utility's approved list unless and until the utility has evaluated,
trained, and otherwise completed its on-boarding steps for contractors
that perform work on its poles.) we require that it provide written
notice to the attacher that it has done so and specify the bases for
the disqualification in that notice. An attacher wishing to challenge
the reasonableness of the disqualification may avail itself of the
Commission's Rapid Broadband Assessment Team process or submit a
complaint to the Commission's Enforcement Bureau.

IV. Order on Reconsideration (EEI)

51. In this Order, we deny in part and grant in part EEI's Petition
for Clarification and/or Reconsideration of the Commission's December
2023 Wireline Infrastructure Declaratory Ruling. EEI seeks
clarification and/or reconsideration of certain actions taken by the
Commission in that Declaratory Ruling, specifically (1) removal or
clarification of the decision that a pole replacement is not
``necessitated solely'' by an attachment request if ``a utility's
previous or contemporaneous change to its internal construction
standards necessitates replacement of an existing pole,'' and (2)
clarification to ``clearly define the narrow circumstances in which a
utility pole owner is required to provide a copy of its easement to an
attacher that seeks to access a pole within such easement.'' The
Commission invited oppositions and replies to EEI's Petition by
February 23, 2024, and it received five filings in support of the
Petition and seven oppositions.
52. For the reasons set forth below, we deny in part and grant in
part EEI's Petition, specifically (1) denying EEI's request that we
remove or clarify the determination that a pole replacement is not
``necessitated solely'' by an attachment request if a utility's
previous or contemporaneous change to its internal construction
standards necessitates replacement of an existing pole (the internal
construction standards determination) and the associated example of the
internal construction standards determination; (2) granting
clarification of the internal construction standards determination (and
its associated example) to make clear that while utilities retain
autonomy to refuse an attacher's request to replace an existing pole
due to lack of capacity, a pole replacement is not ``necessitated
solely'' by a new attachment request when it is necessitated (in part)
by the utility's decision to adopt a new construction standard for the
pole, even when the pole lacks capacity because of the new standard;
and (3) denying reconsideration of the circumstances when a utility is
required to provide a copy of its easement to an attacher, but granting
clarification that the utility only has to provide a copy of the
easement to the attacher when the utility relies on its interpretation
of the easement to deny the attacher access to that easement.

[[Page 41739]]

A. The ``Necessitated Solely'' Clarification Was Properly Included in
the Declaratory Ruling

53. The Commission has, both in the Declaratory Ruling and
elsewhere, provided examples of when a pole replacement is and is not
``necessitated solely'' by a new attachment request for purposes of
Sec. 1.1408(b) of our rules, which governs the allocation and
causation of costs for a new attachment. Under Sec. 1.1408(b), a party
with a preexisting attachment to a pole is not required to bear any of
the costs of rearranging or replacing its attachment if such
rearrangement or replacement ``is necessitated solely as a result of an
additional attachment or the modification of an existing attachment
sought by another party.'' EEI argues that the Commission should
``remove its clarification that make-ready pole replacements that have
been grandfathered under utility standards are not `necessitated
solely' by the new attachment,'' asserting that this clarification: (1)
was ``not the product of reasoned decision-making;'' (2) does not
promote broadband development; and (3) is confusing and inappropriate.
We deny EEI's reconsideration request because EEI's arguments were
considered and rejected by the Commission in the underlying proceeding,
and EEI's Petition does not raise any points warranting
reconsideration. We also deny EEI's alternative request for the
Commission to clarify that a utility's replacement of a grandfathered
pole to create capacity for a new attachment is ``necessitated solely''
by the attacher. (According to EEI, a ``grandfathered'' pole is one
``that is deemed `compliant' under applicable laws and codes, and by
definition does not require replacement.'') That said, we take this
opportunity to clarify further the contours and basis of the
Commission's internal construction standards determination, especially
the role of capacity (or the lack thereof) on that determination.
54. Because of ongoing disputes regarding an attacher's
responsibility for causing a pole replacement when a pole already
requires replacement at the time a request is made for a new or
modified attachment, the Commission found it appropriate to provide
``additional examples of situations where, under Sec. 1.1408(b) of the
Commission's rules, a pole replacement is not `necessitated solely' by
a new attachment or modification request.'' In each of the examples
provided in the Declaratory Ruling, other precipitating factors
contribute to the need for a pole replacement aside from the new
attachment request. By offering these examples, the Commission aimed to
clarify instances where the cause of a pole replacement should not be
solely attributed to the new attacher.
55. In its Petition, EEI takes issue with one of the Commission's
examples. Specifically, the Commission noted Crown Castle's argument
that ``a pole replacement is not `necessitated solely' by a new
attacher . . . where a pole replacement is required due to a utility
changing its construction standard after the pole is constructed.''
This example was consistent with some commenter proposals and current
practices of some commenters in the record. In deciding that a pole
replacement is not ``necessitated solely'' by an attachment request if
``a utility's previous or contemporaneous change to its internal
construction standards necessitates replacement of an existing pole,''
the Commission added the following ``grandfathered pole'' example: ``if
a utility has `grandfathered' a pole from compliance with its updated
construction standards, a pole replacement to bring that pole into
compliance with those updated standards would not be `necessitated
solely' by an attacher's request to attach to that pole.''
56. EEI asks that we completely strike from the Declaratory Ruling
both the internal construction standards determination and its
associated example. Alternatively, EEI requests that we revise the
Declaratory Ruling to clarify that a pole replacement is not
``necessitated solely'' by an attachment request when, at the time the
attachment request is made, ``[a] pole replacement is required as the
result of a utility's previous or contemporaneous change to its
internal construction standards, such that the utility would be
required to replace the pole even if no new attachment were made.'' EEI
also alternatively asks that we revise the grandfathered pole example
in the Declaratory Ruling to state: ``For clarity, if a utility has
`grandfathered' a pole from compliance with its updated construction
standards in accordance with applicable laws or codes, such pole is not
deemed to require replacement for purposes of this Declaratory Ruling,
and a pole replacement performed to create capacity for a new
attachment that incidentally brings such pole into compliance with
those updated standards would not be `necessitated solely' by an
attacher's request to attach to that pole.''
57. We deny EEI's requests. Specifically, we find that the
reconsideration and clarifications sought by EEI go beyond (EEI and
utilities such as CCU argue that ``simply because a new construction
standard must apply to a pole whenever in the future it might be
replaced does not mean that the pole needs to be replaced at the time
the attacher requests access to the pole.'' This argument, and the
argument that a grandfathered pole remains compliant with ``the
electric utility's construction standards and does not require
replacement until such time as there is a material modification to that
pole,'' miss the point. It is the utility's change in its internal
construction standards that has now made the pole unable to accommodate
the new attachment and it is that condition that led us to clarify in
the Declaratory Ruling that the new attachment request does not solely
necessitate a pole replacement. This simple premise does not, as the
Electric Utilities allege, ``undermine an electric utility's long-
standing right (and responsibility) to adopt and implement non-
discriminatory standards that exceed the NESC, where appropriate and
necessary.'') our simple premise in including the internal
constructions standard determination; namely, a pole replacement is not
``necessitated solely'' by a new attacher where a pole replacement is
required due to a utility changing its construction standard after the
pole is constructed. When a utility makes a unilateral decision to
change its internal construction standards such that the existing pole
must now be replaced the next time it is touched, it is not the case
that replacing that pole is ``necessitated solely'' by a new attachment
request that comes along. We agree instead with NCTA's characterization
that ``[b]eing what EEI calls `grandfathered' is not the same thing as
compliant with current standards. As EEI's arguments make clear, the
issue is one of the utility's choice of timing. The poles are not
compliant with the latest construction standard, but the utility
chooses when and why to replace the pole.'' (Because of the importance
attached to the utility's sole purview on the timing of replacing a
pole that is noncompliant with its construction standards, we disagree
with the characterization of the Electric Utilities that ``the fact
that `the utility chooses when and why to replace the pole,' does not
justify the grandfathered pole ruling.'') As a result, we found it
necessary to clarify in the Declaratory Ruling that, when a utility's
change in construction standards contributes to the need to replace a
pole, the new attachment request does not solely necessitate the pole
replacement.

[[Page 41740]]

58. However, we grant clarification insofar as we provide here an
important caveat to the internal construction standards determination
and associated example. We note that an important element of the
internal construction standards determination is the capacity, or the
lack thereof, on the existing pole. We clarify that, for purposes of
the internal construction standards determination, when a utility is
determining capacity on a pole to see whether a pole replacement is
necessary, the relevant utility construction standards to consider are
limited to the current standard and the standard immediately preceding
that current standard. (We thus reject EEI's argument that the internal
construction standards determination requires the utility to figure out
``which of the many previous iterations of an electric utility's
construction standards would be applicable'' when a pole is replaced
following a new attachment request.) That is, assuming a pole lacks
capacity for a requested new attachment under the utility's new
construction standard, but capacity would exist under its immediately
preceding construction standard, the resulting pole replacement would
not be ``necessitated solely'' by a new attachment request. By
contrast, if the pole lacks capacity under both the new and immediately
preceding construction standards, then application of Sec. 1.1408(b)
means that the new attachment request is the cause of the pole
replacement, i.e., it is ``necessitated solely'' by the new attachment.
The clarification we offer today can be administered easily and also
limits unreasonable actions to delay pole replacements in order to
force new entrants to bear the entire cost of a pole replacement. To
the extent this was not clear from the Declaratory Ruling, we hereby
clarify accordingly.
59. With this clarification, we find that EEI's requests are
unfounded. EEI bases its requests on the incomplete premise that ``[i]f
an attacher requests access to a pole, and the pole must be changed out
to accommodate the new attachment under the electric utility's current
construction standards, the new attachment is the cause of the make-
ready pole replacement. In this instance, the pole would not be
replaced `but for' the attachment request, and the need to construct a
new pole line in accordance with an updated construction standard would
not exist had the pole not been replaced to create capacity for the new
attachment.'' According to EEI, the internal construction standards
determination and associated grandfathered pole example ``can be
interpreted as requiring pole owners to share in the cost of every
make-ready pole replacement involving a `grandfathered' pole.'' This is
mistaken because, as stated above, when a utility is maintaining poles
at an immediately preceding standard, that standard is determinative of
capacity for purposes of a new attachment request and determining
whether a resulting pole replacement is ``necessitated solely'' by the
new request. If that request would render the pole over capacity at the
immediately preceding standard, then the utility could deny access
under Section 224(f)(2) of the Act and any resulting pole replacement
would be ``necessitated solely'' by the new request. But if the new
attachment would only cause the pole to exceed the new standard but not
the immediately preceding standard, then any pole replacement is not
necessitated solely by a new attachment request, but rather is
necessitated in part by the adoption of a new standard.
60. We reject EEI's claim that the Commission's decisions ``run
afoul of longstanding `cost causation' principles.'' As attachers point
out in the record, in the internal construction standards scenario, it
is the utility's decision to leave the original pole in place until the
new attacher comes along that necessitates the pole replacement, at
least in part. In fact, it is EEI's contention that may run contrary to
our cost causation principles by positing that ``[i]f a grandfathered
pole lacks capacity to host an additional attachment under an electric
utility's current construction standards, the new attachment is the
cause of a make-ready pole replacement. At the very most, the electric
utility in this scenario would be an incidental beneficiary of the
make-ready pole replacement, and the Commission has long held that
incidental beneficiaries are not required to share in the cost of pole
replacements.'' The utility is not merely an incidental beneficiary if
the new attachment could have been accommodated on the pole under the
utility's construction standards before they were changed, but now
cannot because of the utility's unilateral decision to change its
internal construction standards. Instead, the utility's decision to
leave the existing pole in place until the new attacher comes along
necessitates the pole replacement, at least in part. And the utility is
far from an incidental beneficiary if it would be able to get its pole
replaced at the new attacher's sole expense when the existing pole
could have accommodated the new attachment under the immediately
preceding pole construction standard.
61. Relatedly, we reject EEI's claim that in advancing the internal
construction standards determination, the Commission failed to consider
the ``enormous'' economic burden placed on utilities as a result of the
Declaratory Ruling and failed ``to balance the respective interests,
costs, burdens, and liabilities of pole owners and attachers, or to
assess whether reasonable limitations are needed to minimize any
adverse impact on utility pole owners.'' Instead, we recognize that
this determination requires utilities to bear some of the burden, but
we must also consider the burden on attachers. The internal
construction standard determination spreads the burden across all of
the parties who are causing the pole replacement.
62. Further, contrary to EEI's contention in its Petition, there
was substantial record support for the clarification at issue. For
example, several commenters have consistently advocated for the
Commission to adopt a ``more transparent, just, and reasonable process
that ensures a fair allocation of replacement costs between pole owners
and new attachers seeking to use the poles.'' With regard specifically
to the application of the ``necessitated solely'' language in the
Commission's rules, Charter sought to have the Commission extend the
clarification in the 2021 Pole Replacement Declaratory Ruling to find
that ``when a pole is scheduled for replacement or facing imminent
replacement,'' the pole replacement is not ``necessitated solely'' by
an attachment request. As ACA Connects states, ``almost 18 months
before the Commission issued the [internal construction standards
determination], Crown Castle filed comments . . . demonstrating that
pole owners were using internal construction standards to avoid cost-
causation principles and requiring prospective attachers to pay the
entire cost of pole replacements.'' After full consideration of the
record, the Commission decided to include the internal construction
standards determination in the non-exclusive list of examples of when a
pole replacement is not ``necessitated solely'' by an attachment
request--an example put forward in the record by Crown Castle as far
back as August 2022.
63. We also find unpersuasive EEI's argument in the Petition that
the internal construction standards determination and the grandfathered
pole example will result in less broadband deployment because they
would cause ``uncertainty and financial

[[Page 41741]]

risk'' for utilities. We concur with INCOMPAS that in fact ``the
clarity provided in the Declaratory Ruling'' will advance broadband
deployment by competitive providers ``as these companies will now be
able to devote more resources to extending builds and reaching new
customers rather than paying to replace aging utility poles.'' As Crown
Castle notes, the ``Commission's decision regarding replacement of
poles to bring them into compliance with a utility's updated
construction standards (including so-called `grandfathered' poles) will
promote broadband deployment by reducing costs and eliminating the
opportunity and incentive for pole owners to manipulate the process to
the detriment of attachers.''
64. Finally, we reject EEI's argument in the Petition that the
Commission's application of the ``necessitated solely'' language in
Sec. 1.1408(b) to allocate make-ready pole replacement costs is
``confusing and inappropriate.'' EEI claims that the `` `cost causation
language of the fourth sentence of 1.1408(b)' speaks only of the costs
for rearranging or replacing existing attachments.'' However, as the
Commission explained in the Declaratory Ruling, it agreed with the
Bureau's analysis in the 2021 Pole Replacement Declaratory Ruling that
when the cost-allocation and cost-causation provisions in Sec.
1.1408(b) are read together, they ``stand for the proposition that
parties benefiting from a modification share proportionately in the
costs of that modification, unless such modification is necessitated
solely as a result of an additional or modified attachment of another
party, in which case that party bears the cost of the modification.''
The Commission further clarified that ``it would be contrary to the
Commission's rules and policies to require a new attacher to pay the
entire cost of a pole replacement when a pole already requires
replacement . . . at the time a request for a new or modified
attachment is made.''
65. Because the clarification in the Declaratory Ruling was both
based on an extensive record and consistent with prior Commission
decisions regarding pole attachments, we reject EEI's request that we
reconsider, or clarify in the manner requested by EEI, the portion of
the Declaratory Ruling regarding the internal construction standards
determination and the grandfathered pole example. We do, however,
clarify that portion of the Declaratory Ruling as described above.

B. Easement Ruling

66. We reject EEI's request to reconsider our clarification in the
Declaratory Ruling that, consistent with their obligations under
Section 224(f) of the Act, ``utilities must provide potential attachers
with a copy of a utility's easement before a utility can refuse to let
the attacher share that easement or require the attacher to obtain its
own easement.'' EEI asks that the Commission ``clearly define the
narrow circumstances in which a utility pole owner is required to
provide a copy of its easement to an attacher that seeks to access a
pole within such easement.'' We deny EEI's reconsideration request
because the parameters of the easement sharing ruling are plainly set
forth in the Declaratory Ruling. We do, however, clarify that the
utility only has to provide a copy of the easement to the attacher to
the extent that the utility relies on an interpretation of the easement
to deny the attacher access to that easement.
67. Section 224(f)(1) of the Act requires a utility to 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.'' In the 1996 Local Competition Order, the
Commission found that ``the access obligations of section 224(f) apply
when, as a matter of state law, the utility owns or controls the right-
of-way to the extent necessary to permit such access.'' Based on the
language in Section 224(f)(1) and the Commission's interpretation of
that language as set out in the Local Competition Order, the Commission
concluded in the Declaratory Ruling that ``in order to enable attachers
to effectuate their right of access under section 224(f) of the Act,
utilities must provide potential attachers with a copy of a utility's
easement before a utility can refuse to let the attacher share that
easement or require the attacher to obtain its own easement. In making
this clarification, we find that the Section 224(f) right of access
requires the sharing of information regarding the easement in cases
where the utility claims the easement cannot accommodate an attacher;
it does not require the utility to alter the underlying easement or act
in contravention of state law.'' Such a requirement is consistent with
the best reading of Section 224(f)(1) because without information on
the actual easement, neither attachers nor the Commission can verify
whether the utility's denial of access is justified, and the best
source for easement information is the utility that holds the easement.
After all, the utility's easement shows the extent of the utility's
ownership or control of the right-of-way under the relevant state law.
Providing this information--which necessarily shows whether the
attacher has a statutory right of access--gives the attacher the
ability to make use of the pole and thus fits within the ordinary
meaning of ``access.'' (The dictionary definition of ``access'' is
``freedom or ability to obtain or make use of something.'')
68. EEI asserts that as written, the Declaratory Ruling implies
that the utility, not the attacher, is responsible in the first
instance for any determination that must be made about the scope of the
utility easement, and that this goes against decades of precedent and
standard practice. (Despite EEI's claim that the Commission's easement-
sharing requirement goes against ``decades-old-precedent'', EEI cites
to no such precedent. In rejecting this argument, we note that the
Commission has not ruled on any easement-related parameters since 1996)
In support of its Petition, EEI argues that: (1) ``easement information
is not relevant to pole attachment requests or to broadband
deployment''; (2) the clarification ``is premised on the baseless
assertions of a single commenter to which no party had an opportunity
to respond''; (3) the clarification ``fails to balance the costs,
burdens, risks, and potential benefits that will flow from a new
disclosure requirement''; and (4) the clarification ``fails to consider
reasonable limitations on a pole owner's obligation to share easement
information.'' We believe our clarification herein obviates the latter
two concerns. For the reasons set forth below, however, we reject EEI's
first two objections.
69. We do not agree with EEI's characterization that the
Declaratory Ruling ``implies that the utility, and not the attacher, is
responsible in the first instance for any determination that must be
made about the scope the utility easement.'' (We do not disagree with
EEI's assertion that ``where an attacher seeks to use a utility
easement to access a pole that the utility approved for attachment
under Section 224(f), the attacher (and not the utility) must determine
whether the applicable easement for the pole location is sufficiently
broad to allow or encompass a third-party communications facility.'')
Rather, we plainly clarified in the Declaratory Ruling that ``the
section 224(f) right of access requires the sharing of information
regarding the easement in cases where the utility claims the easement
cannot accommodate an attacher.'' Where the

[[Page 41742]]

utility claims the easement cannot accommodate an attacher, that claim
is presumably based on some analysis of the easement by the utility. It
is in this limited setting that the utility is required to share
easement information. In such a case, an attacher must be able to
evaluate the easement to determine its scope, and the best source for
the easement is the utility that holds it.
70. With regard to EEI's other arguments against the easement
ruling, they largely can be boiled down to an issue of balancing
burdens against benefits, with EEI asserting that the Commission failed
to consider and implement such a balance. We disagree. The burden of
the sharing requirement is limited to ``cases where the utility claims
the easement cannot accommodate an attacher.'' (In rejecting EEI's
argument that the easement clarification ``fails to consider reasonable
limitations on a pole owner's obligation to share easement
information'', we note that just the opposite is true--the ``disclosure
of easements should only be required when the pole owner denies an
active request (i.e., an application) for access to a specific pole
based on its interpretation of the scope of an applicable easement.'')
As for the benefits and relevance of the easement sharing requirement,
we agree with commenters who assert that the potential for disputes is
amplified by the asymmetrical information between parties, thus slowing
down the process of pole attachments and, consequently, delaying
broadband deployment. By requiring utilities to provide relevant
easement information, we are helping to level the playing field between
utilities and attachers while also reducing the potential delays in
broadband deployment. (This is contrary to EEI's claim that easement
information is not relevant to pole attachment requests or to broadband
deployment.) Thus, limiting the sharing of easement information to
situations where the utility denies easement access is a reasonable
limitation on a utility's obligation to share easement information
without exacerbating the problem of asymmetrical information.
71. Specifically with regard to utility burdens, we disagree with
EEI's argument that we should reverse or clarify our declaration
because utilities do not maintain copies of easements in the ordinary
course of business but instead rely on public records, and not all
utility easements emanate from written easement instruments. EEI's
argument of an undue burden on utilities in producing records in this
case misses the point. Our requirement that utilities produce easement
information is conditioned on their claiming that the easement cannot
accommodate the attacher, and the best source of information verifying
the utility's claim is the utility that holds the easement. In
accordance with Section 224(f) of the Act, we already determined that
granting an attacher a ``right of access requires the sharing of
information regarding the easement in cases where the utility claims
the easement cannot accommodate an attacher.'' Thus, we are not
requiring the utility to alter any business practices. Rather, we only
are requiring it to provide easement information when it denies access
to the easement, especially since it is the best source of information
for the evidence of the denial. We further clarify, however, that the
utility must provide this information if it denies access based on its
interpretation of the easement.
72. Because utilities' obligation to provide easement information
is limited to instances in which the utility denies access to its
easement based on its interpretation of the easement, we decline to
adopt EEI's request to limit this obligation to instances where the
attacher is unable to locate easement information after conducting a
public search. The Commission has already considered this limitation
and determined that easement information should be in the utility's
possession if it has affirmatively denied access to an attacher. As
NCTA notes in its opposition, ``[f]orcing attachers to obtain copies of
easements through either public resources or title searches when the
utility already has such easements available unequivocally adds
unnecessary expense and delay to the broadband deployment process.''
73. We also disagree with EEI that the easement sharing requirement
is deficient because it was adopted based entirely on new, untested
assertions made in an ex parte submitted by Crown Castle after the
start of the Sunshine Period. As INCOMPAS points out, the Commission's
inclusion of the easement clarification cites to comments submitted by
ExteNet. In addition, as NCTA notes, ``the Declaratory Ruling was based
on an interpretation of section 224(f) of the Act. . . . [and] the
Commission can issue a Declaratory Ruling on its own motion
interpreting a statute.''

V. Order on Reconsideration (CCU)

74. In this Order, we deny CCU's Petition for Reconsideration of
our December 2023 Fourth Wireline Infrastructure Order. In that Order,
the Commission adopted new regulations requiring utilities to provide
copies of their cyclical pole inspection reports to prospective
attachers upon request. The key purpose of this requirement is to
increase transparency and provide attachers with more information that
might assist them in planning broadband deployment projects. At the
same time, the Commission sought to avoid imposing undue burdens on
utilities by limiting the requirement to providing information they
already possess and produce in the normal course of business.
75. CCU seeks reconsideration of this new requirement. CCU contends
that the Commission adopted the requirement without appropriate notice
and that the requirement is unduly burdensome, will create disputes,
and could impede broadband deployment, all while providing no new
benefit to prospective attachers. Four parties filed oppositions to the
Petition. Much of the Petition relies on ``arguments that have been
fully considered and rejected by the Commission within the same
proceeding,'' and to that extent, we dismiss the Petition on procedural
grounds and also deny on substantive grounds. To the extent some of
CCU's Petition raises new arguments, we fully consider and reject them
herein. Thus, we deny CCU's Petition for the reasons discussed below.

A. Adequate Notice of the Rule

76. As a procedural matter, CCU argues that the Commission did not
provide adequate notice that it might adopt a rule requiring utilities
to provide attachers with copies of pole inspection reports.
Specifically, CCU contends that the paragraph of the Second Further
Notice seeking comment on whether the Commission should require
utilities to provide more information to attachers ``contains no
indication that utilities might be required to provide pole inspection
reports to communications attachers.'' CCU also asserts that the first
the public learned of the potential requirement to provide copies of
pole inspection reports was in the Commission's November 22, 2023 Draft
Order, which was released two weeks before the start of the sunshine
period, after which further comment was prohibited. CCU argues that two
weeks was not sufficient to alert utilities to the prospective ruling
and allow them to provide meaningful responses.
77. Groups representing attachers disagree. They state that the law
does not require a notice of proposed rulemaking to have proposed the
precise rule that the Commission ultimately adopts, but rather only
that the final

[[Page 41743]]

rule be a ``logical outgrowth of its notice.'' They contend that the
final rule on pole inspection reports was a logical outgrowth of a
proposal in the Second Further Notice because the Commission
specifically asked about the types of information utilities should be
required to provide regarding the status of their poles, and both
attachers and utilities addressed pole inspection reports as one such
source of information in their comments, replies, and ex parte filings.
78. We reject CCU's argument that the Commission adopted the
transparency requirement without proper notice. As noted above, the
relevant legal question is whether the final adopted rule was a
``logical outgrowth'' of the issues on which the Commission sought
comment in the Second Further Notice. ``A final rule qualifies as a
logical outgrowth `if interested parties ``should have anticipated''
that a change was possible . . . .' '' That test is met here.
79. The Second Further Notice sought comment on ``additional
measures that the Commission could adopt that would enable attachers
and utilities to avoid pole replacement disputes and/or resolve them
quickly when they occur.'' As an example, the Commission noted one
party's proposal to require utilities to provide attachers with
``information on the condition of, and replacement plans for, their
poles.'' The Commission also asked for comment on ``what mechanism''
utilities could use ``to provide such information to attachers[.]'' As
noted above and described in more detail in the Fourth Report and
Order, attachers made a variety of proposals for information-sharing
requirements. Utilities responded by largely opposing such
requirements. Most relevant here, in both comments and replies on this
issue, commenters on both sides noted that many utilities create
cyclical reports containing a range of information on their poles,
including information about their condition and replacement plans.
Attachers argued the information in such reports would be useful in
planning projects and reducing the number of pole replacements they
would have to pay for, while utilities generally argued the information
would be outdated and was unnecessary in light of the same or similar
information they already provide to prospective attachers. This debate
continued in ex partes from both sides after the Commission released
the Draft Order, with several parties supporting, opposing, and/or
seeking modifications to the proposed rule.
80. This record demonstrates the final rule was a logical outgrowth
of the Second Further Notice. The Commission sought comments and
proposals on requiring utilities to provide more pole-related
information to attachers and mechanisms for doing so. It received a
range of proposals and extensive comments, which included discussion on
both sides regarding pole inspection reports. Parties, including CCU,
therefore should have anticipated that a requirement to provide pole
inspection reports was possible. Accordingly, there was no lack of
adequate notice.

B. Substantive Challenges to the Rule

81. Turning to the substance, CCU raises several policy arguments
that, it contends, demonstrate that the rule on pole inspection reports
is unwise and unnecessary. CCU contends that the information contained
in utilities' cyclical pole inspection reports is either irrelevant to
the attachment process or is already available through the attachment
process, and that requiring utilities to provide such reports could
lead to disputes and confusion between utilities and attachers that do
not understand utilities' asset management programs and prioritization
and regulatory requirements. CCU also argues that such disputes will
ultimately delay broadband deployment by slowing down the processing of
pole attachment requests and harming the collaborative relationship
between utilities and attachers. It further says the obligation created
by the rule would impose significant burdens on utilities, which will
have to create electronic notification systems to keep track of
requests and pass along the cost to attachers. CCU also contends that
the rule raises security concerns because it risks improper disclosure
of sensitive network information.
82. Attachers respond that the information in cyclical pole
inspection reports will indeed be beneficial, such as in helping them
ensure the utility is complying with Commission rules and helping them
negotiate with utilities when the reports reveal an issue with an
attachers' planned route. They note, as others did in their prior
comments and replies, that pole inspection reports can sometimes be
outdated, but nevertheless can contain more information than attachers
might otherwise receive from utilities, and that this additional
transparency can help reduce or resolve disputes and allow for better
planning of a project before the make-ready process begins.
83. As a threshold matter, CCU and others already raised, and the
Commission already considered, CCU's arguments regarding the value or
need for the information in pole inspection reports, the potential for
disputes or confusion, the possible impact on broadband deployment, and
the burden of the new requirement on utilities. For example, as Altice
notes, CCU's Petition incorporates entire passages from its Reply
submitted in response to the Second Further Notice, altering only a few
words. (For example, the arguments at pages 13-15 of the CCU Petition
are a nearly verbatim repeat of the arguments at pages 12-14 of CCU's
Reply to the Second Further Notice.) CCU's Petition also reiterates the
same arguments already presented by it and other utilities in comments
and replies submitted in response to the Second Further Notice and in
ex parte submissions after the Draft Order was released.
84. Furthermore, the Commission in the Fourth Wireline
Infrastructure Order already fully considered the arguments raised in
the Petition. The Commission explained that while it is aware that
cyclical pole inspection reports may sometimes have outdated
information and that there will be some burden on utilities to provide
attachers with such reports, attachers still view the reports as
valuable. The Commission therefore strove to strike a balance by
limiting the new requirement to information that already exists and
that utilities already collect in the normal course of business. The
Commission also considered the potential burden on utilities and the
effect of new collection and disclosure obligations when it rejected
several more extensive information-sharing proposals by attachers.
Moreover, as noted in the Fourth Report and Order, the Commission still
strongly urges utilities and attachers to collaborate and cooperate in
disclosing and reviewing pole-related information and finding the most
efficient ways to address pole attachments and pole replacements. CCU's
argument on security concerns likewise was already raised and
considered in the Fourth Wireline Infrastructure Order. As the
Commission noted, such risks can be addressed through redactions or
non-disclosure agreements.
85. CCU also argues that the deadlines associated with the
requirement to provide cyclical inspection reports are problematic. The
rule requires utilities to provide attachers with cyclical pole
inspection reports for the poles covered by an application within 10
business days of a written request. CCU states that utilities' ability
to meet that deadline will vary depending on the volume of such a
request and the availability of team members who process such
applications.
86. CCU's argument does not warrant changing or removing the timing

[[Page 41744]]

requirements. At this time, the argument is speculative, and the
Commission's rule already seeks to limit the burden on utilities by
limiting its reach only to pre-existing pole inspection reports. (To
the extent utilities find it impossible to comply with the deadline
requirement, they may seek relief through appropriate channels.) We
also decline to reconsider the requirements because the 10-business-day
deadline was stated in the Draft Order, and CCU submitted an ex parte
filing related to the pole inspection reports requirement after public
release of the Draft Order. Thus, CCU should have raised its concerns
about the response deadline then.
87. CCU further asserts that the rule does not afford utilities
sufficient time to inform a new attacher that it is restarting the
clock for application review after an attacher's revision of its
application. If an attacher revises a request after reviewing pole
inspection reports, the new rule requires the utility to inform the
attacher that it is restarting the clock on the application, and to do
so within the lesser of five business days or the number of days
remaining in the 45-day application approval period (or 60 days for
larger orders). CCU contends that the addition of another time
constraint on utility personnel will merely allow communications
attachers to game the system to their advantage, such as by making vast
changes in an application at a time that leaves the utility unable to
timely notify the attacher that the application clock has restarted,
and thus no time to review the changes. (Electric Utilities go further
and assert that ``there is little interest in the `amendment' component
of the [transparency rule] and/or that there are no cognizable uses for
it'' because the record is silent on this component of the rule.)
88. Once again, CCU's argument is not enough to warrant changing or
removing the timing requirements. The rule appropriately balances
competing interests by permitting attachers to amend their applications
and permitting utilities to extend the application review period if
attachers choose to do so. We expect that the utilities' discretion to
extend the review period will provide a strong incentive for attachers
not to seek to game the system, as last-minute amendments may be more
likely to lead the utility to restart the 45-day clock due to lack of
sufficient review time, and thus delay the processing of the attachment
request. Moreover, as CCU concedes, it already requested that the 45-
day timeline restart automatically when an attacher revises an
application, but the Commission rejected that proposal, finding that
the procedures it was adopting ``are sufficiently tailored to account
for the needs of utilities to review amended applications while not
needlessly slowing deployment.'' While CCU disagrees with that
decision, it has failed to explain why a utility pole owner, when it
chooses to restart the clock, is not able to inform the attacher within
the required period. Moreover, the new advance notice and meet-and-
confer requirements we adopt today for Large Orders, and the new
advance notice requirement we adopt for Mid-Sized Orders associated
with a single network deployment, should help reduce these situations
from occurring in the first instance.
89. Finally, CCU asserts that the rule on cyclical pole inspection
reports would reduce utilities' incentive to replace poles to
accommodate attachers and could lead to some utilities simply denying
access, which would be counter to the Commission's goals in the
proceeding. In the Fourth Report and Order, however, the Commission
took pains to adopt a rule that balanced the interests of utilities and
attachers and limited the burden on utilities by requiring them to
provide pole inspection reports that already exist and that the
utilities already prepare in the normal course of business. The
Commission also rejected a number of transparency proposals that would
have been materially more burdensome and costly for utilities, and
strongly encouraged utilities and attachers to collaborate and
cooperate on ways to make the processing of pole attachment
applications more efficient for all involved. CCU's arguments do not
cause us to challenge the Commission's conclusion that the new
transparency rule strikes the appropriate balance, and we therefore
decline to reconsider the rule on that basis. (CCU previously argued
that imposing more duties and deadlines on utilities would undermine
their incentive to perform voluntary pole replacements. The Commission
took account of such arguments when limiting the obligation here to
pole inspection reports that already exist and that utilities already
create in the normal course of business and in rejecting more extensive
information-sharing proposals. CCU's Petition adds nothing new.)

VI. Final Regulatory Flexibility Analysis

90. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Federal Communications Commission (Commission)
incorporated an Initial Regulatory Flexibility Analysis (IRFA) in the
Accelerating Wireline Broadband Deployment by Removing Barriers to
Infrastructure Investment, Third Further Notice of Proposed Rulemaking
(Third Further Notice) released in December of 2023. The Commission
sought written public comment on the proposals in the Third Further
Notice, including comment on the IRFA. No comments were filed
addressing the IRFA. This Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA and it (or summaries thereof) will be published in
the Federal Register.

A. Need for, and Objectives of, the Fifth Report and Order

91. In the Fifth Report and Order, the Commission adopts rules and
policy changes that will make the pole attachment process faster and
cheaper, particularly when poles have to be replaced during broadband
buildouts. In the last five years, the Commission took significant
steps in setting standards for the discussions between utilities and
telecommunications companies about the timing and cost of attaching
broadband equipment to utility poles, with the backstop of a robust
complaint process when parties cannot agree on the rates, terms, and
conditions for pole attachments. In the Fifth Report and Order, we
adopt rules (1) requiring attachers to provide written notice to
utilities of forthcoming pole attachment orders of a certain size; (2)
providing that if an attacher submits an application for a Mid-Sized
Order associated with a single network deployment or Large Order
without the requisite advance notice, the utility can treat the
application as the advance notice, and the timelines are tolled for the
relevant advance notice period; (3) imposing a meet-and-confer
requirement following the requisite advance notice for Large Orders;
(4) establishing a new set of timelines for utilities to complete each
pole access phase for large orders; (5) requiring utilities to notify
attachers within 15 days of receiving a complete application whether
they can meet the survey and notify attachers within 15 days of payment
of a make-ready estimate that they will not be able to meet the and
make-ready deadline; (6) adding a self-help remedy for make-ready
estimates, provided certain safeguards are met; (7) declaring that
application size and frequency limits that extend pole attachment
timelines beyond the limits set forth in Sec. 1.411 violate our rules;
and (8) requiring utilities to respond to a request to add contractors
to a utility-approved list within 30 days of receiving the request or
the contractor will be ``deemed approved.''

[[Page 41745]]

B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA

92. There were no comments raised that specifically addressed the
proposed rules and policies presented in the Third Further Notice IRFA.
Nonetheless, the Commission considered the potential impact of the
rules proposed in the IRFA on small entities and took steps where
appropriate and feasible to reduce the compliance burden for small
entities in order to reduce the economic impact of the rules enacted
herein on such entities.

C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration

93. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply

94. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``mall 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.
95. 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 34.75 million businesses.
96. 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 2022, there were
approximately 530,109 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.
97. 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 2022 Census of Governments indicate there were
90,837 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,845 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 11,879 special purpose governments (independent school districts)
with enrollment populations of less than 50,000. Accordingly, based on
the 2022 U.S. Census of Governments data, we estimate that at least
48,724 entities fall into the category of ``small governmental
jurisdictions.''
1. Internet Access Service Providers
98. 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.
99. 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.
100. 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
101. 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

[[Page 41746]]

operate are included in this industry. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers.
102. 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.
103. 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.
104. 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.
105. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. 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 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.
106. 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
107. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The closest applicable industry with an SBA
small business size standard is Wired Telecommunications Carriers. The
SBA small business size standard classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 3,054 firms in this industry that operated for the
entire year. Of this number, 2,964 firms operated with fewer than 250
employees. 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.
108. Other Toll Carriers. 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.

[[Page 41747]]

3. Wireless Providers--Fixed and Mobile
109. 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.
110. 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.
111. 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.
112. 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.
113. 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.
114. 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.
115. 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.
116. 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.
117. 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

[[Page 41748]]

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.
118. 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.
119. 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.
120. 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.
121. 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.
122. Based on Commission data as of December 2021, there were 3,924
active 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.
123. 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.
124. 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.
125. 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

[[Page 41749]]

small under the SBA's small business size standard.
126. 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.
127. 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.
128. 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.
129. 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.
130. 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.
131. 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.
132. 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.
133. 3,650-3,700 MHz Band. Wireless broadband service licensing in
the 3,650-3,700 MHz band provides for nationwide, non-exclusive
licensing of terrestrial operations, utilizing contention-based
technologies, in the 3,650 MHz band (i.e., 3,650-3,700 MHz). Licensees
are permitted to provide services on a non-common carrier and/or on a
common carrier basis. Wireless broadband services in the 3,650-3,700
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.
134. The Commission has not developed a small business size
standard applicable to 3,650-3,700 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 3,650-3,700 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.
135. 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

[[Page 41750]]

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.
136. 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.
137. 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.
138. 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.
139. 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.
140. 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.
141. 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
142. 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

[[Page 41751]]

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.
143. 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
144. 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.
145. 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.
146. 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.
147. 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
148. 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.
149. 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
Gen

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on August 26, 2025.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.