Implementation of Section 224 of the Act; a National Broadband Plan for Our Future, 45494-45496 [2010-18904]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45494-45496]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18904]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 07-245; GN Docket No. 09-51; FCC No. 10-84]


Implementation of Section 224 of the Act; a National Broadband 
Plan for Our Future

AGENCY: Federal Communications Commission.

ACTION: Declaratory ruling.

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SUMMARY: In this Declaratory Ruling, the Commission clarifies that 
communications providers have a statutory right to use space- and cost-
saving techniques that are consistent with pole owners' use of those 
techniques. The Commission also establishes that providers have a 
statutory right to timely access to poles.

DATES: Effective September 2, 2010.

FOR FURTHER INFORMATION CONTACT: Jonathan Reel, Wireline Competition 
Bureau, Competition Policy Division, 202-418-1580.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Declaratory Ruling in WC Docket No. 07-245, GN Docket No. 09-51, 
adopted May 20, 2010, and released May 20, 2010. This Declaratory 
Ruling rules on issues raised in Implementation of Section 224 of the 
Act; Amendment of the Commission's Rules and Policies Governing Pole 
Attachments, Notice of Proposed Rulemaking 73 FR 6879, February 6, 
2008.

Synopsis of the Declaratory Ruling

    1. In this Order, the Commission takes steps to clarify the statute 
to lower the costs of telecommunications, cable, and broadband 
deployment and to promote competition, as recommended in the National 
Broadband Plan. The Commission clarifies that communications providers 
have a statutory right to use space- and cost-saving techniques that 
are consistent with pole owners' use of those techniques. The 
Commission also establishes that providers have a statutory right to 
timely access to poles.

Background

    2. In 1978, Congress first directed the Commission to ensure that 
the rates, terms, and conditions for pole attachments by cable 
television systems are just and reasonable when it added section 224 to 
the Act. The Telecommunications Act of 1996 (1996 Act) expanded the 
definition of pole attachments to include attachments by providers of 
telecommunications service, and granted both cable systems and 
telecommunications carriers an affirmative right of nondiscriminatory 
access to any pole, duct, conduit, or right-of-way owned or controlled 
by a utility. However, the 1996 Act permits utilities to deny access 
where there is insufficient capacity and for reasons of safety, 
reliability or generally applicable engineering purposes. Besides 
establishing a right of access, the 1996 Act mandates a rate formula 
for telecommunications carriers that differs from the rate formula for 
attachments used solely to provide cable service.
    3. The Commission implemented the new section 224 access 
requirements in the Local Competition Order. At that time, the 
Commission concluded that it would determine the reasonableness of a 
particular condition of access on a case-by-case basis. Finding that no 
single set of rules could take into account all attachment issues, the 
Commission specifically declined to adopt the National Electric Safety 
Code (NESC) in lieu of access rules. The Commission also recognized 
that utilities typically develop individual standards and incorporate 
them into pole attachment agreements, and that, in some cases, federal, 
state, or local laws also impose relevant restrictions. The Local 
Competition Order acknowledged concerns that utilities might deny 
access unreasonably, but rather than adopt a set of substantive 
engineering standards, the Commission decided that procedures for 
requiring utilities to justify the conditions they placed on access 
would best safeguard attachers' rights. The Commission did adopt five 
rules of general applicability and several broad policy guidelines in 
the Local Competition Order. The Commission also stated that it would 
monitor the effect of the case-specific approach, and would propose 
specific rules at a later date if conditions warranted.
    4. In the 1998 Implementation Order, the Commission adopted rules 
implementing the 1996 Act's new pole attachment rate formula for 
telecommunications carriers. The Commission also concluded that cable 
television systems offering both cable and Internet access service 
should continue to pay the cable rate. The Commission further held that 
the statutory right of nondiscriminatory access includes attachments by 
wireless carriers. The latter two determinations were challenged but 
ultimately upheld by the Supreme Court. In particular, the Court held 
that section 224 gives the Commission broad authority to adopt just and 
reasonable rates. The Court also deferred to the Commission's 
conclusion that wireless carriers are entitled by section 224 to attach 
facilities to poles.
    5. On November 20, 2007, the Commission issued the Pole Attachment 
Notice 73 FR 6879, February 6, 2008 in recognition of the importance of 
pole attachments to the deployment of communications networks, in part 
in response to petitions for rulemaking from USTelecom and Fibertech 
Networks. USTelecom argued that incumbent LECs, as providers of 
telecommunications service, are entitled to just and reasonable pole 
attachment rates, terms, and conditions of attachment even though, 
under section 224, they do not count as ``telecommunications carriers'' 
and have no statutory right of access. Fibertech petitioned the 
Commission to initiate a rulemaking to set access standards for pole 
attachments, including standards for timely performance of make-ready 
work, use of boxing and extension arms, and use of qualified third-
party contract workers, among other concerns. The Pole Attachment 
Notice focused on the effect of disparate pole-attachment rates on 
broadband competition and arrived at two tentative conclusions: first, 
that all attachers should pay the same pole attachment rate for all 
attachments used to provide broadband Internet access service and 
second, that the rate should be higher than the current cable rate, yet 
no greater than the telecommunications rate. In addition to the 
concerns raised by USTelecom and Fibertech, the Pole Attachment Notice 
inquired about application of the telecommunications rate to wireless 
pole attachments and other pole access concerns.
    6. The American Recovery and Reinvestment Act of 2009 included a 
requirement that the Commission develop a national broadband plan to 
ensure that every American has access to broadband capability. On March 
16, 2010, the National Broadband Plan was released, and identified 
access to rights-of-way--including access to poles--as having a 
significant impact on the deployment of broadband networks.

[[Page 45495]]

Accordingly, the Plan included several recommendations regarding pole 
attachment policies to further advance broadband deployment. Among 
other things, the Plan recommended that:
     The FCC implements rules that will lower the cost of the 
pole attachment ``make-ready'' process. For example, the FCC should 
authorize attachers to use space- and cost-saving techniques, such as 
boxing or extension arms, where practical and in a way that is 
consistent with pole owners' use of those techniques; and
     The FCC establish a comprehensive timeline for each step 
of the section 224 access process and reform the process for resolving 
disputes regarding infrastructure access.

 Discussion

    7. The National Broadband Plan recommended a number of actions 
intended to lower the cost and improve the speed of access to utility 
poles. The Commission finds that it is in the public interest to 
implement some of these recommendations immediately to clarify the 
statutory provisions governing pole attachments and to streamline the 
pole attachment process. In particular, the Commission clarifies that 
the statutory nondiscriminatory access requirement allows 
communications providers to use space- and cost-saving attachment 
techniques where practical and consistent with pole owners' use of 
those techniques. The Commission also concludes that the statutory 
right to just and reasonable access to poles includes the right of 
timely access.

Nondiscriminatory Use of Attachment Techniques

    8. The Commission concludes that the nondiscriminatory access 
obligation established by section 224(f)(1) of the Act requires a 
utility to allow cable operators and telecommunications carriers to use 
the same pole attachment techniques that the utility itself uses. For 
example, in the 2007 Pole Attachment Notice, the Commission sought 
comment on the use of techniques such as boxing and bracketing. As 
attachers have explained, boxing and bracketing can help avoid the cost 
and delay of pole replacement or make-ready work involving electrical 
facilities, and could be appropriate when practical--for example, when 
the facilities on the pole can be safely reached by a ladder or bucket 
truck--and when such techniques previously have been allowed by the 
pole owner. Similarly, the National Broadband Plan recommends that the 
Commission give attachers the right to use these techniques ``where 
practical and in a way that is consistent with pole owners' use of 
[them].''
    9. The Commission now clarifies that utilities must allow attachers 
to use the same attachment techniques that the utility itself uses in 
similar circumstances, although utilities retain the right to limit 
their use when necessary to ensure safety, reliability, and sound 
engineering. Its conclusion here is consistent with the interpretation 
of the Act in prior bureau orders.
    10. Clarifying this application of a utility's nondiscriminatory 
access obligation provides certainty that will spur competition and 
promote the deployment of a variety of technologies. As observed in the 
National Broadband Plan and by commenters, allowing attachers equal use 
of techniques like boxing and bracketing will encourage competition and 
advance the deployment of telecommunications, cable, and both wireless 
and wireline broadband services. Accordingly, any attachment technique 
that a utility uses or allows to be used will henceforth be presumed 
appropriate for use by attachers on that utility's poles under 
comparable circumstances. The Commission believes that this action will 
promote the deployment of and competition for telecommunications, 
cable, and broadband services.
    11. The Commission's holding is carefully tailored to reflect the 
legitimate needs of pole owners, as well. Some pole owners contend that 
the use of boxing and bracketing complicates pole maintenance and 
replacement, can compromise safety, and may not be consistent with 
sound engineering practices. Commenters also assert that utilities 
should be free to prohibit their use or, at the very least, to consider 
the appropriateness of such techniques on a case-by-case basis. The 
Commission agrees and emphasizes that its commitment to ensuring this 
form of nondiscriminatory access is limited by the utility's existing 
practices. If a utility believes that boxing and bracketing are 
fundamentally unsafe or otherwise incompatible with proper attachment 
practice, it can choose not to use or allow them at all. Moreover, even 
once the presumption that such techniques are appropriate has been 
triggered, a utility may rebut it with respect to any single pole or 
class of poles for reasons of safety, reliability and generally 
applicable engineering purposes.
    12. The Commission recognizes that some pole owners employ these 
techniques sparingly and may be concerned that this clarification will 
allow attachers to use boxing and attachment arms in situations where 
the pole owner itself would not. The Commission believes, however, that 
this framework will allow utilities to limit the use of these 
techniques whenever appropriate and, thereby, prevent attachers from 
employing the techniques inappropriately. The Commission's present 
holding is not designed to broaden the range of circumstances in which 
these techniques are used. Rather, it is to prevent utilities from 
denying attachers the benefits of these techniques in situations where 
the utility itself would, or has, used them.
    13. If a utility chooses to allow boxing and bracketing in some 
circumstances but not others, the limiting circumstances must be clear, 
objective, and applied equally to the utility and attaching entity. 
They should also be publicly available--on a website, for instance--
with the utility providing examples where helpful. Such ex ante 
guidance will help attachers make informed decisions and should 
facilitate the attachment process. If a utility denies an attachment 
technique that it uses for reasons not included in those made publicly 
available, it must explain its decision in writing to the requesting 
entity. In an accompanying Further Notice of Proposed Rulemaking 
(Further NPRM), FR Doc. 2010-17048, the Commission seeks comment on 
additional considerations regarding boxing and bracketing, including 
the ability of utilities to prohibit boxing and bracketing going 
forward, and whether utilities' decisions regarding the use of boxing 
and bracketing should also be made publicly available.
    14. The Commission rejects the argument that its conclusion is 
inconsistent with section 224(f)(2) of the Act, which allows electric 
utilities to deny access where there is ``insufficient capacity.'' 
Although the Commission recognizes that the Eleventh Circuit held in 
Southern Co. v. FCC that utilities are not obligated to provide access 
to a pole when it is agreed that the pole's capacity is insufficient to 
accommodate a proposed attachment, the Commission does not find that to 
be the case when boxing and bracketing are able to be used. The 
Eleventh Circuit held that the term ``insufficient capacity'' in 
section 224(f)(2) is ambiguous, and that the Commission has discretion 
in filling that ``gap in the statutory scheme.'' The court upheld the 
Commission's finding that ``insufficient capacity'' means the absence 
of usable physical space on a pole. Applying that definition here, the 
Commission finds that a pole does not have ``insufficient capacity'' if 
it could accommodate an additional attachment using

[[Page 45496]]

conventional methods of attachment that a utility uses in its own 
operations, such as boxing and bracketing. Unlike requiring a pole 
owner to replace a pole with a taller pole, these techniques take 
advantage of usable physical space on the existing pole.
    15. The Eleventh Circuit acknowledged in Southern that its decision 
was driven by the need to ``construe statutes in such a way to `give 
effect, if possible, to every clause and word of a statute.' '' By 
virtue of that decision, however, the statutory language of section 
224(f)(2) is given effect, in that utilities may deny access for 
``insufficient capacity'' when ``it is agreed that capacity on a given 
pole or other facility is insufficient.'' Thus, no particular 
interpretation of section 224(f)(2) is required in the context of 
boxing and bracketing simply to ``give effect'' to that statutory 
language.
    16. The Commission finds that its reading of the ambiguous term 
``insufficient capacity'' is a reasonable middle ground. Some utilities 
have argued that a pole has insufficient capacity--and thus access may 
be denied under section 224(f)(2)--if any make-ready work is needed. At 
the other extreme, the statute might be read to require a utility to 
completely replace a pole--an interpretation that some commenters 
oppose. The Commission sees no reason to adopt either of those extreme 
positions. Within those extremes is a range of practices, such as line 
rearrangement, overlashing, boxing, and bracketing that exploit the 
capacity of existing infrastructure in some way. Although commenters 
are divided regarding whether a pole has insufficient capacity if 
techniques such as boxing and bracketing are necessary to accommodate a 
new attachment, the Commission finds more persuasive the position that 
a pole does not have insufficient capacity if a new attachment can be 
added to the existing pole using conventional attachment techniques. 
Utilization of existing infrastructure, rather than replacing it, is a 
fundamental principal underlying the Act. As discussed above, the 
Commission finds that the Commission's interpretation still ensures 
that ``insufficient capacity'' is given some meaning, while also, to 
the greatest extent possible, helping spur competition and promoting 
the deployment of communications technologies, consistent with the 
broad ``pro competitive'' purposes of the 1996 Act, as well as the more 
specific direction of section 706 of the 1996 Act that the Commission 
promote the deployment of advanced services ``by utilizing, in a manner 
consistent with the public interest, convenience, and necessity, * * * 
measures that promote competition in the local telecommunications 
market, or other regulating methods that remove barriers to 
infrastructure investment.'' Accordingly, the Commission concludes 
that, where a pole can accommodate new attachments through boxing, 
bracketing, or similar attachment techniques, there is not 
``insufficient capacity'' within the meaning of section 224(f)(2)

Timely Access to Pole Attachments

    17. The Commission also holds that access to poles, including the 
preparation of poles for attachment, commonly termed ``make-ready,'' 
must be timely in order to constitute just and reasonable access. 
Section 224 of the Act requires utilities to provide cable television 
systems and any telecommunications carrier with nondiscriminatory 
access to any poles, ducts, conduits, and rights-of-way owned or 
controlled by it, and instructs the Commission to ensure that the terms 
and conditions for pole attachments are just and reasonable. The 
Commission previously has recognized the importance of timeliness in 
the context of specific aspects of the pole attachment process. The 
National Broadband Plan likewise recognized the importance of timely 
access to poles. The Commission thus holds that, pursuant to section 
224 of the Act, the duty to proceed in a timely manner applies to the 
entirety of the pole attachment process. Make-ready or other pole 
access delays not warranted by the circumstances thus are unjust and 
unreasonable under section 224.
    18. Section 224 also provides for the adoption of rules to carry 
out its provisions, and the Commission seeks comment in the Further 
NPRM regarding a proposed comprehensive timeline for each step of the 
pole access process. The Commission clarifies, however, that utilities 
must perform make-ready promptly and efficiently, consistent with 
evaluation of capacity, safety, reliability, and generally applicable 
engineering practices, whether or not a specific rule applies to an 
aspect of the make-ready process.

Procedural Matters

Paperwork Reduction Act

    19. This document does not contain new information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Ex Parte Procedures

    20. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented is generally required. Other requirements 
pertaining to oral and written presentations are set forth in Sec.  
1.1206(b) of the Commission's rules.

Ordering Clauses

    21. Accordingly, it is ordered that pursuant to sections 1, 4(i), 
4(j), 224, 251(b)(4), and 303 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i)-(j), 224, 251(b)(4), 303, this Order in 
WC Docket No. 07-245 is adopted.
    22. It is further ordered that, pursuant to Sec. Sec.  1.4(b)(1) 
and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), 
this Order shall be effective September 2, 2010.


Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.
[FR Doc. 2010-18904 Filed 8-2-10; 8:45 am]
BILLING CODE 6712-01-P