Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 46812-46840 [2018-19547]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 179 (Friday, September 14, 2018)]
[Rules and Regulations]
[Pages 46812-46840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19547]



[[Page 46811]]

Vol. 83

Friday,

No. 179

September 14, 2018

Part III





Federal Communications Commission





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47 CFR Part 1





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

Federal Register / Vol. 83 , No. 179 / Friday, September 14, 2018 / 
Rules and Regulations

[[Page 46812]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 17-84; WT Docket No. 17-79, FCC 18-111]


Accelerating Wireline and Wireless Broadband Deployment by 
Removing Barriers to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts a new framework for the vast majority of pole 
attachments governed by federal law by instituting a ``one-touch make-
ready'' regime, in which a new attacher may elect to perform all simple 
work to prepare a pole for new wireline attachments in the 
communications space. This new framework includes safeguards to promote 
coordination among parties and ensures that new attachers perform the 
work safely and reliably. The Commission retains the current multi-
party pole attachment process for attachments that are complex or above 
the communications space of a pole, but makes significant modifications 
to speed deployment, promote accurate billing, expand the use of self-
help for new attachers when attachment deadlines are missed, and reduce 
the likelihood of coordination failures that lead to unwarranted 
delays. The Commission also improves its pole attachment rules by 
codifying and redefining Commission precedent that requires utilities 
to allow attachers to ``overlash'' existing wires, thus maximizing the 
usable space on the pole; eliminating outdated disparities between the 
pole attachment rates that incumbent carriers must pay compared to 
other similarly-situated cable and telecommunications attachers; and 
clarifying that the Commission will preempt, on an expedited case-by-
case basis, state and local laws that inhibit the rebuilding or 
restoration of broadband infrastructure after a disaster.

DATES: Effective October 15, 2018, except for Sections III.A-E of the 
Third Report and Order, which will be effective on the later of 
February 3, 2019 or 30 days after the announcement in the Federal 
Register of OMB approval of information collection requirements 
modified in this Third Report and Order. OMB approval is necessary for 
the information collection requirements in 47 CFR 1.1411(c)(1) and (3), 
(d) introductory text, (d)(3), (e)(3), (h)(2) and (3), (i)(1) and (2), 
(j)(1) through (5), 1.1412(a) and (b), 1.1413(b), and 1.1415(b). The 
Commission will publish a document in the Federal Register announcing 
the effective date for the rules requiring OMB approval.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Michael Ray, at (202) 418-0357, 
[email protected]. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an email to [email protected] or contact Nicole Ongele 
at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order in WC Docket No. 17-84, WT Docket No. 17-79, FCC 18-
111, adopted August 2, 2018 and released August 3, 2018. The full text 
of this document is available for public inspection during regular 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street SW, Room CY-A257, Washington, DC 20554. It is available on 
the Commission's website at https://docs.fcc.gov/public/attachments/FCC-18-111A1.pdf.

Synopsis

I. Introduction

    1. In today's order, we take one large step and several smaller 
steps to improve and speed the process of preparing poles for new 
attachments, or ``make ready.'' Make-ready generally refers to the 
modification or replacement of a utility pole, or of the lines or 
equipment on the utility pole, to accommodate additional facilities on 
the pole. Consistent with the recommendations of the Broadband 
Deployment Advisory Committee (BDAC), we fundamentally shift the 
framework for the vast majority of attachments governed by federal law 
by adopting a new pole attachment process that includes ``one-touch 
make-ready'' (OTMR), in which the new attacher performs all make-ready 
work. OTMR speeds and reduces the cost of broadband deployment by 
allowing the party with the strongest incentive--the new attacher--to 
prepare the pole quickly by performing all of the work itself, rather 
than spreading the work across multiple parties. By some estimates, 
OTMR alone could result in approximately 8.3 million incremental 
premises passed with fiber and about $12.6 billion in incremental fiber 
capital expenditures. We exclude from OTMR new attachments that are 
more complicated or above the ``communications space'' of a pole, where 
safety and reliability risks can be greater, but we make significant 
incremental improvements to our rules governing such attachments to 
speed the existing process, promote accurate billing, and reduce the 
likelihood of coordination failures that cause unwarranted delay.
    2. We also adopt other improvements to our pole attachment rules. 
To provide certainty to all parties and reduce the costs of deciphering 
our old decisions, we codify and refine our existing precedent that 
requires utilities to allow ``overlashing,'' which helps maximize the 
usable space on the pole. We clarify that new attachers are not 
responsible for the costs of repairing preexisting violations of safety 
or other codes or utility construction standards discovered during the 
pole attachment process. And we eliminate outdated disparities between 
the pole attachment rates incumbent local exchange carriers (LECs) must 
pay compared to other similarly-situated telecommunications attachers.
    3. Finally, in this Third Report and Order, we make clear that we 
will preempt, on a case-by-case basis, state and local laws that 
inhibit the rebuilding or restoration of broadband infrastructure after 
a disaster.

II. Background

    4. Section 224 of the Communications Act of 1934, as amended (Act), 
grants us broad authority to regulate attachments to utility-owned and 
-controlled poles, ducts, conduits, and rights-of-way. The Act 
authorizes us to prescribe rules to: Ensure that the rates, terms, and 
conditions of pole attachments are just and reasonable; require 
utilities to provide nondiscriminatory access to their poles, ducts, 
conduits, and rights-of-way to telecommunications carriers and cable 
television systems (collectively, attachers); provide procedures for 
resolving pole attachment complaints; govern pole attachment rates for 
attachers; and allocate make-ready costs among attachers and utilities. 
The Act exempts from our jurisdiction those pole attachments in states 
that have elected to regulate pole attachments themselves. Pole 
attachments in thirty states are currently governed by our rules.
    5. Our rules take into account the many purposes of utility poles 
and how an individual pole is divided into various ``spaces'' for 
specific uses. Utility poles often accommodate equipment used to 
provide a variety of services, including electric power, telephone, 
cable, wireline broadband, and wireless. Accommodating a variety of 
services on the same pole benefits the public by minimizing unnecessary 
and costly duplication of plant for all pole

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users. Different vertical portions of the pole serve different 
functions. The bottom of the pole generally is unusable for most types 
of attachments, although providers of wireless services and facilities 
sometimes attach equipment associated with distributed antenna systems 
and other small wireless facilities to the portion of the pole near the 
ground. Above that, the lower usable space on a pole--the 
``communications space''--houses low-voltage communications equipment, 
including fiber, coaxial cable, and copper wiring. 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 equipment attachers used only the communications space; 
however, mobile wireless providers increasingly are seeking access to 
areas above the communications space, including the electric space, to 
attach pole-top small wireless facilities.
    6. When a new attacher seeks access to a pole, it is necessary to 
evaluate whether adding the attachment will be safe and whether there 
is room for it. In many cases, existing attachments must be moved to 
make room for the new attachment. In some cases, it is necessary to 
install a larger pole to accommodate a new attachment. Our current 
rules, adopted in 2011, prescribe a multi-stage process for placing new 
attachments on utility poles:
     Application Review and Survey. The new attacher applies to 
the utility for pole access. Once the application is complete, 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 may take an 
additional 15 days for large orders. Our current rules allow new 
attachers in the communications space to perform surveys when the 
utility does not meet its deadline.
     Estimate. The utility must provide an estimate of all 
make-ready charges within 14 days of receiving the results of the 
survey.
     Attacher Acceptance. The new attacher has 14 days or until 
withdrawal of the estimate by the utility, whichever is later, to 
approve the estimate and provide payment.
     Make-Ready. The existing attachers are required to prepare 
the pole within 60 days of receiving notice from the utility for 
attachments in the communications space (105 days in the case of larger 
orders) or 90 days for attachments above the communications space (135 
days in the case of larger orders as defined in 47 CFR 1.1411(g)). A 
utility may take 15 additional days after the make-ready period ends to 
complete make-ready itself. Our current rules allow new attachers in 
the communications space to perform make-ready work themselves using a 
utility-approved contractor when the utility or existing attachers do 
not meet their deadlines.
    7. A number of commenters allege that pole attachment delays and 
the high costs of attaching to poles have deterred them from deploying 
broadband. Commenters in particular point to the make-ready stage of 
our current timeline as the largest source of high costs and delays in 
the pole attachment process.
    8. As part of its commitment to speeding broadband deployment, the 
Commission established the BDAC in January 2017 to advise on how best 
to remove barriers to broadband deployment, such as delays in new pole 
attachments. Earlier this year, the BDAC recommended that the 
Commission take a series of actions to promote competitive access to 
broadband infrastructure, including adopting OTMR for simple 
attachments in the communications space and making incremental 
improvements to the Commission's pole attachment process for complex 
and non-communications space attachments.
    9. We are also committed to using all the tools at our disposal to 
speed the restoration of infrastructure after disasters. Disasters such 
as the 2017 hurricanes can have debilitating effects on communications 
networks, and one of our top priorities is assisting in the rebuilding 
of network infrastructure in the wake of such events. We have also made 
clear our commitment to ensuring that our own federal regulations do 
not impede restoration efforts.

III. Third Report and Order

    10. Based on the record in this proceeding, we amend our pole 
attachment rules to facilitate faster, more efficient broadband 
deployment. Further, we address state and local legal barriers to 
rebuilding networks after disasters. But, at the outset, we emphasize 
that parties are welcome to reach bargained solutions that differ from 
our rules. Our rules provide processes that apply in the absence of a 
negotiated agreement, but we recognize that they cannot account for 
every distinct situation and encourage parties to seek superior 
solutions for themselves through voluntary privately-negotiated 
solutions. In addition, we recognize that some states will seek to 
build on the rules that we adopt herein in order to serve the 
particular needs of their communities. As such, nothing here should be 
construed as altering the ability of a state to exercise reverse 
preemption of our pole attachment rules.

A. Speeding Access to Poles

    11. Most fundamentally, we amend our rules to allow new attachers 
(defined as a cable television system or telecommunications carrier 
requesting to attach new or upgraded facilities to a pole owned or 
controlled by a utility) with simple wireline attachments in the 
communications space to elect an OTMR-based pole attachment process 
that places them in control of the work necessary to attach their 
equipment, and we improve our existing attachment process for other, 
more complex attachments.
    12. No matter the attachment process, we encourage all parties to 
work cooperatively to meet deadlines, perform work safely, and address 
any problems expeditiously. Utilities, new attachers, and existing 
attachers agree that cooperation among the parties works best to make 
the pole attachment process proceed smoothly and safely.
1. New OTMR-Based Pole Attachment Process
    13. We adopt a new pole attachment process that new attachers can 
elect that places them in control of the surveys, notices, and make-
ready work necessary to attach their equipment to utility poles. With 
OTMR as the centerpiece of this new pole attachment regime, new 
attachers will save 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. 
A better aligning of incentives for quicker and less expensive 
attachments will serve the public interest through greater broadband 
deployment and competitive entry.
a. Applicability and Merits of OTMR Regime
    14. We adopt the BDAC's recommendation and amend our rules to allow 
new attachers to elect OTMR for simple make-ready for wireline 
attachments in the communications space on a pole. We define simple 
make-ready as the BDAC does, i.e., make-ready where existing 
attachments in the communications space of a pole could be transferred 
without any reasonable expectation of a service

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outage or facility damage and does not require splicing of any existing 
communication attachment or relocation of an existing wireless 
attachment. Commenters state that simple make-ready work does not raise 
the same level of safety concerns as complex make-ready or work above 
the communications space on a pole. There is substantial support in the 
record, both from utilities and attachers, for allowing OTMR for simple 
make-ready; and because this option will apply to the substantial 
majority of pole attachment projects, it will speed broadband 
deployment. We also follow the BDAC's recommendation and do not provide 
an OTMR option for more complex projects in the communications space or 
for any projects above the communications space at this time.
    15. Our new rules define ``complex'' make-ready, as the BDAC does, 
as transfers and work within the communications space that would be 
reasonably likely to cause a service outage or facility damage, 
including work such as splicing of any communication attachment or 
relocation of existing wireless attachments. We consider any and all 
wireless activities, including those involving mobile, fixed, and 
point-to-point wireless communications and wireless internet service 
providers to be complex. We agree with Verizon that the term ``wireless 
activities'' does not include a wireless attacher's work on its 
wireline backhaul facilities, which is not different than wireline work 
done by other attachers. While the BDAC recommendation did not 
explicitly address the treatment of pole replacements, we interpret the 
definition of complex make-ready to include all pole replacements as 
well. We agree with commenters that pole replacements are usually not 
simple or routine and are more likely to cause service outages or 
facilities damage, and thus we conclude that they should fall into the 
complex category of work.
    16. There is substantial support from commenters in the record for 
not using OTMR for complex make-ready work at this time. We agree that 
we should exclude these more challenging attachments from OTMR at this 
time to minimize the likelihood and impact of service disruption. In 
particular, cutting or splicing of existing wires on a pole has the 
heightened potential to result in a network outage. We also recognize 
that wireless attachments involve unique physical and safety 
complications that existing attachers must consider (e.g., wireless 
configurations cover multiple areas on a pole, considerably more 
equipment is involved, RF impacts must be analyzed), thus increasing 
the challenges of using an accelerated, single-party process at this 
time.
    17. The new OTMR process also will not be available for work above 
the communications space, including the electric space. Many utility 
commenters argue that work above the communications space, which mainly 
involves wireless attachments, frequently impacts electrical facilities 
and that such work should fall to the utilities to manage and complete. 
We recognize that work above the communications space may be more 
dangerous for workers and the public and that impacts of electric 
outages are especially severe. Therefore, we find at this time that the 
value of control by existing attachers and utilities over 
infrastructure above the communications space outweighs the benefits of 
allowing OTMR for these attachments. We recognize that by not providing 
an OTMR option above the communications space for the time being, we 
are not permitting OTMR as an option for small cell pole-top 
attachments necessary for 5G deployment. We take this approach because 
there is broad agreement that more complex projects and all projects 
above the communications space may raise substantial safety and 
continuity of service concerns. At the same time, we adopt rules aimed 
at mitigating the safety and reliability concerns about the OTMR 
process we adopt today, and we are optimistic that once parties have 
more experience with OTMR, either they will by contract or we will by 
rule expand the reach of OTMR. In the meantime, we find that the 
benefits of moving incrementally by providing a right to elect OTMR 
only in the communications space and only for simple wireline projects 
outweigh the costs.
    18. We agree with commenters that argue that OTMR is substantially 
more efficient for new attachers, current attachers, utilities, and the 
public than the current sequential make-ready approach set forth in our 
rules. Indeed, Corning estimates that OTMR for wireline deployments 
could result in over eight million additional premises passed with 
fiber and about $12.6 billion in incremental fiber capital 
expenditures. Although we do not at this time provide for an OTMR 
option for pole-top small cell deployment, OTMR will facilitate the 
rollout of 5G services because mobile services depend on wireline 
backhaul, and OTMR will expedite the buildout of wireline backhaul 
capacity.
    19. OTMR speeds broadband deployment by better aligning incentives 
than the current multi-party process. It puts the parties most 
interested in efficient broadband deployment--new attachers--in a 
position to control the survey and make-ready processes. The misaligned 
incentives in the current process often result in delay by current 
incumbents and utilities and high costs for new attachers as a result 
of the coordination of sequential make-ready work performed by 
different parties. As Google Fiber points out, under the current 
process, if the lowest attacher on the pole (usually the incumbent LEC) 
moves its wires and equipment to accommodate a new attachment at the 
end of the existing 60-day make-ready period, then the entire pole 
attachment process is derailed because multiple existing attachers 
still have to perform make-ready on their equipment, despite the fact 
that the make-ready deadline contemplated in our rules has lapsed. 
Because existing attachers lack an incentive to accommodate new 
attachers quickly, these delays in sequential attachment are all too 
common. OTMR eliminates this problem.
    20. We also agree with commenters that OTMR will benefit 
municipalities and their residents by reducing closures and disruptions 
of streets and sidewalks. Unlike sequential make-ready work, which 
results in a series of trips to the affected poles by each of the 
attachers and repeated disruptions to vehicular traffic, OTMR's single 
trip to each affected pole will reduce the number of such disruptions.
    21. We also agree with those commenters that argue that an OTMR-
based regime will benefit utilities. The record indicates that many 
utilities that own poles are not comfortable with their current 
responsibilities for facilitating attachments in the communications 
space. By shifting responsibilities from the utility to the new 
attacher to survey the affected poles, determine the make-ready work to 
be done, notify affected parties of the required make-ready work, and 
perform the make-ready work, our new OTMR regime will alleviate 
utilities of the burden of overseeing the process for most new 
attachments and of some of the costs of pole ownership.
    22. While giving the new attacher control drives the substantial 
benefits of an OTMR regime, it also raises concerns among some 
utilities and existing attachers. But we are not convinced by the 
arguments made by some commenters that OTMR will allow make-ready work 
to be performed by new attachers that lack adequate

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incentives to perform quality work, and therefore will increase the 
likelihood of harm to equipment integrity and public safety. As other 
commenters explain, the new attacher and its chosen contractor have an 
incentive to perform quality work in order to limit risk, keep workers 
safe, and avoid tort liability for damages caused by substandard work. 
We also adopt several safeguards herein that incentivize the new 
attacher and its contractor to perform work correctly.
    23. In addition, some commenters raise concerns that OTMR may not 
protect public safety given the real prospects for serious injuries to 
lineworkers and the public; ensure the reliability and security of the 
electric grid; and maintain the safety and reliability of existing 
attachers' facilities in order to prevent service outages. We are 
committed to ensuring that our approach to pole attachments preserves 
the safety of workers and the public and protects the integrity of 
existing electric and communications infrastructure. As an initial 
matter, we follow the BDAC's recommendation that all complex work and 
work above the communications space, where reliability and safety risks 
can be greater, will not be eligible for the new OTMR process. In 
addition, we take several steps to promote coordination among the 
parties and ensure that new attachers perform work safely and reliably, 
thereby significantly mitigating the potential drawbacks of OTMR. 
First, we require new attachers to use a utility-approved contractor to 
perform OTMR work, except when the utility does not provide a list of 
approved contractors, in which case new attachers must use qualified 
contractors. This requirement addresses existing attachers' 
apprehension about unfamiliar contractors working on their facilities 
and also guards against delays that result when utilities fail to 
maintain approved contractor lists. Second, we require new attachers to 
provide advance notice and allow representatives of existing attachers 
and the utility a reasonable opportunity to be present when surveys and 
OTMR work are performed in order to encourage new attachers to perform 
quality work and to provide the utility and existing attachers an 
opportunity for oversight to protect safety and prevent equipment 
damage. Third, we require new attachers to allow existing attachers and 
the utility the ability to inspect and request any corrective measures 
soon after the new attacher performs the OTMR work to address existing 
attachers' and utilities' concerns that the new attacher's contractor 
may damage equipment or cause an outage without their knowledge and 
with no opportunity for prompt recourse. However, we decline to adopt 
NCTA and CWA's request that we find that new attachers should be 
responsible for any expenses associated with the costs incurred by 
existing attachers if they decide to double-check the work performed by 
the new attacher's contractors, including any post-make-ready 
inspections.
    24. Finally, as an additional safeguard to prevent substantial 
service interruptions or danger to the public or workers, we allow 
existing attachers and utilities to file a petition with the 
Commission, to be considered on an expedited, adjudicatory case-by-case 
basis, requesting the suspension of a new attacher's OTMR privileges 
due to a pattern or practice of substandard, careless, or bad faith 
conduct when performing attachment work. Such petition shall be placed 
on public notice, and the new attacher will have an opportunity to 
address the allegations of substandard, careless, or bad faith conduct 
and to explain how it plans to eliminate any such conduct in the 
future. In those instances where the Commission finds that suspension 
is warranted, the Commission will suspend the privileges for a length 
of time appropriate based on the conduct at issue, up to and including 
permanent suspension.
    25. We disagree with NCTA's contention that these safeguards do not 
adequately protect existing attachers from substandard work performed 
on their equipment by third-party contractors. At every step in the 
OTMR process, the safeguards we adopt give existing attachers an 
opportunity to monitor third-party work and raise any concerns they 
might have--either to the new attacher or to the utility. Far from 
being voiceless in their concerns about third-party work, as NCTA 
contends, existing attachers can take their reservations about new 
attacher workmanship and contractor qualifications to the utility, 
which, as the pole owner and an attacher on the pole, has the incentive 
to act on such concerns.
    26. We recognize that we cannot fully align the incentives of new 
attachers with those of existing attachers and utilities, but we find 
that the significant benefits of faster, cheaper, more efficient 
broadband deployment from this new OTMR process outweigh any costs that 
remain for most pole attachments. We expect the OTMR regime we adopt 
today to speed broadband deployment without substantial service 
interruptions or danger to the public or workers. To the extent that it 
exceeds our expectations, we may consider expanding the availability of 
our OTMR process where it is safe to do so. Conversely, if new 
attachers fail to prevent physical harm or outages, we will not 
hesitate to revisit whether to maintain an OTMR option.
    27. We note that even where an attachment qualifies for our new 
OTMR process, there may be instances where a new attacher prefers to 
use our existing pole attachment timeline because, for instance, the 
new attacher prefers a process where existing attachers are responsible 
for moving their own equipment rather than the new attacher. Therefore, 
we permit new attachers to elect our existing pole attachment regime 
(as modified herein) rather than the new OTMR process.
    28. Legal Considerations. We reject the contentions of certain 
cable commenters that OTMR deprives an existing attacher of its 
statutory right to notice and an opportunity to add to or modify its 
own existing attachment before a pole is modified or altered and thus 
violates Section 224(h) of the Act. Section 224(h) provides, in 
relevant part, that ``[w]henever the owner of a pole . . . intends to 
modify or alter such pole . . . the owner shall provide written 
notification of such action to any entity that has obtained an 
attachment . . . so that such entity may have a reasonable opportunity 
to add to or modify its existing attachment.'' We agree with Verizon 
that there is no statutory right under Section 224(h) for an existing 
attacher to add to or modify its existing attachment when a new 
attacher is performing the make-ready. On its face Section 224(h) only 
applies to situations where the pole owner modifies or alters the pole, 
and thus is not implicated under the OTMR approach we adopt today: 
Under our approach new attachers, not pole owners, perform OTMR work.
    29. We also find that OTMR does not constitute a government taking 
of existing attachers' property that requires just compensation under 
the Fifth Amendment to the U.S. Constitution, and we reject arguments 
to the contrary. As an initial matter, OTMR is not a ``permanent 
physical occupation'' of an existing attacher's property; at most it 
gives contractors of the new attacher a temporary right to move and 
rearrange attachments. In such situations, where a regulation falls 
short of eliminating all economically beneficial use of the property at 
issue, courts apply the balancing test of Penn Central Transportation 
Co. and evaluate the economic impact of the regulation on the property 
owner, the extent to which the regulation has interfered with

[[Page 46816]]

``distinct investment-backed expectations'' and ``the character of the 
government action.'' Applying that test here makes clear that OTMR 
effects no taking. We are limiting the application of OTMR to simple 
work (i.e., where outages are not expected to occur) on wireline 
attachments in the communications space performed by qualified 
contractors, and we have taken steps to ensure that the OTMR process 
limits adverse effects on existing attachers' networks, which means any 
economic impact on existing attachers and any interference with 
investment expectations will be limited. Furthermore, OTMR represents 
at most an incidental movement of existing attachers' property. To the 
extent that movement affects existing attachers' or utilities' 
property, such impact is incidental and not our purpose, which is to 
promote broadband deployment and further the public interest.
b. Contractor Selection Under the OTMR Process
    30. We adopt rules requiring attachers using the OTMR process to 
use a utility-approved contractor if the utility makes available a list 
of qualified contractors authorized to perform surveys and simple make-
ready work in the communications space. If there is no utility-approved 
list of contractors, then we adopt rules that require OTMR attachers to 
use a contractor that meets key safety and reliability criteria, as 
recommended by the BDAC. The record suggests that inconsistent updating 
of approved contractor lists by utilities, as well as a lack of uniform 
contractor qualification and selection standards, leads to delays when 
new attachers seek to exercise their self-help remedy and perform make-
ready work on a pole. At the same time, existing attachers are 
understandably apprehensive about having unfamiliar contractors work on 
and potentially damage their facilities. The process we adopt addresses 
both of these problems by preventing delays in the engagement of 
contractors and by establishing clear minimum qualifications.
    31. Utility-Approved Contractors. We strongly encourage utilities 
to publicly maintain a list of approved contractors qualified to 
perform surveys and simple make-ready work as part of the OTMR process. 
However, we do not require utilities to do so. Utilities have a strong 
interest in protecting their equipment and many have indicated their 
interest in deciding which contractors can perform work on their poles. 
At the same time, many utilities have indicated that they do not have 
the expertise to select contractors qualified to work in the 
communications space and would prefer to defer to the new attachers' 
choice of contractors. Therefore, we give the utilities the option of 
maintaining a list of approved contractors for OTMR work but do not 
impose a mandate.
    32. If the utility maintains a list, new and existing attachers may 
request that contractors meeting the qualifications set forth below be 
added to the utility's list and utilities may not unreasonably withhold 
consent to add a new contractor to the list. We adopt this requirement 
so that a utility that maintains a list does not have the ability to 
prevent deployment progress, which would be contrary to our goal in 
adopting OTMR. 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.
    33. To help ensure public and worker safety and the integrity of 
all parties' equipment, we conclude that any contractors that perform 
OTMR must meet certain minimum safety and reliability standards. We 
require utilities to ensure that contractors on the approved list meet 
the following minimum requirements, enumerated by the BDAC, for 
performing OTMR work: (1) Follow published safety and operational 
guidelines of the utility, if available, but if unavailable, follow the 
National Electrical Safety Code (NESC) guidelines; (2) read and follow 
licensed-engineered pole designs for make-ready work, if required by 
the utility; (3) follow all local, state, and federal laws and 
regulations including, but not limited to, the rules regarding 
Qualified and Competent Persons under the requirements of the 
Occupational Safety and Health Administration (OSHA) rules; (4) meet or 
exceed any uniformly applied and reasonable safety and reliability 
thresholds set and made available by the utility, e.g., the contractor 
cannot have a record of significant safety violations or worksite 
accidents; and (5) be adequately insured or be able to establish an 
adequate performance bond for the make-ready work it will perform, 
including work it will perform on facilities owned by existing 
attachers. We adopt NCTA's proposed clarification that the make-ready 
for which the contractor must be adequately insured or establish an 
adequate performance bond includes any work it will perform on 
facilities owned by existing attachers. These requirements collectively 
will materially reduce safety and reliability risks, as well as delays 
in the completion of pole attachments, by allowing one qualified 
contractor to perform all necessary make-ready work instead of having 
multiple contractors make multiple trips to the pole to perform this 
work.
    34. New Attacher Selection of Contractors. Where there is no 
utility-approved list of qualified contractors or no approved 
contractors available within a reasonable time period, then, consistent 
with the BDAC recommendation, new attachers proceeding with OTMR may 
use qualified contractors of their choosing. To maximize options for 
new attachers, we allow a new attacher entitled to select a contractor 
that does not appear on a utility's list to use its own employees to 
perform pole attachment work, so long as those employees meet all 
qualifications for contractors set forth herein. Thus, we use the term 
``contractor'' as a term of art that encompasses the new attacher's 
employees. The new attacher must certify to the utility (either in the 
three-business-day advance notice for surveys or in the 15-day make-
ready notice) that the named contractor meets the same five minimum 
requirements for safety and reliability discussed above.
    35. The utility may mandate additional commercially reasonable 
requirements for contractors relating to issues of safety and 
reliability, but such requirements must clearly communicate the safety 
or reliability issue, be non-discriminatory, in writing, and publicly 
available (e.g., on the utility's website). Ideally, such requirements 
for contractors would also be found in the pole attachment agreement 
between the utility and the new attacher. This condition will guard 
against pole damage and resulting outages and safety hazards due to 
particular local conditions, while ensuring that utilities do not use 
these additional requirements as a roadblock to deployment. We also 
grant utilities the flexibility to mandate such additional commercially 
reasonable requirements for contractors because utilities are best 
positioned to ensure that any additional state or local legal 
requirements are complied with and any additional environmental or 
pole-specific factors are accounted for.
    36. Where there is no utility-approved list of contractors, we 
adopt rules, consistent with the BDAC's recommendation, allowing the 
utility to veto any contractor chosen by the new attacher. Utilities 
must base any veto on reasonable safety or reliability concerns related 
to the contractor's ability to meet one or more of the minimum 
qualifications described earlier in this

[[Page 46817]]

subsection or on the utility's previously posted safety standards. We 
agree with ACA that we should prevent unwarranted vetoes by requiring 
the utility to have a ``reasonable'' basis for vetoing the new 
attacher's contractor. The utility also must make its veto within 
either the three-business-day notice period for surveys or the 15-day 
notice period for make-ready. In reaching this determination, we agree 
with the Coalition of Concerned Utilities that the safety and 
reliability of the pole is extremely important and, as a result, 
utilities should be able to disqualify contractors that raise concrete 
workmanship dangers. To avoid an ongoing dispute between the utility 
and the new attacher that results in the substantial delay of the pole 
attachment, any veto by the utility that conforms with the requirements 
we set forth is determinative and final. When vetoing an attacher's 
chosen contractor, however, the utility must identify at least one 
qualified contractor available to do the work.
    37. Existing Attachers. We decline to grant existing attachers the 
right to veto or object to the inclusion of a contractor on the 
utility-approved list or a new attacher's contractor selection. We also 
decline suggestions that we grant existing attachers the right to 
disqualify a contractor if the contractor does not meet the minimum 
qualifications for contractors we establish or if the existing attacher 
previously terminated the contractor for poor performance or violations 
of federal, state, or local law. The rules we adopt should alleviate 
some commenters' concern that depriving existing attachers of a right 
to input in the contractor selection process could result in serious 
harm to existing facilities on the pole. First, only simple make-ready 
work is subject to the OTMR process; existing attachers can perform 
their own make-ready work in more challenging and dangerous situations. 
Further, the authority we grant utilities to develop a mandatory list 
and veto a new attacher's contractor selection for OTMR work should 
help mitigate the risk to the safety and reliability of the attachments 
subject to make-ready work by the new attacher's contractor. As several 
commenters point out, in many markets, contractors approved by the 
utilities may already be the same as those approved by existing 
attachers. Additionally, regardless of whether the utility intervenes, 
contractors must meet the five criteria recommended by the BDAC, which 
help to ensure safe, reliable, and quality work. Finally, we conclude 
that we have put in place adequate protections elsewhere in the new 
OTMR process, in addition to the protections we identify here, to 
protect the network reliability and safety concerns of existing 
attachers.
c. OTMR Pole Attachment Timeline
    38. One substantial benefit of the OTMR process is that it allows 
for a substantially shortened timeline for application review and make-
ready work. We estimate that new attachers using the new OTMR process 
will save more than three months from application to completion as 
compared to the process provided for under our existing rules.
(i) Conducting a Survey
    39. Our OTMR regime saves significant time by placing the 
responsibility on the new attacher (rather than the utility) to conduct 
a survey of the affected poles to determine the make-ready work to be 
performed. Under an OTMR regime, the survey will come near the 
beginning of the process (after the new attacher negotiates with the 
utility for pole access and chooses a contractor to perform the work 
required for attachment) to enable the new attacher to determine 
whether any make-ready is required and, if so, what type of make-ready 
(simple or complex) is involved. The results of the survey typically 
will be included in the new attacher's pole attachment application.
    40. To help ensure that the new attacher handles third-party 
equipment with sufficient care and makes an accurate determination of 
the work to be done to prepare the poles for its new attachments, our 
new rules require new attachers to permit representatives of the 
utility and any existing attachers potentially affected by the proposed 
work to be present for the survey. We also require new attachers to use 
commercially reasonable efforts to provide the utility and existing 
attachers at least three business days of advance notice of the date, 
time, and location of the survey and the name of the contractor 
performing the survey. Despite claims to the contrary, we agree with 
the BDAC that advance notice of three business days from the new 
attacher strikes the right balance between providing sufficient time to 
accommodate coordination with the utility and existing attachers and 
the need to keep the pole attachment process moving forward in a timely 
manner. Also, as the BDAC found in the context of utility surveys, 
joint surveys help address the potential safety and equipment damage 
risks raised by existing attachers. Existing attachers can raise any 
objections about the survey findings either with the new attacher or 
with the utility, which can make final determinations on survey results 
for reasons of capacity, safety, reliability, and generally applicable 
engineering purposes. To prevent coordination problems that may invite 
delay, we do not require a new attacher to set a date for the survey 
that is convenient for the utility and existing attachers. In the case 
of reasonable scheduling conflicts, however, we encourage the parties 
to work together to find a mutually-agreeable time for the survey. We 
also encourage all attachers to provide a point of contact publicly 
(e.g., on their websites) so that new attachers know whom to contact 
when providing notices required under the OTMR regime.
    41. We recognize that new attachers may need to rely upon utilities 
for existing attacher contact information to make the notifications, 
and utilities presumably have access to such information through pole 
attachment agreements and/or previous make-ready notifications. 
Therefore, if a new attacher requests contact information for existing 
attachers from the utility for use in this notification process, the 
utility must provide any such contact information it possesses. We 
adopt this requirement so that a new attacher can fulfill its 
notification obligation when it does not have a direct relationship 
with existing attachers. We find a utility's failure to keep adequate 
documentation on existing attachments is insufficient justification for 
eliminating the advance notice requirement for surveys.
(ii) Notifying the Utility of the Intent To Use OTMR
    42. Consistent with the BDAC's recommendation, we require the new 
attacher to ensure that its contractor determines whether make-ready 
work identified in the survey is simple or complex, subject to a 
utility's right to reasonably object to the determination. Because all 
utilities have strong incentives to promote safety and the structural 
integrity of their poles, we agree with AT&T and Windstream that all 
utilities, including incumbent LEC pole owners, should have the ability 
to object to the simple/complex determination on poles that the utility 
owns. For purposes of clarity and certainty, we require a new 
attacher--if it wants to use the OTMR process and is eligible to do so 
based on the survey--to elect OTMR in its pole attachment application 
and to identify in its application the simple make-ready work to be 
performed. Some commenters oppose letting the new attacher's contractor 
make the simple

[[Page 46818]]

versus complex determination. However, we agree with those commenters 
that argue that the new attacher's contractor has the incentive to make 
the correct determination in order to (1) avoid liability for damages 
caused by an incorrect choice; (2) limit risk; and (3) in the case of 
third-party contractors, preserve relationships with all attachers, as 
well as with the utility, to obtain future work. As a result, we find 
it is more likely that approved contractors will be conservative in 
their determination of whether work is simple or complex. In addition, 
we agree with Google Fiber that having a contractor chosen from a 
neutral utility-approved list, where such a list is available, 
determine whether make-ready is simple or complex means neither the 
incumbent nor the new attacher has an opportunity to inject anti-
competitive bias into the process.''
    43. We require a utility that wishes to object to a simple make-
ready determination to raise such an objection during the 15-day 
application review period (or within 30 days in the case of larger 
orders). We decline suggestions that we extend the objection right to 
existing attachers because we agree that doing so could provide 
existing attachers the opportunity to slow a new attacher's deployment 
by over-designating make-ready work as complex. The existing attacher 
always may voice its concerns to the new attacher and to the utility, 
which can veto the determination of a new attacher's contractor and 
which has an incentive as the pole owner and as an attacher to ensure 
that work is classified correctly.
    44. Also, while the BDAC did not address the timing of an objection 
to the simple/complex determination in its OTMR recommendation, we find 
that setting a time limit for the objection will reduce confusion and 
foster quicker deployment. We find 15 days to be sufficient because the 
utility will have the right to accompany the new attacher's contractor 
on the survey when the contractor makes the simple/complex 
determination, so the utility will have ample opportunity to have the 
information it needs to determine whether to object before the 
deadline.
    45. If the utility objects to the new contractor's determination 
that work is simple, then the work is deemed complex--the utility's 
objection is final and determinative so long as it is specific and in 
writing, includes all relevant evidence and information supporting its 
decision, and provides a good faith explanation of how such evidence 
and information relate to a determination that the make-ready is not 
simple. This approach is consistent with other decisions left to a 
utility during our pole attachment process. We find that making the 
utility's determination final is appropriate because it avoids 
protracted disputes that could slow deployment. However, we caution 
utilities that if they make such a decision in a manner inconsistent 
with the requirements we set forth, for instance without adequate 
support or in bad faith, then new attachers can avail themselves of our 
complaint process to address such behavior.
    46. If the new attacher determines that the make-ready involves a 
mix of simple and complex work (or involves work above the 
communications space), then we allow the new attacher discretion to 
determine whether to bifurcate the work. If the new attacher prefers to 
complete the simple make-ready work under the OTMR process while it 
waits for complex work/work above the communications space to run its 
course through the longer existing process, then it may do so. A new 
attacher electing to bifurcate the work must submit separate 
applications for the simple and complex work and work above the 
communications space. If the new attacher prefers that its entire 
project (both simple and complex work and work above the communications 
space) follow the existing process, or if the new attacher does not 
view bifurcation as feasible, then it may employ the existing process 
for the entire project.
    47. In response to a request from Xcel/Alliant, we clarify ``what 
procedures should be followed when it is discovered in the field while 
make-ready is being performed that the work on a particular pole is in 
fact complex, or if it is found that conditions in the field will 
prevent the OTMR contractor from performing the make-ready work in a 
`simple' manner, if at all.'' In such situations, we find that if the 
new attacher or the utility discovers that work initially classified by 
the new attacher and approved by the utility as simple actually turns 
out to be complex, then that specific work must be stopped (although 
the new attacher may choose to continue OTMR work on other poles to the 
extent that such work is simple). The determining party must notify the 
other party of its determination and the affected poles; the 
attachments at issue will then be governed by the non-OTMR timeline, 
and the utility should provide notice to existing attachers of make-
ready work as soon as reasonably practicable.
(iii) Review of Application for Completeness
    48. In the interest of speeding application review, we adopt a rule 
to specify that under the OTMR regime, a pole attachment application is 
complete if it provides the utility with the information necessary 
under the utility's procedures, as specified in a master service 
agreement or in publicly-available requirements at the time of 
submission of the application, to make an informed decision on the 
application. We also establish a timeline for the utility's review of 
the application for completeness. We adopt these requirements to 
address attachers' complaints--made in response to the Commission's 
request in the Wireline Infrastructure Notice for comments on ways to 
streamline and accelerate the pole attachment timeline--that ``pole 
owners are not transparent about telling applicants all information 
that is required to be included on applications at the time of their 
submission,'' often resulting in delays to the pole attachment process 
while the pole owner requests additional information over a series of 
weeks or months.
    49. While the current definition of a complete application only 
requires ``information necessary under [the utility's] procedures,'' 
our revised definition provides more transparency about what an 
attacher must include in its application, because the master service 
agreement or publicly-available requirements must be available to new 
attachers as they prepare their application.
    50. To prevent unnecessary delays in starting the pole attachment 
process, we adopt rules consistent with the BDAC-recommended timeline 
for a utility to determine whether a pole attachment application is 
complete:
     A utility has 10 business days after receipt of a pole 
attachment application in which to determine whether the application is 
complete and notify the attacher of that decision.
     If the utility notifies the attacher that the attacher's 
application is not complete within the 10 business-day review period, 
then the utility must specify where and how the application is 
deficient.
     If there is no response by the utility within 10 business 
days, or if the utility rejects the application as incomplete but fails 
to specify any deficiencies in the application, then the application is 
deemed complete.
     If the utility timely notifies the new attacher that the 
application is incomplete and specifies deficiencies, a resubmitted 
application need only

[[Page 46819]]

supplement the previous application by addressing the issues identified 
by the utility, and the application shall be deemed complete within 
five business days after its resubmission, unless the utility specifies 
which deficiencies were not addressed and how the resubmitted 
application did not sufficiently address the utility's reasons.
     The new attacher may follow this resubmission procedure as 
many times as it chooses, so long as in each case it makes a bona fide 
attempt to correct the issues identified by the utility, and in each 
case the deadlines set forth herein apply to the utility's review.
    51. We find that incorporating a specific timeline into our rules 
provides all parties with some predictability about the start of the 
OTMR process and avoids unnecessary delays that arise when utilities do 
not formally accept an application in a timely manner. We find that the 
timeline we adopt balances the interests of new attachers in the speedy 
processing of applications and of utilities in needing sufficient time 
to review the applications. We require utilities to specify the 
deficiencies in pole attachment applications within 10 business days of 
receipt so that the new attachers have the information necessary to 
address those deficiencies in a timely fashion. We also believe this 
gives incentives for utilities generally to communicate to prospective 
applicants concerning what is needed for an application because doing 
so will aid in the utility's formal review process. We adopt a ``deemed 
grant'' remedy to prevent delays, and we adopt a shorter timeline for 
second and further reviews because we expect utilities' review to be 
cabined to a more limited number of issues that it previously 
identified. We also encourage utilities that receive complete 
applications to respond promptly and affirmatively confirm that 
applications are complete, rather than wait for the 10 business-day 
review period to lapse. In response to a concern raised by Crown 
Castle, we clarify that the utility cannot delay its determination of 
whether an application is complete by seeking to negotiate rates, 
terms, and conditions in the pole attachment agreement that 
unreasonably deviate from those assured by the rules. Such bad faith 
practices intended to delay the start of the pole attachment timeline 
are prohibited as contrary to our goal of speedy broadband deployment.
(iv) Application Review
    52. For OTMR attachments, we shorten the time period within which a 
utility must decide whether to grant a complete application from 45 
days to 15 days for standard requests and from 60 days to 30 days for 
larger requests as defined under 47 CFR 1.1411(g). While the BDAC did 
not address this issue, we find that because the new attacher (rather 
than the utility) will be doing most of the pre-make-ready work under 
OTMR (e.g., surveys, notices), it is appropriate to adopt a shorter 
timeline for the utility to review the application. Furthermore, 
because the utility has the right to specify the information it 
requires the new attacher to put in the application and has the ability 
to reject the application (multiple times if necessary) before 
accepting it for review, we find 15 days should be sufficient for the 
utility to conduct its review. If the utility needs additional time, 
then it may work with the new attacher to negotiate a new schedule that 
timely resolves these issues. We retain in the OTMR context our 
preexisting requirement that if a utility denies an application, the 
utility's denial must be specific and include all relevant evidence and 
information supporting its denial and must explain how such evidence 
and information relate to a denial of access for reasons of safety, 
reliability, lack of capacity, or engineering standards.
(v) Make-Ready
    53. The new attacher may proceed with OTMR by giving 15 days' prior 
written notice to the utility and all affected existing attachers. To 
avoid unnecessary delays, we conclude that the new attacher may provide 
the required 15-day notice any time after the utility deems its pole 
attachment application complete. Thus, the 15-day notice period may run 
concurrently with the utility's evaluation of whether to grant the 
application. If, however, the new attacher cannot start make-ready work 
on the date specified in its 15-day notice (e.g., because its 
application has been denied or it is otherwise not ready to commence 
make-ready), then the new attacher must provide 15 days' advance notice 
of its revised make-ready date.
    54. Although the BDAC recommendation provides for 25 days prior 
written notice for OTMR, we find that 15 days strikes a reasonable 
balance between promoting fast access to utility poles (one of the core 
goals of OTMR) and providing sufficient time for existing attachers and 
the utility to work with the new attacher to arrange to be present when 
OTMR is being performed on their equipment. Furthermore, the 25-day 
notice period recommended by the BDAC for OTMR is only five days 
shorter than the 30-day period recommended by the BDAC for existing 
attachers to complete complex make-ready work, which is not much time 
savings for an OTMR process that we adopt for simple work that is 
unlikely to cause safety issues. We also disagree with NCTA's request 
for a longer notice period for larger projects; because this is merely 
a notice requirement and does not require action on the part of the 
existing attacher or utility, there is no need for a longer notice 
period for larger projects.
    55. To keep all affected parties informed about the new attacher's 
progress, and consistent with the BDAC's recommendation, we require the 
new attacher to provide representatives of the utility and existing 
attachers with the following information in the 15-day advance notice: 
(1) The date and time of the make-ready work; (2) a description of the 
make-ready work involved; (3) a reasonable opportunity to be present 
when the make-ready work is being performed; and (4) the name of the 
contractor chosen by the new attacher to perform the make-ready work. 
As is the case for survey notifications, if a new attacher requests 
contact information for existing attachers from the utility for use in 
this notification process, the utility must provide any such contact 
information it possesses. Allowing existing attachers and the utility a 
reasonable opportunity to be present when OTMR work is being done 
addresses the concerns of existing attachers that third-party 
contractors may not take proper care when performing simple make-ready 
work on their equipment. We also adopt the advance notice requirements 
to allow the utility and existing attachers, if they so choose, to 
alert their customers that work on their equipment is forthcoming. In 
addition, providing the name of the new attacher's OTMR contractor 
allows existing attachers to notify the utility and the utility to 
object if the contractor is not properly qualified.
    56. We emphasize that the 15 days is only a notice period before 
the new attacher begins make-ready work; it is not an opportunity for 
existing attachers or the utility to complete make-ready work on their 
equipment and then bill the new attacher for that work. However, we 
clarify that we are not precluding existing attachers and the utility 
from doing non-reimbursable work on their equipment during the 15-day 
notice period. We find that, contrary to the requests of certain 
attachers, providing an existing attacher an affirmative right to 
perform make-ready and bill the new attacher for such work during the 
notice period would undermine one of the main benefits of

[[Page 46820]]

OTMR: Decreasing make-ready costs for new attachers.
    57. We also adopt the BDAC recommendation that we require the new 
attacher to notify an affected entity immediately if the new attacher's 
contractor damages another company's equipment or causes an outage that 
is reasonably likely to interrupt the provision of service. We extend 
this requirement to damage to the utility's equipment as well. Upon 
receiving notice of damaged equipment or a service outage, the utility 
or existing attacher can either complete any necessary remedial work 
and bill the new attacher for the reasonable costs related to fixing 
the damage or outage or require the new attacher to fix the damage or 
outage at its expense immediately following notice from the utility or 
existing attacher. Upon notice from the existing attacher or the 
utility to fix damages or an outage caused by the new attacher, the new 
attacher must complete the repair work before it can resume its make-
ready work. Where the utility or the existing attacher elects to fix 
the damage or outage, the new attacher can only continue with make-
ready work if it does not interfere with the repair work being 
conducted by the utility or existing attacher. This requirement for 
immediate notification and repair of damages or outages caused by a new 
attacher's contractor addresses the concern of existing attachers and 
utilities that the new attacher's contractor may damage equipment or 
cause an outage that would harm consumers or threaten safety without 
the existing attacher's or utility's knowledge or an opportunity for 
prompt recourse.
(vi) Post Make-Ready
    58. We agree with commenters that suggest that the OTMR process 
should include time for post-make-ready inspections and the quick 
repair of any defective make-ready work. To give existing attachers and 
the utility an opportunity to correct any errors and to further 
encourage quality work by the new attacher, we adopt the BDAC's 
recommendation that the new attacher must provide notice to the utility 
and affected existing attachers within 15 days after the new attacher 
has completed OTMR work on a particular pole. To minimize paperwork 
burdens, the new attacher may batch in one post-make-ready notice all 
poles completed in a particular 15-day span. For example, if a pole 
attachment project took 30 days to complete, the new attacher could 
provide one notice to the existing attacher with the first 15 days' 
worth of work and a second notice on day 30 with the remainder of the 
work. In its post-make ready notice, the new attacher must provide the 
utility and existing attachers at least a 90-day period for the 
inspection of make-ready work performed by the new attacher's 
contractors. This post-make-ready inspection and remedy requirement 
gives the utility and existing attachers their own opportunity to 
ensure that work has been done correctly.
    59. To allow new attachers to timely address allegations of needed 
repair work, we adopt rules requiring that within 14 days after any 
post-make ready inspection, the utility and the existing attachers 
notify the new attacher of any damage or any code (e.g., safety, 
electrical, engineering, construction) violations caused to their 
equipment by the new attacher's make-ready work and provide adequate 
documentation of the damage or the violations. The utility or existing 
attacher can either complete any necessary remedial work and bill the 
new attacher for the reasonable costs related to fixing the damage or 
violations, or require the new attacher to fix the damage or violations 
at its expense within 14 days following notice from the utility or 
existing attacher. We provide the utility or existing attacher options 
regarding repair to maximize their flexibility in addressing issues for 
which they are not at fault. The safeguards we establish in the OTMR 
process collectively give the new attacher the incentive to ensure its 
contractor performs work correctly; we therefore expect the invocation 
of this remediation procedure to be infrequent.
    60. We disagree with Verizon's argument that we should refrain from 
establishing a timeframe for the utility and existing attachers to 
inspect completed make-ready work because deadlines for raising claims 
about property damage are ``typically governed by state contract or 
property law.'' We find it appropriate to establish a post-inspection 
timeline at the federal level so that parties can identify any 
defective make-ready work that has the potential to cause harm or 
injury to persons or equipment and remedy it as soon as possible. We 
also find that the deadlines we establish for the post-make-ready 
timeline give the existing attachers and the utility time that is 
sufficient but not unnecessarily long to inspect the work and give the 
new attacher reasonable time to fix any equipment damage and to rectify 
any potentially unsafe conditions.
d. Indemnification
    61. We conclude that new attachers should be responsible and liable 
for any damage or non-compliance resulting from work completed by the 
new attacher during OTMR. The OTMR rules we adopt provide a process for 
existing attachers to timely identify damage to their equipment that 
occurs during the OTMR process and to arrange for its repair. To the 
extent that process proves insufficient, injured parties may seek 
judicial relief based on State law claims.
    62. We find, consistent with the BDAC's recommendation, that 
federally-imposed indemnification is not necessary. The record 
indicates that the existing legal regime, including contract and tort 
law, provides sufficient protection for existing attachers without 
broad federal regulatory intrusion. The repair process we adopt in our 
OTMR rules adds an additional layer of protection. With these other 
remedies already available, we disagree with NCTA that a Commission-
mandated indemnification requirement is the ``only practical mechanism 
by which an existing attacher can hold a new attacher or its contractor 
accountable for the consequences of performing shoddy work'' in 
situations where there is no privity of contract between the parties or 
a statutory requirement to hold harmless existing attachers. Rather, we 
find that adding a federal layer of indemnification would not be 
efficient or assist in speeding broadband deployment. Further, we agree 
with Google Fiber that indemnification obligations are typically not 
one-size-fits-all provisions, such that it would be difficult to craft 
a regulatory solution that is workable in all situations.
2. Targeted Changes to the Commission's Existing Pole Attachment 
Process
    63. To speed broadband deployment for new attachments that are not 
eligible for our OTMR process and for new attachers that prefer not to 
use the OTMR process, we make targeted changes to the rules governing 
the existing pole attachment timeline. Our targeted changes include:
     Revising the definition of a complete pole attachment 
application and establishing a timeline for a utility's determination 
whether an application is complete;
     Requiring utilities to provide at least three business 
days' advance notice of any surveys to the new attacher and each 
existing attacher;
     Establishing a 30-day deadline for completion of all make-
ready work in the communications space;
     Eliminating the 15-day utility make-ready period for 
communications space attachments;

[[Page 46821]]

     Streamlining the utility's notice requirements;
     Enhancing the new attacher's self-help remedy by making 
the remedy available for surveys and make-ready work for all 
attachments anywhere on the pole in the event that the utility or the 
existing attachers fail to meet the required deadlines;
     Revising the contractor selection process for a new 
attacher's self-help work; and
     Requiring utilities to provide detailed estimates and 
final invoices to new attachers regarding make-ready costs.
    64. We agree with numerous commenters that with respect to the 
Commission's current pole attachment timeline, we should refrain from 
adopting wholesale changes at this time. As a result, while we make 
changes aimed at speeding broadband deployment where the record 
indicates such changes would be workable and beneficial, we leave 
unchanged the pole attachment deadlines for the existing application 
review/survey, estimate, and acceptance stages.
a. Creating a More Efficient Pole Attachment Timeline
(i) Review of Application for Completeness
    65. For the reasons discussed above, we adopt rules reflecting the 
same improvements to our definition of a complete pole attachment 
application and the same completeness review process as we do for the 
OTMR timeline, subject to one change to adjust for the fact that the 
utility conducts the survey under the non-OTMR process. We adopt the 
BDAC's recommendation and revise our existing pole attachment rules to 
define an application as complete if it provides the utility with the 
information necessary under its procedures, as specified in a master 
service agreement or in publicly-available requirements at the time of 
submission of the application, to begin to survey the affected poles. 
While the current definition of a complete application only requires 
information necessary under the utility's procedures, this revised 
definition requires more transparency on behalf of the utility as the 
master service agreement and public requirements will be available to 
new attachers as they prepare their applications. In addition, to 
prevent unnecessary delays in starting the pole attachment process, we 
adopt the same BDAC-recommended timeline as in our OTMR process for a 
utility to determine whether a pole attachment application is complete. 
We agree with ACA that providing a specific timeline for determining 
completeness offers all parties predictability about the start of the 
OTMR process and avoids unnecessary delays. We also follow the BDAC 
OTMR recommendation that ties deadlines to receipt of the application 
by the utility, because the utility cannot begin to review the 
application until it has been received.
(ii) Review of Whether To Grant Complete Application and Survey
    66. We decline to shorten the 45-day period in our existing rules 
during which the utility must review a complete pole attachment 
application and survey the affected poles for non-OTMR projects. In so 
doing, we reject proposals by some attachers that we shorten the 
application review and survey stage because we agree with utility 
commenters that the existing 45-day timeframe accounts for demands on 
existing workforce, safety concerns, volume of pole attachment 
applications, and timing constraints. We also decline to adopt ACA's 
proposal that a pole attachment application be deemed granted if the 
utility fails to act on an application within the 45-day timeframe. 
Failure by the utility to act on an application within the prescribed 
time period is a violation of our rules and, accordingly, use of our 
recently-adopted expedited pole access complaint procedure is available 
as a remedy. We also clarify that nothing in our rules precludes a 
utility from using a new attacher to conduct a survey of the affected 
poles, at the utility's expense, consistent with the requirements in 47 
CFR 1.1411(i)(1).
    67. To make the survey and application review process more 
efficient and transparent, however, we adopt a change recommended by 
the BDAC and several commenters to require utilities to facilitate 
survey participation by new and existing attachers. Specifically, in 
performing a field inspection as part of any pre-construction survey, 
we modify our rules to require a utility to permit the new attacher and 
any existing attachers potentially affected by the new attachment to be 
present for any pole surveys. We require the utility to use 
commercially reasonable efforts to provide at least three business 
days' advance notice of any surveys to the new attacher and each 
existing attacher, such notice to include the date, time, and location 
of the survey, and the name of the contractor performing the survey. To 
prevent coordination problems that may invite delay, we do not require 
a utility to set a date for the survey that is convenient for the 
affected attachers. However, in the case of reasonable scheduling 
conflicts, we encourage the parties to work together to find a 
mutually-agreeable time for the survey. We find that advance notice of 
three business days strikes the right balance between providing 
sufficient time to accommodate coordination with the attachers and the 
need to keep the pole attachment process moving forward in a timely 
manner. To provide utilities some measure of flexibility in complying 
with this requirement while still encouraging joint surveys to occur, 
we hold utilities to a ``commercially reasonably efforts standard'' to 
make the notifications.
    68. In addition, to prevent unnecessary and wasteful duplication of 
surveys, we adopt a change to our rules that allows utilities to meet 
the survey requirement of our existing timeline by electing to use 
surveys previously prepared on the poles in question by new attachers. 
In the OTMR context, new attachers will perform the necessary surveys 
to determine whether make-ready work is simple or complex prior to the 
submission of an application. To the extent such work is complex, it 
will be governed by our existing pole attachment timeline where the 
utility performs the survey and must give advance notice of the survey 
to affected attachers. However, we will allow the utility to elect to 
use the new attacher's previously performed survey (performed as part 
of the OTMR pole attachment process) to fulfill its survey 
requirements, rather than require the utility to perform a potentially 
duplicative survey. The utility still must notify affected attachers of 
its intent to use the new attacher's survey and provide a copy of the 
new attacher's survey in its notice. If the utility is relying solely 
on the new attacher's survey to fulfill the survey requirements, we 
agree with Crown Castle that it is appropriate to shorten the survey 
period from 45 days to 15 days to speed deployment.
(iii) Make-Ready Stage
    69. To speed broadband deployment, we amend our rules to reduce the 
deadlines for both simple and complex make-ready from 60 to 30 days 
(and from 105 to 75 days for large requests in the communications 
space). To account for the unique circumstances involved with 
attachments above the communications space, we maintain the current 
make-ready deadline of 90 days (and 135 days for large requests) for 
these attachments. We also adopt modified notice requirements to 
apportion more of the responsibility for promoting make-ready timeline

[[Page 46822]]

compliance from utilities to new attachers, because new attachers have 
the greater incentive to drive adherence to the make-ready deadline.
    70. Make-ready deadlines. Based on the current record and the 
BDAC's recommendation, we adopt a change to our rules that shortens the 
make-ready deadline for new pole attachments in the communications 
space to promote broadband deployment without imposing undue risk to 
safety or reliability. We agree with Crown Castle that adoption of a 
shorter make-ready period in the communications space will promote the 
efficient completion of make-ready by encouraging utilities and 
existing attachers to prioritize attachment work. We also agree with 
Google Fiber that a 30-day period for communications space make-ready 
(and 75 days for larger requests) will ensure that existing attachers 
have the opportunity to control make-ready that is expected to affect 
their services, while reducing delays and increasing efficiency for new 
attachers. The make-ready timelines we adopt for work in the 
communication space should be sufficient for both simple and complex 
work.
    71. While the BDAC recommended that we impose a 30-day deadline for 
complex make-ready work in the communications space, it did not make a 
recommendation on the deadline for simple make-ready work that is not 
subject to OTMR. We find that there is value to maintaining consistency 
of deadlines in the communications space; thus, we adopt the 30-day 
deadline for all communications space make-ready work.
    72. To account for the safety concerns of working above the 
communications space, we maintain our current make-ready deadlines of 
90 days (and 135 days for large requests). In establishing the existing 
deadlines for make-ready above the communications space, which are 30 
days longer than the existing deadlines for make-ready work in the 
communications space, the Commission pointed to the safety risks 
associated with working on attachments in, near, or above the electric 
space and the recognized lack of real-world experience at the time with 
pole-top attachments. We recognize that both utilities and attachers 
have more experience with these types of attachments than when the 
Commission adopted these deadlines in 2011, but the same safety risks 
identified by the Commission in 2011 are still relevant today, and 
therefore we continue to allow for more time to complete make-ready 
above the communications space because such attachments involve work 
near electrical wires that require more careful work and more 
experienced contractors. However, we recognize the important role that 
attachments above the communications space can have in facilitating 
faster and more efficient wireless deployment (particularly the small 
cell deployments necessary for advanced 5G networks), and therefore, as 
described below, we make the self-help remedy applicable to these 
attachments for the first time, which we anticipate will speed 
deployment by providing a strong incentive for utilities and existing 
attachers to meet their make-ready deadlines and give new attachers the 
tools to deploy quickly when deadlines are not met.
    73. For all attachments, we retain as a safeguard our existing rule 
allowing utilities to deviate from the make-ready timelines for good 
and sufficient cause when it is infeasible for the utility to complete 
make-ready work within the prescribed time frame. This safeguard will 
mitigate the effects of our decrease in the make-ready time periods by 
carving out edge cases where timely completion is truly infeasible and 
the utility wishes to retain control of the make-ready process. It aids 
us in balancing the interests of utilities to control make-ready in 
non-OTMR circumstances and the needs of new attachers to obtain timely 
completion of OTMR or the ability to employ self-help. We agree with 
ACA that a utility that so deviates may do so for a period no longer 
than necessary to complete make-ready on the affected poles and must 
immediately notify, in writing, the new attacher and affected existing 
attachers, identify the affected poles, and include a detailed 
explanation of the basis for the deviation and a new completion date. A 
new attacher may challenge the utility's determination for deviating 
from the make-ready timeline if the utility's rationale is not 
justified by good and sufficient cause.
    74. Recognizing that our new timeline will put pressure on existing 
attachers, particularly with respect to poles that have multiple 
attachers that must conduct complex make-ready work within a shorter 
timeframe, we adopt a new safeguard for existing attachers. 
Specifically, we adopt the BDAC recommendation that an existing 
attacher may deviate from the 30-day deadline for complex make-ready in 
the communications space (or the 75-day deadline in the case of larger 
orders) for reasons of safety or service interruption that renders it 
infeasible for the existing attacher to complete complex make-ready by 
the deadline. An existing attacher that so deviates must immediately 
notify, in writing, the new attacher and other affected existing 
attachers, identify the affected poles, and include a detailed 
explanation of the basis for the deviation and a new completion date, 
which cannot extend beyond 60 days from the date of the utility make-
ready notice to existing attachers (or 105 days in the case of larger 
orders). The existing attacher shall deviate from the complex make-
ready time limits for a period no longer than necessary to complete 
make-ready on the affected poles. If the complex make-ready work is not 
complete within 60 days from the date that the existing attacher sends 
the notice to the new attacher, then the new attacher can complete the 
work using a utility-approved contractor. If no utility-approved 
contractor is available, then the new attacher must follow the 
procedures outlined infra for choosing an appropriate contractor. We 
require existing attachers to act in good faith in obtaining an 
extension, and we caution that obtaining an extension as a routine 
matter or for the purpose of delaying the new attachment is 
inconsistent with acting in good faith. If a new attacher believes the 
existing attacher is not using the extension period in good faith, it 
may file a complaint with the Commission.
    75. We further accelerate communications space attachments by 
eliminating the optional 15-day extension period for the utility to 
complete the make-ready work. Many commenters and the BDAC support 
elimination of the extra 15 days at the end of the make-ready stage 
because few, if any, utilities actually invoke the extension. However, 
with respect to work above the communications space, we retain the 
optional 15-day extension period for utility make-ready. Because we are 
extending a new attacher's self-help remedy to attachments above the 
communications space, more utilities may need to use the additional 15 
days to perform such make-ready work themselves. Further, retaining 
this extra period promotes safety and reliability of the electric grid 
by granting the utility extra time to undertake the work itself. To the 
extent utilities do not intend to avail themselves of the additional 15 
days before a new attacher resorts to self-help above the 
communications space, we strongly encourage utilities to communicate 
that intent as soon as possible to new attachers so that the new 
attacher can promptly begin make-ready work.
    76. Notice and New Attacher Role. We adopt the BDAC recommendation 
that when a utility provides the required make-ready notice to existing 
attachers, then it must provide the new attacher

[[Page 46823]]

with a copy of the notice, plus the contact information of existing 
attachers to which the notices were sent, and thereafter the new 
attacher (rather than the utility) must take responsibility for 
encouraging and coordinating with existing attachers to ensure 
completion of make-ready work on a timely basis. We adopt this 
additional notice requirement to empower the new attacher to promote 
the timely completion of make-ready. At the same time, we expect 
existing attachers to respond in a timely manner to requests from the 
new attacher for information, including estimated completion dates and 
work status updates, and to cooperate with the new attacher and other 
existing attachers to complete make-ready prior to the date set in the 
notice.
b. Enhancing the Self-Help Remedy
    77. In the interest of speeding broadband deployment, we modify our 
rules to provide a self- help remedy to new attachers for work above 
the communications space, including the installation of wireless 5G 
small cells, when the utility or existing attachers have failed to 
complete make-ready work within the required time frames. We recognize 
that despite widespread agreement that make-ready work often extends 
past Commission-prescribed timelines, and new attachers' frustration 
with delays caused by missed deadlines for make-ready work, the record 
shows that, at present, new attachers rarely invoke the existing self-
help remedy in the communications space. In the interest of ensuring 
that new attachers are able to exercise the self-help remedy, we take 
this opportunity to reiterate its availability and modify our rules to 
provide a process for new attachers to communicate their intent to 
engage in self-help to the utility and existing attachers. These steps, 
together with the changes we make to the process for new attachers to 
hire contractors to conduct self-help work, should encourage the use of 
self-help where necessary and strengthen the incentive for utilities 
and existing attachers to complete work on time.
    78. Self-Help Above the Communications Space. In the 2011 Pole 
Attachment Order, the Commission declined to apply a self-help remedy 
for survey and make-ready work for pole attachments ``located in, near, 
or above the electric space.'' After further consideration and in light 
of the national importance of a speedy rollout of 5G services, we amend 
our rules to allow new attachers to invoke the self-help remedy for 
work above the communications space, including the installation of 
wireless 5G small cells, when utilities and existing attachers have not 
met make-ready work deadlines. Accenture estimates that wireless 
providers will invest $275 billion dollars over the next decade to 
deploy 5G, which is expected to create three million new jobs across 
the country and boost the U.S. gross domestic product by half a 
trillion dollars. As CTIA explains, the network infrastructure needed 
to support 5G cannot wait, and it is incumbent on the Commission to 
quickly eliminate barriers to, and encourage investment in, 5G 
deployment. Although we do not allow wireless attachers to perform 
their own work in the first instance for safety and equipment integrity 
reasons, we nonetheless give them the ability to use self-help to 
complete make-ready when utilities miss their deadline.
    79. Until now, the only remedy for missed deadlines for work above 
the communications space has been filing a complaint with the 
Commission's Enforcement Bureau. We agree with commenters that argue 
that complaints are an important but insufficient tool for encouraging 
compliance with our deadlines and speeding broadband deployment. We 
expect the availability of self-help above the communications space 
will strongly encourage utilities and existing attachers to meet their 
make-ready deadlines and give new attachers the tools to deploy quickly 
when they do not. As described by Crown Castle, the extension of the 
self-help remedy to attachments above the communications space closes a 
significant gap in the Commission's rules that leaves Crown Castle 
without a meaningful remedy when the electric utility fails to perform 
make-ready work in a timely fashion.
    80. We recognize the valid concerns of utilities regarding the 
importance of safety and equipment integrity, particularly in the 
electric space, and we take several steps to address these important 
issues. As an initial matter, in response to concerns expressed by 
utilities, we maintain the 90-day period (135 for larger requests) for 
the utility to complete make-ready. In the event that new attachers 
must resort to self-help above the communications space, the new 
attacher must use a qualified contractor, that is pre-approved by the 
utility, to do the work. While some utilities argue that contractors 
working for third parties will not adhere to the utility's procedures 
for ensuring the integrity of electric distribution facilities, the 
utility will have full control over the contractor pre-approval process 
and therefore will be able to require that contractors who wish to be 
placed on the utility-approved list adhere to utility protocols for 
working in the electric space, even when the contractor is retained by 
a third-party communications attacher. In addition, we reiterate that 
utilities will have the opportunity to identify and address any safety 
and equipment concerns when they receive advance self-help notice and 
post-completion notice from the new attacher. Our rules also contain 
additional pre-existing protections for utilities that empower them to 
promote safety and reliability. Finally, utilities may prevent self-
help from being invoked by completing make-ready on time. Because 
electric utilities always will have the opportunity to complete make-
ready work before self-help is triggered, have control over which 
contractors will be allowed to perform self-help, and will have the 
opportunity to be present when the self-help make-ready work is 
performed, we disagree with FirstEnergy that our new rules risk loss of 
control for every expansion of capacity to accommodate new attachments.
    81. Pole Replacements. We agree with parties that argue that the 
self-help remedy should not be available when pole replacements are 
required as part of make-ready. The record shows that pole replacements 
can be complicated to execute and are more likely to cause service 
outages or facilities damage. Given the particularly disruptive nature 
of this type of work, we make clear that pole replacements are not 
eligible for self-help.
    82. Self-Help Notices. Similar to the pre- and post-work notice 
requirements we adopt in the new OTMR process, and consistent with the 
BDAC's recommendation, we require new attachers to give affected 
utilities and existing attachers (1) no less than three business days 
advance notice for self-help surveys and five days' advance notice of 
when self-help make-ready work will be performed and a reasonable 
opportunity to be present, and (2) notice no later than 15 days after 
make-ready is complete on a particular pole so that they have an 
opportunity to inspect the make-ready work. Just as in the OTMR 
context, the new attacher's post-make-ready notice must provide the 
affected utility and existing attachers at least 90 days from receipt 
in which to inspect the make-ready work done on a particular pole. The 
affected utility and existing attachers have 14 days after completion 
of their inspection to notify the new attacher of any damage to their 
equipment or any code (e.g., safety, electrical, engineering, 
construction) violations caused by make-ready conducted by the new

[[Page 46824]]

attacher. If the utility or existing attachers discover damage or any 
code violations caused by make-ready conducted by the new attacher on 
equipment belonging to the utility or an existing attacher, then the 
utility or existing attacher shall inform the new attacher and provide 
adequate documentation of the damage or code violations. The utility or 
existing attacher may either (A) complete any necessary remedial work 
and bill the new attacher for the reasonable costs related to fixing 
the damage or code violations, or (B) require the new attacher to fix 
the damage or code violations at its expense within 14 days following 
notice from the utility or existing attacher.
    83. Just as in the OTMR context, the advance notice must include 
the date and time of the work, the nature of the work, and the name of 
the contractor being used by the new attacher. Similar to our finding 
with regard to the OTMR process, we find that the utility and existing 
attachers should be responsible for any expenses associated with 
double-checking the self-help work performed by the new attacher's 
contractors, including any post-make-ready inspections. As in the OTMR 
context, we also require the new attacher to provide immediate notice 
to the affected utility and existing attachers if the new attacher's 
contractor damages equipment or causes an outage that is reasonably 
likely to interrupt the provision of service. Upon receiving notice of 
damaged equipment or a service outage, the utility or existing attacher 
can either complete any necessary remedial work and bill the new 
attacher for the reasonable costs related to fixing the damage or 
require the new attacher to fix the damage at its expense immediately 
following notice from the utility or existing attacher. Upon notice 
from the existing attacher or the utility to fix damages caused by a 
contractor, the new attacher must complete the repair work before it 
can resume its make-ready work. Where the utility or the existing 
attacher elects to fix the damage, the new attacher can only continue 
with make-ready work if it does not interfere with the repair work 
being conducted by the utility or existing attacher. We find that these 
self-help notices will promote safe, reliable work and provide the 
opportunity for corrections where needed, as well as allow utilities 
and existing attachers to alert their customers of the work. In this 
context, we also find that the notices will help to address complaints 
that utilities are not receiving consistent notices from attachers 
regarding critical steps in the pole attachment process.
    84. At the request of numerous commenters, we also take this 
opportunity to reiterate that under our existing rules, the make-ready 
clock runs simultaneously and not sequentially for all existing 
attachers, and the utility must immediately notify at the same time all 
entities with existing attachments that are affected by the proposed 
make-ready work. We recognize that coordinating work among existing 
attachers may be difficult, particularly for poles with many 
attachments, and existing attachers that are not the first to move may 
in some circumstances receive limited or even no time for work during 
the make-ready stage. Despite these challenges, we expect utilities, 
new attachers, and existing attachers to work cooperatively to ensure 
that pole attachment deadlines are met. If others do not meet their 
deadlines, new attachers then may invoke the self-help remedy.
c. Contractor Selection for Self-Help
    85. We adopt different approaches to new attacher contractor 
selection for simple and non-simple self-help make-ready. Given that 
simple self-help and OTMR are substantially similar, we adopt the same 
approach to contractor selection for simple self-help in the 
communications space as for OTMR, and we do so for the same reasons set 
forth above. Thus, consistent with the OTMR regime:

     A new attacher electing self-help for simple work in the 
communications space must select a contractor from a utility-maintained 
list of qualified contractors, where such a list is available. The 
contractor must meet the same safety and reliability criteria as 
contractors authorized to perform OTMR work. New and existing attachers 
may request that qualified contractors be added to the utility's list 
and the utility may not unreasonably withhold its consent for such 
additions.
     Where no utility-maintained list is available, or no 
utility-approved contractor is available within a reasonable time 
period, the new attacher must select a contractor that meets the same 
safety and reliability criteria as contractors authorized to perform 
OTMR work and any additional non-discriminatory, written, and publicly-
available criteria relating to safety and reliability that the utility 
specifies. The utility may veto the new attacher's contractor selection 
so long as it offers another available, qualified contractor.
    86. For complex work and work above the communications space, we 
take a different approach and require new attachers to select a 
contractor from the utility's list. We also require utilities to make 
available and keep an up-to-date a reasonably sufficient list of 
contractors it authorizes to perform complex and non-communications 
space self-help surveys and make-ready work. We thus maintain our 
existing contractor selection requirements as to complex self-help in 
the communications space and extend those requirements to self-help 
above the communications space.
    87. We treat the utility list as mandatory for complex and above 
the communications space work for several reasons. These types of make-
ready involve greater risks than simple make-ready, and we agree with 
numerous commenters that utility selection of eligible contractors 
promotes safe and reliable work in more challenging circumstances. 
Although the current selection process sometimes entails delays where 
utilities fail to provide a list of approved contractors, we find that 
as to complex work and work above the communications space--which poses 
heightened safety and reliability risks--the benefits of the current 
approach outweigh its costs. We recognize that self-help above the 
communications space is novel and poses particularly heightened safety 
and reliability risks. We therefore find it especially important to 
give the utility control over who performs such work. In reaching this 
conclusion, we decline to adopt the BDAC's recommendation that 
utilities need no longer provide, and requesting attachers need not 
use, utility-approved contractors to complete complex make-ready work 
in the communications space under the self-help remedy.
    88. Although we treat the utility list as mandatory for complex and 
above the communications space make-ready, we adopt a protective 
measure to prevent the utility list from being a choke-point that 
prevents deployment. The record indicates that some new attachers have 
been unable to exercise their self-help remedy because a list of 
utility-approved contractors was not available. To alleviate this 
problem for complex and above the communications space work, we set 
forth in our rules--as we do in the context of OTMR and simple-self-
help--that new and existing attachers may request that qualified 
contractors be added to the utility's list and that the utility may not 
unreasonably withhold its consent for such additions. As in the context 
of OTMR and simple self-help, 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

[[Page 46825]]

based on fair application of commercially reasonable requirements for 
contractors relating to issues of safety or reliability.
d. Detailed Make-Ready Costs
    89. To facilitate the planning of more aggressive deployments, we 
adopt additional requirements to improve the transparency and 
usefulness of the make-ready cost estimates currently required under 
our rules. We require estimates of all make-ready charges to be 
detailed and include documentation that is sufficient to determine the 
basis for all charges, as well as similarly detailed post-make-ready 
invoices.
    90. The record reflects frustration over the lack of transparency 
of current estimates of make-ready work charges. ACA, Lumos, Crown 
Castle, and other commenters express support for a requirement that 
utilities provide detailed, itemized estimates and final invoices of 
all necessary make-ready costs. They, along with other commenters, 
argue that, in many cases, utilities currently do not provide detailed 
estimates or detailed final invoices. They claim that where utilities 
do not detail the basis of potential or actual charges, new attachers 
may reasonably fear that utilities can potentially include costs that 
are unnecessary, inappropriately inflated, or that attaching entities 
could easily avoid. Numerous commenters describe experiencing ``bill 
shock,'' where a utility's make-ready invoices far exceed the utility's 
initial estimates, and add that the lack of transparency of make-ready 
costs inhibits their ability to plan network expansions. Given the 
frustration reflected in the record, we find that requiring detailed 
make-ready cost estimates and post-make-ready invoices will improve 
transparency in the make-ready process and better enable providers to 
plan broadband buildouts.
    91. We further clarify that our current rules require the utility 
to provide estimates for all make-ready work to be completed, 
regardless of what party completes the work. Although some utilities 
claim they are poorly positioned to provide estimates for make-ready 
work other than their own, we continue to find that utilities are best 
positioned to compile and submit these make-ready estimates to new 
attachers due to their pre-existing and ongoing relationships with the 
existing attachers on their poles. We recognize that in many 
circumstances the utility will not be able to prepare on its own an 
estimate for other existing attachers' make-ready work; therefore, we 
clarify that utilities may comply with this requirement by compiling 
estimates from third-parties for submission to the new attacher. We 
further clarify that where the utility compiles third-party estimates, 
it is responsible only for compilation and transmission--it is not 
responsible for the accuracy or content of the estimates. We do not 
require utilities to compile and submit final invoices of make-ready 
work performed by third-party existing attachers. To the extent that 
the utility is an existing attacher, it is still responsible, where 
applicable, for providing a final invoice. We anticipate that existing 
attachers will have sufficient incentives to ensure that their final 
invoice reaches the new attacher so that they receive compensation for 
performed work.
    92. We require the utility to detail all make-ready cost estimates 
and final invoices on a per-pole basis when requested by the new 
attacher. While we recognize that requiring utilities to provide costs 
on a per-pole basis may be more burdensome than providing a less 
granular estimate, we find that a pole-by-pole estimate may be 
necessary to enable new attachers to understand the costs of deployment 
and to make informed decisions about altering their deployment plans if 
make-ready costs on specific poles could prove to be cost-prohibitive. 
Requiring per-pole estimates and invoices upon request will also enable 
new attachers to better determine whether invoices are accurate, saving 
new attachers the unnecessary time and cost they currently devote to 
such a task. The record shows that certain fixed costs are not 
necessarily charged on a per-pole basis (e.g., traffic control, lock-
out/tag-out, truck rolls), and therefore the rules we adopt today allow 
for such fixed costs to be submitted on a per-job basis, rather than a 
pole-by-pole basis, even where a pole-by-pole estimate or invoice is 
requested.
    93. As part of the detailed estimate, the utility must disclose to 
the new attacher its projected material, labor, and other related costs 
that form the basis of its estimate, including specifications of what 
costs, if any, the utility is passing through to the new attacher from 
the utility's use of a third-party contractor. The utility must also 
provide documentation that is sufficient to determine the basis of all 
charges in the final invoice, including any material, labor and other 
related costs. While we understand that this requirement places a 
burden on utilities, we agree with ACA that this requirement will allow 
new attachers to understand the basis for each individual make-ready 
charge and prevent disputes over ``unreasonable or simply unnecessary 
make-ready charges in aggregate cost estimates.'' However, if a utility 
completes make-ready and the final cost of the work does not differ 
from the estimate, it is not required to provide the new attacher with 
a final invoice.
3. Treatment of Overlashing
    94. We codify our longstanding policy that utilities may not 
require an attacher to obtain its approval for overlashing. Consistent 
with Commission precedent, the utility also may not require pre-
approval for third party overlashing of an existing attachment, when 
such overlashing is conducted with the permission of an existing 
attacher. In addition, we adopt a rule that allows utilities to 
establish reasonable advance notice requirements. As the Commission has 
previously found, the ability to overlash often marks the difference 
between being able to serve a customer's broadband needs within weeks 
versus six or more months when delivery of service is dependent on a 
new attachment. In codifying the existing overlashing precedent while 
adopting a pre-notification option, we seek to promote faster, less 
expensive broadband deployment while addressing important safety 
concerns relating to overlashing. We find that our codification will 
hasten deployment by resolving disagreements over whether utilities may 
impose procedural requirements on overlashing by existing attachers.
    95. While we make clear that pre-approval for overlashing is not 
permissible, we adopt a rule that utilities may, but are not required 
to, establish reasonable pre-notification requirements including a 
requirement that attachers provide 15 days (or fewer) advance notice of 
overlashing work. Commenters express the concern that poles may not 
always be able to reliably support additional weight due to age and 
environmental factors, such as ice and wind, and as a result, 
overlashing even one additional cable on a pole may cause an 
overloading. Such pole overloading could hamper the installation or 
maintenance of electric facilities, or other on-going wireline or 
wireless facility installations. We find these concerns to be valid and 
supported by the record. Thus, we agree with commenters that allowing 
utilities to require advance notice will promote safety and reliability 
and allow the utility to protect its interests without imposing 
unnecessary burdens on attachers. If after receiving this advance 
notice, a utility determines, through its own engineering analysis, 
that there is insufficient capacity on the pole for a

[[Page 46826]]

noticed overlash, the noticed overlash would be inconsistent with 
generally applicable engineering practices, or the noticed overlash 
would compromise the pole's safety or reliability, the utility must 
provide specific documentation demonstrating that the overlash creates 
a capacity, safety, reliability, or engineering issue within the 15 day 
advance notice period and the overlasher must address any identified 
issues--either by modifying its proposal or by explaining why, in the 
overlasher's view, a modification is unnecessary--before continuing 
with the overlash. Consistent with our approach to OTMR and self-help, 
we adopt ACA's position that a utility may not charge a fee to the 
party seeking to overlash for the utility's review of the proposed 
overlash, as such fees will increase the costs of deployment. To the 
extent a utility can document that an overlash would require 
modifications to the pole or replacement of the pole, the overlasher 
will be held responsible for the costs associated with ensuring that 
the pole can safely accommodate the overlash. A utility may not deny 
access to overlash due to a pre-existing violation on the pole. 
However, a party that chooses to overlash on a pole with a safety 
violation and causes damage to the pole or other equipment will be held 
responsible for any necessary repairs.
    96. We find that an approach to overlashing that allows for pre-
notification without requiring pre-approval is superior to more extreme 
solutions advocated by some commenters. We are unpersuaded, for 
example, by arguments that utility pre-approval for overlashing is 
necessary to ensure safety. Pre-approval is not currently required, and 
the record does not demonstrate that significant safety or reliability 
issues have arisen from the application of the current policy. Rather, 
the record reflects that an advance notice requirement has been 
sufficient to address safety and reliability concerns, as it provides 
utilities with the opportunity to conduct any engineering studies or 
inspections either prior to the overlash being completed or after 
completion. For instance, after an Edison Electric Institute member 
received advance notice of overlashing on 5,186 poles, its inspection 
found that 716 of those poles `` `had preexisting violations for 
failure to meet NESC requirements for clearance between communications 
attachments and power facilities.' '' Similarly, in 2016, Oncor 
Electric Delivery in Texas received advance notice of overlashing and 
discovered 13.8% of the poles had existing clearance violations between 
existing attachments and power facilities. Further requiring that 
attachers receive prior approval for overlashing would unnecessarily 
increase costs for attachers and delay deployment.
    97. We also take this opportunity to clarify several points related 
to overlashing. First, if the utility elects to establish an advance 
notice requirement, the utility must provide advanced written notice to 
attachers or include the requirement in its pole attachment agreements. 
We find that providing this guidance will give clarity to all parties 
as to when the utility must receive advance notice, thereby reducing 
the likelihood of disputes. Utilities may require pre-notification of 
up to 15 days, the same notice period that we adopt for OTMR 
attachments. We also emphasize that utilities may not use advanced 
notice requirements to impose quasi-application or quasi-pre-approval 
requirements, such as requiring engineering studies. Finally, just as 
new attachers electing OTMR are responsible for any corrective measures 
needed because of their work, in the event that damage to the pole or 
other existing attachment or safety or engineering standard violations 
result from overlashing, the overlasher will be responsible for any 
necessary repairs arising from such overlashing. Poorly performed 
overlashing can create safety and reliability risks, and the Commission 
has consistently found that overlashers must ensure that they are 
complying with reasonable safety, reliability, and engineering 
practices. To the extent that the pole owner wishes to perform an 
engineering analysis of its own either within the 15-day advance notice 
period or after completion of the overlash, the pole owner bears the 
cost of such an analysis.
    98. We agree with ACA that we should adopt a post-overlashing 
notification procedure comparable to the post-make ready notification 
procedure we adopt for OTMR. Therefore, we require that an overlashing 
party shall notify the affected utility within 15 days of completion of 
the overlash on a particular pole. The notice shall provide the 
affected utility at least 90 days from receipt in which to inspect the 
overlash. The utility has 14 days after completion of its inspection to 
notify the overlashing party of any damage or any code (e.g., safety, 
electrical, engineering, construction) violations to its equipment 
caused by the overlash. If the utility discovers damage or code 
violations caused by the overlash on equipment belonging to the 
utility, then the utility shall inform the overlashing party and 
provide adequate documentation of the damage or code violations. The 
utility may either complete any necessary remedial work and bill the 
overlashing party for the reasonable costs related to fixing the damage 
or code violations or require the overlashing party to fix the damage 
or code violations at its expense within 14 days following notice from 
the utility.

B. New Attachers Are Not Responsible for Preexisting Violations

    99. Consistent with the BDAC's recommendation, we clarify that new 
attachers are not responsible for the costs associated with bringing 
poles or third-party equipment into compliance with current safety and 
pole owner construction standards to the extent such poles or third-
party equipment were out of compliance prior to the new attachment. 
This includes situations where a pole has been ``red tagged''--that is, 
found to be non-complaint with safety standards and placed on a 
replacement schedule--so new attachers are not responsible for the cost 
of pole replacement. Although utilities have sometimes held new 
attachers responsible for the costs of correcting preexisting 
violations, this practice is inconsistent with our long-standing 
principle that a new attacher is responsible only for actual costs 
incurred to accommodate its attachment. The new attachment may 
precipitate correction of the preexisting violation, but it is the 
violation itself that causes the costs, not the new attacher. Holding 
the new attacher liable for preexisting violations unfairly penalizes 
the new attacher for problems it did not cause, thereby deterring 
deployment, and provides incentives for attachers to complete make-
ready work irresponsibly and count on later attachers to fix the 
problem. This is true whether the make-ready work that corrects these 
preexisting violations is simple or complex. Also, if the new attacher 
chooses to repair a pre-existing violation it may seek reimbursement 
from the party responsible for the violation, including, if applicable, 
the utility.
    100. We also clarify that utilities may not deny new attachers 
access to the pole solely based on safety concerns arising from a pre-
existing violation, as Lightower alleges sometimes occurs. Simply 
denying new attachers access prevents broadband deployment and does 
nothing to correct the safety issue. We also clarify that a utility 
cannot delay completion of make-ready while the utility attempts to 
identify or collect from the party who should pay for correction of the 
preexisting violation.

[[Page 46827]]

C. Addressing Outdated Rate Disparities

    101. In the interest of promoting infrastructure deployment, the 
Commission adopted a policy in 2011 that similarly situated attachers 
should pay similar pole attachment rates for comparable access. 
Incumbent LECs allege, however, that electric utilities continue to 
charge pole attachment rates significantly higher than the rates 
charged to similarly situated telecommunications attachers, and that 
these higher rates inhibit broadband deployment. To address this 
problem, we revise our rules to establish a presumption that, for 
newly-negotiated and newly-renewed pole attachment agreements between 
incumbent LECs and utilities, an incumbent LEC will receive comparable 
pole attachment rates, terms, and conditions as a similarly-situated 
telecommunications carrier or a cable television system 
(telecommunications attachers). The utility can rebut the presumption 
with clear and convincing evidence that the incumbent LEC receives net 
benefits under its pole attachment agreement with the utility that 
materially advantage the incumbent LEC over other telecommunications 
attachers.
    102. As the Commission has recognized, historically, incumbent LECs 
owned approximately the same number of poles as electric utilities and 
were able to ensure just and reasonable rates, terms, and conditions 
for their attachments by negotiating long-term joint use agreements 
with utilities. These joint use agreements may provide benefits to the 
incumbent LECs that are not typically found in pole attachment 
agreements between utilities and other telecommunications attachers, 
such as lower make-ready costs, the right to attach without advance 
utility approval, and use of the rights-of-way obtained by the utility, 
among other benefits. By 2011, however, incumbent LECs owned fewer 
poles than utilities, and the Commission found that incumbent LECs may 
not be in equivalent bargaining position with electric utilities in 
pole attachment negotiations in some cases. In 2011, the Commission 
determined that it had the authority to ensure that incumbent LECs' 
attachments to other utilities' poles are pursuant to rates, terms and 
conditions that are just and reasonable, and placed the burden on 
incumbent LECs to rebut the presumption that they are not similarly 
situated to an existing telecommunications attacher in order to obtain 
access on rates, terms, and conditions that are comparable to the 
existing telecommunications attacher.
    103. The record clearly demonstrates that incumbent LEC pole 
ownership continues to decline. Incumbent LECs argue that a reversal of 
the current presumption is warranted because incumbent LECs' bargaining 
power vis-[agrave]-vis utilities has eroded since 2011 as their 
percentage of pole ownership relative to utilities has dropped, thus 
resulting in increased attachment rates relative to their fellow 
telecommunications attachers. To bolster this claim, USTelecom provides 
the results of a recent member survey showing that its incumbent LEC 
members ``pay an average of $26.12 [per year] to [investor-owned 
utilities] today in Commission-regulated states (an increase from 
$26.00 in 2008), compared to cable and CLEC provider payments to ILECs, 
which average $3.00 and $3.75 [per year], respectively (a decrease from 
$3.26 and $4.45, respectively, in 2008).''
    104. We are convinced by the record evidence showing that, since 
2008, incumbent LEC pole ownership has declined and incumbent LEC pole 
attachment rates have increased (while pole attachment rates for cable 
and telecommunications attachers have decreased). We therefore conclude 
that incumbent LEC bargaining power vis-[agrave]-vis utilities has 
continued to decline. Therefore, based on these changed circumstances, 
we agree with incumbent LEC commenters' arguments that, for new and 
newly-renewed pole attachment agreements between utilities and 
incumbent LECs, we should presume that incumbent LECs are similarly 
situated to other telecommunications attachers and entitled to pole 
attachment rates, terms, and conditions that are comparable to the 
telecommunications attachers. We conclude that, for determining a 
comparable pole attachment rate for new and newly-renewed pole 
attachment agreements, the presumption is that the incumbent LEC should 
be charged no higher than the pole attachment rate for 
telecommunications attachers calculated in accordance with Sec.  
1.1406(e)(2) of the Commission's rules. We find that applying the 
presumption in these circumstances will promote broadband deployment 
and serve the public interest; we agree with USTelecom that greater 
rate parity between incumbent LECs and their telecommunications 
competitors can energize and further accelerate broadband deployment. 
However, we recognize there may be some cases in which incumbent LECs 
may continue to possess greater bargaining power than other attachers, 
for example in geographic areas where the incumbent LEC continues to 
own a large number of poles. Therefore, we establish a presumption that 
may be rebutted, rather than a more rigid rule.
    105. We extend this rebuttable presumption to newly-negotiated and 
newly-renewed joint use agreements. A new or newly-renewed pole 
attachment agreement is one entered into, renewed, or in evergreen 
status after the effective date of this Third Report and Order, and 
renewal includes agreements that are automatically renewed, extended, 
or placed in evergreen status. Consistent with the Commission's 
conclusion in 2011, the pre-2011 pole attachment rate for 
telecommunications carriers will continue to serve as a reference point 
in complaint proceedings regarding agreements that materially advantage 
an incumbent LEC and which were entered into after the 2011 Pole 
Attachment Order and before the effective date of the Third Report and 
Order we release today. This includes circumstances where an agreement 
has been terminated and the parties continue to operate under an 
``evergreen'' clause.
    106. We conclude that, by applying the presumption to new and 
newly-renewed agreements, we will give incumbent LECs parity with 
similarly-situated telecommunications attachers and encourage 
infrastructure deployment by addressing incumbent LECs' bargaining 
power disadvantage. We recognize that this divergence from past 
practice will impact privately-negotiated agreements and so the 
presumption will only apply, as it relates to existing contracts, upon 
renewal of those agreements. Until that time, for existing agreements, 
the 2011 Pole Attachment Order's guidance regarding review of incumbent 
LEC pole attachment complaints will continue to apply. We disagree with 
utilities that argue that we should not apply the presumption to any 
existing agreements because existing joint use agreements were 
negotiated at a time of more equal bargaining power between the 
parties, and because incumbent LECs receive unique benefits under joint 
use agreements. To the extent incumbent LECs receive net benefits 
distinct from those given to other telecommunications attachers, a 
utility may rebut the presumption.
    107. Utilities can rebut the presumption we adopt today in a 
complaint proceeding by demonstrating that the incumbent LEC receives 
net benefits that materially advantage the incumbent LEC over other 
telecommunications attachers. Such material benefits may include paying

[[Page 46828]]

significantly lower make-ready costs; no advance approval to make 
attachments; no post-attachment inspection costs; rights-of-way often 
obtained by electric company; guaranteed space on the pole; 
preferential location on pole; no relocation and rearrangement costs; 
and numerous additional rights such as approving and denying pole 
access, collecting attachment rents and input on where new poles are 
placed. If the utility can demonstrate that the incumbent LEC receives 
significant material benefits beyond basic pole attachment or other 
rights given to another telecommunications attacher, then we leave it 
to the parties to negotiate the appropriate rate or tradeoffs to 
account for such additional benefits.
    108. If the presumption we adopt today is rebutted, the pre-2011 
Pole Attachment Order telecommunications carrier rate is the maximum 
rate that the utility and incumbent LEC may negotiate. This conclusion 
builds on and clarifies the Commission's determination in the 2011 Pole 
Attachment Order that the pre-2011 telecommunications carrier rate 
should serve ``as a reference point in complaint proceedings'' where a 
joint use agreement was found to give net advantages to an incumbent 
LEC as compared to other attachers. The Commission ``[found] it prudent 
to identify a specific rate to be used as a reference point in these 
circumstances because it [would] enable better informed pole attachment 
negotiations . . . [and] reduce the number of disputes'' regarding pole 
attachment rates. We reaffirm the conclusion that reference to this 
rate is appropriate where incumbent LECs receive net material 
advantages in a pole attachment agreement. And because we agree with 
commenters that establishment of an upper bound will provide further 
certainty within the pole attachment marketplace, and help to further 
limit pole attachment litigation, we make this rate a hard cap. In so 
doing, we remove the potential for uncertainty caused by considering 
the rate merely as a ``reference point.''

D. Legal Authority

    109. We conclude that we have ample authority under Section 224 to 
take the actions above to adopt a new pole attachment process, amend 
our current pole attachment process, clarify responsibility for pre-
existing violations, and address outdated rate disparities. Section 224 
authorizes us to prescribe rules ensuring that the rates, terms, and 
conditions of pole attachments are just and reasonable. We find that 
the actions we take today to speed broadband deployment further these 
statutory goals. While we rely solely on Section 224 for legal 
authority, our prioritization of broadband deployment throughout 
today's Third Report and Order finds support in Section 706(a) of the 
Telecommunications Act of 1996, which exhorts us to ``encourage the 
deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans'' by ``remov[ing] 
barriers to infrastructure investment.'' While Section 706(a) does not 
provide a grant of regulatory authority, we look to it as guidance from 
Congress on how to implement our statutorily-assigned duties.

E. Effective Date of the Commission's Modified Pole Attachment Rules

    110. Several parties have requested that the Commission provide a 
transition period in which to implement its revised rules governing 
pole attachments. As AT&T notes, this Third Report and Order would 
modify ``the Commission's existing timelines for application review, 
make-ready, and self-help and adopt new timelines for pre-application 
surveys, OTMR, and post OTMR and self-help inspection and repair.'' The 
record indicates that in some cases, these changes will require 
carriers and industry members to modify the automated electronic 
systems they use to track and coordinate pole attachment workflow and 
activities. Therefore, we find it appropriate to provide a transitional 
period. To avoid confusion and facilitate efficient compliance 
preparation, we also wish to make the transitional period uniform for 
all pole attachment-related rules. Thus, the pole attachment-related 
portions of this Third Report and Order (i.e., Sections III.A-E) and 
the rule amendments adopted therein shall become effective on the 
latter of (1) six months after the release of this item or (2) 30 days 
after the Commission publishes a notice in the Federal Register 
announcing approval by the Office of Management and Budget of the rules 
adopted herein containing modified information collection requirements. 
We believe that this period will be sufficient, but no more than 
necessary, to allow affected industry members to modify their systems 
to account for the rule amendments adopted in this Third Report and 
Order. The remainder of this Third Report and Order will be effective 
30 days after publication in the Federal Register.

F. Rebuilding and Repairing Broadband Infrastructure After Disasters

    111. We will not allow state and local laws to stand in the way of 
post-disaster restoration of essential communciations networks. In the 
Further Notice of Proposed Rulemaking in this proceeding, we sought 
comment on whether there are targeted circumstances related to 
disasters in which the Commission should use its preemption authority. 
We find that Sections 253 and 332(c)(7) of the Act provide authority to 
preempt state or local laws that prohibit or have the effect of 
prohibiting the rebuilding or restoration of facilities used to provide 
telecommunications services, and we commit to the exercise of that 
authority on a case-by-case basis where needed. Sections 253 and 
332(c)(7) both provide for preemption of state and local laws that 
``prohibit or have the effect of prohibiting'' the deployment of 
telecommunications services, and we conclude that these provisions 
provide authority to preempt state or local legal action that 
effectively prohibit the deployment of telecommunications services in 
the wake of a disaster. We also find that our authority to interpret or 
act pursuant to Sections 253 and 332 is not limited to natural 
disasters, and also extends to force majeure events generally, 
including man-made disasters. As the Commission has previously 
recognized, certain federal regulations may impede restoration efforts, 
and we are working to address those too--where it is within our 
authority, we are committed to addressing all legal requirements that 
stand in the way of prompt restoration of communications 
infrastructure.
    112. We prefer to exercise our authority to address the application 
of Section 253 to preempt state and local requirements that inhibit 
network restoration on an expedited adjudicatory case-by-case basis, in 
which we can take into account the particularized circumstances of the 
state or local law in question and the impact of the disaster, and 
other relevant factors, rather than through adoption of a rule.
    113. As the City of New York suggests, state and local officials 
may be well positioned to respond to disasters and implement disaster 
response protocol and we will be cognizant not to exercise our 
preemption authority in a manner that could disrupt these efforts. In 
the wake of Hurricanes Harvey, Irma, and Maria, the Commission worked 
closely with state and local partners to support restoration of 
communications networks in affected areas, and going forward, we 
reiterate

[[Page 46829]]

the need for ongoing coordination and cooperation between the 
Commission and state and local governments to rebuild damaged 
telecommunications infrastructure as quickly as possible. As the Public 
Safety and Homeland Security Bureau is responsible for coordinating the 
Commission's disaster response and recovery activities and is most 
closely in contact with state, local, and Federal public safety, 
disaster relief and restoration agencies in such instances, it should 
work with the Wireline Competition Bureau and Wireless 
Telecommunications Bureau to report, and provide assistance to, the 
Commission in its adjudication of such matters.

IV. Final Regulatory Flexibility Analysis

    114. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated into the April 2017 Notice of Proposed Rulemaking, Notice 
of Inquiry, and Request for Comment (Wireline Infrastructure Notice) 
and into the November 2017 Report and Order and Declaratory Ruling, and 
Further Notice of Proposed Rulemaking (Wireline Infrastructure Order) 
in this wireline infrastructure proceeding. The Commission sought 
written public comment on the proposals in the Wireline Infrastructure 
Notice and in the Wireline Infrastructure Order, including comment on 
the IRFAs. The Commission received no comments on the IRFAs. Because 
the Commission amends its rules in this Third Report and Order, the 
Commission has included this Final Regulatory Flexibility Analysis 
(FRFA). This present FRFA conforms to the RFA.

A. Need for, and Objectives of, the Rules

    115. In the Wireline Infrastructure Notice, the Commission 
continued its efforts to close the digital divide by removing barriers 
to broadband infrastructure investment. To this end, the Commission 
proposed numerous regulatory reforms to existing rules and procedures 
regarding pole attachments.
    116. On November 16, 2017, the Commission adopted the Wireline 
Infrastructure Order, which enacted reforms to pole attachment rules 
that: (1) Bar utility pole owners from charging for certain capital 
costs that already have been recovered from make-ready fees; (2) set a 
180-day shot clock for resolution of pole access complaints; and (3) 
grant incumbent local exchange carriers (LECs) reciprocal access to 
infrastructure controlled by other LECs. In the Further Notice of 
Proposed Rulemaking, the Commission sought comment on (1) the treatment 
of overlashing by utilities; and (2) what actions the Commission can 
take to facilitate the rebuilding and repairing of broadband 
infrastructure after natural disasters.
    117. Concurrently, the BDAC, a federal advisory committee chartered 
in 2017, formed five active working groups, as well as an ad hoc 
committee on rates and fees, to address the issues raised in the 
Wireline Infrastructure Notice. During five public meetings, the BDAC 
adopted recommendations related to competitive access to broadband 
infrastructure. These recommendations informed the Commission's policy 
decisions on pole attachment reform.
    118. Pursuant to the objectives set forth in the Wireline 
Infrastructure Notice, this Third Report and Order and Declaratory 
Ruling (Order) adopts changes to Commission rules regarding pole 
attachments. The Order adopts changes to the current pole attachment 
rules that: (1) Allow new attachers to perform all work, not reasonably 
likely to cause a service outage or facility damage, to prepare poles 
for new wireline attachments (make-ready work) in the communications 
space of a pole; (2) adopt a substantially shortened timeline for such 
application review and make-ready work (OTMR pole attachment timeline); 
(3) require new attachers to use a utility-approved contractor if a 
utility makes available a list of qualified contractors authorized to 
perform simple make-ready work in the communications space; (4) create 
a more efficient pole attachment timeline for complex and work above 
the communications space (and for new attachers that chose the non-OTMR 
timeline for simple work); (5) enhance the new attacher's existing 
self-help remedy for surveys and make-ready work by extending it to all 
attachments (both wireless and wireline) above the communications space 
of a pole; (6) require new attachers to use utility-approved 
contractors when utilities and existing attachers miss their deadlines 
and the new attacher elects self-help to complete surveys and make-
ready work that is complex or that involves work above the 
communications space on a pole; (7) require utilities to provide new 
attachers with detailed, itemized estimates and final invoices for all 
required make-ready work; (8) codify the Commission's existing 
precedent that prohibits a pre-approval requirement for overlashing, 
and adopt a rule that allows utilities to establish reasonable advance 
notice requirements of up to 15 days for overlashing and holds 
overlashers responsible for ensuring that their practices and equipment 
do not cause safety or engineering issues; (9) establish a rebuttable 
presumption that, for newly-negotiated and newly-renewed pole 
attachment agreements between LECs and utilities, incumbent LECs will 
receive comparable pole attachment rates, terms, and conditions as 
similarly-situated telecommunications carriers or cable television 
system providing telecommunications services; and (10) establish that 
new attachers are not responsible for costs associated with bringing 
poles or third-party equipment into compliance with current safety and 
pole owner construction standards to the extent that such poles or 
third-party equipment were out of compliance prior to the new 
attachment. The modifications to our pole attachment rules will 
facilitate deployment to and reduce barriers to access infrastructure 
by reducing costs and delays typically associated with the pole 
attachment process. Ultimately, these pole attachment reforms will 
contribute to increased broadband deployment, decreased costs for 
consumers, and increased service speeds.

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

    119. The Commission did not receive comments addressing the rules 
and policies proposed in the IRFAs in either the Wireline 
Infrastructure Notice or the Wireline Infrastructure Order.

C. Response to Comments by the Chief Counsel for Advocacy of the SBA

    120. The Chief Counsel did not file any comments in response to 
this proceeding.

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

    121. The RFA directs agencies to provide a description and, where 
feasible, an estimate of the number of small entities that may be 
affected by the final rules adopted pursuant to the Order. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small-business concern'' under the 
Small Business Act. A ``small-business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.

[[Page 46830]]

    122. The changes to our pole attachment rules affect obligations on 
utilities that own poles and telecommunications carriers and cable 
television systems that seek to attach equipment to utility poles.
    123. 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 here, at 
the outset, three comprehensive small entity size standards that could 
be directly affected herein. First, while there are industry specific 
size standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the SBA's Office of 
Advocacy, in general a small business is an independent business having 
fewer than 500 employees. These types of small businesses represent 
99.9% of all businesses in the United States which translates to 29.6 
million businesses.
    124. 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.'' 
Nationwide, as of August 2016, there were approximately 356,494 small 
organizations based on registration and tax data filed by nonprofits 
with the Internal Revenue Service (IRS).
    125. 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 2012 Census of Governments indicate that there 
were 90,056 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 37,132 general purpose governments 
(county, municipal, and town or township) with populations of less than 
50,000 and 12,184 special purpose governments (independent school 
districts and special districts) with populations of less than 50,000. 
The 2012 U.S. Census Bureau data for most types of governments in the 
local government category show that the majority of these governments 
have populations of less than 50,000. Based on this data we estimate 
that at least 49,316 local government jurisdictions fall in the 
category of ``small governmental jurisdictions.''
    126. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as ``establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.'' The SBA has developed a small business size standard 
for Wired Telecommunications Carriers, which consists of all such 
companies having 1,500 or fewer employees. Census data for 2012 show 
that there were 3,117 firms that operated that year. Of this total, 
3,083 operated with fewer than 1,000 employees. Thus, under this size 
standard, the majority of firms in this industry can be considered 
small.
    127. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses applicable to 
local exchange services. The closest applicable NAICS Code category is 
for Wired Telecommunications Carriers, as defined in paragraph 14 of 
this FRFA. Under that size standard, such a business is small if it has 
1,500 or fewer employees. Census data for 2012 show that there were 
3,117 firms that operated that year. Of this total, 3,083 operated with 
fewer than 1,000 employees. The Commission therefore estimates that 
most providers of local exchange carrier service are small entities 
that may be affected by the rules adopted.
    128. Incumbent Local Exchange Carriers (incumbent LECs). Neither 
the Commission nor the SBA has developed a small business size standard 
for incumbent local exchange services. The closest applicable NAICS 
Code category is Wired Telecommunications Carriers as defined in 
paragraph 14 of this FRFA. Under that size standard, such a business is 
small if it has 1,500 or fewer employees. According to Commission data, 
3,117 firms operated in that year. Of this total, 3,083 operated with 
fewer than 1,000 employees. Consequently, the Commission estimates that 
most providers of incumbent local exchange service are small businesses 
that may be affected by the rules and policies adopted. One thousand 
three hundred and seven (1,307) Incumbent Local Exchange Carriers 
reported that they were incumbent local exchange service providers. Of 
this total, an estimated 1,006 have 1,500 or fewer employees.
    129. Competitive Local Exchange Carriers (competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small business size standard for these service 
providers. The appropriate NAICS Code category is Wired 
Telecommunications Carriers, as defined in paragraph 14 of this FRFA. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. U.S. Census data for 2012 indicate that 3,117 firms 
operated during that year. Of that number, 3,083 operated with fewer 
than 1,000 employees. Based on this data, the Commission concludes that 
the majority of Competitive LECs, CAPs, Shared-Tenant Service 
Providers, and Other Local Service Providers are small entities. 
According to Commission data, 1,442 carriers reported that they were 
engaged in the provision of either competitive local exchange services 
or competitive access provider services. Of these 1,442 carriers, an 
estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers 
have reported that they are Shared-Tenant Service Providers, and all 17 
are estimated to have 1,500 or fewer employees. In addition, 72 
carriers have reported that they are Other Local Service Providers. Of 
this total, 70 have 1,500 or fewer employees. Consequently, the 
Commission estimates that most providers of competitive local exchange 
service, competitive access providers, Shared-Tenant Service Providers, 
and Other Local Service Providers are small entities that may be 
affected by the adopted rules.
    130. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a definition for Interexchange Carriers. The closest 
NAICS Code category is Wired Telecommunications Carriers as defined in 
paragraph 14 of this FRFA. The applicable size standard under SBA rules 
is that such a business is small if it has 1,500 or fewer employees. 
According to Commission data, 359 companies reported that their primary 
telecommunications service activity was the provision of interexchange 
services. Of this total, an estimated 317 have 1,500 or fewer employees 
and 42 have more than 1,500 employees. Consequently, the Commission 
estimates that the majority of interexchange service providers are

[[Page 46831]]

small entities that may be affected by the adopted rules.
    131. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a size standard for small businesses applicable to Other Toll 
Carriers. This category includes toll carriers that do not fall within 
the categories of interexchange carriers, operator service providers, 
prepaid calling card providers, satellite service carriers, or toll 
resellers. The closest applicable NAICS Code category is for Wired 
Telecommunications Carriers, as defined in paragraph 14 of this FRFA. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. Census data for 2012 shows that there were 3,117 firms 
that operated that year. Of this total, 3,083 operated with fewer than 
1,000 employees. Thus, under this category and the associated small 
business size standard, the majority of Other Toll Carriers can be 
considered small. According to Commission data, 284 companies reported 
that their primary telecommunications service activity was the 
provision of other toll carriage. Of these, an estimated 279 have 1,500 
or fewer employees. Consequently, the Commission estimates that most 
Other Toll Carriers that may be affected by our rules are small.
    132. Wireless Telecommunications Carriers (Except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves, such as cellular services, paging services, wireless internet 
access, and wireless video services. The appropriate size standard 
under SBA rules is that such a business is small if it has 1,500 or 
fewer employees. For this industry, Census data for 2012 show that 
there were 967 firms that operated for the entire year. Of this total, 
955 firms had fewer than 1,000 employees. Thus, under this category and 
the associated size standard, the Commission estimates that the 
majority of wireless telecommunications carriers (except satellite) are 
small entities. Similarly, according to internally developed Commission 
data, 413 carriers reported that they were engaged in the provision of 
wireless telephony, including cellular service, Personal Communications 
Service (PCS), and Specialized Mobile Radio (SMR) services. Of this 
total, an estimated 261 have 1,500 or fewer employees. Consequently, 
the Commission estimates that approximately half of these firms can be 
considered small. Thus, using available data, we estimate that the 
majority of wireless firms can be considered small.
    133. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standards 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. 
Industry data indicate that there are currently 4,600 active cable 
systems in the United States. Of this total, all but nine cable 
operators nationwide are small under the 400,000-subscriber size 
standard. In addition, under the Commission's rate regulation rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Current Commission records show 4,600 cable systems nationwide. Of this 
total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 
systems have 15,000 or more subscribers, based on the same records. 
Thus, under this standard as well, we estimate that most cable systems 
are small entities.
    134. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, also contains a size standard 
for small cable system operators, 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 are approximately 52,403,705 cable 
video subscribers in the United States today. Accordingly, an operator 
serving fewer than 524,037 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate. Based 
on available data, we find that all but nine incumbent cable operators 
are small entities under this size standard. We clarify that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Although it seems certain that some of 
these cable system operators are affiliated with entities whose gross 
annual revenues exceed $250,000,000, 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.
    135. All Other Telecommunications. ``All Other Telecommunications'' 
is defined as follows: ``This U.S. industry is comprised of 
establishments that are 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. 
Establishments providing internet services or voice over internet 
protocol (VoIP) services via client supplied telecommunications 
connections are also included in this industry.'' The SBA has developed 
a small business size standard for ``All Other Telecommunications,'' 
which consists of all such firms with gross annual receipts of $32.5 
million or less. For this category, Census Bureau data for 2012 show 
that there were 1,442 firms that operated for the entire year. Of those 
firms, a total of 1,400 had annual receipts less than $25 million. 
Consequently, we conclude that the majority of All Other 
Telecommunications firms can be considered small.
    136. Electric Power Generation, Transmission and Distribution. The 
Census Bureau defines this category as follows: ``This industry group 
comprises 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 
category includes electric power distribution, hydroelectric power 
generation, fossil fuel power generation, nuclear electric power 
generation, solar power generation, and wind power generation. The SBA 
has developed a small business size standard for firms in this category 
based on the number of employees working in a given business. According 
to Census Bureau data for 2012, there were 1,742 firms in this category 
that operated for the entire year.
    137. Natural Gas Distribution. This economic census category 
comprises: ``(1) establishments primarily engaged in operating gas 
distribution systems (e.g., mains, meters); (2) establishments known as 
gas marketers that buy gas from the well and sell it to a distribution 
system; (3) establishments known as gas brokers or agents that arrange 
the sale of

[[Page 46832]]

gas over gas distribution systems operated by others; and (4) 
establishments primarily engaged in transmitting and distributing gas 
to final consumers.'' The SBA has developed a small business size 
standard for this industry, which is all such firms having 1,000 or 
fewer employees. According to Census Bureau data for 2012, there were 
422 firms in this category that operated for the entire year. Of this 
total, 399 firms had employment of fewer than 1,000 employees, 23 firms 
had employment of 1,000 employees or more, and 37 firms were not 
operational. Thus, the majority of firms in this category can be 
considered small.
    138. Water Supply and Irrigation Systems. This economic census 
category ``comprises establishments primarily engaged in operating 
water treatment plants and/or operating water supply systems. The water 
supply system may include pumping stations, aqueducts, and/or 
distribution mains. The water may be used for drinking, irrigation, or 
other uses.'' The SBA has developed a small business size standard for 
this industry, which is all such firms having $27.5 million or less in 
annual receipts. According to Census Bureau data for 2012, there were 
3,261 firms in this category that operated for the entire year. Of this 
total, 3,035 firms had annual sales of less than $25 million. Thus, the 
majority of firms in this category can be considered small.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    139. OTMR Alternative Pole Attachment Process. The Order adopts an 
OTMR pole attachment alternative to the Commission's existing pole 
attachment timeline. New attachers may perform all simple make-ready 
work required to accommodate new wireline attachments in the 
communications space on a pole. First, any OTMR work will be performed 
by a utility-approved contractor, although a new attacher can use its 
own qualified contractor to perform OTMR work when the utility does not 
provide a list of approved contractors. Second, new attachers must 
provide advanced notice and allow representatives of existing attachers 
and the utility a reasonable opportunity to be present when OTMR 
surveys and make-ready work are performed. Third, new attachers must 
allow existing attachers and the utility the ability to inspect and 
request any corrective measures soon after the new attacher performs 
the OTMR work.
    140. The Order sets forth that the OTMR process begins upon utility 
receipt of a complete application by a new attacher to attach to its 
facilities. A complete application is defined as one that provides the 
utility with the information necessary under its procedures, as 
specified in a master service agreement or in publicly-released 
requirements at the time of submission of the application, to begin to 
survey the affected poles. The Order further establishes that a utility 
has ten business days after receipt of a pole attachment application to 
determine if the application is complete and notify the attacher of 
that decision. If the utility notifies the attacher that its 
application is not complete within the ten business-day review period, 
then the utility must specify where and how the application is 
deficient. If the utility provides no response within ten business 
days, or if the utility rejects the application as incomplete but fails 
to specify any deficiencies in the application, then the application is 
deemed complete. If the utility timely notifies the attacher that its 
application is incomplete and specifies the deficiencies, then a 
resubmitted application need only supplement the previous application 
by addressing the issues identified by the utility, and the application 
will be deemed complete within five business days after its 
resubmission, unless the utility specifies which deficiencies were not 
addressed. A new attacher may follow the resubmission procedure as many 
times as it chooses, so long as in each case it makes a bona fide 
attempt to correct the issues identified by the utility. A utility must 
respond to new attachers within 15 days of receiving complete pole 
attachment application, or within 30 days for larger requests.
    141. The Order provides that under the OTMR process, it is the 
responsibility of the new attacher to conduct a survey of the affected 
poles to determine the make-ready work to be performed. In performing a 
field inspection as part of any pre-construction survey, the new 
attacher must permit representatives of the utility and any existing 
attachers potentially affected by the proposed make-ready work to be 
present for the survey, using commercially reasonable efforts to 
provide advance notice of the date, time, and location of the survey of 
not less than three (3) business days.
    142. The Order requires that the new attacher ensures that its 
contractor determines whether the make-ready work identified in the 
survey is simple or complex, subject to an electric utility's right to 
reasonably object to the determination. The new attacher--if it wants 
to use the OTMR process and is eligible to do so based on the survey--
must elect OTMR in its pole attachment application and identify in its 
application the simple make-ready work to be performed. The Order 
requires a utility that wishes to object to a simple make-ready 
determination to raise such an objection during the 15-day application 
review period (or within 30 days in the case of larger orders). Any 
such objection by the utility is final and determinative, so long as it 
is specific and in writing, includes all relevant evidence and 
information supporting its decision, provides a good faith explanation 
of how such evidence and information relate to a determination that the 
make-ready is not simple. In this case, the work is deemed complex and 
must follow the existing pole attachment timeline that is modified in 
this Order. If the make-ready work involves a mix of simple and complex 
work, then the new attacher may elect to bifurcate the work and must 
submit separate applications for simple and complex work.
    143. The Order provides that the new attacher can elect to proceed 
with the necessary simple make-ready work by giving 15 days prior 
written notice to the utility and all affected existing attachers. The 
new attacher may provide the required 15-day notice any time after the 
utility deems its pole attachment application complete. If the new 
attacher cannot start make-ready work on the date specified in its 15-
day notice, then the new attacher must provide 15 days advance notice 
of its revised make-ready date. The new attacher's notice must provide 
representatives of the utility and existing attachers: (1) The date and 
time of the make-ready work, (2) a description of the make-ready work 
involved, (3) a reasonable opportunity to be present when the make-
ready work is being performed, and (4) the name of the contractor 
chosen by the new attacher to perform the make-ready work. Further, the 
new attacher must notify the existing attacher immediately if the new 
attacher's contractor damages another company's or the utility's 
equipment or causes an outage that is reasonably likely to interrupt 
the provision of service.
    144. Finally, the Order requires the new attacher to provide notice 
to the utility and affected existing attachers within 15 days after 
OTMR make-ready work is completed on a particular pole. In its post-
make-ready notice, the new attacher must provide the utility and 
existing attachers at least a 90-day period for the inspection of make-
ready work performed by the new attacher's contractors. The Order 
requires the utility and the existing attachers to

[[Page 46833]]

notify the new attacher of any damage or any code violations caused to 
their equipment by the new attacher's make-ready work and provide 
adequate documentation of the damage or violations within 14 days after 
any post-make ready inspection. The utility or existing attacher can 
either complete any necessary remedial work and bill the new attacher 
for reasonable costs to fix the damage or violations, or require the 
new attacher to fix the damage at its expense within 14 days following 
notice from the utility or existing attacher.
    145. The Order also establishes that new attachers must use a 
utility-approved contractor to perform OTMR if a utility makes 
available a list of qualified contractors authorized to perform simple 
make-ready work in the communications space of its poles. New and 
existing attachers may request that contractors meeting the minimum 
qualification requirements be added to the utility's list and utilities 
may not unreasonably withhold consent to add a new contractor to the 
list. 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. If the use of an approved contractor is not required by 
the utility or no approved contractor is available within a reasonable 
time period, then the Order allows new attachers to use qualified 
contractors of their choosing to perform simple make-ready work in the 
communications space of poles. The utility may mandate additional 
commercially reasonable requirements for contractors relating to issues 
of safety and reliability, but such requirements must clearly 
communicate the safety or reliability issue, be non-discriminatory, in 
writing, and publicly available. New attachers must provide the name of 
their chosen contractor in the three-business-day advance notice for 
surveys or the 15-day notices sent to utilities and existing attachers 
in advance of commencing OTMR work. The utility may veto any contractor 
chosen by the new attacher as long as the veto is based on reasonable 
safety or reliability concerns related to the contractor's ability to 
meet one or more of the minimum qualifications or the utility's 
previously posted safety standards, and the utility identifies at least 
one qualified contractor available to do the work. When vetoing an 
attacher's chosen contractor, the utility must identify at least one 
qualified contractor available to do the work. The utility must 
exercise its veto within either the three-business-day notice period 
for surveys or the 15-day notice period for make-ready. The objection 
by the utility is determinative and final.
    146. The utility or new attacher must certify to the utility, 
within either the three-business-day notice period for surveys or the 
15-day notice period for make-ready, that any contractors perform OTMR 
meet the following minimum requirements: (1) Follow published safety 
and operational guidelines of the utility, if available, but if 
unavailable, the contractor agrees to follow NESC guidelines; (2) read 
and follow licensed-engineered pole designs for make-ready work, if 
required by the utility; (3) follow all local, state, and federal laws 
and regulations including, but not limited to, the rules regarding 
Qualified and Competent Persons under the requirements of the 
Occupational and Safety Health Administration (OSHA) rules; (4) meet or 
exceed any uniformly applied and reasonable safety record thresholds 
set by the utility, if made available, i.e., the contractor does not 
have an unsafe record of significant safety violations or worksite 
accidents; and (5) be adequately insured or be able to establish an 
adequate performance bond for the make-ready work it will perform, 
including work it will perform on facilities owned by existing 
attachers. The utility may mandate additional commercially reasonable 
requirements for contractors relating to issues of safety and 
reliability, but such requirements must be non-discriminatory, in 
writing, and publicly-available (i.e., on the utility's website).
    147. Existing Pole Attachment Process Reforms. The Order makes 
targeted changes to the Commission's existing pole attachment timeline 
for attachments that are not eligible for the OTMR process and 
attachers that prefer the existing process. These reforms include 
revising the definition of a complete pole attachment application and 
establishing a timeline for a utility's determination whether 
application is complete; requiring utilities to provide at least three 
business days' advance notice of any surveys to the new attacher; 
establishing a 30-day deadline for all make-ready work in the 
communications space; streamlining the utility's notice requirements; 
eliminating the 15-day utility make-ready period for communications 
space attachments; streamlining the utility's notice requirements; 
requiring utilities to provide detailed estimates and final invoices to 
new attachers regarding make-ready costs; enhancing the new attacher's 
self-help remedy by making the remedy available for surveys and make-
ready work for all attachments anywhere on the pole in the event that 
the utility or the existing attachers fail to meet the required 
deadlines; and revising the contractor selection process for a new 
attacher's self-help work.
    148. The Order retains the existing requirement that the pole 
attachment timeline begins upon utility receipt of a complete 
application to attach facilities to its poles, but revises the 
definition of a complete application to an application that provides 
the utility with the information necessary under its procedures, as 
specified in a master service agreement or in publicly-released 
requirements at the time of submission, to begin to survey the affected 
poles. The Order then adopts the same timeline as set out in the OTMR-
process for a utility to determine whether a pole attachment 
application is complete.
    149. The Order also requires a utility to permit the new attacher 
and any existing attachers potentially affected by the new attachment 
to be present for any pole surveys. The utility must use commercially 
reasonable efforts to provide at least three business days' advance 
notice of any surveys to the new attacher and each existing attacher, 
including the date, time, location of the survey, and the name of the 
contractor performing the survey. The Order provides that the utility 
may meet the survey requirement of our existing timeline by electing to 
use surveys previously prepared on the poles in question by new 
attachers.
    150. The Order amends the existing make-ready timeline by (1) 
reducing the deadlines for both simple and complex make-ready work from 
60 to 30 days (and from 105 to 75 for large requests in the 
communications space); and (2) eliminating the optional 15-day 
extension for the utility to complete communications space make-ready 
work. The Order maintains the current make-ready deadline of 90 days 
(and 135 days for large requests) for make-ready above the 
communications space. However, for all attachments, the Order retains 
as a safeguard our existing rule allowing utilities to deviate from the 
make-ready timelines for good and sufficient cause when it is 
infeasible for the utility to complete make-ready work within the 
prescribed timeframe. Further, an existing attacher may deviate from 
the 30-day deadline for complex make-ready in the communications space 
(or the 75-day deadline in the case of larger orders) for reasons of 
safety or service interruption that renders it infeasible for the 
existing attacher to complete complex make-ready by the deadline. An 
existing

[[Page 46834]]

attacher that so deviates must immediately notify, in writing, the new 
attacher and other affected existing attachers, identify the affected 
poles, and include a detailed explanation of the basis for the 
deviation and a new completion date, which cannot extend beyond 60 days 
from the date of the utility make-ready notice to existing attachers 
(or 105 days in the case of larger orders). The existing attacher 
cannot deviate from the complex make-ready time limits for a period 
longer than necessary to complete make-ready on the affected poles. If 
complex make-ready is not complete within 60 days from the date that 
the existing attacher sends notice to the new attacher, the new 
attacher can complete the work using a utility-approved contractor. 
Existing attachers must act in good faith in obtaining an extension. 
The Order also provides that when a utility provides the required make-
ready notice to existing attachers, then it must provide the new 
attacher with a copy of the notice, plus the contact information of 
existing attachers to which the notices were sent, and thereafter the 
new attacher (rather than the utility) must take responsibility for 
encouraging and coordinating with existing attachers to ensure 
completion of make-ready work on a timely basis.
    151. Expanding upon the Commission's existing make-ready cost 
estimate requirement for utilities, the Order requires a utility to 
detail all make-ready cost estimates and final invoices on a per-pole 
basis where requested by the new attacher. Fixed costs that are not 
necessarily charged on a per-pole basis may be submitted on a per-job 
basis, rather than a pole-by-pole basis, even where a pole-by-pole 
estimate or invoice is requested. As part of the detailed estimate, the 
utility is required to disclose to the new attacher its projected 
material, labor, and other related costs that form the basis of its 
estimate, including specifying what, if any costs, the utility is 
passing through to the new attacher from the utility's use of a third-
party contractor. The utility must also provide documentation that is 
sufficient to determine the basis of all charges in the final invoice, 
including any material, labor and other related costs. If a utility 
completes make-ready and the final cost of the work does not differ 
from the estimate, it is not required to provide the new attacher with 
the invoice.
    152. To increase broadband deployment, the Order modifies our 
existing pole attachment rules by extending a new attacher's self-help 
remedy for surveys and make-ready work to all attachments above the 
communications space, including the installation of wireless 5G small 
cells, when the utility or existing attachers have not met make-ready 
work deadlines. To address the safety concerns of utilities with regard 
to self-help work, the Order requires that new attachers, when invoking 
the self-help remedy, (1) use a utility-approved contractor to do the 
make-ready work; (2) provide no less than three business days advance 
notice for self-help surveys and five business days advance notice of 
when self-help make-ready work will be performed and a reasonable 
opportunity to be present; (3) provide notice to the utility and 
existing attachers no later than 15 days after make-ready is complete 
on a particular pole so that they have an opportunity to inspect the 
make-ready work. The advance notice must include the date and time of 
the work, nature of the work, and the name of the contractor being used 
by the new attacher. The new attacher is required to provide immediate 
notice to the affected utility and existing attachers if the new 
attacher's contractor damages equipment or causes an outage that is 
reasonably likely to interrupt the provision of service.
    153. The Order adopts a contractor selection process for self-help 
that requires a new attacher electing self-help for simple work in the 
communications space to select a contractor from a utility-maintained 
list of qualified contractors that meet the same safety and reliability 
criteria as contractors authorized to perform OTMR work, where such a 
list is available. New and existing attachers may request the addition 
to the list of any contractor that meets the minimum qualification 
requirements and the utility may not unreasonably withhold consent. If 
no list is available or no approved contractor is available within a 
reasonable time period, the new attacher must select a contractor that 
meets the same safety and reliability criteria as contractors 
authorized to perform OTMR work and any additional non-discriminatory, 
written, and publicly-available criteria relating to safety and 
reliability that the utility specifies. The utility may veto the new 
attacher's contractor selection so long as such veto is prompt, set 
forth in writing that describes the reasonable basis for rejection, 
nondiscriminatory, and based on fair application of commercially 
reasonable requirements for contractors relating to issues of safety 
and reliability. Additionally, the utility must offer another 
available, qualified contractor. For complex work and work above the 
communications space, the Order requires (1) the utility to make 
available and keep up-to-date reasonably sufficient list of contractors 
it authorizes to perform complex and non-communications space self-help 
surveys and make-ready work; and (2) the new attacher to choose a 
contractor from the utility's list. New and existing attachers may 
request that qualified contractors be added to the utility's list and 
that the utility may not unreasonably withhold its consent for such 
additions. A utility's decision to withhold consent must be prompt, set 
forth in writing that describes the reasonable basis for the rejection, 
nondiscriminatory, and based on fair application of commercially 
reasonable requirements for contractors relating to issues of safety.
    154. Additional Pole Attachment Reforms. The Order codifies the 
Commission's existing precedent that prohibits a pre-approval 
requirement for overlashing. In addition, the Order adopts a rule on 
overlashing that allows utilities to establish a reasonable 15-day 
advance notice requirement, and holds overlashers responsible for 
ensuring that their practices and equipment do not cause safety or 
engineering issues. If after receiving advance notice, a utility 
determines that an overlash create a capacity, safety, reliability, or 
engineering issue, it must provide specific documentation of the issue 
to the party seeking to overlash within the 15 day advance notice 
period and the party seeking to overlash must address any identified 
issues before continuing with the overlash either by modifying its 
proposal or by explaining why, in the party's view, a modification is 
unnecessary. The Order also provides that a utility may not charge a 
fee to the party seeking to overlash for the utility's review of the 
proposed overlash. The Order also includes a post-overlashing review 
process where an overlashing party is required to notify the affected 
utility within 15 days of completion of the overlash on a particular 
pole. The notice must provide the affected utility 90 days from receipt 
in which to inspect the overlash. The utility has 14 days after 
completion of its inspection to notify the overlashing party of any 
damage to its equipment caused by the overlash. It the utility 
discovers damage caused by the overlash on equipment belonging to the 
utility, then the utility must inform the overlashing party and provide 
adequate documentation of the damage. The Order sets forth that the 
utility may either (A) complete any necessary remedial work and bill 
the overlashing party for the reasonable

[[Page 46835]]

costs related to fixing the damage, or (B) require the overlashing 
party to fix the damage at its expense within 14 days following notice 
from the utility.
    155. The Order provides that a utility may not prevent an attacher 
from overlashing because another attacher has not fixed a preexisting 
violation or require an existing attacher that overlashes its existing 
wires on a pole to fix preexisting violations caused by another 
existing attacher. The Order sets forth that new attachers are not 
responsible for the costs associated with bringing poles or third-party 
equipment into compliance with current safety and pole owner 
construction standards to the extent such poles or third-party 
equipment were out of compliance prior to the new attachment. Further, 
utilities may not deny new attachers access to the pole solely based on 
safety concerns arising from a pre-existing violation. They also cannot 
delay completion of make-ready while the utility attempts to identify 
or collect from the party who should pay for correction of the 
preexisting violation. The Order also establishes a presumption that, 
for newly-negotiated and newly renewed pole attachment agreements 
between incumbent LECs and utilities, an incumbent LEC will receive 
comparable pole attachment rates, terms, and conditions as a similarly-
situated telecommunications carrier or telecommunications attacher, 
unless the utility can rebut the presumption with clear and convincing 
evidence that the incumbent LEC receives net benefits under its pole 
attachment agreement with the utility, that materially advantage the 
incumbent LEC over other telecommunications attachers. If the 
presumption is rebutted, the pre-2011 Pole Attachment Order 
telecommunications carrier rate is the maximum rate that the utility 
and incumbent LEC may negotiate.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    156. In this Order, the Commission modifies its pole attachment 
rules to improve the efficiency and transparency of the pole attachment 
process, as well as to increase access to infrastructure for certain 
types of broadband providers. Overall, we believe the actions in this 
document will reduce burdens on the affected carriers, including any 
small entities.
    157. The Order also finds that adopting the OTMR process will 
reduce delays and costs for new attachers, enhance competition, improve 
public safety and reliability of networks, and accelerate broadband 
buildout. As detailed in the Order, the Commission rejects alternative 
proposals, such as ``right-touch, make-ready'' and NCTA's ``ASAP'' 
proposal--which merely modify the current framework. These approaches 
diffuse responsibility among parties that lack the new attacher's 
incentive to ensure that the work is done quickly, cost effectively, 
and properly. Further, these proposals fail to address the existing 
problems created by sequential make-ready, such as numerous separate 
climbs and construction stoppages in the public-rights-of-way.
    158. As described in the Order, applying targeted changes to the 
existing pole attachment process, such as a more efficient pole 
attachment timeline, detailed and itemized estimates and final invoices 
on a per-pole basis, and an enhanced self-help remedy, will increase 
broadband deployment by reducing the number of unreasonable delays, and 
encouraging transparency and collaboration between all interested 
parties at an early stage in the pole attachment process. The Order 
also concluded that codifying the Commission's existing precedent 
prohibiting a pre-approval requirement for overlashing, and adopting a 
rule allowing utilities to require advance notice of overlashing will 
eliminate the industry uncertainty that currently exists regarding 
overlashing, a practice that is essential to broadband deployment. In 
addition, by eliminating outdated disparities between the pole 
attachment rates that incumbent carriers must pay compared to other 
similarly-situated cable and telecommunications attachers, the Order 
sought to increase incumbent LEC access to infrastructure by addressing 
the bargaining disparity between utilities and incumbent LECs.

G. Report to Congress

    159. The Commission will send a copy of the Order, including this 
FRFA, in a report to be sent to Congress pursuant to the Congressional 
Review Act. In addition, the Commission will send a copy of the Order, 
including this FRFA, to the Chief Counsel for Advocacy of the SBA. A 
copy of the Order and FRFA (or summaries thereof) will also be 
published in the Federal Register.

V. Procedural Matters

    160. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a 
Final Regulatory Flexibility Analysis (FRFA) relating to this Third 
Report and Order. The FRFA is contained in Section IV above.
    161. Paperwork Reduction Act. The Third Report and Order contains 
modified information collection requirements subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to 
the Office of Management and Budget (OMB) for review under Section 
3507(d) of the PRA. OMB, the general public, and other federal agencies 
will be invited to comment on the new or modified information 
collection requirements contained in this proceeding. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
    162. In this document, we have assessed the effects of reforming 
our pole attachment regulations and find that doing so will serve the 
public interest and is unlikely to directly affect businesses with 
fewer than 25 employees.
    163. Congressional Review Act. The Commission will send a copy of 
the Third Report and Order to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

VI. Ordering Clauses

    164. Accordingly, it is ordered that, pursuant to Sections 1-4, 
201, 224, 253, 303(r), and 332 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151-154, 201, 224, 253, 303(r), and 332, and Section 
5(e) of the Administrative Procedure Act, 5 U.S.C. 554(e), this Third 
Report and Order and Declaratory Ruling is adopted.
    165. It is further ordered that Part 1 of the Commission's rules is 
amended as set forth below.
    166. It is further ordered that this Third Report and Order shall 
be effective 30 days after publication in the Federal Register, except 
for Sections III.A-E of this Third Report and Order, which will be 
effective on the latter of six months after release of this Third 
Report and Order or 30 days after the announcement in the Federal 
Register of Office of Management and Budget (OMB) approval of 
information collection requirements modified in this Third Report and 
Order. OMB approval is necessary for the information collection 
requirements in 47 CFR 1.1411(c)(1) and (3), (d) introductory text and 
(d)(3), (e)(3), (h)(2) and (3), (i)(1) and (2), (j)(1) through (5), 
1.1412(a) and (b), 1.1413(b), and 1.1415(b).

[[Page 46836]]

    167. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Third Report and Order to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Pole attachment complaint procedures, Reporting and 
recordkeeping requirements, Telecommunications.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority for part 1 is revised to read as follows:

    Authority: 47 U.S.C. 151, 154(i) and (j), 155, 157, 160, 201, 
224, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, and 1455.


0
2. Amend Sec.  1.1402 by adding paragraphs (o) through (r) to read as 
follows:


Sec.  1.1402  Definitions.

* * * * *
    (o) The term make-ready means the modification or replacement of a 
utility pole, or of the lines or equipment on the utility pole, to 
accommodate additional facilities on the utility pole.
    (p) The term complex make-ready means 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.
    (q) The term simple make-ready means make-ready 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.
    (r) The term communications space means the lower usable space on a 
utility pole, which typically is reserved for low-voltage 
communications equipment.

0
3. Amend Sec.  1.1403 by revising paragraphs (c) introductory text and 
(c)(3) to read as follows:


Sec.  1.1403  Duty to provide access; modifications; notice of removal, 
increase or modification; petition for temporary stay; and cable 
operator notice.

* * * * *
    (c) A utility shall provide a cable television system or 
telecommunications carrier no less than 60 days written notice prior 
to:
* * * * *
    (3) Any modification of facilities by the utility other than make-
ready noticed pursuant to Sec.  1.1411(e), routine maintenance, or 
modification in response to emergencies.
* * * * *

0
4. Amend Sec.  1.1411 by:
0
a. Revising paragraphs (a), (c), and (d) introductory text and (d)(2);
0
b. Adding paragraphs (d)(3) and (4);
0
c. Revising paragraphs (e)(1) and (2);
0
d. Adding paragraph (e)(3);
0
e. Revising paragraphs (f), (g)(1), (g)(4) and (5), (h), and (i); and
0
f. Adding paragraph (j).
    The revisions and additions read as follows:


Sec.  1.1411   Timeline for access to utility poles.

    (a) Definitions.
    (1) The term ``attachment'' means any attachment by a cable 
television system or provider of telecommunications service to a pole 
owned or controlled by a utility.
    (2) The term ``new attacher'' means a cable television system or 
telecommunications carrier requesting to attach new or upgraded 
facilities to a pole owned or controlled by a utility.
    (3) The term ``existing attacher'' means any entity with equipment 
on a utility pole.
* * * * *
    (c) Application review and survey--(1) Application completeness. A 
utility shall review a new attacher's attachment application for 
completeness before reviewing the application on its merits. 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.
    (i) A utility shall determine within 10 business days after receipt 
of a new attacher's attachment application whether the application is 
complete and notify the attacher of that decision. If the utility does 
not respond within 10 business days after receipt of the application, 
or if the utility rejects the application as incomplete but fails to 
specify any reasons in its response, then the application is deemed 
complete. If the utility timely notifies the new attacher that its 
attachment application is not complete, then it must specify all 
reasons for finding it incomplete.
    (ii) Any resubmitted application need only address the utility's 
reasons for finding the application incomplete and shall be deemed 
complete within 5 business days after its resubmission, unless the 
utility specifies to the new attacher which reasons were not addressed 
and how the resubmitted application did not sufficiently address the 
reasons. The new attacher may follow the resubmission procedure in this 
paragraph as many times as it chooses so long as in each case it makes 
a bona fide attempt to correct the reasons identified by the utility, 
and in each case the deadline set forth in this paragraph shall apply 
to the utility's review.
    (2) Application review on the merits. A utility shall respond to 
the new attacher either by granting access or, consistent with Sec.  
1.1403(b), denying access within 45 days of receipt of a complete 
application to attach facilities to its utility poles (or within 60 
days in the case of larger orders as described in paragraph (g) of this 
section). A utility may not deny the new attacher pole access based on 
a preexisting violation not caused by any prior attachments of the new 
attacher.
    (3) Survey. (i) A utility shall complete a survey of poles for 
which access has been requested within 45 days of receipt of a complete 
application to attach facilities to its utility poles (or within 60 
days in the case of larger orders as described in paragraph (g) of this 
section).
    (ii) A utility shall permit the new attacher and any existing 
attachers on the affected poles to be present for any field inspection 
conducted as part of the utility's survey. A utility shall use 
commercially reasonable efforts to provide the affected attachers with 
advance notice of not less than 3 business days of any field inspection 
as part of the survey and shall provide the date, time, and location of 
the survey, and name of the contractor performing the survey.
    (iii) Where a new attacher has conducted a survey pursuant to

[[Page 46837]]

paragraph (j)(3) of this section, a utility can elect to satisfy its 
survey obligations in this paragraph by notifying affected attachers of 
its intent to use the survey conducted by the new attacher pursuant to 
paragraph (j)(3) of this section and by providing a copy of the survey 
to the affected attachers within the time period set forth in paragraph 
(c)(3)(i) of this section. A utility relying on a survey conducted 
pursuant to paragraph (j)(3) of this section to satisfy all of its 
obligations under paragraph (c)(3)(i) of this section shall have 15 
days to make such a notification to affected attachers rather than a 45 
day survey period.
    (d) Estimate. 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. Where a pole-by-pole estimate is 
requested and the utility incurs fixed costs that are not reasonably 
calculable on a pole-by-pole basis, the utility present charges on a 
per-job basis rather than present a pole-by-pole estimate for those 
fixed cost charges. The utility shall provide documentation that is 
sufficient to determine the basis of all estimated charges, including 
any projected material, labor, and other related costs that form the 
basis of its estimate.
* * * * *
    (2) A new attacher may accept a valid estimate and make payment any 
time after receipt of an estimate, except it may not accept after the 
estimate is withdrawn.
    (3) Final invoice: After the utility completes make-ready, if the 
final cost of the work differs from the estimate, it shall provide the 
new attacher with a detailed, itemized final invoice of the actual 
make-ready charges incurred, on a pole-by-pole basis where requested, 
to accommodate the new attacher's attachment. Where a pole-by-pole 
estimate is requested and the utility incurs fixed costs that are not 
reasonably calculable on a pole-by-pole basis, the utility may present 
charges on a per-job basis rather than present a pole-by-pole invoice 
for those fixed cost charges. The utility shall provide documentation 
that is sufficient to determine the basis of all estimated charges, 
including any projected material, labor, and other related costs that 
form the basis of its estimate.
    (4) A utility may not charge a new attacher to bring poles, 
attachments, or third-party equipment into compliance with current 
published safety, reliability, and pole owner construction standards 
guidelines if such poles, attachments, or third-party equipment were 
out of compliance because of work performed by a party other than the 
new attacher prior to the new attachment.
    (e) * * *
    (1) For attachments in the communications space, the notice shall:
    (i) Specify where and what make-ready will be performed.
    (ii) Set a date for completion of make-ready in the communications 
space that is no later than 30 days after notification is sent (or up 
to 75 days in the case of larger orders as described in paragraph (g) 
of this section).
    (iii) State that any entity with an existing attachment may modify 
the attachment consistent with the specified make-ready before the date 
set for completion.
    (iv) State that if make-ready is not completed by the completion 
date set by the utility in paragraph (e)(1)(ii) in this section, the 
new attacher may complete the make-ready specified pursuant to 
paragraph (e)(1)(i) in this section.
    (v) State the name, telephone number, and email address of a person 
to contact for more information about the make-ready procedure.
    (2) For attachments above the communications space, the notice 
shall:
    (i) Specify where and what make-ready will be performed.
    (ii) Set a date for completion of make-ready that is no later than 
90 days after notification is sent (or 135 days in the case of larger 
orders, as described in paragraph (g) of this section).
    (iii) State that any entity with an existing attachment may modify 
the attachment consistent with the specified make-ready before the date 
set for completion.
    (iv) State that the utility may assert its right to 15 additional 
days to complete make-ready.
    (v) State that if make-ready is not completed by the completion 
date set by the utility in paragraph (e)(2)(ii) in this section (or, if 
the utility has asserted its 15-day right of control, 15 days later), 
the new attacher may complete the make-ready specified pursuant to 
paragraph (e)(1)(i) of this section.
    (vi) State the name, telephone number, and email address of a 
person to contact for more information about the make-ready procedure.
    (3) Once a utility provides the notices described in this section, 
it then must provide the new attacher with a copy of the notices and 
the existing attachers' contact information and address where the 
utility sent the notices. The new attacher shall be responsible for 
coordinating with existing attachers to encourage their completion of 
make-ready by the dates set forth by the utility in paragraph 
(e)(1)(ii) of this section for communications space attachments or 
paragraph (e)(2)(ii) of this section for attachments above the 
communications space.
    (f) A utility shall complete its make-ready in the communications 
space by the same dates set for existing attachers in paragraph 
(e)(1)(ii) of this section or its make-ready above the communications 
space by the same dates for existing attachers in paragraph (e)(2)(ii) 
of this section (or if the utility has asserted its 15-day right of 
control, 15 days later).
    (g) * * *
    (1) A utility shall apply the timeline described in paragraphs (c) 
through (e) of this section to all requests for attachment up to the 
lesser of 300 poles or 0.5 percent of the utility's poles in a state.
* * * * *
    (4) A utility shall negotiate in good faith the timing of all 
requests for attachment larger than the lesser of 3000 poles or 5 
percent of the utility's poles in a state.
    (5) 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.
    (h) Deviation from the time limits specified in this section. (1) A 
utility may deviate from the time limits specified in this section 
before offering an estimate of charges if the parties have no agreement 
specifying the rates, terms, and conditions of attachment.
    (2) A utility may deviate from the time limits specified in this 
section during performance of make-ready for good and sufficient cause 
that renders it infeasible for the utility to complete make-ready 
within the time limits specified in this section. A utility that so 
deviates shall immediately notify, in writing, the new attacher and 
affected existing attachers and shall identify the affected poles and 
include 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.

[[Page 46838]]

    (3) An existing attacher may deviate from the time limits specified 
in this section during 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 time limits 
specified in this section. An existing attacher that so deviates shall 
immediately notify, in writing, the new attacher and other affected 
existing attachers and shall identify the affected poles and include a 
detailed explanation of the basis for the deviation and a new 
completion date, which in no event shall extend beyond 60 days from the 
date the notice described in paragraph (e)(1) of this section is sent 
by the utility (or up to 105 days in the case of larger orders 
described in paragraph (g) of this section). The existing attacher 
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.
    (i) Self-help remedy--(1) Surveys. If a utility fails to complete a 
survey as specified in paragraph (c)(3)(i) of this section, then a new 
attacher may conduct the survey in place of the utility and, as 
specified in Sec.  1.1412, hire a contractor to complete a survey.
    (i) A new attacher shall permit the affected utility and existing 
attachers to be present for any field inspection conducted as part of 
the new attacher's survey.
    (ii) A new attacher shall use commercially reasonable efforts to 
provide the affected utility and existing attachers with advance notice 
of not less than 3 business days of a field inspection as part of any 
survey it conducts. The notice shall include the date and time of the 
survey, a description of the work involved, and the name of the 
contractor being used by the new attacher.
    (2) Make-ready. If make-ready is not complete by the date specified 
in paragraph (e) of this section, then a new attacher may conduct the 
make-ready in place of the utility and existing attachers, and, as 
specified in Sec.  1.1412, hire a contractor to complete the make-
ready.
    (i) A new attacher shall permit the affected utility and existing 
attachers to be present for any make-ready. A new attacher shall use 
commercially reasonable efforts to provide the affected utility and 
existing attachers with advance notice of not less than 5 days of the 
impending make-ready. The notice shall include the date and time of the 
make-ready, a description of the work involved, and the name of the 
contractor being used by the new attacher.
    (ii) The new attacher shall notify an affected utility or existing 
attacher immediately if make-ready damages the equipment of a utility 
or an existing attacher or causes an outage that is reasonably likely 
to interrupt the service of a utility or existing attacher. Upon 
receiving notice from the new attacher, the utility or existing 
attacher may either:
    (A) Complete any necessary remedial work and bill the new attacher 
for the reasonable costs related to fixing the damage; or
    (B) Require the new attacher to fix the damage at its expense 
immediately following notice from the utility or existing attacher.
    (iii) A new attacher shall notify the affected utility and existing 
attachers within 15 days after completion of make-ready on a particular 
pole. The notice shall provide the affected utility and existing 
attachers at least 90 days from receipt in which to inspect the make-
ready. The affected utility and existing attachers have 14 days after 
completion of their inspection to notify the new attacher of any damage 
or code violations caused by make-ready conducted by the new attacher 
on their equipment. If the utility or an existing attacher notifies the 
new attacher of such damage or code violations, then the utility or 
existing attacher shall provide adequate documentation of the damage or 
the code violations. The utility or existing attacher may either 
complete any necessary remedial work and bill the new attacher for the 
reasonable costs related to fixing the damage or code violations or 
require the new attacher to fix the damage or code violations at its 
expense within 14 days following notice from the utility or existing 
attacher.
    (3) Pole replacements. Self-help shall not be available for pole 
replacements.
    (j) One-touch make-ready option. For attachments involving simple 
make-ready, new attachers may elect to proceed with the process 
described in this paragraph in lieu of the attachment process described 
in paragraphs (c) through (f) and (i) of this section.
    (1) Attachment application. (i) A new attacher electing the one-
touch make-ready process must elect the one-touch make-ready process in 
writing in its attachment application and must identify the simple 
make-ready that it will perform. It is the responsibility of the new 
attacher to ensure that its contractor determines whether the make-
ready requested in an attachment application is simple.
    (ii) The utility shall review the new attacher's attachment 
application for completeness before reviewing the application on its 
merits. An 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 publicly-released 
requirements at the time of submission of the application, to make an 
informed decision on the application.
    (A) A utility has 10 business days after receipt of a new 
attacher's attachment application in which to determine whether the 
application is complete and notify the attacher of that decision. If 
the utility does not respond within 10 business days after receipt of 
the application, or if the utility rejects the application as 
incomplete but fails to specify any reasons in the application, then 
the application is deemed complete.
    (B) If the utility timely notifies the new attacher that its 
attachment application is not complete, then the utility must specify 
all reasons for finding it incomplete. Any resubmitted application need 
only address the utility's reasons for finding the application 
incomplete and shall be deemed complete within 5 business days after 
its resubmission, unless the utility specifies to the new attacher 
which reasons were not addressed and how the resubmitted application 
did not sufficiently address the reasons. The applicant may follow the 
resubmission procedure in this paragraph as many times as it chooses so 
long as in each case it makes a bona fide attempt to correct the 
reasons identified by the utility, and in each case the deadline set 
forth in this paragraph shall apply to the utility's review.
    (2) Application review on the merits. The utility shall review on 
the merits a complete application requesting one-touch make-ready and 
respond to the new attacher either granting or denying an application 
within 15 days of the utility's receipt of a complete application (or 
within 30 days in the case of larger orders as described in paragraph 
(g) of this section).
    (i) If the utility denies the application on its merits, then its 
decision shall be specific, shall include all relevant evidence and 
information supporting its decision, and shall explain how such 
evidence and information relate to a denial of access for reasons of 
lack of capacity, safety, reliability, or engineering standards.
    (ii) Within the 15-day application review period (or within 30 days 
in the case of larger orders as described in paragraph (g) of this 
section), a utility

[[Page 46839]]

may object to the designation by the new attacher's contractor that 
certain make-ready is simple. If the utility objects to the 
contractor's determination that make-ready is simple, then it is deemed 
complex. The utility's objection is final and determinative so long as 
it is specific and in writing, includes all relevant evidence and 
information supporting its decision, made in good faith, and explains 
how such evidence and information relate to a determination that the 
make-ready is not simple.
    (3) Surveys. The new attacher is responsible for all surveys 
required as part of the one-touch make-ready process and shall use a 
contractor as specified in Sec.  1.1412(b).
    (i) The new attacher shall permit the utility and any existing 
attachers on the affected poles to be present for any field inspection 
conducted as part of the new attacher's surveys. The new attacher shall 
use commercially reasonable efforts to provide the utility and affected 
existing attachers with advance notice of not less than 3 business days 
of a field inspection as part of any survey and shall provide the date, 
time, and location of the surveys, and name of the contractor 
performing the surveys.
    (ii) [Reserved].
    (4) Make-ready. If the new attacher's attachment application is 
approved and if it has provided 15 days prior written notice of the 
make-ready to the affected utility and existing attachers, the new 
attacher may proceed with make-ready using a contractor in the manner 
specified for simple make-ready in Sec.  1.1412(b).
    (i) The prior written notice shall include the date and time of the 
make-ready, a description of the work involved, the name of the 
contractor being used by the new attacher, and provide the affected 
utility and existing attachers a reasonable opportunity to be present 
for any make-ready.
    (ii) The new attacher shall notify an affected utility or existing 
attacher immediately if make-ready damages the equipment of a utility 
or an existing attacher or causes an outage that is reasonably likely 
to interrupt the service of a utility or existing attacher. Upon 
receiving notice from the new attacher, the utility or existing 
attacher may either:
    (A) Complete any necessary remedial work and bill the new attacher 
for the reasonable costs related to fixing the damage; or
    (B) Require the new attacher to fix the damage at its expense 
immediately following notice from the utility or existing attacher.
    (iii) In performing make-ready, if the new attacher or the utility 
determines that make-ready classified as simple is complex, then that 
specific make-ready must be halted and the determining party must 
provide immediate notice to the other party of its determination and 
the impacted poles. The affected make-ready shall then be governed by 
paragraphs (d) through (i) of this section and the utility shall 
provide the notice required by paragraph (e) of this section as soon as 
reasonably practicable.
    (5) Post-make-ready timeline. A new attacher shall notify the 
affected utility and existing attachers within 15 days after completion 
of make-ready on a particular pole. The notice shall provide the 
affected utility and existing attachers at least 90 days from receipt 
in which to inspect the make-ready. The affected utility and existing 
attachers have 14 days after completion of their inspection to notify 
the new attacher of any damage or code violations caused by make-ready 
conducted by the new attacher on their equipment. If the utility or an 
existing attacher notifies the new attacher of such damage or code 
violations, then the utility or existing attacher shall provide 
adequate documentation of the damage or the code violations. The 
utility or existing attacher may either complete any necessary remedial 
work and bill the new attacher for the reasonable costs related to 
fixing the damage or code violations or require the new attacher to fix 
the damage or code violations at its expense within 14 days following 
notice from the utility or existing attacher.

0
5. Amend Sec.  1.1412 by revising paragraphs (a), (b), and (c) to read 
as follows:


Sec.  1.1412  Contractors for surveys and make-ready.

    (a) Contractors for self-help complex and above the communications 
space make-ready. A utility shall make available and keep up-to-date a 
reasonably sufficient list of contractors it authorizes to perform 
self-help surveys and make-ready that is complex and self-help surveys 
and make-ready that is above the communications space on its poles. The 
new attacher must use a contractor from this list to perform self-help 
work that is complex or above the communications space. New and 
existing attachers may request the addition to the list of any 
contractor that meets the minimum qualifications in paragraphs (c)(1) 
through (5) of this section and the utility may not unreasonably 
withhold its consent.
    (b) Contractors for simple work. A utility may, but is not required 
to, keep up-to-date a reasonably sufficient list of contractors it 
authorizes to perform surveys and simple make-ready. If a utility 
provides such a list, then the new attacher must choose a contractor 
from the list to perform the work. New and existing attachers may 
request the addition to the list of any contractor that meets the 
minimum qualifications in paragraphs (c)(1) through (5) of this section 
and the utility may not unreasonably withhold its consent.
    (1) If the utility does not provide a list of approved contractors 
for surveys or simple make-ready or no utility-approved contractor is 
available within a reasonable time period, then the new attacher may 
choose its own qualified contractor that meets the requirements in 
paragraph (c) of this section. When choosing a contractor that is not 
on a utility-provided list, the new attacher must certify to the 
utility that its contractor meets the minimum qualifications described 
in paragraph (c) of this section when providing notices required by 
Sec.  1.1411(i)(1)(ii), (i)(2)(i), (j)(3)(i), and (j)(4).
    (2) The utility may disqualify any contractor chosen by the new 
attacher that is not on a utility-provided list, but such 
disqualification must be based on reasonable safety or reliability 
concerns related to the contractor's failure to meet any of the minimum 
qualifications described in paragraph (c) of this section or to meet 
the utility's publicly available and commercially reasonable safety or 
reliability standards. The utility must provide notice of its 
contractor objection within the notice periods provided by the new 
attacher in Sec.  1.1411(i)(1)(ii), (i)(2)(i), (j)(3)(i), and (j)(4) 
and in its objection must identify at least one available qualified 
contractor.
    (c) Contractor minimum qualification requirements. Utilities must 
ensure that contractors on a utility-provided list, and new attachers 
must ensure that contractors they select pursuant to paragraph (b)(1) 
of this section, meet the following minimum requirements:
    (1) The contractor has agreed to follow published safety and 
operational guidelines of the utility, if available, but if 
unavailable, the contractor shall agree to follow National Electrical 
Safety Code (NESC) guidelines;
    (2) The contractor has acknowledged that it knows how to read and 
follow licensed-engineered pole designs for make-ready, if required by 
the utility;
    (3) The contractor has agreed to follow all local, state, and 
federal laws and regulations including, but not limited to, the rules 
regarding Qualified and Competent Persons under the requirements of the 
Occupational and

[[Page 46840]]

Safety Health Administration (OSHA) rules;
    (4) The contractor has agreed to meet or exceed any uniformly 
applied and reasonable safety and reliability thresholds set by the 
utility, if made available; and
    (5) The contractor 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.
* * * * *

0
6. Revise Sec.  1.1413 to read as follows:


Sec.  1.1413  Complaints by incumbent local exchange carriers.

    (a) A complaint by an incumbent local exchange carrier (as defined 
in 47 U.S.C. 251(h)) or an association of incumbent local exchange 
carriers alleging that it has been denied access to a pole, duct, 
conduit, or right-of-way owned or controlled by a local exchange 
carrier or that a utility's rate, term, or condition for a pole 
attachment is not just and reasonable shall follow the same complaint 
procedures specified for other pole attachment complaints in this part.
    (b) In complaint proceedings challenging utility pole attachment 
rates, terms, and conditions for pole attachment contracts entered into 
or renewed after the effective date of this section, there is a 
presumption that an incumbent local exchange carrier (or an association 
of incumbent local exchange carriers) is similarly situated to an 
attacher that is a telecommunications carrier (as defined in 47 U.S.C. 
251(a)(5)) or a cable television system providing telecommunications 
services for purposes of obtaining comparable rates, terms, or 
conditions. In such complaint proceedings challenging pole attachment 
rates, there is a presumption that incumbent local exchange carriers 
(or an association of incumbent local exchange carriers) may be charged 
no higher than the rate determined in accordance with Sec.  
1.1406(e)(2). A utility can rebut either or both of the two 
presumptions in this paragraph (b) with clear and convincing evidence 
that the incumbent local exchange carrier receives benefits under its 
pole attachment agreement with a utility that materially advantages the 
incumbent local exchange carrier over other telecommunications carriers 
or cable television systems providing telecommunications services on 
the same poles.

0
7. Add Sec.  1.1415 to read as follows:


Sec.  1.1415  Overlashing.

    (a) Prior approval. A utility shall not require prior approval for:
    (1) An existing attacher that overlashes its existing wires on a 
pole; or
    (2) For third party overlashing of an existing attachment that is 
conducted with the permission of an existing attacher.
    (b) Preexisting violations. A utility may not prevent an attacher 
from overlashing because another existing attacher has not fixed a 
preexisting violation. A utility may not require an existing attacher 
that overlashes its existing wires on a pole to fix preexisting 
violations caused by another existing attacher.
    (c) Advance notice. A utility may require no more than 15 days' 
advance notice of planned overlashing. If a utility requires advance 
notice for overlashing, then the utility must provide existing 
attachers with advance written notice of the notice requirement or 
include the notice requirement in the attachment agreement with the 
existing attacher. If after receiving advance notice, the utility 
determines that an overlash would create a capacity, safety, 
reliability, or engineering issue, it must provide specific 
documentation of the issue to the party seeking to overlash within the 
15 day advance notice period and the party seeking to overlash must 
address any identified issues before continuing with the overlash 
either by modifying its proposal or by explaining why, in the party's 
view, a modification is unnecessary. A utility may not charge a fee to 
the party seeking to overlash for the utility's review of the proposed 
overlash.
    (d) Overlashers' responsibility. A party that engages in 
overlashing is responsible for its own equipment and shall ensure that 
it complies with reasonable safety, reliability, and engineering 
practices. If damage to a pole or other existing attachment results 
from overlashing or overlashing work causes safety or engineering 
standard violations, then the overlashing party is responsible at its 
expense for any necessary repairs.
    (e) Post-overlashing review. An overlashing party shall notify the 
affected utility within 15 days of completion of the overlash on a 
particular pole. The notice shall provide the affected utility at least 
90 days from receipt in which to inspect the overlash. The utility has 
14 days after completion of its inspection to notify the overlashing 
party of any damage or code violations to its equipment caused by the 
overlash. If the utility discovers damage or code violations caused by 
the overlash on equipment belonging to the utility, then the utility 
shall inform the overlashing party and provide adequate documentation 
of the damage or code violations. The utility may either complete any 
necessary remedial work and bill the overlashing party for the 
reasonable costs related to fixing the damage or code violations or 
require the overlashing party to fix the damage or code violations at 
its expense within 14 days following notice from the utility.

[FR Doc. 2018-19547 Filed 9-13-18; 8:45 am]
 BILLING CODE 6712-01-P